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Chapter 13: Making a PII Application

13.1. Where sensitive material is identified as meeting the disclosure test and the prosecutor is satisfied that disclosure would create a real risk of serious prejudice to an important public interest, the options are to:

  • disclose the material in a way that does not compromise the public interest in issue
  • obtain a court order to withhold the material
  • abandon the case
  • disclose the material because the overall public interest in pursuing the prosecution is greater than in abandoning it.

13.2. If the disclosure test is applied in the robust manner endorsed by the House of Lords in R v H and C, applications to the court for the withholding of sensitive material should be rare. Fairness ordinarily requires that all material which weakens the prosecution case or strengthens that of the defence should be disclosed. There should only be derogation from this Golden Rule in exceptional circumstances.

13.3. Following R v H and C, there is no basis in law for making a PII application except where:

  • the prosecutor has identified material that fulfils the disclosure test, disclosure of which would create a real risk of serious prejudice to an important public interest and the prosecutor believes that the public interest in withholding the material outweighs the public interest in disclosing it to the defence, or
  • the above conditions are not fulfilled, but the police, other agencies or investigators, after consultation at a senior level, do not accept the prosecutor's assessment on this, or
  • the prosecutor has pursued all relevant enquiries of the police and the accused and yet is still unable to determine whether sensitive material satisfies the disclosure test and seeks the guidance of the court.

In this last and exceptional circumstance, the material should be placed before the court for a determination as to disclosability. Material should only be placed before the court if the court's assistance is required to assess disclosability. Material should not be placed before the judge simply because the defence have provided inadequate information as to the nature of their case. Rather, the defence should be pressed to provide further particulars.

Arranging the application

13.4. Once it becomes clear that a PII application will be required, the prosecutor should write to the court (or telephone in urgent cases) asking for a hearing to be fixed. The letter should set out the following information:

  • the case name
  • the indictment number(s)
  • the trial date where known
  • the allocated trial judge where known (if no trial judge has been allocated, the court should be invited to allocate one urgently to avoid delays at the commencement of the trial)
  • the type of application to be made (see 13.5 below)
  • the estimated length of hearing of the application.

Specimen letters are attached at Annex D1 - D4.

13.5. The Criminal Procedure Rules (Part 22) distinguish between three classes of case:

  • Type One: the prosecutor must give to the defence notice of application and indicate at least the category of the material held. The defence must have the opportunity to make representations and there is an inter partes hearing conducted in open court.
  • Type Two: the prosecutor must give to the defence notice of application but the nature of material is not revealed because to do so would have the effect of disclosing that which the prosecutor contends should not in the public interest be disclosed. The defence have the opportunity to address the court on the procedure to be adopted but the application is made to the court in the absence of the defendant or representative.
  • Type Three: the prosecutor makes an application to the court without notice to the defence because to do so would have the effect of disclosing that which the prosecutor contends should not in the public interest be disclosed - a "highly exceptional" class.

13.6. The police and the CPS must be careful to maintain the confidence of the court by making the appropriate form of application. Type Two (ex parte on notice) and, most especially, type Three (ex parte without notice) applications should be considered exceptional and should only be made where it is genuinely necessary to protect confidentiality. Type Three applications require the express approval of the CCP or DCCP or Heads Casework of Divisions. Where the CCP or DCCP of the relevant CPS Area is not available, the approval of another CCP or DCCP is required.

13.7. Where a Type One, Two or a 'mixed' hearing (Type One transitioning into Type Two after the defence have been heard) is sought, the prosecutor should serve a notice of hearing on the defence and the court which should contain the following information:

  • the name of the case
  • the indictment number
  • the date, time and location of the hearing (Type One and 'mixed' applications only)
  • in the case of Type One and 'mixed' Type One and Two applications, such information regarding the material to be placed before the court as the prosecutor is able to provide without revealing that which the prosecutor contends is not in the public interest to disclose.

13.8. Where a Type Two or Three application is sought, the letter should remind the court not to show the hearing on the published court list.

13.9. Where a Type Three application is sought, no notice of hearing should be served on the defence.

13.10. Any notice should also contain a request to the defence to provide such further written particulars of the defence case as the prosecutor sees fit, to better inform the court's assessment of the competing public interests. (Specimen forms giving notice are attached at Annex D5 - D6).

Responsibility for preparing the application

13.11. A written submission should be made to the court prepared either by the reviewing prosecutor or the prosecuting advocate (on the basis of clear written instructions from the reviewing prosecutor). In large cases where an additional counsel has been instructed to deal solely with disclosure issues, or where the prosecuting advocate has a junior dealing with disclosure issues, disclosure counsel or the prosecuting advocate's junior may prepare the submission. In all cases the written submissions should be signed by the unit head or Special Casework Lawyer and countersigned by a police officer of at least substantive Detective Inspector (or equivalent) rank. The officer should state that to the best of his or her knowledge and belief the assertions of fact on which the submission is based are correct. The officer may be required to attend court to give evidence in support of the application.

13.12. Where the material which is to be the subject of an application emanates from MG6Ds from more than one agency or police unit e.g. where a separate MG6D has been submitted for intelligence material, an officer not below the rank of Detective Inspector (or equivalent) for each of the agencies or units who have submitted material must endorse the written submissions.

13.13. Whatever part the prosecution advocate may have played in the drafting of the submissions, responsibility for their form and content rests with the prosecutor.

Contents of the written submissions

13.14. The written submissions should contain the material set out at 1) and 2) below:

1. A form of background submission, containing:

  • a summary of the facts of the case. Where a case summary or prosecution opening note has been served and this is believed still to be accurate and adequate, the background submission should refer to this document which should be annexed to the submission
  • a list of trial issues which the prosecutor has been able to identify
  • a summary of the defence case which has been advanced in a defence statement, section 8 application or correspondence
  • in relation to Type Two and Three applications, reasons why it is considered inappropriate for there to be a Type One (or Type Two) application. A specimen form of background submission is attached at Annex D7.

2. To satisfy the requirements of paragraph 36 of R v H and C, in relation to each item of material to be placed before the court for a ruling:

  • the number of the item as it appeared on form MG6D. Where more than one MG6D has been submitted, e.g. where the case has generated 'highly sensitive' material and involves more than one disclosure officer, each MG6D should be given its own reference
  • a detailed description of the material
  • in the case of lengthy items, a summary of their content
  • an assessment giving reasons why it is considered that the material satisfies the disclosure test, or why the reviewing prosecutor is unable to determine whether or not the disclosure test is satisfied
  • why it is considered that disclosure of the material will cause a real risk of serious prejudice to an important public interest and the degree of sensitivity that attaches to the material
  • why it would not be appropriate to provide to the accused a formal admission, summary, extract or edited version of the material
  • why the prosecutor contends that the public interest in withholding the material outweighs the public interest in disclosing it and
  • where the material is the subject of a Type Two application, why it is considered inappropriate to inform the defence of the category of material into which the material falls
  • where, exceptionally, the material is the subject of a Type Three application, why it is considered inappropriate to inform the defence at all.

NB. Prosecutors should bear in mind that in particularly difficult cases, and as a last resort, the court may decide that it requires assistance from a special advocate. Prosecutors should therefore be prepared, when requested, to formulate submissions to assist with this aspect of the court's decision.

The form of the submission

13.15. The information required above should be prepared in respect of each item of material that the prosecutor intends to place before the court for a ruling. The court's ruling in relation to each should be endorsed on the written submissions. A specimen is attached at Annex D8.

13.16. In cases involving a large quantity of material to be placed before the court for a ruling, the prosecutor may prefer to present the representations in tabular form. A specimen is attached at Annex D10.

13.17. A bundle should be prepared for the trial judge comprising the following:

  • a front sheet listing the contents of the bundle. A specimen is attached at Annex D9
  • the notice of hearing (not in Type Three applications)
  • the background submission, including any case summary or prosecution opening note
  • the specific submissions in respect of each item of material to be placed before the court for a ruling
  • copies of any defence statements, and
  • any further particulars of the defence case provided in response to the notice of hearing or in correspondence.

13.18. The front sheet to the bundle, or a covering letter, should emphasise the sensitivity of the attached documentation and request that it be stored in suitably secure conditions especially when the material is not being worked on. This is particularly important where a Type Two or Three application is being made.

The PII hearing

13.19. When the judge's bundle has been provided to the court, the prosecutor should contact the court to ascertain whether the judge wishes to view the material the subject of the application in advance of the hearing or whether the court is content for the material to be brought to the hearing.

13.20. The prosecutor must make arrangements to facilitate inspection of all sensitive and highly sensitive material by the prosecution advocate well ahead of the hearing.

13.21. Where the judge requests sight of the material in advance of the hearing, the disclosure officer with responsibility for the material should make the necessary arrangements with the judge's clerk or court manager. There may need to be detailed discussions as to the handling and storage arrangements for the material when it is in the court's possession. In some circumstances, the police may wish to remain in the court building whilst the material is being considered so that they can recover it once the judge has viewed it. This will be a matter for local arrangements on a case-by-case basis.

13.22 The oral representations in support of the written submissions may be made by the reviewing prosecutor, CPS Higher Court Advocate, the prosecution advocate, his/her junior or disclosure counsel. A CPS or departmental representative should be present at the hearing. The hearing should also be attended by the officer in charge of the investigation and all disclosure officers who have provided schedules listing items that are subject of the application.

13.23 The manner in which the hearing should be conducted will be a matter for the judge to determine.

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Prosecution appeals

13.24. Part 9 of the Criminal Justice Act 2003 provides an interlocutory right of appeal against certain rulings by a Crown court judge. (The relevant chapter in Legal Guidance should be referred to in detail). Section 58 relates, inter alia, to those rulings that are fatal to the prosecution case such that the prosecution proposes to treat them as terminating and, in the absence of the right of appeal, would offer no or no further evidence. An adverse ruling ordering disclosure in a PII application may fulfil this criterion. Leave to appeal must be obtained from the judge or the Court of Appeal.

13.25. The right of appeal will apply to cases which are committed, transferred, sent to the Crown Court under section 51 of the Crime and Disorder Act 1998, and Voluntary Bills preferred on or after the 4 April 2005.

13.26. This right must be exercised sparingly and judiciously. It is the responsibility of the CCP or DCCP (or his/her nominee) to decide whether the right of appeal should be exercised in the circumstances of any particular case. Legal Guidance should be consulted for the procedure to be followed and the criteria for exercising the right of appeal.

13.27. Where an appeal is made, the Criminal Procedure Rules set out the requirements for how the prosecutor should give notice of the appeal, but these requirements are qualified in PII hearings in line with the hearing Type that takes place (see Rule 67.8).

Miscellaneous issues

13.28. Police and prosecutors should take all reasonable steps to ensure that they are aware of all factors which might affect the legality of or admissibility of evidence from sensitive sources or procedures.

13.29. Occasionally the defence may challenge the admissibility of prosecution evidence on the basis of lack of proof of an officer's belief, such as reasonable grounds for arrest, or a fact such as integrity of the source of evidential material. Such background evidence might be too sensitive to give in the presence of the defence. The court might well be satisfied with the mere assertion by an officer in open court that he had credible information to justify an arrest but otherwise, and where objective proof is required, the House of Lords in R v H and C have indicated that a voire dire, not a PII application, should be held. If in the course of the voire dire the officer is unable, on public interest grounds to answer questions, the judge has to consider how to resolve the problem, involving and informing the defence as far as possible without damaging the public interest unjustifiably. For example, the judge may ask the defence which questions they wanted answering and then put them ex parte to the police officer. Alternatively, the judge may invite submissions from both sides with a view to devising an alternative procedure.

13.30. An independent senior officer must be used in observation post cases - R v Johnson (Kenneth) [1988] 1 WLR 1377. The officer may be required to give evidence in support of its use in the case.

13.31. Prosecutors and caseworkers should be alert to formal obligations imposed by Part 22 of the Criminal Procedure Rules, that:

  • third parties with an interest in material which the prosecutor wishes to be put before the court must be notified of PII applications
  • 'interested third parties' have the right to make representations about the disclosure of their material at the PII hearing
  • the defence may formally request the court to review a PII ruling, and interested third parties will have to be notified if appropriate.

13.32. There may be cases where the prosecutor identifies material which satisfies the disclosure test and to which PII attaches (in other words, disclosure would create a real risk of serious prejudice to an important public interest) but the continuation of the prosecution would demand disclosure having regard to the overriding duty to ensure fairness in the trial process. In such cases if it is not possible to disclose the material in a way that does not compromise its sensitivity, the material should either be disclosed in full or the proceedings abandoned. Before either such action is taken there must be consultation between the CPS and police (and when appropriate, the owners of sensitive third party material) at a senior level. This consultation should involve a unit head or special casework lawyer from the CPS and a police officer of the rank of assistant chief constable or above. The type of the application to be made to the court should also be considered as part of the consultation process. Where agreement cannot be reached as to the appropriate way forward, the material should be placed before the court for a ruling.

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Security of sensitive material

13.33. Sensitive material should at all times be handled in accordance with its security marking; see paragraphs on protective marking in the section on File And Information Management.

Sensitive material and summary trials

13.34. If a case before a magistrates' court raises complex and contentious PII issues and the court has discretion to send the case to the Crown court, this is a factor that suggests that the case is not suitable for summary trial.

13.35. Magistrates' court files containing sensitive material should normally be handled by CPS prosecutors, unless specific approval is given by the unit head for the case to be handled by a particular agent. The agent will have no authority to make an application to withhold disclosure without approval of the unit head.

13.36. If material in a summary trial satisfies the disclosure test, the procedure for application to the court is in Part 22 of the Criminal Procedure Rules. The provisions are now identical to those governing applications in the Crown court. Under section 14 of the CPIA 1996, the accused may ask the court to review any earlier order for non-disclosure, whereby the process is governed by Part 224 of the Criminal Procedure Rules.

13.37. Otherwise, this guidance will be relevant to sensitive material in summary trials, and similar considerations apply to:

  • attempting to disclose without compromising sensitivity
  • the circumstances in which an application should be made
  • consultation
  • the type of application
  • the contents of the application
  • third party involvement (but see Part 22 of the Rules for detailed treatment)
  • authority levels
  • presenting sensitive evidence.

Ex parte notifications to a judge

13.38. The guidance under this heading, whilst not strictly relating to unused material, is included here for the sake of completeness. It must be emphasised that the court is not being asked to make a ruling on unused material, and that ex parte notifications must only be made if the criteria below are met.

13.39. In R v H and C, the House of Lords set out that "neutral material or material damaging to the defendant should not be brought to the attention of the court. Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands" (paragraph 35).

13.40. However, it is recognised that other exceptional circumstances may arise in which the judge should be notified ex parte of otherwise non-disclosable sensitive material. The reason for this is not so that the judge can rule on borderline material or whether PII attaches, but so that he or she may be apprised of information which may reasonably be expected to have a practical effect on the judge's fair management of the trial. In other words, where not to reveal non-disclosable sensitive information to the judge would create a risk that the judge's fair management of the trial or a wider public interest would be prejudiced.

13.41. The judge must be told that the purpose of the hearing is to prevent the inadvertent mismanagement of the trial and that therefore he or she is not being asked for any ruling on disclosure.

13.42. In notifying the judge ex parte of sensitive material, the prosecution advocate should only put before the judge such information as is necessary to enable him or her to properly manage the trial process or protect the wider public interest. In order not to create unwarranted unfairness to the accused, the notification hearing should be used to do no more than flag areas of potential concern or sensitivity. Initially, the judge should be informed only of the category of the otherwise non-disclosable material. Only such revelation as is strictly necessary to achieve the purpose set out should be made to the judge and only in very rare circumstances should the revelation go beyond headline information. It will be a matter for the judge to determine how much of the material, if any, needs to be viewed view before he or she is in a position to best ensure the fair management of the trial.

13.43 The following are examples only of circumstances in which an ex parte notification could be conducted, so long as the criterion set out above is applied:

  • where there is a CHIS whose name or identity appears on the face of the papers
  • where the defendant is a CHIS, and particularly so where he is a participating CHIS
  • where there are details of observation posts or the product from them that have been edited

Each case should however be examined on its own facts.

13.44. Notice of the intention to notify the judge ex parte should be given to the defence in all but exceptional circumstances. The extent of the detail that can be given about the subject of the ex parte notification should reflect that applicable for the different Types of PII hearings.

13.45. A suitable form of notice to the defence is suggested as follows:

'The prosecution are in possession of material [categorise where appropriate] which does not satisfy the disclosure test and which at present cannot be disclosed in the public interest. It is the prosecution's intention to alert the judge to the existence of material in this category so as to ensure that he/she is able to manage the trial in a way which is fair to all parties.'

13.46. Except in Type Three cases, where the judge has seen or been notified of non-disclosable material ex parte, it is suggested that the opportunity for uncertainty or challenge should be minimised, provided the prosecution advocate invites the judge to make it clear in open court that:

  • the ex parte 'hearing' was not one where he or she was requested to rule on PII or decide a truly borderline issue of disclosability but was necessary for the fair management of the trial
  • (further) submissions from the defence were not required
  • he or she is aware of the basis on which material would be disclosable under the CPIA 1996 and when PII would justify withholding it
  • he or she is familiar with Edwards and Lewis v UK and R v H and C and that nothing done by the prosecution or the court was in breach of those cases.

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