Disclosure of Information -- Faceless Informers and Barbarian Princes

The adage that information is power is as compellingly relevant in the cells, ranges, and courtyards of penitentiaries as it is in the corridors and suites of legislative buildings and corporations. In prison, as elsewhere, information is not only part of the calculus of power but also an essential component of fairness. The achievement of a fair balance between the claims of prisoners to disclosure of information and the competing claims of the prison administration to the confidentiality of that information is another measure of a just decision-making process.

The case for disclosure has deep historical and contemporary roots. A lead editorial in the New York Times, in supporting the publication of the report of Special Prosecutor Kenneth Starr and the details of the relationship between then President Bill Clinton and Monica Lewinsky, commented:

The nation should rely on the principles that have served the country well throughout its history. One of the most important is that full disclosure and the free flow of information are the oxygen of a democracy. ( New York Times, September 20, 1998)

Prisons are not democratic institutions, but they are one of the agencies of a democratic society. Within their walls the disclosure of information upon which decisions about a prisoner's liberty are made is no less vital to breathing the air of justice.

The issue of disclosure has also been addressed by the courts. Lord Edmund-Davis, in a House of Lords judgement, cited the following passage as expressing the competing interests involved:

Few situations in life are more calculated to arouse resentment in a person than to be told that he has been traduced, but cannot be confronted with his traducer. It is submitted that, ideally, nothing but the very pressing demands of public security, where vital interests of the community are unquestionably involved, can require that private individuals should be expected to acquiesce in their vulnerability by an invisible foe. (H.S. Hanbury, "Equality and Privilege in English Law (1952) 68 L.Q.R. 173 at 181, cited in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 17)

The issue has also been confronted by the U.S. courts. In Peters v. Hobby ( 349 U.S. 331 (1955) ), the Supreme Court heard the case of a professor of medicine who was barred from federal employment by the Federal Civil Service Commission's Loyalty Review Board. Dr. Peters had been given a hearing on charges relating to his alleged membership in the Communist Party and alleged association with communists and communist sympathizers. At the hearing, the sources of the information supporting the charges were not identified or made available to Dr. Peters' counsel for cross-examination. Justice Douglas had this to say of the process:

Dr. Peters was condemned by faceless informers, some of whom were not known even to the Board that condemned him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the Board know, they may be psychopaths or venal people like Titus Oates. They may bear old grudges. Under cross-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds or by people who, though sincere, have poor faculties of observation and memory . . .

We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial . . . When we relax our standards to accommodate the faceless informer we violate our basic constitutional guarantees and ape the tactics of those whom we despise. ( Peters, at 351-352)

Justice Douglas' comments have a particular significance in the context of life inside a prison. Prisons are rife with rumours; within such a world, it is not difficult to find prisoners who are anxious to cascade down through the system, who wish to even old scores or remove potential or actual rivals, for whom a carefully revealed piece of information is a strategy for advancing their own interests. The prison has its own brand of Titus Oates. Within such a world, the policy of preserving the anonymity of informants, far from contributing to the authorities' ability to gather the whole truth, provides incentives for the propagation of false allegations.

The claim on justice made by prisoners seeking to know the full extent of the case against them where a negative decision could lead to the deprivation of their liberty has been recognized by Canadian judges. Madam Justice Reed of the Federal Court expressed it this way:

The requirement that an individual is entitled to know, and be given an opportunity to respond to the case against him is essential not only to prevent abuses by people making false accusations but also to give the person who has been accused the assurance that he or she is not being dealt with arbitrarily or capriciously. A particularly eloquent history of the principle is found in de Smith's Judicial Review of Administrative Action (4th ed., 1980) at pages 157 - 158:

That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was adminstered, proclaimed in Seneca's Medea, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Cooke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden. (footnotes omitted) [ Gough v. Canada (National Parole Board), [1991] 2 F.C. 117 at 125 - 126]

In highlighting the importance of disclosure of information to prisoners, I am not suggesting that the well-established common law rule regarding the secrecy of police informers has less application in prison. This very issue was considered by Mr. Justice Muldoon in the following terms:

The reason for the secrecy role is abundantly clear and it operates in any civilized society, be it a free and democratic society like Canada, or a totalitarian one like many other countries in the world. It resides in the very real, and realistic, fear of retaliation in an aggressive society, which, in this instance, is the population of a maximum security penitentiary . . . That fear of retaliation is so well known and its realistic, factual basis is such that the court would be wilfully blind not to take judicial notice of that savage, unwritten "code" of conduct which is kept alive by the dominant inmates in those "aggressive (inmate) communities" in Canadian prisons. The so-called "convict code" was in no way ameliorated by the state's adoption of either the Canadian Bill of Rights or of the Canadian Charter of Rights and Freedoms. That abominable "code" makes an offence of seeking protection from, or co-operating with, the prison administration; and even though Parliament has eschewed capital punishment, the supporters and enforcers of the "convict code" do not flinch at murder, maiming, wounding, beating, or sometimes sexual indignities according to "culpability" in the administration of their brand of rotten injustice . . .

In the "aggressive society" of prisons, the "convict code" is an attempt to establish, to honour and to exact fearing tribute, and obedience, to the savagery of the barbarian princes among the inmate population . . . So for this reason, ultimately the probability of retribution, have courts defined, developed and upheld the rule of non-disclosure of the identity of informants . . .

The Court observes that given the common law rule of secrecy of the identity of informers, given the reality of that well-known abomination -- the "convict code" -- and given the historic and subsisting duty of a custodial authority to keep those prisoners committed into his, her or its charge in safe custody, only the most cogent and compelling evidence should ever persuade the Court that a Deputy Commissioner or Warden would be taking an alarmist, frivolous or careless view of the risks. ( Gill and Gallant v. Trono, [1988] 3 F.C. 361 at 368-370)

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