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Pii Cmps Notes

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Secret evidence: PII & CMPs Types of secret evidence
 Evidence unavailable to the court because kept secret (eg shielded by LPP)
 Evidence available to court but unavailable to one or more of the parties (eg CMPs)
 Evidence which is available to court & parties but withheld from public (eg in camera proceedings) History
 Crown Privilege (unreviewable) - Duncan v Cammell Laird [1942] (trials on new submarine design - submarine was submerged & never came back up - employees lost - families brought proceedings against shipbuilders for negligence in design of submarine - blueprints during wartime were sensitive
- could backfire & frontfire  D asserted Crown Privilege - that assertion is conclusive - not disclosed) o BUT Crown can get privilege just by asserting o Public benefits - particular parties suffer - is that distribution of burden appropriate?
 Can't assess liability & quantum without documents
 CF if liability could be established another way & documents would show no negligence - Ds would suffer
 Establishment of Public Interest Immunity - Conway v Rimmer [1968]
(permitting non-disclosure for PII claim) o Balancing test - harm to public harm to administration of justice o Difficulty in case where - serious harm to public interest & cannot reach correct decision without evidence disclosed
 Immunity over classes of documents effectively abolished in Ex parte Wiley (1994)
 Carnduff v Rock (2001) — only case where PII asserted by Crown as defendant to civil claim, causing claim to be dismissed o grant of PII in action against police by informant alleging breach of alleged contract - could not be determined without looking at 'contract' - covered by PII o but AZ: alleged contract was illegal & unenforceable anyway?
 Closed material proceedings: JSA 2013 o Al Rawi (proceedings alleging torture - no common law power to conduct CMP in inherent power) o Rationale - better to decide with regard to all evidence while excluding parties, than by part evidence with some excluded for PII Public Interest Immunity
= exception to disclosure Tension with disclosure


In general court should have access to best evidence — any exclusion of relevant evidence calls for good justification: Lord Edmund-Davies in D v NSPCC Art 6(1) ECHR — restriction on disclosure permitted if proportionate in pursuit of legitimate interest & subject to judicial scrutiny

Procedure
 Application by party asserting PII — usually Minister as a party but could be anyone or even the court on its own motion: Rogers v Home Secretary (1973) o Minister can issue PII certificates - but have been heavily criticised: Al-Sweady (certificate over material that was already in the public domain — criticised by court and made indemnity costs order against gov) o Party seeking disclosure must show that docs would provide substantial support: Air Canada
 Difficult if they haven't seen them
 But only need a real as opposed to fanciful chance: Goodridge (1999) o Balancing then conducted by the court
 Special advocates can be appointed to help resolve the claim: AHK
 Assertion that no relevant evidence o If party says that has no relevant evidence to disclose, then can't go behind it o R v H per Bingham — may be necessary to have inspection of material by court, possibly aided by special advocate
 Possible to make ex parte applications for disclosure of existence of docs &
not serve order: CPR31.19(2) — ie total secrecy
 May be that judge who inspects & then upholds PII claim should not determine substantive matter, as reasonable apprehension of bias: Ex parte Lilley (1995) Balancing — Harm to public interest from disclosure harm to administration of justice generally and in the particular case by withholding
 Public interest—
o National security in time of war: Duncan v Cammell Laird (now CMPs available) o Proper functioning of public service: Re M (a minor) o Operation of local authority social work services: D v NSPCC (1978) o Ascertaining risk of harm to public interest on disclosure —
 Ex parte Wiley (claim of PII in evidence collected under inquiry re police misconduct — asserted that disclosure would discourage further witnesses from coming forward  but could not withhold from victims of police misconduct on this basis —
that is the whole point of the inquiry — would discourage witnesses from coming forward as would be futile)
 May depend on who has the documents as well as their contents: Lonrho (application for disclosure of tax documents 
balancing exercise in favour of disclosure)


Harm from withholding — to individual & administration of justice o EG whether marginal importance, whether can be obtained from other sources Class-wide exemptions for PII require compelling public interest: Ex parte Wiley (allegations of police misconduct - documents subject to class-wide PII claim  disclosure ordered - otherwise would have chilling effect) o Can refuse to disclose documents & existence of documents: CPR

31.19 Consequences of grant of PII o Documents can be redacted to provide a middle ground o If unsuccessful - open to all parties o If successful - inadmissible & can't be relied on
 Can also apply to withhold existence of documents as well as docs themselves

Waiver
 PII cannot be waived as protects public interest — not a card for the gov to play as it wishes: Makanjuola per Bingham LJ o Follows that there is a duty to claim PII?
o BUT can give weight to decision of government officials choosing to disclose voluntarily: Horseferry (CPS handing over documents to D that were potentially subject to PII claim) Criminal contexts
 Keane per Lord Taylor — if disputed material may prove defendant's innocence, then balance comes down "resoundingly" in favour of disclosure o IE State can't have both secrecy & prosecution — must either disclose or drop prosecution
 R v H (charge of conspiracy to supply drugs — PII asserted over investigation
 if material weakens Crown case or strengthens defence case must be disclosed — if would not prejudice, then derogation must be minimum necessary) — Set out 7 steps, in essence—
o Full disclosure if weakens crown case or if not a real risk of serious prejudice to important public interest o Limited disclosure permitted provided that the minimum necessary to protect public interest & does not render trial process unfair o Must keep under review as trial progresses
 R v Davis (anonymity of witnesses — risk of intimidation could not deny right to confront prosecution witnesses)
 Cynical criticisms—
o Dreaming up defence to get disclosure — eg asserting that informant duressed D in order to get disclosure, or have prosecution dropped Civil contexts — Refuse to hear on the basis that cannot be fairly heard?
Carnduff v Rock (2001) (police informant claimed remuneration — asserted contract with police — applied for disclosure — police applied to strike out  By majority, struck out — application of PII causes unfairness rendering matter untriable)


The only case since Conway v Rimmer in which PII has been successful with the result that the plaintiff loses his case o At odds with CMP justification — if information not disclosed, then C's claim may fail — Produces CMP situation — in C's interest that disclosed to court even if not to them Laws LJ: Court would have to examine in detail interactions with police —
concerned about police having to make concessions — case which can only be justly tried Criticisms — Illogical to strike out —
o Not abusive under CPR 3.4 as brought in good faith o Not groundless as even if evidence not disclosed, applicant would have given evidence that would have to be evaluated
 Best explanation of the case — that PII claim upheld
 But trial should have proceeded without evidence
 And struck out before disclosure commenced — no consideration of summaries, redacted copies, etc o If striking out because not possible to have a fair trial — then are not achieving that goal by striking it out Picked up in Al Rawi (2012) (common law CMP not permissible) o Argued for CMP on the basis of (a) public interest and (b) economy as determining large number of PII claims would be expensive & timeconsuming o Majority — CMP not permitted by common law o Mance & Hale in dissent — CMP permitted only by consent
 Mance — presuming correctness of Carnduff — successful PII claim can make claim untriable and strike out — so should be able to consent to CMP
 BUT no party submitted the claim in Al Rawi would be untriable or should be struck out under Carnduff
 And Al Rawi's claim prima facie valid, whereas alleged contract in Carnduff may have been illegal o Clarke — CMP permitted without statutory authority or consent o Government settled claim rather than litigate & reveal evidence

Accepted (reconstrued?) in Tariq (2012)
 Lord Mance for the majority — if disclosure would harm public interest, then disclosure not possible and fair trial not possible — renders not justiciable Reconstruction — cannot be tried merely because claimant bound to lose
 AHK (refusal of citizenship applications with no reasons — invoked national security) o Cannot go behind Sec of State's assertion of public interest —
evidence means that claimant cannot win — makes case untriable only because C cannot win o Carnduff, non-justiciability based on unfairness generally
 CF in HC (allegation of UK government complicity in arrest & torture) o I am convinced that the information is such that no court could fairly try the case without this material (or most of it). This is a case which

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