Courts: Public Interest Immunity

House of Lords written question – answered on 25 April 2013.

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Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Non-affiliated

To ask Her Majesty's Government, further to the Written Answer by Lord Wallace of Tankerness on 18 March (WA 95), what criteria they apply when deciding what details of public interest immunity applications it would be appropriate to make public.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

All Public Interest Immunity (PII) applications are made only in exceptional circumstances. If the prosecutor is satisfied that disclosure of the material will create a real risk of serious prejudice to an important public interest then a PII application will need to be made.

There are three classes of application. The first class of application requires the prosecutor to give notice to the defence of an application and indicate what type of material is held. In these cases there is an inter partes hearing in open court. With the second class of application, the prosecutor must again give notice to the defence but does not indicate what type of material is held, as to do so would inevitably disclose the sensitive information in question. The defence may make representations as to the procedure to be adopted but the application will be heard in their absence and not in public. Finally, the third class of application is one in which the defence are given no notice as to do so would have the effect of revealing the sensitive information. Neither the defence nor the public will be allowed access to such hearings. This third class of application is highly exceptional. It is important to note that the decision to withhold the information is ultimately one for the court to determine and if the decision is that the material must be disclosed the prosecution must either comply or abandon the case.

Given the three types of application that might be made, it would not be appropriate to make public the details of PII applications, as such information may prejudice an important public interest.

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