- MR JUSTICE MOSES: There is before the Court an application for permission to apply for judicial review. The claimant seeks to challenge a decision of the Police Complaints Authority, dated 3rd April 2001, in which it refused to disclose information to the claimant in reliance upon section 80 of the Police Act 1996.
- Stanley Burnton J, on a written application for permission, granted permission to argue that the Police Complaints Authority lacked sufficient independence to carry out the investigation, but he refused permission to argue the second point in relation to disclosure of information pursuant to section 80.
- The matter was listed before me for hearing for three hours, with three hours of preparatory reading. In view of the amount of judicial time already occupied with this matter (there having already been judicial review proceedings) and the presence of all the parties, together with the opportunity to read their written submissions, I decided to consider the matter as if it was a full hearing. There was clearly urgency in resolving this matter. I shall, accordingly, consider this matter as if it was a full hearing and then decide whether, in the light of the facts, my reasons and conclusions, I grant permission on the second point under section 80 and, if I do so, what my conclusions are. I say straightaway that I do grant permission in relation to that second point.
The Facts:
- The claimant was knocked off his bicycle by an unmarked car on 7th April 1999. The car was driven by a detective sergeant. When the claimant got up and moved away he says he was knocked down a second time. He sustained severe injuries which included a fracture of the right femur. He complained, through his solicitor on 4th May 1999, that the detective sergeant driving the car had attempted to kill him by driving at him. He also alleged that he had been a victim of racism and made a complaint about his treatment in hospital, which proved to be unfounded.
- In the meantime, the Chief Constable of West Yorkshire Police had referred the matter to the Authority, pursuant to section 71 of the Police Act 1996, and the claimant's complaints formed part of the subject matter of an investigation to consider both criminal proceedings and disciplinary charges against that officer.
- Before the investigation was completed, but after consideration of the facts by the prosecuting authority, the officer was charged with driving without due care and attention. There was some suggestion at one stage that he had been charged with dangerous driving, but no such charge was ever made. He pleaded guilty by post to the charge of driving without due care and attention. The reason for the decision as to the nature of the charge being taken before the investigation was completed is that there is a six-month time limit in relation to charges of driving without due care and attention.
- The claimant and his solicitor viewed a video tape taken from a helicopter of the incident and they produced extracts from what witnesses had said about the incident to those conducting the investigation. A number of witnesses made criticisms of the driver's driving as it appeared to them. The police officer was fined £250 and received an endorsement of five penalty points.
- Subsequently, on 5th September 2000, the Authority notified the claimant of the outcome of the investigation. I need not detail the reasons for the conclusion that there would be no merit in disciplinary proceedings, suffice it to say that the test which they adopted was subject to criticism because it referred to the absence of any irrefutable evidence of recklessness or intent to kill.
- The claimant challenged the adoption of that test in judicial review proceedings. Those judicial review proceedings were compromised and as a result of the compromise the Authority agreed to review the decision that had been made, approaching it afresh with a fresh official acting on behalf of the Authority.
- On 26th January 2001 the fresh official, the Authority member, Caroline Mitchell wrote to solicitors for the complainant saying that the review would be thorough and independent and would give reasons, and at the end of the letter said:"Should you wish to submit any further evidence I shall be pleased to take account of it but would ask you to do so within fourteen days." The solicitors responded on 31st January 2001 saying that they would submit further evidence and asking the Authority to confirm what documents they held.
- The Authority responded to that request on 21st February saying:
"I can confirm that I am happy to review the entire case rather than confining the review to [the named police sergeant]
In carrying out my review I shall have regard to evidence received from the witnesses whose names are set out in the schedule accompanying this letter. Also listed in the schedule are the documents which I shall be taking into account."
- There then followed a list of statements, two of which at least the claimant already has, a statement from Anthony Green, Bakhtiar Khan and the doctor at the accident and emergency department Lisa Perez. A number of documents were also listed, some of which the claimant obviously already had, such as his letter of complaint, statements his solicitors had obtained and photographs of the scene and vehicles. But there were other statements that he did not have and other documents that he did not have.
- The solicitors wrote asking for disclosure of all the statements and documents in the list so that "we are in a position", as it was put, "to make informed representations".
- The Authority responded on 13th March 2001:
"I am afraid that I am unable to comply with your request for disclosure of the statements and documents because there is no provision in the scheme for disclosure in this way. If there are any issues on which you require clarification, however, I shall do my best to assist."
- She also copied representations that solicitors for the officer had made and repeated: "If you wish to submit any evidence to me I should be pleased to receive it...". The letter from the solicitors for the police officer pointed out that the matter was stale by now and had already been disposed of by the criminal proceedings.
- The decision letter which is the subject matter of challenge was, as I have said, dated 3rd April 2001. The relevant part states:
"Section 80 of the Police Act 1996 prevents the Authority disclosing any information received by the Authority in connection with its functions under Part IV of the 1996 Act. The information which you have requested is such information. Section 80 sets out three exceptions where disclosure is permitted. The only one of the three that is presently relevant is s.80(1)(a). This permits disclosure "so far as may be necessary for the proper discharge of the functions of the Authority".
- The Authority does not consider in the circumstances that disclosing to Mr Green the material that you seek is necessary for the proper discharge of its functions. Mr Green is the person who made the complaints and has himself made a statement for the purpose of the investigation of those complaints. He knows the identities of the persons whose statements have been received by the Authority. He and his legal representatives have seen the video of the incident, though they do not retain a copy. The Authority is satisfied that the material available to it (which includes evidence from Mr Green) does not contain anything on which at present it requires Mr Green's representations in order for it to carry out its statutory functions. Mr Green remains free to submit to the Authority any further evidence which he wishes the Authority to consider..."
- She then refers to further correspondence. The letter goes on:
"The Authority recognises that Article 3 of the European Convention on Human Rights requires a Contracting State to provide a thorough and effective investigation into serious injury caused by the use of force by officers of the State. It is the Authority's statutory function to ensure, as an independent body, that this happens. The Authority is satisfied that disclosing the material that you seek to Mr Green is not required in order for the United Kingdom to comply with its obligations under Article 3.
The Authority is aware that Mr Green has either made or intimated a claim for compensation against South Yorkshire police. The determination of that claim, and of any civil proceedings which result from it, is a separate matter and has no bearing on the issues of disclosure under s.80(1)(a)."
- This case, therefore, concerns a review by the Authority of its previous decision; that review has not reached any final conclusion. The process of review has been suspended pending outcome of these proceedings.
Lack of Independence of the Authority:
- The claimant in his application,
"seeks a declaration that the relevant parts of Part IV of the Police Act 1996...and incompatible with the Claimant's Convention rights in a complaints case alleging a breach of Article 3 of the European Convention of Human Rights."
- The claim then refers to the reasons why it is asserted that there is lack of independence.
- At the time permission was given by Stanley Burnton J to argue this point, Laws LJ had not decided the case of The Queen on the application of Boot V DPP & Others 16th November 2001. Laws LJ, sitting at first instance, concluded that there was no lack of independence in either the Director of Public Prosecutions or the Police Complaints Authority. The facts were similar in that case. The complaint was of an assault resulting in serious injury. The Authority did not recommend or direct any disciplinary proceedings.
- At paragraph 24 Laws LJ concluded:
"The DPP, the PCA and the Chief Constable are factually and institutionally independent, each from the others. There is simply no question of a "tripartite" system in investigation. There is, in my judgment, no lack of sufficient independence."
- Mr Gordon QC, on behalf of the claimant, says that that case leaves open the question whether there is a lack of independence where one police force, in the instant case the West Yorkshire Police Force, conducts an investigation into the conduct of another force, namely the South Yorkshire Force and the ability of the Authority to conduct effective supervision over the conduct of such an investigation. But he does not seek any ruling on that issue in the case before me.
- Mr Crow, on behalf of the Authority, contended that the application for the declaration was misconceived. The question is not whether the relevant provisions of Part IV are incompatible, but whether the investigative process is sufficiently effective to satisfy the United Kingdom's obligation to conduct an effective investigation for the purpose of protecting rights under Articles 2 and 3 of the European Convention on Human Rights. Further, he submitted, there is no lack of independence, as Laws LJ said, and adequate supervision of investigation. Besides, the application, he said, was premature, since until the investigation is concluded on the review and a decision taken as to whether to prosecute or not under the disciplinary procedures, it cannot be said that the investigation is ineffective.
- Since no final decision, as a result of the review, has been reached, it is, in my view, quite unnecessary to consider the arguments and I shall resist the temptation to do so, but Mr Gordon QC does submit what he describes as an institutional lack of independence as underlining the importance of an effective and transparent investigation process. It is to that process and the requirements of disclosure that I now turn.
Disclosure of Information in the Hands of the Police Complaints Authority:
- Section 80(1)(a) provides:
"(1) No information received by the Authority in connection with any of their functions under section 67 to 79 or regulations made by virtue of section 81 shall be disclosed by any person who is or has been a member, officer or servant of the Authority except-
(a) to the Secretary of State or to a member, officer or servant of the Authority or, so far as may be necessary for the proper discharge of the functions of the Authority, to other persons [my emphasis]."
- The claimant seeks a declaration that he is entitled to the disclosure of the documents listed in the annex to the letter from the Authority (pages 191 and 192 of the bundle). There is no dispute but that his rights under Article 2 and 3 are engaged. Article 2 provides:
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided for by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purposes of quelling a riot or insurrection."
- Article 3 provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
- The proper protection of those fundamental rights from which no derogation is possible, requires an effective investigation by the State to ensure that those rights have not been infringed and that if they have been, those responsible are identified and punished (see Assenov v Bulgaria [1998] 28 EHRR 652). At paragraph 102, the Court said:
"...where an individual raises an arguable claim that he has been seriously ill-treated by the police or such other agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms in [the] Convention", requires by implication that there should be an effective official investigation. This obligation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity."
- In Jordan v United Kingdom (Appn no: 24746/94) (4 May 2001) the Court said:
"The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention", also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the McCann judgment cited above, p. 49, [para] 161, and the Kaya v. Turkey judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p.324, [para] 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, Ilhan v. Turkey [GC] no.22277/93, ECHR 2000-VII, [para] 63).
106. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see e.g. the Gulec v. Turkey judgment of 27 July 1998, Reports 1998-IV, [paras] 81-82; Ogur v. Turkey, [GC] No.21954/93, ECHR 1999-III, [paras] 91-92). This means not only a lack of hierarchical or institutional connection but also a practical independence (see for example the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, [paras] 83-84, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).
107...
108. A requirement of promptness and reasonable expedition is implicit in this context (see the Yasa v. Turkey judgment of 2 September 1998, Reports 1998-IV, pp. 2439-2440, [paras] 102-104; Cakici v. Turkey cited above, [paras] 80, 87 and 106; Tanrikulu v. Turkey, cited above, [para] 109; Mahmut Kaya v. Turkey, no.22535/93, [Section 1] ECHR 2000-III, [paras] 106-107). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
109. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Gulec v. Turkey, cited above, p. 1733, [para] 82, where the father of the victim was not informed of the decisions not to prosecute; Ogur v. Turkey, cited above, [para] 92, where the family of the victim had no access to the investigation and court documents; Gul v. Turkey judgment, cited above, [para] 93)."
- Jackson J in a judgment of 20th June 2001, The Queen on the Application of Wright V Secretary of State for the Home Department, considered that decision and concluded that the necessary features of an investigation to be complied with Article 2 are:
"1. The investigation must be independent.
2. The investigation must be effective.
3. The investigation must be reasonably prompt.
4. There must be a sufficient element of public scrutiny.
5. The next of kin must be involved to the appropriate extent.
He continued at paragraph 43:
"From this review of recent decisions I derive five propositions:
1. Articles 2 and 3 enshrine fundamental human rights. When it is arguable that there has been a breach of either article, the state has an obligation to procure an effective official investigation.
2. The obligation to procure an effective official investigation arises by necessary implication in articles 3 and 2. Such investigation is required, in order to maximise future compliance with those articles.
3. There is no universal set of rules for the form which an effective official investigation must take. The form which the investigation takes will depend on the facts of the case and the procedures available in the particular state.
4. Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paragraphs 106 to 109."
- His fifth proposition deals with an inquest.
- The question arises in this case whether there has been a sufficient element of public scrutiny in the process of investigation and, more significantly, sufficient involvement of the claimant necessary to safeguard his legitimate interests.
- Mr Gordon QC does not contend that section 80 is incompatible with the Convention, but he does contend that it must be read in a way which does ensure sufficient public scrutiny in the process of investigation or its result and sufficient involvement of the claimant in that process to safeguard his legitimate interests. In the instant case he submits that that does require disclosure of those documents specified in the letter to which I have already referred.
- The purpose of the investigation is to discover whether the driving by that police sergeant constituted an infringement of the claimant's rights enshrined in Article 3. In those circumstances, submits Mr Crow, on behalf of the Authority, the claimant has no right to make representations. He is merely entitled to give his version of events, which he has done, and he has been invited to amplify them as a matter of addition evidence. There is, therefore, no warrant, he submits, for permitting him to make representations on the evidence of others and therefore no need for him to see the statements or the evidence of others for the purpose of making representations. Effective investigation can be conducted by the Authority without such representations. The requirement of public scrutiny is satisfied by the disclosure of a reasoned decision.
- In support of those propositions, he points to the use of the disjunctive "or" in the passage I have already cited in Jordan at paragraph 109. His submissions are further supported by Laws LJ in Boot at paragraph 19. In that paragraph Laws LJ says:
"In my judgment the application for disclosure is misconceived. In fairness to Miss Chandran, she pursued it but faintly. First, we have the reasoned decision letters related to the decisions under challenge. If they disclose some legal flaw in the decisions or either of them, the claimant is entitled on the face of it to judicial review without the need for disclosure of documents. They do not, then, absent a credible allegation of bad faith, the application for disclosure is a mere fishing expedition. Secondly, there is no question of the provisions of the European Convention on Human Rights conferring a right of disclosure to complainant on facts such as those arising in this case..."
- He then referred to Shanagan v United Kingdom and McKerr v United Kingdom 28883/95 (2001) at paragraph 129 where the Court said:
"129. As regards the lack of public scrutiny of the police investigations, the Court considers that disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects to private individuals or other investigations and, therefore, cannot be regarded as an automatic requirement under Article 2. The requisite access of the public or the victim's relatives may be provided for in other stages of the available procedures."
- Laws LJ continued at paragraph 19:
"In any event, disclosure now cannot affect the rights and wrongs of an argument to the effect that the claimant should have had disclosure in the course of the investigation."
- I should refer to further passages in McKerr in which the Court repeated the wording of the Court in Jordan at paragraphs 108 and 109, at paragraphs 114 and 115. At paragraph 141 it pointed out that since the report and findings had not been published the Court could not consider that there had been any public scrutiny of the investigation and pointed out that this lack of transparency aggravated rather than dispelled the concerns which existed.
- It should be noted that Laws LJ was dealing with an investigation which had been concluded. The application for the underlying documents was designed to challenge the correctness of the decision. In the instant case the investigation has not been concluded.
- Mr Gordon submits that the necessity for public scrutiny of the investigative process and the right to make informed representations is necessary to avoid the risk of the facts being concealed or, in short, a whitewash. Effective investigation requires transparency, not merely to allay the fears of a claimant, but also the fears of the public of a lack of proper examination of the facts. He points out that in McKerr in relation to the inquest the Court pointed out that there was a requirement to give advance access to documents to the family of the deceased so that they could properly conduct their examination of witnesses at the inquest. The Court said:
"The promptness and thoroughness of the inquest in the McCann case left the Court in no doubt that the important facts relating to the events had been examined with the active participation of the applicants' highly experienced legal representative. The non-access by the next-of-kin to the documents did not, in that context, contribute any significant handicap. However, since that case, the Court has laid more emphasis on the importance of involving the next of kin of a deceased in the procedure and providing them with information (see Ogur v. Turkey, cited above, [para] 92).
Further, the Court notes that the practice of non-disclosure has changed in the United Kingdom in the light of the Stephen Lawrence Inquiry and that it is now recommended that the police disclose witness statements 28 days in advance (see paragraph [147])."
- It should be noted that the Court made those observations in the context of an inquest, but underlying its observations lay the importance it attached to the participation of the next of kin of the victim.
- I should say at the outset that I reject the notion that the claimant's legitimate interests are satisfied merely by giving him the opportunity to see the Authority's reasoned conclusions. Public scrutiny of the result may be sufficient to satisfy the confidence of the public at large in the adherence of the State to the rule of law, but it is clear from reading the passage at paragraphs 108 and 109 as a whole in Jordan that public confidence and the need to prevent any appearance of collusion and tolerance require more than mere public scrutiny of the result, after all the paragraph at 109 in Jordan begins "for the same reasons", referring back to the need for public confidence.
- Public confidence in the adherence of the State to the rule of law and the need to prevent any appearance of collusion and tolerance require involvement of, in the instant case, the victim, to the extent necessary to safeguard his legitimate interests. The passage which I have cited before, at paragraphs 108 and 109, distinguishes between public scrutiny and the involvement of the victim in the procedure. Both are necessary for the purposes of maintaining public confidence that the authorities will obey the law and not tolerate unlawful acts.
- This case concerns a complainant who was a witness. The question arises as to whether his particular interest in the investigative process should be limited to offering him the opportunity to forward his evidence or whether protection of his legitimate interests and an effective investigation demands that he be given an opportunity to make representations on the evidence of others. The case is different from an inquest where it is clear that a personal representative must be entitled to a fair opportunity to challenge witnesses. It is, therefore, necessary to consider the nature of a claimant's legitimate interests which remain undefined by the European Court of Human Rights.
- A claimant's legitimate interests are, in my view, no different in kind from those of the public at large, namely to ensure that the State provides sufficient protection of the rights enshrined in Article 3 by undertaking an effective investigation to determine whether such rights have been infringed and if so to bring those responsible to book.
- But it must be acknowledged that the rights in question are those of the claimant as an individual. They are his legitimate interests. He is the potential victim. He has an acute and legitimate interest in the outcome of the investigation and in ensuring that it is subject to the discipline of public scrutiny. The European Court of Human Rights in the passage that I have already cited at paragraph 109, repeated in other cases, recognises the special position of one who alleges his rights have been infringed; were it otherwise he would be in no different position to that of any other member of the public.
- It cannot, therefore, be sufficient to say that his legitimate interests may be safeguarded merely by permitting him to send in his evidence like any other witness or disclosing to him the result like any other interested member of the public. If that were so he would be in the same position as any other witness and the principle endorsed by the European Court of Human Rights in relation to involvement in the procedure would amount to no more than empty rhetoric.
- The question then arises as to how recognition of that special position is to be afforded in the context of the investigation in the instant case. There is no inquest and thus active participation by advance notice of what the witnesses would be saying before their examination, and an opportunity to cross-examine, is not available. But, nevertheless, it does seem to me that he should be given some opportunity to be involved in the procedure in a way which does recognise his position as one whose individual rights under Article 3 are engaged and which does recognise that he is not merely a witness.
- I accept that there will be categories of documents which it will not be necessary to disclose to a claimant who is a witness to the facts which are the subject matter of the investigation. The documents sought by the claimant in Boot were a letter disclosing the investigation report to the DPP, correspondence between the authorities, a memorandum from the officer under suspicion and the investigating chief constable and the investigation report (see paragraph 17). Nothing I say is to be understood as disagreeing with the conclusion, in relation to documents of that kind, reached by Laws LJ at paragraph 19 of his decision. Police reports and comments by the police or the Authority's officials on the evidence or, for that matter, by the DPP or the Crown Prosecution solicitor should not be disclosed for the reasons advanced by the European Court in McKerr at paragraph 129, although it is not clear what they meant by "investigative materials".
- The basis for non-disclosure in that case was stated to be "sensitive issues with possible prejudicial effects to private individuals or to other investigations". The Court's view is not surprising when one appreciates that that case concerned investigations relating to the same subject matter as the then Deputy Chief Constable Mr Stalker had begun to investigate in Northern Ireland.
- Such documents are not sought in this case, but even in relation to those documents I note that the European Court ruled that there was no automatic requirement and seems to have envisaged at least some other access at other stages of the procedure. Moreover, I do accept that there is no requirement to afford a claimant an opportunity to make representations as to the outcome of the investigation. If such participation were required I would have expected both the European Court and Laws LJ to say so; on the contrary, it is implicit in their rulings that there is no such requirement.
- But eyewitness accounts seem to me to fall into a different category. It seems to me that the claimant's legitimate interests cannot be adequately safeguarded without affording him an opportunity to comment upon factual statements made by those present at the scene at the time or shortly thereafter, for instance those who observed the aftermath at the site of the accident, such as debris or skid-marks, no doubt available from the accident report.
- As a witness and as one whose individual rights are engaged, it seems to me that he does have a right to comment upon the evidence of others which relates to evidence at the scene of the accident. There does not seem to be any other way in which his particular status can be recognised or his particular legitimate interest be safeguarded.
- The Authority submits in the written argument that there are two reasons why such documents cannot be disclosed: firstly, the need to maintain confidentiality; and, secondly, to avoid prejudice to the disciplinary proceedings.
- At paragraph 26 of their skeleton argument it says:
"Parliament was entitled to take the view that a degree of control over disclosure of information to complainants was necessary. This is for two main reasons. First, to preserve the principle of confidentiality. Confidences should be preserved unless there is an overriding public interest in disclosure, particularly where the information has been obtained pursuant to statutory powers."
- It seems to me that there is a public interest which overrides the confidentiality, namely the public interest in maintaining public confidence in the Authority's adherence to the rule of law and to prevent the appearance of collusion. Disclosure to the claimant of factual statements touching on the events at the scene of the accident for the purpose, as I have said, of safeguarding the claimant's position is in the public's interest. Disclosure could be on terms that it was made only for the purpose of receiving the complainant comments upon those documents and that he and his solicitors were not to disclose such documents to anyone else.
- The second reason advanced by the Authority is contained at paragraph 27 of the written skeleton saying that it is,
"...to prevent disciplinary proceedings being prejudiced. Uncontrolled disclosure could lead to misplaced or premature criticisms of officers, or of complainants or third parties, based on selective and partial citation of evidence, which might give rise to applications to dismiss disciplinary proceedings for abuse of process."
- Again, it seems to me that such premature criticism can be prevented by disclosure on strict terms of confidence. I do not agree that disclosure for the purpose of comment by an eyewitness claimant during the course of investigation by the Authority would give rise to such dangers. As an eyewitness he may indeed be able to produce further information or cast light which would better inform those conducting the investigation.
- I accept that in many cases where the police are investigated, for example, in relation to their conduct of investigations of serious crime or where a defendant complainant alleges corruption, many documents will have a sensitivity which would prevent disclosure, but this is a case concerning a road accident. The documents in respect of which disclosure is sought will be familiar to anyone preparing to conduct a running down action in some local county court; access to such documents is a common place.
- I should emphasise that my conclusions in relation to this case are limited to cases where the complainant is an eyewitness and merely seeks disclosure in relation to what other eyewitnesses or those investigating the scene of the accident have said. There will, as I have said, be cases where the material is sensitive for many reasons where it is not right to disclose them, where, for example, they will inhibit further investigation or disclose the existence of an informant or other reluctant witnesses.
- In the instant case no such reasons have been advanced or, so far as I can see, could be advanced. The statements in the post-accident investigation reports deal with events at the scene and I cannot see how issues of sensitivity could arise in relation to such documents listed at paragraph 191, for example, calculations of speed based upon skid-marks or debris or in relation to what was observed at the scene in pocketbooks.
- With those principles in mind, I turn to the letter of refusal. The Authority took the view that it did not need representations and, accordingly, only sought to ask whether the claimant wished to proffer further evidence. For the reasons that I have given, it seems to me that the Authority did not construe its statutory powers under section 80(1)(a) in such a way as to involve the claimant to the extent necessary to safeguard his legitimate interests. In particular, it did not have regard to the right I have identified, to comment as a witness and claimant in that dual capacity on the factual statements of the other eyewitnesses and investigators at the post-accident scene.
- Since this case was listed as a permission hearing there may be some particular sensitivity which was not drawn to my attention in relation to disclosure of some or all of the documents listed at page 191, but in so far as the documents listed there do not suffer from such particular sensitivity I shall declare that they should be disclosed where they refer to a description of events, including description of the events by officers at the scene in response to interviews conducted with them or observations of those officers in their pocketbooks. I shall so declare, but hear any submissions in relation to the nature of the declaration, particularly in relation to a particular sensitivity of which, for very understandable reasons, I have not been informed.
- To that extent this application succeeds and, as I have already said, that is my conclusion after hearing full argument, I already having given permission to argue the point.
MR CRAGG: My Lord, from the claimant's point of view, I think the only outstanding matter is costs and I do submit----
MR JUSTICE MOSES: Can we just deal with things in order? First of all, there is the form of the order I make, I think you only asked for a declaration.
MR CRAGG: My Lord, yes.
MR JUSTICE MOSES: And that is, of course, in the circumstances, all that is necessary.
MR CRAGG: I am sure it is.
MR JUSTICE MOSES: But before going further, Mr Kovats, do you want time to consider whether there is some sensitivity in some document? Obviously, you will have to look through the pocketbooks because, on the one hand, there may be 'We came there, we found a bit of a bicycle light over there and we found a bit of debris there' probably already in the accident report book, but there may be other things which, quite rightly, you would say that they are of sensitivity, there is some comment of the police officer or something that should not go in there.
MR KOVATS: Yes, my Lord. We would be grateful for an opportunity to have time to consider whether or not----
MR JUSTICE MOSES: I think so, and you may want to come back and say 'Well, look, you just did not understand there is this from an informant'. I do not know, it does not appear. But I am very conscious that the written skeleton dealt with the matter as a matter of principle and did not condescend to some aspect, because there had not been evidence, because it was only a permission hearing. So probably the sensible thing is to give you time before the order is drawn up.
MR KOVATS: Yes.
MR JUSTICE MOSES: And in the meantime, subject of course to any seeking of permission to appeal and appeal, you could get on with disclosing those other documents. But, anyway, so the first thing I will say, shall we put in suspension -- how long do you want?
MR KOVATS: My Lord, as I understand it, the first day of next term is, I think, 11th January.
MR JUSTICE MOSES: The Friday, yes. I have various meetings but you would probably be able to get hold of me at some stage of the day.
MR KOVATS: We would be able to reach a decision by then and, my Lord, while we are on that, if the order is not going to be drawn up until then, could I make any submissions about seeking permission to appeal at that stage as well?
MR JUSTICE MOSES: Why can you not do that now? Is it not safe for you to ask now? Really if you can avoid a hearing, because I am supposed to be out on circuit on that day.
MR KOVATS: In that case.
MR JUSTICE MOSES: I have meetings, but I will not go until I know what you want me to do that day.
MR KOVATS: In that case, then, I will ask on the grounds that it does raise an important point.
MR JUSTICE MOSES: Yes, well, it does seem to go further than judges have gone so far. I am minded to give permission.
MR CRAGG: My Lord.
MR JUSTICE MOSES: Do you want to say anything?
MR CRAGG: My only comment would be that from the claimant's side, we would submit that your Lordship's judgment is in line with domestic and European jurisprudence.
MR JUSTICE MOSES: Yes, I mean I have tried to limit it, but it may be, you see, that the submission will be that I just have not looked far enough over the hill and what I say is going to cause disaster in the future. I am not encouraging that. Anyway, I am going to give permission to appeal.
MR KOVATS: Thank you.
MR JUSTICE MOSES: But I hope you will consider it because I have really tried to limit it.
MR KOVATS: I am very conscious of that.
MR JUSTICE MOSES: I have made the comment about the county court. So I shall give permission to appeal because it does raise a point of principle on the obligations of disclosure, the PCA.
MR KOVATS: Yes.
MR JUSTICE MOSES: And we will put off drawing up the order. Once you have formed a view it may be that you will not need me and you can just let me know and then the order can go.
MR KOVATS: Yes. I do not know whether your Lordship wants to deal with the matter of costs today.
MR JUSTICE MOSES: Yes. Do you ask for costs?
MR CRAGG: The claimant does apply for his costs in this case.
MR KOVATS: My Lord, in my submission, there should be no order for costs for a number of reasons. The first is the claim has not succeeded on a number of important grounds. The independence point was clearly a matter of great concern to the Authority and even the point that has succeeded has succeeded on a rather different basis from that on which it was put forward and, not only that, the way in which your Lordship has carefully limited it means, for example, that the investigating officer's report is not subject to disclosure and that was the prime concern to the Authority.
So while I accept that the claimant has had a degree of success, it is by no means the substance of this claim that has succeeded and given the public interest involved in the nature of these matters and the impact on other cases, this is, in my submission, one of those cases where it would be appropriate for no order for costs to be made, save for the public assessment.
MR JUSTICE MOSES: Yes.
MR CRAGG: My Lord, the only ground which was not pursued entirely was the independence of the PCA and that was in the light of the decision in Boot, which came out a month before the hearing of this case, which of course the defendants were aware of and it was a permission judgment and therefore the claimants were not----
MR JUSTICE MOSES: But, I mean, the preparation leading up to the actual case, admittedly at the hearing, partly, I think, at my prompting, we all got on with the question of whether they could see what I thought were innocuous documents, but leading up to it, I mean, the PCA feared an absolute head-on attack in relation to its independence, Mr Gordon's submission that Boot did not dispose of those issues and so on and so forth. I am minded to give you half of your costs.
MR CRAGG: Well, my Lord, if I can just continue for a couple of minutes.
MR JUSTICE MOSES: Maximum.
MR CRAGG: We were not provided with the judgment until very shortly before the hearing, the defendants were aware of it. We did otherwise pursue our points about the lack of independence in the investigation part on the basis that with police investigations it was all the more important to have transparency in the process and I think your Lordship mentioned that--
MR JUSTICE MOSES: Yes.
MR CRAGG: --in the judgment, but used that to support the case. And, of course, your Lordship also made comment during the hearing and of course this whole matter could have been dealt with if in fact----
MR JUSTICE MOSES: I have the point, yes. Yes, thank you very much. You can have two thirds of your costs.
MR CRAGG: I am grateful, my Lord. My Lord, I also need to apply for public service funding.
MR JUSTICE MOSES: Assessment, yes. Thank you very much.
