Liberalism Essay

1721 words - 7 pages


The traditional common law tool to withhold information from the parties to a court case is Public Interest Immunity (PII). PII is a principle of English common law under which the courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest. The areas of public interest that may be protected by PII include: national security, international relations and the prevention and detection of crime. The categories of PII are not fixed, but the courts will not recognise new categories without clear and compelling evidence. An order that PII applies would usually be sought by the British Government to protect official secrets. However, the heads of the intelligence agencies are under a statutory duty to ensure that there are arrangements in place to ensure that no information is disclosed by the agencies except so far as it is provided for in statute. Whilst it is for the government or the security agencies to raise a claim for PII, in Conway v Rimmer, the House of Lords held that the courts retained the final decision of whether a PII disclosure should be upheld. Ultimately then, whilst Under Article 6 of the European Convention on Human Rights, relevant evidence should generally be disclosed to the parties, even in civil proceedings, this right is not absolute and limits on disclosure may be justified, for example, in the interests of justice or of national security in order to protect the public from harm.
The use of PII has been problematic in that, a claim in which evidence is excluded may be prevented from proceeding. For example, in Candruff v Rock, a majority of the Court of Appeal found that the case could not be litigated consistently with the public interest. The determination of the claim would have required the disclosure of sensitive information, such as the operational methods used by the police and how they made use of informer information. In order to investigate and adjudicate upon the claim, the court would have required this information, thus, the case was struck out. In order to resolve this problem, Parliament has made statutory provision for a mechanism through which sensitive material can be handled by the courts. This mechanism is known as a closed material procedure (CMP), and was first established to facilitate the hearing of national security sensitive deportation cases through the SIAC.

The CMP was introduced under the Special Immigration Appeals Act 1997. The CMP was first used in the context of immigration and deportation decisions, following the case of Chahal v United Kingdom, in which the European Court of Human Rights acknowledged that reliance on confidential information might be unavoidable where national security was at stake. It this case he court cited with approval a system used in Canada, which suggested that there could be a procedures which would both accommodate legitimate...

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