Public interest immunity (1)
01 January 1991
Public interest immunity
artdoc July=1993
The 1992 Matrix-Churchill trial brought the clandestine `Boys'
Own' world of the security services a bit further into the light
of day. This was largely because of the efforts of defence
lawyers in successfully arguing that hundreds of ministerial,
departmental and Security and Intelligence Service (SIS, ie MI5
and MI6) documents should be made available to them. They
revealed, as is now well-known, that agencies of government knew
of, approved of and encouraged the sale of arms-making equipment
to Iraq in the 1980s, and the exposure led to the acquittal of
the defendants.
The prosecution had proceeded on the basis that the documents
were `privileged' and not subject to the usual requirement that
the prosecution ensure that all relevant material is made
available to the defence. The `safe haven' into which the
government, security services and prosecution tried to steer this
vital material was public interest immunity (pii). Pii used to
be termed `Crown privilege', but the term is no longer used,
apparently because it is not necessarily only the Crown which
asserts it, and ostensibly too because it is not supposed to be
a privilege, but a duty, to protect sensitive material from
disclosure. More cynical upholders of civil liberties might
comment that this republican-style change of terminology owes
more to George Orwell than to modernity or precision. The public
must be protected from knowing about that which its servants and
agents do in its name.
Pii has been a recognised legal concept for at least a century
and a half. It is asserted to protect the interests of national
security or diplomatic relations, or to protect the `integrity
of communications' with or within a public department. National
security considerations require little further explanation: to
publish a list of MI5 operations might well be detrimental to its
spying activities. Protecting inter- and intra-departmental
communications is slightly more difficult to comprehend. The pii
argument goes that ministers, policy advisers, civil servants,
police officers and other public servants would not communicate
with the same frankness and candour, should there be a threat of
exposure of their discussions in open court.
The court procedure
In principle, pii is a duty which must be asserted and cannot be
waived, so that a prosecutor in possession of a document in a
`protected class' without which he could not prove his case
would, in theory, be bound to object to its disclosure in court,
and let the defendant walk free. This situation has never
occurred, although a prosecution based solely on protected
documents would in all probability not proceed, and cases based
solely on the evidence of informants whose identity (or
existence) the prosecution do not want to disclose have on
several occasions been abandoned. This happened to a number of
cases involving football `gangs'
infiltrated by undercover police officers.
Theoretically pii can be raised by any party or by the judge,
but in practice it is almost always asserted by the issue of a
public interest certificate signed by ministers or an affidavit
claiming public interest, produced by the prosecution. If pii is
asserted, the person seeking disclosure of the document must
first prove that it is material to the case. This is not easy,
since in all probability he has never seen it. Indeed, in most
cases, including the Matrix-Churchill trial, not only the
contents of such documents, but even their existence, is not
known.
In the Glor na nGael case, the Northern Ireland Minister
directed the withdrawal of funding from the West Belfast
committee of the voluntary group after five years of funding, on
the basis that after `security advice' was sought in relation to
(unnamed) `persons understood to be prominent of the affairs of
the committee', the Minister decided that there was a `grave risk
that financ