Ethics Question
Below is a summary of the facts in the case of R v H [2004] 1 All ER 1269:
H and others were charged with conspiracy to supply class A drugs, contrary to s.1 Criminal Law Act 1977. The street value of the seized heroin was £1,438,000. Generally the defences were centred around alibi and not knowing anything about the drugs which they were alleged to be about to sell, but the defendants also wanted to argue that the evidence against them had been obtained in such an illegal way that the prosecution could not rely upon it.
The defendants wanted full disclosure of all prosecution evidence, including matters relating to how they had come to be arrested and charged, to prove their point. The prosecution argued that such evidence was subject to public interest immunity and could not be shown to the defence legal team or the court.
Whilst it was clear that to show such evidence in open court would risk the public finding out the intricacies of how the police investigated the crime and the names of police informants, the defendants sought to be allowed to use a special counsel who could make representations on their behalf about the evidence without disclosing the details of it in public. Matters relating to the secrets of how a police investigation was carried out, or which might reveal the identity of a police informant, are appropriate for a special independent counsel to process the evidence before it is used in open court for the public to hear or see.
At a preparatory hearing before their Crown Court trial, Judge Murphy QC ruled that a special counsel should be appointed to deal with certain parts of the evidence which had public interest immunity.
The prosecution did not want the evidence disclosed, either in open court or to a special counsel, and successfully appealed to the Court of Appeal on the grounds that special counsel was ordered too early and before Judge Murphy QC had properly considered the evidence for himself to see if it should be disclosed to the whole court.
The defendants further appealed to the House of Lords on the basis that the special counsel was required to ensure they had a fair trial under Article 6 ECHR. This appeal was ultimately dismissed on the basis that appointment of special counsel is not essential to running a fair trial and such appointment should be made only under strict consideration of a number of factors which did not show to be present in the case. It should be for exceptional cases only.
It is suggested that you read the entire judgment, however the following parts are key to answering the question:
· The Headnote and Paragraphs 1-9 to understand the full history and arguments in the case.
· Paragraphs 14, 18, 21, 22, 23 to understand the rules and problems relating to the evidence and the use of special counsel.
· The conclusion in paragraphs 34-39 to understand the House of Lords’ approach to answering the question at the centre of their judgment.
Write an essay on the following:
Do you agree with the decision that the House of Lords made in the case of R v H [2004] 1 All ER 1269 that a court does not have to appoint a special counsel in every case where public interest immunity arises?
Try to consider the below points in your answer:
Summarise the reasons why the defendants wanted disclosure of the prosecution evidence. Which ethical approach(es) did they use to persuade Judge Murphy QC that special independent counsel should be appointed?
Summarise the reasons why the prosecution said some of the evidence could not be shared in open court and that special independent counsel had been appointed prematurely. Which ethical approach(es) did they use to win in the Court of Appeal?
Describe the balance of interests which the House of Lords had to consider in reaching their judgment and any ethical approaches which they employed to help them.
Conclude as to whether you think the House of Lords struck the correct balance in saying that special independent counsel should be used only in exceptional cases. Which ethical approach underpins your analysis?
Your essay should be a maximum of 1,000 words.
(50 marks)