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Osman's solicitors in response to an order for discovery. Nine of those documents (sometimes referred to as "the nine") were subsequently relied upon by Osman as supporting his argument that the accusation made against him by the Hong Kong Government was not made in good faith in the interests of justice and were the basis for his fourth application and a request for discovery of further documents.
4.
The FCO resisted the application for discovery on the grounds that the nine documents were not relevant and were in any event covered by public interest immunity (PII). The Divisional Court on 20 June 1990 refused the application for discovery on the ground of relevance and therefore found it unnecessary to consider the question of PII. Before the substantive hearing of the fourth habeas corpus application, the FCO moved to strike out any further reference to the nine documents on the grounds that they were subject to PII and irrelevant. In a judgment of 14 November 1990, the Divisional Court allowed the FCO motion both on the basis of PII and on the basis that the question of relevance had been decided by the Court in June 1990 so that there was an issue estoppel. Osman now seeks to reopen this issue by arguing that the new documents disclosed to his solicitors in Hong Kong justify the reassessment of the relevance of the FCO documents and a fresh consideration of the FCO's claim for public interest immunity.
5. A preliminary hearing was held on 31 January 1992 by the Divisional Court (Woolf LJ and Pill J) to determine the future procedure (transcript attached). The Court ordered Osman's solicitors to produce a skeleton argument (attached) and that the discovery application and substantive application be heard at the same time. Lord Justice Woolf also said that
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it would be
"insofar as any documents are concerned
convenient to the court, I put it no higher than that, if the documents were available just in case the court decided that they would wish to inspect documents".
Miss Clare Montgomery (instructed by the CPS), appearing on behalf of the Governor of Brixton Prison, said that as far as the nine documents were concerned, they could be brought to court.
6.
The possibility that the Divisional Court will order further discovery of the nine or other documents is remote. Osman's sixth application for habeas corpus was described by Lord Justice Woolf as an abuse of process and the seventh application is likely to be accorded short shrift. It may well be that counsel for the Hong Kong Government and the Governor of Brixton Prison can adequately argue the case on relevance and PII on our behalf. The FCO is not a party to the present proceedings. We have not
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