A.A.S. Zuckerman*

Obstacles to Inspection

When the House of Lords assumed responsibility for public interest immunity and set out the Conway v Rimmer balancing exercise, it could hardly have been predicted that a decade on the House of Lords itself would rob the balancing exercise of its efficacy. This process started with Burmah Oil Co v Bank of England,M Burmah brought an action to set aside a sale of shares by it to the Bank of England on the grounds that the transaction had been unconscionable. The issue of public interest immunity concerned a number of documents consisting of memoranda of meetings between the Bank and ministers or high level government officials. Immunity was claimed on the grounds that the documents belonged to a class concerned with the formulation of government policy on economic matters. As the documents dealt with the official policy-making process, the House of Lords accepted that the Crown had made a good prima facie case for class protection.

Having accepted that the withholding of the documents would serve the public interest, the court proceeded to the balancing exercise. In the course of so doing, several members of the panel expressed scepticism about the strength of the public interest in non-disclosure.[1] Seeing that a majority of the court did not attach much weight to the importance of non-disclosure, one would have expected the court to order disclosure straight away or, at the very least, to proceed directly to an inspection of the documents in order to determine their significance to the issues in dispute. Instead, the House of Lords demonstrated considerable shyness in this regard. Lord Wilberforce, who alone attached importance to non-disclosure, was of the view that once a claim for immunity has been made on solid grounds, it was

for the party seeking disclosure to demonstrate the existence of a counteracting interest calling for disclosure.[2] Further, he considered that the court should not undertake a private inspection of documents ‘except in the rare instances where a strong positive case is made out’ that the documents contain material evidence.[3] Lord Edmund-Davies though that, in order to persuade the court to inspect documents, it has to be shown to be ‘on the cards’ that the documents contain material likely to assist the court,[4] while Lord Keith required a showing of reasonable probability that the documents contained such material.[5] [6] Thus, there was a majority for the view that an inspection will not take place unless the court has been persuaded that the documents contained information likely to assist the court. As there were indications, such as the coincidence of dates, which suggested that the documents in question did contain material information, the court inspected the documents and found them not to contain material necessary for disposing fairly of the cause.

The conditions that have to be fulfilled before a court would inspect documents were more fully considered in Air Canada v Secretary of State for Trade.10 Air Canada brought an action against the Secretary of State claiming that he had improperly instructed BAA (the British Airports Authority) to increase landing charges. The minister produced documents passing between his department and BAA, but claimed public interest immunity for documents containing communications between government ministers and memoranda prepared for ministers which related to the formulation of policies concerned with BAA and its finances. The trial judge, Bingham J, held that the documents were clearly relevant and proposed to inspect them in order to determine whether they contained material likely to assist the adjudication of the issues. Although his decision was clearly consonant with the principles of Conway v Rimmer, the House of Lords approved its reversal.

The House of Lords proceeded from the assumption that it was in the public interest to protect from disclosure government papers concerned with the workings of the Cabinet and with the formulation of government policy.[7] The court then turned to consider the other side of the scales. The documents were clearly relevant. Further, it was accepted that they were necessary for disposing fairly of the cause.[8] But the court still had to determine whether non-disclosure would have a deleterious effect on the ability of the court to judge the issues fully and adequately. Bingham J felt, as we have seen, that he could not come to a decision on this point unless he looked at the documents, but the House of Lords thought otherwise. Lord Fraser explained:

in order to persuade the court even to inspect documents for which public interest immunity is claimed, the party seeking disclosure ought at least to satisfy the court that the documents are very likely to contain material which would give substantial support to his contention on an issue which arises in the case, and that without them he might be ‘deprived of the means of . . . proper prosecution’ of his case.[9]

It was not enough for the party seeking disclosure to show that the documents would help establish the truth one way or the other. The party seeking discovery, it was held, must show that the documents are likely to assist his own case.[10]

This requirement presents a major obstacle to overcoming a claim for public interest immunity, for, clearly, the party seeking disclosure has no access to the documents, does not know their contents and, ordinarily, cannot prove that the documents are likely to affect the outcome of the case, let alone that they would assist his own case. Carol Harlow and Richard Rawlings describe this as a ‘“Catch 22” dilemma: without the evidence the case cannot be won; without the case the evidence cannot be secured.’[11]

This decision, perhaps more than any other decision, has seriously eroded the principle of judicial scrutiny of claims for public interest immunity propounded by Conway v Rimmer. It also amounts to a reversal of the principle that the party seeking to withhold documents from discovery bears the burden of showing that the public interest so requires.[12] Judicial scrutiny has been thus emasculated not by an open change of policy but by means of a technical ploy. Conway v Rimmer decided that no order should be made for the disclosure of documents in respect of which a prima facie valid claim for immunity has been made, except where the court is satisfied that disclosure is necessary in the interests of justice. To be so satisfied the court needs to inspect the documents to find out what they contain. Yet, on the Air Canada ruling, no inspection may take place unless the party seeking disclosure has shown that the documents will assist his case. Since, in the majority of cases, the party seeking disclosure is ignorant of the contents of the documents, this requirement is a bar to inspection, without which no order for disclosure can be made. It follows, in effect, that once a claim for immunity has been made, which is valid on the face of it, this is the end of the matter. Further, the rule in Air Canada has not remained confined to Cabinet papers and high level policy-making communications. It has even been applied where a citizen sued the police for wrongful arrest and false imprisonment.[13]

Not only did Air Canada undermine the Conway v Rimmer policy of judicial scrutiny of ministerial claims, it also tends to undermine the public interest in the administration of justice, which Conway v Rimmer set out to promote. Lord Wilberforce, this time a member of the majority in Air Canada, had this to say of the idea that it was in the interests of justice that judgments should be given on the basis of all existing and available evidence:

In a contest purely between one litigant and another, such as the present, the task of the court is to do, and to be seen to be doing, justice between the parties, a duty reflected in the word ‘fairly’ in the rule [RSC Ord 24, r 13]. There is no higher additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter; yet, if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done.[14]

This reasoning is suspect. For while it is true that in an adversary system the court has no obligation, indeed no power, to seek to ascertain the facts independently of the evidence that the parties choose to present to it, it does not follow that the court has no duty to assist a party to obtain evidence relevant to the issue before the court.[15] As has already been suggested, a court that is not prepared to assist a party to obtain relevant evidence fails in its obligation to afford that party an opportunity to prosecute his cause, because the facility of obtaining and presenting evidence is essential to the establishment of one’s legal rights. The decisions in Burmah Oil Co and Air Canada place a clog on the administration of justice and should be reconsidered; especially now that the Court of Appeal has held that a claim for public interest immunity in criminal trials cannot be properly determined without inspection of the material in question.[16]

D Public Interest Immunity in Criminal Proceedings

In Matrix Churchill, itself a criminal prosecution, the court was concerned with the operation of public interest immunity in criminal proceedings. The position in criminal cases is, fundamentally, no different from that in civil proceedings.[17] The interests at stake are, however, very different because in criminal prosecutions the accused runs the risk of punishment, which may involve loss of liberty, of property and of reputation. Nevertheless, the balancing test of Conway v Rimmer is perfectly capable of according adequate weight to the interest of protecting the innocent from conviction.[18]

It has long been acknowledged, even before Conway v Rimmer, that the needs of the accused to prove his innocence would in most situations outweigh the public interest in non-disclosure. Already in the nineteenth century it was accepted that the interest of the accused overrides the immunity from disclosing the identity of police informers.[19] Mustill LJ has recently restated this principle:

There was a strong . . . overwhelming public interest in keeping secret the source of information, but. . . there was an even stronger public interest in allowing a defendant to put forward a tenable case in the best light.[20]

It has been held that if, in order to enable an accused to defend himself, it is necessary to order the disclosure of sensitive information about police surveillance methods, the courts would not shrink from doing so.[21]

Notwithstanding the precedence given to the interests of accused persons, the balance may on occasion come down in favour of non-disclosure. In R v Governor of Brixton Prison, ex parte Osman (No 7),[22] it was accepted that the balancing exercise appropriate in habeas corpus cases is the same as in criminal proceedings

and that the weight to be attached to the interest of seeing justice done to the person involved is very great. However, it was also held that the public interest in withholding documents connected with, inter alia, the formation of high level policy prevailed, because the documents were not capable of assisting the applicant in supporting his claims.[23] In another criminal case the withholding of information was sanctioned on the grounds that disclosure of police reports would hinder the functioning of a statutory body.[24]

It would, however, seem that the Air Canada rule, whereby an inspection will not take place unless the party seeking disclosure persuaded the court that the document sought would assist his case, does not obtain in criminal prosecutions. In criminal proceedings the court will inspect documents for which a claim for immunity has been made in order to determine whether it was in the interests of the accused that they should be released to him.[25] Moreover, the prosecution is obliged to give the accused adequate notice of the existence of information for which public interest immunity is claimed, and notify the accused of the nature and grounds for the claim. Further, the defence must have an opportunity to make its representations to the court.[26]

In R v Ward,[27]‘ Glidewell LJ referred to the question whether the prosecution was obliged to give notice to the defence where it wished to withhold documents on grounds of public interest immunity and said:

[W]hen the prosecution acted as judge in their own cause on the issue of public interest immunity in this case, they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.

This approach was somewhat qualified in R v Davis and other appeals,[28] where Lord Taylor CJ outlined three different procedures which could be followed where the prosecution wished to rely on public interest immunity but desired to limit the notice to the defence. The first procedure, which would normally apply, requires the prosecution to give notice to the defence that they are applying for a ruling by the court and indicate to the defence at least the category of the material which they hold. The defence would then have the opportunity to make representations to the court. The second procedure is to be followed where, disclosure of the category of the material in question would in effect reveal that which the prosecution contended could not be revealed. The prosecution must still notify the defence of the application to the court, but the category of the material need not be disclosed and the application would be heard ex parte. The third procedure would apply in the exceptional case where to reveal even the fact that an ex parte application is to be made would ‘let the cat out of the bag. ’ In this situation the prosecution must apply to the court ex parte without notice to the defence. It goes without saying that in all three instances the inspection of documents is to be carried out by the court in private.

Perhaps the most important point that emerges from the recent case law is that in criminal cases a judge must inspect the material for which public interest immunity is claimed before deciding whether to uphold the claim. This point was stressed in R v Keane,[29] where Lord Taylor CJ adopted the test proposed by Jowitt J in R v Melvin and Dingle[30] for determining whether material for which immunity is claimed is capable of assisting the defence. The test is broadly defined so as to capture even material which is only remotely likely to assist the defence:

I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).[31]

This review of the position in criminal cases suffices to bring out three aspects which are relevant to the present discussion. First, while the courts attach precedence to the needs of accused persons to defend themselves, the balancing process still applies and the courts show deference to the public interest in non­disclosure even in criminal proceedings. Second, in criminal cases immunity is unlikely to be sanctioned without inspection of the evidence for which immunity is claimed. Third, in none of the cases mentioned above did the courts criticise ministers or other officials for making claims for public interest immunity.[32] On the contrary, in one case the court upheld the Attorney-General’s claim for public interest immunity in respect of a police report submitted to the DPP, even though the police were prepared to release the report.[33] In another case a judge in a civil action instructed company liquidators to raise a claim of public interest immunity in a criminal trial.[34]

E Conclusion — Prime Judicial Responsibility

The Matrix Churchill case has given rise to a lively debate concerning ministers’ position with regard to the issue of public interest immunity certificates. The Attorney-General has stated that ministers have a duty to claim public interest immunity.[35] Some commentators have questioned this assertion.[36] Others have

advanced the view that, as the law stands at present, the Attorney-General was right in asserting that ministers have a duty to claim immunity.[37] The commentators seem, however, to be united in the view that it is undesirable that ministers should claim immunity from disclosing evidence in criminal proceedings and their criticism has been tinged with a note of condemnation of the ministerial practices in the Matrix Churchill case.

In condemning ministers, critics have overlooked the role played by the courts in this regard. The courts have made it the law of the land that the responsibility for deciding whether evidence should be given in legal proceedings lies with judges and not with ministers. The role of ministers, it has been held, is confined to informing the courts, by means of public interest immunity certificates, of the adverse consequences which may result from the disclosure of documents or information for which ministers are responsible. It is not for ministers to decide whether evidence should be disclosed in legal proceedings, nor do they possess the information necessary for such a decision.

Of course, in making a claim for immunity ministers must exercise judgment and discretion in determining whether it is indeed the case that suppression would be beneficial for the public interest within areas of government business for which they are responsible. They are, after all, supposed to have at their disposal the expertise for forming a judgment in this matter. Accordingly, ministers might be legitimately criticised if they reach conclusions which are unwarranted as a matter of fact or of policy. For example, a claim that the public interest would be served by withholding from accident victims information about their treatment in NHS hospitals would appear unfounded. So would a claim that people would be more willing to report car accidents if their reports were withheld from the courts. However, it does not follow from this that ministers must confine their consideration to causal connections between disclosure and injury to some public interest. Government ministers do not operate in a vacuum, nor can they consider every matter under their jurisdiction from scratch, as if there were no existing practices. Ministers make decisions against the background of existing procedures and follow conventions that have been evolved over time and that have on occasion been tested in the courts. When an administrative practice has been subjected to judicial scrutiny and been found valid, ministers are entitled, and on occasion even bound, to follow it in future situations.

In the field of public interest immunity, ministerial practices and judicial policies feed upon each other. Both, however, have to use statute as their starting point and take on board entrenched conventions of public administration. The law concerning public interest immunity has evolved against the background of the notorious catch-all provision of s 2 of the Official Secrets Act 1911. Although this provision has now been abolished and replaced by the more guarded and liberal provisions of the Official Secrets Act 1989, the administrative philosophy continues to embrace the tenet that secrecy is in the interest of good government.[38] This philosophy has received judicial approval on countless occasions, as many of the cases mentioned in this article demonstrate. In Conway v Rimmer itself, Lord Reid said:

The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. That must in my view also apply to all documents concerned with policy making within departments . . . Further, it may be that deliberations about a particular case require protection as much as deliberations about policy.[39]

Accordingly, David Williams’ description of the situation is as valid today as it was thirty years ago:

A steady repetition of arguments about the need for frankness, about the value of confidential relationship between Minister and civil servant, about the criteria of administrative efficiency, and so forth, has certainly helped the official view … It has shifted the onus of proof. Those who wish to support publicity wherever possible have been thrown on the defensive. It seems to have been forgotten that in a democratic country the onus should be on those who support secrecy to justify their case.[40]

‘In this country,’ Carol Harlow and Richard Rawlings write, ‘a wall of silence blocks public access to information. Britain is almost alone in the western world in possessing neither Freedom of Information legislation nor a general right to access to data held in official files.’[41] On their part, the judiciary have shown remarkable willingness to bolster this wall of silence by placing their trust in the ability of ministers to judge what is in the public interest, as Stephen Sedley has recently pointed out.[42] Indeed, the courts have shifted the burden of proof with regard to public interest immunity. Once a claim for immunity has been made, which is within the accepted range of claims, the onus is on the party seeking disclosure to persuade the court that the interest in non-disclosure may be overcome. To make things worse, the ruling in the Air Canada case ensures that, in civil litigation, this onus is practically impossible to discharge.

Surely, when ministers read judicial decisions that exalt the importance of maintaining the secrecy of Cabinet papers, of promoting the confidentiality of advice given by civil servants to ministers, of screening high level policy-making processes from the public gaze, they are entitled to feel persuaded that they are rendering an important public service when they issue public interest immunity certificates. In some situations, the courts did not even require the advice of ministers in order to conclude that secrecy is important to the proper functioning of government and of other social organisations. Many decisions have involved no ministerial claim and no public interest immunity certificates. The courts have been only too willing to hold that secrecy will promote the welfare of children, or aid police operations, or assist inquiries into police misconduct. Only two years ago the Court of Appeal stated that ‘where a litigant holds documents in a class prima facie immune, he should (save in a very exceptional case) assert that the documents are immune and decline to disclose them, since the ultimate judge of where the balance of public interest lies is not him but the court. ’[43] Even if it is thought that these words do not impose a legal duty on ministers to claim immunity, they certainly justify ministers to put forward claims for immunity in respect of classes of documents which have been recognised by the courts as prima facie entitled to immunity. This is exactly what ministers did in the Matrix Churchill case and they can hardly be blamed for doing so.

One final point needs to be made in order to avoid misunderstanding. It is not suggested that the practices that have been developed since Conway v Rimmer are desirable or defensible. On the contrary, they are harmful to a healthy administration of justice and are inimical to good government in a democratic society. More specifically, they have undermined the sensible and enlightened principles of Conway v Rimmer. What is suggested, instead, is that ministers do not bear a major responsibility for this state of affairs. They have followed well- established practices which have had the courts’ seal of approval. Further, if ministers were to be made the sole culprits in the aftermath of the Scott inquiry, only limited progress will have been made, for the law will have been left unchanged. The courts would remain free to continue granting licence for suppression of evidence in all but criminal prosecutions. Stephen Sedley has recently written that ‘it has taken the Matrix Churchill affair and the Scott Inquiry to compel serious scrutiny of the assumptions about the competence of ministerial and departmental government which have underlain the courts’ willingness to accept public interest immunity certificates from ministers.’[44] Clearly, then, if we are seriously interested in the reform of the law on public interest immunity, we must start by acknowledging that the judiciary are primarily responsible for the present state of affairs and not shrink from putting the courts themselves on trial and not just ministers.

[1]    [1979] 3 All ER 723, per Lord Keith, at 720, per Lord Edmund-Davis, at 733, per Lord Scarman.

[2]    [1979] 3 All ER 708.

[3]    [1979] 3 All ER 711.

[4]    |1979] 3 All ER 718-719.

[5]    [1979] 3 All ER 726.

[6]    [1983] 1 All ER 910. For a general discussion, see Tonning, ‘Crown Privilege in Regard to Upper Echelon of Government Documentation’ (1981) UNBL LJ 121.

[7]    [1983] 1 All ER 915, 919.

[8]    [1983] 1 All ER 915.

[9]    [1983] 1 All ER 917, emphasis provided.

[10] per Lords Wilberforce, Edmund-Davis and Fraser; Lords Scarman and Templeman disagreeing.

[11]  Pressure Through Law (London: Routledge, 1992) 175.

[12]  Dv NSPCC [1977] 1 All ER 589, 619: ‘The disclosure of all evidence relevant to the trial of an issue being at all times a matter of considerable public interest, the question to be determined is whether it is clearly demonstrated that in the particular case the public interest would nevertheless be better served by excluding evidence despite its relevance. If, on balance, the matter is left in doubt, disclosure should be ordered.’

[13]  Evans v Chief Constable of Surrey Constabulary (Attorney General intervening) [ 1989] 2 All ER 594.

[14]  [1983] 1 All ER 919.

[15]  Lord Scarman stressed this point in Air Canada, when he disagreed with the majority’s approach; [1983] 1 All ER 925.

[16]  See R v Keane [1994] 2 All ER 479, discussed below.

[17]  R \ Governor of Brixton Prison, exp Osman (No 1) [1992] 1 All ER 108. See Wharam, ‘Crown Privilege in Criminal Cases’ [1971] CLR 675; Smith, ‘Public Interest Immunity in Criminal Cases’ [1993] CLJ 1; Tomkins, n 1 above.

[18]  See, for example, R v Keane [1994] 2 All ER 478, 485.

[19]  Richardson (1863) 3 F & F 693; Wharham [1971] CLR 675.

[20] Agar [1990] 2 All ER 442, 448. See also R v Hennessey (1978) 68 Cr App R 419.

[21]  Rankie [1986] 2 AH ER 568; Johnson [1989] 1 All ER 121 (both concerned with police observation posts).

[22]  [1992] 1 All ER 108.

[23]  See also Re Barlow Clowes Gilt Managers Ltd (1991] 4 All ER 385, noted in Zuckerman in ‘More About Confidentiality and Fraud’ (1992) 108 LQR 30. Cf R v Clowes [1992] 3 All ER 440.

[24]  R v Lewis Justices, ex p Home Secretary [1973] AC 388. See also R v Keane [1994] 2 All ER 478.

[25]  R v Clowes [1992] 3 All ER 440, 445.

[26]  R v Ward [1993] 2 All ER 577, where the Court of Appeal expressed concern that decisions to withhold information on grounds of operational sensitivity were taken by the prosecution alone without reference to the court; for comment, see Tomkins, n 1 above; Smith, ‘Public Interest Immunity and Sensitive Material’ [ 1993] CU 357; Zuckerman, Jackson and Doran in [ 1993] All ER Annual Rev.

[27]  [19931 2 All ER 577, 632-633.

[28]  [1993] 2 All ER 643.

[29]  [1994] 2 All ER 478.

[30]  20 December 1993, unreported.

[31]  [1994] 2 All ER 484. This test of materiality is addressed to the prosecution because it is for the prosecution to judge, in the first place, which evidence is sufficiently relevant to justify an application for immunity.

[32]  Even though it was at one time government policy not to claim immunity for documents relevant to the defence in criminal proceedings: Viscount Kilmuir, HL Deb vol 107, col 745, 6 June 1956; [1959] CLR 10. Cf R v Cheltenham Justices [1977] 1 All ER 460.

[33]  Evans v Chief Constable of Surrey Constabulary (Attorney General intervening) [1989] 2 All ER 594.

[34]  Re Barlow Clowes Gilt Managers Ltd [1991] 4 All ER 385.

[35]  House of Commons, 10 November 1992; letter to The Times, 13 November 1992.

[36]   Bradley, Justice, Good Government and Public Interest Immunity [1992] PL 514; Ganz, Matrix Churchill and Public Interest Immunity (1993) 56 MLR 564. Ganz is right to suggest that judicial dicta, to the effect that ministers do not have the power to waive immunity, do not imply that they have a duty to claim it. She also points out that there have been instances where ministers refrained from issuing public interest immunity certificates. See also discussion of waiver in Zuckerman, op cit n 23 above.

[37]   Smith, Public Interest Immunity in Criminal Cases (1993) 52 CLJ 1; Tomkins, Public Interest Immunity after Matrix Churchill [1993] PL 530; Allan, Public Interest Immunity and Ministers’ Responsibility [1993] CLR 661.

[38]   Current Law Statutes (1989) Vol 1, 6-2.

[39]   [1968] 1 All ER 888. Though Lord Reid did not elaborate how critics could possibly have adequate background knowledge while a policy of secrecy is being pursued. A different policy was evolved by the courts in Australia: Sankey v Whitlam (1978) 21 ALR 505; Ligertwood, op cit n 10 above, 289. See also Eagles, ‘Cabinet Secrets’ [1980| PL 263. For an American perspective, see Quint, ‘The Separation of Powers Under Nixon: Reflections on Constitutional Liberties and the Rule of Law’ 11981] Duke LJ 1.

[40]   Not in the Public Interest (London: Hutchinson & Co, 1965) 57 — 58.

[41]   Harlow and Rawlings, Pressure Through Law (London: Routledge, 1992) 172. See also Nettheim, ‘Open Justice and State Secrets’ (1985-86) 10 Adel LR 281; Wetlaufer, ‘Justifying Secrecy: An Objection to the Deliberative Privilege’ (1989 — 90) 65 Indiana LJ 845.

[42]   ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994) 110 LQR 270. See also Aronson and Franklin, Review of Administrative Action (Sydney: Law Book Co, 1987) 402.

[43]   Makanjuola v Commissioner of Police for the Metropolis [1992] 3 All ER 617, 623 per Bingham LJ.

[44]   op cit n 104 above, at 282.