A stipendiary magistrate recently held in a case, in which I appeared for the defendants, and which is now the subject of appeal, that public interest immunity had no place in a summary trial because the cases of R v Ward [1993] 2 All ER 577 and R v Davis Rowe and Johnson [1993] 2 All ER 643 and the Attorney-General's guidelines on disclosure (practice note 1982 1 All ER 734) only applied to a case triable on indictment.

On this view, public interest immunity (PII), which provides in certain instances an exception to the general duty of disclosure by the prosecution, is not applicable in courts of summary jurisdiction.PII is not likely to arise very often in a court of summary jurisdiction but in the case in question, which by statute could only be tried summarily, and where the trial itself took six days, the prosecution (a ministry of state) provided statements and exhibits and after a pre-trial review (in which reference was made to Ward and Davis) the prosecution voluntarily disclosed unused material.

However, shortly before trial the prosecution stated that due, in their view, to PII they intended to apply to the court ex parte, to exclude certain unused material without specifying the category and they anticipated that their application would take the majority of the first day of the trial.The effect of the magistrates' decision was that the prosecution was not required to argue that certain unused material in its possession should not be disclosed to the defence.

Equally, the defence was deprived of knowing either the category of the material or the material itself and the extent, if any, to which such material would have been of assistance to the defence.The magistrate was not alone in his view.

In R v CPS, ex p.

Warby [1993] The Independent, 16 September, (decided before my case) the Redbridge justices doubted whether they had the power to make the order requested.

On judicial review the court considered that it was inappropriate for decisions of that nature to be made by lay justices but Warby was a case which was being committed to the Crown Court where the whole question of PII would or could be argued before the defendant faced the possibility of a conviction.

In my case the defendant could be convicted before PII could be argued.

He could be convicted without 'open justice' which is now supposed to apply.

However, was the magistrate correct?Public interest immunity is not something new; it is well known in civil litigation and is not unique to criminal law, although considerable prominence has been given to it over th e past 18 months.In R v Governor of Pentonville Prison, ex p.

Osman (No.4) [1991] 1 WLR 281, Mann LJ said that the application of the public interest immunity doctrine in criminal proceedings will involve a different balancing exercise to that in civil proceedings and went on to say 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...

It may be shortly put; do the interests of justice in the particular case outweigh those considerations of public interest...'In reaching its conclusions as to the proper approach to be followed, the Court of Appeal in Davis recognised that open justice required maximum disclosure and whenever possible there should be an opportunity for the defence to make representations on the basis of the fullest information.The Court of Appeal took the view that in general it is the duty of the prosecution to comply voluntarily with the requirements set out in para 2 of the Attorney-General's guidelines.

Those guidelines, which were issued for the disclosure of information to the defence in cases to be tried on indictment, do not state that they were to be applicable in cases where there was to be a summary trial.In Davis, after dealing with the obligation to comply with the Attorney-General's guidelines, the Court of Appeal stated that if the prosecution wishes to rely on public interest immunity or sensitivity to justify non-disclosure then, whenever possible, which will be in most cases, the prosecution must in effect give notice to the defence that it is applying for a ruling by the court, indicate to the defence at least the category of the material it holds and the defence must have the opportunity to make representations to the court.

The Court of Appeal went on to say:'(3) Where, however, to disclose even the category of the material in question would in effect be to reveal that which the Crown contends should not in the public interest be revealed, a different procedure will apply.

The Crown should still notify the defence that an application to the court is to be made but the category of the material need not be specified and the application will be ex parte.

If the court on hearing the application considers that the normal procedure under (2) above ought to have been followed, it will so order.

If not it will rule on an ex parte application.'(4) It may be that in a highly exceptional case, to reveal even the fact that an ex parte application is to be made could let the cat out of the bag so as to stultify the application...In that event the prosecution should apply to the court ex parte without the notice to the defence.'The cases of Ward and Davis were appeals from trials on indictment.

The effect of Ward and Davis is that the prosecution is no longer entitled to act as judge in its own cause on the issue of public interest immunity.

It is the court which makes the decision as to disclosure, not the prosecution.To say that PII does not apply to a summary trial means that contrary to that desire for open justice, it is the prosecution and not the court which makes the decision.If PII applied to a court of summary jurisdiction then the issue would be determined by a stipendiary magistrate or by lay justices (magistrates).

They would have to determine between open justice, which requires maximum disclosure, and the concern of the prosecution not to disclose certain documents which could otherwise be material and relevant.

The criteria is that the prosecution has a duty generally to disclose voluntarily all unused material to the defence solicitor if it has some bearing on the offences charged and the surrounding circumstances of the case.Notwithstanding Warby, in cases triable only by summary jurisdiction I would have thought that magistrates would be able to deal with those applications which are the subject of an inter partes application, but should they make a ruling where the issue is that of sensitive material? Would it have been right for magistrates to have ruled on unused material such as in the Matrix Churchill case where clearly the application would have been made ex parte.

The pressure on them would have been enormous.

It would have needed not only the guidance of their clerk but great courage on their part to deny the prosecution its application.Ward and Davis made it clear that even if the court accepted the prosecution view of non-disclosure, it is possible that during the course of the trial, issues may emerge so that PII is eclipsed by the need to make disclosure in the interests of fairness to the defendant.

The Court of Appeal said that in those circumstances the Crown must decide whether to disclose or offer no further evidence.In those circumstances and in a case where the prosecution had made an ex parte application in a court of summary jurisdiction, magistrates would have to make that decision in the knowledge of the consequences, in a case which presumably had considerable importance, that if the prosecution refused to make disclosure then they might have to dismiss the case.

That again places a heavy burden of responsibility and pressure on the stipendiary magistrate or magistrates.It is correct that in normal cases there is no requirement of disclosure in a summary trial.

From a practical point of view it is possible to take the view that the stipendiary magistrate was correct.

On the other hand, surely it is correct that justice, and indeed open justice, should apply throughout the whole of the criminal law, whichever court is sitting.

The home secretary has talked about limiting the right to elect for trial in a Crown Court; if this should occur the question of open justice in a court of summary jurisdiction becomes even more compelling and will need addressing.The principle of disclosure of material and relevant information permeates the whole of our judicial system both civil and criminal.

The intention is that there should be justice and that is even more so where we talk about the liberty of the subject.

Of course, where there are miscarriages of justice there are grounds of appeal and of course there is an appeal from a court of summary jurisdiction to the Crown Court but why should a defendant be forced to go through the procedures and re-hearing by way of an appeal to a Crown Court (where PII would apply)?Perhaps the practical approach should be, where PII arises on a summary trial, that the magistrates' court should deal with those applications where the prosecution has indicated that it would be proceeding inter partes and where the defence would thus have the opportunity to make representations to the court.

If, however, the matter is to be dealt with ex parte then the proceedings in the summary trial could be stayed pending an ex parte application to a competent court.

I believe that this should be a Crown Court.

If that court considered that the application was one at which the defence should have the opportunity of making representations then it would seem that the defence should make those representations in the Crown Court.The problem is that there do not appear to be any statutory procedures which would enable the matter to be brought before the Crown Court.

The jurisdiction of the Crown Court arises under the provisions of the Supreme Court Act 1981 and it does not appear that there is any provision for what I have suggested above.

If, however, PII is to apply in a court of summary jurisdiction then it would seem that legislation may be necessary.If these procedural matters were overcome then even if the Crown Court were of the view that the material should not be disclosed then the difficulty which arises is that the court of summary jurisdiction would not be able to do what the Court of Appeal said, namely monitor the decision not to disclose.

It would not be able to do that because it would not have the essential knowledge of the existence of the material; at best it would only have knowledge of the category within which the material fell.If, on the other hand, the stipendiary magistrate was correct in holding that PII does not apply to a court of summary jurisdiction then open justice does not and cannot apply in such a court.

Judicial review would not apply and an appeal by the defendant to the Crown Court arises only after the event.