APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
 HCJAC 15
Appeal No: XC524/07
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
PETITION FOR RECOVERY OF DOCUMENTS
ABDELBASET ALI MOHMED
ABDELBASET ALI MOHMED AL MEGRAHI
HER MAJESTY'S ADVOCATE
THE ADVOCATE GENERAL FOR SCOTLAND
Act: Scott, Q.C., Gilchrist,
Q.C., Richardson; Taylor & Kelly,
Alt: Clancy Q.C., A.D., Gardiner; Crown Agent
Alt: Advocate General, Doherty, Q.C., Summers: Office of the Solicitor to the Advocate General
7 March 2008
 In the Commission's view the Crown's decision not to disclose one of these documents ("the material document") to the defence indicated that a miscarriage of justice may have occurred in the petitioner's case. In the circumstances the Commission did not expand on its reasons for coming to that view.
The present proceedings
 The reference having been made, the petitioner lodged grounds of appeal. These include a contention based upon the non-disclosure referred to in chapter 25 of the Statement of Reasons. The petitioner has now presented to the court this petition for the recovery of the two documents referred to, though Miss Scott on his behalf has stated to the court that, without prejudice to her ultimate position, she would be seeking at this stage only the material document. Associated with the petition is a devolution minute. Answers to the petition have been lodged by each of the Lord Advocate and the Advocate General, the latter having given notice of his intention to intervene.
 In her Answers (as adjusted) the Lord Advocate avers that the documents referred to by the Commission are in fact photocopies, the principals being held by the United Kingdom Government. Her averments continue -
"The documents were provided in confidence to the UK Government by a foreign authority. The copies were sent to Crown Office by the UK Government on about 13 September 1996. The documents were not disclosed to the petitioner previously because they were not likely to be of real importance to any undermining of the Crown case or to any casting of reasonable doubt on it and they would not have been of positive assistance to the petitioner in the conduct of his defence."
She further avers -
"Standing the Commission's conclusion
in respect of one of the protectively marked documents the Crown accepts (under
reservation of its position in the petitioner's appeal) that it would be
appropriate to disclose that document to the petitioner for the purposes of the
appeal subject to the Advocate General's plea of public interest immunity in
respect of the documents. The
subject-matter of that plea is or concerns international relations, defence of
the realm, national security and counter-terrorism all of which are reserved
matters under and in terms of the Scotland Act 1998 and hence matters for the
UK Government. The Crown has an interest
in the consideration and disposal of that plea, namely to make submissions on
whether the Crown is under a duty to disclose the documents for the purposes of
the appeal and to make submissions about the procedures to be followed to
enable the plea to be dealt with in a manner which does not violate the
petitioner's right to a fair trial (including his appeal). The Crown cannot set out the basis for or
detail of these submissions in these Answers without reference to the content
of the documents and their relevance to other evidence in the case. Averments about these matters would undermine
the Advocate General's plea. The two
protectively marked documents were provided by a foreign authority to the UK
Government in confidence. The related
material comprises inter alia
communications between UK Government Departments in connection with the two
protectively marked documents and correspondence between Crown Office and
Further averments are then made as to procedure which might be adopted which would secure to the petitioner his right to a fair trial.
 In his Answers (as adjusted) the Advocate General avers -
"The Advocate General is a Minister
in the UK Government. He is the law
officer who represents the interests of the UK Government in
There follow further averments about the proposed "intermediate" means.
 The certificate referred to has been signed by the Secretary of State for Foreign and Commonwealth Affairs. It includes the following paragraphs -
established approach to PII requires me to focus specifically on the damage
which would be done by disclosure of the particular materials in issue, and to
assert PII only if satisfied that the disclosure of that material would cause
real harm. Having adopted that approach,
I am satisfied that production of the documents would cause real harm to the
United Kingdom Government's international relations. It would also cause real harm to the national
security of the
documents were provided in confidence to the United Kingdom Government by
another State. Disclosure of the
documents would harm the
10. It is not possible for me to be more specific in this Certificate about the information for which PII is claimed, or the precise harm that its disclosure would cause, since my doing so would be liable to cause the very damage that the Certificate seeks to avoid.
11. I am satisfied that production of the documents would cause real harm."
The fourth plea-in-law in the Advocate General's Answers is in the following terms -
"It being in the public interest that the documents sought be immune from recovery, the Petition should be refused".
The submissions of parties
 The discussion before us was at this stage restricted to the competency of the Advocate General's fourth plea-in-law. Miss Scott summarised her position in the following eight propositions -
"1. Under the Scotland Act 1998 the Lord Advocate's position as the independent head of criminal prosecutions remains unchanged. In particular, the Lord Advocate's competence to deal with 'reserved matters', in the court (sic) of criminal proceedings, was not affected by the changes brought about by the Scotland Act.
2. The decision as to whether or not to disclose a document in her possession, during the course of her own proceedings, is one which must be taken by the Lord Advocate in her capacity as head of the system of criminal prosecution.
3. Such a decision necessarily involves consideration of the public interest. The representation of any public interest in the court (sic) of criminal proceedings, has been traditionally and remains the role of the Lord Advocate. If there is a well-founded public interest objection to disclosure of a document then it is the duty of the Lord Advocate to raise it.
4. It is clear that the documents sought by the petitioner is in the possession of the Lord Advocate.
5. It is clear that the Lord Advocate has decided that disclosure of the document ought to be made to the petitioner for the purposes of the appeal.
6. It is also clear that no public interest objection has been raised by the Lord Advocate.
7. In these circumstances the only reasonable inference is that, in the present proceedings, the Lord Advocate, on reflection, does not consider that there is, in her opinion, a well-founded public interest objection to the disclosure of the documents sought. Any other inference would suggest an abdication of her duties.
8. In these circumstances, were the Advocate General to be entitled to intervene to prevent disclosure by the Lord Advocate, this would amount to direct interference by the UK Government in the pursuit of independent prosecutions by the Lord Advocate."
Miss Scott developed her submissions as follows. The traditional role of the Lord Advocate was
as master of the instance in any prosecution (
 The Advocate
General resisted the motion to repel his plea.
Miss Scott, he argued, had misconstrued the Lord Advocate's Answers,
which recognised the validity of the public interest immunity objection taken
and the relative certificate lodged. The
devolution settlement had clearly made a change in respect of the position of
the Lord Advocate. She was no longer a
member of the UK Government and could accordingly no longer straddle the roles
of public prosecutor in
 The Advocate
depute associated himself with the Advocate General's submissions. There was no reason why the Advocate General
should not, in an issue touching on reserved matters, advance and present a
public interest immunity objection. What
was important was that the court was, as arbiter, seized of the issue. There was, moreover, a devolution issue
associated with a matter of recovery of the material document. The Advocate General was entitled to enter
the process and to be heard on the matter.
Miss Scott had misconstrued the Lord Advocate's answers. The Lord Advocate was not saying that the
Advocate General was not entitled to advance the public interest immunity claim; was not saying that there was no public
interest in non-disclosure; and was not
saying that there was no merit in the claim.
The Lord Advocate recognised the Advocate General's right to make the
claim; the important thing was that, by
reason of the Advocate General's intervention, the court was in a position to
adjudicate on it. There was no absolute
right to disclosure of the material document but any non-disclosure had to meet
judicial safeguards (Sinclair v H.M. Advocate 2005 SC (PC) 28, at para.
). What were adequate safeguards was
a matter for the court. It was clear
from her Answers, read as a whole, that the Lord Advocate wished the public
interest immunity issue to be properly set out before the court in a way in
which the court could best adjudicate upon the competing public interests. There was no abdication by the Lord Advocate of
her duties. Section 48(5) imposed a continuing
and positive duty on the Lord Advocate to take decisions in her capacity as
head of the system of criminal prosecution in
 In a response
Miss Scott submitted that, if the Lord Advocate's position was that she
considered that the public interest immunity issue which had been raised
justified withholding the material or she had doubts about the matter, it was
her duty to raise it before the court.
The concern about interference by the Advocate General was because the
Lord Advocate had not herself raised the issue.
It would not do that she "recognised" the public interest immunity
objection. She could not sit on the
fence. The Advocate General's position
was untenable, absent the plea being taken by the Lord Advocate. The position adopted by both respondents had
the consequence that in any prosecution which involved a UK Government interest
(say, under the Misuse of Drugs Act 1971) the Advocate General might
interfere. The Advocate General was in
no position to judge the fair hearing aspect of the balancing exercise. None of the authorities relied on by the
Advocate General dealt with criminal proceedings in
 A cardinal feature of the Scottish system of criminal prosecution is that, with rare exceptions, all prosecutions are brought at the instance of the Lord Advocate or those acting on her behalf and are brought in the public interest. Any decision of the Lord Advocate in the capacity of head of that system has always been taken by the Lord Advocate independently of any other person. The obligation thus to act independently was recognised and continued by section 48(5) of the Scotland Act. The other provisions of the Act are consistent with it.
 It does not follow that, in taking any such decision, the Lord Advocate is bound to have regard only to the public interest in the administration of justice. Prior to devolution the Lord Advocate was entitled to, and no doubt did, have regard, in the context of issues of public interest immunity raised by other arms of the United Kingdom Government, to any potentially competing public interest. While, however, the Lord Advocate remained a Minister of the United Kingdom Government, such competitions would be likely to be addressed and resolved within that Government. However, by section 44(3) of the Scotland Act, the Lord Advocate, being a member of the Scottish Executive, can not simultaneously be a member of the United Kingdom Government. This development has had the consequence that distinct public interests may potentially be publicly in competition. To that extent at least there has been a practical change in the Lord Advocate's role consequent upon devolution.
 Miss Scott contended that, on a reading of the Lord Advocate's Answers, she had in effect conceded that it was in the interests of the administration of justice that the material document be released to the petitioner and his representatives and that the Lord Advocate was being prevented from giving effect to that concession by interference on the part of the Advocate General. That involves, in our view, a misreading of the Lord Advocate's Answers. These make it plain that the Lord Advocate's acceptance (under reservation of the Crown's position in the appeal) that it would be appropriate to disclose the material document for the purposes of the appeal is subject to the Advocate General's plea of public interest immunity. Her acceptance is thus clearly qualified. It does not import that the Lord Advocate has formed the view that there is no substance in the Advocate General's plea; nor does it import that the Lord Advocate has abdicated any duty or responsibility resting on her in relation to any public interest immunity attaching to the material document.
 It has been observed judicially that public interest immunity is not a privilege which may be waived by the Crown or any other party (Air Canada v Secretary of State for Trade, per Lord Fraser at page 436, citing in support an observation by Lord Reid in Reg. v Lewes Justices, ex parte Secretary of State for the Home Department at page 400). More recently Bingham LJ (as he then was) in Makanjuola v Commissioner of Police for the Metropolis said at page 623 -
"Where a litigant asserts that documents are immune from production or disclosure on public interest grounds he is not (if the claim is well-founded) claiming a right but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation. This does not mean that in any case where a party holds a document in a class prima facie immune he is bound to persist in an assertion of immunity even where it is held that, on any weighing of the public interest, in withholding the document against the public interest in disclosure for the purposes of furthering the administration of justice, there is a clear balance in favour of the latter. But it does, I think, mean: (1) that public interest immunity cannot in any ordinary sense be waived, since, although one can waive rights, one cannot waive duties; (2) that where a litigant holds documents in a class prima facie immune, he should (save perhaps in a very exceptional case) assert that the documents are immune and decline to disclose them, since the ultimate judge of where the balance of public interest lies is not him but the court; ... ".
Lord Donaldson of Lymington MR expressly agreed with these observations (page 621e-f). Mann LJ concurred.
 All these observations were made in the context of English civil proceedings and Bingham LJ did not purport to lay down an absolute rule. We reserve our opinion as to whether a duty in identical terms is imposed on the Lord Advocate in Scottish criminal proceedings - and, in particular, whether the Lord Advocate is obliged to place before the court for decision every issue which gives rise to a public interest immunity question. For example, the Lord Advocate might well at her own hand decide, in a particular case, that the interests of justice required her to disclose some piece of information to an accused or his representatives, albeit there might be a presentable argument that a public interest immunity consideration (say, the protection of informers) militated against such disclosure.
 However, even on the assumption that such a duty exists, it does not follow, in our view, that, where an issue of public interest immunity arises in criminal proceedings, it is always incumbent on the Lord Advocate herself to assert that immunity. Where, as here, the particular public interests sought to be protected (international relations and national security) are peculiarly within the governmental responsibility of a United Kingdom Minister (here, the Secretary of State for Foreign and Commonwealth Affairs), it is, in our view, a sufficient discharge of any duty incumbent on the Lord Advocate that she adopts a position which allows the issue of competing public interests to be adjudicated upon by the court. The decision as to which interest is to prevail (or whether by any mechanism they can be accommodated) is a matter for the court to determine. Consideration of the issues is likely to be better informed if there is represented before the court the party with the closest involvement with the public interest potentially in competition with the public interest in the administration of justice - see, for example, Lord Morris of Borth-y-Gest in Reg. v Lewes Justices, ex parte Secretary of State for the Home Department at page 408B-C. In the circumstances of this case the appearance of the Advocate General, as representing the Secretary of State, is accordingly likely to be of benefit to the court's adjudication upon the issues arising. The adoption by the Lord Advocate of the position that acceptance of the appropriateness of disclosure is subject to the Advocate General's plea of public interest immunity is an adequate and justifiable response, in our view, to the petitioner's application for recovery. The competency of the Advocate General's plea is not dependent on the Lord Advocate positively asserting an immunity in a field in which she has no direct involvement.
 The circumstances of this case include the feature that the principal document is in the hands of the Secretary of State and that a copy emanating from his Department is in the hands of the Lord Advocate. In other circumstances no copy might have been held by the Lord Advocate but the petitioner might have had, for the purposes of his appeal, an interest in recovering the principal from the Secretary of State. It is difficult to see how the competency of any public interest immunity objection taken by the Secretary of State to the recovery of that principal would be dependent on the Lord Advocate herself asserting that immunity. In Reg. v Lewes Justices, ex parte Secretary of State for the Home Department Lord Reid said, at page 400E-F -
"A Minister of the Crown is always an appropriate and often the most appropriate person to assert this public interest [that a particular letter should not be produced], and the evidence which he gives to the court is always valuable and may sometimes be indispensable. But, in my view, it must be open to any person interested to raise the question ... ".
If that be so, it would be strange if the possession by the Lord Advocate of a copy of the document made a radical difference to the issue of competency.
 For these reasons the Advocate General's fourth plea-in-law is not, in our view, incompetent and we shall refuse the appellant's motion to repel it on that ground. The case will now be put out for further procedure.