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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Green, R (on the application of) v Prosecution Service  EWCA Civ 389 (26th March, 2002)
Cite as:  EWCA Civ 389,  UKHRR 985
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Moses)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHADWICK
LADY JUSTICE HALE
| THE QUEEN|
(on the application of Anthony Lloyd Green)
|- and -|
|THE POLICE COMPLAINTS AUTHORITY||Appellant|
|- and -|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Interested Parties|
|THE CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE|
|DETECTIVE SERGEANT ANDREW LAWRENCE|
|THE CROWN PROSECUTION SERVICE|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(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 Greaneyfor 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
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Simon Brown:
“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.”
“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 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.”
“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.”
“(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.”
“… 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.”
“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 eg 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, eg Salman -v- Turkey cited above, § 106; concerning witnesses Tanrikulu -v- Turkey [GC], no 23763/94, ECHR 1999-IV, § 109; concerning forensic evidence eg 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
“… 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.” (paragraph 34)
“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.”
“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. …”
“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.”
“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.”
“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.”
“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.”
“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.”
“… 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.”
“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.”
“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 …”).
“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.”
“Obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said.” (per Sachs LJ at p 490)
“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.”
“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.”
“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.
“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.”
“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].”
“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.” (p 746)
Liberty’s report and the Police Reform Bill
“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; …”
“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.
Disclosure should be made to the complainant and the officer under investigation but not until the conclusion of any criminal proceedings. …”
Lord Justice Chadwick:
“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,
Lady Justice Hale:
“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.”