All England Law Reports/1994/Volume 2 /R v Keane –  2 All ER 478
 2 All ER 478
R v Keane
COURT OF APPEAL, CRIMINAL DIVISION
LORD TAYLOR OF GOSFORTH CJ, AULD AND MITCHELL JJÂ
15 FEBRUARY, 14 MARCH 1994
Criminal evidence – Prosecution evidence – Disclosure of police sources of information to defence –Â Public interest immunity – Confidentiality of sources – Weight of public interest in non-disclosure to be balanced against importance of documents to defence – Material documents to be put before court.
On 16 February 1991 the police obtained a warrant permitting them to search the appellant’s home in Birmingham on the grounds that there was a reasonable suspicion that he was involved in a currency counterfeiting operation. On 19 February the appellant, while driving a car in London with two other men, was stopped by police on suspicion that a passenger in the car had assaulted a motorist in Birmingham in 1990. The three occupants of the car were arrested in connection with the assault and taken to a police station where the car, which did not belong to the appellant, was searched and counterfeit US dollar notes and counterfeiting material and implements were found. When interviewed the appellant stated that the items found in the car had nothing to do with him. When his house in Birmingham was then searched pursuant to the search warrant obtained three days earlier, the police found a white envelope with serial numbers consistent with numbers necessary to make counterfeit US bank notes. At his trial on counterfeiting charges the appellant did not give evidence and his defence was that he was merely the driver of the car, that he knew nothing of the incriminating articles, and that they had been planted in the car by one of the passengers on the instructions of undercover officers with a view to turning the passenger into an informer. The trial judge ruled that on the grounds of public interest immunity the prosecution was not required to reveal the sources of the information leading to the appellant’s arrest on 19 February. The appellant was convicted. He appealed on the grounds that the judge’s ruling was wrong.
Held – Where the prosecution refused, on the grounds of public interest immunity, to disclose relevant material to the defence, the court had to balance the weight of public interest in non-disclosure against the importance of the documents to the defence. In carrying out that balancing exercise the court
 2 All ER 478 atÂ 479
should always order disclosure if the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice. In order to put the court in a position to determine whether and to what extent the material which the Crown wished to withhold was of assistance to the defence, the prosecution was required to put before the court only those documents which it regarded as material but wished to withhold. Material documents included those which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution proposed to use, or which held out a real, as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue. Since there was undoubtedly a public interest in not disclosing the material withheld by the Crown and the material would not have assisted the defence no injustice had been caused to the appellant by the non-disclosure. The appeal would therefore be dismissed (see p 483 h j, p 484 e to g j to p 485 c to f h j, post).
R v Agar  2 All ER 442 and R v Governor of Brixton Prison, ex p Osman (No 1)  1 All ER 108 applied.
Per curiam. Ex parte applications are contrary to the general principle of open justice in criminal trials and and should not be adopted save on the application of the Crown to enable the court to discharge its function of testing a claim that public interest immunity or sensitivity justifies non-disclosure of material in the possession of the Crown (see p 483 c d, post).
For disclosure of unused material to defence, see 11(2) Halsbury’s Laws (4th edn reissue) paras 1104, 1119.
For exclusion of evidence on grounds of public policy, see 11(2) Halsbury’s Laws (4th edn reissue) para 1164, and for cases on the subject, see 15(2) Digest (2nd reissue) 178-179, 19771-19774.
Cases referred to in judgment
Marks v Beyfus (1890) 25 QBD 494, CA.
R v Agar  2 All ER 442, CA.
R v Davis  2 All ER 643,  1 WLR 613, CA.
R v Governor of Brixton Prison, ex p Osman (No 1)  1 All ER 108,  1 WLR 281, DC.
R v Hennessey (Timothy) (1978) 68 Cr App R 419, CA.
R v Melvin and Dingle (20 December 1993, unreported), CCC.
R v Ward  2 All ER 577,  1 WLR 619, CA.
Cases also cited
Practice Note  1 All ER 734, CA.
Makanjuola v Comr of Police of the Metropolis (1989)  3 All ER 617, DC.
R v Miller (9 February 1993, unreported), CCC.
R v Saunders (20 September 1989, unreported), CCC.
R v Smith (2 November 1993, unreported), CCC.
Appeal against conviction
Stephen John Keane appealed against his conviction on 23 October 1992 at the Central Criminal Court before Judge Rogers QC and a jury on two counts of
 2 All ER 478 atÂ 480
having custody or control of counterfeit notes (counts 1 and 2) and one count of having custody and control of counterfeiting materials and implements (count 3) for which he was sentenced to four years’ imprisonment on count 1, five years’ imprisonment on count 2 and six years’ imprisonment on count 3, all the terms to run concurrently. The facts are set out in the judgment of the court.
Mio Sylvester (assigned by the Registrar of Criminal Appeals) for the appellant.
Stephen Kramer (instructed by the Crown Prosecution Service) for the Crown.
Cur adv vult
14 March 1994. The following judgment of the court was delivered.
LORD TAYLOR OF GOSFORTH CJ.
This case concerns the problems arising when a trial judge is invited by the defence to order disclosure of documents and is invited by the Crown to refuse such disclosure in the public interest.
On 23 October 1992 at the Central Criminal Court before Judge Rogers QC the appellant was convicted of two offences of having custody or control of counterfeit notes (counts 1 and 2–count 1 by a majority of ten to two) and one offence of having custody or control of counterfeiting materials and implements (count 3).
On 30 October 1992 he was sentenced to four years’ imprisonment on count 1, five years’ imprisonment on count 2 and six years’ imprisonment on count 3. Those sentences were ordered to run concurrently and an order was made for the forfeiture of the counterfeit currency.
There had originally been two co-accused, Ian Shipman and John Dunbar. Shipman and Dunbar were dealt with before the appellant. All three had been committed for trial together on bail on 8 May 1991. The trial was fixed for 7 October 1991. The appellant failed to surrender on that date. The next day, 8 October 1991, the case against Shipman and Dunbar proceeded with the appellant still absent. A submission was made to the trial judge, Judge Gordon, on behalf of both Shipman and Dunbar that the prosecution should disclose the sources of their information. Having heard the nature of the defence of each of the two defendants, the learned judge ruled in favour of disclosure in Shipman’s case but not in the case of Dunbar. The Crown thereupon offered no evidence against Shipman who was discharged. Dunbar changed his plea to guilty on count 1. He also pleaded guilty on a second indictment to possessing a firearm without a certificate. He was sentenced to consecutive sentences of three years’ and 12 months’ imprisonment. The appellant was not rearrested until 7 July 1992 and he was tried alone over five days in October 1992. His appeal against conviction is brought by leave of the single judge.
The chronology of the case was as follows: on 24 November 1990, a motorist had been assaulted in Birmingham and the assailant had driven away in a Mercedes car of which the number was recorded at the time.
On 16 February 1991 the police obtained a warrant permitting them to search the appellant’s home in Birmingham on the grounds that there was reasonable suspicion that he was involved in a currency counterfeiting operation.
About 10.25 pm on 19 February 1991 the appellant was driving a Mercedes car in Edgware Road near Marble Arch with Dunbar as front seat passenger
 2 All ER 478 atÂ 481
and Shipman in the rear. The car belonged to Shipman and bore the registration number recorded on 24 November 1990. Two police officers, Det Con Page and Det Sgt Watters, with others in attendance, stopped the vehicle on suspicion that one or other of the occupants may have been the assailant on 24 November. According to the police, the appellant opened the driver’s door and was seen to place an envelope into the pocket on the door. The three men were arrested in connection with the assault and taken to a police station. There, the car was searched and four separate items were found. First, a white envelope containing two negatives for forging $US 100 notes was recovered from the driver’s door pocket (count 3). Second, a brown envelope containing 247 forged $US 100 notes was found in the glove compartment (count 2). Third, 1504 forged US dollar notes in a brown paper bag contained in a white plastic bag were recovered from the rear seat footwell under the front passenger seat (count 1). Finally, a piece of paper with US dollar notes printed on it in a man’s leather wallet was found in the front passenger footwell.
Four fingermarks on the outside of the white envelope were found to have been made by the appellant and were said by the Crown to indicate that the envelope had been handled more than once by him.
Meanwhile, a search of the appellant’s address in Birmingham, pursuant to the search warrant which had been obtained three days earlier, took place at 12.45 am on 20 February. It revealed a black briefcase containing the appellant’s business documents but including a white envelope with serial numbers consistent with the numbers necessary to make counterfeit US bank notes.
The appellant’s immediate response was that what had been found in the car had nothing to do with him.
In interview, the appellant said he did not know how the negatives came to be in the car. He saw the envelope containing them in the pouch in the driver’s door. He admitted examining the envelope. He thought it was a birthday card but on seeing that it was a dollar imprint, did not ask Dunbar about it. He said he had seen the envelope in the glove compartment at about 9 pm that night. The first thing that occurred to him was that it may have contained dollars. He denied any knowledge of the other two items found. He said he had come to London to see a girlfriend and had spent the afternoon with her in Covent Garden and in a wine bar, rejoining his two co-accused in the evening preparatory to driving home.
The appellant did not give evidence on his own behalf. The scope of the defence cross-examination of the police officers must be mentioned later. But in the result, it was put to them that they had not seen the appellant place the envelope in the car door pocket. It was suggested that the counterfeit items had been given to Dunbar by undercover officers with a view to turning Dunbar into an informer. Essentially, the case put was that the appellant was merely the driver who knew nothing of the incriminating articles and merely happened to be in the wrong place at the wrong time.
The grounds of this appeal are based solely on the learned judge’s rulings as to disclosure and the scope of cross-examination he permitted. At the start of the trial, the judge was invited to order the prosecution to disclose the sources of the information leading to the appellant’s arrest on 19 February. Mr Sylvester pointed to the unusual circumstances of that arrest. A number of officers were involved, some quite senior. The reason given for the arrest concerned a minor assault which had occurred some months earlier. Yet three
 2 All ER 478 atÂ 482
days before the arrest, a search warrant relating to counterfeiting had been obtained which had not been executed before the counterfeit notes were found in the car. Counsel accepted that the general rule was in favour of protecting the identity of informers, but he cited R v Hennessey (1978) 68 Cr App R 419 and R v Agar  2 All ER 442.
The court observed in R v Hennessey (1978) 68 Cr App R 419 at 425:
‘The Courts appreciate the need to protect the identity of informers, not only for their own safety but to ensure that the supply of information about criminal activities does not dry up: see Marks v. Beyfus (1890) 25 QBD 494. In general this should be the approach of the Courts; but cases may occur when for good reason the need to protect the liberty of the subject should prevail over the need to protect informers. It will be for the accused to show that there is good reason.’
In R v Agar  2 All ER 442 at 448 Mustill LJ said:
‘Now it is certainly not the case that a defendant can circumvent the rule of public policy so as to find out the name of the person who has informed on him, for his own future reference and possible reprisal, simply by pretending that something is part of his case, when in truth it adds nothing to it. And it may be, and we emphasise “may”, that if the defence is manifestly frivolous and doomed to failure the trial judge may conclude that it must be sacrificed to the general public interest in the protection of informers. We do not see the present case in this light. There was a strong, and absent to any contrary indication, overwhelming public interest in keeping secret the source of information; but as the authorities show, there was an even stronger public interest in allowing a defendant to put forwards a tenable case in its best light.’
In reliance particularly on the latter passage, Mr Sylvester submitted that there were in the present case various possibilities such as that the appellant had been ‘set up’, and that to enable him to ‘put forward a tenable case in its best light’ disclosure should be ordered. The learned judge rejected the application and ruled that the police could be asked in cross-examination as to the source of their information but that an officer need not answer such a question ‘unless he wishes to’.
Mr Sylvester renewed his application after the arresting officers had given evidence and before Det Chief Insp Hose was called. This was because it had been agreed that the arresting officers would not answer questions as to investigations prior to 10.25 pm on 19 February, but such questions were to be addressed to the detective chief inspector. Mr Sylvester submitted that it was now clear there must be observation logs, and possibly other documents which might support the appellant’s case. He invited the judge to change his earlier ruling. The judge refused to order disclosure of documents. After some extended discussion, he ruled that Mr Sylvester could put positive assertions in cross-examination and could ask the chief inspector about his sources of information but it was for the witness to decide whether he could answer without divulging that which the Crown wished to protect.
In this appeal, complaint is made that the learned judge was wrong in refusing to order disclosure of the information sought. Further, the effect of his rulings was wrongly to leave the police witnesses as the sole arbiters of whether they should answer questions put in cross-examination or not.
 2 All ER 478 atÂ 483
At the time of this trial the procedural rules laid down following R v Ward  2 All ER 577,  1 WLR 619 had not yet been stated. Even R v Ward itself was not yet reported although a transcript of part of the judgment was quoted to the learned judge. R v Davis  2 All ER 643,  1 WLR 613, in which this court outlined the procedure to be followed where the Crown rely on public interest immunity or sensitivity to withhold material, had not yet been decided. Clearly, this case fell within para (3) of the tabulation at  2 All ER 643 at 647,  1 WLR 613 at 617. The Crown should have notified the defence before the trial began that an ex parte application was to be made to the court and such an application should have been made so that the trial judge could himself have seen the material and heard the Crown’s reasons for not wishing to disclose it before making his ruling.
We wish to stress that ex parte applications are contrary to the general principle of open justice in criminal trials. They were sanctioned in R v Davis solely to enable the court to discharge its function in testing a claim that public interest immunity or sensitivity justifies non-disclosure of material in the possession of the Crown. Accordingly, the ex parte procedure should not be adopted, save on the application of the Crown and only for that specific purpose.
In fairness to the learned judge, not only had this procedure not been laid down, but he was not invited by either side to view the material himself. In the event, he was at a disadvantage in not knowing the precise scope of the information the Crown were seeking to protect. All he had to go on was the statement by prosecuting counsel that objection was made to disclosing this unused material ‘for reasons of public policy within the Attorney General’s guidelines’. Accordingly, having been apprised that the scope of the refusal was to protect sources of information, the learned judge resorted to letting the police witnesses decide how far they would answer questions. It became clear that they were not prepared to answer questions about investigations or surveillance prior to 10.25 pm on 19 February.
Before the appeal came on, no doubt conscious of the decision in R v Davis, the Crown gave notice to the appellant’s lawyers that an ex parte application was being made to this court to look at the undisclosed material and to hear the Crown ex parte so as to decide whether disclosure should be made for the purposes of the appeal. Accordingly, each member of this court received and read that material before the appeal was opened.
Where the prosecution rely on public interest immunity or sensitivity, given that it is for the court to decide whether disclosure is to be made and the scope of cross-examination, what ought the court’s approach to be? As the citations from R v Hennessey and R v Agar above show, the court has to carry out a balancing exercise. As Mann LJ put it in R v Governor of Brixton Prison ex p Osman (No 1)  1 All ER 108 at 116,  1 WLR 281 at 288:
‘Suffice it to say for the moment that a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty … the weight to be attached to the interest of justice is plainly very great indeed.’
It has been suggested that there are two classes of case: those in which the balancing exercise must be carried out and those in which the possibility of a
 2 All ER 478 atÂ 484
miscarriage of justice dictates that disclosure must be made without any balancing exercise. To support this proposition, Mr Sylvester referred to the judgment of Lord Esher MR in Marks v Beyfus (1890) 25 QBD 494 at 498, as follows:
‘… if upon the trial of a prisoner the judge should be of the opinion that disclosure of the name of the informant is necessary or right to shew the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.’
In R v Governor of Brixton, ex p Osman (No 1)  1 All ER 108 at 118,  1 WLR 281 at 290 Mann LJ said:
‘In those cases, which establish a privilege in regard to information leading to the detection of crime, there are observations to the effect that the privilege cannot prevail if the evidence is necessary for the prevention of a miscarriage of justice. No balance is called for. If admission is necessary to prevent miscarriage of justice, balance does not arise.’
We prefer to say that the outcome in the instances given by Lord Esher MR and Mann LJ results from performing the balancing exercise, not from dispensing with it. If the disputed material may prove the defendant’s innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it.
But how is it to be determined whether and to what extent the material which the Crown wish to withhold may be of assistance to the defence?
First, it is for the prosecution to put before the court only those documents which it regards as material but wishes to withhold. As to what documents are ‘material’ we would adopt the test suggested by Jowitt J in R v Melvin and Dingle (20 December 1993, unreported). The learned judge said:
‘I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).’
As was pointed out later in that judgment, it is open to the defence to indicate to the prosecution a defence or an issue they propose to raise as to which material in the possession of the prosecution may be of assistance, and if that is done the prosecution may need to reconsider what should be disclosed.
We also wish, in passing, to indorse the observations of the learned judge in that case as to the scope of the Crown’s duty. It would be an abdication of that duty for the prosecution, out of an over-abundance of caution, simply to dump all its unused material into the court’s lap and leave it to the judge to sort through it all regardless of its materiality to the issues present or potential. The prosecution must identify the documents and information which are material according to the criteria set out above. Having identified what is material, the prosecution should disclose it unless they wish to maintain that public interest immunity or other sensitivity justifies withholding some or all of it. Only that
 2 All ER 478 atÂ 485
part which is both material in the estimation of the prosecution and sought to be withheld should be put before the court for its decision. If in an exceptional case the prosecution are in doubt about the materiality of some documents or information, the court may be asked to rule on that issue.
Secondly, when the court is seized of the material, the judge has to perform the balancing exercise by having regard on the one hand to the weight of the public interest in non-disclosure. On the other hand, he must consider the importance of the documents to the issues of interest to the defence, present and potential, so far as they have been disclosed to him or he can foresee them. Accordingly, the more full and specific the indication the defendant’s lawyers give of the defence or issues they are likely to raise, the more accurately both prosecution and judge will be able to assess the value to the defence of the material.
In the present case, the appellant had suggested in his interviews the nature of his case especially as to his own movements on the day of the arrest. Counsel, in making his application to the trial judge, was very forthcoming as to the issues he hoped that prosecution disclosure might have addressed.
Having examined the material which the Crown put before us, we are wholly satisfied of two matters. First, there was undoubtedly a public interest in not disclosing the material withheld by the Crown. Second, that material, had it been disclosed, would not have assisted the defence at all. On the contrary, it would have assisted the prosecution. We have no doubt that if the learned judge had been shown the material, he would have decided that the balance was clearly in favour of non-disclosure. We are satisfied that no injustice was done to this appellant by his not having access to the documents we have seen.
Likewise, we consider that the restriction of cross-examination and the stance the police were allowed to take in response to cross-examination resulted in no unfairness to the defendant. It would not have been possible to have allowed any significantly greater scope to defending counsel in questioning the police without putting at risk information which, on balance, clearly needed to be protected. In the event, the appellant was able to put his case as to where he was and what he was doing during the day on 19 February and what his function was in the car. The jury had to make up their minds whether they believed the police as to the appellant putting the white envelope in the pocket of the car door and the other circumstances of the arrest. It was open to them to draw inferences from the finding of the counterfeit money and equipment in the car, from the appellant’s answers in interview and from the document found in the appellant’s briefcase at his home. Since the appellant did not give evidence, he did nothing to cast doubt on the prosecution evidence or undermine it.
In these circumstances, we see no grounds for regarding the jury’s verdict as unsafe or unsatisfactory. The appeal must be dismissed.
Appeal dismissed. Application refused.
N P Metcalfe Esq Barrister.