Regina v. Chief Constable of the West Midlands Police
(Appellant) ex parte Wiley (A.P.) and others (Respondents)
Regina v. Chief Constable of Nottinghamshire Police
(Appellant) ex parte Sunderland (A.P.) and others
(Respondents)
(Consolidated Appeals)
JUDGMENT
Die Jovis 14° Julii 1994
Upon Report from the Appellate Committee to whom were
referred the Appeals Regina against the Chief Constable of the
West Midlands Police ex parte Wiley and others and Regina against
the Chief Constable of Nottinghamshire Police ex parte Sunderland
and others, That the Committee had heard Counsel as well on
Tuesday the 12th as on Wednesday the 13th days of April last upon
the Petitions and Appeals of the Chief Constable of the West
Midlands Police of Civic House, 156 Great Charles Street,
Birmingham B3 3HN and of the Chief Constable of Nottinghamshire
Police of County Hall, West Bridgford, Nottingham NG2 7QP,
praying that the matter of the Orders set forth in the Schedules
thereto, namely Orders of Her Majesty’s Court of Appeal of the
23rd day of July 1993, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Orders might
be reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen in
Her Court of Parliament might seem meet; as upon the cases of
Kelvin Raymond Wiley and Tony Sunderland and of the Police
Complaints authority lodged in answer to the said Appeals; which
said Appeals were by an Order of this House of the 25th day of
October last Consolidated; and due consideration had this day of
what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, that the said Orders of Her Majesty’s Court of Appeal
of the 23rd day of July 1993 complained of in the said Appeals
and the Orders of Mr. Justice Popplewell of the 16th day of
December 1992 be, and the same are hereby, Set Aside save as to
legal aid taxation: And it is further Ordered That there be no
order as to Costs in the Courts below or in respect of the said
Appeals to this House save that the Costs of the first Respondent
to each of the said Appeals to this House be taxed in accordance
with the Legal Aid Act 1988: And it is also further Ordered.
That the Cause be, and the same is hereby, remitted back to the
Queen’s Bench Division of the High Court of Justice to do therein
as shall be just and consistent with this Judgment.
Cler: Parliamentor:
Judgment: 14 July 1994
HOUSE OF LORDS
REGINA
v.
CHIEF CONSTABLE OF THE WEST MIDLANDS POLICE,
(APPELLANT)
EX PARTE
WILEY (A.P.) AND OTHERS
(RESPONDENTS)
REGINA
v.
CHIEF CONSTABLE OF NOTTINGHAMSHIRE POLICE,
(APPELLANT)
EX PARTE
SUNDERLAND (A.P.) AND OTHERS
(RESPONDENTS)
(CONSOLIDATED APPEALS)
Lord Templeman
Lord Bridge of Harwich
Lord Slynn of Hadley
Lord Woolf
Lord Lloyd of Berwick
LORD TEMPLEMAN
My Lords,
The comprehensive speech to be delivered by my noble and learned
friend Lord Woolf sets out the facts involved in this appeal, discusses the
relevant authorities and concludes that public interest immunity does not
extend generally to all documents generated by an investigation of a complaint
against the police under Part IX of the Police and Criminal Evidence Act
1984. I agree with his reasoning and his conclusions but wish to make some
– 1 –
observations on the ambit of discovery and the restrictions imposed by public
interest immunity in connection with litigation.
Public interest immunity is a ground for refusing to disclose a
document which is relevant and material to the determination of issues
involved in civil or criminal proceedings. A claim to public interest immunity
can only be justified if the public interest in preserving the confidentiality of
the document outweighs the public interest in securing justice.
Whenever disclosure in litigation is under consideration, the first
question is whether a document is sufficiently relevant and material to require
disclosure in the interests of justice. In civil proceedings a document need
only be disclosed if disclosure is necessary “for disposing fairly of the cause
or matter or for saving costs”; Order 24 Rule 8 of the Rules of the Supreme
Court. In criminal proceedings a document need only be disclosed if it is
relevant and material for the establishment of the guilt or innocence of the
accused.
In civil proceedings, the relevance and materiality of a document
depend on the issues between the parties established by written pleadings. In
criminal proceedings there is as yet no provision for written pleadings.
Prosecution authorities know which documents are relevant to the prosecution
but they cannot know for certain which documents will be relevant to the
defence. In recent cases the Court of Appeal has quashed convictions because
of the failure on the part of the police to disclose documents which,
subsequently to the convictions, were held to be relevant and material to the
establishment of the guilt or innocence of the accused. In order to avoid
criticism and a miscarriage of justice one way or the other, the police
authorities now feel obliged to disclose documents of doubtful relevance and
materiality. In civil proceedings also, pleadings may be amended, and the
issues which finally arise at the trial may not be perceived or understood at
the pleading stage. The result in both criminal and civil proceedings is that
masses of documents of no or doubtful relevance or materiality are made
available and are presented to judge and jury. The indiscriminate and
undisciplined preparation and presentation of documents for trial increase the
length and cost of the trial and sometimes enable a litigant to snatch an
undeserved victory under a cloak of confusion and obscurity which baffles
judge and jury.
The technique is well illustrated by the facts in Reg. v. Governor of
Brixton Prison, Ex parte Osman [1991] 1 W.L.R. 281 where discovery was
sought in order to delay extradition, embarrass the extradition authorities and
persuade them to change their mind about deportation. In Reg. v. Preston
[1993] 3 W.L.R. 891 an unfounded claim to the disclosure of authorised
telephone intercepts was made at the trial in the light of a defence disclosed
in detail for the first time at the trial and bearing all the hallmarks of a
defence tailored to exploit the impossibility of producing the intercepts.
– 2 –
If a document is not relevant and material it need not be disclosed and
public interest immunity will not arise. In case of doubt as to relevance and
materiality the directions of the court can be obtained before trial; a pre-trial
conference can help to define the issues and the scope of discovery. If a
document is relevant and material then it must be disclosed unless it is
confidential and unless a breach of confidentiality will cause harm to the
public interest which outweighs the harm to the interests of justice caused by
non-disclosure. It has been said that the holder of a confidential document for
which public interest immunity may be claimed is under a duty to assert the
claim, leaving the court to decide whether the claim is well founded. For my
part I consider that when a document is known to be relevant and material, the
holder of the document should voluntarily disclose it unless he is satisfied that
disclosure will cause substantial harm. If the holder is in doubt he may refer
the matter to the court. If the holder decides that a document should not be
disclosed then that decision can be upheld or set aside by the judge. A rubber
stamp approach to public interest immunity by the holder of a document is
neither necessary nor appropriate.
If public interest immunity is approached by every litigant on the basis
that a relevant and material document must be disclosed unless the disclosure
will cause substantial harm to the public interest, the distinction between a
class claim and a contents claim loses much of its significance. As a general
rule the harm to the public interest of the disclosure of the whole or part of
a document dealing with defence or national security or diplomatic secrets will
be self evident and will preclude disclosure. On the other hand it is difficult
to see how the disclosure of documents generated by the activities of the
Police Complaints Authority can cause any harm. We are told that the
activities of the Police Complaints Authority may produce documents dealing
with “sensitive police material relating to … policy and operational matters”.
It is unlikely that such matters will be relevant or material to civil or criminal
proceedings but in a proper case a claim to public interest immunity could be
asserted for the whole or part of a document in order to preserve those secrets
which, if disclosed would hamper the police in the investigation and
prevention of crime. We were also told that public interest immunity might
be claimed for the contents of the report of the investigating officer dealing
with the complaint against the police. The report itself, as distinct from the
documents generated by the inquiry, will not usually be relevant or material
or admissible in criminal or civil proceedings. If a report or part of the report
is relevant, material and admissible for the purposes of litigation I do not see
any sufficient reason for casting the cloak of secrecy over the report.
The police authorities have now abandoned the assertion that public
interest requires that all documents generated in the course of an investigation
of a complaint against the police shall be kept secret. No one defends the
reasoning of the Court of Appeal in Neilson v. Laugharne [1981] Q.B. 736.
The decision in that case inspired the extensions to the doctrine of public
interest immunity which are to be found in Hehir v. Commissioner of Police
of the Metropolis [1982] 1 W.L.R. 715 and Makanjuola v. Commissioner of
– 3 –
Police of the Metropolis [1992] 3 All E.R. 617. The result of these three
Court of Appeal authorities is that all litigants must behave as though no
investigation had ever been made by the Police Complaints Authority although
the investigation may have taken months and unearthed documents and
statements decisive of the litigation in which discovery is sought. I would
overrule these three authorities and allow the appeal.
LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend Lord Woolf. For reasons which he gives, I too
would allow this appeal, and agree with the order which he proposes.
LORD SLYNN OF HADLEY
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend Lord Woolf.
I must add, however, that while I agree that the appeal should be
allowed and the order made as proposed by my noble and learned friend for
the reasons he gives. I do not share his “considerable reservations as to
whether it would be possible to justify a class claim to immunity as opposed
to a contents claim in respect of some reports”. I prefer to leave this question
entirely open since I consider it may well be that such a class claim, narrower
than that claimed in this case, could be justified. Class claims may sometimes
have been pushed too far but on occasions in the past they have been
necessary and justified, indeed valuable.
I can well understand why the Attorney-General did not intervene in
this case. In a different situation he might consider that the public interest
required him to do so. I prefer to wait and see without casting doubt on the
possible chances of such a class claim succeeding.
– 4-
LORD WOOLF
My Lords,
The Police and Criminal Evidence Act 1984, Part IX contains a code
for investigating complaints against the police. The principal issue on these
appeals is whether statements which are made for the purposes of an
investigation into a complaint against the police in accordance with that code
belong to a “class” of documents which attracts public interest immunity.
Usually an issue of this nature would be raised in the civil proceedings
in which it is intended to use the contents of the documents. However, this
is not what happened in these cases. While the respondent, Mr. Kelvin
Wiley, has commenced civil proceedings against the appellant, the Chief
Constable of the West Midlands Police and the respondent, in the other
appeal, Mr. Tony Sunderland, is intending to bring civil proceedings against
the Chief Constable of Nottinghamshire Police, the principal issue was raised
independently in two separate applications for judicial review against the
respective Chief Constables.
The applications for judicial review came before Popplewell J. On 16
December 1992 Popplewell J. granted both applicants declarations and in
addition granted to Mr. Sunderland an injunction in respect of the use of the
documents. This was the first time that declarations and injunctions of this
nature had been granted in relation to the use of documents in other
proceedings. In the course of the hearing of the present appeals a subsidiary
issue arose as to the appropriateness of initiating separate collateral
proceedings for judicial review to determine disputes of this nature as to
public interest immunity.
The facts
The background facts can be set out briefly.
Mr. Wiley was arrested in May 1987. He was charged with offences
of robbery. Six months later, in December 1987, he was released on bail.
At his trial in January 1988 the prosecution offered no evidence. In August
1989 he made a formal complaint concerning the conduct of members of a
police force under Part IX of the Act of 1984. He later commenced an action
for damages against the Chief Constable of the West Midlands Police, alleging
false imprisonment and malicious prosecution.
Mr. Sunderland was arrested in November 1991 and charged with
assaulting a police officer. He made a formal complaint under the Act of
1984 that he had been assaulted while being taken to a police station. After
an abortive trial, the prosecution offered no evidence on his retrial. His
solicitors have written a letter before action seeking damages for false
– 5 –
imprisonment, malicious prosecution and assault from the Chief Constable of
Nottinghamshire Police, but he has not yet commenced proceedings.
A file of documents is normally created in the course of investigating
a complaint under Part IX of the Act of 1984. The file will include
statements taken in the course of the investigation and a report by the officer
conducting the investigation. The file usually comes into the possession of the
Chief Constable of the force to which the complaint relates. A series of
decisions of the courts to which I will have to refer have established that
documents included in the file are of a “class” to which public interest
immunity attaches.
Mr. Wiley and Mr. Sunderland’s legal advisers considered that it
would be unfair if in the civil proceedings the Chief Constables were able to
make use of the information obtained in the investigation while their clients
could not do so. They therefore required the Chief Constables to give
undertakings that they would not use the documents or rely upon any
information which they contained in the civil proceedings. Both Chief
Constables refused to give those undertakings. Mr. Wiley therefore declined
to make any statement in support of his complaint under Part IX of the Act
of 1984. As a result of this, the Police Complaints Authority (“the
Authority”) eventually decided that it was not reasonably practicable for the
investigation into Mr. Wiley’s complaint to continue and as a result the police
were not required to carry out further inquiries. In coming to this decision
the Authority were exercising a power “to dispense” contained in the Police
(Dispensation from Requirement to Investigate Complaints) Regulations 1985,
1985/672, as amended. The result is that no file dealing with Mr. Wiley’s
complaint came into existence. While Mr. Sunderland also refused to make
any statement, the investigation into his complaint did proceed and a file
containing documents relating to his complaint was created.
In both cases Popplewell J. granted declarations that the Chief
Constables had “acted unlawfully” in refusing to give the undertakings which
had been sought. The injunction granted on Mr. Sunderland’s application
restrained the Chief Constable of Nottinghamshire Police “from using
documents created in the course of and for the purpose of [the] investigation”
of Mr. Sunderland’s complaint (and any information derived therefrom) for
any purpose in his proposed proceedings against the Chief Constable. Mr.
Justice Popplewell also considered the application for judicial review which
Mr. Wiley had commenced challenging the Authority’s decision to grant
dispensation to the Chief Constable of the West Midlands Police from
continuing to investigate his complaint. This application was unsuccessful
with the result that no file to which public interest immunity could attach came
into existence as a result of Mr. Wiley’s complaint. This is the reason why
he was not granted an injunction.
Mr. Wiley and Mr. Sunderland having succeeded before Popplewell
J., the Chief Constables appealed. There was no appeal from the decision of
– 6 –
Popplewell J. in favour of the Authority or in respect of a similar decision on
an application against the Authority by a Mrs. Johnson. The Authority was.
however, represented by Mr. Pannick Q.C. before the Court of Appeal and
on the present appeal. In the Court of Appeal the Authority supported the
respondents in opposing the appeals of the Chief Constables. In the Court of
Appeal the Chief Constables argued that a “half-way house” solution should
be adopted. They conceded that information in the complainants’ file “(i)
cannot be used to assert a positive case, (ii) cannot form the basis of cross-
examination, and (iii) cannot be justification for a pleading (if that is different
from (i) above).” (Per Staughton L.J. [1994] 1 W.L.R. 126 A/B). However,
subject to these concessions they wished to be able to use the information
contained in the documents. It could, for example, be used to assess whether
the actions should be settled or to select witnesses to be interviewed. The
Court of Appeal considered that the “half-way house” solution was not logical
and dismissed the appeal. However, the Court recognised that this involved
extending the immunity of a police complaints’ file so as to prevent the use
of the information contained in the file as well as its disclosure in civil
proceedings. The Court of Appeal were clearly concerned as to the
correctness of this conclusion which they considered they were required to
come to as a consequence of the previous authorities and for this reason they
gave leave to appeal to this House.
On the appeal to their Lordships’ House the Chief Constables
contended for the first time that public interest immunity did not attach to
documents created for the purpose of an investigation of a complaint under the
Act of 1984. This argument had not been advanced previously because of
authorities which the Chief Constables regarded as binding on the Court of
Appeal. The same approach was adopted by Mr. Wiley and Mr. Sunderland
since if public interest immunity did not attach to the file they would have
equal access with the Chief Constables to the file, making an undertaking no
longer necessary. The Written Case on behalf of the Authority, however,
argued that the appeal should be dismissed. In the Case the position of the
Authority was stated in these terms:
“11. The P.C.A. believes that unless public interest immunity
applies to material supplied by a complainant or a witness in the
course of a complaint under Part IX of the 1984 Act, potential
complainants (and their witnesses) will be deterred from co-operating
with a complaints investigation unless and until a civil action is
resolved. This would have a very detrimental effect on the important
public interest in effective investigations into alleged misconduct by
police officers.
“12. That public interest immunity applies in this context does not
mean that the public interest considerations identified above will
always be held to outweigh any competing public interest
consideration. There will be public interests (for example, the
acquittal of the innocent and the conviction of the guilty in a criminal
– 7 –
trial) which outweigh the public interest considerations in non-
disclosure.”
This approach was consistent with that adopted by the Authority in the
Court of Appeal. Nolan L.J. in his judgment records that Mr. Pannick told
the Court of Appeal that:
“the use by Chief Constables of complaints investigation material in
preparing their defence ‘has a very detrimental effect on the important
public interest of speedy and effective investigations into alleged police
misconduct’ ” (1984 1 W.L.R. 127 E-F).
Both Nolan L.J., and Staughton L.J., referred to the triennial review of the
Authority for 1988/1991, para. 4.5, which consistent with what Mr. Pannick
submitted, states:
“In our view this [the ability to use the complaint file] gives the police
an advantage over the plaintiff which is not insubstantial – and which
results in plaintiff-complainants refusing to co-operate with the
complaints procedure until after their civil claim for damages has been
heard and settled. This is a serious matter because it may deprive the
police of any reasonable chance to enforce discipline on an officer if,
in fact, he has misconducted himself.”
However, by a letter dated 5 April 1994 written on behalf of the
Authority by the Treasury Solicitor, the Authority indicated that following
consultation with Counsel, its attitude had recently changed. The Authority
was now of the view “that the maintenance of [public interest immunity]
covering all complaints information in this context is not necessary to avoid
deterring genuine complaints.” The letter indicated that: “on reflection the
Authority would not wish to urge upon their Lordships the maintenance of the
wide principle stated by the Court of Appeal in Neilson v. Laugharne [1981]
Q.B. 736 and added:
“The P.C.A. is of the view that the maintenance of P.I.I, [public
interest immunity] covering all complaints information in this context
is not necessary to avoid deterring genuine complainants and that
indeed the law as stated in Neilson has from time to time caused
serious difficulties in practice for the operation of the police complaints
investigation system (as the case law recognises). The P.C.A. would
therefore wish to submit to their Lordships that there has been, since
Neilson, a shift in the balance of public interest on these matters.”
The letter nonetheless went on to say:
“However, there will of course be circumstances in which P.I.I, will
continue to apply to particular types of information within the context
of the investigation of complaints into police misconduct. It will be
– 8 –
necessary to maintain P.I.I, class protection for the report of the
investigating officer, which provides the P.C.A. with inter alia an
assessment of the quality and credibility of witnesses and with a
recommendation. Furthermore it will be necessary to maintain P.I.I.
class protection in relation to sensitive internal police material relating
for example to policy and operational matters (especially in the light
of the power of the Appropriate Authority to refer a matter to the
P.C.A. pursuant to section 88 of the Police and Criminal Evidence Act
1984). In addition, P.I.I, may apply to the contents of particular
documents or information obtained in the context of a police
complaints investigation (such as information containing the identity of
an informant). These examples are not intended to be exhaustive.
The application of these principles will depend on the circumstances,
in particular the existence of any competing public interest in favour
of disclosure. Such narrower applications of P.I.I, in this context are
not before their Lordships in the present cases, but we mention them
for the sake of completeness.
“The matters raised above as to the application of P.I.I, do vitally
depend on the specific circumstances of the investigation of police
misconduct and the disciplinary or other consequences which may flow
from such investigation. Therefore the P.C.A. will suggest to their
Lordships that the conclusions reached by their Lordships should be
confined to the application of P.I.I, in the context of complaints
against the police and of the facts of these particular cases. The
application of P.I.I, in other contexts (in which the P.C.A. has no
locus) must depend on a careful consideration of the view of the party
entitled to claim P.I.I, and of all the relevant circumstances in each
such context.”
At the opening of the appeal, Mr. Pannick informed their Lordships
that the Attorney General, although he was aware of the new position being
adopted by the Authority, did not wish to intervene to advance a different
argument before their Lordships.
The result of the position being adopted by all the parties on this
appeal meant that no argument was advanced before their Lordships
supporting the conclusion to which the Court of Appeal and Popplewell J. had
come. In particular, no argument has been addressed to their Lordships in
support of the existence of the broadly based class immunity which both the
lower courts had sought to uphold.
Their Lordships are therefore put in the position of having to consider
whether the concessions which are now made on behalf of the Chief
Constables and the Authority are correct. Mr. Gompertz Q.C., on behalf of
the Chief Constables, did, however, advance a subsidiary argument that even
if the public interest immunity applied, it was an immunity which prevented
disclosure of information or documents and not an immunity which restrained
– 9 –
the use of that information or those documents. Mr. Reynold Q.C., on the
other hand, contended on behalf of the respondents, that if the immunity
existed it should extend to the use of documents or information. Mr. Pannick
urged their Lordships to confine their decision to the broad issue, on the
outcome of which all parties are agreed. He submitted their Lordships should
not consider the qualifications to the general position identified in the letter
from the Treasury Solicitor to which I have already referred.
There is force in Mr. Pannick’s argument that their Lordships should
adopt a restrictive approach to the issues before them. Questions as to the
scope and impact of public interest immunity are controversial at the present
time. Any views expressed on these subjects by their Lordships’ House are
therefore likely to be regarded as being of considerable significance. As a
result of the parties being agreed on the outcome of these appeals, their
Lordships have been deprived of the advantage of hearing adversarial debate
on the principal issue. There has also not been the advantage of hearing
argument on behalf of the Attorney General who, in his capacity as the
guardian of the public interest, rather than in his role as the legal adviser to
the government, has a unique responsibility in this area of the law. It could
well be that if he had considered that their Lordships were contemplating
considering the law as to public interest immunity in a wider context than was
strictly necessary for the decision in this case, he would have wished to be
heard before any decision was reached by their Lordships.
Therefore, although their Lordships have had the benefit of the
carefully reasoned judgments of Popplewell J. and each member of the Court
of Appeal. I do propose to confine my remarks to the issues which I regard
as directly arising for decision on this appeal and not to consider the wider
issues which are subject to debate at the present time. However, even for this
purpose it is necessary to examine the present state of the law as applied by
the Court of Appeal in some detail and to trace the development of the law
both before and since the critical decision for the purposes of this appeal of
the Court of Appeal in Neilson v. Laugharne (1981) Q.B. 736. This is
necessary because I am satisfied on the basis of the argument that has been
advanced that the decision of the Court of Appeal in that case was incorrect
and caused the law in relation to public interest immunity to take a wrong turn
and that a series of decisions which purported to follow the Neilson case have
proceeded further in the wrong direction. It is at least necessary to return the
law to the position in which it was prior to that decision.
However, before examining the manner in which the law has
developed, it is desirable to emphasise that we are here concerned with public
interest immunity in relation to civil proceedings. In civil proceedings
questions as to public interest immunity usually arise on discovery, where
even if documents are strictly speaking relevant the court can exercise
considerable control over whether to require the documents to be delivered up
for inspection to another party in the proceedings. This control should enable
the court in many situations, but by no means all, to overcome, with the
– 10 –
cooperation of the parties, any problems as to discovery without investigating
possible claims to public interest immunity in respect of documents. Without
disclosing the documents by adopting a flexible approach it should be possible
to ensure that the other party is not deprived of any information of which
justice requires him to be aware. It is important in this context to remember
that while the obligation to make discovery is the wide one contained in
R.S.C. Ord. 24 r. 3(1) as explained in Compagnie Financiers du Pacifique v.
Peruvian Guano Company [1882] 11 Q.B. 55 at p. 63, that general obligation
is subject to the important proviso set out in Ord. 24 r. 8 that the court:
“shall in any case refuse to make … an order if and so far as it is of
opinion that discovery is not necessary either for disposing fairly of the
cause or matter or for saving costs.” (Emphasis added)
and the similar restriction contained in Ord. 24 r. 13 as to inspection. The
use of the word “necessary” in Ord. 24 means that there are many situations
where the court can avoid having to determine whether the order for
production of documents should be refused on the ground that the documents
are not necessary for either of the purposes referred to in Ord. 24 it. 8 and
13 although it cannot be said that they are not relevant.
The authorities prior to Neilson
The decision of Duncan v. Cammell, Laird & Company Ltd. [1942]
A.C. 624, is usually regarded as being a convenient starting point for
consideration of the development of the law as to public interest immunity or,
as it was then known, “Crown Privilege” because the decision reflected the
high water mark of judicial acceptance of the immunity of documents from
disclosure in order to protect the public interest. On the facts which were
involved in that case the decision of the House was perfectly understandable
since the documents related to the sinking of a submarine, on which secret
equipment was installed during her trials in 1939, with the loss of her crew.
However, this House in sweeping terms unanimously laid down that a court
could never question a claim to “Crown Privilege” by the Crown if the claim
was made in proper form. This applied both to the contents of individual
documents and classes of documents. The dangerous consequences which
could follow from this approach were clearly identified by Lord Pearce in
Conway v. Rimmer [1968] AC 910 at 985:
“Any department quite naturally and reasonably wishes, as any
private business or any semi-state board must also wish, that its
documents or correspondence should never be seen by any outside eye.
If it can obtain this result by putting forward a general vague claim for
protection on the ground of candour it can hardly be blamed for doing
so. ‘It is not surprising’ it has been said (Professor Wade.
Administrative Law, 2nd ed. at page 285) ‘that the Crown, having been
given a blank cheque, yielded to the temptation to overdraw.’ And the
defect of such an argument is that discrimination and relaxation of the
– 11 –
claim could not be acknowledged by the Crown lest it jeopardise the
claim of the whole class of documents and of other classes of
document. No weighing of the injury done to particular litigants (and
thereby to the public at large) by a resulting denial of justice can be
made. The Ministry puts forward the rigid general claim. The court
accepts it. The litigant ruefully leaves the lists, a victim of an
injustice, great or small. In some cases this injustice is a necessary
evil for the public good, in others it is unnecessary. Yet the court has
not weighed the balance or considered whether the public interest in
the well-being or routine of the Ministry or the public interest in the
fair administration of justice should have prevailed in that particular
case.”
In Conway v. Rimmer the House alleviated this undesirable legal
situation established by Duncan v. Cammell Laird. Having regard to the facts
with which these appeals are concerned, it is of interest to note that in
Conway v. Rimmer, the House was concerned with a case in which a former
police constable began an action for malicious prosecution against his former
superintendent and the documents which gave rise to the appeal included four
reports made by the superintendent about the plaintiff during his period of
probation and a report by him to his Chief Constable for transmission to the
Director of Public Prosecutions in connection with the prosecution of the
plaintiff on a criminal charge on which he was acquitted. The House, in that
case, made it clear that, even though there was objection by the Secretary of
State in proper form to the production of the documents, the courts, in the
appropriate circumstances, could, if necessary, inspect the documents. It was
also entitled to balance the public interest in avoiding harm being done to the
nation or the public service as against the public interest that the
administration of justice should not be frustrated by the withholding of the
production of the documents. If the court came to the conclusion that the
public interest in the disclosure of the documents was greater than the public
interest in their immunity, then the court could order that the documents be
disclosed. The House having inspected the documents came to the conclusion
that they contained nothing which would be in any way prejudicial to the
public interest and they should be disclosed.
In the course of his speech, Lord Reid referred to a statement made by
the then Lord Chancellor, Lord Kilmuir, in this House on 6 June 1956 which
explained the difference between a claim for public interest immunity based
on the contention that the contents of a particular document would injure the
public interest if disclosed and a class claim. With regard to a class claim
which is the type of claim with which we are concerned with here, Lord Reid
said that he regarded a proper test to be applied as being that used by Lord
Simon in Duncan’s case, and involved asking whether the withholding of a
document because it belongs to a particular class is really “necessary for the
proper functioning of the public service” (at p. 942). Lord Reid added at pp.
953-4:
– 12 –
“The police are carrying on an unending war with criminals
many of whom are today highly intelligent. So it is essential that there
should be no disclosure of anything which might give any useful
information to those who organise criminal activities. And it would
generally be wrong to require disclosure in a civil case of anything
which might be material in a pending prosecution: but after a verdict
has been given or it has been decided to take no proceedings there is
not the same need for secrecy. With regard to other documents there
seems to be no greater need for protection than in the case of
departments of Government.
“It appears to me to be most improbable that any harm would
be done by disclosure of the probationary reports on the appellant or
of the report from the police training centre. With regard to the report
which the respondent made to his chief constable with a view to the
prosecution of the appellant there could be more doubt, although no
suggestion was made in argument that disclosure of its contents would
be harmful now that the appellant has been acquitted. And, as I have
said, these documents may prove to be of vital importance in this
litigation.”
The next case to which it is desirable to refer is Reg. v. Lewes
Justices, Ex parte Secretary of State for the Home Department [1973] A.C.
388, at p. 400. The case is primarily significant in the development of the
law in relation to public interest immunity because of another passage in a
speech of Lord Reid which as it is relevant to the issues with which we are
concerned, I will set out:
“The ground put forward has been said to be Crown privilege.
I think that that expression is wrong and may be misleading. There is
no question of any privilege in the ordinary sense of the word. The
real question is whether the public interest requires that the letter shall
not be produced and whether that public interest is so strong as to
override the ordinary right and interest of a litigant that he shall be
able to lay before a court of justice all relevant evidence. A Minister
of the Crown is always an appropriate and often the most appropriate
person to assert this public interest, and the evidence or advice which
he gives to the court is always valuable and may sometimes be
indispensable. But, in my view, it must always be open to any person
interested to raise the question and there may be cases where the trial
judge should himself raise the question if no one else has done so. In
the present case the question of public interest was raised by both the
Attorney-General and the Gaming Board. In my judgment both were
entitled to raise the matter. Indeed I think that in the circumstances it
was the duty of the board to do as they have done.
“The claim in the present case is not based on the nature of the
contents of this particular letter. It is based on the fact that the board
– 13 –
cannot adequately perform their statutory duty unless they can preserve
the confidentiality of all communications to them regarding the
character, reputation or antecedents of applicants for their consent.
“Claims for ‘class privilege’ were fully considered by this
House in Conway v. Rimmer [1968] AC 910. It was made clear that
there is a heavy burden of proof on any authority which makes such
a claim. But the possibility of establishing such a claim was not ruled
out.”
In addition to the fact that this passage explains why it is now the
practice to refer to public interest immunity rather than Crown Privilege, I
draw attention to what Lord Reid said about the role of the Crown and also
what he said about the burden of proof on any authority which makes a claim
on a class basis.
The only other case to which it is necessary to refer before coming to
the decision in the Neilson case, is the decision of this House in D. v.
N.S.P.C.C. [1978] AC 171. The significance of that case is that it made
clear that the immunity does not only exist to protect the effective functioning
of departments or organs of central government or the police, but also could
protect the effective functioning of an organisation such as the N.S.P.C.C.
which was authorised under an Act of Parliament to bring legal proceedings
for the welfare of children.
The Neilson case
Having, I hope, adequately set the scene I turn to the decision of the
Court of Appeal in Neilson. The case involved proceedings which had been
commenced by the plaintiff in the County Court claiming damages from a
Chief Constable after the plaintiff had made a complaint which had resulted
in the Chief Constable instituting the complaints procedure under section 49
of the Police Act 1964 which was the predecessor to the procedure which is
now contained in Part IX of the Act of 1984. In the course of discovery the
Chief Constable objected to the production of the documents on the ground
that their production would be injurious to the public interest and on the
ground that they were covered by legal professional privilege. The judge
upheld the claim that the documents were covered by legal professional
privilege. The Court of Appeal did not accept this was the case but dismissed
the plaintiff’s appeal on the grounds that the documents were entitled to public
interest immunity on a class basis. Lord Denning M.R., at p. 749 was of the
opinion that the statements were privileged from production “in a way
analogous to legal professional privilege and child care privilege”. This
approach of Lord Denning has not been adopted in subsequent cases and it is
the judgment of Oliver L.J. to which most attention needs to be given. Oliver
L.J., at p. 751, was not particularly impressed by the case which was put
forward on the basis of confidentiality. However, he did not regard
– 14 –
confidentiality in the broad sense as being an exclusive test. He considered
what it was necessary to do in these terms:
“What, as it seems to me, one has to look at is the likely consequences
of a general right to disclosure in civil litigation in the context of the
statutory purpose sought to be achieved by the section and to ask, first,
whether these likely consequences support the contention that such
disclosure would be contrary to the public interest and, secondly, if so,
whether that interest is a consideration of such importance as to
outweigh the public interest in disclosure.”
I do not see any objection in having regard to the statutory purpose of the
legislation as long as care is exercised not to attach too much importance to
this. If the legislation does not provide expressly for immunity for documents
created in order to achieve the statutory purpose the courts should be slow to
assume this was required by Parliament. Oliver L.J. then referred to the
observations of Lord Salmon in the Lewes case that immunity from disclosure
is not likely to be extended to classes of documents other than those already
recognised by the courts as entitled to immunity, though the boundaries of
immunity are not to be regarded as immutably fixed. He then went on to
consider whether the liability to disclose the documents in civil proceedings
would adversely affect the attainment of the legislative purpose and having
done so came to the conclusion that it would in a number of ways which he
identified. The first was that police officers who are asked to cooperate in the
inquiry would clearly be disinclined to provide statements which might
subsequently be used to found civil claims against them. Oliver L.J.
considered the invidious position of a junior officer whose statement could
come to the knowledge of the officer whose conduct is under investigation and
under whom he might have to continue to serve. He also referred to the
position of relatives, associates or neighbours of the complainant and asked
whether such persons were:
“likely to be willing to offer free and truthful cooperation in
investigations under the section if they know that any statements which
they make are liable to be disclosed to the complainant in any civil
proceedings which he may be minded to commence?”
Finally, Oliver L.J. referred to the position of the complainant himself, that
he might be deterred from making a statement if it could be quoted against
him in any civil proceedings which he had in contemplation. In addition,
Oliver L.J. referred to the burden which would be placed upon the police
authority if they were placed in the position of having to scrutinise every
statement made on an inquiry under the section so as to ascertain whether or
not it should be the subject matter of a contents claim.
The third member of the court, O’Connor L.J., agreed with the
reasons given by Lord Denning M.R. and Oliver L.J. for protecting the
statements from disclosure.
– 15 –
As to the reasoning of Oliver L.J., the first thing which has to be said
is that the only evidence in support of the claim was apparently an affidavit
of a Deputy Chief Constable to the effect that an inquiry would be prejudiced
if persons approached to make statements thought that such statements might
be used in civil litigation and revealed to the parties. It was insubstantial
material on which to establish a new class claim to public interest immunity.
It was certainly not self-evident that the adverse consequences to which
Oliver L.J. referred would follow without establishing a new class claim.
Oliver L.J. accepted that the fact that the documents would not be immune in
disciplinary or criminal proceedings undermined a case for immunity on the
basis of confidentiality but somewhat surprisingly did not consider that this did
not also undermine the case based upon lack of cooperation. If there were
disciplinary or criminal proceedings then the fellow officer or the witness
would be well aware of the part which the witness had played. As to the
complainant, the point was weakened by the fact that, founding himself upon
what was said by Lord Cross of Chelsea in Alfred Crompton Amusement
Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405
at p. 434, he accepted that the complainant’s statement could be included in
counsel’s brief and may form the basis of cross-examination although it could
not be used as evidence to controvert anything which the complainant’s
witnesses might say.
Finally, the administrative burden which might be placed upon the
police of scrutinising the documents to see whether a contents claim for
immunity could be justified, provides no proper foundation for establishing a
class basis for immunity. In many situations the police have to shoulder this
burden, particularly to protect informers. If this were to play any part in
determining the situations to which class immunity applies, the extension to
class immunity would be very great indeed. The police are not the only
public body who have a burden of this nature.
It is now necessary to refer to the cases in which Neilson has not only
been followed but also has been given an extended application.
The first case is Hehir v. Commissioner of Police of the Metropolis
[1982] 1 W.L.R. 715. In that case there had been an inquiry under the then
section 49 of the Police Act 1964 which is the predecessor of the current
legislation contained in the Act of 1984. Mr. Hehir had made and signed a
statement for the purposes of the inquiry. Mr. Hehir brought proceedings for
false arrest and malicious prosecution and at the trial of those proceedings,
counsel for the defendant wanted to make use of the statement in cross-
examination to show inconsistencies between the evidence which the plaintiff
had given and the contents of the statement. This would involve the contents
of the statement being disclosed and the plaintiff objected. The trial judge
ruled that he would permit the cross-examination but he allowed the plaintiff
to appeal. The Court of Appeal reversed the judge’s decision and decided that
he could not do so applying the decision in Neilson.
– 16 –
Although the Court of Appeal faithfully followed Neilson. it is clear
that it did so with reluctance. Giving the leading judgment, Lawton L.J.
described the adverse effect of the Neilson case. He pointed out that before
the decision of Conway v. Rimmer, it had been the practice of the Solicitor to
the Metropolitan Police to advise police officer defendants in civil proceedings
to disclose all relevant documents except those that were clearly subject to
public interest immunity, which at that time was regarded as applying to
statements made by informers and police documents revealing what had
happened in the course of police investigations. That if then a claim for
immunity was made, it would be supported by a certificate by a higher officer
of state, such as the Home Secretary or the Attorney General. After Conway
v. Rimmer on the advice of the Solicitor statements made in the course of
investigations undertaken pursuant to section 49 were disclosed. However,
after Neilson the Solicitor concluded that the statements should not be
disclosed. Lawton L.J. indicated that if public interest immunity attached,
then the defendant Commissioner of Police, who was the recipient, not the
maker of the statement, was not in a position to “waive” the public interest
immunity which applied and this prevented the defendant cross-examining the
plaintiff on his statement. The Court of Appeal was bound by the decision of
Neilson and for applying that decision the Court of Appeal cannot be faulted.
However, I note that the Court of Appeal did not determine where, in the
circumstances of that case, the balance lay between the conflicting public
interests but it is probable that the Court of Appeal was not asked to perform
that task. (As to which see the judgment of Ralph Gibson L.J. in Halford v.
Sharples [1992] 1 W.L.R. at p. 764).
The next case is Makanjuola v. the Commissioner of Police of the
Metropolis [1992] 3 All E.R. 617. The decision was given on 16 March 1989
although it was reported much later. It is a case of some importance. The
plaintiff made a complaint under section 49 of the Police Act 1964 and also
commenced proceedings against the Commissioner of Police claiming damages
arising out of an alleged assault on the plaintiff. The complaint was the
subject of disciplinary proceedings, both before a Police Disciplinary Tribunal
and the Police Disciplinary Appeals Tribunal. At both hearings a full
shorthand note was taken. In the course of her action the plaintiff sought
discovery and production of all witness statements taken in the course of the
investigation, transcripts of evidence given at the hearings, the decisions of the
Tribunals and the Home Secretary’s formal decision on the appeal and the
disciplinary book kept by the Commissioner relating to the police officer
concerned. The trial judge ordered the discovery of the transcript and of
witness statements of witnesses who consented to their disclosure. The
Commissioner appealed and the plaintiff cross-appealed. The Court of Appeal
held that the witness statements taken by the police in the course of
investigating the complaint, including the complainant’s own statements were
protected from production or disclosure in civil proceedings brought by the
complainant against the police on the ground of public interest immunity,
notwithstanding that the makers of the statements might consent to their
– 17 –
disclosure, since the immunity could not be displaced by consent. The
statements used as evidence in the disciplinary hearing and the transcript of
such hearings were also held to be protected from production or disclosure.
In the course of his judgment Lord Donaldson of Lymington M.R.
acknowledged that in Neilson public interest immunity was not claimed for the
complainant’s own statement. However, Lord Donaldson considered that the
judgments of Oliver L. J. in Neilson and Lawton and Brightman L.JJ. in Hehir
led to the conclusion that a complainant’s statement was subject to the same
public interest immunity. This surprisingly was thought to be the position,
notwithstanding the fact that the complainant had a specific right to receive a
copy of her own initial complaint under Regulation 9(1) of the Police
(Complaints) (General Regulations) 1985, S.I. 1985/520. Lord Donaldson
M.R. was also of the view that the consent of a witness to a statement being
supplied did not alter the situation. With regard to the suggestion that the
complainant could, herself, have taken a shorthand note of the evidence and
therefore the transcript should be made available, Lord Donaldson took the
view that the chairman of the Tribunal could and should refuse to allow a
complainant to take a shorthand note of the evidence.
In relation to a suggestion that the effect of refusing disclosure would
be to put the plaintiff in a disadvantageous position because the defendants
would have full records of what the witnesses were able to say and the
plaintiff would not, Lord Donaldson indicated that the plaintiff could give
evidence of her recollection of events and the obvious answer to her dilemma
was to seek leave to interrogate both defendants.
I refer to this reasoning of Lord Donaldson since to my mind it
illustrates the extent to which the court was compelled to go in order to justify
refusing disclosure in order to apply the Neilson case.
Bingham L. J. having considered the possible grounds for distinguishing
Neilson also came to the conclusion that the Neilson case could not be
distinguished and therefore the defendant’s appeal had to be allowed and the
plaintiff’s cross-appeal dismissed. Bingham L.J. after he had expressed his
conclusion went on to make the following comments which have since
attracted considerable attention and probably explain why the case was
belatedly reported:
“I would, however, add this. Where a litigant asserts that documents
are immune from production or disclosure on public interest grounds
he is not (if the claim is well founded) claiming a right but observing
a duty. Public interest immunity is not a trump card vouchsafed to
certain privileged players to play when and as they wish. It is an
exclusionary rule, imposed on parties in certain circumstances, even
where it is to their disadvantage in the litigation. This does not mean
that in any case where a party holds a document in a class prima facie
– 18 –
immune he is bound to persist in an assertion of immunity even where
it is held that, on any weighing of the public interest, in withholding
the document against the public interest in disclosure for the purpose
of furthering the administration of justice, there is a clear balance in
favour of the latter. But it does, I think, mean: (1) that public interest
immunity cannot in any ordinary sense be waived, since, although one
can waive rights, one cannot waive duties; (2) that, where a litigant
holds documents in a class prima facie immune, he should (save
perhaps in a very exceptional case) assert that the documents are
immune and decline to disclose them, since the ultimate judge of
where the balance of public interest lies is not him but the court; and
(3) that, where a document is, or is held to be, in an immune class, it
may not be used for any purpose whatever in the proceedings to which
the immunity applies, and certainly cannot (for instance) be used for
the purposes of cross-examination.” (Emphasis added)
This is a very clear statement as to the nature of public interest
immunity, most of which I would unhesitatingly endorse. It was referred to
by Nolan L.J. and by Popplewell J., in particular, in support of their
conclusions in this case. However, the dicta of Bingham L.J. numbered (1),
(2) and (3) I suspect, may have been applied subsequently in a manner which
goes beyond what Bingham L.J., who had considerable experience of this
subject both in practice and on the bench, may have intended. As these
remarks were made after the merits of the particular appeal which was before
the Court had been dealt with, I would be surprised if Bingham L.J. was
intending by these remarks to extend principles of public interest immunity or
to make their application any more rigid than was required as a result of the
previous authorities. I would certainly not regard them as being of general
application without hearing fuller argument as to this being appropriate. It is
to be noted that the Makanjuola case was not one involving a Department of
State. If a Secretary of State on behalf of his Department as opposed to any
ordinary litigant concludes that any public interest in documents being
withheld from production is outweighed by the public interest in the
documents being available for purposes of litigation, it is difficult to conceive
that unless the documents do not relate to an area for which the Secretary of
State was responsible, the court would feel it appropriate to come to any
different conclusion from that of the Secretary of State. The position would
be the same if the Attorney General was of the opinion that the documents
should be disclosed. It should be remembered that the principle which was
established in Conway v. Rimmer is that it is the courts which should have the
final responsibility for deciding when both a contents and a class claim to
immunity should be upheld. The principle was not that it was for the courts
to impose immunity where, after due consideration, no immunity was claimed
by the appropriate authority. What was inherent in the reasoning of the House
in that case was that because of the conflict which could exist between the two
aspects of the public interest involved, the courts, which have final
responsibility for upholding the rule of law, must equally have final
responsibility for deciding what evidence should be available to the courts of
– 19 –
law in order to enable them to do justice. As far as contents of documents are
concerned, I cannot conceive that their Lordships in Conway v. Rimmer would
have anticipated that their decision could be used, except in the most
exceptional circumstances, so that a Department of State was prevented by the
courts from disclosing documents which it considered it was appropriate to
disclose. As to class claims, it is interesting to note that Lord Reid in his
speech in Conway v. Rimmer referred to the announcement of the then Lord
Chancellor in the House of Lords in June 1956 that in future reports of
witnesses to accidents, medical reports and other documents which were
previously the subject of a claim to privilege on a class basis would in future
be disclosed. Again, recently the Government itself has been reviewing what
documents can be disclosed in the furtherance of open government and as a
result of that review, documents are now being made available which in the
past have been the subject of claims to immunity. Compare the present policy
in regard to minutes of meetings between the Chancellor of Exchequer and the
Governor of the Bank of England with the decision of this House in Burmah
Oil Co. Ltd. v. Governor and Company of the Bank of England [1980] A.C.
1090. I doubt whether the courts would ever interfere with governmental
decisions of this nature.
Where, however, parties other than government departments are in
possession of documents in respect of which public interest immunity could
be claimed on a class basis, there are practical difficulties in allowing an
individual to decide that the documents should be disclosed. The
indiscriminate and, indeed, any disclosure, of documents which are the subject
of a class claim to immunity can undermine that class. If the reason for the
existence of the class is that those who make the statement should be assured
that the statement will not be disclosed, the fact that in some cases they are
disclosed undermines the assurance. The assurance can never be absolute
because of the residual power of the court to order disclosure in the interest
of the administration of justice. However, if the assurance is to have any
value the cases where disclosure occurs have to be restricted to situations
where this is necessary. Here the court may have to intervene to protect the
public interest.
In Makanjuola, as in the present cases, it was a Chief Constable who
was involved in the decision as to whether disclosure should be made. His
decision may not have been the same as that which would be taken by a Chief
Constable of a different force. In a situation where the courts have already
established that a class immunity applies to the documents, it may be
appropriate for a Chief Constable, who appreciates that the documents fall
within that class, not to make a decision that the documents should be
disclosed without consulting other Chief Constables and in a case of this
nature, the Authority and the Attorney General and possibly the Home
Secretary as well. However, if having conducted the necessary consultation
his decision is endorsed, then it is unobjectionable for the Chief Constable to
make disclosure. The court, if the matter came before it, would act on their
views, this being the evidence of those best able to assess the importance of
– 20 –
the public interest involved in making disclosure. If their views were that the
documents should be disclosed the result of seeking the court’s assistance
would be a foregone conclusion. Indeed, in this case having regard to the
universality of the views of those directly affected, even if the Neilson
decision had been correct at the time it was decided, it would have been
difficult, if not impossible, for the court to do other than act on the views
which are now expressed as to where the public interest lies. In a situation
of doubt there would be justification for the cautious approach which Bingham
L.J. was advocating of normally leaving the matter to the court. What
Bingham L.J. was saying may be no more than an echo of a well known part
of the speech of Lord Simon of Glaisdale in Reg. v. Lewes Justices, Ex parte
Secretary of State for the Home Department [1973] A.C. 388 at p. 407, which
is in these terms:
“It is true that the public interest which demands that the evidence be
withheld has to be weighed against the public interest in the
administration of justice that courts should have the fullest possible
access to all relevant material (Rex v. Hardy (1794) 24 State Tr. 199,
808; Marks v. Beyfus (1890) 25 Q.B.D. 494: Conway v. Rimmer
[1968] AC 910); but once the former public interest is held to
outweigh the latter, the evidence cannot in any circumstances be
admitted. It is not a privilege which may be waived by the Crown
(see Marks v. Beyfus at p. 500) or by anyone else.”
It will be observed from that passage that when Lord Simon said that the
privilege was one which could not be waived, he was referring to the situation
after it had been determined that the public interest against disclosure
outweighed that of disclosure in the interests of the administration of justice.
When that is the determination which has been made, it is inevitable that the
preservation of the document should follow so as to protect what has been
held to be the dominant public interest. It is, however, unhelpful to talk of
“waiver” in the different situations where the balancing of the conflicting
public interests has not yet been carried out or where it has been carried out
and the result requires disclosure. Although it is the practice to talk of
conflicting public interests this can be misleading. The conflict is more
accurately described as being between two different aspects of the public
interest. If it is decided that the aspect of the public interest which reflects the
requirements of the administration of justice outweighs the aspect of the
interest which is against disclosure, then it is the public interest which requires
disclosure.
Lord Simon’s statement was also referred to by Lawton L.J. in his
judgment in the Hehir case. Lawton L.J.’s judgment was cited to the Court
of Appeal in Makanjuola and was in terms referred to by Bingham L.J. in his
judgment in Makanjuola. Bingham L.J. would therefore have been aware that
Lawton L.J. had said: “If the reason for the immunity is the need to protect
the public interest individuals should be unable to waive it for their own
– 21 –
purposes” (emphasis added). For reasons already indicated, an ordinary
individual is in a different position from a public body since it is the public
in whose interests immunity is conferred and a public body may be in a
position to represent the public. Brightman L.J. pointed out that different
considerations arose where the maker of a statement for the purposes of the
then section 49 of the Police Act 1964 wishes it to be disclosed. In that
situation, he regarded it as at least arguable that public interest would not
continue to attach immunity to the statement. This, he indicated, is perhaps
“not strictly a question of waiver, but of public interest immunity ceasing to
attach to a statement if particular circumstances exist.” With this approach I
would agree. If the purpose of the immunity is to obtain the cooperation of
an individual to the giving of a statement, I find it difficult to see how that
purpose will be undermined if the maker of the statement consents to it being
disclosed.
In Hehir the question of the use of statements which are subject to
public interest immunity was also considered. It was, however, considered
in the context of a finding that, notwithstanding the interests of the
administration of justice, the statements should be withheld for public interest
immunity reasons. In that situation a statement could not be produced for the
purposes of cross-examining a witness on his statement. If Bingham L.J. in
his comment numbered (3) with regard to cross-examination was merely
reiterating this position, then I would not regard what he has said as being in
any way controversial. Clearly, if a statement cannot be disclosed for one
purpose it cannot be disclosed for another purpose when the balance of public
interest remains the same. The balance can, however, change and the court
could take one view of where the balance lay before a trial started and a
different view during the course of the trial. If the evidence given by the
witness was in flat contradiction to what he had said on a previous occasion,
the judge might, after inspecting the documents himself, regard the conflict
as being so vital to the proper resolution of the litigation that he was required
to change a ruling which was made before the terms of a witness’s evidence
were known. The evidence given by the witness would have changed the
balance. It will also be appreciated that it is one thing to say that a statement
is not to be disclosed even for the purpose of cross-examination and another
to say that the contents of the statement cannot be the source which leads to
a line of cross-examination in respect of which the answers of the witness will
be binding on the cross examiner.
The next case to which it is necessary to refer is the decision of the
Court of Appeal in Halford v. Sharples [1992] 1 W.L.R. 736. The
proceedings arose out of a complaint by an Assistant Chief Constable to an
industrial tribunal against her Chief Constable alleging that she had been the
victim of unlawful sex discrimination. This case is of interest because the
Neilson decision was extended so as to apply, as the headnote indicates, to
documents of any type created in the course of an internal police inquiry
whether in accordance with the complaint procedure now contained in the Act
of 1984 or as a consequence of other internal procedures. This approach has
– 22 –
to be compared with what happened in Conway v. Rimmer. For present
purposes, however, what is of greater significance is the fact that it was
conceded in this case by all parties and accepted by the court, as a result of
the Hehir and Makanjuola decisions (a transcript of the Makanjuola decision
was available to the court), that if documents were protected from disclosure
in the public interest, the Chief Constable was not entitled to make any use of
information contained in the documents. It made no difference that both
parties were well aware of the contents of the documents. They were not
even entitled to rely on secondary evidence of the documents. This meant that
the Chief Constable in that case would have to amend his pleadings to delete
allegations based on information available to him from the documents since
if he did not do so the Assistant Chief Constable would be able to move to
strike out those particulars. In fact, the concession which was made went
beyond anything which was decided in the Hehir case. The majority of the
Court of Appeal in Halford accepted what was described by counsel for the
Chief Constable in that case as the “what is sauce for the goose is sauce for
the gander” approach. This involved an acceptance that what had been
hitherto an immunity from disclosure was now also an immunity and
prohibition from use. The attraction of adopting this approach, influenced by
counsel, is that it is intended to introduce equality between the parties. It can
also be described as the level playing field approach. As one side cannot see
what is in the documents, the other side should be prevented from using the
contents of the documents. The case was one in which counsel for the
Secretary of State appeared to assist the Court. It is of interest to note the
debatable approach which counsel for the Secretary of State considered it was
appropriate to adopt having regard to the authorities. In the words contained
in the judgment of Sir Stephen Brown P.:
“He accepted that there is a general duty to disclose everything that is
relevant except that which the law prohibits. He explained that the
Secretary of State’s position was, and always had been, that it is not
in the public interest that complaints and discipline files should be
disclosed. He said that the Secretary of State was not making policy
in taking that view but was merely obeying the law, (emphasis added)
The test was not ‘Will it do any harm in this case?’. The emphasis
should be placed upon the integrity of the files. Contributors to
section 49 procedures were entitled to know and to be assured that
what they had contributed will not be seen by anybody including the
inspectorate or the Secretary of State. He said that in this case the
Secretary of State had not seen the files in question.”
If counsel was seeking to indicate that the Secretary of State no longer
had responsibility for considering and assisting the court if necessary by
providing evidence as to where the public interest lay, then I would disagree.
It was unfortunate that the Court of Appeal in Halford had to deal with
the matter on the basis of a concession, although it was understandable why
the concession was made. In Halford the Court of Appeal were not referred
– 23 –
to the case of Reg. v. Commissioner of Police of the Metropolis, Ex parte
Hart Leverton, 2 February 1990 (not fully reported). That was a case in
which Nolan J. gave the judgment of the Divisional Court. The applicant had
been convicted but his conviction was quashed on appeal. He then issued civil
proceedings and at the same time issued a complaint under the Police
Complaints procedure. Immunity was claimed for documents relating to the
disciplinary hearing in accordance with the Neilson case. The applicant then
sought an undertaking of the Commissioner that the documents could not be
used for any purpose in the civil proceedings by the Commissioner or his legal
adviser or the police officers under his direction or control or otherwise.
Nolan J., in his judgment, pointed out that the applicant was especially
concerned that the information contained in the document should not be used
for such purposes as advising on evidence, identifying and taking statements
from potential witnesses and generally planning the conduct of the defence.
Argument centred on Bingham L.J. ‘s statement numbered (3) and reliance was
placed on what was said by Lord Cross of Chelsea in Alfred Crompton
Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2)
[1974] A.C. 405 at p. 434 where he said:
“No doubt [the information] will form part of the brief delivered to
counsel for the Commissioners and may help him to probe the
appellant’s evidence in cross-examination; but counsel will not be able
to use it as evidence to controvert anything which the appellant’s
witnesses may say.”
The speech of Lord Cross on this aspect of the case reflected the
unanimous view of this House (Viscount Dilhorne dissented but agreed with
the speech of Lord Cross on the public interest immunity). Having referred
to that passage, Nolan J. continued his judgment by saying:
“The main relevance of the passage which I have quoted for the
present purposes lies in the assumption of Lord Cross that the
protected information would form part of the brief to the respondent’s
counsel in the arbitration proceedings presumably to make such use of
it as he properly could, without trespassing upon its immunity from
disclosure. As will be seen, Lord Cross went further and envisaged
the use of the information to probe the appellant’s evidence in cross-
examination. With all due respect and deference, I would hesitate
from my part to go so far, particularly in the light of the judgment of
Bingham L.J. but the point does not arise in the present case because
of the disavowal by the respondent of any intention to cross-examine
on the basis of the protected material.
“Leaving that point aside, I consider that the speech of Lord Cross
supports the attitude adopted by the respondent in the present case.”
Nolan J. added:
– 24 –
“Neither the respondent nor his legal advisers can or should exclude
from their minds in contesting a case the information derived from the
complaints inquiry. They are bound to keep it in mind and thus use
it in a sense, if only to ensure that excluding material is not put before
the courts. By doing so, they may help or they may hinder a
respondent’s case. The guiding principle is simply that they should not
speak to introduce material directly or indirectly into the case.”
In making the last remark, Nolan J. was reflecting the concession of
the Commissioner that statements taken in the course of a complaints inquiry
could not be tendered in evidence, could not be used to assert a positive case
and could not form the basis of cross-examination. This concession appears
to extend beyond the disclosure of the documents themselves to the material
in the documents.
There remain two more cases to which I should refer before turning
to the decision in this case. The first of those cases is Peach v. The
Commissioner of Police of the Metropolis [1986] Q.B. 1064. This case is of
significance because the Court of Appeal did, on this occasion, seek to stem
the growth of the restrictive effect of public interest immunity consequent
upon the Neilson decision. The case was one in which the plaintiff was
claiming damages for her son’s death allegedly brought about by a blow from
a police truncheon. The proceedings in that case which resulted in the
document coming into existence were not confined to a police complaint under
what is now the Act of 1984. They were part of the context of a wider
inquiry which was already in train in conjunction with the complaint
procedure and the complaint procedure was not the dominant reason for the
statements coming into existence. In these circumstances, discovery was
ordered. Purchas L.J. expressed his conclusion in these terms, at p. 1089:
“In my judgment, in the class of documents with which we are now
faced there is an overwhelming bias in favour of the public interest
being served by the disclosure of those documents and that, therefore,
there is no justification for creating a new class of privileged
documents which would be the effect of extending the class in respect
of which Neilson v. Laugharne [1981] Q.B. 736 remains an authority
to the class of documents with which the court is concerned in this
appeal.”
The second case is Ex parte Coventry Newspapers Ltd. [1993] Q.B.
278. Here, a conviction had been referred by the Home Secretary to the
Court of Appeal Criminal Division. The person convicted made a complaint
that his conviction was based on fabricated admissions. Previously, there had
been an investigation of his complaint by the Police Complaints Authority.
For the purpose of the reference, the Court of Appeal Criminal Division had
ordered disclosure to B., the individual concerned, of all the documents in the
possession of the Authority as a result of the investigation, on his implied
undertaking not to use the disclosed documents other than for the purpose of
– 25 –
pursuing his appeal on the reference. Assurances had been given to
informants that the statements would not ordinarily be used, otherwise than for
the investigation of the complaint or for any criminal or disciplinary
proceedings which might follow. Two of the police officers who had been the
subject of the investigation commenced proceedings for libel and for the
purposes of the libel proceedings the defendant newspaper in those
proceedings wished to have access to the papers. It was argued on behalf of
the newspapers that it was in the interests of justice that they should have
access to the documents to enable them to plead justification with full
particularity in the expectation that admissible evidence would become
available to support the plea at the trial of the action. The Court of Appeal
varied B.’s undertaking to allow him to hand over the documents to the
defendants in the libel action, on their undertaking to use those documents
only for the purpose of defending that action. The court did this having
weighed the countervailing public interests involved. The Lord Chief Justice,
Lord Taylor of Gosforth, summarised the reasoning for the decision in these
terms:
“Given the central objective of this category of public interest
immunity as ‘the maintenance of an honourable, disciplined, law-
abiding and incorrupt police force’ given the grave public disquiet
understandably aroused by proven malpractice on the part of some at
least of those who served in the now disbanded West Midlands Serious
Crime Squad, given the extensive publicity already attaching to the
documents here in question following the appellants’ successful appeal,
it seems to us nothing short of absurd to suppose that those who
cooperated in this investigation – largely other police officers and court
officials – will regret that cooperation, or that future generations of
potential witnesses will withhold it, were this court now to release the
documents to C.N.L. to enable them to defeat, if they can, an
allegedly corrupt claim in damages.”
The Lord Chief Justice in summarising his reasoning in the terms in
which he did, was not seeking to go behind the decision in the Neilson case.
On the contrary, he rejected the suggestion of counsel that the circumstances
were distinguishable from those in Neilson on the approach adopted in the
Peach case. However, the fact that the Lord Chief Justice took such a firm
line as to where the balance of public interest lay and as to the risk of the
court’s decision undermining the purpose of the class privilege surely calls
into question the strength of the foundation upon which the class privilege was
based.
The judgments in this case
In a very closely reasoned judgment, Popplewell J. examined the
authorities to which reference has been made and also the position of the
Authority as indicated in their triennial review of 1988-1991 in which the
Chairman, His Honour Judge Petre, expressed concern as to whether the legal
– 26 –
advisers of a police force should have access to statements made for the
purpose of a complaint where the force are the defendants in civil
proceedings. The view of the Authority was that such access gives the police
an advantage which results in complainants who are plaintiffs in civil
proceedings refusing to cooperate with the complaints procedure until after the
civil claim for damages has been heard or settled. The Authority also
considered that this non cooperation can have the effect of depriving the police
of any reasonable chance of enforcing discipline against an officer who has
misconducted himself. Therefore, to enable the complaints procedure to be
pursued simultaneously with the civil claim without disadvantage to the
plaintiff, an investigating officer’s report and the witness statements obtained
by him should not be disclosed to lawyers who are instructed by a force to
defend proceedings arising from an incident about which the complaints had
been made. The judge also recorded that it was conceded before him that if
the Chief Constables were correct and they were entitled to use the material
for the purposes indicated in the Hart Leverton case, this would give them a
considerable advantage in civil litigation over the plaintiff. The judge
therefore came to the conclusion that if this were to happen, justice would not
only not be seen to be done but would also not in fact be done. In addition,
the complaint procedure could be “handicapped if not rendered valueless”.
In this situation, he considered it was difficult to see what logic there could
be which prevents the use of the complainant’s statement by way of cross-
examination but nevertheless entitles the legal advisers to the Chief Constable
to use it for other purposes. He rejected the half-way house solution
contended for by the Chief Constables. Instead, he considered that the parties
should be required to conduct their cases on equal terms so as to avoid the
purpose of the investigation being emasculated and frustrated. He therefore,
having heard argument as to what was appropriate relief, granted the
declarations and the injunction restraining the Chief Constable of
Nottinghamshire from using the documents for any purpose in the proposed
proceedings to be brought against him for false imprisonment, malicious
prosecution and assault, save for the purpose of identifying those documents
as being subject to public interest immunity on discovery.
In the Court of Appeal it was common ground that in civil proceedings
public interest immunity applies on a class basis to the file of documents that
came into existence as a result of the investigation into the complaints which
had been made. The Court of Appeal therefore focused on the question
whether the Chief Constables were entitled to use the information contained
in the documents to assist their cases in the civil proceedings. In his
judgment, Staughton L.J. by reference to the code of conduct of the Bar,
demonstrated how this could assist the Chief Constables in their defence of the
civil proceedings. Even though the documents could not be produced in
evidence, they could be used to justify making allegations in the pleadings and
as a source of ammunition for the purposes of cross-examination. Staughton
L.J. rehearsed the practical considerations in favour of there being what he
described as a new restriction, that being the restriction imposed by
Popplewell J. and those against the new restriction and came to the conclusion
– 27 –
that there was no clear preponderance one way or the other between the
practical consideration in favour of and those against the restraint on the use
of the information. He added that:
“The purity of the stream of justice must never, in theory, be stained
by soil on the smallest slope at one end of the level playing field. But
in practice that can sometimes only be avoided by expense and
inconvenience which are disproportionate to the objective sought.”
He also reviewed the earlier authorities and came to the conclusion that in his
opinion three was no authority binding upon him to hold that “public interest
immunity in a police complaints case extends to use of information in civil
proceedings as well as disclosure.” However, on the basis of the concessions
by the parties which had been repeated before the Court of Appeal in similar
terms to those in Halford v. Sharples [1992] 1 W.L.R. 736, he decided that
the appeal should be dismissed. Nolan L.J. relied on the submissions which
were made by counsel on behalf of the Authority, that the use by Chief
Constables of complaints investigation material in preparing their defence had
“a very detrimental effect on the important public interest of speedy and
effective investigations into alleged police misconduct”. He also had regard
to the passage from the triennial review referred to earlier and concluded, that
it was plain beyond argument that the line drawn by him in Ex parte Harte
Leverton could no longer be held. Nevertheless, he suggested that the
difficulties which recent practical experience revealed might justify a broader
reconsideration of the assumptions upon which the Neilson decision was
based. Nourse L.J. was of the same opinion as Staughton and Nolan L.JJ.
and shared the view of Popplewell J. that the half-way house contended for
by the Chief Constables “has no logic”. The appeal was therefore
unanimously dismissed.
Between the hearing in the Court of Appeal and the hearing before this
House, as already indicated, the Authority has accepted that in general the
class immunity created by the Neilson decision can no longer be justified.
However, in my opinion this is the case, not because of any change in the
balance of public interest or change in attitudes since the Neilson decision, but
because establishing a class of public interest immunity of this nature was
never justified. This lack of justification is part of the explanation for the
problems which the courts have since had in finding a logical limit to the
application of the class and creating a sensible balance between the interest of
those involved in subsequent legal proceedings and be interest of those
responsible for conducting the investigations into Police Complaints.
The recognition of a new class-based public interest immunity requires
clear and compelling evidence that it is necessary. Yet as the present case has
demonstrated, the existence of this class tends to defeat the very object it was
designed to achieve. The respondents to the present appeal only launched
their proceedings for judicial review to avoid the existence of a situation
where their position would be prejudiced as a result of their not being given
– 28 –
access to material to which the police had access. Their non-cooperation was
brought about because of the existence of the immunity. Mr. Reynold Q.C.,
on behalf of the respondents, made it clear that if there were to be disclosure
of documents which came into existence as a result of the investigation, it
would be inappropriate to grant injunctive relief. The restrictive nature of any
assurance which could be given to a potential witness in relation to civil
proceedings meant that it was unlikely to have significant effect on their
decision as to whether to cooperate or not. The class was artificial in
conception and this contributed to it having to be rigidly applied. The
comments of the Lord Chief Justice in Ex parte Coventry Newspapers Ltd.
which have already been cited, are likely to be equally appropriate in the great
majority of cases. While I agree with Lord Hailsham’s statement in D. v.
N.S.P.C.C. at p. 230 that:
“The catagories of public interest are not closed, and must alter from
time to time whether by restriction or extension as social conditions
and social legislation develop.”
In my opinion no sufficient case has ever been made out to justify the class
of public interest immunity recognised in Neilson.
The Neilson case and the cases in which it was subsequently applied,
should therefore be regarded as being wrongly decided. This does not,
however, mean that public interest immunity can never apply to documents
that come into existence in consequence of a police investigation into a
complaint. There may be other reasons why because of the contents of a
particular document it would be appropriate to extend immunity to that
document. In addition, Mr. Pannick submitted that the report which comes
into existence as a result of a police investigation into a complaint, is a
candidate for public interest immunity on a narrower class basis. Mr. Pannick
did not, however, have available the evidence which would be needed to
succeed on this submission. Although I have considerable reservations as to
whether it would be possible to justify a class claim to immunity as opposed
to a contents claim in respect of some reports, it would not be right to close
the door to a future attempt to establish that the reports are subject to class
immunity.
The fact that documents coming into existence as a result of a police
investigation are not entitled to public interest immunity from disclosure
means that the decision of Popplewell J. and that of the Court of Appeal were
wrong in these cases and the declarations and the injunction should not have
been granted.
The Collateral Proceedings
However, before leaving these appeals it is desirable that I say
something about the appropriateness of seeking to establish the existence and
the effect of public interest immunity in collateral proceedings. Because it
– 29 –
may be necessary to weigh the conflicting public interests for and against
disclosure, the balance between which will vary from case to case, it is
preferable, where possible, that the issue of the status of the documents and
their contents should be determined, where this is necessary, in the actual
proceedings in which they are relevant. The relationship between the
respective public interests may vary as the case proceeds to trial and even
during the trial and it can complicate the determination of the issue for it to
be dealt with in separate proceedings.
The reason for resorting to separate proceedings in this case is
understandable. It was considered that it could be appropriate to grant an
injunction assuming that the documents were subject to public interest
immunity on a class basis, preventing their use by the defendants. However,
even if the class claim had been well founded it would not be appropriate to
grant an injunction or to require an undertaking of the type which was sought
by the respondents in this case. In general, the immunity is provided against
disclosure of documents or their contents. It is not, at least in the absence of
exceptional circumstances, an immunity against the use of knowledge obtained
from the documents. It is impractical and artificial to erect barriers between
a party and his legal advisers in an attempt to avoid that party having an
advantage in the proceedings.
If the legal advisers of a party, who is in possession of material which
is the subject of immunity from disclosure, is aware of the contents of that
material, they will be in a better position to perform what they should
consider to be their duty, that is to assist the court and the other party to
mitigate any disadvantage which results from the material being not disclosed.
It may be possible to provide any necessary information without producing the
actual document. It may be possible to disclose a part of the document or a
document on a restricted basis. An assurance may be accepted by counsel.
In many cases cooperation between the legal advisers of the parties should
avoid the risk of injustice. There is usually a spectrum of action which can
be taken if the parties are sensible which will mean that any prejudice due to
non disclosure of the documents is reduced to a minimum.
However, in those cases, which should be a minority of cases, where
material cannot be disclosed even though this prejudices the other party, it is
neither desirable nor practical to try and achieve a level playing-field by
resorting to orders of the son which were made in this case. To prevent the
Chief Constables making any use of the material which was thought to be the
subject of class privilege could even cause them greater prejudice than would
be caused to the respondents as a result of their being deprived of the
material. If any disciplinary or criminal proceedings take place prior to the
civil proceedings, the party deprived of the documents may be nonetheless
aware of the major part of the contents of the material as a result of those
proceedings. It will frequently increase the risk of injustice occurring to
deprive both sets of legal advisers of the excluded material when this can be
avoided. The decisions in Hehir and Ex parte Coventry Newspapers Ltd.
– 30 –
illustrate the disadvantages that can result. A party could be deprived of a
wholly meritorious defence which he might be able to establish from evidence
apart from that to which the public interest immunity applies. Less harmful
consequences are likely to flow from a successful claim to public interest
immunity if the proceedings are conducted in as normal a manner as possible
and the court and the parties do their best to limit the prejudice to the party
deprived of disclosure of the documents by giving him so far as is possible
information which is necessary by other means.
For these reasons I would allow this appeal and set aside the injunction
and declarations granted by Popplewell J. I would make no order for costs
on this appeal or in the courts below in respect of the application for judicial
review by the respondents. No order for costs is appropriate because the
Authority only appeared in the Court of Appeal and the House of Lords to
assist and the appellants and the respondents have changed their position from
that adopted in the courts below.
LORD LLOYD OF BERWICK
My Lords,
For the reasons given by Lord Woolf, I agree that Neilson v.
Laugharne [1981] Q.B. 736 was wrongly decided, and should be overruled.
It was decided on the grounds that complainants would not come forward, and
witnesses, whether police officers or relations of the complainant, would not
give statements, if they thought they might be used in subsequent civil
proceedings, and that the statutory purpose of creating the police complaints
procedure would thereby be thwarted.
The evidential basis for this view of the facts was always very slender.
It is now agreed to have been mistaken. It follows that there is no general
class immunity covering all documents created in the course of investigating
a complaint about police misconduct.
I agree also with Lord Woolf’s analysis of Bingham L.J.’s judgment
in Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 All E.R.
617.
I would want to guard against inferring that the distinction between a
class claim for public interest immunity and a contents claim is now liable to
lose much of its significance; and I would leave open the question whether
there may not be a more limited class claim covering, for example, the report
of the investigating officer. Mr. Pannick invited us to go no further than we
need in deciding the issues before us, as to which there was no dispute. I
would, for my part, think it right to accept that invitation.
– 31 –
I would also guard against the view that it is for the holder of a
document in every case to decide whether its disclosure would cause
substantial harm to the public interest. In that connection I would endorse the
distinction drawn by Lord Woolf between the Secretary of State on behalf of
a Department on the one hand, and an individual litigant on the other.
For the reasons given by my noble and learned friend Lord Woolf I
would allow this appeal, and agree with the order which he proposes.
– 32 –
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