Ipsofactoj.com: International Cases [2002] Part 11 Case 14 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Police Complaints Authority

- vs -

Green

LORD JUSTICE SIMON BROWN

LORD JUSTICE CHADWICK

LADY JUSTICE HALE

26 MARCH 2002


Judgment

Lord Justice Simon Brown

  1. On 7 April 1999 the respondent (Mr. Green) was severely injured when hit by an unmarked police car driven by DS Lawrence, an officer of the South Yorkshire Police Force. The following month, Mr. Green made a formal complaint to the appellant (the PCA) that DS Lawrence had in fact been attempting to kill him. The investigation into that complaint was conducted by an outside police force (the West Yorkshire Police) under the supervision of the PCA. On 3 April 2001, after the investigation had been completed, the PCA refused Mr. Green’s request for a number of documents to be disclosed to him. On 21 December 2001, in judicial review proceedings challenging that refusal, Moses J made an Order declaring the documents to be in principle discloseable. They consisted essentially of other eyewitness accounts of the incident on 7 April 1999 and of expert reports based upon investigations of the scene of the incident. The essential basis upon which disclosure was ordered was the judge’s ruling that where, as here:

    1. Articles 2 or 3 of the European Convention on Human Rights impose upon the State an obligation to secure an effective independent inquiry into an incident like this;

    2. the complainant himself is an eyewitness to it; and

    3. no particular issues of sensitivity arise in relation to the documents whose disclosure is sought, the complainant “does have a right to comment upon the evidence of others which relates to evidence at the scene of the accident”, there being “[no] other way in which his particular status can be recognised or his particular legitimate interest be safeguarded” (paragraph 55 of the judgment below).

  2. Some measure of the perceived importance of this judgment and of the concern felt about its possible consequences is demonstrated by the number of interested parties who have intervened in the proceedings. Moses J himself gave permission to appeal. The appeal is supported by all the interested parties save Liberty. Liberty joins with Mr. Green in resisting it.

  3. The principal concerns of the PCA, the Home Secretary, the South Yorkshire Police and the CPS are those of witness contamination and confidentiality (concerns to which I shall return later in this judgment). DS Lawrence is anxious lest the investigation has to be re-opened. Mr. Green and Liberty seek the earliest and closest possible involvement of the complainant in the investigative process, Mr. Green in the particular circumstances of this case, Liberty more generally. Questions concerning the extent of disclosure are intimately bound up with questions of timing. It will be necessary also to consider to whom in principle any disclosure ought ordinarily to be made: the judge’s conclusion that it should be made only to eyewitness complainants is surprising; paradoxically it is in precisely this situation that the risk of witness contamination is at its highest.

  4. With that comparatively brief introduction let me turn next to the PCA’s role generally in police investigations and then to the facts to indicate something more of the particular circumstances in which the disclosure issue arises here.

  5. The PCA is a body corporate whose chairman is appointed by Her Majesty and whose other members are appointed by the Secretary of State. Its independence of the police is not disputed in the present case. Rather Laws LJ’s recent (first instance) decision on the point in R (Boot) v DPP & PCA [2001] EWHC Admin 982 is accepted. It was Laws LJ’s conclusion that:

    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 of investigation. There is, in my judgment, no lack of sufficient independence.

  6. The current system for investigating complaints against the police is to be found in Part IV of the Police Act 1996 and comes essentially to this. Complaints against the police are investigated by the police, sometimes by the force to which the officer in question belongs, sometimes by another force. Certain types of complaint against the police must be referred by the investigating force to the PCA; others may be. The investigation of certain types of complaint must be supervised by the PCA; others may be. The present complaint, alleging as it did that the conduct complained of resulted in serious injury to the complainant, had to be referred to the PCA (section 70(1)(a)(i)) and required the PCA to supervise the investigation (section 72(1)(a)). As already stated, it was investigated by a different police force, the West Yorkshire Police.

  7. I must now set out certain directly relevant sections of the 1996 Act:

    73.

    (1)

    At the end of an investigation which the Authority have supervised, the investigating officer shall-

    (a)

    submit a report on the investigation to the Authority, and

    (b)

    send a copy of the report to the appropriate authority [here the South Yorkshire Police].

    (2)

    After considering a report submitted to them under subsection (1), the Authority shall submit an appropriate statement to the appropriate authority.

    ....

    (9)

     

    In this section ‘appropriate statement’ means a statement-

    (a)

    as to whether the investigation was or was not conducted to the Authority’s satisfaction,

    (b)

    specifying any respect in which it was not so conducted, ....

    75.

    ....

    (3)

     

    If the chief officer [here the Chief Constable of South Yorkshire] determines that the report indicates that a criminal offence may have been committed by a member of the police force for his area, he shall send a copy of the report to the Director of Public Prosecutions.

    (4)

    After the Director has dealt with the question of criminal proceedings, the chief officer shall .... [in cases like the present] send the Authority a memorandum which-

    (a)

    is signed by the chief officer;

    (b)

    states whether he has brought (or proposes to bring) disciplinary proceedings in respect of the conduct which was the subject of the investigation, and

    (c)

    if he has not brought (or does not propose to bring) such proceedings, gives his reasons.

    (5)

    If the chief officer considers that the report does not indicate that a criminal offence may have been committed by a member of the police force for his area, he shall .... [in cases such as the present] send the Authority a memorandum to that effect which [and there are then set out the same three requirements set out in subsection (4)].

    76.

    (1)

    Where a memorandum under section 75 states that a chief officer of police has not brought disciplinary proceedings or does not propose to bring such proceedings, the Authority may recommend him to bring such proceedings.

    (3)

    If after the Authority have made a recommendation under this section and consulted the Chief Officer he is still unwilling to bring disciplinary proceedings, they may direct him to do so.

    ....

    (7)

     

    A chief officer shall-

    ....

    (b)

    supply the Authority with such other information as they may reasonably require for the purposes of discharging their functions under this section.

    80.

    (1)

    No information received by the Authority in connection with any of their functions .... 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, ....

    THE FACTS

  8. Although these are before us in the greatest detail, I shall confine myself to a comparatively brief summary. Any further exposition would tend rather to obscure than to illuminate the important points of principle which arise on the appeal.

  9. The incident in which Mr. Green was injured occurred in the course of a police surveillance operation on 7 April 1999. Having initially been knocked off his bicycle by DS Lawrence’s unmarked car, Mr. Green says that he was knocked down a second time after he had got up and tried to move away. He sustained severe injuries which included a fracture of the right femur. On 4 May 1999 he complained through his solicitor that DS Lawrence had been trying to kill him and that he had been a victim of racism.

  10. The West Yorkshire Police investigation considered both criminal proceedings and disciplinary charges against the officer. In the course of the investigation Mr. Green and his solicitor viewed a police video of the incident and a number of statements were taken from him and other witnesses.

  11. Before the investigation was completed, but after the prosecuting authority had considered the facts, DS Lawrence was charged with driving without due care and attention, to which he pleaded guilty in the Sheffield Magistrates’ Court on 10 March 2000. He was fined £250 with five penalty points. The reason for charging him before the investigation was completed was because of the six month time limit for this offence.

  12. On 5 September 2000 the PCA wrote to Mr. Green stating that “in the absence of any irrefutable evidence of recklessness or intent on the part of DS Lawrence I do not believe that a disciplinary hearing would find any more fault in the officer’s conduct than did the trial” so that disciplinary action was not being recommended. The letter referred back to an “Interim Statement” dated 10 January 2000 in which the PCA had stated (pursuant to section 73(2)) that the matter had been investigated to its satisfaction.

  13. Mr. Green, having issued an application for judicial review challenging the decision of 5 September 2000 on the ground that “irrefutable evidence” set the test too high, a consent order was made by the Administrative Court on 14 March 2001 by which, upon the PCA agreeing to “conduct a full review of the complainant’s complaint and make a fresh decision in relation to [it]”, Mr. Green withdrew his application.

  14. On 3 April 2001, as already stated, the PCA refused Mr. Green’s request for (further) disclosure. The letter quoted the provisions of section 80 of the 1996 Act, indicated that the PCA did not consider such disclosure “necessary for the proper discharge of [its] functions” and with regard to Mr. Green’s reliance upon Article 3 said this:

    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.

  15. On 6 September 2001, whilst the challenge to their refusal to make disclosure was pending, the PCA wrote to Mr. Green’s solicitors noting that they had been requested to delay making the fresh decision agreed upon in the March 2001 consent order and stating, with regard to the pending challenge:

    If you succeed in that application, I anticipate that you will wish to make representations, which may necessitate further enquiries by West Yorkshire Police. In addition there may be requests that I shall wish to make of the Investigating Officer prior to reaching my conclusions.

  16. The judicial review application was listed before Moses J on 19 December 2001 as a permission hearing, the defendant being present but having filed no evidence. Recognising the clear urgency of the matter, however, the judge there and then granted permission and dealt with the case as a substantive application, delivering judgment two days later.

    THE CONVENTION

  17. Article 2 of the Convention provides that:

    (1)

    Everyone’s right to life shall be protected by law ....

    Article 3 provides that:

    No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

  18. The Strasbourg jurisprudence establishes that the protection of those fundamental rights, whenever arguably they are breached, requires an effective investigation by the State to ensure that they are being properly protected under domestic law. In Assenov v Bulgaria (1998) 28 EHRR 652, at paragraph 102, the ECtHR said this:

    .... 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.

  19. The approach in Assenov, which reflected the court’s earlier approach in McCann v United Kingdom (1995) 21 EHRR 97 (an Article 2 case), was further refined and developed in Jordan v United Kingdom (Application No 24746/94), another Article 2 case and one of four such judgments given by the court on 4 May 2001. Paragraphs 105-109 and 121 of Jordan are central to the arguments canvassed on the present appeal and must be set out in full:

    105.

    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 § 161, and the Kaya v Turkey judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 324, § 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-VIII, § 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 Güleç v Turkey judgment of 27 July 1998, Reports 1998-IV, §§ 81-82; Ögur v Turkey [GC] no. 21954/93, ECHR 1999-III, §§ 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, §§ 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.

    The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (see the Kaya v Turkey judgment, cited above, p.324, § 84) and to the identification and punishment of those responsible (Ögur v Turkey, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record on injury and an objective analysis of clinical findings, including the cause of death (see concerning autopsies, e.g. Salman v Turkey cited above, § 106; concerning witnesses Tanrikulu v Turkey [GC], no 23763/94, ECHR 1999-IV, § 109; concerning forensic evidence e.g. Gül v Turkey, 22676/93, [Section 4], § 89). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.

    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, §§102-104; Çakici v Turkey cited above, §§ 80, 87 and 106; Tanrikulu v Turkey, cited above, § 109; Mahmut Kaya v Turkey, no. 22535/93, [Section I] ECHR 2000-III, §§ 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 the 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 Güleç v Turkey, cited above, p. 1733, § 82, where the father of the victim was not informed of the decisions not to prosecute; Ögur v Turkey, cited above § 92, where the family of the victim had no access to the investigation and court documents; Gül v Turkey, judgment, cited above, § 93).

    ....

    121.

     

    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.

    MOSES J’s JUDGMENT

  20. Having cited much of what I have just cited from the ECtHR’s judgment in Jordan and in addition set out two passages from Jackson J’s judgment in R (on the application of Wright) v Secretary of State 62 BMLR 16, Moses J identified the question now arising [paragraph 34]:

    .... 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.

  21. The judge then summarised the rival arguments and stated his conclusions as follows:

    44.

    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 from 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.

    45.

    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 purpose of maintaining public confidence that the authorities will obey the law and not tolerate unlawful acts.

    46.

    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.

    ....

    48.

     

    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.

    49.

    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.

    50.

    .... it does seem to me that [the claimant] 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.

    51.

    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 .... 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 ....

    ....

    53.

     

    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 ....

    54.

    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.

    55.

    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 me to be any other way in which his particular status can be recognised or his particular legitimate interest be safeguarded.

  22. Turning then to the Authority’s objections to disclosure on the grounds respectively of confidentiality and contamination, the judge rejected these; confidentiality because:

    58.

    .... 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 ....

  23. As to contamination (although it is not entirely clear how the point was put below) the judge said:

    60.

    .... 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.

  24. The final paragraph which I should quote to indicate the relative narrowness of the judge’s conclusion is paragraph 62:

    62.

    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.

    CONTAMINATION

  25. I turn now to the first of the concerns expressed by those supporting this appeal, the impact of the judgment below upon the principle of non-contamination. The essence of this principle is that, in order to preserve the integrity of each witness and the investigation as a whole, no witness or potential witness is to be shown the statement of another. Before the court below there was, as stated, no evidence on the point; before us there is a very great deal. It includes a statement by the DPP himself who puts the matter thus:

    It is not the policy of either the Crown Prosecution Service or the police force to disclose witness statements or expert reports to the victim of an alleged crime or indeed to any eyewitness. This is done to ensure that the position of the victim as a witness is not undermined. It would be regarded as improper to make this disclosure and it would lead to allegations that the witness was being coached and prepared to give his or her evidence in a manner consistent with other evidence. If witnesses are shown the statements of others there is a real possibility that this may influence the evidence that they may give. The process of taking witness statements and the treatment of witnesses at court is designed to ensure that one witness is not aware of the contents of other statements.

  26. The matter is taken rather further in a statement made by Mr. Bynoe, the PCA’s Second Deputy Chairman:

    It is not suggested that complainants who have seen other statements would in every case alter their accounts so as to conform to the different accounts from other witnesses. But current practice designed to preserve witness integrity is not simply about preventing witnesses from fabricating or subconsciously altering their evidence. If there are discrepancies in evidence then an honest and accurate witness will be in a significantly weaker position when trying to resist an accusation that he has altered his account to suit. If the non-contamination principle is preserved, then complainants who have not seen other eyewitness evidence can generally say with conviction that they have had no means or opportunity of knowing what other witnesses would say and, in the absence of any other evidence showing that fabrication has occurred, can be protected from accusations of tailoring their evidence or of collusion. The Authority understands that it is precisely for these reasons that witnesses who have given evidence in criminal trials are forbidden from discussing their evidence with others waiting to do so and those who have yet to give evidence are not allowed into court before they come to give evidence themselves. The same procedure applies to misconduct hearings held to decide if a police officer should be disciplined. The exception made for expert witnesses reinforces the argument.

  27. Summarising the matter later in his statement, Mr. Bynoe says:

    The Authority is greatly concerned not just that disclosure will bring with it the risk that complainants may tailor their evidence to fit other eyewitness accounts that have been disclosed to them, but that there is a significant risk that the credibility of witnesses who are in fact honest and accurate will be undermined.

  28. It is, of course, recognised that an Investigating Officer may need on occasion to clarify a discrepancy in evidence by re-interviewing a witness. This, however, as a letter to the court from the South Yorkshire Police dated 26th February 2002 makes plain:

    .... has to be approached very carefully, to avoid contaminating that witness’s evidence .... there is a very fine line to be drawn between the legitimate process of questioning a witness’s account of events in order to investigate the allegations effectively, and contaminating that witness’s evidence.

  29. A statement from Detective Chief Superintendent Norman, the Head of the Metropolitan Police Service unit dealing with public complaints and the vast majority of internal investigations, makes the same point:

    The competent investigator will always be careful not to reveal the [other witnesses] evidence that may contaminate the veracity of the witness’s evidence. I would never sanction such a practice.

  30. This principle, says Mr. Horwell for the CPS, is one which criminal practitioners take very seriously. The thought that the star eyewitness is to be given the statements of others and the scientific evidence is, he submits, disturbing. So far from advancing the interests of a thorough investigation, it would in all likelihood hinder or frustrate it, by compromising any criminal or disciplinary proceedings which ensue. Quite apart from the possibility of the complainant’s evidence being discounted by the tribunal because of the risk of it having been altered, deliberately or unconsciously, as a result of contamination, there is the further likelihood of criminal and disciplinary proceedings being made lengthier and more costly because of time taken up investigating whether indeed the witness’s evidence had been contaminated.

  31. Mr. Bynoe states that of some 4,000 complaints a year which attract protection under Articles 2 or 3 less than 25 result in prosecutions and in 2000-2001 only 65 were referred to a disciplinary hearing. So much the more important, the appellants suggest, that the integrity of these investigations and proceedings be not damaged. As Mr. Mark Shaw on behalf of the Home Secretary points out, moreover, the problem is not confined to police officers; the same issue can well arise in other contexts, certainly with regard to prison officers and possibly in connection with the Immigration Service.

  32. In resisting these arguments, Mr. Gordon QC for Mr. Green points out that the complainant in all these cases will have provided an initial signed statement and that any subsequent attempts to vary it will be subject to cross-examination and scrutiny by the tribunal. As against that, however, Mr. Horwell suggests that the witness will be more difficult to cross-examine: he will know, for example, those respects in which his evidence is supported by other eyewitnesses or by expert opinion and upon which therefore he can stand firm, and those respects in which it is not so supported and which he can therefore with advantage modify.

  33. Mr. Gordon draws attention too to various circumstances in which disclosure of other witnesses’ statements will in any event have been made before criminal or disciplinary proceedings are brought. This could happen, for example, if the complainant were pursuing a civil claim against the police and there had been disclosure of documents on a “pre-action” basis before, perhaps, the complaint had even been made. Or it could happen where an inquest is held into a fatality, it being open to an “interested” person to obtain material from the coroner under Rule 57 of the Coroner’s Rules 1984 (although one may note in this regard paragraph 14 of the Home Office Circular No 20/1999 on deaths in police custody:

    The precise timing of pre-inquest disclosure in a particular case will depend on the particular circumstances. There will be cases on which CPS advice is sought on whether criminal proceedings are appropriate. In such cases, in order to avoid prejudice to a criminal trial, disclosure should not take place until either the CPS have advised against a prosecution or any criminal proceedings have finished ....).

  34. The fact, however, that in certain circumstances disclosure of witness statements may indeed have been made to complainants before criminal or disciplinary proceedings are heard ought not to my mind (save for good reason) to warrant any wider inroads into the principle of non-contamination, assuming always that the principle is a sound one. That this is so, indeed, seems to be reflected both in the caselaw and in primary legislation. The relevant authorities include R v Smith (1968) 52 Cr App R 224, R v Richardson (1971) 2 QB 484, R v Skinner (1994) 99 Cr App R 212 and R v Roberts (Michael Harry) (1998) 162 JP 691. In Smith the court said this:

    The general rule and practice in criminal cases is that witnesses as to fact should on each side remain out of court until they are required to give their evidence. The reason for this is obvious. It is that, if they are permitted to hear the evidence of other witnesses, they may be tempted to trim their own evidence.

  35. Richardson confirmed and upheld the practice whereby witnesses are permitted to refresh their memory by reading their own witness statements before giving evidence. The court, however, made this comment [per Sachs LJ at p 490]:

    Obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said.

  36. The Court in Skinner approved counsel’s contention that “statements or proofs should not be read to witnesses in each other’s presence”, Farquarson LJ observing:

    That must obviously follow because it would amount to a discussion between the pair of them as to what evidence is going to be given; one would be enlightened by the evidence that is to be given by the other. As a practice, therefore, the Court disapproves of such conferences taking place. It is to be hoped that they will not do so in the future. It is particularly important in the case of police officers because, as is well known, they are the only ones who give evidence fortified by the use of notes made at the time. In such a case, as indeed is the case here, witnesses can be attacked for giving evidence on grounds that they are giving not a true account of what happened, but something which has been affected by the discussions they have had with somebody else.

  37. Roberts adopted a different approach towards real evidence such as a video recording. If evidence of that sort comes to light then witnesses are permitted to see it, precisely as occurred in the present case. Lord Bingham CJ said this:

    Viewing the matter quite generally, it seems to us plain that the duty of any witness when giving a statement is to describe the relevant events to the best of his or her honest recollection and certainly not to invent or fabricate evidence to assist the prosecution or the defence. If, after the giving of such a statement, a relevant video comes to light, it is not in our judgment wrong in principle that the witness should be permitted to see that video. On seeing it the witness may find that in some respects his or her recollection had been at fault, and the witness may wish to correct or modify earlier evidence. It is however in our view a matter of the utmost importance that nothing should be done which amounts to rehearsing the evidence of a witness, or coaching the witness so as to encourage the witness to alter the evidence originally given. The acid test is whether the procedure adopted in any particular case is such as to taint the resulting evidence.

  38. The non-contamination principle is manifested too in section 79 of the Police and Criminal Evidence Act 1984:

    If at the trial of any person for an offence-

    (a)

    the defence intends to call two or more witnesses to the facts of the case; and

    (b)

    those witnesses include the accused, the accused shall be called before the other witness or witnesses unless the court in its discretion otherwise directs.

    Similarly, where a complaint against a police officer results in disciplinary proceedings, the complainant is not permitted to attend the hearing before he has given his own evidence - regulation 25(3) of the Police Conduct Regulations 1999.

    CONFIDENTIALITY

  39. Mr. Norman, whose evidence on contamination I referred to in paragraph 29 above, expresses concern also about the impact of the judgment below on “the police service’s ability to secure evidence from witnesses, particularly those who perceive themselves as being vulnerable in one way or another”. He continues:

    It is my experience that many witnesses preparatory to making an evidential statement have serious concerns about the future confidentiality of that statement. Most concerns are assuaged by explanation that this statement will only be revealed as part of a prosecution. I am convinced that the concerns of witnesses will be exacerbated if they are told their statement will be revealed prior to a decision being taken as to whether a prosecution will take place. An obvious and in my experience typical example of this could occur during a “domestic dispute”, witnessed by an estranged family member or neighbour, that at some stage features a complaint by one party against the police.

  40. True it is, as Mr. Gordon and Mr. Clayton point out, that a series of recent cases have tended to deprecate the value of confidentiality in witness statements. In R v Chief Constable of West Midlands, ex parte Wiley [1994] 1 AC 274 the House of Lords held that public interest immunity does not generally attach to such statements obtained during a police complaint investigation. The Divisional Court in R v Home Secretary (ex parte Hickey) (No2) [1995] 1 WLR 734 was unimpressed by the Home Secretary’s plea of confidentiality in support of the procedures then governing the exercise of his power under section 17 of the Criminal Appeal Act 1968 to refer criminal convictions back to the Court of Appeal. Turner J, citing Hickey, in Reg v CICA ex parte Leatherland (unreported) likewise thought confidentiality no basis for refusing disclosure of witness statements in the context of Criminal Injury Compensation Authority proceedings. Mr. Clayton relies most strongly on what I myself said in Hickey at p745:

    The Secretary of State’s evidence warns of grave difficulties in adopting the procedures proposed by the applicants. It is said that they would risk compromising an implicit duty of confidentiality to witnesses who assist in the Secretary of State’s inquiries, that witnesses have expectations of privacy, and that:

    If the Secretary of State were to operate a procedure involving, overall, a significantly greater degree of openness towards petitioners, expectations [of witnesses] would be different. Whatever formal safeguards for confidentiality were adopted under such a procedure, it seems likely that in fact potential witnesses and informants would be altogether more cautious, and that some would be reluctant to come forward or to answer questions.

    I confess to finding all this wholly unpersuasive, and certainly an insufficient basis for maintaining in place what I regard as the significantly too closed procedure presently operated. I have no doubt that fairness requires not merely prior disclosure but a substantial increase in the level of disclosure made. The Secretary of State accepts that in none of the present cases was any specific assurance of confidentiality given to anyone participating in the police inquiries. As it seems to me, it seldom will be. We are told indeed that lay witnesses in these inquiries make formal witness statements: they must accordingly recognise at least the possibility of being called in further legal proceedings. A plea for some general principle of confidentiality to encourage co-operation with police inquiries is thus unconvincing. Essentially, as the applicants submit, it invites the creation of something akin to the very public interest immunity class claim which the House of Lords so recently abolished in [Wiley].

  41. All that, of course, was subject to there being “exceptional cases where a different approach is justifiable”, such as informer cases and cases where “the Secretary of State perceives a real risk of intimidation [which] will on occasions occur in an effort to persuade witnesses to change their evidence”.

  42. I see no reason whatever to depart from the view I expressed in Hickey. It is important, however, to recognise two things:

    • firstly, as Mr. Norman explains, that vulnerable witnesses gain some measure of reassurance if told that their statements will only be used in the event of a prosecution (or, presumably, disciplinary proceedings);

    • secondly, that Hickey was decided in a very different context, namely in the interests of those claiming to have suffered a miscarriage of justice.

    As I observed when considering “the specific level of disclosure to be made” [p 746]:

    The guiding principle should always be that sufficient disclosure should be given to enable the petitioner properly to present his best case. That can only be done if he adequately appreciates the nature and extent of the evidence elicited by the Secretary of State’s inquiries.

  43. There is no question in the present case of Mr. Green or any other police complainant “present[ing] his best case”. He is the accuser, not the accused. Nor is the police investigation an adversarial process to which he is a party; rather it is conducted by an independent police force under the supervision of an independent PCA.

  44. For my part, therefore, whilst I would not regard confidentiality as the most potent of the appellant’s arguments in this case, I would certainly not discount it entirely.

  45. Contamination and confidentiality apart (and practicality too - consider, for example, the logistical problems of disclosure in the case of multiple complaints such as followed the Hillsborough disaster), Mr. Harrison invites consideration of the matter from the perspective of the police officer concerned. Whilst clearly the public must have confidence in the complaints system, it is no less important that it should also command the confidence of the police officer under investigation. There must be equality of arms. If the complainant were to have the opportunity to comment on the statements of other witnesses, so too should the officer. Surely, indeed, he should be entitled to the last comment. Yet that is certainly not a right available to police officers under the present system. Rather, by regulation 13 of the 1999 Regulations, it is only when a decision is taken after the end of the investigation to refer the case to a disciplinary hearing that, not less than 21 days before the date of that hearing, the officer is to be supplied with any relevant statements or other material obtained in the course of the investigation (including any statement which he himself may have made to the investigating officer). Were the judge’s order to stand, it would be difficult to imply into the procedures specified by the Regulations anything like parity of treatment.

    LIBERTY'S REPORT AND THE POLICE REFORM BILL

  46. It is convenient at this point to note that there is currently before Parliament a Bill, Part II of which provides for the creation of a new body, the Independent Police Complaints Commission (IPCC), in place of the PCA, which will itself undertake independent investigation of the most serious complaints and incidents. Where the IPCC does not itself investigate a complaint, the police will continue to do so but the IPCC may “manage” the inquiry or supervise it. Linked to the creation of this new body will be a new procedure for communicating the conclusions and the proposed outcome of an investigation to the complainant. In addition, there will be specific statutory duties imposed upon police investigators and the IPCC in relation to the giving of information to complainants. The relevant clause as currently drafted provides:

    20.

    Duty to keep the complainant informed

    (1)

    In any case where there is an investigation of a complaint ....

    (a)

    by the Commission or

    (b)

    under its management,

    it shall be the duty of the Commission to provide the complainant with all such information as will keep him properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in subsection (4).

    ....

    (4)

     

    The matters of which the complainant must be kept properly informed are

    (a)

    the progress of the investigation;

    (b)

    any provisional findings of the person carrying out the investigation;

    (c)

    whether any report has been submitted ....;

    (d)

    the action (if any) that is taken in respect of the matters dealt with in any such report; and

    (e)

    the outcome of any such action.

    ....

    (6)

     

    The Secretary of State shall not by regulations provide for any exceptions from the duties imposed by this section except so far as he considers it necessary to do so for the purpose of:

    (a)

    preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any actual or prospective criminal proceedings; ....

  47. The background to the Bill is the government’s recognition that improvements need to be made to the system of dealing with complaints against the police, in the light of recommendations made by the Home Affairs Committee in 1997, Sir William Macpherson’s report on the Stephen Lawrence inquiry, a KPMG feasibility study, and a report dated April 2000 prepared by Liberty.

  48. Liberty’s report seems to me of some importance. As to Investigating Officers’ reports it concluded that:

    Disclosure should be made to complainants and officers under investigation, so as to be fair to both parties. No disclosure should occur, however, until either the CPS has advised against a criminal prosecution or until any criminal proceedings arising from the complaint have been concluded. Disclosure in such cases would prejudice any criminal trial.

    .... The conclusion reached above with regard to the IO’s report was that it should be disclosed at the end of the investigation subject to any PII claim by the police. The current legal position on statements and other evidence allows for greater disclosure than for IOs’ reports. It therefore seems natural that, in any proposals for change, there should be a presumption that statements and other evidence will be disclosed at the end of an investigation, subject to the same tests as that applied to IOs’ reports.

    Recommendations

    Disclosure should be made to the complainant and the officer under investigation but not until the conclusion of any criminal proceedings ....

  49. Consistently with that report it is presently contemplated that regulations under clause 20(6)(a) will prevent the disclosure of any witness statements until the conclusion of criminal proceedings.

  50. Why then are Liberty now contending, contrary to their April 2000 recommendation, for disclosure of witness statements during the course of the investigation itself? Mr. Clayton’s candid answer is that he was encouraged to adopt his present approach by the Strasbourg jurisprudence, in particular the court’s judgment in Jordan. It is his and Mr. Gordon’s essential submission that Moses J was right in understanding Jordan to require the early disclosure at least of eyewitness accounts to an eyewitness claimant so that his legitimate interests are adequately safeguarded and public confidence is maintained in the State’s adherence to the rule of law. I must now, therefore, turn to consider the rival contentions as to the true import of Jordan.

  51. It is not in doubt that Jordan requires an investigation in an Article 2 case to be independent, effective and reasonably prompt - these various requirements being considered in paragraphs 105-108 of the court’s judgment. Promptness is required not least to maintain public confidence in the State’s adherence to the rule of law and to prevent any appearance of its collusion in or tolerance of unlawful acts - paragraph 108. As, however, paragraph 109 makes plain, the maintenance of public confidence requires too “ a sufficient element of public scrutiny of the investigation or its results” and that requirement for public scrutiny in turn requires that “the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interest”. The first and main disagreement between the parties is, of course, as to whether, in an Article 3 case, that involvement must extend, as Moses J held, to the right, during the investigation process itself, for an eyewitness complainant to comment upon the evidence of other witnesses.

  52. Amongst his criticisms of the judgment below, Mr. Crow for the PCA suggests that it is arbitrary and perverse (Mr. Harrison QC for DS Lawrence adds the epithet “bizarre”) to lay down a principle of disclosure confined to eyewitness complainants. In the first place, there is no clear dividing line between eyewitness evidence and other evidence: what constitutes the beginning and the end of the relevant incident will often be a matter for debate. (Incidentally it will often be impossible in practice to separate out “representations as to the outcome of the investigation” - which Moses J in paragraph 53 of his judgment accepts a complainant need not have the opportunity to make - and “comment upon factual statements made by [those] present at the scene” - which Moses J in paragraph 54 says he must.) Secondly, however, and more importantly, many of the investigations which cause the greatest public concern are into incidents where death has resulted and in these cases it is most unusual for there to be an eyewitness complainant. It would be incongruous indeed if disclosure had to be made to an injured complainant but not to the family of a person who, it is alleged, was unlawfully killed during an arrest. Such a rule would tend rather to undermine than to enhance public confidence in the system for investigating police complaints. Thirdly, there is no warrant in the Strasbourg caselaw for such a distinction. Quite the contrary.

  53. Logically, therefore, the respondent ought to be contending that the Convention requires disclosure to be made not only to eyewitness complainants but to complainants generally and, more particularly, in fatal cases to the victim’s next-of-kin - paragraph 109 of Jordan, indeed, itself a fatal case, refers expressly to “the next-of-kin of the victim [being] involved in the procedure to the extent necessary to safeguard his or her legitimate interests”. To my mind, therefore, although there is no respondent’s notice to this effect, the court itself is obliged, pursuant to section 6 of the Human Rights Act 1998, to consider this possibility.

  54. The critical question thus arising in all these Article 2 and 3 police complaint cases is whether the requirement that the victim (or next-of-kin) must be involved in the procedure to the extent necessary to safeguard his legitimate interests does or does not require witness statements to be disclosed to him prior to the conclusion of any criminal proceedings, namely during the course of the investigation itself.

    CONCLUSION

  55. I have reached the clear conclusion that such disclosure is not required. Least of all is it required to be made to eyewitness complainants whose evidence may be contaminated, and where, therefore, disclosure would risk hindering or frustrating the very purpose of the investigation, the bringing to book of police officers who properly ought to be prosecuted or disciplined. A complainant’s legitimate interests - which, as Moses J himself observed, “remain undefined by the ECtHR” - are in my judgment appropriately and adequately safeguarded by his right to a thorough and independent investigation, his right to contribute evidence where he can, his right to be kept informed of the progress of the investigation - in which connection, be it noted, the PCA encourage Investigating Officers to provide complainants with limited documentary evidence and an oral summary of witness evidence and the police officer’s account of the incident, although always on a confidential basis so as not to compromise any future criminal or disciplinary proceedings - and his right to be given reasoned conclusions on its completion. What, however, he has no right to do is to participate in the investigation itself for all the world as if he were supervising the PCA as they themselves supervise the investigating police force.

  56. Liberty, in my judgment, were right to have recommended in their report no disclosure until the end of the investigation and nothing in paragraph 109 of Jordan justifies, let alone compels, the conclusion for which they now contend: the necessity for earlier disclosure to safeguard the complainant’s interests. So far from this, indeed, the Turkish cases referred to in paragraph 109 to my mind suggest an altogether more restricted form of involvement: on the facts of those cases merely the need to inform the victim’s father of a decision not to prosecute and to give the victim’s family “access to the investigation and court documents”, by no means the same thing as is contended for here.

  57. I am struck too by the fact that in all the Strasbourg cases where the complaint has been upheld the identified failures were very clear and, importantly, in every case went to the effectiveness of the investigation itself. I recognise, of course, the importance of maintaining confidence in the system and indeed, of public scrutiny generally. But if in April 2000 Liberty saw no need on that account for claimants’ participation in the investigation, there is nothing in Jordan to justify a different stance today. Present procedures to my mind satisfy the requirements of both paragraph 109 and paragraph 121 of Jordan.

  58. It follows that I for my part would lay down a general rule that complainants (be they victims or next-of-kin) are not entitled to the disclosure of witness statements in the course of a police investigation until, at the earliest, its conclusion. I say “at the earliest” because strictly we are not called upon here to decide whether, even at that stage, statements ought (as Liberty’s report suggested) routinely to be disclosed. Clearly there are considerations against as well as in favour, that of confidentiality not least. No doubt these matters are actively under review in the context of the Police Reform Bill presently before Parliament and the Regulations to be introduced under it, and it would, I think, be wrong for this court now to seek to influence or even perhaps pre-empt the judgment to be arrived at.

  59. The reason, of course, why the point does not arise for decision on this appeal is because Mr. Green’s interest in disclosure is not so that he may be satisfied of the correctness of the Chief Constable’s decision but rather so that he can seek to influence the future course of events with regard to prosecuting or at least disciplining DS Lawrence. That is why the PCA were required to agree, as a condition of Mr. Green withdrawing his earlier judicial review challenge, to “conduct a full review” of his complaint and to “make a fresh decision” upon it. That is why in September 2001 the PCA recognised that were disclosure to be made, the West Yorkshire Police might need to re-open their inquiries. And that, of course, is why DS Lawrence is so opposed to disclosure.

  60. Although, as stated, I would allow this appeal by reference to a general rule that disclosure of documents of this kind ought not to be given at least until the final completion of an investigation, there are certain other matters I must mention before concluding this judgment. First is this: Mr. Bynoe makes plain in his statement that disclosure here would in fact “be unlikely to prejudice any future criminal or disciplinary proceedings”, a concession unsurprisingly seized upon by the respondent. One reason, however, for laying down a general rule against disclosure during the course of an investigation is to avoid the need to make judgments of this character, with the attendant risk of getting it wrong. But there are others too. Mr. Bynoe states also that, following discussion between the parties, even if disclosure had been made pursuant to Moses J’s order, “some eyewitness material [would have] been withheld because it relates to the undercover police operation that was going on at the time”. The disclosure of some but not all eyewitness material might well be thought to do more harm than good, certainly insofar as the object of disclosure is to justify the eventual decision whether or not to proceed further against the police officer, and perhaps also at the earlier stage when the complainant is seeking to be involved in the investigative process.

  61. Assuming, contrary to my own conclusion, that a complainant’s Article 3 rights include an entitlement to early disclosure of other witnesses’ statements, the question then arises whether in any event the PCA would have power to re-open this particular investigation. Mr. Gordon contends that under the March 2001 compromise (referred to in paragraph 13 above) the PCA must be taken to have withdrawn their original section 73(2) statement (referred to in paragraph 12), despite that statement not having been the subject of the judicial review challenge. Mr. Gordon relies not least on the PCA’s letter of September 2001 (referred to in paragraph 15). Both Mr. Harrison and Mr. Crow dispute this: they argue that the PCA had already reached the later stage of deciding whether or not in the exercise of their section 76 power to recommend or direct the Chief Constable to bring disciplinary proceedings. To my mind, however, it matters not which is correct. Given the PCA’s right under section 76(7)(b) to obtain such other information as they need for the purpose of reaching their section 76 decision, I am inclined to think that, if, after obtaining the complainant’s comments upon any other witnesses’ statements disclosed to him, they thought it necessary, they could require the investigation to be re-opened. And whichever stage of the statutory procedure had been reached, of course, section 80 would provide no bar to disclosure: assuming always that the PCA thought it desirable to involve the complainant in the investigation (if only to instil public confidence in the police complaints system) disclosure would then be necessary for the proper discharge of their functions.

  62. It follows that the Court could, if it thought it right, order disclosure here with a view to further police inquiries being made thereafter, precisely as Mr. Green wishes. For the reasons already given, however, this is not an order which I for my part think appropriate. I would accordingly allow the appeal and set aside the disclosure order made by the judge below.

    Lord Justice Chadwick

  63. I agree that this appeal should be allowed and the order for disclosure set aside. I reach that conclusion on narrower grounds than those which have found favour with the other members of the Court, whose judgments I have had the advantage of reading in draft.

  64. The starting point, as it seems to me, is the statutory restriction imposed by section 80(1) of the Police Act 1996:

    No information received by the Authority in connection with any of their functions under sections 67 to 79 .... 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,

    ....

  65. In the light of that restriction the relevant questions are:

    1. in relation to the discharge of what function or functions of the Authority is the information to be disclosed; and

    2. is it necessary that the information be disclosed for the proper discharge of those functions.

  66. The Police Complaints Authority is a body corporate established under Part IV of the Police Act 1996. The functions which it is required and empowered to discharge are prescribed by that Act. For the purposes of this appeal the relevant functions are to be found in section 70 (references of complaints to the Authority), section 72 (supervision of investigations by the Authority), section 73 (reports on investigations), section 75 (steps to be taken after investigation: standard procedure) and section 76 (powers of the Authority as to disciplinary proceedings).

  67. Sections 70 to 73 of the Act are concerned with the investigation of a complaint. In particular, section 70(1)(a)(i) requires that a complaint alleging that the conduct complained of resulted in serious injury must be referred to the Authority by the chief officer of police of the force of which the person against whom the complaint is made is a member; section 72(1)(a) requires that the Authority must supervise the investigation of any such complaint; section 73(1)(a) requires that, at the end of an investigation which the Authority have supervised, the investigating officer must submit a report on the investigation to the Authority; section 73(2) requires that after considering that report the Authority must submit “an appropriate statement” to the chief officer of police by whom the complaint was referred; and section 73(3) requires that (if it is practicable to do so) the Authority shall send a copy of that statement to the member of the police force whose conduct has been investigated. In that context, an appropriate statement means a statement

    1. as to whether the investigation was or was not conducted to the Authority’s satisfaction,

    2. specifying any respect in which it was not so conducted, and

    3. dealing with any such other matters as the Secretary of State may by regulations provide – see section 73(9) of the Act.

  68. Sections 74 to 76 are directed to matters after the conclusion of an investigation and the submission of a report. Section 74 applies only in relation to senior officers, and is not in point in the present case. Sections 75 and 76 apply where the member of the police force whose conduct has been investigated is not a senior officer. In such a case the chief officer of police of the force of which that person is a member must, in such cases as may be prescribed by regulations made by the Secretary of State and whether he has determined that the report which has been sent to him under section 73(1) indicates that a criminal offence has been committed or not (although, if he has so determined, only after the Director of Public Prosecutions has dealt with the question of criminal proceedings), send to the Authority a memorandum stating whether he has brought (or proposes to bring) disciplinary proceedings in respect of the conduct which was the subject of the investigation and if he has not brought (and does not propose to bring) disciplinary proceedings, giving his reasons – see section 75(4) and (5) of the Act. Section 76(1) of the Act requires that, where a memorandum under section 75 states that a chief officer of police has not brought disciplinary proceedings or does not propose to bring such proceedings, the Authority may recommend him to bring such proceedings. If after the Authority have made a recommendation under section 76 and consulted the chief officer he is still unwilling to bring disciplinary proceedings, they may direct him to do so.

  69. The present application is a challenge to the decision of the Authority, in a letter dated 3 April 2001, not to disclose material which it had received in connection with its functions. The letter contains the statement that the Authority does not consider that disclosure of the material sought is necessary for the proper discharge of its functions. It is relevant, therefore, to note that the function the Authority was then in the course of discharging was that conferred by section 76 of the Act. It was reviewing an earlier decision not to recommend the chief officer of police to bring disciplinary proceedings against a member of his force. It is important, in my view, to appreciate that it was not discharging any function in relation to a current investigation. The Authority had, on 10 January 2000, issued a statement under section 73 of the Act stating, in terms, that the complaint had been investigated to its satisfaction. That statement has never been the subject of challenge in judicial review proceedings; it was not the subject of the consent order made on 12 March 2001; it has not been withdrawn by the Authority; and, for my part, I have considerable doubt whether it could be withdrawn (absent an order of the court) without the consent of both the investigating officer and the person under investigation. An “appropriate statement” under section 73 is plainly intended to have important consequences under the statutory scheme – in particular it marks the transition between investigation and proceedings after investigation – and it is not lightly to be treated as if it is of no effect.

  70. The judge ordered disclosure because he thought that the legitimate interests of the complainant required that he be able to comment, as an eyewitness, upon the evidence of others in relation to the event which was under investigation. But the investigation phase of the complaints process for which Part IV of the 1996 Act provides was concluded. A report had been made by the investigating officer and the Authority had accepted that the investigation had been carried out to its satisfaction. By April 2001 the Authority was concerned with a later, and distinct, phase of the complaints process – that of deciding whether, on the basis of the report made by the investigating officer, it should recommend disciplinary proceedings. That was a decision to which the complainant, in his capacity as an eyewitness, could contribute nothing. Disclosure could not be necessary to the discharge of the function in which the Authority was engaged.

  71. I appreciate that the appeal is thought to raise much wider issues. But those issues are the subject of consideration and consultation elsewhere, in the context of a new complaints body and new procedures. I think we should resist the temptation to contribute, judicially, to that debate in a case in which it is unnecessary to do so. This appeal can be decided on its particular facts. On those facts it should be allowed.

    Lady Justice Hale

  72. This is an appeal essentially against the reasons given by Moses J for making an order with which the appellants had initially decided to comply. The general principle is that appeals are against orders, not against the reasons given for them. The appellants are in the difficulty that, although they accept that disclosure will do no harm in this case, they do not wish to be bound to give it in every such case. This court is in the difficulty that, in accepting the invitation to hear such an appeal, it risks deciding a general policy issue ‘in the air’, without reference to the particular circumstances of the case or the wider consultation and debate which policy issues should properly attract. Yet all parties have invited us to do this. We have therefore been enormously assisted by the intervention, not only of the police officer who is directly interested in the outcome, but also of third parties with more general points of view to advance, the Crown Prosecution Service, the Home Office, and Liberty. Each has made a separate and valuable contribution to the debate.

  73. As a former law reformer, however, I cannot pretend that serious debate on difficult and controversial policy issues is best conducted through the medium of litigation. It is best conducted over time, away from the heat of the forensic kitchen, and with as full consultation of the general public as well as interested bodies as can possibly be achieved. In this context, the debate has already been held elsewhere and legislation is currently before Parliament. Anything which we say here should not be taken to affect its outcome or implementation.

  74. But in the meantime there is a public body faced with a first instance decision having a profound effect upon their general practice. The statutory functions of the Police Complaints Authority are there to fulfil at least three purposes:

    1. The primary purpose must be to secure proper behaviour by police officers, by ensuring that allegations of improper behaviour are fully investigated and any wrongdoers brought to book, either by prosecution or by disciplinary proceedings.

    2. That purpose can only be achieved by a process which is fair, and perceived to be fair, by both parties to the complaint, the complainant and the officer against whom the complaint is made. Proper behaviour is not secured or promoted by a disciplinary process which is arbitrary or unfair. Why keep to the rules if you may be punished anyway? Why make a complaint if it will be turned down anyway?

    3. The process must also be such as to promote public confidence in the police. It is hugely important in a democratic society that the great mass of the population who are inclined to be law-abiding should have the reassurance that their law enforcement agencies can be trusted to act properly or face sanctions if they do not.

  75. All of that could have been said without reference to the European Convention on Human Rights, but it is reinforced by the recent cases, such as Jordan v United Kingdom, App No 24746/94, 4 May 2001, in which the purpose and content of investigations into allegations that state agents have acted in breach of Articles 2 or 3 of the Convention have been considered. While the state may be expected to protect people against violations by other private individuals, there has to be some effective means of protecting people against violations by agents of the state. Hence the need for independent and effective investigation leading to sanctions where appropriate.

  76. Section 80(1) of the Police Act 1996 provides that ‘No information received by the Authority in connection with any of their functions .... shall be disclosed .... except so far as may be necessary for the proper discharge of the functions of the Authority, to other persons.’ The statutory functions of the PCA in supervising investigations and deciding whether disciplinary action should be taken, are there to serve the three purposes identified earlier. If disclosure is necessary for those purposes, therefore, I would think it necessary for the proper discharge of their functions. This is beyond doubt in relation to allegations of breaches of Articles 2 and 3 of the European Convention on Human Rights, because section 80 must not only be read but also be ‘given effect’ so as to comply with the Convention rights: see section 3(1), Human Rights Act 1998. But I would have reached the same conclusion at common law, irrespective of whether Convention rights were engaged.

  77. When is it necessary to give what disclosure for these purposes? Purposes (2) and (3) are likely to be served by the disclosure of as much information derived from the investigation as possible to both parties while it is going on. Then they can have the opportunity of making comments before the investigation is concluded or final decisions taken. The confidence of the general public will be enhanced by the knowledge that such disclosure and exchange will take place. Decisions will not be taken on the basis of secret information which has been kept from the sight of the people most closely connected.

  78. However, purpose (1) may be prejudiced by a general practice of disclosure, although there are cases where it would be enhanced. The problems are contamination and confidentiality. Contamination is not generally a problem in the civil and family jurisdictions which start from the proposition that witnesses are doing their best however misguided or mistaken their best may be. It is however a problem in the criminal jurisdiction which does not start from that proposition. Witnesses (apart from police officers) must be kept apart and not allowed to see one another’s witness statements for two reasons: there is a risk either

    1. that they will deliberately trim their evidence to fit in with the evidence of others (i.e. act dishonestly) or, perhaps more seriously,

    2. that their honest evidence will be disbelieved because the accusation of trimming can be made to discredit it.

  79. To a civil judge these fears may appear exaggerated or unreal, and it is noteworthy that Moses J, who cannot be accused of inexperience of the criminal jurisdiction, thought that they were exaggerated in that context too. The police acknowledge that there is a fine line between contamination and putting the various accounts to each of the witnesses so as to obtain the fullest and clearest picture possible. But as the law now stands, rightly or wrongly, that jurisdiction does take contamination seriously. It would therefore be consistent with purpose (1) to refuse disclosure until it had been decided not to prosecute or any prosecution had been completed. The same would not necessarily apply to disciplinary proceedings: a chief constable ought to be able to decide where the truth lies, giving due but not undue weight to the possibility of trimming at an earlier stage, just as would many other employers’ disciplinary processes. The Liberty Report, An Independent Police Complaints Commission, by James Harrison and Mary Cunneen (April 2000, pp 34-35), recommended that statements and other evidence should be disclosed, but not until the CPS had advised against prosecution or criminal proceedings had been concluded. It gave more prominence, however, to the disclosure of the investigating officer’s report at that point.

  80. Confidentiality is a different problem. People who give evidence to the investigating officer cannot be given a complete guarantee of confidentiality because their evidence may be needed to prove either a criminal or a disciplinary case. But a general promise of confidentiality unless their evidence is required for this purpose means that exculpatory evidence will normally be confidential while incriminating evidence will not. In other words, there is a real risk that conclusions favourable to the officer (and hence adverse to the complainant) may be based upon evidence which will not be disclosed, whereas the evidence for any proceedings against him would ultimately and correctly have to be disclosed. This is scarcely likely to serve any of the purposes for which the complaints procedure exists. What complainant, or member of the public, would be reassured by a statement that the investigating officer (or the PCA) has been satisfied, as a result of information from an anonymous source, that no action should be taken on the complaint, especially where it appeared that the anonymous source was another police officer? It is different, of course, if there are particular reasons for confidentiality, for example, where a witness fears reprisals or has a close personal relationship with the complainant, or where disclosure would prejudice covert police operations.

  81. I would not, therefore, see confidentiality as a general rather than a particular objection to disclosure. In the present state of the criminal law, however, contamination must be regarded as a general objection to disclosure until prosecution has been ruled out or concluded.

  82. If so, there can be no justification for the distinction between eyewitness evidence and eyewitness complainants, and other evidence and other complainants, drawn by the judge. Contamination is a problem for eyewitnesses, but not for others. It could just as plausibly be argued that there should generally be disclosure to non-eyewitnesses but not to eyewitnesses. The arguments for transparency with non-eyewitnesses are just as great, if not greater, than with eyewitnesses and the main argument against it does not apply.

  83. However, the best safeguard for all concerned is a fully reasoned decision, giving an account of the evidence received, any conclusions reached on disputes of fact, applying the appropriate law to the facts found, and explaining the considerations which have affected any discretion exercised. Only rarely should the reasonable recipient of such a decision be so suspicious as to wish to see the underlying evidence on which it is based. I would therefore conclude that a fully reasoned decision is the best way to safeguard the integrity of and promote individual and public confidence in the complaints procedure. It may be necessary to disclose the underlying evidence if either party can demonstrate a good reason for wishing to see it and there is no good reason to refuse this. It therefore appears to me that the stance taken by Liberty in Harrison and Cunneen’s Report has a great deal to recommend it

  84. For the reasons given earlier, this court should only concern itself with things as they are now, and not with how they may be when a new complaints body and procedures are introduced. Many of the considerations discussed before us will remain relevant but there may be others which have not been fully canvassed and the whole context will be different when the new body will be conducting their own investigations. For the mean time, I would interpret and give effect to section 80 as described in the previous paragraph. I doubt whether the practical effect will be any different from that adopted by Simon Brown LJ. I agree with him that the appeal should be allowed and the order for disclosure set aside.

    POSTSCRIPT

  85. Since the above judgments were written the court has received from Mr. Gordon a note upon the ECtHR’s judgment in Edwards v United Kingdom (Application no 46477/99), delivered as recently as 14 March 2002. The court was there concerned with a complaint, by the parents of a mentally ill prisoner who had died at the hands of his mentally ill cell-mate, about the limited extent of their involvement in the independent inquiry held to investigate the death and in particular the circumstances in which the two men had come to be placed in the same cell. Mr. Gordon seeks to pray in aid paragraphs 83 and 84 of the judgment in which the court was applying the principles established in Jordan:

    83.

    The Government argued that the publication of the report secured the requisite degree of public scrutiny. The Court has indicated that publicity of proceedings or the results may satisfy the requirements of Article 2, provided that in the circumstances of the case the degree of publicity secures the accountability in practice as well as in theory of the state agents implicated in events. In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the Court considers that the public interest attaching to the issues thrown up by the case was such as to call for the widest exposure possible. No reason has been put forward for holding the inquiry in private, any possible considerations of medical privacy not preventing the publication of details of the medical histories of Richard Linford and Christopher Edwards.

    84.

    The applicants, parents of the deceased, were only able to attend three days of the Inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel or, for example, through the Inquiry Panel. They had to wait until the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.

  86. In our judgment, however, the circumstances of the present case are crucially different from those arising in Edwards. That inquiry was specifically into “a series of failures by public bodies and servants who bore a responsibility to safeguard [the deceased’s] welfare”. Small wonder that the court found the public interest to require “the widest exposure possible” and were so critical of “holding the inquiry in private”. Investigations into complaints against police officers are very different: they are necessarily of a private nature.

  87. Whilst, therefore, we are grateful to have been referred to Edwards, we derive no assistance from it in the context of the present case. Our respective conclusions remain unaltered.


Cases

R (Boot) v DPP & PCA [2001] EWHC Admin 982; Assenov v Bulgaria (1998) 28 EHRR 652; McCann v United Kingdom (1995) 21 EHRR 97; Jordan v United Kingdom (Application No 24746/94); R (on the application of Wright) v Secretary of State 62 BMLR 16; R v Smith (1968) 52 Cr App R 224; R v Richardson (1971) 2 QB 484; R v Skinner (1994) 99 Cr App R 212; R v Roberts (Michael Harry) (1998) 162 JP 691; R v Chief Constable of West Midlands, ex parte Wiley [1994] 1 AC 274; R v Home Secretary (ex parte Hickey) (No2) [1995] 1 WLR 734; Hickey, in Reg v CICA ex parte Leatherland (unreported); Edwards v United Kingdom (Application no 46477/99)

Legislations

Police Act 1996: s.70, s.72, s.73, s.75, s.76, s.80

European Convention on Human Rights: Art.2, Art.3

Authors and other references

James Harrison & Mary Cunneen, " The Liberty Report, An Independent Police Complaints Commission", (April 2000)

Representations

Jonathan Crow Esq & Steven Kovats Esq (instructed by Treasury Solicitor) for the Appellant

Richard Gordon Esq, QC & Stephen Cragg (instructed by Messrs Howells) for the Respondent

Richard Clayton Esq & Miss Nicola Greaney for Liberty

Mark Shaw Esq (instructed by Treasury Solicitor) for the Secretary of State for the Home Department

Richard Horwell Esq (instructed by Treasury Solicitor) for the Crown Prosecution Service

Michael Harrison Esq, QC & Nicholas Johnson Esq (instructed by Messrs Russell Jones & Walker) for DS Lawrence


all rights reserved