During the course of the trial, the prosecutor had inadvertently disclosed to the defence legal team material which had been subject to a public interest immunity certificate. The judge made an order under the 1987 Act that the defence team must not disclose the materials to their clients, nor use it for their defence.
Held: The jury having been discharged on the discovery, what then happened was a preparatory hearing, and there did exist a right of appeal. The judge had correctly seen the order as ancillary to the original PII certificate order. He had considered that the material would not impede the conduct of the defence. However, such an order would lead to several substantial practical difficulties and dangers for the defence lawyers. An asymmetric Chinese Wall between some defendants and their counsel and others would create an unfairness. This was reflected already in the documents submitted on the appeal. The judge could not conclude that the legal team could not properly continue to act. That was a decision for them, not him. If such orders were possible the special counsel procedures approved in R v H would not be required. Appeal allowed.
Rose LJ identified the inevitable damage to the relationship between the lawyer of revealing information to the lawyer on condition that it not be passed to the client: ‘. . . in addition to preventing frankness and fettering the free flow of information between lawyer and client, the order would be likely to nurture in the client a belief that his lawyers are putting other interests . . . above his own; and the client’s perception of the relationship is a matter of importance . . .’
Judges:
Rose LJ, Cresswell , Andrew Smith JJ
Citations:
[2004] 1 WLR 2932, Times 08-Jun-2004
Statutes:
Criminal Justice Act 1987 9(11)
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
Cited – 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.
Cited by:
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Legal Professions
Updated: 06 May 2022; Ref: scu.199548