|UK/Home Office/Investigatory Powers Tribunal
Public-interest immunity (PII), formerly known as "crown privilege" is a principle of English common law which approximates to the more modern "national security". Under PII, UK courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure is alleged to be damaging to the public interest. This is an exception to the usual rule that all parties in litigation must disclose any evidence that is relevant to the proceedings.
In making a PII order, the court balance the public interest in the administration of justice (which demands that relevant material is available to the parties to litigation) and the public interest in maintaining the confidentiality of certain documents whose disclosure is judged to be damaging.
Seeking the order
An order that PII applies is usually sought by the UK government to protect official secrets. Where a minister believes that PII applies, he signs a PII certificate, which then allows the court to make the final decision on whether the balance of public interest was in favour of disclosure or not. Generally, a court will allow a claim of PII without inspecting the documents: only where there is some doubt will the court inspect the documents to decide whether PII applies.
Originally, a government minister was under a duty to advance a PII point where PII could be relevant, and the court took a certificate from a minister claiming PII as final and conclusive. However, over time, there has been an increase in both the ability of a minister to make a disclosure, notwithstanding the potential application of PII, and the ability of the courts to review a claim of PII.
PII was previously known as "Crown privilege", and derived from the same principle as the immunity of the Crown from prosecution before the Crown Proceedings Act 1947. However, PII is not limited to the UK monarchy and cannot be waived save in exceptional circumstances.
Widespread use (or examination) of the concept of PII might discredit the law, so it is generally reserved to exculpate or prevent exposure of senior deep politicians. A number of PII certificates were signed in relation to the prosecutions of individuals involved in the Arms-to-Iraq affair, a subject that was subsequently investigated in the Scott Report.
In April 2009 the former shadow home secretary, David Davis, asked how many MI6 authorisations to kill had been signed in recent years, he was told that the figure was confidential because "it would assist those unfriendly to the UK".
- Legal Guidance published by the Crown Prosecution Service on PII in criminal proceedings
- Reforming Public Interest Immunity
- The Use of Public Interest Immunity Claims in Criminal Cases
|1 December 2013
|A forensic examination of the legal shenanigans surrounding the 2012 trial of Asil Nadir. It clearly demonstrates how all branches of the Establishment can close ranks in defense of the indefensible. When gross illegalities on the part of government and its senior members must be hidden in the alleged Public or National Security interest, then the police, judges, ministers and senior civil servants can be relied upon to do whatever is necessary.