Commentary on Sections Part 6 - Disclosure Sections 141 to 145 overview
625.Occasionally there will be circumstances where the prosecutor has a duty to disclose information but is unable to do so due to the risks involved to the public interest in making such information available to the accused. The remedy for the prosecutor in such a situation is to seek authority from the court to prevent the disclosure of the information. This is known as the s.145 order. Lord Coulsfield recognised that at times such risks may arise by the mere fact of the accused’s presence at any hearing discussing the application to withhold the information. Furthermore the accused’s knowledge that such a hearing is going to take place to discuss the withholding of information, even if he will not be present at such a hearing, may be enough to create the risk to the public interest. Lord Coulsfield envisaged therefore a scheme where the rights of the accused could be safeguarded in such circumstances whilst managing the potential risks to the public interest. The provisions are designed to give effect to this.
626.There are therefore 3 orders in this scheme. The order restricting or preventing disclosure of the information, s.145 order; the order for non notification of the s.145 hearing i.e. the accused is not told that a s.145 hearing is taking place and finally the exclusion order i.e. the accused is not allowed to attend the s.145 hearing