APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Kingarth

Lord Eassie

 

 

 

 

 

 

[2008] HCJAC 15

Appeal No: XC524/07

 

OPINION OF THE COURT

 

delivered by THE LORD JUSTICE GENERAL

 

in

 

PETITION FOR RECOVERY OF DOCUMENTS

 

by

 

ABDELBASET ALI MOHMED AL MEGRAHI

 

in causa

 

ABDELBASET ALI MOHMED AL MEGRAHI

Petitioner;

 

against

 

HER MAJESTY'S ADVOCATE

and

THE ADVOCATE GENERAL FOR SCOTLAND

Respondents:

 

_______

 

 

 

Act: Scott, Q.C., Gilchrist, Q.C., Richardson; Taylor & Kelly, Coatbridge

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

 

The background

[1] On 31 January 2001 the petitioner was convicted of murder before the High Court of Justiciary sitting at Kamp van Zeist in the Netherlands. His appeal against conviction was unsuccessful. The Scottish Criminal Cases Review Commission has now, under section 194B of the Criminal Procedure (Scotland) Act 1995, referred the case to the High Court. In chapter 25 of its Statement of Reasons the Commission explains that in 2006 the Crown Office informed it of the existence of two protectively marked documents in its possession. A representative of the Commission was given conditional access to these documents. The Crown Office subsequently confirmed that neither of these documents had been disclosed to the defence at any time. The Commission sought the consent of the Crown to disclose the documents but was informed that such consent could not be given without the permission of the relevant authorities of the country from which the documents had originated. Although attempts, it is said, were made on behalf of the Crown Office to obtain the consent of those authorities, as at the date of the issue of the Commission's Statement of Reasons, no such consent had been given.

[2] 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

[3] 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.

[4] 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 Dumfries and Galloway Police."

Further averments are then made as to procedure which might be adopted which would secure to the petitioner his right to a fair trial.

[5] 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 Scotland. The UK Government is responsible for all reserved matters as defined by the Scotland Act 1998, schedule 5. Those matters include foreign affairs (schedule 5, Part I, paragraph 7) and national security (schedule 5, Part II, section B8). In these proceedings the Advocate General appears (i) in relation to the devolution issue; but also (ii) representing the Secretary of State for Foreign and Commonwealth Affairs ("the Minister") and the United Kingdom Government in respect of the public interest immunity claim. At the hearing on 20 December 2007 the petitioner restricted the recovery sought by him to the document identified in the SCCRC's Statement of Reasons at para. 25.6. That document refers to a second document (the other protectively marked document viewed by the SCCRC). The Minister has considered the documents. He has come to the view that disclosure of the documents would cause real harm to the UK Government's relations with other States and the national security of the UK. He maintains that they attract public interest immunity for the reasons set out in his Certificate of 29 January 2008. Reference is made in particular to paragraphs 8-11 which set out the public interest in non-disclosure and to paragraphs 12-17 where he describes the exercise he has carried out balancing the interests of the petitioner against the damage to international relations and national security which would result from disclosing the documents. Paragraph 14 sets out intermediate means which are available to the Court to secure a fair hearing for the Petitioner without producing the documents to him."

There follow further averments about the proposed "intermediate" means.

[6] The certificate referred to has been signed by the Secretary of State for Foreign and Commonwealth Affairs. It includes the following paragraphs -

"8. The 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 UK because of damage to counter-terrorism liaison and intelligence gathering between the United Kingdom and other States.

9. The documents were provided in confidence to the United Kingdom Government by another State. Disclosure of the documents would harm the United Kingdom's international relations with that State. It would undermine the trust in the United Kingdom of the State whose confidences were disclosed. It would reduce the willingness of that State (i) to confide information to the United Kingdom, (ii) to co-operate with the United Kingdom in various fields, including counter-terrorism liaison. It would raise serious questions in the minds of other Governments around the world about the confidentiality of their communications with the United Kingdom Government and therefore their willingness to make such a commitment. In my opinion it is essential for the conduct of international relations, and for national security, that other States should be able to communicate with the United Kingdom Government in the knowledge that those communications would not be liable to be produced and discussed in open court.

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

[7] 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 (Montgomery v H.M. Advocate 2001 SC (PC) 1 at pages 18-19). All decisions were made by her alone as head of the system of criminal prosecution in Scotland. She represented the public interest, including any public interest in disclosing, or not disclosing, documents (McLeod v H.M. Advocate 1998 JC 67, per Lord Justice General Rodger at page 79). The lodgement of a public interest immunity certificate in criminal proceedings was, given the Lord Advocate's exclusive role, unknown. The Scotland Act, far from changing that position, had entrenched it. That was expressly confirmed by section 48(5) of the Act. Reference was also made to sections 27(3), 29(2)(e) and 61-62. Although the Lord Advocate was a Scottish Minister, the clear intention of the legislation was that in prosecutorial matters she should act independently of any other person. The source of her powers as prosecutor was quite different from the source of the powers of other Scottish Ministers. Reference was made to sections 53(1) and (2) and 52(6). The source of her powers was not by way of transfer to her under the Act but by her retention of her traditional role. Prior to the coming into force of the Act she had been divested of certain functions (1999 SIs Nos. 678 and 679) and under the Act had ceased to be a member of the United Kingdom Government (section 44(3)); but she had lost none of her prosecutorial powers or responsibilities. The existence of those functions was independent of the collective responsibilities of the Scottish Ministers - compare section 52(3) and (4) with section 52(5) and (6) - and independent of the UK Government. The Scotland Act had not restricted the Lord Advocate's prosecutorial functions by reference to the scope of devolved competence; reference was made to sections 52, 53, 54(1)-(3), 29(1)-(2) and 53(2). For example, she retained her prosecutorial functions in respect of contraventions of UK statutes. Reference was also made to section 57(3). The traditional role of the Lord Advocate and its preservation and entrenchment by what later became the Scotland Act had been described by the then Lord Advocate (Lord Hardie) in a speech delivered on 27 February 1998 to a conference on devolution at Strathclyde University. The Advocate General had no prosecutorial function. He had no role in a prosecution except in so far as and to the extent that a devolution issue was raised. This was in contrast with the interventionist function of the Advocate General in relation to proposed legislation (section 33(1) and 35(1)) and in relation to acts of the Scottish Executive (section 58). That latter section had no application to the acts of the Lord Advocate as head of the prosecution service (see Hansard, 8 October 1998, columns 632-3). The position in criminal proceedings was quite different from that in civil proceedings. At the trial of the petitioner, the Lord Advocate had taken a public interest immunity objection to the disclosure of certain documents on grounds which included one concerned with the international relations of the UK Government. In contrast, the Lord Advocate had taken no such objection in relation to the material document. At the trial the then Lord Advocate had also repudiated any suggestion that the Scotland Act had changed his traditional prosecutorial role (Day 46, pages 6632-3). The Lord Advocate had in her prosecutorial role a range of duties, including to prosecute in the public interest and to ensure a fair trial. The latter included obligations of disclosure, including consideration of any public interest immunity issue which arose, whatever its nature. The Lord Advocate had a copy of the material document. In discharge of her duties she must have addressed the question whether any public interest immunity was to be claimed in respect of that copy. The proper inference from her Answers was that she had decided not to advance any such claim. In circumstances where the Lord Advocate as prosecutor had not made such a claim, the Advocate General could not advance it. The public interest immunity objection was an exception to the general rule of disclosure of all relevant documents. It was not a privilege which could be waived (Air Canada v Secretary of State for Trade [1983] 2 AC 394, per Lord Fraser of Tullybelton at page 436A). It was the Lord Advocate's duty herself to consider and decide what were the public interest demands in this appeal. Reference was made to Makanjuola v Commissioner of Police for the Metropolis [1992] 3 All ER 617, especially per Bingham L.J. at page 623. The Lord Advocate had herself to perform the balancing act of weighing any competing public interests; if she decided on public interest immunity grounds to withhold a material document, she had to put the matter before the court for its decision. Here the proper inference was that she had decided that she was not going to withhold the material document on public interest immunity grounds. The Advocate General's intervention was an attempt to prevent that disclosure. That was an illegitimate interference by the UK Government in the Lord Advocate's prosecutorial role. His fourth plea-in-law should be repelled.

[8] 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 Scotland and of representative of the UK Government here. The issue of whether there should, in the face of a public interest immunity objection, be disclosure was a matter for the court. The Lord Advocate had not in her Answers suggested that she had been prevented by the Advocate General from disclosing the material document. The UK Government had a clear title and interest to be represented before the court on a public interest immunity objection which related to reserved matters (including international affairs and national security). The issue was not one solely for the Lord Advocate given the nature of the material document (and its significance as explained in the certificate) and the relevant statutory background. Reference was made to the Official Secrets Act 1989. The Lord Advocate, who was a Crown servant for the purposes of that Act, required to work within that general framework of law. The material document was one with respect to which others, in particular the UK Government, had responsibilities and powers. The Lord Advocate could not act simply as she chose. International relations and national security were reserved matters under the Scotland Act. The Advocate General, as representing the UK Government, was entitled to claim public interest immunity. Reference was made to Glasgow Corporation v Central Land Board 1956 SC (HL) 1, Higgins v Burton 1969 SLT 52, WP v Tayside Regional Council 1989 SCLR 165, Reg v Lewes Justices, ex parte Secretary of State for the Home Department [1973] AC 388, The Development of the Law of Public Interest Immunity (1983) CJQ 337 (an article by the then Lord Advocate, Lord Mackay of Clashfern), Walkers on Evidence (2nd edition) para. 10.9.4, Disclosure of Evidence and Public Interest Immunity (PII) 2007 SLT (News) 63 (an article by Professor Duff), Attorney General's Paper on "Public Interest Immunity" (December 1996), following recommendations made in Sir Richard Scott's report, Halsbury's Laws of England (4th edition), vol. 17/1, para. 437 and Broome v Broome [1955] P 190. The material document, which had emanated from the UK Government, had on its face the seal of confidentiality. The Advocate General's role was to represent the UK Government on the relevant issue. Reference was made to the Crown Suits (Scotland) Act 1857 sections 1 and 4A, the Stair Memorial Encyclopaedia - Constitutional Law (Reissue) para. 434 and Tehrani v Secretary of State 2007 SC (HL) 1, especially per Lord Rodger of Earlsferry at paras. [83] and [87]. It was logical that where the public interest immunity claim was based on matters within the sphere of the UK Government, the Advocate General should advance that claim. There was no threat by him to the Lord Advocate's prosecutorial role, though she should not at her own motion be able to override a public interest immunity claim made by the UK Government. It was the court which determined the issue of disclosure. Its functions were not controlled by the Scotland Act (R v H.M. Advocate 2003 SC (PC) 21, per Lord Rodger at para. [10]). Section 48(5) of the Act ensured the continuing independent prosecutorial role of the Lord Advocate; reference was made to the relative Explanatory Note. Although it was conceivable that pre-devolution there might have been a tension between the Lord Advocate as head of the system of prosecution and a Department of the UK Government (leading possibly to separate representation before a court), that was unlikely; the balance was likely to have been struck privately in the context of a collective ministerial decision. The court should refuse the appellant's motion.

[9] 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. [33]). 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 Scotland independently of any other person. That did not have the effect that, in taking any such decision, she was bound to ignore a public interest immunity issue arising from a reserved matter; nor that she could not have regard to a certificate produced by a United Kingdom Minister; nor that she was bound to accept it at face value; nor that she must decide for herself that one or other of the competing public interests must prevail. She had independently decided not to ignore the certificate but to leave it to the court to decide how to give effect to the competing interests. The position adopted by the Lord Advocate at the trial was not inconsistent with that adopted now by his successor. The Lord Advocate's position was that she was not bound by any decision of the UK Government but content to accommodate the Advocate General's entitlement to argue the point. She had decided not to disclose the material document until the point was resolved by the court. The Advocate General was not interfering with the Lord Advocate's prosecutorial role nor himself acting as a prosecutor. The appellant's motion should be refused and the case put out for further procedure.

[10] 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 Scotland. It was a defence to any allegation of contravention of the Official Secrets Act that what was done was done in carrying out a public duty (section 7). If the copy document had been made available to the Lord Advocate by the United Kingdom Government subject to restrictions as to its use for the purposes of a prosecution, that involved fettering of the Lord Advocate. Broome v Broome, relied on by the Advocate General, had not been enthusiastically received in Scotland (Whitehall v Whitehall 1957 SC 30, per Lord President Clyde at pages 38-9).

 

Discussion

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

 

Disposal

[18] 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.