R v H and C
The prosecution must disclose material which weakens its case or strengthens the defence, and a court considering a public interest immunity claim must apply a structured series of questions, appointing special counsel only exceptionally.
Facts
H and C were charged with conspiracy to supply heroin. The prosecution applied to withhold some material from the defence on grounds of public interest immunity, and the defendants asked the judge to appoint special counsel to represent their interests at the hearing of the application, which would be held without them. The judge considered that special counsel should be appointed, and the prosecution appealed.
Legal principle
The House of Lords held that special counsel should be appointed only exceptionally. Lord Bingham said that the golden rule is that full disclosure should be made of any material held by the prosecution which weakens its case or strengthens that of the defendant. Where the prosecution seeks to withhold such material on grounds of public interest immunity, the court must ask a series of questions: what is the material; is it such as may weaken the prosecution case or strengthen the defence; is there a real risk of serious prejudice to an important public interest if full disclosure is ordered; can the defendant's interest be protected without disclosure, or can disclosure be ordered to an extent which gives adequate protection to the public interest; and would the measures proposed render the trial process unfair. If the trial would be unfair, the prosecution must disclose or abandon the case.
Related cases on privilege and public interest immunity
- Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394
- Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531
- Conway v Rimmer [1968] AC 910
- D v National Society for the Prevention of Cruelty to Children [1978] AC 171
- Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006
- R (Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185
- R v Derby Magistrates' Court, ex p B [1996] AC 487
- Rush & Tompkins Ltd v Greater London Council [1989] AC 1280
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
