Criminal Law Week

Should a police force bear the costs of funding a special advocate where it claims public interest immunity in relation to certain material in family proceedings?

Nov 1, 2017

The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals – including police officers, the CPS, judges and lawyers – to stay up to date with changes in criminal law. Published 46 times a year, each issue summarises important cases and legislation, keeping you on top of the latest developments regarding offences, police powers, the rules of procedure and evidence, and more. Incisive commentary is also provided by James Richardson Q.C., the editor of Archbold. Our online service gives you access to all Criminal Law Week issues, from 1997 to today. These are pulled together in a fully-searchable database, complemented by annotated key criminal legislation. For more information about Criminal Law Week, or to sign up for a free trial of our online service, please visit or call 01483 414 599. Should a police force bear the costs of funding a special advocate where it claims public interest immunity in relation to certain material in family proceedings? Yes, said the High Court in Re R (Closed Material Procedure: Special Advocates: Funding) (CLW/17/35/12). The underlying proceedings concerned a child, aged four, who lived with his father at a secure location, which was not known to the mother. The mother had no direct contact with the child, although they had exchanged video-recorded messages. Shortly after the child’s birth, the parents had separated. There followed lengthy and bitterly contested legal proceedings. During those proceedings, the father was the victim of a serious and life-endangering attack, which he survived. That attack led to the trial and convictions of a number of people for conspiracy to murder. A significant volume of evidence gathered by the police, both used and unused in the criminal trial, was disclosed to the parties in the family proceedings. The police assessed, on information supplied, that there was a second and continuing conspiracy to murder the father. There was no evidence that the mother was part of that conspiracy. That information was shared with the parties to the proceedings. The police resisted disclosure of a small quantity of information relevant to the continuing conspiracy, arguing that disclosure of the information would materially heighten the risk to the father, child and others, and would unhelpfully expose police operational details. Following a hearing, the court confirmed that the disclosure of that material would be contrary to the public interest. Where such sensitive material is placed before the court, and requires to be examined and/or tested on behalf of the parties to whom it cannot be disclosed, the court may invite the Attorney General to appoint a special advocate, who is a security-cleared lawyer, to represent their interests. A special advocate had already been appointed to act on behalf of the mother in three closed material hearings in the case. The costs of that special advocate were funded by the police force that had investigated the original crime, though they had done so out of pragmatism rather than a sense of legal obligation. At a case management hearing, the judge directed that the father should also have a special advocate for future closed material hearings. An issue arose as to who should bear the costs of the special advocate for the father. There was no legislation, procedural rules or guidance on the appropriate funding source for special advocates in family cases. Similarly, there was no case law dealing with the issue. The Attorney General’s Office did not have a dedicated budget for the provision of special advocates in family cases and should not be expected to fund a special advocate in these circumstances. Nor was the Legal Aid Agency under a duty to fund such an advocate. The High Court held that, where it is a police force that claims public interest immunity in relation to certain material, the appropriate party to bear the costs of funding the special advocate is the polic

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