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Immunity From Prosecution

Published online by Cambridge University Press:  16 January 2009

A. T. H. Smith
A. T. H. Smith
Affiliation:
Reader in Law, University of Durham.
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Extract

When Sir Anthony Blunt's misdeeds were exposed to public gaze by revelations that he was the so-called fourth man in the notorious group who had spied for Russia, an important area of the criminal justice process was partially uncovered as a result. The Prime Minister confirmed in a House of Commons Written Answer that Mr. Blunt (as he later became) had been granted immunity from prosecution as long ago as 1964 by the Attorney-General, Sir John Hobson. No attempt was made to suggest that this was a routine occurrence, but in the ensuing debate, the Prime Minister asserted that “it is not unusual for the Attorney-General to be asked to authorise immunity from prosecution in return for co-operation in pursuit of inquiries. It happens from time to time in the course of criminal investigations.”

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Articles
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The Cambridge Law Journal , Volume 42 , Issue 2 , November 1983 , pp. 299 - 327
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Copyright © Cambridge Law Journal and Contributors 1983

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References

1 For an account of the activities of the group, see Andrew Boyle, The Climate of Treason (1980), Revised. It was the publication of this book that inspired Mr. Leadbitter M.P. to ask the Prime Minister to make the statement from which the quotation (infra, n. 3) is taken. Since then, the literature has proliferated. See Nigel West, A Matter of Trust: MIS 1945–72 (1983); Michael Straight, After Long Silence (1983); Richard Deacon, A History of British Secret Service (1982).

2 H.C.Deb., Vol. 973, col. 679 (15 November 1979), Vol. 974, col. 402 ff. et seq. (21 November 1979).

3 H.C.Deb., Vol. 974, col. 405 (21 November 1979).

4 The Brixton Disorders 10–12 April 1981, Cmnd. 8427.

5 Report of an Inquiry by the Hon. Sir Henry Fisher into the circumstances leading to the trial of three persons on charges arising out of the death of Maxwell Confail and the fire at 27 Doggett Road, London SE6, (1977) H.M.S.O., p. 246.

6 Report of the tribunal of Inquiry appointed to inquire into certain issues in relation to the circumstances leading up to the cessation of trading by the Vehicle and General Insurance Company Ltd., H.L. 80, H.C. 133 (February 1972), para. 260. The offer by the Attorney-General was to refrain from using evidence in subsequent prosecutions.

7 Report of the Tribunal appointed to inquire into certain issues arising out of the operations of the Crown Agents as financiers on own account in the years 1967–74, H.L. 149, H.C. 364 (26 May 1982), p. 7.

8 According to the O.E.D., a grasser is “one who gives information”, and the word has its origins in rhyming slang: grasshopper—copper (or policeman). Public awareness of supergrasses has been heightened by the use in Northern Ireland of “converted terrorists” as informers and witnesses. See further below, p. 325, n. 18.

9 By the Bill of Rights 1688, s. 1. see Maitland, F., Constitutional History of England (1908), pp. 302–306.Google Scholar

10 For discussion, see Raz, J., “The Rule of Law and Its Virtue” (1977) 93 L.Q.R. 195, 201.Google Scholar

11 Immunity from prosecution is a variety of plea bargaining, which has been extensively examined in the light of Turner (1970) 54 Cr.App.R. 352. See in particular Baldwin, J. and McConville, M., Negotiated Justice (1977)Google Scholar. For a comparison between the two in the American context, see S. M. Leonard, “Judicial Enforcement of Non-statutory ‘;Immunity Grants’: Abrogation by Analogy” (1974) 25 Hastings L.R. 435.

12 The Royal Commission on Criminal Procedure, Report, Cmnd. 8092 (1981), p. 139.

13 Infra, p. 319.

14 H.C.Deb., Vol. 12, col. 12 (9 November 1981). On the same day as the Attorney-General made his statement about immunity the Prime Minister disclosed in a written reply that a Mr. Leo Long, a former associate of Mr. Blunt who had also admitted espionage, had been refused immunity from prosecution “but was told that he was not likely to be prosecuted if he cooperated in the Security Service's inquiries,” H.C.Deb., Vol. 12, col. 40 (9 November 1981). The Attorney-General stated that he would not prosecute Mr. Long for treason.

15 Presumably, as a result of questioning following a promise of immunity.

16 See the questions posed by J. D. Heydon, “Obtaining Evidence Versus Protecting the Accused: Two Conflicts” [1971] Crim.L.R. 13; see also E. Oscapella, “A Study of Informers in England” [1980] Crim.L.R. 136.

17 See Rudd (1755) 1 Leach 115; 168 E.R. 160. The matter is fully discussed in Radzinowicz, L., History of the English Criminal Law (1956), Vol. 2, p. 53.Google Scholar

18 Technically, it can still operate in this way; see Halsbury's Laws of England, 4th ed., Vol. 8, p. 606.Google Scholar

19 For discussion of the disappearance of the practice, see A. T. H. Smith, “The Prerogative of Mercy, the Power of Pardon and Criminal Justice” [1983] P.L. 398. The most spectacular modern use of the power was the pardon granted by President Gerald Ford to former President Richard M. Nixon.

20 See generally J. LL. J. Edwards, The Law Officers of the Crown, pp. 227–237. Courtesy to the court would no doubt lead the prosecutor to express the point less bluntly. But the legal position was stated by Viscount Dilhorne in Gouriet v. Union of Post Office Workers [1978] A.C. 435 as follows: The Attorney-General “merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons.” And see the anonymous article “Nolle Prosequi” [1958] Crim.L.R. 573.

21 This caused the government of the day some embarrassment when it emerged that it was unable to intervene to withdraw a prosecution against a visiting Russian athlete, Nina Ponomareva. See [1956] Crim.L.R. 725.

22 Turner (1978) 68 Cr.App.R. 70; Raymond v. Attorney-General [1982] Q.B. 839. The extent to which the courts might seek to control the Director's decision to offer no evidence is considered infra, p. 311. Offering no evidence is a well established method of making an accomplice competent: Rowland (1826) Ry. & M. 401; 171 E.R. 1063; Owen (1839) 9 C. & P. 83; 173 E.R. 751; O'Donnell (1857) 7 Cox C.C. 337.

23 Ridpath (1712) 10 Mod. 153; 88 E.R. 670: “the nolle prosequiwas neither a bar nor a discharge.” See also Wylie, Howe and McGuire (1919) 83 J.P. 295, and London County Quarter Sessions, ex p. Downes [1954] 1 Q.B. 1

24 See Mr. S. Silkin, H.C.Deb., col. 424 (21 November 1979). The decision was not ratified, apparently, by Sir Elwyn Jones during his period of office as Attorney-General: ibid.; but Mr. Silkin advised the Cabinet Office that his predecessor in office, who had by this stage become Lord Chancellor, should be informed. Although it is by no means clear precisely what offences Blunt had committed, the most obvious charges would seem to have been offences under s. 2 of the Official Secrets Acts 1911, in which case the consent of the Attorney-General would have been required before a prosecution could be brought. The immunity would therefore have implied a promise not to grant the statutory consent. But this would not, in principle at least, have been binding on a subsequent Attorney-General, since it would constitute an attempt to fetter either his own or his successor's discretion.

25 D. G. T. Williams, “Prosecution, Discretion and the Accountability of the Police”, in R. Hood (ed.), Crime, Criminology and Public Policy (1974), p. 182. See also A. S. Miller, Presidential Power (1977), p. 312, where it is said that the power to pardon “permits the President to issue general amnesties by proclamation, by which entire classes or communities are pardoned;” U.S. v. Klein, 80 U.S. 128 (1872).

26 Supra, nn. 4–5.

27 Technically, the pardon must be countersigned by a Secretary of State, not necessarily the Home Secretary: Criminal Law Act 1967, s. 9; and there have been occasions when the Foreign Secretary has taken responsibility for using the prerogative to release convicted spies. The most recent study of the operation of the prerogative is C. H. Rolph's The Queen's Pardon (1979). The Home Secretary's accountability to Parliament for the exercise of the pardon is considered in G. Marshall, “Parliament and the Prerogative of Mercy” [1961] P.L. 8.

28 A. F. Wilcox, The Decision to Prosecute (1972), p. 110. The amnesty also applied to persons who had already been convicted, including three M.P.'s, in which case it would more properly have been referred to as a pardon.

29 Ibid. No similar amnesties have been given since then.

30 18 U.S.C. 6001–6005 (1970). The first federal immunity statute was passed in 1857, c. 19, s. 2, 11 Stat. 155–156. See Kastigar v. U.S., 406 U.S. 441 (1972). See generally note, “Judicial Supervision of Non-Statutory Immunity” (1974) 65 J.Crim. Law and C, 334; Symposium “The Granting of Witness Immunity” (1976) 67 J.Crim. Law and C. 131.

31 Ibrahim [1914] A.C. 599, per Lord Sumner.

32 Ping Lin [1976) A.C. 574. The appellant had asked for immunity, but had done so only after he had given the self-incriminating evidence. The confession was held to be admissible.

33 See L. Radzinowicz, A History of English Criminal Law (1956), Vol. 2 Chap. 2 for a detailed account of the practice. John H. Langbein has recently challenged the accuracy of this version, pointing out that there was in the 18th century an important informal process, the Crown witness system, which supplemented the giving of pardons and rewards as a means of securing evidence. “Shaping the Eighteenth Century Criminal Trial: A View From the Ryder Sources” (1983) U. Chi. L. Rev. 1, at p. 84 ft

34 (1775) 1 Leach 115; 168 E.R. 160. See also Thompson (1783) 1 Leach 291; 168 E.R. 248; Cass (1784) 1 Leach 293; 168 E.R. 249.

35 See Z. Cowen and P. B. Carter, Essays on the Law of Evidence (1956) Chap. 11; Glanville Williams, “Evidence Obtained by Illegal Means” [1955] Crim.L.R. 339; J. A. Andrews, “Involuntary Confessions and Illegally Obtained Evidence in Criminal Proceedings” [1963] Crim.L.R. 15, 77; A. J. Ashworth, “Excluding Evidence as Protecting Rights” [1977] Crim.L.R. 723.

36 (1783) 1 Leach 263; 168 E.R. 234.

37 Sang [1980] A. C. 402. See P. G. Polyviou, “Illegally Obtained Evidence and R. v. Sang” in C. H. F. Tapper (ed.). Crime, Proof and Punishment (1981), p. 226; J. D. Heydon, “Entrapment and Unfairly Obtained Evidence in the House of Lords” [1980] Crim.L.R. 132; M. H. Yeo, “At the Crossroad of R. v. Sang and Bunning v. Cross” (1982) 6 Crim.L.R. 85.

38 The protection principle is fully articulated by A. J. Ashworth, “Excluding Evidence As Protecting Rights” [1977] Crim.L.R. 728. It derives support in this context from the remarks of Lord Reid in Commissioners of Customs and Excise v. Harz and Power [1967] 1 A C 760

39 (1852) 2 Den. 430; 169 E. R. 568.

40 (1853) 6 Cox 333. See Hall (1853) 2 Leach 559n; 168 E.R. 382, Boswell (1842) C. & Mar. 584; 172 E.R. 646.

41 (1866) U Cox 69. See also McHugh (1857) 7 Cox C.C. 483.

42 As to the prison chaplain, in Dingley (1845) 1 C. & K. 687; 174 E.R. 970.

43 Godhino (1911) 7 Cr.App.R. 12. An assumption by a defendant that he or she will not be prosecuted since the Director of Public Prosecutions has not prosecuted in similar circumstances on a previous occasion has been treated by the Court of Appeal as a ground for reducing sentence, but it does not give rise to any sort of defence or estoppel: Arrowsmith [1975] Q.B. 678; and see Houghton and Francoisy (1978) 68 Cr.App.R. 197.

44 Boughton (1911) 6 Cr.App.R. 8; cf. Doyle v. Leroux [1981] Crim.L.R. 631 (below, n. 84).

45 (1967) 52 Cr.App.R. 97; Cf. Challinor and Cross (1983) 76 Cr.App.R. 229.

46 Evidence (General), Cmnd. 4991 (1972).

47 Ibid., para. 65.

48 As in Zaveckas [1970] 1 W.L.R. 516; (1970] 1 All E.R. 413; Bamford and Bamford [1978] Crim.L.R. 752.

49 This is the interpretation placed on Sang [1980] A.C. 402 by the editor of Phipson and Elliott's Manual of the Law of Evidence, 11th ed. (1980), p. 226. And see C. R. Williams, “Judicial Discretion in Relation to Confessions” (1983) 3 Ox.Jo.L.S. 222.

50 For discussion, see P. Mirfield, “The Draft Code on Police Questioning: A Comment” [1982] Crim.L.R. 659.

51 B. Smythe, “The Report of the Royal Commission on Criminal Procedure II: The Prosecution of Offences” [1981] P.L. 481, 483. The pioneering study is J. Goldstein, “Police Direction Not to Invoke the Criminal Process: Low Visibility Decisions in the Administration of Justice” (1960) 69 Yale L.I. 543. And see Glanville Williams, “Discretion in Prosecuting” [1956] Crim.L.R. 226; D. G. T. Williams, “Prosecution Direction and the Accountability of the Police” in R. Hood (ed.), Crime, Criminology and Public Policy (1974), p. 182; G. Marshall, “Police Accountability Revisited” in A. H. Halsey (ed.), Policy and Politics (1978), p. 51.

52 See further infra, n. p. 316.

53 The annual report of the Chief Constable for Northern Ireland records an increase in the use of the “supergrass” or “converted terrorist”: Chief Constable's Report (1982), p. xi. See further p. 325, infra, n. 18.

54 See, e.g., M. Levi, The Phantom Capitalists (1981), describing the organisation and control of long-firm fraud.

53 See E. Oscapella, “A Study of Informers in England” [1980] Crim.L.R. 136. See also I. Eagles, “Evidentiary Protection for Informers—Policy or Privilege?” [1982] 6 Crim.L.J. 175. See also the Attorney-General's guidelines on Disclosure of Information to the Defence in Cases to be Tried on Indictment (1982) 74 Cr.App.R. 302, Cl. 12.

56 Letter to the author from the Office of the Director of Public Prosecutions. In 1969, following the decision in Birtles (1969) 53 Cr.App.R. 469, the Home Secretary issued a “confidential circular” to the Chief Officers of Police on the use of informants, the gist of which is summarised in (1969) 119 N.L.J. 513. And see J. D. McClean, “Informers and Agents Provocateurs” [1969] Crim.L.R. 527.

57 Criteria for Prosecution (1982).

58 Turner (1975) 61 Cr.App.R. 67, infra, n. 73.

59 Public Prosecutor (1982), p. 104.

60 A list of the so-called supergrasses is compiled by D. Seymour, L.A.G. Bulletin, December 1982, p. 5. None was given complete immunity. See, however, the three cases discussed infra, p. 313–316, where complete immunity clearly was given.

61 For an attempt by Mr. Christopher Price M.P. to elicit information through Parliament, see infra, n. 11.

62 H.C.Deb., Vol. 12, col. 43 (9 November 1981).

63 H.C.Deb., Vol. 12, col. 306 (9 November 1981). In the Prime Minister's written answer of the same day (col. 41), she refers to only one case apart from Blunt and Long where someone was induced to confess to the Security Service.

64 See supra, n. 30 for references to the relevant literature.

65 II Pleas of the Crown, p. 226. And see L. Radzinowicz, A History of English Criminal Law (1956) Vol. 2, p. 52.

66 R. v. M.P.C., ex p. Blackburn (No. 1) [1968] 2 Q.B. 118. Discussed by D. G. T. Williams, “The Police and Law Enforcement” [1968] Crim.L.R. 351. A possible example is provided by the reported reluctance of the D.P.P. to prosecute frauds planned by foreign nationals in this country to take place in their own countries or elsewhere abroad. A spokesman for the D.P.P. is reported to have said “we cannot comment about policy” The Times, 23 November 1982. See (1983) 4 The Company Lawyer 2.

67 Sang [1980] A.C. 402.

68 [1977] Crim.L.R. 104 (Central Criminal Court, Judge Gillis). As the Law Commission notes, it is not entirely clear what purpose the judge had in mind. See Report No. 83, Defence of General Application, p. 40(1977).

69 [1978] A.C. 435.

70 According to a newspaper report, the matter arose before the High Court in Leeds over a baby-snatching case, when the Director of Public Prosecutions declined to prosecute a father for kidnapping and his parents for perjury. The judge twice ordered the Director to consider the matters and to tell the police what further evidence was required and then if he still advised against prosecution, he was to detail his reasons for that decision. “At the D.P.P.'s office, this order was thought to represent a possible risk to the Director's constitutional position, especially if it set a precedent by which he might have to give a detailed explanation of every decision he took. Therefore on behalf of the D.P.P. the Treasury Solicitor applied to the High Court to have the decision reworded”; E. Dunn, The Sunday Times, 31 October 1982.

71 (1978) 68 Cr.App.R. 281. In Beresford (1952) 36 Cr.App.R. 1, the trial judge refused to permit the prosecution leave to withdraw, and an adjournment was taken so that the Attorney-General could decide whether to enter a nolle prosequi, which he did.

72 R. v. Canterbury and St. Augustine Justices, ex p. Klisiak [1982] Q.B. 389. Where a summary prosecution is wholly withdrawn, the court clerk must report the matter to the Director of Public Prosecutions, which might act as a check on the actions of the police where there is a suspicion that a deal has been made: Prosecution of Offences Regulations 1978, r. 9.

73 (1975) 61 Cr.App.R. 67.

74 There have, of course, been other immunities given. See, e.g., J. F. Josling, “Self Incrimination in Evidence” [1954] Crim.L.R. 916.

75 I am grateful to the office of the Director of Publications for supplying me with a copy of the transcript of their Lordships′ speeches and for arranging permission to cite from it. The Director of Public Prosecutions of the day, Sir Norman Skelhorn, has written about the incident in his autobiography Public Prosecutor (1982), p. 104, and states that he is unrepentant in his view that he was right to have granted immunity to Smalls. The New Zealand courts have also looked with equanimity upon a written grant of immunity conferred by the Solicitor-General in McDonald [1980] 2 N.Z.L.R. 103, where it was argued that the Solicitor-General had no power to grant an immunity before the indictment was preferred. The Privy Council ruled otherwise, although it did not decide whether or not the immunity bound the Crown as a matter of strict law (1983) 133 N.L.J. 514.

76 (1978) 68 Cr.App.R. 70.

77 [1982] Q.B. 839.

78 Allen (1862) 1 B. & S. 850, 121 E.R. 929.

79 Dyson v. Attorney-General [1911] 1 K.B. 410. What would happen should the use of the power become widespread is unclear. For that matter, how could the courts detect an increase in the use of the power? No statistics are kept, but the occasional parliamentary reply suggests that its formal usage is sparing; in 1976 it was used on four occasions, and in 1977. six. See H.C.Deb. Vol. 945, col. 15 (1978).

80 See Viscount Dilhorne in Gouriet v. Union of Post Office Workers [1978] A.C. 435.

81 In Cherry (1871) 12 Cox C.C. 32, the court ruled admissible inculpating statements made in the course of an examination in bankruptcy, notwithstanding that a promise had been given not to use them. But as the court noted, the defendant was obliged to submit to examination under the Bankruptcy Act, and the position might have been different had the admission been voluntary. Cf. the American rule which gives the courts power to terminate a prosecution brought in breach of an agreement not to prosecute. People v. Bogolowski, 148 N.E. 260 (1925); 157 N.E. 181 (1927, S.C. of Illinois).

82 Gould (1840) 9 C. & P. 364; 173 E.R. 870; Baker [1941] 2 K.B. 382 discussed by Glanville Williams, “Evidence Obtained by Illegal Means” [1955] Crim.L.R. 339; A. Gotlieb, “Confirmation by Subsequent Facts”(1956) 72 L.Q.R. 209. In America, by contrast, it must be shown that the evidence is “derived from a legitimate source wholly independent of the compelled testimony.” See U.S. v. Kastigar, 406 U.S. 441 (1972).

83 Supra, n. 19.

84 Brentford Justices, ex p. Chiang Hoong Wong [1981] Q.B. 445; Dewhurst v. Foster [1982] Crim.L.R. 582; R. (Smith) v. Birch and Harrington [1983] Crim.L.R. 193. However, in Doyle v. Leroux [1981] Crim.L.R. 631, the Divisional Court declined to interfere with a conviction under the blood-alcohol provisions of the Road Traffic Acts when the appellant had destroyed a potentially self-exculpating sample after receiving a letter saying that he would not be prosecuted. Cf. Moevas v. Department of Labour [1980] 1 N.Z.L.R. 464, where the authorities (including Connelly v. D.P.P. [1964] A.C. 1254; Humphreys [1977] A.C. 1) are discussed, the view is taken that the courts have an inherent jurisdiction to stop a prosecution where they take the view that it is oppressive. Cf. however, Rourke [1977] 76 D.L.R.(3d) 193 where the Supreme Court of Canada took a contrary view.

85 (1966) 51 Cr.App.R. 17.

86 (1975) 61 Cr.App.R. 67. Applied in R. v. Pentonville Prison Governor, ex p. Schneider and Another (1981) 73 Cr.App.R. 200.

87 One part of the agreement signed by the Director of Public Prosecutions read “should Smalls refuse to give or refrain from giving evidence to the best of his ability … this statement shall have no effect.” Because of the pressure that this might place on the witness to varnish the truth so as to be seen to be keeping his part of the bargain, this seems objectionable in principle.

88 Farler (1837) 8 C. & P. 106, 108.

89 It was suggested in Archbold, Criminal Evidence, Pleading and Practice, 40th ed. (1982), para. 1425a, that “a general rule seems to be developing that when a witness in a criminal case, whether he be a fellow-accused or called for the Crown, may reasonably be regarded as having some purpose of his own to serve which may lead him to give false evidence against an accused, the judge should warn the jury of the danger of convicting that accused on that witness's evidence unless it is corroborated.” See, however. Beck (1981) 74 Cr.App.R. 221, where the court disapproves the passage, saying that there is no obligation to give the accomplice warning if there is no reason to suggest that the witness is a participant. In Stainton [1983) Crim.L.R. 171, the Court of Appeal held that the appropriate warning was a matter for the judge, where he had concluded that a witness might have an axe to grind.

90 The case went before the Court of Appeal on five occasions, only one of which is reported (1978) 68 Cr.App.R. 18. A full account of the proceedings is to be found in L. Kennedy, Wicked Beyond Belief, Granada 1980, and there is a discussion of some of the legal issues by Lord Devlin, The Judge (1980), p. 148 el, seq.

91 (1974) 59 Cr.App.R. 221, following Birtles (1969) 53 Cr.App.R. 469. The accomplice in question had a picaresque history of involvement in Irish nationalist affairs which concluded shortly after his acquittal when he was found murdered. For a discussion of the issues in the American context see the note “A Prosecutor's Duty to Disclose Promises of Favourable Treatment made to Witnesses for the Prosecution” (1981) 94 Harv.L.R. 887. The matter is discussed, but not really resolved, in the Attorney-General's Guidelines; Disclosure of Information to the Defence in Cases to be Tried on Indictment (1982) 74 Cr.App.R. 302.

92 This is echoed in the confidential circular from the Home Secretary to Chief Officers of Police (1969) 19 N.L.J. 513, para. 4 of which provides that “The police must not embark on a course which will constrain them to withhold information from or mislead a court in order to protect an informant.”

93 It is repotted that in the trial of 14 Irish terrorists, who were convicted on the evidence of a former accomplice who had been granted immunity, the trial judge Murray J. was highly critical of the fact that he was uninformed about these matters by the Crown: The Times, 12 April 1983.

94 7306/75, 7 Reports, 115. The Supreme Court of the United States has held that due process is violated by an undisclosed agreement for leniency with prosecution witnesses: Giglio v. U.S., 405 U.S. 150 (1971). Art, 6(1) of the European Convention provides that “a person charged with criminal offences has the right to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” This raises the possibility that a witness for the defence may some day ask for immunity. An accused who offered money in exchange for evidence (as the state sometimes does) would run the risk of a prosecution for perverting the course of justice.

95 (1977) 66 Cr.App.R. 122, followed in Davies and Gorman (1978) 68 Cr.App.R. 319. The practice of rewarding informants is far from new. As Darling J. said in James and Sharman (1913) 9 Cr.App.R. 142, “it is expedient that there should not be [honour among thieves.]”

96 (1980) 71 Cr.App.R. 296.

97 (1981) 3 Cr.App.R.(S) 258.

98 The ancient practice whereby an accomplice who turned Queen's Evidence was required to give his evidence under pain of death should it not result in conviction. See 2 Hale, Pleas of the Crown, Chap. 29, p. 225 for a description.

99 Cf. Payne [1950] 1 All E.R. 102; Hinds [1962] Crim.L.R. 622.

1 Weekes and Others (1982) 74 Cr.App.R. 161, following a guilty plea.

2 See Woods [1976] Crim.L.R. 112. According to Archbold, para. 4–125, “In Potter, September 15, 1977, C.A. (unrep.), the court observed that the unusual practice (sentencing before the accomplice gives evidence), is not obligatory and whether it is followed depends entirely upon the circumstances of the case.”

3 Stone [1970] 1 W.L.R. 1113.

4 The Times, 20 May 1983. Precisely the same problem has arisen, coincidentally, in New Zealand where the Court of Appeal came down in favour of openness; Broadcasting Corporation of N.Z. v. Att.-Gen. [1982] 1 N.Z.L.R. 120; see J. Caldwell [1982] 6 Crim.L.J. 372.

5 (1982) 74 Cr.App.R. 204.

6 See the statement by the Attorney-General Sir Hartley Shawcross, H.C.Deb., Vol. 483, cols. 681–688 (29 January 1951). And Sir Elwyn Jones, “The Office of the Attorney-General” (1969) 27 C.L.J. 43, 50; B. M. Dickens, “The Attorney-General's Consent to Prosecutions” (1972) 35 M.L.R. 347; B. M. Dickens “The Prosecuting Roles of the Attorney-General and the Director of Public Prosecutions” [1974] P.L. 50. The leading work in the area is J. LL. J. Edwards, The Law Officers of the Crown (1964), Chap. 11, where the history of the development of the conventions is described.

7 The current position is described by the Prime Minister in her statement to the House of Commons, H.C.Deb., Col. 974, col. 407 (21 November 1979). See also the directive given to the Director General of the Security Service by the then Home Secretary, Sir D. Maxwell-Fyfe, in 1952, reproduced in the Denning Report, Cmnd, 2152 (1963), para. 238.

8 See G. Marshall and G. C. Moodie, Some Problems of the Constitution, 5th ed. (1971), p. 132 et seq,. for an account of the issues. And see (1982) 123 N.L.J. 283.

9 See the House of Commons First Report from the Liasion Committee, The Select Committee System, H.C. 92 (1982–83), para. 25, which claims that the work of the security services falls within the ambit of the departmental committees for scrutiny purposes.

10 The Government excluded the Lord Chancellor's Department and the Law Officers' Department from the scrutiny of the Home Affairs Select Committee, whereas the Procedure Committee had recommended their inclusion. H.C.Deb., Vol. 969, col. 38 (25 June 1979).

11 See the Written Question by Mr. C. Price M.P., asking how many “resident informers” had been employed by the Metropolitan Police since 1 January 1979, and how many successful prosecutions had resulted from information supplied by persons in custody. The answer (18) was conveyed in a private letter from Lord Elton dated 21 June 1982. The reply to the second question was that it was impossible to provide the answer “without disproportionate cost.” I am grateful to Mr. Price for permitting me to see the letter.

12 Or even, on occasion, when he has something to hide; see Enfield L.B.C. v. Maloney [1982] 1 W.L.R. 749.

13 For an excellent account of the American system and its history, see P. Lushing, “Testimonial Immunity and the Privilege Against Self Incrimination: A Study in Isomorphism” (1982) 73 J.Crim.L. and C. 1690.

14 Rice v. Connelly [1966] 2 O.B. 414.

15 See J. D. Heydon, “Statutory Restrictions on the Privilege Against Self-Incrimination” (1971) 87 L.Q.R. 214. The most recent example of legislative intervention in this area is in the Supreme Court Act 1980, s.72, enacted to circumvent the decision of the House of Lords in Rank Film Distributors Ltd. v. Video Information Centre [1982] A.C. 380.

16 The anonymity customarily given to the witness/victim in blackmail cases is another, and perhaps more important, inducement to such persons to come forward; see R. v. Socialist Worker Printers and Publishers Ltd., ex p. Attorney-General [1975] Q.B. 637.

17 See Parrott (1913) 8 Cr.App.R. 186, 192; Britten [1969] 1 W.L.R. 151, 153; [1969] 1 All E.R. 517, 518; Sutch [1975] 2 N.Z.L.R. 1, which hold that the expression “enemy” includes a potential enemy, at least for the purposes of the Official Secrets Acts.

18 Reported in The Times, 12 April 1983. Bennett was undoubtedly one of the “converted terrorists” referred to by the Chief Constable of the Royal Ulster Constabulary in his Annual Report (1982), where the use of immunity from prosecution as a tactic against terrorists in Northern Ireland is acknowledged to be on the increase. According to one report, 80 people have been convicted on the strength of informer evidence, and 200 people are on remand awaiting trial (Observer, 17 July 1983). Thirty-five people were convicted as a result of evidence given by Christopher Black, whose 10-year sentence was remitted, and who was granted immunity for his own part in serious crimes (The Times, 5 August 1983). 28 further people have been arrested and charged in Belfast on the strength of evidence of Robert Lean, who has been granted complete immunity from prosecution. The Times, 12, 13 September, 1983.

19 D. Koblitz, “The Public has a Claim to Everyman's Evidence” (1978) 30 Stan.L.R. 1211.

20 In McDonald [1980] 2 N.Z.L.R. 102, the two witnesses expressly disclaimed their privilege of refusing to answer on grounds of self-incrimination.

21 Doyle v. Hofsiader (1931) 177 N.E. 489, 497.

22 See generally the Report of the Home Affairs Committee, Prosecution Arrangements, H.C. 527 (1982–83), and the discussion paper prepared by the Interdepartmental Working Party on “The Organisation of an Independent Prosecution Service” (Home Office, November 1982).