Public Interest Immunity in Protecting
Informants
The role of informants in an investigation is crucial as the information provided by an
informant may be the only piece of evidence or clue available to the law enforcement
agencies. So, it is critical that some clarity is drawn in identifying the rights of the
informants and how and when the law should protect them. It can be argued that
adding clarity to this area of law will inform and motivate informants to facilitate
investigations when required. The aim of this essay is to explore the role of law in
public interest immunity (PII) to protect informants as a class. As a result, this essay
will explore the rights of informants and the role of law in protecting them under the
principles of public interest immunity (PII). This essay will explore case law and
legislation to critically analyse the role of law in PII to protect informants as a class in
the following paragraphs. In doing so, this essay will argue that informants as a class
should be protected by the law under the principles of public interest immunity.
Generally, there is public interest in protecting the identity of those who provide
important information to the police, that is, the informants. As a result, the disclosure
of their identity or any material that has the potential to reveal their identity is
restricted through case law. However, deriving from English common law, a judge
has the discretion to reveal the identity of the informant if it helps establish the fact
that the accused in the relevant case is innocent. One of the statutory instruments
that applicable is section 21 of the Criminal Procedure and Investigations Act
1996 (CPIA 1996).
In R v Chief Constable of the West Midlands ex parte Wiley, it was Lord Templeman
who stated that, based on the principles of public interest immunity, the disclosure of
information can be denied which is pertinent to the case and also important in the
determination of the proceeding in question. Hence, the only reason to deviate from
this is if public interest demands for it. Therefore, there must be equality of arms in
public interest immunity (PII). The thrust of the principle of public interest immunity to
refuse disclosure of relevant material is on the ground that to do so would harm the
public interest. However, disclosure can be refused if material might be privileged,
, material might be lost, and material might be difficult to get hold of. In civil
proceedings, the procedure is carried out according to Order 24 of the Rules of the
Supreme Court and to withhold is specifically stated in rule 15 which states that,
“15. The foregoing provisions of this Order shall be without prejudice to any rule of
law which authorises or requires the withholding of any document on the ground that
the disclosure of it would be injurious to the public interest.”
It is clear from rule 15 that public interest is the ultimate factor to be considered in
cases of public interest immunity. For conciseness of argument, this essay will solely
focus on informants.
In criminal matters where the police refrains from disclosing the identity of the
informant to the defendant, there is an overlap between the principles of common
law of open justice which requires that maximum disclosure takes place as
established in R v Davis, Johnson and Rowe and Article 6 ECHR which is
demonstrated in the vase of R v H . In R v H, the House of Lords held that a trial
judge should take into account all the information that are available based on the
nature of the PII pursued as well as guaranteeing that the complete disclosure
process does not reveal more than is required given the context of the case.
A similar example is noted in the case of Al Rawi v Security Service, several men
claimed for damages as they have been detained by foreign forces including places
like Guantanamo Bay and claimed that the UK Security Service along with others
engaged in ill treatment. In return the UK Security Service stated that they refrained
from giving access to certain pieces of evidence and would rather be represented by
special advocates”. It was held in this case that if governmental bodies wanted to
rely on the argument of national security, they would need to rely on PII which gives
them the right to do so in relation to providing protection for State interests wherever
it is required. The case law discussed so far provides a general overview of the
attitude of the courts. However, what needs to be considered is when disclosure of
the identity of the informant based on interests of justice, the protection towards the
informant is still violated despite being justified by any legal reasoning or case law.
Informants
The role of informants in an investigation is crucial as the information provided by an
informant may be the only piece of evidence or clue available to the law enforcement
agencies. So, it is critical that some clarity is drawn in identifying the rights of the
informants and how and when the law should protect them. It can be argued that
adding clarity to this area of law will inform and motivate informants to facilitate
investigations when required. The aim of this essay is to explore the role of law in
public interest immunity (PII) to protect informants as a class. As a result, this essay
will explore the rights of informants and the role of law in protecting them under the
principles of public interest immunity (PII). This essay will explore case law and
legislation to critically analyse the role of law in PII to protect informants as a class in
the following paragraphs. In doing so, this essay will argue that informants as a class
should be protected by the law under the principles of public interest immunity.
Generally, there is public interest in protecting the identity of those who provide
important information to the police, that is, the informants. As a result, the disclosure
of their identity or any material that has the potential to reveal their identity is
restricted through case law. However, deriving from English common law, a judge
has the discretion to reveal the identity of the informant if it helps establish the fact
that the accused in the relevant case is innocent. One of the statutory instruments
that applicable is section 21 of the Criminal Procedure and Investigations Act
1996 (CPIA 1996).
In R v Chief Constable of the West Midlands ex parte Wiley, it was Lord Templeman
who stated that, based on the principles of public interest immunity, the disclosure of
information can be denied which is pertinent to the case and also important in the
determination of the proceeding in question. Hence, the only reason to deviate from
this is if public interest demands for it. Therefore, there must be equality of arms in
public interest immunity (PII). The thrust of the principle of public interest immunity to
refuse disclosure of relevant material is on the ground that to do so would harm the
public interest. However, disclosure can be refused if material might be privileged,
, material might be lost, and material might be difficult to get hold of. In civil
proceedings, the procedure is carried out according to Order 24 of the Rules of the
Supreme Court and to withhold is specifically stated in rule 15 which states that,
“15. The foregoing provisions of this Order shall be without prejudice to any rule of
law which authorises or requires the withholding of any document on the ground that
the disclosure of it would be injurious to the public interest.”
It is clear from rule 15 that public interest is the ultimate factor to be considered in
cases of public interest immunity. For conciseness of argument, this essay will solely
focus on informants.
In criminal matters where the police refrains from disclosing the identity of the
informant to the defendant, there is an overlap between the principles of common
law of open justice which requires that maximum disclosure takes place as
established in R v Davis, Johnson and Rowe and Article 6 ECHR which is
demonstrated in the vase of R v H . In R v H, the House of Lords held that a trial
judge should take into account all the information that are available based on the
nature of the PII pursued as well as guaranteeing that the complete disclosure
process does not reveal more than is required given the context of the case.
A similar example is noted in the case of Al Rawi v Security Service, several men
claimed for damages as they have been detained by foreign forces including places
like Guantanamo Bay and claimed that the UK Security Service along with others
engaged in ill treatment. In return the UK Security Service stated that they refrained
from giving access to certain pieces of evidence and would rather be represented by
special advocates”. It was held in this case that if governmental bodies wanted to
rely on the argument of national security, they would need to rely on PII which gives
them the right to do so in relation to providing protection for State interests wherever
it is required. The case law discussed so far provides a general overview of the
attitude of the courts. However, what needs to be considered is when disclosure of
the identity of the informant based on interests of justice, the protection towards the
informant is still violated despite being justified by any legal reasoning or case law.
