CriminalPublic interest immunity - material not examined by trial judge - ex parte examination by Court of Appeal not unfairR v Botmeh and another: CA (Rose LJ, Hooper and Goldring JJ): 1 November 2001The defendants were convicted of conspiracy to cause explosions.

On appeal against conviction, the question arose as to whether or not it was appropriate for the Court of Appeal to conduct an ex parte hearing to determine the prosecution's claim for public interest immunity in relation to material not before the trial judge.It was argued on behalf of the defence that in the light of Rowe and Johnson v United Kingdom (2000) 30 EHRR 1, such an ex parte hearing was a procedure that could not be followed in the Court of Appeal but had to be confined to proceedings at first instance.Michael Mansfield QC and Tim Owen QC (instructed by Birnberg Peirce & Partners) for Alami; Julian Bevan QC, William Boyce QC and Rabinder Singh (instructed by Crown Prosecution Service, Headquarters) for the Crown.

Michael Mansfield QC and Ben Emmerson QC (instructed by Birnberg Peirce & Partners) for Botmeh; William Boyce QC and Victoria Coward (instructed by Crown Prosecution Service, Headquarters) for the Crown.Held, dismissing the appeal, that there was nothing unfair nor, in itself, in breach of article 6 of part 1 of schedule 1 to the Human Rights Act 1998, nor unlawful within the meaning of section 6(1) of the Act, in the Court of Appeal, Criminal Division, considering an ex parte application by the Crown to withhold relevant evidence on the grounds of public interest immunity, where the evidence in question was not the subject of a public interest immunity application to the trial judge.