The defendant was arrested for burglary and a non-intimate sample taken without his consent. The DNA profile matched blood at the scene of the burglary, and this match was the bedrock of the prosecution case. Before the trial, prosecuting counsel applied ex parte to withhold disclosure of certain material. The defence were notified of the application but not of the category into which the material was said to fall. The judge ruled that the material should not be disclosed and the defence were so informed. The defence then submitted to the judge that the DNA evidence derived from the non-intimate sample should be excluded under section 78 on the ground that the police had had no reasonable grounds for suspecting the defendant of committing the burglary, and had not therefore been entitled to arrest him or take the sample. There was no evidence before the jury to show that the police had had reasonable cause to suspect the defendant of the burglary but the judge relied on the PII information to rule that the police had had reasonable grounds for suspicion and declined to exclude the DNA evidence.
Held: There is nothing in human rights law, or in common law jurisdiction to say that the use of material not disclosed to the defence in an ex parte application for a public interest immunity certificate, was a breach of the defendant’s article 6 right which guaranteed a fair trial. Here, the defendant’s arrest was challenged as unlawful. The police sought to justify the arrest on the basis that they had reasonable suspicion of his involvement in the offence, but they sought permission not disclose the basis of that reasonable suspicion, and there is no provision to allow a hearing with special counsel appointed to represent the defendant’s interest in such a situation, although this might be considered in future.
Citations:
Times 20-Dec-2000, [2001] 2 Cr App R 1, [2001] 1 WLR 1031
Statutes:
European Convention on Human Rights 6, Police and Criminal Evidence Act 1984 78
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v Dearman, Southgate CACD 8-Oct-2001
The appellants had been convicted of conspiracy to supply class A drugs. They appealed against conviction on the basis that the police and subsequently the prosecution involved lies or deceit intended to protect the identity of undercover detectives . .
Cited – Regina (Director of Public Prosecutions) v Acton Youth Court QBD 21-Jun-2001
It was not normally necessary for magistrates to excuse themselves from further involvement in a case after making preliminary rulings on a request for public immunity certificates. The purpose of that ex parte hearing was to ensure the protection . .
Cited – Regina v H; Regina v C CACD 16-Oct-2003
The defendants were charged with serious drugs offences. The prosecutor had applied for public interest immunity certificates. The judge had required the appointment of independent counsel. The prosecutor appealed.
Held: The same district . .
Not good law – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice
Updated: 06 July 2022; Ref: scu.88670