Law Report: Appointment of Special Independent Counsel for Public Immunity Interest Hearing ; 14 November 2003 Regina V H and Another ( EWCA Crim 2847) Court of Appeal, Criminal Division (Lord Justice Rose, Mr Justice Penry- Davey and Mr Justice David Clarke) 16 October 2003
Kate O'Hanlon, Barrister, The Independent (London, England)
IN THE few exceptional criminal cases where material was so sensitive that the defence could not be informed that a public interest immunity (PII) hearing was to take place, or in which a judge in a PII hearing learned of material which was so highly prejudicial to a defendant that he should not make a ruling depending on the material without the benefit of further adversarial comment upon it, the judge could and should invite the Attorney General to appoint special independent counsel.
The Court of Appeal allowed the Crown's appeal against a ruling made in a preparatory hearing regarding the appointment of special independent counsel for a PII hearing.
At a preparatory hearing under section 29(1) of the Criminal Procedure and Investigations Act 1996 to expedite the trial of five defendants on a charge of conspiracy to supply heroin, the judge ruled, inter alia, that a special independent counsel should be appointed to introduce an adversarial element to a PII hearing.
The ruling was made in order to avoid a possible violation of article 6(1) of the European Convention on Human Rights, in the light of the judgment of the European Court of Human Rights in Edwards and another v United Kingdom  All ER (D) 368 (Jul).
The Crown appealed under section 35(1) of the Act against the ruling, contending that the principle in Edwards should be confined to those cases (of which the present case was not one) where the trial judge made an important determinative ruling based on or having taken into account undisclosed PII material, and that the judge had been premature and wrong to seek the appointment of special independent counsel when he did.
Leonard Smith and Jonathan Lennon for H; Robin Howat and Tania Tagon for C; David Perry and Sean Morris (Crown Prosecution Service) for the Crown. …