Public Interest Immunity Certificates

Lord Wallace of Tankerness Excerpts

Monday 18th November 2013 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, public interest immunity, or PII, certificates are ministerial instruments used in legal proceedings where the disclosure of sensitive material would cause a real risk of serious prejudice to an important public interest. Although applications for PII have been made in criminal fraud cases since 2010, I am not aware of any PII applications relating to fraud cases that involved ministerial PII certificates.

[Lord Maginnis of Drumglass (Non-Afl)]

My Lords, is not the noble and learned Lord’s Answer relevant virtually only to the case of Asil Nadir? Is it not ridiculous, and a mockery of British justice, that Asil Nadir came back to this country with all the evidence to clear his name, and that the Serious Fraud Office sought to hide behind more than 35 public interest immunity certificates? The SFO used the international status of the Turkish Republic of Northern Cyprus to avoid going there to examine the books although, 20 years previously, it had already been told by the administrators for Polly Peck that the audited books were in order. Is this not a contradiction of British justice?

[Lord Wallace of Tankerness]

My Lords, I readily acknowledge the determination with which the noble Lord has pursued these matters. As I have previously indicated to him, it is a long-standing convention that applications for PII certificates are neither confirmed nor denied. Indeed, I gave the noble Lord a Written Answer earlier this year in which I set out the reasons for that.

Immediately before coming into your Lordships’ House, I inquired about the status of the Turkish Republic of Northern Cyprus. It is my understanding that these issues were raised during the trial of Asil Nadir and that Foreign and Commonwealth Office officials were examined on the matter. As a matter of general law, the use of a PII to prevent disclosure of sensitive material does not render any trial unfair. Whether materials are or are not disclosed is not a decision for Ministers or for the prosecution; it is the decision of the trial judge. The trial judge will not allow a PII claim to stand if to do so would render the trial of the defendant unfair.

[Lord Carlile of Berriew (LD)]

Does my noble and learned friend agree that the PII ministerial certificates should be used sparingly, if only because they are made without anyone representing the interests of a defendant being present? That places a great burden on the trial judge, who has to second guess what the defence is likely to say on certain issues. It also means that the defence is unable to answer allegations which can easily be made, but which may be incorrect.

[Lord Wallace of Tankerness]

My Lords, as I indicated, in the case of criminal fraud trials since 2010, I am not aware of any case where a ministerial PII certificate has been advanced. I acknowledge that PII certificates are more commonly used in civil cases, and I accept my noble friend’s point, that that should proceed only after very careful consideration.

[Lord Beecham (Lab)]

My Lords, is not the SFO—the Serious Fraud Office—a seriously failing office? What expectations does the noble and learned Lord have of it improving on its rather poor record thus far?

[Lord Wallace of Tankerness]

My Lords, I think that that goes slightly wide of the question asked by the noble Lord, Lord Maginnis. From Written Statements which have been made in the other place by the Attorney-General, and which I have placed in your Lordships’ House, I know a number of steps have been taken recently to improve the operation of the Serious Fraud Office. However, I will ensure that the comments made by the noble Lord are drawn to the attention of my right honourable and learned friend the Attorney General.