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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Defoe v HM Prison Service [2007] UKEAT 0451_06_0202 (2 February 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0451_06_0202.html Cite as: [2007] UKEAT 451_6_202, [2007] UKEAT 0451_06_0202 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE BURKE QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MR CHARLES MANNAN (of Counsel) Instructed by: Net Employment Solicitors Pett Lodge Ashford Road Charing Ashford Kent TN27 0DX |
For the Respondent | MR DAVID BARR (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) 1Kemble Street London WC2B 4TS |
SUMMARY
Practice and Procedure – Disclosure
The Appellant claims discrimination and victimisation against the Prison Service. As to disclosure, the Employment Tribunal ordered that security intelligence reports be redacted to delete names of prisoners who gave information to the Service about the Appellant and of officers who handled that information. The Tribunal, I, and both Counsel had copies of the documents unredacted.
Held: that the Tribunal had correctly or permissibly exercised their discretion. Disclosure of the names could permissibly be regarded as unnecessary for the proper pursuit of the claim and there was clear justification for the exclusion of the names.
HIS HONOUR JUDGE BURKE QC
The history
1. Mr Defoe asserts that, in February 2003, he gave evidence in support of a colleague at an Employment Tribunal, which colleague alleged that a principal officer, Mr Nicholas, had discriminated against him.
2. Since that time, security reports had been gathered by the prison with a view to establishing or supporting an allegation that Mr Defoe was bringing drugs or other contraband into the prison; and he was subjected to more observation and searches than white colleagues; his colleagues and prisoners were asked questions about his activities. This conduct persisted. In November 2004, Mr Defoe says that he was, on return from leave, subjected to a full 'rub-down' search and searched by a dog. He was then transferred to a different job. Similar events are alleged to have occurred twice in December 2004.
3. On 6 February 2005, it is alleged that Mr Defoe was moved to a different posting which was disadvantageous.
4. On 11 February, Mr Defoe's house, where he lived with his parents, was raided by police in the early hours of the morning. The police searched him and the house for drugs.
5. He then presented a formal grievance, which was not properly handled.
6. He was off work with stress and depression from that time onwards and, in April, was told that he would be on no pay.
The Chairman's decision
"5. The general principles of course for disclosure of documents are relevance and whether they are necessary for a fair disposal of the case."
He went on to consider why the Prison Service said that, in this case, such disclosure should not be made in full but in the redacted form. He recorded that it was said that the proposed redactions were necessary to preserve the anonymity of prison officers and prisoners who had given information and intelligence in relation to Mr Defoe for two reasons:- first, the need to preserve the integrity of the intelligence system which, within the prison, it is necessary to maintain to combat the evil of drug dealing, both within and outside the prison, i.e. coming into the prison from outside and, secondly, that it was necessary to preserve the safety of members of staff and prisoners who had provided such information and intelligence.
"There are, as correctly identified by the Respondent, two risks, one is to the integrity of the system and the other is to the safety both of staff informants and inmate informants. The integrity of the system point is well founded in my judgment because even assuming, and I assume it for these purposes, Mr Defoe neither deliberately nor inadvertently let slip anything, the prison authorities cannot be entirely confident of that. It could end up in the drying up of their information system, their intelligence system in which there is a public interest and the same applies to the personal security of people. It is a related fear of course. How do I know that my name won't be bandied about in another employment tribunal? One would imagine that the inmates would also clam up if they knew that that was a possibility. It seems to me those concerns are well founded and cannot be properly characterized as speculation."
He continued at paragraph 11 as follows:
"I have decided that the redactions proposed with the disclosure as I have set out earlier are put forward by the Respondent is sufficient for the just disposal of this case. I should add in passing that one of the named comparators within the pleased case at paragraph 37, is a person who does not feature in any of the SIRS to which I have had reference and which all parties present in this room have read in full."
Thus he determined the issue before him.
The law
"…whoever wins it is desirable that the arbitrator should have all the relevant material before him. On the other hand, there is much to be said against disclosure. The case is not, indeed, as strong as the case against disclosing the name of an informer - for the result of doing that would be that the source of information would dry up whereas here the commissioners will continue to have their powers under section 24 (6)."
"…that a similar immunity from disclosure of their identity in civil proceedings should be extended to those who gave information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. to that which the law allowed to police informers, viz., that the identity of the informer might not be disclosed, whether by discovery, interrogatories, or questions at trial…"
"…the public interest would nevertheless be better served by excluding such evidence. If, on balance, the matter is left in doubt, disclosure should be ordered."
It may be that he was talking there about what is now called public interest immunity; but the same principle applies to the issue which arises in the present case.
"…while no principle of public interest immunity protected such confidential documents and they were not immune from discovery by reason of confidentiality alone, the tribunal, in the free exercise of its discretion to order discovery, should have regard to the fact that they were confidential and that discovery would be a breach of confidence, so that, accordingly, relevance alone, though a necessary ingredient, did not provide an automatic test for ordering discovery, the ultimate test being whether discovery was necessary for disposing fairly of the proceedings and, in order to decide whether it was necessary, the tribunal should inspect the documents, considering whether special reasons such as "covering up" or hearing in camera should be adopted and following procedures which would avoid delay and unnecessary applications."
It is worth pointing out that in the first of those two cases, no suggestion of any threat to security or to an individual arose although, to a limited extent, there was such a suggestion in the second.
"14. ...there seems to me no reason why the law should not encourage their assistance [that is, the assistance of people giving information] by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected."
And at paragraph 39, Baker LJ said that the judge had to conduct a "balancing exercise" in which he had to have clearly in mind the need to maintain the confidences of the prison officers to the interviewing police officers, as far as it was possible to do so. He said that the weight to be attached to the confidence "will vary according to the particular circumstance with which the court is dealing. In the present case the countervailing public interest… is of very great weight…"
The arguments before me
"28. …The strength of the confidentiality is dependent on the particular circumstances of the case."