Law Report: Non-disclosure for protection of informants was not unfair: Regina v Keane - Court of Appeal (Criminal Divisonl) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Auld and Mr Justice Mitchell): 14 March 1994.

When deciding whether material withheld by the prosecution on the ground of public-interest immunity should be disclosed in the interests of justice, a trial judge would rule in favour of disclosure if the material might prove the defendant's innocence or avoid a miscarriage of justice.

The Court of Appeal dismissed the appellant's appeal against conviction before Judge Rogers QC and a jury of offences of having custody or control of counterfeit notes and counterfeiting materials and implements.

The appellant was arrested while driving a Mercedes car, belonging to another passenger, in which forged United States dollar notes and negatives for forging US dollars were found. His defence was that he knew nothing of the incriminating items in the car and that he had been set up by undercover officers and an informer. The trial judge was invited to order the prosecution to disclose the sources of information leading to the appellant's arrest so that the defence could put forward a tenable case in its best light.

The judge refused to order disclosure of information such as observation logs, ruling that positive assertions could be put to the police in cross examination, but it was for the witness to decide whether he could answer questions without divulging information which the Crown wished to protect. The appellant appealed, contending that the judge's ruling was wrong.

Mio Sylvester (Registrar of Criminal Appeals) for the appellant; Stephen Kramer (Customs & Excise Solicitor) for the Crown.

LORD TAYLOR, LCJ, said that the general rule was in favour of protecting the identity of informers. Following R v Davis and others (1993) 97 Cr App R 110, the Crown should notify the defence before the trial began that an ex-parte application was to be made to the court so that the trial judge could himself see material withheld and hear the Crown's reasons for not wishing to disclose it before making his ruling.

Ex-parte applications were contrary to the general principle of open justice in criminal cases. They were sanctioned in Davis solely to enable the court to discharge its function in testing a claim that public-interest immunity or sensitivity justified non-disclosure of material in the Crown's possession. Each member of the Court of Appeal had received and read the undisclosed material before the appeal was opened.

Where the prosecution relied on public- interest immunity or sensitivity, the court, when deciding whether disclosure was to be made and the scope of cross- examination, had to carry out a balancing exercise. If the disputed material might prove the defendant's innocence or avoid a miscarriage of justice, then the balance came down resoundingly in favour of disclosing it.

It was for the prosecution to put before the court only those documents which it regarded as material but wished to withhold. It was open to the defence to indicate to the prosecution a defence or an issue they proposed to raise to which material in the prosecution's possession might be of assistance, and if that was done the prosecution might need to reconsider what should be disclosed.

It would be an abdication of the Crown's duty for the prosecution, out of an over-abundance of caution, simply to dump all its unused material into the court's lap and leave the judge to sort through it all regardless of its materiality to the issues present or potential. Only that part which was both material in the prosecution's estimation and sought to be withheld should be put before the court for its decision. If in an exceptional case the prosecution were in doubt about the materiality of some documents or information, the court might be asked to rule on that issue.

When the court was seized of the material, the judge had to perform the balancing exercise by having regard on the one hand to the weight of the public interest in non-disclosure. On the other hand, he must consider the importance of the documents to the issues of interest to the defence, present and potential so far as they had been disclosed to him or as he could foresee them. The more full and specific the indication the defendant's lawyers gave of the defence or issues they were likely to raise, the more accurately both prosecution and judge would be able to

assess the value to the defence of the

material.

Having examined the material here, there was undoubtedly a public interest in not disclosing the material held by the Crown and that material, had it been disclosed, would not have assisted the defence at all. On the contrary it would have assisted the prosecution. No injustice was done to the appellant by his not having access to the documents seen by the court. Likewise the appellant was able to put his case in cross examination with no un-

fairness to him. The appeal must be

dismissed.