PART 6DISCLOSURE

Special counsel

150Special counsel

1

This section applies where the court is determining—

a

an application for a non-notification order,

b

an application for an exclusion order,

c

an application for a section 145 order,

d

an application for a restricted notification order,

e

an application for a non-attendance order,

f

an application for a section 146 order,

g

an application for review of the grant or refusal of any of those orders,

h

an appeal relating to any of those orders.

2

If the condition in subsection (3) is met, the court may appoint a person (“special counsel”) to represent the interests of the accused in relation to the determination of the application, review or appeal.

3

The condition is that the court considers that the appointment of special counsel is necessary to ensure that the accused receives a fair trial.

4

Before deciding whether to appoint special counsel in a non-notification case, the court—

a

must give the prosecutor an opportunity to be heard, but

b

must not give the accused an opportunity to be heard.

5

Before deciding whether to appoint special counsel in a restricted notification case, the court—

a

must give the prosecutor and the Secretary of State an opportunity to be heard,

b

must not give the accused an opportunity to be heard.

6

Before deciding whether to appoint special counsel in any case other than a non-notification case or a restricted notification case, the court must give all the parties an opportunity to be heard.

7

The prosecutor may appeal to the High Court against a decision of the court not to appoint special counsel in any case.

8

The Secretary of State may appeal to the High Court against a decision of the court not to appoint special counsel in a restricted notification case.

9

The accused may appeal to the High Court against a decision not to appoint special counsel in any case other than a non-notification case or a restricted notification case.

10

In this section and section 152—

  • “accused” includes appellant or, where the order relates to section 136(2), 137(2) or 138(2), other person to whom the section concerned applies,

  • “appellant” has the meaning given by section 132,

  • “non-notification case” means a case where the court is determining—

    1. a

      an application for a non-notification order,

    2. b

      an application for review of the grant or refusal of a non-notification order,

    3. c

      an appeal relating to such an order,

  • “restricted notification case” means a case where the court is determining—

    1. a

      an application for a restricted notification order,

    2. b

      an application for review of the grant or refusal of a restricted notification order,

    3. c

      an appeal relating to such an order.

151Persons eligible for appointment as special counsel

The court may appoint a person as special counsel under section 150(2) only if the person is a solicitor or advocate.

152Role of special counsel

1

Special counsel’s duty is, in relation to the determination of the relevant application or appeal, to act in the best interests of the accused with a view only to ensuring that the accused receives a fair trial.

2

Special counsel—

a

is entitled to see the confidential information, but

b

must not disclose any of the confidential information to the accused or the accused’s representative (if any).

3

Special counsel appointed in a non-notification case or a restricted notification case must not—

a

disclose to the accused or the accused’s representative (if any) the making of the relevant application or appeal, or

b

otherwise communicate with the accused or the accused’s representative (if any) about the relevant application or appeal.

4

Special counsel appointed in any case other than a non-notification case or a restricted notification case must not communicate with the accused or the accused’s representative (if any) about the relevant application or appeal except—

a

with the permission of the court, and

b

where permission is given, in accordance with such conditions as the court may impose.

5

Before deciding whether to grant permission, the court must give—

a

the prosecutor, and

b

in the case of an application for a section 146 order or a non-attendance order, the Secretary of State,

an opportunity to be heard.

6

In this section—

  • “the confidential information” means—

    1. a

      the information to which the relevant application or appeal relates, and

    2. b

      a copy of the relevant application or appeal,

  • “relevant application or appeal” means the application or appeal referred to in section 150(1) in respect of which special counsel is appointed.