Disclosure Manual: Chapter 13 - Making a PII Application

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

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

If the disclosure test is applied in the robust manner endorsed by the House of Lords in R v H and C [2004]UKHL 3, applications to the court for the withholding of sensitive material should be rare. Fairness ordinarily requires that material which weakens the prosecution case or strengthens that of the defence should be disclosed. There should only be derogation from this golden rule in exceptional circumstances.

Following R v H and C, PII applications should only be made where:

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

Categories of PII application

The Criminal Procedure Rules (Part 15) distinguish between three classes of case:

Type one: the prosecutor must give to the defence notice of application and indicate at least the category of the material held. The defence must have the opportunity to make representations, and there is an inter partes hearing conducted in open court.

Type two: the prosecutor must give to the defence notice of application, but the nature of the material is not revealed and/or the prosecutors explanations, because to do so would have the effect of disclosing that which the prosecutor contends should not in the public interest be disclosed. The defence have the opportunity to address the court on the procedure to be adopted but the application is made to the court in the absence of the defendant or representative.

Type three: the prosecutor makes an application to the court without notice to the defence because to do so would have the effect of disclosing that which the prosecutor contends should not in the public interest be disclosed - a "highly exceptional" class.

To maintain the confidence of the court, care must be taken to ensure that the appropriate form of application is made. For further instruction on the making of a PII application, including guidance on preparing the application, prosecutors should refer to Annex C.

Prosecution appeals

Part nine of the Criminal Justice Act 2003 provides an interlocutory right of appeal against certain rulings by a Crown Court judge. The CPS legal guidance on Appeal Prosecution Rights includes instruction on appealing a public interest ruling.

Miscellaneous issues

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

Occasionally the defence may challenge the admissibility of prosecution evidence on the basis of lack of proof of an officer's belief, such as reasonable grounds for arrest, or a fact such as integrity of the source of evidential material. Where such background evidence might be too sensitive to give in the presence of the defence, a voire dire, rather than a PII application should be held (H and C). An independent senior officer must be used in observation post cases – R v Johnson (Kenneth) [1988] 1 WLR 1377. The officer may be required to give evidence in support of its use in the case.

There may be cases where the prosecutor identifies material which satisfies the disclosure test and to which PII attaches but the continuation of the prosecution would demand disclosure having regard to the overriding duty to ensure fairness in the trial process. If it is not possible to disclose the material in a way that does not compromise its sensitivity (e.g. through redaction, being summarised or the prosecutor making an admission about the substance of the material), it should either be disclosed in full or the proceedings abandoned. Before such action is taken there must be consultation between the CPS (Unit Head or above) and police (ACC or above) and when appropriate, the owners of sensitive third-party material at a senior level. Where agreement cannot be reached, the material should be placed before the court for a ruling.

Sensitive material and summary trials

If a case before a magistrates' court raises complex and contentious PII issues and the court has discretion to send the case to the Crown Court, the case may not be suitable for summary trial. magistrates' court files containing sensitive material should normally be handled by CPS prosecutors unless specific approval is given by the unit head for the case to be handled by a particular agent. The agent will have no authority to make an application to withhold disclosure without approval of the unit head.

If sensitive material in a summary trial satisfies the disclosure test, the procedure for application to the court is as per Part 15 of the Criminal Procedure Rules. Under section 14 of the CPIA, the accused may ask the court to review any earlier order for non-disclosure. Otherwise, this guidance will be equally relevant to sensitive material in summary trials, and similar considerations and processes apply.

Hearing to inform the court of sensitive material

The CrimPR Part 3.11 sets out the procedure if the prosecutor has, or is aware, of material whose revelation to the public or defendant would give rise to a real risk of serious prejudice to an important public interest if revealed but which the prosecutor does not consider meets the test of disclosure under part I of the CPIA.

This is a separate process to a PII applications. If the sensitive material meets the test for disclosure then this process under part 3.11 does not apply.

The process now set out under part 3.11 was previously known as a “notification hearing” and was considered by the Court of Appeal in R v Ali [2019] EWCA Crim 1527 in which the court said that these hearings were required in exceptional circumstances where “if the judge is not kept informed, there is a risk that the material in question will inadvertently impact on the fair management of the trial and thus run counter to the ends of justice”. The Court of Appeal invited the Criminal Procedure Rules committee to make rules to govern the process. The CrimPR was amended on 6th April 2020 to set out the process for such applications.

Part 3.11 states that the prosecutor must ask for a hearing to inform the court of the sensitive material if the prosecutor thinks it is necessary to avoid either:

• potential unfairness to the defendant in the conduct of the trial;
• potential prejudice to the fair management of the trial; or
• potential prejudice to that public interest

The CrimPR does not set out examples for each of the limbs, each case will need to be considered on its own merits. However, the following are a non-exhaustive list of examples of circumstances in which such a hearing may be appropriate if the criterion set out in the CrimPR is satisfied:

• where disclosure of the material to the court is required to correct a misunderstanding of fact which otherwise could lead to potential unfairness to the defendant (e.g. to correct a misunderstanding by the court on the way the prosecution has put its case)
• where there is a CHIS whose name or identity appears on the face of the papers;
• where the defendant is a CHIS, particularly a participating CHIS; and
• where the line of defence may lead to the revelation of a covert operational technique in these proceedings which could undermine ongoing law enforcement activities in other investigations into serious offences.

The limiting of the material provided to the court to that which is needed to achieve the purpose of the hearing is consistent with judicial comment from the House of Lords in R v H and C [2004] UKHL 3 that unused material which is either neutral or damaging to the defendant should not usually be brought to the attention of the court.

The court will direct the prosecutor what material it requires to be described or provided to make its determination. It is suggested, only in very rare circumstances should the revelation need to go beyond the category of material and headline information. However, it is good practice for the prosecutor to ensure that all the sensitive material is available at the hearing in the event that the court requires that it be viewed. Where directed to do so, the prosecution should inform the defence of the fact a hearing has taken place in words similar to the following:

"The prosecution are in possession of sensitive material which does not satisfy the disclosure test but which would prejudice an important public interest if revealed. The judge has been alerted to the existence of this material (in accordance with CrimPR 3.11) "

The court officer may keep any written representations or material received or arrange for the whole or any part of it to be kept by some other appropriate person, subject to any conditions that the court may impose (CPR 3.11 (4)(c)). In practice, there are often no secure storage facilities at court centres and so the prosecution should seek a direction that any sensitive material considered by the court should be securely stored by the police or other law enforcement agency.

It is good practice for the hearing to be recorded by the court so that an accurate record is retained of what representations are made by the prosecutor, the information and/or material provided to the court and the basis for decisions made by the court.

The court officer must not give notice to anyone other than the prosecutor of any directions given at the hearing.

At the next hearing the prosecution advocate should invite the judge to consider making it clear in open court that:

• the hearing to inform the court of sensitive material was not one where he or she was requested to rule on PII or decide a truly borderline issue of disclosability;
• submissions from the defence were not required; and
• he or she is aware of the basis on which material would be disclosable under the CPIA and when PII would justify withholding it; and
• nothing done was contrary to principles in Edwards and Lewis v UK [2011] ECHR 2267 and R v H and C.