An inherent jurisdiction to protect the public interest: from PII to ‘secret trials’

Abstract

The law of public interest immunity (PII), which permits the non-disclosure of material in evidence where its disclosure would harm the public interest, is well known to public lawyers. A series of cases on the topic of ‘secret trials’—criminal trials held wholly or in part in camera so as ensure the non-disclosure to the public of sensitive information which might otherwise emerge as part of the trial process—shows, however, that the law of public interest immunity should not be understood as a wholly sui generis body of law. Instead it is only one of what is potentially a range of tools possessed by the courts which have in common the end to which they are oriented (the protection of the public interest against disclosure of sensitive information), the mechanism by which they are prompted (a ministerial certificate stating that the public interest requires that certain information not become known to the public at large) and the legal authority by which they take place (the inherent jurisdiction of the courts). This paper in its first part defends that claim by reference to the relevant case law, outlining the law of PII (particularly as it relates to criminal trials) and the emergence alongside it of a body of case law on in camera trials which has at times struggled to differentiate itself from that on PII. By way of explaining that struggle, it explores the commonalities which exist between the two phenomena and argues that to emphasise these commonalities has contributed—and will further contribute in future—to the task of imposing upon the use of in camera trials the sorts of limits which have over time developed to restrict the use of PII. The paper’s second part considers the distinctions between the two mechanisms in terms of the circumstances in which they will be requested and the interaction between them, showing how the emergence of the in camera order alongside the better-known law of PII could make possible prosecutions which would otherwise be abandoned. The third section considers a second set of differences between the two, centred around each one's relationship with the constitutional principles of open and natural justice, and explains how that difference manifests itself in more restrictive criteria for the making of an in camera order than for the grant of PII. Finally, it examines the judicial belief, upon which the possibility of using the inherent jurisdiction to these ends is predicated, that neither of the procedural mechanisms are per se incompatible with the principle of natural justice.

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