In the circumstances there was no reason for the public interest immunity hearing to be inter partes, and there was no need for the judge to request appointment of special independent counsel as the request had been made prematurely: he had not looked at the material in the light of the issues and might have ordered it to be disclosed. Even taking into account the decision in Evans and Lewis v United Kingdom (2003) LTL 23/7/2003 it would only be in exceptional cases that there was a need for independent counsel to be instructed to protect a defendant's interests.Interlocutory appeals under s.35 Criminal Procedure and Investigation Act 1996 by the Crown and the first defendant ('C') against two rulings given in a preparatory hearing. The judge had ruled that: (i) the public interest immunity ('PII') enquiry sought by the Crown should not be inter partes; and (ii) special independent counsel should be brought in to avoid any possible violation of Art.6 European Convention on Human Rights in light of the European Court of Human Rights decision in Edwards and Lewis v United Kingdom (2003) LTL 23/7/2003. C appealed against the first ruling, relying on Edwards (supra), and contended that the judge's determination of any application to stay proceedings for want of evidence, or to exclude evidence under s.78 Police and Criminal Evidence Act 1984, would be affected by material seen by him and if C was not allowed to view that material there would be inequality of arms. The Crown appealed against the second ruling and contended that in Jasper v United Kingdom (2000) 30 EHRR 1 the court held that an ex parte hearing to determine PII issues did not violate Art.6. The Crown further contended that: (a) in Edwards the court did not depart from that principle but distinguished it on the basis that the withheld material in Jasper (supra) formed no part of the prosecution's case, whereas the undisclosed material in Edwards might have related to an issue of fact; (b) steps were being taken by the British government to put the decision before the Grand Chamber and it had received robust criticism academically; (c) there would be practical difficulties if independent counsel were appointed in large numbers of cases; (d) Edwards would be confined to those cases where the judge made important determinative rulings where he took into account undisclosed material; and (e) the judge was wrong to seek independent counsel when he did.HELD: (1) C's appeal was manifestly flawed. In Edwards, the court repeated and adopted Jasper (supra) whereby entitlement to disclosure was not absolute. In addition to the rights of a defendant were also the rights of informants and their families to be protected. Any complaint, in the present case, regarding the legitimacy of the surveillance operation could be made before or after the judge saw the PII material. It was also difficult to see the circumstances where Edwards would affect the operation of s.78 of the 1984 Act. A trial judge would make rulings, on a daily basis, to exclude evidence then go on to rule whether there was a case to answer and it had never been suggested that a judge was incapable of ruling fairly because he had seen such evidence. (2) The decision in R v Joe Smith (2001) 1 WLR 1031, where it was held that there was no principle that a judge could not use information obtained in a PII application, was binding on the Court of Appeal. Edwards had to be taken into account but the court had to follow Smith (supra) until it was overruled by the House of Lords. (3) Safeguards provided in relation to PII hearings, save in a few exceptional cases, adequately protected the interests of defendants in accordance with their Art.6 rights. In exceptional cases, where material was so sensitive that the defence could not be informed that a PII hearing was to take place, or where a judge learned of material so highly prejudicial to the defendant that he ought not make a ruling on it without the benefit of further adversarial comment, then the judge should invite the Attorney General to appoint independent counsel. (4) In the present case the judge's request for the appointment of independent counsel was premature. He had not looked at the material in light of the issues in the case. Had he done so he might have concluded that disclosure had to be made. When the judge looked at the material and heard submissions it would then be necessary to consider whether it was, or was not, one of those rare and exceptional cases where independent counsel should be appointed. (5) Where a judge considered that material was not relevant to any preliminary determinative ruling, the existing procedure should be followed. Where there was a determinative ruling on an issue of fact, which had to be decided by the judge by reference to undisclosed material, the matter should be raised by the Crown and, if the judge had any reasonable doubt, he should invite the appointment of independent counsel.C's appeal dismissed. The Crown's appeal allowed.

[2003] EWCA Crim 2847

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