Line, Lucy; Plater, David --- "Police, Prosecutors and Ex Parte Public Interest Immunity Claims: The Use of Special Advocates in Australia" [2014] UTasLawRw 15; (2014) 33(2) University of Tasmania Law Review 255

Police, Prosecutors and Ex Parte Public Interest Immunity Claims: The Use of Special Advocates in Australia

LUCY LINE^[∗] AND DAVID PLATER^[+]

Abstract

The doctrine of public interest immunity that allows sensitive material to be withheld qualifies a defendant’s usual right to knowledge of all relevant material in a criminal case. Ex parte claims of public interest immunity in the absence (whether in person or through the use of redacted submissions) of the defendant and/or his or her lawyer have become a regular feature of modern legal practice. However, ex parte public interest immunity claims are inherently problematic. This article examines the questions of who should make such claims so that the procedure is least likely to be abused. It discusses the problem of ex parte public interest immunity claim determinations, especially in the context of terrorism and organised crime cases. It explains how a ‘special advocate’ may be used to safeguard the interests of an affected absent party. This article outlines the use of special advocates abroad and in Australia to date. It then critically analyses the usefulness of special advocates. It concludes by proposing a novel solution for ex parte public interest immunity claims. This article asserts that rather than relying on prosecutors acting as ‘ministers of justice’ or special advocates to protect an accused’s interests, courts should entrust defence lawyers to represent the accused at ex parte public interest immunity applications, subject to their making of confidentiality undertakings.

I INTRODUCTION

It is a fundamental principle of criminal procedure that any accused person has the right to know who his or her accusers are and of what crimes he or she stands accused.^[1] It is also fundamental that an accused should be informed of and able to access all relevant material held by his or her accusers relating to such charges, so that he or she may properly defend themselves.^[2] These principles emphasise the importance of the State acting transparently when preparing for a criminal trial. ‘Fairness ordinarily requires’, as Lord Bingham observes,

that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence...the golden rule is that full disclosure of such material should be made.^[3]

However, there exists a qualification to this requirement to disclose all relevant material to an accused if it is not in the broader public interest to do so. ^[4] In such situations, a party in either civil or criminal proceedings may assert ‘public interest immunity’ (‘PII’) over the release of sensitive material.^[5] Claims of PII in a criminal context are typically used to prevent sensitive material being disclosed to an accused, an accused’s representatives and indirectly to the public. A successful claim of PII allows sensitive material to be withheld from disclosure and qualifies a defendant’s right to know all the relevant material in a criminal case.

The operation of PII in a criminal case is contentious and ‘the doctrine has given rise to much uncertainty and controversy because of its obvious potential for undermining the fairness of a [criminal] trial. Non-disclosure of any kind can have this impact’.^[6] The withholding of relevant material through a successful PII claim can have a ‘devastating effect’ upon the substantive rights of an accused.^[7]

Several problems may arise for the defence in a criminal case when PII is applied. First, it is problematic if the PII claim has the effect that the defence cannot access potentially mitigating or exculpatory material.^[8] Second, it could be problematic for the defence if the effect of the PII claim is to hide the State’s procedural missteps. This could cause an accused to lose a fair chance of either an acquittal or of staying the proceedings as an abuse of process.^[9] Third, if the PII claim covers voluminous amounts of material, the defence may have very little information to go on in conducting its defence. A dearth of information could hinder the defence in effectively cross-examining witnesses and testing the prosecution’s case.^[10] For these three reasons, judges in criminal proceedings must be well informed of an accused’s interests when considering the merit of PII claims. Unfortunately, this often does not occur.

Since 1993, PII has gained increased prominence. ^[11] The role of PII has also widened as a result of the increase in intelligence-led and proactive policing, especially regarding terrorism.^[12] This has been controversial. Lord Justice Auld reported ‘widespread concern’ about the operation of the English system for claiming PII.^[13] Similar concerns have been expressed in Australia.^[14] It has proved difficult to strike an elusive compromise between promoting transparency and fairness to an accused on the one hand and protecting the State’s legitimate interests and keeping sensitive material secret on the other.

Public interest immunity claims in both England and Australia are frequently determined in closed, secret or ex parte hearings. At all of these, material and/or submissions are provided to the court without the defence being present. It is sometimes argued that this secrecy is a ‘necessary evil’.^[15] However, this article contests that conclusion. This article analyses who should be able to make the claims, and how the claims can be fairly determined while protecting the fundamental right of an accused to a fair trial.^[16] Given the problem of devising a fair and effective system for the determination of ex parte PII claims, this article critically analyses the possibility of Australian courts using ‘special advocates’ in PII claims to guard an accused’s interests.

This article discusses major problems associated with using special advocates in both principle and practice. It concludes that using special advocates is not ideal. It proposes a different way forward; namely that defence lawyers can and should be trusted to represent the interests of the accused at ex parte PII applications. However, this arrangement would be conditional on the defence lawyer making necessary confidentiality undertakings, to prevent sensitive information from being compromised.

II PUBLIC INTEREST IMMUNITY EXPLAINED

The defence does not have the right to access all relevant material in the prosecution’s possession if the public interest dictates that the accused should not have it.^[17] Public interest immunity is a rule of evidence. It restricts both the production of relevant evidence in legal proceedings where disclosure of the material could damage the public interest and oral evidence from being led or elicited under either examination-in-chief or cross-examination.^[18] Public interest immunity is not a privilege which may be waived.^[19] When the prosecution claims PII in a criminal case, it must have a legitimate desire to prevent sensitive information being divulged that would genuinely harm the public interest if it were made public.^[20] A judge may also raise the issue of whether a PII claim should be made over material.^[21]

The categories of PII are not closed.^[22] A court determining the merits of a PII claim may consider a range of factors. For example, s 130 (1) of the Evidence Act 2008 (Vic) (which largely restates the common law position)^[23] requires that a court weighs the public interest of admitting a document or information that relates to ‘matters of state’ against the public interest in preserving their secrecy or confidentiality. The types of material that would relate to ‘matters of state’ are broad. It is incapable of exhaustive classification, but includes evidence that, if adduced, would prejudice Australian security, defence or international relations; damage Commonwealth/State or interstate relations; prejudice the prevention, investigation or prosecution of an offence; prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties; disclose or enable a person to ascertain the existence or identity of a confidential source of information relating to law enforcement; or prejudice the proper functioning of government.^[24] The criminal cases that lend themselves to PII claims typically involve serious charges involving organised crime or terrorism.

The practice in England to assert PII, in accordance with the decision of the Court of Appeal in R v Davis,^[25] is to conduct an oral court hearing either with or without the defence depending on the sensitivity of the material in question.^[26] The court in Davis recognised ‘that open justice requires maximum disclosure and whenever possible the opportunity for the defence to make representations on the basis of fullest information’.^[27] However, the court nevertheless accepted that regarding PII claims in criminal cases, ‘it is implicit that the defence cannot have the fullest information without pre-empting the outcome of the application’.^[28] The court emphasised that ex parte PII applications were not ideal and so they should be ‘rare indeed’ and ‘exceptional’.^[29]

In Australia, the procedure for the prosecution to make a PII claim is as follows: first, the prosecution should decide that certain material available to it is relevant to the proceeding. If the material is both relevant and sensitive, the prosecution may apply for the court to adjudicate a PII claim over the material. The purpose of a PII claim is to provide a legal justification for the prosecution to not disclose the material to the defence, because its sensitive nature would make it too dangerous to be distributed more widely than the police, prosecutor and adjudicating judge.

In Australia it is ‘commonplace’^[30] for the prosecution to submit a confidential affidavit setting out a PII claim, outlining the basis for the claim and identifying the nature of the source of the sensitive information. This contrasts with the English practice of PII claims being made orally in court. In Australia, the affidavit is handed to the trial judge while the defence and the accused’s lawyer remain in court. The defence is provided with copies of the affidavits from which sections have been redacted or masked if they are subject to PII claims. The court often invites defence counsel to make submissions, even though defence counsel will not have access to the full arguments or the material that is subject to the PII claim. This is because, having had the benefit of reading the prosecution’s affidavit, the defence may wish to privately speculate upon the content of the redacted material and comment to the court on the issues that they consider will be of relevance to the defence’s case. Defence counsel may argue how the redacted material may concern those issues and argue why the court should insist that the prosecution provide that material to the defence, so that the accused has a fair opportunity to answer the charges. The defence is generally not allowed to cross-examine the prosecution regarding the affidavit. ^[31]

The difference between the Australian and English procedure may be more of form than substance. In both jurisdictions the defence is denied full access to the material and the prosecution’s submissions. The Australian PII procedure has drawn criticism because it is effectively a hearing in which the prosecution asserts immunity over material about which the defence may have no knowledge or notice, forcing the defence to guess at the topics covered.^[32]

The ex parte system, whether in Australia or England, is inherently problematic in that it is vulnerable to misuse. A fundamental objection to ex parte regimes for PII claims is that such applications place excessive and perhaps unjustified trust in the prosecution lawyer to deal faithfully and objectively with issues of disclosure. Any ex parte system that allows the prosecution to claim PII without permitting the defence to consider material upon which the prosecution relies and to respond to the prosecution’s arguments is flawed.

A rejoinder to this argument is that a prosecutor would not misuse the PII claim procedure because it has a duty to act as an impartial minister of justice in relation to disclosure.^[33] This article responds that this duty is not sufficient to protect an accused.^[34] The assumption that the prosecutor, even if purporting to act as a candid minister of justice, will always faithfully reveal material helpful to the defence case in an adversarial system is ‘questionable’,^[35] if not ‘virtually impossible’.^[36] Ormerod argues that it is untenable to rely on prosecution counsel to safeguard the accused’s right to a fair trial. Ormerod claims that the rhetoric of protection being provided by prosecuting counsel acting as ministers of justice can never be a complete substitute for what this article argues is a far superior solution – defence counsel addressing the judge orally.^[37]

There always remains the danger of the prosecution in an ex parte PII claim procedure relying upon exaggerated, prejudicial and/or inadmissible material concerning the accused and his or her alleged associates. A prosecutor can make seemingly powerful arguments about the allegedly dire consequences that could result from disclosure, without the defence being able to rebut these.^[38] Australia needs some further mechanism to redress the imbalance in the current ex parte procedure where the defence cannot hear relevant material and argue on an equal basis with the prosecution.

III WHO SHOULD MAKE A CLAIM?

While PII may be claimed by any person, including someone who is not party to a proceeding,^[39] in practice a State agent often claims it. One problem with the PII process in criminal trials^[40] is when a less than ideal State agency makes the claim. The Australian practice is not uniform (and may even differ within a State)^[41] but the usual practice is for the Crown Solicitor to argue for the application of PII on behalf of the police. The Director of Public Prosecutions (‘DPP’) tends not to make PII claims. ^[42] In contrast, the practice in England is for the Crown Prosecution Service and not the police to make the claim.^[43]

It should not be for the police to decide whether to make a PII claim, but for the prosecutor. The prosecutor, as a minister of justice, should have the responsibility of deciding when to make an application to limit the disclosure of information that is relevant to the accused’s defence. The prosecutor should be the first check that is placed on the process to ensure that the PII mechanism is not abused. In contrast, the police have no explicit duty to the court as a minister of justice. The police, as crime investigators, also have a more vested interest in protecting their sources and informers. They may be too close to the material for the public to comfortably permit them to decide whether to make a PII claim.

The case of R v Maxwell^[44] illustrates the injustice that can occur if police are not subject to sufficient external checks in the pre-trial disclosure process. In this case, Maxwell and Mansell were convicted of robberies and the murder of a man called Smales during one of those robberies. The main prosecution witness was a professional criminal and supergrass called Chapman. When the defence at trial put it to Chapman that he was expecting a benefit from the police for providing his evidence and so had a personal interest in seeing the accused convicted, Chapman denied this. Subsequent to the conviction, it emerged that the police had suppressed significant material. As Lord Dyson outlined:

the police systematically misled the court, the [Crown Prosecution Service] and counsel by concealing and lying about a variety of benefits received by Chapman and his family. These included not only financial reward, but, inter alia, visits to brothels and permission to consume drugs in police company ... The clear conclusion of the investigation by North Yorkshire Police was that a number of senior police officers involved in the Smales investigation had conspired to pervert the course of justice. They had deliberately concealed information from the court; they had colluded in Chapman’s perjury at trial; they had lied in response to enquiries following conviction; and they had perjured themselves in the ex parte leave hearing in the Court of Appeal.^[45]

As rare as cases like this may be, the problem of police misconduct in relation to non-disclosure is clearly is more than a ‘once off’.^[46]

Prosecution non-disclosure is not a problem confined to England. Indeed, prosecution non–disclosure has also been of concern in Australia^[47] (though arguably not to the same extent as in England).^[48] For example, a recent judicial inquiry was conducted by Martin AJ into the conviction of David Eastman for the murder of Assistant Commissioner Winchester of the Australian Federal Police (‘AFP’). Martin AJ recommended that Eastman’s conviction for murder be quashed. He concluded that Eastman, ‘was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material’.^[49] Eastman was convicted and served almost 19 years in prison before Martin AJ recommended that his conviction be quashed.^[50] The Australian Capital Territory Court of Appeal, having considered Martin AJ’s report, quashed Eastman’s conviction and ordered a retrial.^[51]

Specifically, Martin AJ found that Robert Barnes, a supposed ballistics expert and prosecution witness, had become emotionally involved in the case and lacked veracity and reliability. This was known to the investigating police prior to and at the time of Eastman’s trial. Thomas McQuillen, an AFP Detective Sergeant, was closely involved with Barnes throughout the investigation. McQuillen was the main liaison officer between the prosecution and the police investigation team and was also the primary liaison officer between the police and Barnes.^[52] On 19 January 1994, McQuillen telephoned Barnes and taped the call (which was later transcribed by the police). During the call, Barnes made remarks showing his emotional involvement in the case including, ‘I'm a Crown witness, a police witness’, and ‘I'm not going to see the brief suffer’. Barnes, in the words of Martin AJ, ‘behaved in a manner totally at odds with the independence of a forensic expert. He identified himself with the prosecution and plainly demonstrated his bias in favour of the prosecution. Barnes also gave vent to his desire that experts who disagreed with him should be told they could not say so in writing.^[53] Martin AJ noted that it was unclear how much information about the 1994 conversation was conveyed to the DPP, but found that McQuillen should have disclosed it to the DPP.^[54] However, the DPP did not recall this being done.^[55]

Martin AJ found that McQuillen might not have disclosed the conversation to the prosecution because McQuillen and Barnes had closely worked together for several years on the Eastman investigation. Barnes was ‘viewed as almost part of the team’.McQuillen had ‘made every effort to keep Barnes on-side’ and it was simply not part of McQuillen’s thinking to question the independence of Barnes. It also did not occur to McQuillen that the apparent of lack of impartiality shown by Barnes in the conversation from 19 January 1994 was a problem.^[56]

Given these troubling experiences of non-disclosure both at home and abroad, prosecutors, not police, should make decisions about whether to make PII claims over relevant material. A prosecutor is less likely to form emotional connections with police witnesses and informants in the way that police can do. This is due to two reasons. Firstly, the prosecutor generally has fewer in-person out of court interactions with witnesses and informants and secondly, the prosecutor owes an explicit obligation of candour to the court, being a direct party to the adversarial process.

Further, as prosecution lawyers are responsible for the ongoing conduct of any criminal trial, it is the proper role of the prosecution lawyer not only to determine whether a claim to PII should be made, but also to conduct any claim.

The New South Wales District Court and Court of Criminal Appeal in a case involving a man called Lipton considered the notion of the police and the DPP as ‘one indivisible entity’ for the purpose of disclosure. They also considered whether it was appropriate for the Director to delegate to the Crown Solicitor the role of asserting PII on behalf of the police in a criminal case.^[57] Lipton had pleaded guilty to drug offences and was awaiting sentence. He believed that his friend, MB, might have been a police informant who played a role in his arrest. He wished to learn the status of MB as it was of potential relevance to the sentence proceedings. Lipton’s lawyers applied for a stay of the sentence as well for the production of certain documents by the NSW police, the DPP and others.^[58]

The District Court granted a stay and held that the DPP was required to obtain and inspect the sensitive material, to decide whether it was relevant to Lipton’s sentence, and to advise the defence accordingly. Judge Finnane disagreed with the DPP’s contention that it was the role of the Crown Solicitor on behalf of the police and not the DPP to assess and argue PII. The judge expressed his disagreement with ‘a practice that has been in existence for as long as I can remember of the Crown taking no interest in public interest immunity claims and leaving it entirely to the Police who are represented in court by the Crown Solicitor and counsel briefed by the Crown Solicitor’.^[59] The judge concluded that such a practice was unsound and should be abandoned.^[60]

The Director appealed. In deciding the issue, the Court of Criminal Appeal held that the NSW police was required, under s 15A of the Director of Public Prosecutions Act 1986 (NSW), to physically produce all relevant material to the Director.^[61] RS Hulme J stated that it was impossible for the police to comply with s 15A(1) of the Director of Public Prosecutions Act 1986 and ‘disclose to the Director all relevant information’ (as the legislation then provided) without revealing the content of that information, which may include information that the police did not otherwise wish to disclose to the Director’.^[62] RS Hulme J held, ‘Parliament has dictated what must occur. If the result is inconvenient, it is a matter for Parliament to change’.^[63]

The NSW Parliament soon took up RS Hulme J’s invitation. Subsequent to the Court of Criminal Appeals’ ruling in Lipton, the Director of Public Prosecutions Amendment (Disclosures) Act 2011 was swiftly passed. Section 15A of the Director of Public Prosecutions Act 1986 was amended by that Act to provide that police officers investigating indictable (serious) offences are not required to disclose to the DPP information or documents obtained during an investigation which are subject to a legitimate claim of privilege, public interest immunity or statutory immunity. In these cases, the police must inform the Director that they have obtained information, a document, or other thing over which there is a PII claim^[64] and inform the Director of the nature of that information, document or thing.^[65] It is only if the Director requests that he or she be provided with the information, document or thing that the law enforcement officer must provide it to the Director to assess.^[66] The way the new Act has constructed the process therefore places primary responsibility on the law enforcement officer to make the initial decision about whether material should be subject to a PII claim. That decision will only be properly reviewed should the Director probe the status quo and make a request to receive the material itself. The Act is intended to preserve in New South Wales the pre-Lipton disclosure practices.^[67] It is premised upon the basis that the Crown Solicitor and not the DPP will continue to assert and argue PII.

This is an unfortunate legislative change. If the overstretched prosecution is placed in a position where they have to probe the police for material when the police have decided that the material is not disclosable on the basis of PII, properly disclosable material will inevitably slip through the cracks to the detriment of an accused. Such a regime hardly encourages police candour.

The South Australian case of R v Solomon^[68] is illustrative of this point. The prosecution case relied upon extensive police surveillance. The defence had requested the DPP to disclose all the surveillance material to them. Almost at the end of the trial it emerged that the DPP had not disclosed all of the surveillance material that it should have to the defence. This occurred because the prosecution counsel had not been told by the police responsible for the investigation of the offences of the full extent of the surveillance of Solomon and of his contacts. The Court of Criminal Appeal held that this omission could have caused a miscarriage of justice and the need for a retrial.^[69] Doyle CJ, Duggan and Sulan JJ agreeing, observed:

What happened in this case illustrates the importance of the police complying with their duty to ensure that the Director of Public Prosecutions is in a position to make appropriate disclosure to the legal representatives of the accused. It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director.^[70]

As McColl JA stated in Lipton, ‘the vice of the DPP determining whether evidence might be subject to a claim of public interest immunity [and not the police] is not apparent. The DPP undertakes that task in South Australia at least’.^[71] McColl JA explained her concern that the Director cannot effectively discharge his or her role as the primary arbiter of conducting prosecutions unless the Director has actual access to all information relevant to an issue in the case; allowing the police to hold relevant information without knowing what the information is undermines the Director’s ability to discharge his or her duty to act fairly toward the accused.^[72] McColl JA was of the opinion that this was clear in the case of Lipton.^[73] Similarly, in Solomon it was held:

The interests of justice, and the public interest in the efficient disposition of cases before the court, combine to require careful attention by the police to their duty to inform the Director adequately of all material that might have to be disclosed, leaving it to the Director to decide whether there are good grounds for withholding any material, and what should be done in that event.^[74]

The English practice of the Crown Prosecution Service (being the equivalent of the Australian DPP) arguing PII is preferable. The English case of R v West^[75] illustrates the rationale of the DPP and not the police arguing PII. The accused had been charged with trafficking a large amount of drugs found at his house by police executing a search warrant. West alleged at trial (though he had failed to supply a defence statement prior to trial as required in England setting out his proposed defence)^[76] that he had been ‘set up’ by a man called ‘Kenny’ and to support this defence, he sought access to the confidential material that had led the police to obtain the warrant to search his premises. The trial judge upheld an ex parte claim of PII by the prosecution and refused to order disclosure. On further investigation on appeal it transpired that the prosecution (using the term in its collective sense) had failed to provide not only to the defence, but even to the trial judge in his determination of the PII claim, significant material that supported the defence case. The court observed:

We add only that the course and outcome of this appeal show the importance attaching to the most searching investigation by the police, by prosecuting authorities and by courts of the facts relating to matters in respect of which public interest immunity is claimed, coupled with the most searching consideration of their possible relevance in the light of whatever defence is being advanced. The judge was not given a complete factual picture by the police in this case. Indeed, even the officer in the case who appeared before us at the first adjourned public interest immunity hearing in this application on 17^th December 2004 was himself surprised to discover the complete factual picture on the police side as it thereafter emerged and was put before us on 17^th February 2005 as a result of the further enquiries which we had ordered that he make. This course of events underlines the great caution necessary in the handling of public interest immunity applications made in the absence of the defence.^[77]

These comments are compelling. It makes perfect sense for the DPP, and not the police, to assess and argue PII.

IV CRITICISM OF EX PARTE PUBLIC INTEREST IMMUNITY CLAIM PROCEEDINGS

Conducting ex parte PII claim hearings in criminal cases is controversial.^[78] Ex parte PII claims are an exception to the usual rule of open justice.^[79] It permits the prosecution the opportunity to assert PII over material that the defence will never see, on the basis of confidential submissions that the defence may never read or have the opportunity to counter. To cause the defence to be unaware of the contents of such material is to deny them the opportunity to test and challenge it in a meaningful way. Code and Roach point out that a lawyer’s ability to function effectively in an adversarial system, by being able to challenge the evidence led against their client, relies on the lawyer being permitted to hear the evidence put against the client (or at least a reasonable summary of it).^[80] No judge, no matter how ‘astute and assiduous’, in an ex parte system can make up for the absence of scrutiny and argument from the opposing absent party.^[81]

Openness and transparency are fundamental to an adversarial justice system.^[82] For example, it is a common law principle that trials should take place in open court and that the public may attend.^[83] In the English case of R v Keane,^[84] the Court of Appeal admonished, ‘ex parte applications are contrary to the general principle of open justice in criminal trials’.^[85] The English Court of Appeal in Secretary of State for the Home Department v AHK, ^[86] similarly ruled, stating it is ‘a fundamental principle that a judge should not look at material that the parties before him have not seen’.^[87] However, later in its judgment the court emphasised that there are exceptions to the obligation to make frank disclosure to a decision maker, non-disclosure to protect the public interest being one.^[88]

The Court of Appeal in Keane warned that a closed PII claims procedure, exceptional as it is, should not be permitted to encroach more broadly in the English justice system. It cautioned, ‘the ex parte procedure should not be adopted, save on the application of the Crown and only for that specific purpose [of determining PII claims]’.^[89]

A PII Claims In Organized Crime And Terrorism Cases

Material gathered in the course of investigations concerning organised crime and terrorism scenarios are more likely to be subject to PII claims because they are may well involve sensitive material relating to public or, national security or police informants. Given the exceptional ex parte PII claim determination procedure, in practice, these types of crimes are therefore more likely to be subject to a different pre-trial evidential regime as compared to other serious crimes like murder, the latter requiring full disclosure of all relevant material. It is necessary to ensure that these sorts of cases really warrant the application of this exceptional approach. No matter how serious such crimes are, and how heinous and emotive terrorism and organised crime is, these circumstances should be disregarded when dealing with PII questions. Rather, the relevant material has to be carefully considered and rigorous thinking needs to be done by the State and by courts as to whether the material is truly sensitive and whether it is worthy of protection under this exceptional process.

The State when considering whether to make a claim in such cases must be temperate in its approach. If the DPP does make a claim of PII, it must ensure it provides all of the relevant material to the court, including information that would militate against the claim being granted. The European Court on Human Rights stated in Chahal v United Kingdom,^[90] a case concerning a deportation order made on a British resident on the grounds of his suspected terrorism:

The Court recognizes that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved.^[91]

The pre-trial system needs to be arranged so as to have meaningful checks to ensure that the material grounding any PII claim is cogent. Whether one is dealing with allegations of terrorism or organised crime, the stakes are very high. Justice Whealy, writing in 2007 regarding inchoate terrorism offences, lamented:

The broad range of new anti-terrorist legislation has created a range of offences for acting in a variety of ways in preparation for a terrorist act, even though no terrorist act actually occurs. The offences carry very significant penalties including, in a number of cases, life imprisonment ... [The new legislation] raises special challenges to the need to ensure that a fair trial is maintained ... a trial judge should seek to confront the legislative difficulties to ensure that the accused is dealt with fairly in the criminal justice system.^[92]

Justice Whealy’s 2007 article presciently concluded, ‘There is no doubt that we will see increasing emphasis on the investigation and prosecution of terrorism-related trials’.^[93] His prediction has proved accurate as recent events in the Middle East and the associated activities of Australian citizens have shown, notably the extensive publicity given to the deplorable public display of the severed head of a slain Syrian soldier by the seven-year-old son of Khaled Sharrouf, an Australian citizen and convicted terrorist.^[94]

The Prime Minister, the Hon Tony Abbott MP, viewed this ‘absolutely gruesome’ incident as indicative of terrorists’ attitudes generally and requiring a renewed legislative crackdown.^[95] The Prime Minister declared that ‘it is absolutely essential that we do whatever we reasonably can to ensure that the Australian community is safe from [such] people’.^[96] The Prime Minister announced plans for controversial new terrorism laws^[97] to ‘to counter terrorism at home and abroad’ and to make it easier to successfully prosecute and jail Australian citizens who engaged in terrorist activities abroad.^[98]

It seems likely that in addition to even stricter penalties for terrorist offences, laws relevant to prosecuting terrorism are likely to become more ‘pro-prosecution’. It is vital in such a volatile climate that there is in place a fair and effective regime for the determination of PII claims in terrorism trials, so that fairness is not sacrificed in favour of national security. The tension of how to balance public safety and security with a measured and fair legal response to alleged terrorists continues to impregnate current affairs.^[99]

With parallels to the severe legislation on inchoate terrorism offences, more recently in relation to policing organised crime rather than terrorism, similar laws have been passed which are targeted at making formerly lawful acts that may constitute preparation for a crime unlawful. In 2013, Queensland saw unashamedly punitive^[100] anti-association legislation designed to combat organised crime, notably by motorcycle gangs, come into effect. The Vicious Lawless Association Disestablishment Act 2013 (Qld) states that its objects are to be achieved by, inter alia, ‘(a) imposing significant terms of imprisonment for vicious lawless associates who commit declared offences and; (b) removing the possibility of parole ...’^[101] Under new anti-association laws in Queensland, it is now an offence for three or more members of a declared criminal organisation to knowingly meet in public or to work in certain industries such as tattooing.^[102] Queensland has introduced draconian mandatory terms of imprisonment of between 15 and 25 years for anyone found guilty of gang-related crimes,^[103] with the punishment to be imposed on top of the usual sentence.^[104]

Given these very serious penalties for terrorism and organised crime offences in Australia, and the likelihood that such trials may involve PII claims, it is necessarily in the interests of justice that material is only subject to the claim if the State determines that it is truly cogent and capable of being misused should it get into the wrong hands. However, the type of ‘criminal intelligence’ that constitutes material over which claims are made is not ‘hard information’ but is rather often based on remote hearsay, speculation, innuendo and sources lacking in credibility or reliability.^[105] Whealy J argues, ‘our [national] intelligence agency, for all its skill in intelligence gathering, is perhaps not well equipped to gather evidence for a criminal trial; and its individual agents are not well tutored in the intricacies of the criminal law relating to procedure and evidence’.^[106]

The material must also be truly sensitive for justice to be done in PII claims. In Sankey v Whitlam,^[107] Mason J declared that an affidavit in support of a PII claim must state precisely on what grounds it is contended the information should not be disclosed^[108] – the harm that would flow from the disclosure of the material must be made completely clear.^[109] The sensitive nature of this material must be carefully balanced against its potential to exculpate an accused of wrong doing.^[110]

B The Closed Nature Of The Public Interest Immunity Claim Determination Procedure

As recently as May 2014, Martin AJ agreed with a submission by the Australian Federal Police in the Eastman judicial inquiry that ‘it is conventional and entirely appropriate for a judge to receive a confidential affidavit in the course of dealing with a PII claim’.^[111] This reflects the established Australian case law, allowing the use of confidential affidavits.^[112] Yet, the use of the confidential affidavits procedure to determine PII claims has been judicially questioned in Australia. ^[113]

In New South Wales, for example, in the case of R v Francis^[114] it was held that an ex parte procedure ‘can reduce the process for determining the claim [for PII] to something bordering on a farce’.^[115] In Francis the defence had challenged an order for nondisclosure made by the trial judge on the basis of confidential affidavits and submissions, because the defence had no direct knowledge of the basis of the claim of PII or why non-disclosure was permitted. The Court of Criminal Appeal noted that in the absence of informed argument on behalf of the defence, it was difficult for the court to evaluate the importance of the applicant's case for being able to access that material. Further, the court was conscious that it was not fully aware of the detail behind the evidence. It noted that there may be significance to the documents that was lost upon the court and the defence was not in a position to enlighten the court, it not having seen the material.^[116] It is these types of problems that can make the ex parte procedure for resolving claims of PII absurd as well as unfair.

Subsequently, in Victoria, Gillard J^[117] also expressed strong reservations about confidential affidavits being used in PII claims. His Honour noted that as the defence was unaware of the contents of the affidavit arguing PII, it was denied an opportunity to test or challenge the material or the assertions in the affidavit. The defence was also unaware of the evidence grounding the court’s decision. The court held that this leads to the ‘justifiable criticism’ that the defence have been denied a fair hearing.^[118] Gillard J emphasised that ‘the importance of doing justice is an essential condition to the administration of justice in this State’.^[119]

V ARE SPECIAL ADVOCATES AN ANSWER?

A The Nature Of The Role Of Special Advocates

Special advocates are also known as special counsel. They are appointed as representatives of an accused’s interests, but are not representatives of the accused in the same fulsome sense as the accused’s own solicitors and counsel. The relationship between the special advocate and the accused is quite different to that between the accused and his or her own lawyer. The special advocate cannot pass any sensitive information onto the accused and is not responsible to, and cannot take instructions from the accused. The special advocate acts ‘in a way hitherto unknown to the legal profession’.^[120]

If special advocates were used in Australia similarly to how they have been employed abroad in the United Kingdom in immigration appeals, the procedure would look something like as follows:^[121] a special advocate would have the opportunity to meet with an accused and his or her lawyers and discuss the proposed defence and the issues surrounding their trial, so as to be better placed to represent an accused’s interests.^[122] The special advocate could attend ex parte hearings and read the original and unredacted confidential affidavits tendered to the court. Subsequently, the special advocate would no longer be able to communicate with the accused so as to avoid informing the accused of the case against him or her. After reading the material, a special advocate would be permitted to make submissions to the court, objecting to keeping material unnecessarily from the accused, demanding that statutory requirements be respected and protecting the accused’s interests generally. The special advocate may, for example, argue that it is necessary to disclose certain secret information in the confidential affidavit to the accused as it would tend to support the foreshadowed defence. A special advocate may also be able to question or interrogate the nature of the material, arguing that it is not in fact sensitive for the grounds claimed. A special advocate could then argue that the disclosure of the material to the defence would not have the deleterious consequences that the prosecution may allege in relation to, for example, security and defence in a terrorism case, or ongoing investigations in an organised crime case.

B Special Advocates In The United Kingdom

Bray notes that in England, as in Australia,^[123] through the State’s efforts to counter terrorism, there have been legislative moves to render judicial processes more secret when national security is raised. ^[124] Bray observes that there is judicial resistance to this, evident in various and diverse legal issues, which is ‘sceptical of attempts by the executive to seal courts and close hearings contrary to the principle of open justice’.^[125] She argues that ‘United Kingdom courts are frustrating government ambitions to introduce disquieting practices that centre on “security” justifications’.^[126] Given this resistance, one would think that special advocates would be welcomed by the judiciary as a means to rebalance a system that has shifted over recent years towards preferring secrecy to transparency. ^[127]

The genesis of special advocates in the UK lies not in criminal trials, but rather in immigration determinations. In 1997, the UK established a Commission to which immigration decisions could be appealed.^[128] The Commission could appoint a special advocate to represent an applicant where secret security evidence was relied upon which would suggest that the applicant should not be permitted to reside in the UK.^[129] The benefits of the special advocate were expressed^[130] and the acceptance of their role spread.^[131] Both the UK courts^[132] and Parliament^[133] increasingly made provision for the use of special advocates in procedures involving the use of sensitive material.^[134]

In a watershed decision, the House of Lords then dealt with the issue of special advocates in a PII setting. In R v H,^[135] the court determined that in an ‘exceptional’ criminal case, the interests of justice could require the appointment of a special advocate when the prosecution applied on the basis of PII to withhold relevant material from the defence. Lord Bingham, delivering the judgment of the court, stated that ‘cases will arise in which the appointment of an approved advocate as special counsel is necessary, and in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial’.^[136] However, Lord Bingham noted the problems surrounding the use of special counsel^[137] and emphasised that their appointment would be ‘exceptional, never automatic; a course of last and never first resort’.^[138]

This proposition can be criticised. As explained above, the ex parte procedure for determining PII claims is already exceptional in its nature. Why implementing a mechanism for redressing the disadvantage that a closed procedure places upon an accused should be only used in ‘exceptional’ circumstances, then, is unclear. Are the circumstances not exceptional already? Lord Bingham did not define what would constitute ‘exceptional’ circumstances, apart from to re-stress the importance of it being a last resort to ensure due fairness in the procedure.^[139] Perhaps Lord Bingham’s conservative approach was informed by the inevitable additional cost^[140] and delay that would be incurred by the identification, appointment, briefing and use of a special advocate. Regardless of this conservatism, the acceptance of the use of special advocates in the PII context was initially hailed as progress.^[141] This is especially because Lord Bingham saw fit to point out in R v H that the Republic of Ireland, with an adversarial system similar to England and Wales and a ‘principled but pragmatic approach’, had not seen fit to provide for the use special advocates in its disclosure matters.^[142]

Despite the emphasis that special advocates should only be employed as a ‘last resort’ in ‘rare and exceptional’ cases,^[143] such advocates since R v H have been accepted by English courts in cases involving sensitive material in various contexts including immigration,^[144] civil litigation,^[145] forced marriage^[146] and in a criminal context^[147] (including PII applications).^[148]

C Special advocates in Australia

The authors have been unable to find any Australian criminal trial in which a special advocate has been appointed. However, the use of special advocates has been raised by commentators^[149] and in several cases.^[150] The Victorian Parliament, for, example, has also given recent statutory sanction to the potential use of special counsel in various decisions involving the use of sensitive material.^[151]

In R v Lodhi,^[152] a terrorist case, Whealy J considered appointing a special advocate.^[153] Whealy J accepted that this was an ‘exceptional’^[154] remedy, but he saw no reason in practice or policy that precluded the appointment of a special advocate in an appropriate criminal case (though on the facts in Lodhi the use of a special advocate proved unnecessary).

Whealy J, writing after the conclusion of Lodhi, postulated that when a court must deal with a PII claim via affidavit material received on a confidential basis, the use of a special advocate could ‘be a useful weapon in the armoury of a trial judge’.^[155] Whealy J considered that it could assist to ameliorate a clash between a PII claim on the basis of a threat to national security and the protestations of a defence that it would be substantially prejudiced if the information is not disclosed to them.^[156] This is because, unlike the defence counsel, a special advocate would be security cleared to look at the documents over which a claim was made and would understand the defence case but not have had any direct contact with the accused.^[157] However, Whealy J echoed the view of Lord Bingham in R v H that the appointment of a special advocate should always be exceptional.^[158] While Whealy J saw secrecy as a major problem confronting a trial judge in terrorism cases, given pressure on judges and courts to give people accused of terrorism fair trials, his support for special advocates was positive but limited. Whealy J admitted that he could ‘offer no magic solution’ to the problem.^[159]

Subsequently, in R v Lipton,^[160] Lipton submitted that if the DPP concluded that a claim of PII might preclude the production of material relevant to his sentencing, the DPP should consider taking action to protect his interests, including the appointment of a special counsel to make submissions in relation to information to which Lipton was not privy.^[161]

D Critical evaluation of the use of special advocates

Are special advocates an appropriate and ‘innovative solution’^[162] to the inherent problems in an ex parte system for claiming PII? It is arguable that appointing a special counsel may not actually improve fairness to an accused. Several different arguments criticising special advocates are examined below.

First, it may be advanced that special advocates are unnecessary, as an astute and involved judge may do just as good a job as interrogating the merit of the State’s submissions for non-disclosure. As it was held in Malik, a special advocate may ‘test and probe the evidence and assessments of the [State] officer, but so too could the judge’.^[163] This argument is particularly relevant in Australia, where judges are open to inspecting the documents over which the immunity is claimed, whereas in England, judges are reticent to do this.^[164] Glover goes so far as to propose that this procedural difference could make the appointment of a special advocate in Australian PII claim hearings redundant.^[165]

However, the above argument assumes an involved and vigilant judge^[166] would determine the claim, rather than perhaps the more usual scenario of an unquestioning or deferential judge content to accept at face value, especially in the absence of any contrary argument, the State’s assertion of PII.^[167] Given the high stakes that can be involved for an accused facing a criminal trial whether relevant, potentially exculpatory, material is or is not disclosed to him or her, it can be safely said that in almost all cases it is better to have a legal representative present whose role is solely to act in the accused’s interests (as a special advocate or preferably defence counsel do), rather than to go without and hope that the judge will have the appetite to engage in robust and argumentative discussion in response to the State’s claim.

Lord Kerr in El-Rawi commented that even the most assiduous judge can never be a substitute for the lawyer for the absent party in testing the arguments presented by the opposing side in an ex parte procedure and evidence insulated from challenge might prove positively misleading.^[168] Code and Roach echo this position, arguing that a meritorious legal procedure^[169] should not be oblige a judge to take on the demanding role of counsel. This is because ‘the judge cannot possibly provide an adequate substitute for the role played by the solicitor and client relationship in the adversary system’.^[170] The judge, having no inquisitorial or investigative powers, but rather relying on the parties and their counsel in an adversarial system, cannot step into the shoes of counsel.^[171] This is not least because the judge is unable to meet the client and take advice and instructions.^[172] They posit that to the extent that a legal procedure derogates from the traditional adversarial model but does not replace it with a properly defined and clear inquisitorial model, (as the ex parte PII determination procedure does) the public is ‘left with a hybrid that fails to deliver on the strengths and virtues of either system’.^[173] One Canadian judge professed, avowedly on behalf of both himself and the rest of the Canadian Federal Court, ‘hating’ being required to ‘sit alone hearing only one party, and looking at the materials produced by only one party ... [without knowledge] except what is given to us and when it is only given to us by one party we are not well suited to test the materials’.^[174]

Second, it is clear that the practical limitations of the special advocate are considerable. There are major, if not insurmountable, difficulties in effective engagement between the special advocate and the accused and his or her lawyers (even assuming such communication is possible).^[175] Santow and McGarrity note the ‘considerable hurdles’ in the way of a fair trial and that it is ‘virtually impossible’ for special advocates to take ‘effective instructions’ in their conduct of the case.^[176] Ultimately, no special advocate, no matter how well-intentioned and diligent, is capable of representing the interesting of an accused as directly and effectively as his or her own lawyer.^[177]

Thirdly, it may be argued that having a special advocate to represent the interests of the accused merely acts as a fig leaf to legitimise a procedure that remains fundamentally and inherently unfair.^[178] For example, Lord Steyn in Roberts v Parole Board,^[179] described the notion of withholding relevant material from the prisoner and his or her lawyers as an ‘evisceration of the right to a fair hearing’ and that the use of a special advocate to represent the interests of the prisoner ‘strikes at the root of the prisoner’s fundamental right to a basically fair procedure’.^[180] Lord Steyn declared it was ‘important not to pussyfoot about such a fundamental matter, the special advocate procedure undermines the very essence of elementary justice. It involves a phantom hearing only’.^[181]

The majority^[182] of the UK Supreme Court in Al-Rawi v Security Service,^[183] whilst accepting the use of special advocates in the ex parte PII context,^[184] was unwilling to extend their use to so called closed material procedures to allow the use of sensitive material as evidence in substantive civil litigation in the absence of the opposing litigant and his or her lawyer with a special advocate to represent their interests.^[185] The Supreme Court found that the common law did not permit such a dramatic departure from ‘fundamental principles of open justice and of fairness’^[186] and such a drastic change was a matter for Parliament. Lord Dyson was less than reassured by the ‘protection’ afforded by special counsel.^[187] He noted the strong criticism of the special advocate regime by both Parliamentary committees^[188] and special advocates themselves.^[189] Lord Dyson referred to the damning assessment of one parliamentary report:

After listening to the evidence of the Special Advocates, we found it hard not to reach for well worn descriptions of it as ‘Kafkaesque’ or like the Star Chamber. The Special Advocates agreed when it was put to them that, in the light of the concerns they had raised, ‘the public should be left in absolutely no doubt that what is happening...has absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system’. Indeed, we were left with the very strong feeling that this is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them.^[190]

Such criticisms, though expressed in the context of closed material procedures, are apt. The underlying criticisms of the special advocate as an alternative to representation by an individual’s own lawyer are of general application. The premise of modern adversarial criminal procedure, as Roberts and Zuckerman contend, ‘is that your lawyer – not just any old lawyer – will provide you with advice and representation’.^[191] When the alternative is an ex parte PII procedure at which only the prosecution is legally represented and where the defence advocate is powerless to assist the accused, then special counsel ‘is better than no counsel’.^[192] But as Roberts and Zuckerman argue, ‘it still needs to be asked whether the assignment of special counsel constitutes an ingenious way of preserving the adversarial ideal of access to justice, or contributes to its erosion’.^[193] Given the major problems and limitations of the special advocate role, it is argued that special advocates are not an effective solution to protecting the interests of the absent accused in ex parte PII claims. Something else is needed.

VI ANOTHER, BETTER SOLUTION?

The notion of a special advocate, whilst accepted as less than ideal, has been described as better than nothing^[194] and as providing ‘a substantial measure of procedural justice not otherwise available’.^[195] The European Court of Human Rights observes that achieving a fair balance in terrorist-related cases is possible, and referring to special advocates, the court has suggested that special advocates are an appropriate technique that ‘both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice’.^[196] This reasoning is misconceived and, consistent with the more sceptical view later expressed by the European Court of Human Rights,^[197] it is argued that any ex parte PII process cannot be fairly achieved unless the interests of an accused are directly represented and articulated to the court by his or her own lawyer.

A preferable alternative to having a special advocate, and additionally, in those many cases which are not sufficiently ‘exceptional’ to warrant the appointment of a special advocate, an accused’s lawyers could provide the court with their undertaking that, should they receive the sensitive information, they will not disclose it to their client or any other party. This would allow the accused’s own lawyers to evaluate the information and, having had the benefit of direct knowledge of the accused’s circumstances and instructions, would ideally position them to test and challenge any PII claim. This would effectively ‘cut out the middle man’ of the special advocate, allowing the accused’s own lawyers to play an active, adversarial role in the process. It would allow the accused’s lawyers access to a hearing to argue PII without their client being present or been otherwise privy to the material and submissions in question.

Defence practitioners, should ideally obtain their client’s written consent to giving the undertaking to the court not to disclose the information to their client.^[198] This is especially to dissuade the accused from later giving inconsistent instructions, such as demanding that the sensitive material be disclosed to the accused contrary to the undertaking or demanding to be present in court when the defence lawyer argues the claim on their behalf. It is only if the defence lawyer is unable or unwilling to provide a satisfactory undertaking of confidentiality to the court, that may be no alternative but recourse to the ex parte procedure.

The conventional position is that to subject defence counsel in a criminal trial to an undertaking to not share relevant material with his or her client undermines professional candour and places counsel in an impossible professional position.^[199] In R v Davis,^[200] the English Court of Appeal accepted the assertions of defence counsel, Mr Mansfield QC, to this effect and observed:

it cannot be right to require counsel for the defence to give an undertaking not to reveal what passes in court to his instructing solicitors and client. Nor should he, as happened here, voluntarily absent himself. We agree. It would wholly undermine counsel's relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client. There would also be practical difficulties, as Mr Bevan pointed out. Counsel might have different views as to whether they would give such an undertaking; there might be a change of counsel and therefore a change of view; where several defendants were concerned their counsel might differ about giving undertakings. Accordingly, whatever happens in court with defending counsel present would, in our view, have to be disclosable to his clients.^[201]

The authors do not accept this contention. It is well established by both case law^[202] and professional guidelines^[203] that any lawyer owes a paramount duty to the court as an officer of the court that overrides any duty or allegiance to a client.^[204] Requiring an undertaking from defence counsel to not share the confidential material or submissions subject of an ex parte PII application with their client or anyone else is merely an illustration of this paramount duty. The court is asking defence counsel to explicitly accept the overriding nature of their duty to the court as opposed to their client. Code and Roach agree, contending:

... the suggestion that the lawyer and the client must have equal access to all disclosed information misconceives the solicitor and client relationship. Counsel is not a mere agent for the client. Rather, counsel have broad public interest duties to the administration of justice, as officers of the court. Those duties constantly require counsel to act independently of the client.^[205]

Moses LJ held in the recent English decision in Mohammed v Secretary of State of Defence^[206] that when a PII claim is considered, the inability of a party’s lawyers to communicate fully with their client would not undermine the fundamental principles on which a fair procedure depends. This case involved an action asserting the wrongful detention of the applicant in Afghanistan by the British authorities. Moses LJ ruled that information in respect to which a PII claim is claimed could legitimately be provided to the claimant’s lawyers only and considered in camera (which he termed a ‘confidentiality ring’). The Secretary of State’s assertion that a ‘confidentiality ring’ would not prevent the witting or unwitting disclosure of the sensitive material in question was not accepted by Moses LJ and he held there was no reason in principle that precluded the use of a ‘confidentiality ring’.^[207] Moses LJ discussed the circumstances in which a party’s lawyer could enter such a ‘confidentiality ring’.Moses LJ held a party’s lawyers could do so as long as they could satisfy themselves that (a) they could enter the confidentiality ring without harming their client’s interests and (b) they could safely continue to act under the confidentiality restriction. This decision, whilst supporting the view advanced in this article, seems difficult to reconcile with the position taken earlier in Davis (which was cited by Moses LJ).

Other cases in Australia^[208] and elsewhere have also not subscribed to the conventional position articulated by Mr Mansfield QC and accepted in Davis. In DPP v Special Criminal Court and Ward^[209] the prosecution in a high profile Irish trial involving the ‘underworld’ murder of an investigative journalist, Veronica Guerin, was in possession of highly sensitive material that it was unwilling to divulge.^[210] Prosecution counsel assured the Special Criminal Court that he and junior counsel had considered this material with ‘great care’ and that in their ‘professional opinion’ they were clear that the material would have been of ‘no assistance’ to the defence case.^[211] The Special Criminal Court, consistent with the view taken by the English Court of Appeal in Judith Ward, determined itself the question of PII and in doing so would have allowed defence counsel to inspect the confidential material in order to properly argue the question but subject to strict undertakings as to not sharing the material with their clients or any other party.^[212] The Irish High Court and Supreme Court on appeal disagreed with this approach, accepting the premise in Davis that this would undermine defence counsel’s duty of candour to his or her client.^[213]

It is notable that in Alister v The Queen^[214] the Commonwealth Attorney-General accepted that prosecution and defence counsel upon provision of undertakings of confidentiality could inspect the sensitive material in question to assist the court in its decision as to PII. This was during the appeal to the High Court regarding the assertion of PII in a high profile terrorist case^[215] over sensitive material held by ASIO relating to the main prosecution witness, a Richard Seary.^[216] However, at the High Court, Murphy J in his dissent on this point, saw no need to take up this invitation to decide against disclosure having inspected the material. ^[217]

There also exists obiter dicta from the High Court that supports the validity of undertakings from lawyers as a way forward through the PII claim quagmire. The High Court in K-Generation Pty Limited & Another v Liquor Licensing Court^[218] considered the opaque procedure that was permitted by the Liquor Licensing Act 1997 (SA) when an applicant applied for a licence to run an entertainment venue. The Act (as is common with many modern Australian statutes)^[219] permits the Liquor and Gambling Commissioner to receive criminal intelligence information from the Commissioner of Police, without that information being disclosed to the applicant. In fact, s 28A of the Act provides that information that is classified by the Commissioner of Police as criminal intelligence for the purposes of this Act may not be disclosed to any person other than the Commissioner, the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure.

The Chief Justice criticised s 28A of the Act as infringing both ‘procedural fairness’ and ‘the open justice principle that is an essential part of the functioning of courts in Australia’.^[220] However, the High Court upheld with suitable safeguards the use of criminal intelligence in such decisions.^[221] The High Court held that the Licensing Court, when reviewing the decision of a Liquor and Gambling Commissioner, and the Supreme Court of South Australia on any appeal from the Licensing Court could permissibly disclose the material to legal representatives of the party affected on conditions of confidentiality enforced by their providing an undertaking or by court order.^[222] Therefore, despite the sensitivity of the criminal intelligence information, the High Court suggested allowing the applicant’s counsel and solicitors access to the confidential information in order to evaluate it and overcome the problems of the provision in the Act that otherwise had the effect of requiring a closed procedure that the High Court found ‘infringes upon procedural fairness’.^[223]

A rejoinder to the argument that the lawyers may just as ably as special advocates represent an accused’s interests in a PII hearing, is that the sorts of situations where a PII claim is advanced typically involve criminal trials where the charges may be of the most serious kind such as involving terrorism and serious and organised crime. Should informants’ identities be revealed to the accused and, perhaps subsequently, the accused’s criminal associates who are at large in the public domain, it is realistic to fear those informants, and possibly their families, could be at risk of violent retribution, even death, for assisting the authorities.^[224]

The criminal law should take every proper precaution possible to prevent such a situation. Entrusting such highly sensitive information to the accused’s legal representatives, who are in direct contact with an accused, would invite peril if, (a) a member of the defence legal team for his or her own corrupt or improper purposes deliberately disclosed sensitive information to the accused; (b) a member of the legal team inadvertently disclosed some of the sensitive information to the accused through a ‘slip of the tongue’, remembering that, especially in complex criminal trials, legal representatives may have a great deal of oral communication with an accused over many months; and (c) an astute accused may speculate about why his or her lawyers, having had the benefit of reading the material over which a PII claim has been made, have subsequently asked him to provide explanations and his account relating to certain topics and conclude that only if a particular person had assisted the authorities would such matters be in issue.

In answer to scenario (a) above, in which non-disclosure to legal representatives of PII material is justified on the basis that the defence lawyers might improperly disclose the material, there is a strong view that legal representatives should be regarded as inherently trustworthy.^[225]

Whealy J in R v Lodhi^[226] considered the closed court hearing requirements under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), an Act which seeks to protect information from disclosure during Commonwealth proceedings and allows the use of such material as ‘secret’ evidence where the disclosure of the information may endanger national security.^[227] His Honour noted that the Act did not exclude any legal representative of the accused from the court if that lawyer had been given a relevant security clearance. Whealy J held that ‘it follows that a disclosure made to a legal representative of the defendant who is security cleared would not be likely to prejudice national security, except perhaps in the most unusual of circumstances’.^[228] That is, his Honour was proclaiming that defence counsel and lawyers can almost always be entrusted with sensitive information, regardless of their role as the representative of an accused, and that there is no inherent problem in letting them access sensitive information as they go about their professional duties, as long as they have a security clearance.^[229]

While lawyers may be commonly perceived by the public as of dubious morality and especially motivated by their personal self-interest,^[230] the paramount duty of all lawyers to act as an officer of the court should be emphasised.^[231] That duty overrides any duty to the client. The legal profession takes care to admit to its ranks only those who are deemed to be fit and proper persons to practice law. Those who are admitted as barristers must pass an additional assessment of their fitness. The legal profession takes seriously and investigates complaints against its members and will suspend and may disbar those that it believes are not fit to continue practicing. As such, there should be no visceral reaction against defence lawyers when considering their ability to safely and professionally participate in otherwise closed PII proceedings.^[232]

The law should not assume that, by virtue of their role, they are so sympathetic to the defence’s interests that they would be prepared to compromise their integrity and professionalism and potentially endanger public safety. Lawyers often provide undertakings as to the confidentiality of sensitive material raised before courts and are well aware of the professional and legal implications of any breach of such an undertaking.^[233] There is no evidence to suggest, as the NSW Law Society has argued, that the legal profession has abused this procedure ‘or that prosecution for contempt or professional misconduct are not adequate remedy in the event of any breach’.^[234] In the remote chance that there is good and specific reason to believe an individual defence lawyer is likely to reveal privileged material then, and only then, should it be open to the prosecution to demand that counsel not be trusted.^[235]

If a judge hearing a PII claim emphasises the sensitivity of the issue to the defence lawyers, and receives their personal written undertakings that they will not disclose the material which is ultimately held to be subject to PII to their client or any other party and more broadly, surely this would be a more just and effective procedure than the one that is currently employed. In R v Lodhi, Whealy J envisaged a process in which both the prosecution and defence lawyers participate actively in the hearing to assist him to determine the claim of PII:

as argument pans out ... it may become clearer whether the services of special counsel are required ... [but prior to this] the Court will need to examine for itself with some care, no doubt aided by the submissions of counsel, whether the material in question possesses sufficient materiality ... so as to override the claim of privilege and thereby lead to disclosure. Further, the Court will need to have perhaps greater assistance ... from the prosecution and the defence in relation to both the Crown and defence case.^[236]

In answer to scenario (b) above, the ‘slip of the tongue’ situation, the response that can be made is that if lawyers give personal undertakings to the court that they will not reveal information, leaving themselves liable to stringent professional sanctions for breaching those undertakings,^[237] as well as criminal penalties including imprisonment,^[238] presumably they will strive to uphold them.^[239] Also, it must be remembered, that in practice Australian courts do accept that undertakings of a legal practitioner should be sufficient to avoid any threat to which disclosure of that sensitive information could give rise.^[240]

Rule 141 of the Victorian Bar Rules of Conduct and Compulsory Continuing Professional Development Rules (‘Victorian Bar Incorporated Practice Rules’),^[241] for example, provides that a prosecutor must disclose to the opponent all material available to the prosecutor, or of which the prosecutor becomes aware, which could constitute evidence relevant to the guilt or innocence of the accused, unless the prosecutor reasonably believes that disclosure of the material would seriously threaten the administration of justice, a person’s safety, or otherwise be against the public interest and the prosecutor reasonably believes that such a threat could not be avoided by confining such disclosure, ‘to the opponent being a legal practitioner, on appropriate conditions which may include an undertaking by the opponent not to disclose certain material to the opponent’s client or any other person’ (authors’ emphasis). Therefore, this Rule specifically contemplates that an undertaking by a legal practitioner may be sufficient to render sensitive information, the type which could conceivably be the subject of a PII claim, fit to be disclosed. As such, it does not seem that the ever possible but unlikely ‘slip of the tongue’ scenario is no justification for non-disclosure to an accused’s lawyers, otherwise rules of conduct such as Rule 141 above would not exist.

In answer to scenario (c) above, regarding a situation with an astute accused who speculates an informer’s identity through questions asked by his representatives of him, defence lawyers in such a scenario must be alive to such a possibility. Conversing with an accused in this way so as to not ‘let the cat out of the bag’, but still obtain relevant instructions should not prove beyond their expertise and intellectual reach. For example, in relation to a situation where a judge is deciding whether or not to allow a PII claim and the defence lawyers have not seen the material in question and would not be allowed to, Glover proposes that the defence could still be actively involved in the hearing if a judge could, ‘formulate questions or statements about the content of the material in an innocuous way which can be put to the accused’s legal representatives, but without disclosing the subject matter of sensitivity’.^[242]

In this way, the defence would have an opportunity to ‘have their say’ in the proceeding. If it is possible for a judge to do this, it would equally be possible for the defence lawyers to read the confidential material and then obtain the instructions from their client in a way so as to obtain their client’s account without disclosing the sensitive subject matter. There is no reason to believe that such sophisticated communication skills would be solely in possession of those at the bench. Similarly, if upon reading the sensitive material, if the defence lawyers concluded that there was no way they could question their client about the material in a way so as to not disclose the subject matter of sensitivity, they would need to respect their duty to the court not to breach their undertaking not to so disclose and would have to make whatever arguments they could without obtaining instructions on those points.

VII CONCLUSION

The ‘golden rule’^[243] that the prosecution must disclose all relevant material in its possession in a criminal case to an accused cannot be absolute. There are circumstances where the release of sensitive material would be genuinely contrary to the public interest. As Justice Von Doussa observes, ‘sometimes individual rights need to be balanced against the need to protect collective security’.^[244] This qualification to the usual rule of full disclosure of any relevant material has become increasingly pertinent regarding alleged terrorist and organised crime, and the linked modern intelligence led and proactive policing.^[245]

Despite their otherwise separate and independent roles, the DPP and the police are ‘one indivisible entity’ for the purposes of disclosure. Because of this, the prosecuting lawyer and not the police should determine and argue questions of both relevance and PII. It is argued that, as advanced by Judge Finnane in R v Lipton (No 2), any contrary practice is flawed and should be abandoned.

The ex parte system for resolving claims of PII is inherently problematic. It places particular tensions upon the prosecutorial role. Such a system is open to the risk of misuse and departs from the fundamental rules of both open and natural justice. As Ormerod notes, ‘many retain serious misgivings about how defendants can have fair trial in the absence of information that might be of value’.^[246] It is unsound to argue that the ex parte PII procedure is a ‘necessary evil’,^[247] and whilst not ideal, is still consistent with the right to a fair trial.

If there is no-one else to represent the interests of the absent accused, special advocates, may be ‘a useful weapon in the armoury of a trial judge’.^[248] Yet they are a very blunt weapon indeed. Though a special advocate may be ‘better than nothing’, the role can be strongly criticised on grounds of both practice and principle. Any hearing involving the use of a special advocate is akin ‘to the use of blind shots at hidden targets’.^[249]

There are better solutions than conducting an ex parte PII procedure and relying on the prosecutor to act as a minister of justice and/or using a special advocate. It is preferable to entrust this role to the accused’s own lawyers, having no good and specific reason to doubt their integrity and after obtaining suitable undertakings of confidence from them. As long ago as 1996 in Canada, McEachern CJ approved of the limited disclosure of sensitive information to a lawyer if the lawyer provided an undertaking to maintain confidentiality, if client consent was obtained. He held it would be difficult to ‘criticise a lawyer for deciding, as a practical matter, with the consent of his client, to inform himself with what may be valuable information’.^[250]

Australian lawyers facing opposing PII claims should not have to accept the current opaque determination process as an intractable and unavoidable fact of legal practice. The criminal justice system needs to ensure that when it comes to PII claim determinations, the fundamental rule is followed that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.^[251] Australia needs to look to comparable common law jurisdictions abroad who have employed mechanisms to deal with controlling sensitive information in a fairer way. These include using special counsel (England) and lawyers receiving the information confidentially upon giving undertakings and receiving the client’s consent (England and Canada). Australian lawyers should also act to redress the current imbalance against accused who are prevented from receiving sensitive information and should start raising and arguing this option with courts. It can only stand to improve the currently opaque process. Such a process would ensure that the current ‘inequality of arms is brought back to a point nearer equilibrium’.^[252] We owe this to any accused.

^[∗] BA/LLB (Hons), GDLP, BCL (Oxon) barrister, Crockett Chambers, Melbourne.

^[+] BA/LLB, LLM, PhD, Lecturer, School of Law, Division of Business, University of South Australia; Adjunct Lecturer, Faculty of Law, University of Tasmania; Senior Legal Officer, State Attorney-General’s Department, Adelaide.

The authors are grateful for the erudite comments kindly provided towards this article by David Josse QC, barrister, 5 St Andrews Hill, London; Jonathan Polnay, barrister, 5 Kings Bench Walk, London; Mark Griffin QC, barrister, Wright Chambers, Adelaide; Antony Allen, barrister, Len King Chambers, Adelaide; Craig Caldicott, Caldicott and Co, Adelaide; and His Honour Chief Judge Geoffrey Muecke of the District Court of South Australia.

Any views expressed in this article are of the authors alone.

^[1] See, eg, David Lusty, ‘Anonymous Accusers: an Historical and Comparative Analysis of Secret Witnesses in Criminal Trials’ (2002) 24 Sydney Law Review 361, 361-2; R v Davis [2008] 1 AC 1128, 1137–8 [5].

^[2] See, eg, Rowe and Davies v United Kingdom [2000] ECHR 91; (2000) 30 EHRR 1, [60]; Fitt v United Kingdom [2000] ECHR 89; (2000) 30 EHRR 480, [44]; Martin Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Criminal Law Journal 121, 121–2; R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531, 559–61 [136]-[140] (Sulan J); Ragg v Magistrates’ Court of Victoria [2008] VSC 1; (2008) 179 A Crim R 568, 587–9 [71]–[75]; Al-Rawi v Security Service [2011] 3 WLR 388, 416 [89]–[90]; David Plater, ‘The Development of the Prosecutor's Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice? [2006] UTasLawRw 9; (2006) 25 University of Tasmania Law Review 111, 152-5.

^[3] R v H [2004] UKHL 3; [2004] 2 AC 134, 147.

^[4] See, eg, Fitt v United Kingdom [2000] ECHR 89; (2000) 30 EHRR 480, [45].

^[5] It is sometimes argued that the doctrine of PII should have no application to criminal, as opposed to civil proceedings as where the liberty of the citizen is at stake, ‘the public interest in doing justice to the individual and the ethic of prosecutorial fairness will always outweigh any competing public interest’: see Clive Walker and Geoffrey Robertson, ‘Public Interest Immunity and Criminal Justice’ in Clive Walker and Keir Starmer (eds), Miscarriages of Justice: a Review of Justice in Error (Oxford University Press, 1999) 170, 171. But this view overlooks the fact that it is recognised that an accused cannot have access to all relevant material in a criminal case. See, eg, Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Secret Information (Report No 98) (2003) 311 [8.149]. Public interest immunity applies in both civil and criminal proceedings. Though ‘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 or property and reputation’, it is clear that PII with suitable modifications applies in criminal cases. See Adrian Zuckerman, ‘Public Interest Immunity – a Matter of Prime Judicial Responsibility’ (1994) 57 Modern Law Review 703, 720–1.

^[6] Walker and Robertson, above n 5, 170.

^[7] Colin Tapper, Cross and Tapper on Evidence (Cambridge University Press, 12^th ed, 2010) 478.

^[8] See, eg, R v Jackson [2000] Crim LR 377. This also emerged in England in 1992 in the Matrix Churchill trial for illegal exporting military equipment to Iraq where the Government unsuccessfully asserted PII over sensitive material that supported the innocence of the defendants. See, eg, Paul Roberts and Adrian Zuckerman, Criminal Evidence (Oxford University Press, 2^nd ed, 2010) 321–2; Richard Norton-Taylor, ‘Businessmen win 1 million in Belated Arms to Iraq Payments’, The Guardian, 19 November 2010; Richard Norton-Taylor and Ewen Macaskill, ‘Iraq Arms Prosecutions led to String of Miscarriages of Justice’, The Guardian (online), 10 November 2012 <http://www.theguardian.com/world/defence-and-security-blog/2012/nov/09/arms-iraq-saddam-hussein> . The defendants were sensationally cleared after the trial judge, Judge Smedley QC, insisted on the disclosure of official documents that supported the defence case over which the prosecution had sought to claim PII. There were suggestions that the prosecution claim of PII had been in order to prevent the embarrassing disclosure of material that showed the apparent complicity of the British authorities in the delivery of military equipment to Iraq. See, eg, Walker and Robertson, above n 5, 173–4; Gabriele Ganz, ‘Matrix Churchill and Public Interest Immunity’ (1993) 56 Modern Law Review 564, 567–8; Gabriele Ganz, ‘Matrix Churchill and Public Interest Immunity: a Postscript’ (2005) 58 Modern Law Review 417–21. See further David Leigh and Richard Norton-Taylor, Betrayed: The Real Story of the Matrix Churchill Trial (Bloomsbury, 1993).

^[9] This arose in the complex and now notorious series of linked fraud cases involving the London Bonded Warehouse (see, eg, R v Early & Others [2006] EWHC 2266; [2003] 1 Cr App R 19; R v Patel & Others [2001] EWCA Crim 2505, [2002] Crim LR 304; R v Gell & Others [2003] EWCA Crim 123) where prosecution counsel in various linked proceedings unwittingly provided false information in ex parte PII claims to the trial judges as to the inappropriate and undisclosed activities of both the informants and law enforcement agents. See generally Justice Neil Butterfield, A Review of Criminal Investigations and Prosecutions conducted by HM Customs and Excise (HM Treasury, 2003): The effect of this catalogue of deceit, when it came to light, resulted in the quashing of the convictions of 109 defendants (including those who had pleaded guilty). Apart from the ‘colossal’ (see 163, [8.37]) costs of the investigation and numerous trials and appeals, the duty lost to the Exchequer was estimated at ₤668 million (see 163, [8.36]). See also Chris Taylor, ‘What Next for Public Interest Immunity’ (2005) 69 Journal of Criminal Law 75, 77.

^[10] See, eg, R v Patel [2001] EWCA Crim 2505, [51].

^[11] See, eg, David Corker, The CPIA Disclosure Regime: PII and Third Party Disclosure, the Defence Perspective (1 December 1999) Rough Justice TV, <http://www.roughjusticetv.co.uk/David%20Corker1999.htm> Fran Abrams, ‘Forbidden Evidence’, The Guardian, 2 December 2003; R v West [2005] EWCA Crim 517, [4].

^[12] Walker and Robertson, above n 5, 171–2.

^[13] Sir Robin Auld, Review of the Criminal Courts of England and Wales (UK Ministry of Justice,, 2001) 477..

^[14] See, eg, R v Mokbel (Ruling No 1) [2005] VSC 410; See also Paul Farrell, ‘Asylum Policy Secrecy Brings Calls for Overhaul of Immunity Claims’, The Guardian (online), 6 March 2014 <http://www.theguardian.com/world/2014/mar/06/asylum-policy-secrecy-brings-call-for-overhaul-of-interest-immunity-claims> .

^[15] Corker, above n 11.

^[16] See, eg, R v MacFarlane; Ex parte O’Flanagan [1923] HCA 39; (1923) 32 CLR 518, 541-2; McKinley v the Queen [1991] HCA 6; (1991) 171 CLR 468; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 334–5; Brown v Stott [2000] UKPC D3; [2001] 2 WLR 817, 851; James Spigelman, ‘The Truth Can Cost Too Much: the Principle of Fair Trial’ (2004) 78 Australian Law Journal 29. See also International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.

^[17] See, eg, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR, 1 38–9; Rowe and Davies v United Kingdom [2000] ECHR 91; (2000) 30 EHRR 1, [61]; Paul Matthews and Hodge Malek, Disclosure (Sweet and Maxwell, 2012) 376.

^[18] Milko Kumar, ‘Protecting State Secrets: Jurisdictional Differences and Current Developments’ (2013) 82 Mississippi Law Journal 853, 856.

^[19] See, eg, D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171; R v Lipton [2011] NSWCCA 247; (2011) 221 A Crim R 384, 412 [85].

^[20] David Corker and David Young, Abuse of Process in Criminal Proceedings (Butterworths, 2003) 127 [4.75].

^[21] This exists under both the common law (see, eg, R v Lewes Justices, ex parte Home Secretary [1973] AC 388, 400) and statute (see, eg, Evidence Act 2008 (Vic) s 130(2): ‘The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party)’.)

^[22] D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 230 (Lord Hailsham), 236, 241 (Lord Simon).

^[23] See, eg, Eastman v The Queen (1997) 76 FCR 9, 63; Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010; (2000) 100 FCR 229, 246.

^[24] See Evidence Act 2008 (Vic) s 130(4). See also the similar provisions that exist in the other Uniform Evidence Act jurisdictions (see s 130(4) of the Evidence Act 2011 (ACT), Evidence Act 1995 (Cth), Evidence Act 1995 (NSW), Evidence Act 2011 (NT), Evidence Act 2001 (Tas). The common law applies to the operation of PII in Queensland, South Australia and Western Australia.

^[25] [1993] 1 WLR 613.

^[26] Ibid 618. The court recognised three types of PII applications: 1. The first (and ‘which will be in most cases’) is where the prosecution tell the defence about the PII application and what category of material it is about. The defence are fully involved and are entitled to make their own representations to the judge. 2. The defence are told about the PII application but not what category of material is involved as that would, in effect, reveal that which the prosecution asserts should be kept secret. The hearing proceeds on an ex parte basis. 3. In a ‘highly exceptional case’, where even to reveal the fact that an ex parte application was to be made could ‘let the cat out of the bag so as to stultify the application’, then the ex parte hearing could take place without even any notice to the defence.

^[27] Ibid

^[28] Ibid 617.

^[29] Ibid. Though ex parte applications were said in Davis to be an ‘exceptional’ remedy, in practice they tend to be common. A 2000 study found that at least half of PII claims in England were in the absence of the defence. See Joyce Plotnikoff and Richard Woolfson, ‘A Fair Balance? Evaluation of the Operation of the Disclosure Law’ (RSD Occasional Paper No 76, UK Home Office, 2001) 88.

^[30] Transcript of Proceedings, R v Bebic, (New South Wales Court of Criminal Appeal, (No 2146A of 1981, Samuels JA, Nagle CJ and Cantor J, 27 May 1982) 6.

^[31] See, eg, See R v Meissner (1996) 76 A Crim R 81, 85; R v Andrews (2010) 107 SASR 471, 475 [21]–[25] (Gray J); 495–6 [129]–[131] (David J).

^[32] See, eg, R v Mokbel (Ruling No 1) [2005] VSC 410, [24].

^[33] See, eg, R v Berry [1992] 2 AC 364, 374–5, 376; R v Ward [1993] 1 WLR 619, 692; R v O’Connor (1995) 130 DLR (4th) 235, 284; R v TSR [2002] VSCA 87; (2002) 5 VR 627, 650; Ragg v Magistrates’ Court of Victoria [2008] VSC 1; (2008) 179 A Crim R 568, 587–9 [71]–[75].

^[34] There have instances where PII has been asserted for questionable reasons such as the Matrix Churchill prosecution in England, see above n 8. See also Transcript of Proceedings, R v Sutherland and Others, (Nottingham Crown Court, No T20027203, Newman J, 29 January 2002) where Newman J expressed his unease at the use by the prosecution in that case of the ex parte PII procedure to seek to withhold highly probative but compromising material showing that the police had unlawfully ‘bugged’ private and privileged conversations between the suspects in a murder investigation and their solicitors. The case was stayed by Newman J as an ‘abuse of process’.Similar concerns were raised after the trial of Paul Burrell, the butler of the late Princess of Wales, for the theft of items from his employer’s estate. Burrell claimed that he had removed them for ‘safe keeping’. It later transpired during Burrell’s trial that the Queen recalled a conversation she had with Burrell that partly supported his explanation. The prosecution sought on the basis of an ex parte claim of PII over defence protests to withhold, at least initially, this material at trial. Defence counsel, Lord Carlile QC expressed his ‘concern and opposition to an adjournment without some reason being given to the defence’ and that he had ‘never come across anything like this during 32 years in practice’ : Pat Clark, ‘Trial Collapsed before Paul Burrell could give Evidence’, Western Mail (Wales), 2 November 2002. The trial judge, Rafferty J, disagreed with the prosecution’s claim and the prosecution abandoned the case as it was inconceivable the Queen could be called as witness in one of her own courts. Burrell was acquitted. There were assertions that this had been a wrongful claim of PII. See Alex Carlile QC, ‘A Case of True Coincidence and Extreme Loyalty’, The Telegraph (London), 3 November 2002; Stephen Bates, Clare Dyer, and Nicholas Watts, ‘MPs criticise Queen over Burrell Case,’ The Guardian, 4 November 2002; Clare Dyer, ‘Officials admit Immunity Request’, The Guardian, 6 November 2002.

^[35] Alafair Burke, ‘Revisiting Prosecution Disclosure’ (2009) 84 Indiana Law Journal 481, 494, 488–9.

^[36] Janet Hoeffel, ‘Prosecutorial Discretion at the Core; the Good Prosecutor meets Brady’ (2005) 109 Pennsylvania State Law Review 1133, 1136. See also Barry Grossman, ‘Disclosure by the Prosecution: Reconciling Duty and Discretion’ (1988) 30 Criminal Law Quarterly 346, 348–9; Hannah Quirk, ‘The Significance of Culture in Criminal Procedure Reform: Why the Revised Disclosure Scheme Cannot Work’ (2006) 10 International Journal of Evidence and Proof 42, 52–3; Christopher Deal, ‘Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to Trial by Jury’ (2007) 82 New York University Law Review 1780, 1803.

^[37] David Ormerod, ‘Improving the Disclosure Regime’ (2003) 7 Evidence and Proof 102, 125.

^[38] Corker, above n 11.

^[39] Any party with an interest in the proceedings can claim PII, even if not a direct party in the proceedings. See Andrew Choo, Evidence (Oxford University Press, 3^rd ed, 2012) 204.

^[40] Public interest immunity may also be claimed by the State when it is a party to civil matters, see, eg, Murphy v State of Victoria and Another [2014] VSC 363. The issues associated with the use of secret and sensitive material also extend to civil law jurisdictions, see, eg, Jill van Voorhout, ‘Intelligence as Legal Evidence’ (2006) 2 Utrecht Law Review 119. An examination of the use of public interest immunity claims in the civil context is beyond the scope of this article.

^[41] In South Australia, for example, in R v Andrews (2010) 107 SASR 471, 475 [21] (see also R v Lipton [2011] NSWCCA 247; (2011) 221 A Crim R 384, 414–15 [91]) the DPP argued PII and indicated that this was the normal practice, but the authors have been informed by Mark Griffin QC, Craig Caldicott and Anthony Allen that the more common practice is for the Crown Solicitor to argue PII on behalf of the police.

^[42] See R v Lipton (No 2) [2010] NSWDC 295, [16], [28]; Kumar, above n 18, 867–8.

^[43] See R v West [2005] EWCA 517; Kumar, above n 18, 867–8.

^[44] [2010] UKSC 48; [2011] 1 WLR 1837.

^[45] [2010] UKSC 48; [2011] 1 WLR 1837, 1840–1841 [9] (Lord Dyson).

^[46] See, eg, R v Higgins [2002] EWCA Crim 336; R v Early and Others [2006] EWHC 2266; [2003] 1 Cr App R 19; R v Brady [2004] EWCA 2230; R v Olu, Wilson and Brooks [2010] EWCA Crim 2975; R v Barkshire and Others [2011] EWCA Crim 1885; R v Joof and Others [2012] EWCA Crim 1475, [39]. See further Chris Taylor, ‘Advance Disclosure and the Culture of the Investigator: the Good Idea that never quite caught on?’ (2005) 33 International Journal of Sociology of the Law 118; Chris Taylor, The Disclosure Sanctions Regime: Another Missed Opportunity” (2013) 17 International Journal of Evidence and Proof 272, 273, 279-81; David Plater and Lucy De Vreeze, ‘Is the “Golden Rule” of Full Prosecution Disclosure a Modern “Mission Impossible”’ (2012) 14 Flinders Law Journal 134, 146–53.

^[47] See eg, R v Easterday [2003] WASCA 69; (2003) 143 A Crim R 154; R v Ulman- Naruniec [2003] SASC 437; (2003) 143 A Crim R 531, 534 [3], 581 [232]; R v Mallard [2005] HCA 68; (2005) 224 CLR 125; Western Australia v Narkle [2006] WASCA 113; Western Australia v JWRL [2010] WASCA 179, [91]; R v AJ [2011] VSCA [21], [36]-[41]; Martin Moyhihan QC, Review of the Civil and Criminal Justice System in Queensland (Queensland Government, 2008) 93, 95–7.

^[48] Hinton, above n 2, 123.

^[49] Brian Martin, Report of the Board of Inquiry for the Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester (2014) 446 [1832].

^[50] Ibid 2 [8].

^[51] Eastman v Director of Public Prosecutions [No 2] [2014] ACTSCFC 2.

^[52] Martin, above n 49, 115[344].

^[53] Ibid 128 [408].

^[54] Ibid 129 [411].

^[55] Ibid 131 [422].

^[56] Ibid 130 [419].

^[57] R v Lipton [2011] NSWCCA 247; (2011) 221 A Crim R 384.

^[58] R v Lipton (No 2) [2010] NSWDC 295.

^[59] Ibid [16].

^[60] Ibid [17], [28].

^[61] R v Lipton [2011] NSWCCA 247; (2011) 221 A Crim R 384.

^[62] Ibid 420 [124].

^[63] Ibid.

^[64] See Director of Public Prosecutions Amendment (Disclosures) Act 2012 (NSW) s 15A(6)(a).

^[65] Ibid s 15A(6)(b).

^[66] Ibid (NSW) s 15A(7).

^[67] New South Wales, Parliamentary Debates, Legislative Assembly, 17 October 2012, 15841 (Greg Smith)

^[68] [2005] SASC 265; (2005) 92 SASR 331.

^[69] Ibid 359 [116].

^[70] Ibid.

^[71] R v Lipton [2011] NSWCCA 247; (2011) 221 A Crim R 384, 418 [111], though see above n 41. See also s 66J of the Summary Offences Act 1953 (SA) that provides for the Police Commissioner to apply to a court to take steps to maintain the confidentiality of information classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties.

^[72] This is, of course, not to ignore that there exist some situations irrelevant to public interest immunity claims when a State agent can and should quarantine evidence given by a person to be charged for offences from those involved in the prosecution of those charges. For example, when a person is required to give evidence before the New South Wales Crime Commission, if the Commission directs that the evidence not be published under New South Wales Crime Commission Act 1985 (NSW) s 13(9); see further Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656, [34].

^[73] R v Lipton [2011] NSWCCA 247; (2011) 221 A Crim R 384, 417 [106].

^[74] [2005] SASC 265; (2005) 92 SASR 331, 359 [116].

^[75] [2005] EWCA 517.

^[76] In R v Keane [1994] 1 WLR 746, 752, the English Court of Appeal noted ‘the more full and specific the indication the defendant’s lawyers give of the defence or issues that are likely to arise, the more accurately both prosecution and judge will be able to discuss the value to the defence of the material’. However, many defence lawyers are reluctant to provide such an indication (see, eg, Justice Anthony Whealy, ‘Terrorism and the Right to a Fair Trial: Can the Law Stop Terrorism? A Comparative Analysis’ (Paper presented at the British Institute of International and Comparative Law, April 2010) 31). Any general legal duty on the defence to supply details of its intended defence prior to trial is not a solution to the problems with PII. Any such duty has proved controversial and has been less than a resounding success in practice in both Australia (see, eg, Kevin Dawkins, ‘Defence Disclosure in Criminal Cases’ [2001] New Zealand Law Review 35, 48–9; Christopher Corns, Anatomy of Long Criminal Trials (Australian Institute of Judicial Administration, 1997) 38; 62-5; Cosmas Moididis, Criminal Discovery: From Truth to Proof and Back Again (Sydney Institute of Criminology, 2008) 76 and England (see, eg, Hannah Quirk, ‘The Significance of Culture in Criminal Procedure Reform: Why the Revised Disclosure Scheme Cannot Work’ (2006) 10 International Journal of Evidence and Proof 42, 56–7; Peter Goldsmith QC, Speech delivered at the Whitehall Prosecutors Conference, London, 4 October 2005; Plater and De Vreeze, above n 46, 162–6.

^[77] [2005] EWCA 517, [10]. West is not a unique problem of misleading information been provided in ex parte PII claims. In R v Jackson [2000] Crim LR 377 the prosecution unwittingly provided incomplete material to the trial judge. In the London Bonded Warehouse catalogue of cases (see above n 9), the investigators repeatedly and deliberately provided false material to successive trial judges. See R v Early and Others [2006] EWHC 2266; [2003] 1 Cr App R 19, 295 [10].

^[78] See, eg, Choo, above n 39, 218; Ormerod, above n 37, 116–18. As Lord Carlile QC observes, ‘There are many questions about the PII system with its private hearings absent the defence or any independent advocate’: Alex Carlile QC, ‘A Case of True Coincidence and Extreme Loyalty’, The Telegraph (London), 3 November 2002.

^[79] Al-Rawi v Security Service [2011] 3 WLR 388, 406 [49].

^[80] Michael Code and Kent Roach, ‘The Role of the Independent Lawyer and Security Certificates’ (2007) 52 Criminal Law Quarterly 85, 94.

^[81] Al-Rawi v Security Service [2011] 3 WLR 388, 417 [93] (Lord Kerr).

^[82] See, eg, Al-Rawi v Security Service [2011] 3 WLR 388, 397–7, [11]–[12] (Lord Dyson); Condon v Pompano Pty Ltd ( 2013) 87 ALJR 458, 463, [1]–[2] (French CJ).

^[83] See, eg, Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495, 520.

^[84] [1994] 1 WLR 746.

^[85] Ibid 750.

^[86] [2009] All ER (D) 35.

^[87] Ibid [17].

^[88] Ibid [19].

^[89] R v Keane [1994] 1 WLR 746, 750.

^[90] [1996] ECHR 54; (1997) 23 EHRR 413.

^[91] Ibid [131].

^[92] Anthony Whealy, ‘Difficulty in Obtaining a Fair Trial in Terrorism Cases’ (2007) 81 Australian Law Journal 743, 743.

^[93] Ibid 756.

^[94] In August 2014, Sharrouf posted online a horrific photograph of his seven-year-old son holding the severed head of a slain Syrian soldier. See Jonathan Pearlman, ‘Australian PM denounces image of seven-year old boy holding a severed head as barbaric’, The Telegraph (London), 11 August 2014.

^[95] See Nick Miller, ‘Tony Abbott: Australian troops could return to Iraq’, Sydney Morning Herald (online) 13 August 2014 <http://www.smh.com.au/world/tony-abbott-australian-troops-could-return-to-iraq-20140812-103f15.html> , It is notable that in the decade after the 11 September 2001 terrorist attacks, the Commonwealth passed over 50 new terrorist laws, ‘often in great haste, in stunning scope and number’ (George Williams, ‘A Decade of Australia’s Anti-Terror Laws’ [2011] MelbULawRw 38; (2011) 35 Melbourne University Law Review 1136, 1137). This legislative flood exceeds the new laws introduced in the same period in the USA, the UK and Canada. See Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) 310.

^[96] Miller, above n 95. Whealy J presents a contrasting perception of Sharrouf. Commenting to the media that, when considering Sharrouf's most recent though deplorable actions in Syria, the danger he presents to Australia should not be overstated. ‘He's clearly over there playing a role of the master terrorist – but he's anything but, of course,’ Whealy J said. ‘He's a very sad, pathetic figure. He remains a highly unintelligent man who has no perception of himself’. Whealy J presided over the 2005 trial of Sharrouf, who was charged and convicted of the inchoate offence of possessing items to be used in a terrorist attack, namely batteries and clocks he had stolen from a store. See Sean Rubinsztein-Dunlop, Khaled Sharrouf: The Australian Radical Fighting for Islamic State in Iraq and Syria ABC News (online) 15 August 2014 <http://www.abc.net.au/news/2014-08-14/khaled-sharrouf-the-australian-radical-fighting-in iraq/5671974> . The original trial heard evidence that Sharrouf suffered from chronic schizophrenia that had influenced his vulnerability to radical and terrorist activities, but had also rendered him so incapacitated that he was judged unfit to plead at his trial. After his conviction and eventual release from prison, Sharrouf travelled to Syria to take part in the current civil war and became involved in renewed terrorist activities. He was later joined by his children. See Samantha Maiden, ‘ASIO let wife and kids join Khaled Sharrouf after he fled Australia using a false passport’, The Daily Telegraph (online), 17 August 2014

<http://www.dailytelegraph.com.au/news/nsw/asio-let-wife-and-kids-join-khaled-sharrouf-after-he-fled-australia-using-a-false-passport/story-fni0cx12-1227026648004> .

^[97] See, eg, Louise Yaxley, Tony Abbott to consider new terrorism measures for Australians returning from overseas war zones, ABC News (online) 6 August 2014 <http://www.abc.net.au/news/2014-08-01/new-terrorism-measures-to-reverse-onus-of-proof-reports/5641582> George Williams, ‘Anti-Terrorism Reforms Put Democracy at Risk’, Sydney Morning Herald (online), 11 August 2014

<http://www.smh.com.au/comment/antiterrorism-reforms-put-democracy-at-risk-20140810-102frj.html> Editorial, ‘Home Grown Terror Response Risks Government Overreach’, The Age (online), 12 August 2014 <http://www.smh.com.au/comment/smh-editorial/homegrown-terror-response-risks-government-overreach-20140811-102n9y.html> Gabrielle Chan, ‘Terrorism Laws not Aimed at Muslims say Tony Abbott and ASIO Head’, The Guardian (online), 22 August 2014

<http://www.theguardian.com/world/2014/aug/22/terrorism-laws-not-aimed-islam-tony-abbott-asio> .

^[98] Prime Minister of Australia The Hon Tony Abbott MP, Press Conference, London (12 August 2014) <http://www.pm.gov.au/media/2014-08-12/press-conference-london> .

^[99] See, eg, David Jenkins, ‘There and Back Again: The Strange Journey of Special Advocates and Comparative Methodology’ (2011) 42 Columbia Human Rights Law Review 279, 279–82; Edward Santow and Nicholas McGarrity, ‘Balancing National Security and a Fair Hearing’ in Victor Ramraj, Michael Hor, Kent Roach and George Williams (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, 2012) 122; Editorial, above n 98.

^[100] By the Queensland government’s own admission, the legislation is designed to be punitive. The Attorney-General, the Hon Jarrod Bleijie stated of the proposed Vicious Lawless Association Disestablishment Bill, ‘The punishment is deliberately and unapologetically severe because we want to break the bikies - break their enterprise, break their spirit, break up their groups’. See Hon Jarrod Bleijie, Attorney-General and Minister for Justice, ‘Tough penalties for criminal gang members’ (Media Statement, 15 October 2013) <http://statements.qld.gov.au/Statement/2013/10/15/tough-penalties-for-criminal-gang-members> .

^[101] Vicious Lawless Association Disestablishment (VLAD) Act 2013 (Qld) s 2(2)(a)–(b).

^[102] David Lewis, Queensland Anti-Bikie Laws: Motorcycle Gangs Lodge High Court Challenge against Controversial Measures, ABC News (online) 20 March 2014 <http://www.abc.net.au/news/2014-03-19/bikies-lodge-high-court-challenge-against-laws/5332316> .

^[103] See Bleijie, above n 100.

^[104] See Vicious Lawless Association Disestablishment (VLAD) Act 2013 (Qld) s 8.

^[105] See, eg, Sally Neighbour, ‘When Justice is not seen to be Done’, The Australian, 16 June 2010; Jenny Hocking, ‘Counter-Terrorism and the Criminalisation of Politics: Australia’s New Security Powers of Detention, Prescription and Control’ (2013) 49 Australian Journal of Politics and History 355, 365. This theme also emerged from comments from Mark Griffin QC and Craig Caldicott to the authors. This may well militate against seeking to use such material as ‘evidence’ in closed material procedures.

^[106] Whealy, above n 92, 757.

^[107] [1978] HCA 43; (1978) 142 CLR 1.

^[108] Ibid 96.

^[109] Trent Glover, ‘Public Interest Immunity Claims in National Security Trials and the Role of Special Counsel’ (2009) 33 Criminal Law Journal 309, 315.

^[110] See R v Keane [1994] 1 WLR 746, 751–2.

^[111] Martin, above n 49, 82.

^[112] See, eg, R v Meissner (1996) 76 A Crim R 81, 85; R v Rusmanto [1997] NTSC 29; (1997) 6 NTLR 68; R v Cox (No 3) [2005] VSC 249; R v Mokbel (Ruling No 1) [2005] VSC 410; R v Khazaal [2006] NSWSC 1061; R v G [2007] VSC 503; R v Benbrika & Ors (No 3) [2007] VSC 283.

^[113] See, eg, Transcript of Proceedings, R v Bebic, (New South Wales Court of Criminal Appeal, No 2146A of 1981, Samuels JA, Nagle CJ and Cantor J, 27 May 1982) 4-5; R v Rusmanto [1997] NTSC 29; (1997) 6 NTLR 68, [12]; R v Cox (No 3) [2005] VSC 249, [7], [13]; R v Mokbel (Ruling No 1) [2005] VSC 410, [19].

^[114] R v Francis [2004] NSWCCA 85.

^[115] Jill Hunter, Camille Cameron and Terese Henning, Litigation (Lexis Nexis, 2005) 362.

^[116] [2004] NSWCCA 85; (2004) 145 A Crim R 233, 237[23]. A similar issue arose in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 where the majority of the High Court held that the sensitive material in question was capable of falling outside PII. The High Court, despite the Attorney-General’s concession that the prosecution and defence lawyers could have inspected the items with appropriate undertakings to assist the court to determine its relevance, did not avail itself of this. The High Court, having inspected the material, four of the judges (Gibbs CJ, Wilson, Brennan and Dawson JJ) concluded that the items were covered by PII and ‘formed the clear view that none of the documents is relevant to the issues at the trial or could have been used for the purpose of cross-examining the Crown witnesses’: 469. The majority accepted they did ‘not discount the significance of the argument that the parties may be more able than the members of the court to discern the possible relevance of material in a trial of this kind, but we remain satisfied that the material would not assist the appellants’: 469. Murphy J disagreed and thought PII did not apply owing to the potential significance of the material. Murphy J was troubled by not having heard from the parties. ‘If the defence, or both parties, could assist the court to a conclusion that the material would have been of assistance to the defence, it is a grave injustice to preclude them from doing so. If, however, the documents would not have assisted the defence, then it would be more satisfactory and more just if such a conclusion were to be reached after having the assistance of both parties. In my opinion, it is an injustice to both the Crown and the accused and casts a further shadow over this case that the court makes a decision without the proffered assistance of both prosecution and defence. I find it a strange and disturbing case’. See 470. See further Elias Magner, ‘Is a Terrorist Entitled to the Protection of the Law’ [1988] SydLawRw 5; (1988) 11 Sydney Law Review 537, 550-8.

^[117] R v Mokbel (Ruling No 1) [2005] VSC 410.

^[118] Ibid [24].

^[119] Ibid.

^[120] R v H [2004] UKHL 3; [2004] 2 AC 134, 150.

^[121] In M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863, [13] the court explained how a special advocate may, before the Special Immigration Appeals Commission, be provided with closed material, attend closed hearings, seek further information, ensure that the evidence is tested, object to evidence and other information being kept from the appellant, make submissions as to why statutory requirements have not been complied with and generally protect the interests of the appellant.

^[122] In some situations, the special advocate is precluded from even meeting with the individual or his or her lawyers.

^[123] See, eg, Whealy, above n 92, 757 where he writes of the ‘ever increasing appearance of secrecy’ in the criminal investigation and trial process.

^[124] Rebecca Scott Bray, ‘Executive Impunity and Parallel Justice? The United Kingdom Debate on Secret Inquests and Inquiries’ (2012) 19 Journal of Law and Medicine 569.

^[125] Ibid 569.

^[126] Ibid.

^[127] Described as the ‘deliberate forfeiture of a fundamental right’: Al-Rawi v Security Service [2011] 3 WLR 388, [92] (Lord Kerr). See also Bray above n 124, 592.

^[128] This is called the Special Immigration Appeals Commission, established under the Special Immigration Appeals Commission Act 1997 (UK).

^[129] This role followed almost passing obiter comments by the European Court of Human Rights in Chahal v United Kingdom [1996] ECHR 54; (1997) 23 EHRR 413, [131] which endorsed the use of special advocates. This ‘ill considered’ reference has been criticised: See, eg, Jenkins, above n 99, 282–304.

^[130] See, eg, Secretary of State for the Home Department v M [2004] Civ 324, [13]; [17]; [34].

^[131] See John Ip, ‘The Rise and Spread of the Special Advocate’ [2008] Public Law 717.

^[132] See, eg, Secretary of State for the Home Department v Rehman [2003] 1 AC 153, 164-165 [31]–[32]; R v Shayler [2002] UKHL 11; [2003] 1 AC 247, 274[34].

^[133] See, eg, Special Immigration Appeals Act 1997 (UK) s 6; Terrorism Act 1997 (UK) s 5; Anti-Terrorism, Crime and Safety Act 2000 (UK) s 70. The use of special advocates has now been extended by Part II of the Justice and Security Act 2013 (UK).

^[134] There have been several decisions of the House of Lords and now the UK Supreme Court leading up to Al-Rawi v Security Service [2011] 3 WLR 388 and Tariq v Home Office [2011] UKSC 35; [2012] 1 AC 452 as to whether the use of special advocates in an ex parte procedure complies with the European Convention on Human Rights. Any discussion of this complex line of authority is beyond the scope of this article.

^[135] [2004] UKHL 3; [2004] 2 AC 134.

^[136] R v H [2004] UKHL 3; [2004] 2 AC 134, 150 [22].

^[137] Ibid 150–1 [22]. See further below the discussion in Part III (iv).

^[138] R v H [2004] UKHL 3; [2004] 2 AC 134, 151 [22].

^[139] Namely, ‘unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant’. See R v H [2004] UKHL 3; [2004] 2 AC 134, 151 [22].

^[140] The cost of special advocates in the current climate of austerity is a real issue, especially in light of the demands upon the already overstretched legal aid regime in both Australia: See, eg, Rachel Wells and Henrietta Cook, ‘Funding Crisis Hits Legal Aid’, The Age (online), 30 November 2012 <http://www.theage.com.au/victoria/funding-crisis-hits-legal-aid-20121130-2amk2.html> Jane Lee, ‘Legal Aid Funds Stoush Halts Trials’, The Age (online), 2 May 2013 <http://www.theage.com.au/victoria/legal-aid-funds-stoush-halts-trials-20130502-2ivej.html> David Neal, ‘The Continuing Crisis in our Legal Aid’, The Age (online), 18 May 2013 <http://www.smh.com.au/comment/the-continuing-crisis-in-our-legal-aid-20130517-2js2m.html> Jane Lee, ‘Law Bodies Demand Answers on Legal Aid Crisis’, Sydney Morning Herald (online), 14 August 2013 <http://www.smh.com.au/federal-politics/federal-election-2013/law-bodies-demand-answers-on-legal-aid-crisis-20130813-2rulg.html> Miles Kemp, ‘DIY Justice as South Australian Legal Costs too Much for Many’, The Advertiser (online), 21 October 2013 <http://www.adelaidenow.com.au/news/south-australia/diy-justice-as-south-australian-legal-costs-too-much-for-many/story-fni6uo1m-1226743505317?nk=8e34e3c184117460fe4872d6c6301290> and England: See, eg, Clare Dyer, ‘Poor Suffering Most as Legal Aid is “Scraped to the Bone” Say Judges’, The Guardian (online), 24 April 2006

<http://www.theguardian.com/politics/2006/apr/24/law.constitution> Jon Robins, ‘Legal Aid in Crisis as Clients are Abandoned’, The Guardian (online), 8 October 2006 <http://www.theguardian.com/business/2006/oct/08/money.observercashsection> David Barrett, ‘Chris Grayling’s Legal Aid Cuts will “Destroy” System, Warn Barristers’, The Telegraph (online), 31 October 2013

<http://www.telegraph.co.uk/news/uknews/crime/10418618/Chris-Graylings-legal-aid-cuts-will-destroy-system-warn-barristers.html> David Lammy, ‘Grayling’s Cuts to Legal Aid are Both Unnecessary and Calamitous’, The Independent (online), 3 March 2014 <http://www.independent.co.uk/voices/comment/graylings-cuts-to-legal-aid-are-both-unnecessary-and-calamitous-labour-should-reverse-them-9166504.html> Editorial, ‘Legal Aid: The Quiet Death of English Justice’, The Guardian (online), 8 March 2014 <http://www.theguardian.com/commentisfree/2014/mar/07/legal-aid-the-quiet-death-of-english-justice> Jamie Doward, ‘Legal Aid Cuts Leave Family Courts in Chaos, Experts Say’, The Guardian (online), 30 March 2014

<http://www.theguardian.com/law/2014/mar/29/legal-aid-cuts-family-courts-children> Owen Bowcott, ‘Fraud Trial Halted Due to Lawyers Boycott over Legal Aid Cuts’, The Guardian (online), 1 May 2014 <http://www.theguardian.com/law/2014/may/01/fraud-trial-halted-lawyers-legal-aid-cuts> ).

^[141] JUSTICE, Secret Evidence (June 2009), [256], [307], cited in Glover above n 109, 312.

^[142] R v H [2004] UKHL 3; [2004] 2 AC 134, 151 [22]. Lord Bingham was alluding to Ward v Special Criminal Court [1998] IEHC 48; [1999] 1 IR 60.

^[143] Roberts v Parole Board [2005] 2 AC 738, 803 [144] (Lord Carswell).

^[144] See, eg, M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863; Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015.

^[145] See, eg, A v HM Treasury [2008] EWCA Civ 1187; [2009] 3 WLR 25, 47-8 [58]-[60]; R (AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287; [2009] 1 WLR 2049, 2062-4 [37]–[38].

^[146] Chief Constable and Another v YK [2010] EWHC 2438 (Fam).

^[147] See, eg, Malik v Manchester Crown Court [2008] EWHC 1362; [2008] 4 All ER 403.

^[148] See, eg, R v Austin [2009] EWCA Crim 1527; R v Mayers [2009] 1 WLR 1915, 1920–1 [10].

^[149] See, eg, John Von Doussa QC, ‘All under control? Recent Issues in Australia’s Legal Response to Counter-Terrorism’ (Speech delivered at the Human Rights and Equal Opportunity Commission Forum, Sydney, 13 November 2006).

^[150] See, eg, R v Khazaal [2006] NSWSC 1061, [51]; State of NSW v Public Transport Corp (No 3) [2011] NSWCA 200. In Commissioner of Police v Sleiman and AVS Group of Companies [2011] NSWCA 21, the NSW Court of Appeal held that whilst the particular legislation in question prevented the appointment of a special advocate: See [169]–[195], counsel with functions similar to amicus curiae could be appointed. See [183]–[185]; [188]–[189].

^[151] See, eg, Casino Control Act 1991 (Vic) s 74B; Racing Act 1958 (Vic) s 35F; Criminal Organisations Control Act 2012 (Vic) s 79; Private Security Act 2004 (Vic) s 150B. See also the role of ‘Criminal Organisation Public Interest Monitor’ established under the Criminal Organisation Act 2009 (Qld) and considered by the High Court in Condon v Pompano Pty Ltd (2013) 87 ALJR 458 to assist in the appropriate use of criminal intelligence in the ex parte procedure under that Act. The value of such a role in the absence of the affected party and/or their lawyer remains questionable.

^[152] [2006] NSWSC 586; (2006) 163 A Crim R 475.

^[153] Even though Lodhi concerned the issue of disclosure under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), which sets out its own statutory regime for the disclosure of information in a Commonwealth criminal proceeding, quite apart from normal public interest immunity claims, Whealy J clarified that also in ‘ordinary public interest immunity claims’ the court and defendant may be assisted by the appointment of special counsel, because in either situation, affidavit material may be received by the court on a confidential basis. See Whealy, n 92, 750.

^[154] Ibid.

^[155] Ibid.

^[156] Ibid.

^[157] Ibid.

^[158] Ibid 751.

^[159] Ibid 757.

^[160] [2011] NSWCCA 247; (2011) 221 A Crim R 384.

^[161] [2011] NSWCCA 247; (2011) 221 A Crim R 384, 406 [67].

^[162] Roberts and Zuckerman, above n 8, 329.

^[163] Malik v Manchester Crown Court [2008] EWHC 1362; [2008] 4 All ER 403, [105], cited in Secretary of State for the Home Department v AHK [2009] EWCA Civ 287, [23].

^[164] See Glover, above n 109, 315; Whealy, above n 76, 30.

^[165] Glover, above n 109, 316.

^[166] See, eg, the robust approach shown by Newman J in R v Sutherland:See Transcript of Proceedings, R v Sutherland and Others, (20 July 2002 (Nottingham Crown Court, No T20027203, Newman J, 29 January 2002) ) and Judge Smedley QC in the Matrix Churchill trial (see ‘Sir Brian Smedley’, The Telegraph (London) 2 May 2007; see also generally, footnotes 8 and 34.

^[167] See, eg, Ben Saul, ‘Security and Fairness in Australian Public Law’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concept and Context (Cambridge University Press, 2014) 93, 102–9; Canada v Ribic [2005] 1 FCR 33, [19]. In Air Canada v Secretary of State for Trade [1983] 2 AC 394, 395 the court went as far as to state that where a government official has provided an affidavit in good faith asserting the need for PII to apply, the court should give absolute deference to it.

^[168] Al-Rawi v Security Service [2011] 3 WLR 388, 417 [93].

^[169] Code and Roach, above n 80, specifically discuss the Canadian security certificate procedure enacted under its Immigration and Refugee Protection Act, regarding the procedure surrounding the determination that a foreign national is not to be admitted to Canada on the grounds of security.

^[170] Code and Roach, above n 80, 95.

^[171] Ibid.

^[172] Ibid.

^[173] Ibid.

^[174] These comments were made in relation to the Canadian Immigration and Refugee Protection Act relating to the issuing of certificates of foreign national inadmissibility on the grounds of security. However, public interest immunity claim determinations, Canadian judges hear the government’s evidence in support of the certificate ex parte. See the Hon James Hugessen, ‘Remarks’, in David Daubney et al (eds), Terrorism, Law and Democracy: How is Canada Changing After September 11? (Les Editions Themis, 2002) 384-385, cited in Code and Roach, above n 80, 96.

^[175]See, eg, Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 (House of Lords Paper No 64/House of Commons Paper No 395, 2010) 22-24 [66]-[73]; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Nineteenth Report) (House of Lords Paper No 157/House of Commons Paper No 394,,2007) [200]-[205].

^[176] Santow and McGarrity, above n 99, 146.

^[177] Ormerod, above n 7, 34.

^[178] This argument was advanced by Hugessen, see above n 174. One UK special advocate quit, stating he did not wish to give a ‘fig leaf of respectability and legitimacy’ to an ‘odious’ process. See Lisa Burton and George Williams, ‘What future for Australia's Order Control Regime’ (2013) 24 Public Law Review 182.

^[179] [2005] 2 AC 738.

^[180] Ibid 786 [93].

^[181] Ibid 784 [88]. See also Aileen Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73 Modern Law Review 836, 838.

^[182] See Adrian Zuckerman, ‘Closed Material Procedure – Denial of Natural Justice: Al Rawi v Security Service [2011] UKSC 34’ (2011) 30 Civil Law Quarterly 345–59 for a discussion of the various judgments.

^[183] [2011] 3 WLR 388.

^[184] Indeed, the parties to the proceedings in light of R v H [2004] UKHL 3; [2004] 2 AC 134 accepted that the ex parte PII system and the use of special advocates was permissible. See 433 [150]. Lord Dyson, however, noted his reservation that the PII system ‘is not perfect’: See 406 [49].

^[185] There is a fundamental distinction between the use of secret or sensitive material as substantive evidence and a PII application. See, eg, Al Rawi v Security Service [2011] 3 WLR 388, 404 [41] (Lord Dyson); Condon v Pompano Pty Ltd (2013) 87 ALJR 458, 501–2 [204]; Parliament of South Australia, above n 219, 21. In the first case the material is used but its existence is known only to the party adducing it, the court and any special advocate. In the second, the result of the successful PII application is that the material is withheld from the other side and it is not used in court in any way. If the PII application is unsuccessful, the unsuccessful party has to make the difficult choice between allowing the material to be made publicly available or abandoning the prosecution or action in question. See, eg, Zuckerman, above n 182, 357.

^[186] [2011] 3 WLR 388, 411 [72] (Lord Hope).

^[187] [2011] 3 WLR 388, 402-3 [36]-[38], 405 [45] (Lord Dyson). See also 412 [76] (Lord Hope); 413-4 [82] (Lord Brown); 417 [94] (Lord Kerr). Cf 433 [150]–[151]; 441–2, [185]–[186] (Lord Clarke).

^[188] See, eg, Joint Committee on Human Rights, Sixteenth Report, above n 175, [54]-[73]; Joint Committee on Human Rights, Nineteenth Report, above n 175, [183]-[212]. See also Joint Committee on Human Rights, Prevention of Terrorism Bill: Preliminary Report (HL Paper No 61/House of Commons Paper No 389, 2005) [14]; Joint Committee on Human Rights, Report on First Control Order Renewal (Joint Committee on Human Rights Committee Publications, 2006) [69]–[78].

^[189] See, eg, Martin Chamberlain, ‘Special Advocates and Procedural Fairness in Closed Proceedings' (2009) 28 Civil Justice Quarterly 314. See also Joint Committee on Human Rights, Nineteenth Report, above n 175, [192]–[193]; Special Advocates, Response to Justice and Security Green Paper (16 December 2011), 15 <https://adam1cor.files.wordpress.com/2012/01/js-green-paper-sas-response-16-12-11-copy.pdf>.

^[190] Joint Committee on Human Rights, Nineteenth Report, above n 175, [210], quoted in Al-Rawi v Security Service [2011] 3 WLR 388, 403, [37] (Lord Dyson). It is notable that, despite such criticisms, the UK Parliament in response to El Rawi passed the Justice and Security Act 2013 (UK) that extends closed court procedures and the use of ‘secret’ evidence to civil trials. See further Adrian Keane and Paul McKeown, Modern Law of Evidence (Cambridge University Press, 10^th ed, 2014) 606–8.

^[191] Roberts and Zuckerman, above n 8, 330.

^[192] Peter Murphy, Murphy on Evidence (Oxford University Press, 10^th ed, 2007) 423.

^[193] Roberts and Zuckerman, above n 8, 330.

^[194] See, eg, Owen Bowcott and Ian Cobain, ‘Secret Courts: The Essential Guide’, The Guardian (online), 25 September 2012

<http://www.theguardian.com/law/2012/sep/25/secret-courts-the-essential-guide> .

^[195] Von Doussa, above n 149. See also Secretary of State for the Home Department v MB and AF [2007] UKHL 46; [2007] 3 WLR 681, 712-713, [65]-[67] (Baroness Hale); Alex Carlile, ‘Ken Clarke’s Case is Sound’, The Guardian, 28 June 2014.

^[196] Chahal v United Kingdom [1996] ECHR 54; (1997) 23 EHRR 413, [131].

^[197] See, eg, A v United Kingdom (2009) EHRR 29.

^[198] Law Institute of Victoria, ‘Ethics Guidelines Undertakings’ (30 January 2014) <http://www.liv.asn.au/PDF/For-Lawyers/Ethics/2014-Guidelines-on-Undertakings> .

^[199] See, eg, DPP v Special Criminal Court [1998] IEHC 48; [1999] 1 IR 60, 74–5; R v G & B [2004] EWCA Crim 1368; [2004] 1 WLR 2932; AK v Secretary of State for Home Department [2013] EWHC Admin 1426, [23]-[28].

^[200] [1995] 1 WLR 613.

^[201] Ibid 616–17. David Josse QC in comments to the authors strongly agreed with these observations.

^[202] See, eg, Rees v Sinclair [1974] 1 NZLR 180, 182–3, Giannerelli v Wraith (1988) 165 CLR 543, 556 (Mason CJ); Rondel v Worsley [1967] 1 QB 443, 502 (Lord Denning MR); Rondel v Worsley [1969] 1 AC 191, 227–8 (Lord Reid).

^[203] See, eg, Australian Bar Association, Model Rules (at date) r 1.; Bar Standards Board, Code of Conduct of the Bar of England and Wales (at date) r 3

^[204] See, eg, David Ipp, ‘Lawyers Duties to the Court’ (1988) 114 Law Quarterly Review 63, 83; Marilyn Warren, ‘The Duty owed to the Court – Sometimes Forgotten’, (Speech delivered at the Judicial Conference of Australia Colloquium, Melbourne, 9 October 2009), <http://www.jca.asn.au/ attachments/2009OriginalKeynoteAddress.pdf>

^[205] Code and Roach, above n 80, 110.

^[206] [2014] 1 WLR 1071.

^[207] Ibid 1078 [27]. Moses LJ drew on the established use of confidentiality rings in cases involving commercial sensitivity before the Competition Appeal Tribunal: 1078 [26]. Such arrangements are also accepted in proceedings involving wardship or child welfare (see C v C (Court of Protection: Disclosure) [2014] 2 WLR 2731, 2737-28 [21]-[24]). Moses LJ’s view was doubted in in AK v Secretary of State for Home Department [2013] EWHC Admin 1426, [22]. See further Keane and McKeown, above n 190, 605-6.

^[208] See, eg, Transcript of Proceedings, R v Quentin Charles Coff (Supreme Court of South Australia, King CJ, 22 February 1993) 2.5; Transcript of Proceedings, R v Turner (District Court of South Australia (Allan DCJ, 1993) (followed King CJ); Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514, 523.

^[209] [1998] IEHC 48; [1999] 1 IR 60.

^[210] The precise nature of this information was not made entirely clear but it must have been of a highly sensitive nature. Prosecution counsel made clear that, notwithstanding the gravity of the alleged offence, the prosecution would rather abandon the entire case against Ward than release the sensitive information if ordered to do so.

^[211] [1998] IEHC 48; [1999] 1 IR 60, 66. Carney J on appeal observed: ‘Two propositions seem to me to be so obvious and fundamental under our system of constitutional law and adversarial justice that I propose simply to state them and move on. They are: 1. There can be no question of any member of An Garda Siochance deciding that any material might be withheld from disclosure to the Court or the defence. 2. There can be no question of Counsel or solicitor for the prosecution deciding what material might or might not be of assistance to the defence’. The Supreme Court of Ireland on appeal suggested that Carney J ‘may have gone further than he intended’ and held that prosecution counsel acting as a minister of justice must have a role in disclosing relevant material to the defence and also in raising claims of public interest immunity without the court having necessarily to examine the documents in question itself. See Ward v Special Criminal Court [1998] IEHC 48; [1999] 1 IR 60, 87.

^[212] The Special Criminal Court’s order is set out in Ward v Special Criminal Court [1998] IEHC 48; [1999] 1 IR 60, 66.

^[213] [1998] IEHC 48; [1999] 1 IR 60, 74–5.

^[214] [1984] HCA 85; (1984) 154 CLR 404.

^[215] The accused were convicted of conspiring to murder an extreme right wing political figure but their alleged connection to the Hilton Hotel Bombing during a Commonwealth Heads of Government conference in which three people had been killed was an underlying theme at their trial and was highlighted by the prosecution. See Magner, above n 116, 537–8. See also David Humphreys, ‘How ASIO was Caught on the Hop’, Sydney Morning Herald (online), 1 January 2008 <http://www.smh.com.au/news/national/how-asio-was-caught-on-the-hop/2007/12/31/1198949746451.html> .

^[216] Richard Seary was, as Murphy J scathingly commented, ‘The record shows that Richard Seary, drug addict, informer and mentally disturbed fantasizer, must be one of the most unreliable persons ever presented as the principal prosecution witness on a charge of serious crime’.: See (1984) CLR 404, 425. The accused were later pardoned after a judicial inquiry cast doubt on the reliability of Seary’s testimony. See Humphreys, above n 215.

^[217] [1984] HCA 85; (1984) 154 CLR 404, 469. See further above n 116; Magner, above n 116, 550–8.

^[218] [2009] HCA 4; (2009) 237 CLR 501.

^[219] Parliament of South Australia, Report of the Legislative Review Committee on its Inquiry into Criminal Intelligence (2011) lists no fewer than eight Acts (see 15) and nine situations with two more pending (see 18–19) in South Australia in which criminal intelligence could be used under existing statutes to refuse, revoke or limit privileges or in an organised crime context. Similar statutes exist elsewhere in Australia. See, eg, Criminal Organisation Act 2009 (Qld) s 59 considered by the High Court in Condon v Pompano Pty Ltd (2013) 87 ALJR 458.

^[220] [2009] HCA 4; (2009) 237 CLR 501, 513, [10] (French CJ).

^[221] The use of criminal intelligence is seen as a necessary evil (see, eg, Parliament of South Australia, above n 219, 7; 81–2) and Australian parliaments have increasingly made provision for its use (see above n 219). Its use has received the qualified endorsement of the High Court (see Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Limited & Another v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; Condon v Pompano Pty Ltd (2013) 87 ALJR 458) and there is ‘no constitutional impediment’ to its use (see Parliament of South Australia, above n 219, 56). However, the use of criminal intelligence as ‘evidence’ raises major issues of principle and has been criticised as it ‘offends several fundamental rights’ (Anthony Gray, ‘Constitutionally Protected Due Process and the use of Criminal Intelligence Provisions’ [2014] UNSWLawJl 5; (2014) 37 University of New South Wales Law Journal 125, 139–53; 160–1; Anthony Gray, ‘Constitutionality of Criminal Organisation Legislation’ (2010) 17 Australian Journal of Administrative Law 213, 223–35; Steven Churches and Sue Milne, ‘Kable, K-Generation, Kirk and Totani: Validation of Criminal Intelligence at the Expense of Natural Justice in Ch III Courts’ (2010) 18 Australian Journal of Administrative Law 29; Greg Martin, ‘Jurisprudence of Secrecy: Wainohu and Beyond’ (2012) 14 Flinders Law Journal 189, 205; Neighbour, above n 105. It is beyond the scope of this article to consider the complex issues as to the increasing use of ‘secret material’ in closed court procedures.

^[222] [2009] HCA 4; (2009) 237 CLR 501.

^[223] [2009] HCA 4; (2009) 237 CLR 501, 513 [10].

^[224] See, eg, R v Scott (1990) 61 CCC (3d) 300, 314; Roberts v Parole Board [2005] 2 AC 738, 772 [49]; R v Davis [2006] EWHC 790; [2006] 1 WLR 3130, 3134-5, [8]–[12] (Court of Appeal); R v Davis [2008] 1 AC 1128, 1147-8 [26]–[27] (Lord Bingham),;1150–1 [36]–[39]; 1153–4 [44]–[45] (Lord Roger), 1155 [52] (Lord Carswell).

^[225] See, eg, R v Samuel [1988] QB 615.

^[226] [2006] NSWSC 586; (2006) 163 A Crim R 475.

^[227] This Act was passed in the aftermath of the September 11 terrorist attacks. Though the constitutionality of the Act has been upheld (see R v Lodhi (2007) 179 A Crim R 470), the Act has been criticised on account of both its complexity (see, eg, Whealy above n 92, 745-8; Kumar above n 18, 864-6) and on policy for allowing the use of ‘secret’ material as evidence and the ‘greatest weight’ that the Act requires to be accorded to the protection of national security over all other interests. See, eg, Kumar, above n 18, 864; Anthony Gray, ‘Alert and Alarmed: the National Security Information Act 2004 [2005] UTasLawRw 5; (2005) 24 University of Tasmania Law Review 91, 91–109; 113.

^[228] R v Lodhi [2006] NSWSC 586; (2006) 163 A Crim R 475, 483–4 [34].

^[229] The concept of ‘vetting’ or security clearances for defence lawyers, in criminal proceedings even if confined to cases involving national security, is unpopular on grounds of policy (notably the lawyer’s privacy and infringing an accused’s ability to be defended by a lawyer of their choice),practicality and cost. See, eg, Australian Law Reform Commission, above n 5, 181 [6.23]–[6.25];196-8 [6.86]–[6.94]; Law Council of Australia, Submission to Bret Walker SC, Inquiry into the Operation of the National Security Information (Criminal and Civil) Proceedings Act 2004, 2013, 39–42 [154]–[164]. To date in Commonwealth terrorism prosecutions, defence lawyers have avoided having to seek security clearance, owing to the provision of suitable professional undertakings of confidence (Kumar, above n 18, 866). Any extension of security clearance to defence lawyers generally in PII claims in criminal cases would prove controversial and costly.

^[230] Defence lawyers in criminal proceedings are often and unfairly regarded with particular distrust and depicted as ‘immoral’, ‘slick’, ‘sleazy’ or ‘inherently disreputable’.See Abbe Smith, ‘Can You be a Good Person and a Good Prosecutor’ (2001) 14 Georgetown Journal of Legal Ethics 355, 357–61. This is typified in popular culture by, for example, The Simpsons character Lionel Hutz, an attorney who in several sketches farcically demonstrates a greater commitment to his own profit and success than competence, morality and upholding the good name of the legal profession.

^[231] See, eg, Law Council of Australia, above n 229, 13[44]; 14[48]; Warren, above n 208.

^[232] See Law Council of Australia, above n 229, 13–14 [43]–[48].

^[233] See I Munro, ‘Fight Looms on Security Checks’, The Age (online), 11 May 2003 <http://www.theage.com.au/articles/2003/03/10/1047144918599.html> Australian Law Reform Commission, above n 5, 301–303 [8.115]–[8.120].

^[234] Australian Law Reform Commission, above n 5, 303 [8.119].

^[235] See R v Samuel [1988] QB 615, 626 where it was held that for the police to refuse a solicitor access to a suspect in custody will rarely be entitled to believe a solicitor will knowingly and unlawfully pass on protected information and any grounds put forward would have to be specific to that solicitor.

^[236] R v Lodhi [2006] NSWSC 586; (2006) 163 A Crim R 475, 486 [44].

^[237] ‘Breach of an undertaking by a lawyer is regarded by courts and tribunals as an extremely serious matter, and in some instances may result in a civil contempt of court, or a finding of professional misconduct or unsatisfactory professional conduct’. See Law Institute of Victoria, above n 202. See also Law Council of Australia, above n 229, 13–14 [47]; R v Khazaal [2006] NSWSC 1353, [20].

^[238] See, eg, Summary Offences Act 1953 (SA) s 6AA which provides a maximum penalty of imprisonment for two years to a person who, without lawful excuse, discloses information that has been properly classified by the Commissioner as criminal intelligence under any Act.

^[239] There is also the fact that lawyers are ‘intelligent professional people, persons detained by the police are frequently not very clever’ and the expectation that a lawyer might ‘unwittingly’ or ‘inadvertently’ release sensitive material ‘seems to contemplate a degree of intelligence and sophistication in persons detained, and perhaps a naiveté and lack of common sense in solicitors, which we doubt often occurs’: R v Samuel [1988] QB 615, 626 (Hodgson J).

^[240] See, eg, Law Council of Australia, above n 229, 13–14 [43]–[48].

^[241]Victorian Bar, Rules of Conduct and Compulsory Continuing Professional Development Rules (as at 22 September 2009) r 1.

^[242] Glover, above n 109, 317.

^[243] [2004] UKHL 3; [2004] 2 AC 134, 147.

^[244] John Von Doussa, ‘Reconciling Human Rights and Counter-Terrorism: a Crucial Challenge’ (2006) 13 James Cook University Law Review 104, Part 2.

^[245] See, eg, Clare Barsby and David Ormerod, Commentary [to R v H], [2004] Criminal Law Review 863; Abrams, above n 11.

^[246] Ormerod, above n 37, 117.

^[247] Corker, above n 11.

^[248] Whealy, above n 76, 28.

^[249] Roberts v Parole Board [2005] 2 AC 738, 754 [18] (Lord Bingham).

^[250] R v Fisk (1996) 108 CCC (3d) 63, 126 WAC 81 (BCCA), a Canadian case regarding a claim of informant privilege in a security certificate procedure. The claim of informant privilege was heard in camera with defence counsel being given access to the informant’s handler’s notes and was then allowed to cross-examine the handler, all in the absence of the client. McEachern CJ on appeal approved of this procedure, provided defence counsel had proceeded with the consent of his client. See also Code and Roach, above n 80, 110.

^[251] R v Sussex Justices Ex parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256, 259 (Lord Hewart CJ).

^[252] Mohammed v Secretary of State of Defence [2014] 1 WLR 1071, 1077 [20] (Moses LJ).