Public Interest Immunity (PII) Hearings and Disclosure

The Professional Standards Committee (now the Standards Committee) has issued advice on the appropriate conduct for barristers acting in cases where they are invited to consider material on the basis that they undertake not to disclose it to their defendant client.   The PSC consulted the Criminal Bar Association and the Circuits on this point.

The PSC noted first that neither the law nor the Code of Conduct recognised any concept of "counsel to counsel" confidentiality and that when told something on this basis which would be to his client's advantage, counsel should inform his client and use it.

Failure to disclose material to a client could cause serious difficulties including an inability to take the lay client's instructions on the material, almost impossible difficulties in deciding how to conduct the defence in the client's best interests and generally a risk that disparity could develop in the practice of disclosure between counsel.

These disadvantages appeared to override any very rare advantages that might result of such a practice.  The Professional Standards Committee therefore considers that counsel should not agree to proceed on this basis and support the direction in the Attorney General's guidelines that the practice of counsel to counsel disclosure should cease:  it is inconsistent with the requirement of transparency in the prosecution process.