Rowe & Ors v Fryers & Anor

Following complaints by prisoners at Wormwood Scrubs prison of assaults on them by a number of prison officers, the police carried out a criminal investigation. In the course of it a number of prison officers, as suspects, were interviewed under caution. In the result some prosecutions and some convictions did follow, but not in the cases with which this case is concerned. However, several of the prisoners have pursued civil claims against the Home Office in respect of their complaints. The issue in this appeal is whether those interviews under caution should be disclosed to the relevant claimants. The issue came before his His Hon Judge Collins, CBE in the Central London County Court, first in the case of Abbey v The Home Office on 3 May 2002. Judge Collins found in favour of disclosure, but gave permission to appeal to the Court of Appeal because of the number of other pending actions and possible claims in which the same point was likely to arise. The case of Abbey was, however, settled before the appeal was heard. The present case then came before Judge Collins on 13 December 2002. It raised the same point. Judge Collins again ordered disclosure, saying that the two judgments should be read together.

The Commissioner of Police, from whom disclosure is sought, has taken a neutral stance. So has the Home Office, who are the defendants in the civil actions. The appellants are three prison officers, Rowe in the case of the claim by Fryers, and Green and Davies in the case of the claim by Johns. Fryers and Johns are the respondents to the appeal. The appellants were joined in the proceedings for the purposes of resisting the applications for third party disclosure.

It is necessary to begin by looking at the court’s power to order third party disclosure. Section 53 of the County Courts Act 1984 provides, so far as is material:

Section 54(1) expressly provides that a court is not to make an order under section 53 if it considers that compliance with it, if made, would be likely to be injurious to the public interest. Section 54(2) is the rule-making power.

The relevant Rule is C.P.R. 31.17. It provides:

It was common ground before the judge that the interviews met the test of relevance in (3)(a) above. The issue was whether disclosure was necessary in the terms of (3)(b) and whether the judge should exercise the discretion, that was undoubtedly given by the opening words of paragraph (3), in favour of disclosure.

The appellants’ argument on the facts runs thus. Prison officers are particularly vulnerable to the kind of accusations that have been made in the present case. Quite frequently allegations are made against prison officers by prisoners. Sometimes individual officers are identified; sometimes not. This may result in the police interviewing all the officers who were on duty at the relevant time. Prison officers invariably agree to assist the police in their investigations and to be interviewed. It is very much in the public interest that this assistance should continue. It is said that in the vast majority of cases complaints by prisoners do not lead to prosecution of prison officers and even where charges are preferred the conviction rate is very low. In the present cases, the prison officers were interviewed under caution but no charges were brought. Mr Havers Q.C, for the appellants, points out that prison officers are particularly vulnerable to unfounded allegations by prisoners and that things may be said in answer to questions by the police that could support a case that a prisoner later chooses to bring, for example that the officer questioned or a colleague was on duty at the particular time. There are others too in public sector employment who are in a similarly vulnerable position, for example immigration officers or care workers. When someone is interviewed under caution the questions are answered in circumstances of confidentiality and these prison officers were entitled to believe that their answers would not see the light of day except in the event of criminal proceedings. The words of the caution, so it is submitted emphasise this. These are:

The contrary argument for the prisoners is that they too are in an extremely vulnerable position and it is critical that any evidence supporting their claims should be available for the court to consider. No unnecessary hurdle should be put in the way of a prisoner who may have a perfectly good civil claim. This is particularly important bearing in mind many prisoners will start with credibility problems because of the very fact that they are prisoners and that they have criminal records. Little can be read into the Crown’s decision not to prosecute, because criminal charges will only be brought if there is a good prospect of conviction. What the appellants said in interview may well turn out to be crucial to the success of a civil claim against the Home Office.

CPR 31.17 applies, as paragraph (1) makes clear, when disclosure is sought by a person who is not a party to the proceedings. Many and varied circumstances are envisaged. Examples that come readily to mind are records held by local authorities about children, police accident reports in road traffic cases and documents held by bodies such as the Health and Safety Executive, hospitals and so forth. It is important to emphasise that disclosure is sought against the Commissioner as a non-party to the proceedings and it is disclosure against non-parties to which C.P.R. 31.17 is directed. Had the appellants been defendants instead of, or in addition to, the Home Office the ordinary rules for disclosure between parties would have applied but the appellants could have applied to withhold disclosure or inspection under C.P.R. 31.19. C.P.R. 31.19(1) provides that a person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.

The word ‘only’ in paragraph (3) emphasises that disclosure from third parties is the exception rather than the rule. Disclosure will not be routinely ordered but only where the conditions there specified are met. The first condition in (3)(a) is that the documents sought are likely to support the case of the applicant or adversely affect the case of one of the other parties. In other words they must have a potentially relevant bearing on one or more of the live issues in the case. The question is whether they are likely to help one side or the other. In Three Rivers District Council and Others v Governor and Company of the Bank of England (No.4) [2003] 1 WLR 210 Chadwick L.J, giving the judgment of the court, explored in some depth the meaning of the word ‘likely’ in this rule before concluding in para 32:

It was agreed in the present case that the necessary threshold was met and the issue was whether the second condition was satisfied and the judge’s overall discretion should be exercised in favour of making an order.

Given agreement that the interview records passed the relevance test in subparagraph (a), the judge had first to consider whether disclosure was necessary in order to dispose fairly of the claim or to save costs. I think it is important to bear in mind that this condition only falls for consideration when the relevant condition in (a) has been satisfied. Condition (b) must therefore be construed in that context. In my judgment this condition is focussing on the necessity of disclosure because third party disclosure ought not to be ordered by the court if it is not necessary to do so. Like condition (a), condition (b) is also focussing on the particular case before the court. At this point the judge has to ask himself the question whether the disclosure is needed to dispose fairly of the claim or to save costs. There may, for example, be another route to obtain the necessary information, or making an order at the particular stage the proceedings have reached may add to the costs rather than save costs.

The third and final stage under Rule 31.17(3) is for the court to exercise its discretion whether or not to make an order. Here, wider considerations may come into play, but the court only reaches this stage if the two conditions in (a) and (b) are met. It is at this point, in my judgment, that public interest considerations fall to be taken into account and, if necessary, to be balanced. Two competing public interests have been identified in the present case, on the one hand the public interest of maintaining the confidentiality of those who make statements to the police in the course of a criminal investigation, and on the other the public interest of ensuring that as far as possible the courts try civil claims on the basis of all the relevant material and thus have the best prospect of reaching a fair and just result.

These two public interests, which in this case compete, have been clearly identified in authority. In Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 Lord Hoffmann said at 211B:

The other public interest was identified by Sir Christopher Slade in Marcel and Others v Commissioner of Police of the Metropolis and Others [1992] Ch 225, 263H:

The critical question in the present case, so it seems to me, is how the court should approach balancing those competing public interests. In other words how the court should exercise its residual discretion under Rule 31.17 (3).

Some assistance is to be found in the authorities, although none of them deals specifically with both the public interests that compete in the present case. A helpful starting point is Attorney General v Guardian Newspapers (No.2) [1990]1AC 109 (the spycatcher case). Lord Goff of Chieveley, when describing the principles which limit the general principle of confidentiality, put the position succinctly as follows at 282 E:

In this regard it is of some importance to look at the terms of the orders made by the judge in the present case. These include that:

The transcripts are to be used solely for the purposes of inspection, drafting of witness statements and preparation for trial.

No one provided with the transcripts is to disclose their contents to anyone save for the above purposes.

There is a strict limitation on the persons to whom copies of the transcripts may be provided.

The transcripts are not to be treated as coming into the public domain, and no use is to be made of them that will result in their coming into the public domain without the consent of the appellants or the order of the court.

It is also pertinent to point out that the appellants did not, as they could have done, invite the judge to look at the material before making a decision. Had this been done, the judge would have been better equipped to decide the issues under CPR 31.17(3)(a) (which was conceded) and (b). However, the appellants chose to have the point decided on the question of principle. I shall return to this later.

It is necessary next to look at those authorities that deal with the confidentiality of statements made to the police. The first is Bunn v The British Broadcasting Corporation and Another [1998] 3ALL E.R. 552. In that case the plaintiff was tried for conspiracy to defraud. During the trial reference was made by the prosecution to admissions made by him during an interview under caution by the police. He suffered a heart attack, and the jury was discharged. There was no second criminal trial because further proceedings were stayed on the grounds of oppression and abuse of process. The first defendant made a programme about the work of the Serious Fraud Office. The scheduled broadcast made a case that there were reasonable grounds for pursuing a second trial and referred to admissions made by the plaintiff when interviewed by the police. The second defendant had already published a book that contained the statements made by the plaintiff to the police and over two thousand copies had been sold. The plaintiff sought injunctions restraining the defendants from including in the broadcast and the book any material disclosed during the police interviews on the ground that what he had said to the police was the subject of a confidentiality obligation which precluded its use other than for the purposes for which it was provided i.e. in the criminal trial. The claim failed because the material was already in the public domain. Lightman J said at 556 C:

Mr Havers relies strongly on the fact that the appellants in the present case were interviewed under caution. I am not persuaded that this factor is as critical as he suggests. Mr Owen submits that it is difficult to see why the fact of being interviewed under caution enhances the confidentiality. The words of the caution make no promise or representation that the contents of the interview will be used only in a criminal trial.

In Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 a registered nurse who was the matron of a nursing home was arrested after a patient died in her care. She was interviewed by the police under caution. At the conclusion of the investigations there was insufficient evidence to charge her with any criminal offence. The local health authority’s registration and inspection unit, which was concerned with other allegations against her, however, referred the matter to the nursing regulatory body who contacted the police for the relevant information. The police followed their ordinary practice and sought the plaintiff’s authority to disclose a transcript of the interview to the regulatory body but she refused her consent. Astill J refused an injunction restraining disclosure and his decision was upheld by the Court of Appeal.

As in the present case, the court had to conduct a balancing exercise between two public interests that pull in different directions. One was the same public interest that arises in the present case, the need to protect the privacy and confidentiality of those giving information to the police. But the other was different. There the countervailing public interest was the protection of health and safety. Procedurally too the matter came before the court in a different way namely as an application for an injunction to prevent disclosure, whereas here the court has to apply CPR31.17 and in particular the discretion in CPR 31.17(3).

Kennedy L.J., in the course of giving judgment with which both the other members of the court agreed, said this at 29B:

Neither counsel was able to find any other authority in which Kennedy L.J’s reference to exceptional circumstances could be found. I do not think too much should be read into these words. All Kennedy L.J was doing was emphasising the general rule that the confidentiality should be maintained and that good reason was required to override it. Mr Havers relies on Kennedy L.J.’s reference to exceptional circumstances as the basis for his argument that the appellants’ right to confidentiality is of special importance where a suspect is interviewed under caution. Indeed, he submits, the expression means what it says and that that there are quite simply no exceptional circumstances in the present case. For my part I do not think Kennedy L.J. was doing other than using exceptional circumstances as a shorthand expression for indicating that the general rule should not readily be overridden. This seems to me to be clear when one looks at the way in which he approached his conclusion at 36E where he said:

In my judgment the correct approach, which I believe to be consistent with Kennedy L.J’s approach in Woolgar, is that one has to look and see whether there is another public interest which on the facts of the particular case assumes an even greater importance than the need to maintain the confidentiality of those who assist the police in their inquiries.

In R v The Secretary of State for the Home Department, ex parte Hickey and Others (No.2) [1995] 1WLR 734 the applicants had applied to the Secretary of State to refer their convictions to the Court of Appeal under section 17 of the Criminal Appeal Act 1968. The issue was whether they should have been given fuller disclosure of the information obtained from the police investigations ordered by the Secretary of State. The Divisional Court held that those in the shoes of the applicants should be able to make representations about material which had been received by the Secretary of State’s inquiry in advance of his decision as to referral and that there should be sufficient disclosure to ensure that the individual could present properly his best case. Simon Brown L.J. said at 745C:

The learned Lord Justice thus distinguished between the general and the particular. A general public interest of confidentiality in what was said to the police was clearly quite easily overridden in the circumstances with which that case was dealing, but he envisaged what he described as exceptional cases e.g. information supplied by informants or where witnesses might be pressurised. The strength of the confidentiality is dependent on the particular circumstances of the case.

Simon Brown L.J. revisited what he had said in Hickey in R v The Police Complaints Authority Ex parte Green [2002] EWCA Civ 389. Mr Green was hit by an unmarked police car and severely injured. He made a formal complaint which was investigated by the Police Complaints Authority (PCA), the basis being that the driver of the police car had been attempting to kill him. After investigation had been completed the PCA refused Mr Green’s request for disclosure for various documents. These were, essentially, eye witness accounts of the incident and experts’ reports based on investigations of the scene. Mr Green succeeded on an application for judicial review, Moses J holding that in principle the documents were disclosable. The Court of Appeal, however, allowed the appeal not on the issue of confidentiality but on other grounds. Simon Brown L.J. said at paragraph 40:

He then cited the passage from his judgment in Hickey to which I have already referred before continuing:

Hale L.J. saw confidentiality as a particular rather than a general objection to disclosure. She said at paragraph 83:

Two points, in particular, arise from this passage. First, Hale L.J. recognises that there may be reasons that are specific to the particular case why maintaining the confidence is of special importance to the individual who supplied the material to the police. Second, if prison officers are routinely protected from disclosure, situations could easily arise where they readily agreed to disclose in the event that disclosure might help their case but hide behind the cloak of confidentiality when it might not.

Mr Havers submits that interviews of suspects play an essential part in the criminal justice system. It is in the public interest that the police should obtain the fullest information so that charges may be brought when they should be and not when they should not. Nothing should be done that is likely to discourage a suspect from answering police questions. The police need to be able to follow up all available lines of inquiry. What a suspect says will often lead the police on to consider the involvement of others in the crime they are looking into. Suspects should not be looking over their shoulders at uses outside the criminal process to which their information may be put. The caution, he argues, gives the suspect an implied assurance that the answers will not be used for any purpose outside the criminal process. A witness who is being interviewed, but not under caution, does not receive this implied assurance. In short, a public interest of the highest order arises in the need to obtain the fullest and unreserved co-operation from suspects who are interviewed under caution. That is not the end of the matter because there is also the suspect’s private interest to consider. When the suspect had questions put to him there was some element of compulsion in answering them because if he did not it might harm his defence in a subsequent criminal trial.

Mr Havers argues that the position is comparable to the privilege of a defendant talking to his lawyers. He contends, picking up the reference from Kennedy L.J. in Woolgar, that there have to be exceptional circumstances or reasons for overriding the confidentiality protection that the law otherwise gives to those interviews. Prisoners making civil claims against prison officers are, he submits a regrettably familiar occurrence. The interests of justice in this case do not begin to amount to exceptional circumstances. In Woolgar there were exceptional circumstances but this case falls on the other side of the line. I cannot accept Mr Havers’ argument. He is elevating Kennedy L.J’s reference to ‘exceptional circumstances’ to a level beyond that which was intended.

It is, in my judgment, clear beyond doubt that confidentiality attaches to what is said to the police in the course of a criminal investigation and that this applies whether the person giving the information is a suspect who is interviewed under caution or merely a potential witness. For my part I cannot see any distinction in principle. However, the point may be reached where the court has to conduct a balancing exercise between the public interest in maintaining this confidentiality and some other public interest. The weight to be attached to the confidentiality will at this point depend very much on the particular circumstances in which the material sought was obtained. Mr Owen suggests there are four categories of case. In the first category, at the top of the scale as it were, is the informer. Here the assumption is that there will be no disclosure; the public interest in maintaining confidentiality trumps most other circumstances. The next category is where the witness is willing to make a statement but only on the basis of not giving evidence. In such a case the statement goes into the unused material. The third category is what I would call the ordinary witness statement where the witness is willing for the document to be disclosed for the criminal proceedings and is aware that it may also be used for civil or regulatory proceedings. In other words the statement may become useable for purposes beyond the criminal trial. The fourth category is where a suspect is interviewed under caution. It is difficult, submits Mr Owen, to see why this category should entail confidentiality at all. Such confidentiality as is attracted is of a low order and easily displaced. For my part I do not think any rigid categorisation is particularly helpful; the weight depends on the circumstances of the particular case.

As mentioned earlier, the problem that arises in this case is likely to arise also in other areas of public sector employment and indeed there will, in principle, be similar problems in entirely different situations where third parties to civil proceedings have been interviewed by the police about issues which touch on the subject matter of the action. That is why, during the course of argument I asked counsel about the situation in road traffic cases. Police attend the scene of an accident, witnesses are interviewed and make written statements. Anyone suspected of driving without due care and attention, or any other offence, is most probably interviewed under caution and yet the police report, which contains all this material is routinely disclosed to the parties. Counsel have been unable to unearth any statutory authority for such disclosure. What one asks, of the confidentiality attaching to what was said to the police? Counsel helpfully produced for the court a copy of p.418 of the Law Society’s Gazette for August 1967 reciting a memorandum of the Joint Committee of the General Council of the Bar and the Law Society produced in March 1966, accepted by the Home Office, which endorsed routine disclosure and which, as far as I am aware, has remained the practice ever since. The existence of this practice suggests that the weight of confidentiality to be attached to statements made to the police in such circumstances is low. However, if for some reason in a particular case the weight of confidentiality to be attached to a statement was regarded as sufficiently heavy to justify withholding disclosure, then no doubt the court could be asked to rule on the matter. In my judgment the practice in road traffic cases simply emphasises that ordinarily civil actions should be tried on the basis of full and complete information and that it is necessary to consider the facts of the individual case before deciding whether the public interest in maintaining confidentiality is of overriding importance.

I agree with the submission of Mr Owen that section 54(1) of the County Courts Act 1984 adds nothing to the exercise of the judge’s discretion in the circumstances of the present case. A public interest immunity claim under section 54(1) is ordinarily dealt with by an application under C.P.R. 31.19. No such application was made here. Mr Owen submits that it was open to the judge to have required the documents to be disclosed to him by the Section 54 route but that he did not do so. Mr Havers points out that no application was made under C.P.R.31.19 (the route for dealing with a public interest immunity claim) and does not accept that the judge was entitled to look at the material. I express no view on the matter but draw attention to Tomlinson J’s observation in Three Rivers District Council, BCCI SA in liquidation v The Governor and Company for the Bank of England [2002] EWCA HC 2309 Comm at para 3 where he said he did not see any scope within CPR.31.17 for an inspection to ascertain actual relevance when it is potential relevance which is the threshold that must be overcome. Be that as it may, the judge in the present case specifically asked counsel then acting for the appellants to invite him to inspect the documents but counsel elected not to do so, and it was conceded that they met the test of relevance under C.P.R 31.17(3)(a).

Tomlinson J said in the Three Rivers, case that if disclosure of the documents in question is shown to be necessary in the interests of the litigation, then that need overrides confidentiality. However, in such a case, the court will be concerned to see whether the needs of the litigation can otherwise be satisfied, e.g. by considering redactions, disclosure from other sources or other appropriate means. There is to my mind no absolute rule. The public interest in ensuring a fair trial in the light of all relevant evidence is nevertheless in my judgment of the utmost importance and one that inevitably weighs heavily in any balancing exercise. However, as has been pointed out, there are circumstances in which it is overridden. Legal professional privilege, without prejudice communications and the need to protect the identity of an informer are cited as examples. Mr Havers observes that in the case of informers the underpinning factor is the desirability of maintaining a free flow of information to the police. If non-disclosure affects the integrity of a criminal trial the Crown is left with the stark choice of either disclosing the information or abandoning the prosecution. The position is different in civil cases. The trial proceeds and the judge must do his best on the information before him. The appellants’ argument is that there are already some circumstances in which the public interest of obtaining a fair trial on full evidence is overridden and that maintaining the confidentiality of interviews under caution is of such importance that it must be another. I cannot agree. In my judgment a judge should not be required to try actions by prisoners against the Home Office alleging assault by prison officers and misfeasance in public office in blinkers as to potentially critical evidence of what the prison officers said to the police when interviewed under caution. The evidence may help to establish liability or to negative it. Either way, in the present instances, it should be disclosed.

The court has in cases such as the present a difficult balancing exercise to perform between the two conflicting public interests. For my part, I would not put interviews under caution of suspects into any special category. It seems to me that all who make statements to, or answer questions by, the police do so in the expectation that confidence will be maintained unless (i) they agree to waive it or (ii) it is overridden by some greater public interest. The weight to be attached to the confidence will vary according to the particular circumstances with which the court is dealing. In the present case the countervailing public interest is one which, in my judgment, is of very great weight and one which outweighs the desirability of maintaining confidentiality. In conducting the balancing exercise the judge had clearly in mind the need to maintain the confidences as far as it was possible to do so. To that end he imposed stringent conditions on the extent and manner of disclosure. This, in my view, is a course which should always be followed in similar cases where the court decides that disclosure is required.

Accordingly I would dismiss the appeal.

I agree.

The claimants in these actions for damages for personal injuries against the Home Office seek disclosure from the Commissioner of Police for the Metropolis of statements under caution taken by his officers from prison officers employed by the Home Office at HMP Wormwood Scrubs where torts are alleged to have been committed. The application is made under CPR 31.17 which permits application to be made to the Court for disclosure by a person who is not a party to the proceedings.

CPR 31.17(3) provides:

The Commissioner of Police takes a neutral stance upon the application and has not taken part in the proceedings save to inform the Court that the statements have not been disclosed to the Home Office, the defendants in the actions. Disclosure is opposed by the prison officers. On their behalf, and for the purpose of the present application, it is conceded that the requirements of 31.17(3)(a) are satisfied with respect to the statements. The prison officers seek to have a question resolved as a matter of principle. It is whether a statement made by a prison officer, under caution, to police officers in the course of criminal investigations conducted by police officers into events in a prison is disclosable in subsequent civil proceedings in which the prison officer is not a party.

Mr Havers QC, for the prison officers, submitted that it is a public interest of the highest order that suspects agree to be interviewed by the police and answer questions fully, freely and unreservedly. That enables the police to have the fullest possible information so that criminal charges are brought in cases, and only in cases, where they should be brought. Those interviewed also have a private interest in non-disclosure. Moreover, the form of the caution amounts to an assurance that the statement will not be used for purposes other than criminal proceedings brought against the maker. Mr Havers relied on the use by Kennedy LJ, with whom Otton LJ and Waller LJ agreed, in Woolgar v Chief Constable to Sussex Police [2000] 1 WLR 25 at 29, of the expression “exceptional circumstances” when considering whether disclosure should be ordered.

The public and private interests involved, submitted Mr Havers, should not be overridden unless there are exceptional reasons for doing so. The word “may” in the opening part of 31.17(3) demonstrates that the Court has a discretion to refuse disclosure even when disclosure would facilitate the fair disposal of the claim. Documents subject to legal professional privilege would not be disclosable, even though relevant to the issues in the case. The situation considered in this case is not far short of legal professional privilege, it was submitted. Mr Havers relied on the statement of Millett LJ in the Court of Appeal in Taylor v Director of the Serious Fraud Office[1992] 2AC 177, 198:

Reliance was also placed on the statement of Lord Hope in Taylor, at p 219D:

For the claimants, Mr Owen QC submitted that once disclosure was shown to be necessary for a fair trial, disclosure must follow but he accepted that there could be cases, for example a statement made by an informer, where public interest immunity on a contents basis would prevail over what would otherwise be a right to disclosure. A prison is a closed world. Prisons are maintained in the interests of the public and there is a public interest in the disclosure of statements taken during police investigations at prisons. The fact that the statements were taken under caution was not material, it was submitted, the caution plainly being related to possible criminal proceedings and no explicit assurance is given as to non-disclosure if disclosure is sought in a civil action. If a prison officer was a party to civil proceedings, and had a copy of his statement under caution in his possession, it would normally be disclosable in any event.

The expression “exceptional circumstances” used by Kennedy LJ in Woolgar must be read in the light of his recognition, at p 36H, that “obviously in each case a balance has to be struck between competing public interests”. In that case, a regulatory body, the Central Council for Nursing Midwifery and Health Visiting operated in the field of public health and safety and sought access to confidential material in the possession of the police. Kennedy LJ concluded:

The causes of action in the present cases are of assault, misfeasance in public office by “turning a blind eye” to the use of violence by prison officers and of negligence in prison management. The circumstances in Taylor were, it was submitted, quite different from the present. An allegation of defamation was based by a claimant on the contents of a letter and file note material obtained by the police during their investigation of alleged fraud. It was properly disclosed, as unused material, to a defendant in criminal proceedings arising out of the investigation and reached the claimant.

Lord Hoffman stated, at p 211B:

Claims for disclosure such as the present could arise in many situations. There is a long standing practice, researched by Mr Owen, whereby, when the police investigate road and other accidents, statements of witnesses are disclosed to parties to subsequent civil proceedings. A working party of the Central Conference of Chief Constables produced in 1966 a statement of recommended practice. It provided, amongst other things, that “statements by witnesses in such cases should as a general rule be supplied on request to parties to proceedings, without obtaining the witnesses’s consent.” The issue could also arise when the Health and Safety Executive investigate industrial accidents. I recall a practice whereby, by means of subpoena, the disclosure of material collected by the Executive in the course of their enquiries was obtained. Counsel have not found a case, in either of those contexts, in which the disclosure of statements has been restrained by orders of the courts.

Disclosure of documents to the defence in criminal proceedings is governed by the principle stated by Lord Taylor CJ in R v Keane (1994) 99 Cr App R 1 at p 6:

In R v Police Complaints Authority ex parte Green [2002] EWCA Civ 389, cited by Scott Baker LJ, both Simon Brown LJ and Hale LJ referred to cases in which there are particular reasons for confidentiality, such as informer cases where covert police operations would be prejudiced and cases where there is a real risk of intimidation or reprisals. While I agree with the principle stated, the difficulty it creates in the present context is that the reason for which disclosure is withheld may have no bearing upon the value and relevance of the material in the civil action. Evidence from a witness which assists one party may be disclosed whereas equally cogent evidence from another witness which assists the other party on the point at issue in the case may be withheld on the ground that its disclosure would have the collateral effect of prejudicing a police covert operation. That could create injustice. However, what is sought in this case is the statement of a general principle against disclosure and the more difficult questions which may arise in particular cases do not require determination.

Notwithstanding that there is a strong public interest in the public cooperating with the police in their enquiries, the occasions on which disclosure should for that reason be withheld must in my judgment be limited by the public interest in claims being disposed of fairly within the meaning of CPR 31.17(2). Such disposal requires a scrutiny of the evidence as to what happened in the prison which is facilitated by disclosure of the statements. The Court is in a position to ensure that only relevant material is disclosed and that the use to which it is put is limited to that required to dispose fairly of the case. Given those safeguards, the statement will not be used for collateral purposes, in the sense contemplated by Lord Hope in Taylor.

The decision and reasoning in Taylor must in my view be considered in their context; material obtained by the police in their investigation of crime and properly disclosed to a defendant charged with a criminal offence as a result of the investigation. Such disclosure does not permit the use of the material by a third party in a defamation action. The present circumstances are different; a police investigation into violence in a prison and a civil action based essentially on the matters the police were investigating. The interests of justice in the civil action may be an overriding consideration, as I understand Lord Hoffman to recognise.

The fact that the statements were given under caution does not confer additional protection in the present situation. The wording of the caution does sufficiently indicate the criminal context of the warning given. In a criminal investigation, it may be to the advantage of a suspected person (as well as to the interests of justice) that a statement is made and it is important not to discourage such conduct. While fear of a civil action against the suspect (or his associate or employer) may sometimes deter frankness with the police, I do not regard that as a sufficient reason for hampering the fair disposal of a civil trial based on a cause of action similar in kind to, or based on the same evidence as, the potential criminal charge.

In the present cases, it is conceded that the requirements in CPR 31.17(3)(a) are satisfied by the claimants. I agree with Scott Baker LJ that the Court cannot accede to the submission that the general ruling sought by the appellants should be made. I also agree with Scott Baker LJ that in future cases the facts of the particular case must be considered in the light of CPR 31.17(3) and CPR 31.19 when a ruling is sought.

I agree that the appeal should be dismissed.