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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> X, R (On the Application Of) v The Chief Constable of Y Police & Anor [2015] EWHC 484 (Admin) (27 February 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/484.html Cite as: [2015] EWHC 484 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
3 Bull Street, Birmingham, B4 6DS |
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B e f o r e :
____________________
THE QUEEN (On the application of X) |
Claimant |
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- and - |
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(1) THE CHIEF CONSTABLE OF Y POLICE (2) THE POLICE AND CRIME COMMISSIONER FOR Y |
Defendants |
____________________
John Beggs QC and Aaron Rathmell (instructed by Y Legal Services) for the First Defendant
Hearing date: 6th November 2014
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Crown Copyright ©
Mr Justice Phillips:
The background facts
"It was felt that this was indicative of the applicant's personality thereby posing a potential risk to vulnerable people, which would be heightened if placed in a position of trust or authority.
Further, it was considered that there would be significant risk to the reputation of the organisation viz the Office of Police Commissioner should the intelligence known to ourselves become public knowledge as a result of complaints
The applicant would not be supported for any police role whether employed full time or as a volunteer with [Y] and [Z] police"
"27. There were three separate aspects of intelligence held in [Y] Police records which formed the basis of the decision to refuse vetting in this case.
28. First, there are incident reports in relation to the breakdown of relationships between [X] and women, in particular the reports dated 29 March 2008 to 28 July 2008 and, less relevantly, the reports dated 5 and 10 June 2010. In these reports it is clear that the relationships became particularly acrimonious, cross-allegations were made and police were involved, but took no further action.
29. The records disclosed indicate that the intelligence held by police is mixed - [X] levelled allegations and is referred to as the victim - and the recording officers took a balanced approach. In the incident report dated 5 June 2010, it was recorded X reported to police that he had anxiety and depression issues at that time. The latter information accords with another, unrelated, incident report (dated 15 February 2010, also referring to anxiety and depression). It is acknowledged that these matters are three to five years old, and that the issues involved in the relationships were personal and may have been complicated.
30. For those reasons the information was considered relevant, but not determinative of [X]'s application. If this were the only information held about [X] it is less likely that vetting would have been refused.
31. The second and third aspects of intelligence held in [Y] Police records were more serious, and were determinative of the decision to fail vetting. We confirm that they did not involve criminal convictions or cautions, but they did involve allegations against [X] that were serious in nature. This information has not been disclosed as part of the subject access requests.
32. The Chief Constable is not able to detail these intelligence reports further without disclosing information relating to other individuals who would necessarily be identified from that information. In respect of both pieces of intelligence, the person reporting information provided the information in confidence, declined to take the complaint further and requested to remain anonymous.
33. These two aspects of intelligence were the bases for the conclusion in the 19 August 2013 decision disclosed to [X], in redacted form …
34. Since that assessment was made, [X has]explained that the unusually high number of incident reports involving him as being due to the fact that he was, in his words, a "magnet for psychos". If that is [X]'s experience, it may cause him difficulties, working along side the police, and that is a factor for the purposes of vetting."
i) From the first statement of the Data Protection Officer of Y Police it is apparent (a) that there were three informants, each of whom had made allegations that X had committed offences; (b) from what the Officer explains about the retention of such information, that at least one of the allegations was made within the previous ten years; (c) that each of the informants had provided the information in confidence, had declined to take the complaint further and had requested to remain anonymous; (d) that recent inquiries had failed to locate the first and third informants: the second informant had been contacted, as a result of which Y Police were on notice that the second informant still objected to the information being made known to X.
ii) From the statement of the Assistant Chief Constable it is apparent that there were multiple allegations, of different but serious kinds, from the three sources. There were two separate serious allegations from different people with no known connection, made confidentially at different times. The appeal panel considered that the allegations reported were indicative that X posed a risk to vulnerable people.
My review of the withheld records
The relevant principles and their application
(a) Whether the withheld records are disclosable
(b) The balancing of different aspects of the public interest
"The conflict is more accurately described as being between two different aspects of the public interest. If it is decided that the aspect of the public interest which reflects the requirements of the administration of justice outweighs the aspect of the interest which is against disclosure, then it is the public interest which requires disclosure."
"The public interest which the N.S.P.C.C. relies upon as obliging it to withhold from the plaintiff and from the court itself material that could disclose the identity of the society's informant is analogous to the public interest that is protected by the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by a process of discovery or by oral evidence at the trial: Marks v. Beyfus (1890) 25 QBD 494.
The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus (1890) 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure."
" ... it is common ground that information given to the police is protected to the extent demanded by the society. This is clear from many cases including Marks v. Beyfus (1890) 25 QBD 494 (which applied the principle to the Director of Public Prosecutions), and many of the recent cases in your Lordships' House. The rule relating to the immunity accorded to police informants is in truth much older, so old and so well-established, in fact, that it was not and could not be challenged in the instant case before your Lordships. Once, however, it is accepted that information given to the police in the instant case would have been protected, it becomes, in my judgment, manifestly absurd that it should not be accorded equally to the same information if given by the same informant to the local authority (who would have been under a duty to act on it) or to the appellant society, to whom, according to the undisputed evidence, ordinary informants more readily resort."
" ... the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest-namely, the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be disclosed: see Lord Reid in Conway v. Rimmer [1968] AC 910, 953G-954A. The law therefore recognises here another class of relevant evidence which may - indeed, must - be withheld from forensic investigation - namely, the sources of police information...
Here, however, the law adds a rider. The public interest that no innocent man should be convicted of a crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial: see the citations in Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973]A.C. 388, 408A. It would appear that the balance of public interest has been struck, both in the general rule and in its rider, in such a way as to conduce to the general advantage of society, with the public interest in the administration of justice as potent but not exclusive."
"17. …. The Treasury's case is that the procedural requirements of article 6.1 vary according to context and that, in every case where it is said that the contents of potentially relevant documents in the possession of one party should not be disclosed to the other party on public interest grounds, a balance has to be struck between the rights of the latter party in the litigation and the wider public interest.
18. In relation to many article 6.1 arguments I readily accept that such a balancing exercise will be appropriate. However, there are irreducible minimum rights which article 6.1, like the common law (albeit that the minimum rights may not always be identical: see Al Rawi v. Security Service (Liberty intervening) [2012] 1 AC 531), requires to be accorded to any parties involved in litigation to which the article applies. For the reasons given by Maurice Kay LJ in Tariq v Home Office [2010] ICR 1034, I consider that every party to litigation has the right to be given sufficient information about the evidential case against him, so as to enable him to give effective instructions in relation to that case, to paraphrase what Lord Phillips of Worth Matravers said in the AF (No 3) case [2010] 2 AC 269, para 59…..
………………
21. The first point to make is that the requirements of article 6.1 are such that the information to be provided by the Treasury must not merely be sufficient to enable the bank to deny what is said against it. The bank must be given sufficient information to enable it actually to refute, in so far as that is possible, the case made out against it."
"The question is therefore whether there is in the European Convention on Human Rights, as explained by the European Court of Human Rights, any such absolute requirement, where this would involve the disclosure to Mr Tariq of the detail of allegations which would in normal litigation require to be disclosed, but which the interests of national security require to be kept secret. Clearly, it is a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it will lead to a claimant not knowing of such allegations in such detail. As the Home Office acknowledges, it is an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case; and this should be kept under review throughout the proceedings.
"However, to say that it is not possible under the Convention as interpreted by the Court in Strasbourg is in my view impossible, in the light of the clear line of jurisprudence culminating in the Court's decision in Kennedy which I have already discussed in paras 27 to 37 above. It is significant that, when the Court of Appeal reached its decision, it did not have the benefit of Kennedy."
"There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law. As I said at the beginning, the principles that lie at the heart of the case pull in different directions. It must be a question of degree, balancing the considerations on one side against those on the other, as to how much weight is to be given to each of them. I would hold that, given the nature of the case, the fact that the disadvantage to Mr Tariq that the closed procedure will give rise to can to some extent be minimised and the paramount need to protect the integrity of the security vetting process, the balance is in favour of the Home Office. I would allow the appeal."
"I have no doubt that article 6 does not require that Mr Tariq should be given the gist of information which would damage or jeopardise national security. First, and above all, this is a security vetting case and in such a case article 6 does not require gisting if and in so far as it would jeopardise the efficacy of the personnel control procedure. That is a sufficient reason for allowing the Home Office appeal. There is no sensible basis for distinguishing the present case from Leander and Esbester. In those cases (which concerned a complaint about the manner in which security vetting was conducted where the applicant was applying for a sensitive post), article 8 did not require disclosure of the security material. In the present case, the complaint is about the decision not to allow a person to remain in a post where security vetting was employed. There can be no distinction in principle between the two cases. A related point is that in all cases where security clearance is sought, it is because the individual has volunteered to undergo the clearance process for the purpose of doing (or continuing to do) the job that he is employed to do. He must be taken to know that checks will be made that may produce material that cannot be shown to him. As Lord Hope points out, he is a volunteer.
I would add the following points which reinforce the Home Office case. First, the subject-matter of the claim is a claim for damages for alleged discrimination. I do not wish to underestimate the importance of the right not to be subjected to discrimination. But on any view, discrimination is a less grave invasion of a person's rights than the deprivation of the right to liberty… "
(c) Mitigation of the effect of the restriction on disclosure
Conclusion