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
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.