Public interest immunity in criminal proceedings
Produced in partnership with David Jenkins of 3 Paper Buildings
Public interest immunity in criminal proceedings

The following Corporate Crime practice note produced in partnership with David Jenkins of 3 Paper Buildings provides comprehensive and up to date legal information covering:

  • Public interest immunity in criminal proceedings
  • Public interest immunity and disclosure
  • Determining a public interest immunity application
  • Categories of public interest
  • Procedure
  • Special independent counsel (special advocates)
  • Challenging PII material in the High Court

Public interest immunity and disclosure

The right to a fair trial is predicated on the principle of equality of arms of which an essential element is access to information collected by the prosecution in the course of an investigation. Disclosure is determined by a statutory single test whereby any material that might reasonably be considered capable of undermining the prosecution case or assisting the case for the defence should be disclosed. The right to disclosure of this material is limited by the doctrine of public interest immunity (PII), which allows the court to withhold relevant information from the defence where it decides it is in the public interest to do so. The court must apply a balancing exercise to determine the interests of the defendant in receiving all the information relevant to their defence with the interest of the state in protecting sensitive information.

See Practice Note: Obtaining disclosure of unused evidence.

The doctrine was developed in the civil courts where it was determined that documents need not be produced where it was in the public interest to withhold them. The balancing exercise was adopted in criminal cases and modified to allow that where disclosure may prove a client's innocence or avoid a miscarriage of justice the balance should fall in favour of disclosure. PII was previously called Crown privilege.

The balancing exercise was subject to scrutiny in

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