Commissioner of Police for the Metropolis v Bangs (Rev 1)

This is an appeal by way of case stated under section 111 of the Magistrates Court Act 1980 (“the 1980 Act”). It concerns the disclosure of the Information laid before Magistrates in support of an application for a search warrant of the home address of the respondent, Ms Dawn Bangs under section 23 of the Misuse of Drugs 1971 (“the 1971 Act”). Section 23 of the 1971 Act empowers a Justice of the Peace who is satisfied by information on oath that there is reasonable ground for suspecting that any controlled drugs are in the possession of a person on any premises to grant a warrant authorising the police to search the premises and any persons found in them. The Commissioner of Police for the Metropolis (“the Commissioner”) appeals against the decision of District Judge (Magistrates Courts) Crane made on 26 March 2013 at the Highbury Corner Magistrates’ Court (“the Magistrates’ Court”) to order disclosure of the Information and the notes made by the legal adviser to the Justices in Ms Bangs’ case.

On 24 September 2012, Justices of the Peace sitting at the Enfield Magistrates Court granted a search warrant authorising a search of Ms Bangs’ home address at 131 Kempe Road, Enfield. Ms Bangs lived at the premises with her granddaughter and grandson. At the material time they were respectively 13 and 11 years old. The warrant was executed by police officers at around 6:00pm. Ms Bangs was restrained using handcuffs and two uniformed female police officers conducted an intimate search of her. The officers also sprayed her dogs from an object resembling a fire extinguisher. No illicit property was found during the search, and no property was seized.

On 30 October 2012, Ms Bangs’ solicitors, Fisher Meredith, wrote to the Magistrates Court asking to see the Information that was laid before the Justices when the application for the warrant was made. In response to a question by the court they stated they required it in order to be able to advise her about a potential claim against the police. The Commissioner objected to the disclosure of the Information on the ground of Public Interest Immunity (hereafter “PII”), although no explanation as to why was given. Consideration was given by Ms Bangs’ solicitors to instituting judicial review proceedings, and a letter before claim dated 14 December 2012 was sent to the Court and the Commissioner. As a result of exchanges between the solicitors and the Deputy Justices’ Clerk to the Magistrates’ Court, she did not launch judicial review proceedings. The Deputy Justices’ Clerk suggested that she could apply to the Court for the disclosure of the Information and she later did so. The Court informed the solicitors that, because the Commissioner was claiming PII, a redacted copy of the Information would be provided, and that, if this was not accepted as sufficient, an application would have to be made.

On 2 January 2013, the Commissioner’s solicitors disclosed a redacted copy of the Information. This stated that there were “reasonable grounds for suspecting Dawn BANGS … of selling class A drugs – heroin – from her home address”. A copy of the redacted Information is in an Appendix to this judgment. The covering letter stated that “the Information is redacted to prevent the disclosure of information for which my client claims Public Interest Immunity”. It is now clear that the basis of the claim to PII is essentially because of the nature of the source of the information in the Information, (Footnote: ¹) and because the Commissioner considers that disclosing it would enable the nature of the source and the source itself to be ascertained. Mr Bunting’s written submissions on behalf of Ms Bangs before the District Judge and his written and oral submissions to this court were made on the assumption that the Commissioner’s case was that non-disclosure is necessary to protect an individual source of intelligence, whether by covert surveillance or human information; i.e. information from an informant.

In a letter dated 3 January 2013 to the Commissioner, Ms Bangs’ solicitors asked to be furnished with a document containing the “gist” of the Information, and an indication of its reliability and timeliness. The response, in a letter dated 9 January, stated inter alia:

“…reliable information was received by police within the month prior to the application for the warrant. The Information was cross-referenced with police databases and found to be credible.”

The solicitors were not satisfied with that, and, on 28 February 2013, they applied to the Magistrates Court for full disclosure of the Information or an adequate, properly particularised gist of it. On 6 March the Commissioner agreed that it was appropriate to determine the issue of disclosure at a preliminary hearing in the Magistrates’ Court. The matter was listed for hearing on 26 March.

There is no express provision in legislation or the Rules as to the procedure for disclosure of an Information. The Magistrates’ Court and the parties agreed that the procedure used in EastEnders Cash & Carry v South Western Magistrates Court [2011] EWHC 937 (Admin) reported at [2011] 2 Cr App. R 11 and G v Commissioner of Police [2011] EWHC 3331 (Admin) would be followed. It is convenient to summarise here the procedure followed in those cases. They concerned warrants to search premises, in the first case for firearms, and in the second case, for indecent photographs of children. After the warrants were executed, the owners of the properties searched requested a copy of the Information laid before the court. In the Eastenders case the court initially refused to provide it, and in G’s case the police refused to provide it. In both cases, the refusal relied on PII. As a result of this, applications for disclosure of the Information were made to the courts.

In the Eastenders caseit is stated in the decision of this Court that the Magistrates’ Court heard representations from the police but not the claimant. In G’s case, all that is stated in the decision of this Court is that the Magistrates’ Court had skeleton arguments from the claimant and the police. Both applications were granted and the Informations disclosed. After the disclosure, the applicants brought judicial review proceedings challenging the lawfulness of the decisions to grant the search warrants. The application in Eastenders’ case did not succeed. That in G’s case did. This Court held that the application for the warrant was unlawfully made and the warrant unlawfully granted because the Information supplied by the police in order to obtain it was inaccurate, misleading and incomplete and granted a declaration to that effect.

Returning to the present case, the details of the material in the Information were not disclosed to Ms Bangs or her representatives. Skeleton arguments were provided to the Court by both parties, although the one on behalf of the Commissioner and the bundle of authorities lodged on his behalf provided to Ms Bangs’ representatives was redacted. In Mr Bunting’s skeleton argument on behalf of Ms Bangs, it was inter alia stated that no written basis for asserting PII was provided to Ms Bangs, and, as I have noted, Mr Bunting’s written submissions were made on the assumption that the Commissioner’s case was that non-disclosure is necessary to protect an individual source of intelligence. Mr Bunting also submitted that there is no evidence that Ms Bangs poses any risk of violence or reprisal to any such source or the vulnerability, which was not surprising since the material disclosed to the Court was not disclosed to her or her representatives. The focus of the skeleton argument was that the “gist provided” fell far short of a lawful “gist” because Ms Bangs had no idea what information was provided to the Commissioner, the allegations in it, how reliable the information was, or what information contained in police databases confirmed that information.

At the hearing, after the parties introduced themselves, as is usual at some stage in PII applications in both civil and criminal litigation, Ms Bangs’ representatives were invited to leave the court. In what the District Judge described as the ex partein camera section of the hearing, which I shall refer to as the “closed” hearing, the Court heard evidence from a police officer, and submissions on behalf of the Commissioner. After the closed hearing, the District Judge stated that Ms Bangs’ application was granted. She ordered full disclosure of the Information as well as of the legal adviser’s notes taken during the hearing of the application for a warrant. She prepared a judgment containing a summary of the submissions and the evidence heard, and her conclusions on the claim for PII and the adequacy of the revised “gist” proposed by the Commissioner which I summarise below and summarise more fully in the closed judgment I shall hand down at the same time as this. Understandably, she did not give this judgment in open court. Mr Bunting, on behalf of Ms Bangs, stated that the District Judge announced the result but did not explain why the application had been allowed, what legal test she had applied, what authorities the Commissioner had cited in opposition to the application for disclosure, or the legal basis for the Commissioner’s position.

The District Judge stated that there are well-established principles concerning the category of PII claimed in this case, that is one based on the nature of the information in the Information.

The judgment summarised the Commissioner’s case that the detailed of the information in the Information would result in a real risk that the risks of disclosure identified by the Commissioner would eventuate. The Commissioner submitted that the temporal and contextual material in the document would have this effect.

The District Judge also observed that much of the information in the Information about what happened at the address would have been common knowledge or obviously known to the police.

The District Judge did not accept that the revised “gist” accurately reflected the Information. This was because “it could give the impression that the recent information of supply from the address and the other details about what happens to the drugs was cross-referenced with other sources and this is not correct”.

The District Judge concluded that nothing in relation to the temporal or contextual material sufficed to mean that the risks to the public interest of disclosure would eventuate. She referred to the concession by the Commissioner about the speculation that those dealing drugs engage in, and stated that the information in the Information was not going to lead to additional speculation or risk. Because of this, she ordered disclosure.

The Commissioner considered that the District Judge had erred in failing properly to consider whether information already disclosed was sufficient for the purpose Ms Bangs required it, that is to determine whether to challenge the procurement of the warrant or its validity, and failed properly to apply the required balancing test when rejecting the PII claim. Moreover, notwithstanding the Commissioner’s consent to the procedure used, he questioned whether the District Judge had jurisdiction to determine Ms Bangs’ application for disclosure. Following further correspondence between the court and the parties, the Commissioner applied to the Magistrates Court for the District Judge to state a case for the opinion of this court. The District Judge did so on 7 June 2013. Six of the fourteen paragraphs of the case (paragraphs 9 – 13), which summarise the submissions made on behalf of the Commissioner and the District Judge’s findings and the names and citation of four of the authorities relied on before the District Judge are redacted.

Before turning to the case stated and the questions before this court, it is convenient to set out the procedure this court adopted when considering the appeal. We decided to consider each question separately and to hear submissions in open court on each from both parties, and then to follow the usual PII procedure. After the submissions made on each question by Mr Shetty and by Mr Bunting, we gave Mr Shetty an opportunity to reply. The court then invited Mr Bunting and his instructing solicitor to withdraw and conducted a private hearing in which Mr Shetty made submissions on behalf of the Commissioner based on the redacted material and its nature. After the private hearing, and in open court, we invited submissions as to whether, if we found that the District Judge had erred in rejecting the claim to PII and ordering disclosure, the court should remit the matter to the Magistrates’ Court for re-determination. The parties asked the court to deal with the matter itself rather than to remit it to the Magistrates’ Court.

During the course of the private hearing, Mr Shetty accepted that there may have been a degree of oversensitivity as to what might properly be disclosed without departing from the Commissioner’s position on PII, for example in relation to the names and citations of the decisions relied on before the District Judge in support of the PII claim. He submitted that it was understandable for the police to be cautious. He also accepted that paragraph 9 of the case stated, which set out further information the Commissioner had agreed to provide had wrongly been redacted in the copy of the case provided to Ms Bangs and her representatives.

In the light of what Mr Shetty had said and the discussion of the accuracy of the “gist” which had been provided, the Court invited the Commissioner to consider whether a revised “gist” of the Information could be offered for the court’s consideration. As a result of this, in letters to the court dated 18 and 19 December 2013, Ms Spencer, a solicitor in the Metropolitan Police’s Directorate of Legal Services, stated that a revised “gist” and material hitherto redacted could be made available without departing from the Commissioner’s position on PII. The most recent version of the “gist” is:

“Recent, reliable information that Dawn Bangs was involved in the supply of class A drugs from her home address was received by police prior to the application for the search warrant. The information was consistent with older information held on the Police National Computer and police databases and was therefore considered to be credible. There was no reason to suggest the information was malicious or reckless.”

While I am satisfied that this “gist” is, so far as it goes, accurate, in one respect there is less information in it than in the “gist” supplied (see [5] above) on 9 January. In that “gist”, it is stated that the information was received “within the month” prior to the application for the warrant. Moreover, the “gist” provided to the court since the hearing is also in one respect less specific than the information the Commissioner agreed to provide to Ms Bangs at the closed hearing before the District Judge. At that hearing, he offered to state not only that Ms Bangs was “involved in the supply of class A drugs”, but that “she was both buying and selling drugs from her home address”. Since the Commissioner was prepared to disclose these two details before and at the hearing before the District Judge, the gist provided since the hearing should be amended to include them. The material previously redacted which the Commissioner is now prepared to disclose is underlined in the copy of the redacted Information in the Appendix.

The District Judge first summarised the factual background and the procedure she adopted. Paragraph 6 of the case states that all parties agreed that the correct test to be applied was that in Eastenders’ case and that “the starting point is that the claimant is entitled to see the Information unless the public interest demands that some or all of the material relied upon should not be disclosed”.

Paragraphs 7 and 8 of the case record the authorities and statutory provisions relied on by the Commissioner. Paragraph 7(a) states:

“Al Rawi v Security Services [2012] 1 AC 531 at [145]: Disclosure of documents which ought otherwise to be disclosed under CPR Part 31 may only be refused if the court concludes that the public interest which demands that the evidence be withheld outweighs the public interest in the administration of justice. Even where the complete documents cannot be disclosed it may be possible to produce relevant extracts to summarise the relevant effect of the material. If the public interest in withholding the evidence does not outweigh the public interest in the administration of justice, the document must be disclosed unless the party who has possession of the documents conceded the issue to which it relates.”

Paragraph 7(b) refers to Conway v Rimmer [1968] AC 910 and states that case “also details the balancing exercise for the court”. I have referred to the fact that, in the copy of the case stated supplied to Ms Bangs’ representatives, the identity of four of the authorities relied on by the Commissioner was redacted. They were cases in which it was the nature of the source of the information that led to the claim to PII.

I have stated that paragraph 9 of the case which summarises what additional information the Commissioner agreed to provide, and the paragraphs which summarise the evidence, the submissions made on behalf of the Commissioner, and the District Judge’s findings have been redacted from the copy of the case provided to the Respondent. I set these out in the closed judgment I shall hand down at the same time as this. Here, I set out paragraph 9, and set out and summarise the other paragraphs to the extent that it is proper to do so in the light of my conclusion on the PII claim. The passages in square brackets are summaries:-

“9.

In the ex-parte hearing, the Commissioner agreed to provide to the respondent further information as follows: that she was both buying and selling drugs from her home address, the information was cross referenced with PNC and police intelligence systems, found to be credible, no reason to suggest information is malicious or reckless.

10.

[A police officer] gave evidence that, if the information was disclosed, there was a very strong likelihood [that the public interest which it was sought to protect would be compromised] …

11.

The court was provided with a document compiled by [the police officer who gave evidence] of the intelligence that the police had received in relation to Dawn Bangs. Due to the confidential nature of this information, the document was not retained by the court. …..

12.

The Commissioner sought PII on the basis that:

(a)

The information in the warrant [merited protection]

(b)

Disclosure of the [temporal and contextual material in it] could [compromise the public interest which the police sought to protect].

(c)

The details on the Information would reveal to Dawn Bangs [the nature of the information].

(d)

…

(e)

…. This could result in a real risk of the [public interest which the police sought to protect being compromised]

(f)

There should be a balancing exercise between the public interest in non-disclosure and the interests of the respondent.

13.

In my judgment, I found:

(a)

The further gist proposed did not accurately reflect the Information. It could give the impression that the recent information of supply from the address and the other details…was cross-reference[d] with other sources and that was not correct.

(b)

There are well-established principles in relation to [the category of PII claimed by the police]

(c)

The contents of the Information would reveal [the nature of the source of the information but not all details]

(d)

In relation to the information regarding [those at the address] there has been no … intelligence to suggest that the information…is [either] malicious [or] reckless. Much of this information would have been common knowledge or obviously known to the police, such as the previous convictions ….

(e)

I was not satisfied that the disclosure of the Information, … would lead to the [risks to the public interest of disclosure eventuating]. Neither the [temporal or the contextual material], nor the Information itself was of sufficient detail to [do so]

(f)

The Commissioner had conceded that those dealing drugs [engage in speculation], and therefore the information [in the Information] was not going to lead to additional speculation or risk.

(g)

There was insufficient evidence [of the risk identified occurring].

(h)

As a result of these findings, there were no grounds for finding public interest immunity and I ordered disclosure of the information in full along with the legal adviser’s notes.

The Criminal Procedure Rules (“CrPR”) do not apply to civil applications although they do apply to appeals by way of case stated. I have stated that it is common ground that there is no statutory code regulating an application for disclosure of an Information before a Magistrates’ Court. Part 22 of the CrPR applies to disclosure obligations in criminal proceedings, and does not, therefore, apply to this case, where no such proceedings were instituted. Its provisions do, however, provide useful guidance in considering the questions in this case, and I shall refer to a number of the provisions in Part 22 of the 2013 Rules (2013 SI 2013 No. 1554). (Footnote: ²)

I have referred to the consent of the Commissioner to the procedure used in the Magistrates’ Court in this case. Notwithstanding that consent, before this court it was submitted on behalf of the Commissioner that there is doubt as to whether or not the Magistrates’ Court in fact has jurisdiction to hear the application and to order that the Information and the notes taken by the legal adviser be disclosed, and that clarification is needed. Mr Shetty submitted that in the cases of Eastenders and G this court did not consider the propriety of the procedure adopted in the Magistrates’ Court. Since the Commissioner did not question the jurisdiction of the Magistrates Court in either case, this is not surprising, and, since (see Essex Incorporated Congregational Church Union v Essex County Council [1963] AC 808) no consent can confer power on a court with limited jurisdiction to act beyond that jurisdiction, he is entitled to take the point now.

The doubts now expressed on behalf of the Commissioner are said to arise because of the purpose for applying for disclosure of the Information. When considering the application for a search warrant under the 1971 Act, the Magistrates’ Court exercised a criminal jurisdiction to which the Criminal Procedure Rules apply. But Mr Shetty, albeit somewhat tentatively, submitted that, after the warrant has been executed, the Magistrates’ Court had discharged its duty and no longer had jurisdiction. In the Latin phrase, it was functus officio. He submitted that, at that stage, when the reason for the request for disclosure is that the person making the request wants to challenge the validity of the warrant, rather than its execution, and assess the prospects of making a civil claim, the correct procedure is to make an application for judicial review. He argued that the court considering such an application can determine issues of PII and whether or not the statutory test for obtaining and granting a warrant was made out.

I reject this submission. Whether or not the point was raised in Eastenders’ and G’s cases, it is clear that both proceed on the assumption that the magistrates’ court did have jurisdiction and they were correct to do so. The assumptions and the instinctive views upon which two very experienced Lord Justices proceeded are, in my judgment correct. Sullivan LJ in fact succinctly identified the source of the jurisdiction in his judgment in Eastenders’ case. He stated (at [7]) that the court in that case, the South Western Magistrates’ Court, “adopted the correct starting point” in considering that the claimant in that case was entitled to see the Information that persuaded the magistrate to issue the warrant unless the public interest demanded that some or all the material relied on should not be disclosed. He also stated that, once the PII claim was made, the court “then proceeded to resolve the issue in the claimant’s favour”. For the reasons I give in the next two paragraphs, the entitlement of the property owner, absent PII, to see the Information, is, in my judgment, the source of the jurisdiction to consider a request for the disclosure of the Information after the warrant has been executed.

When considering an application for a search warrant and exercising a statutory power to grant one, the Magistrates’ Court is under a duty to provide its reasons for granting such an application in public, unless there is an exceptional reason for not doing so, such as a valid claim to PII. In R (Cronin) v Sheffield JJ [2002] EWHC 2568 (Admin) this Court, in a judgment given by Lord Woolf CJ, with whom Hallett and Stanley Burnton JJ (as they then were) agreed, held that a court which accepted that an Information contained the material about which it needed to be satisfied that a search warrant should be issued was not, in the ordinary case, required to record its reasons for granting the warrant. The Court did so because (see [23]), in substance, the reasons for the decision are those in the Information. This Court accepted the evidence of the legal adviser to the Sheffield Justices that “by signing the Information, the Justice is accepting the prima facie truth of the matter stated on oath and contained within the Information verified on oath”. Lord Woolf CJ also stated (at [29]) that “the citizen…should be entitled to be able to assess whether an Information contains the material which justifies the issue of a warrant” and, subject to any claim of PII, to obtain a copy from the court.

The decision of Ouseley J in R (Austen) v Chief Constable of Wiltshire Police and South East Wiltshire Magistrates’ Court [2011] EWHC 3386 (Admin) is also of assistance because it shows that there is a similar entitlement to any additional information relied upon by the Magistrates’ Court when granting the warrant. In that case, what was set out in the Information was held (at [46]) not to justify the grant of a search warrant under the 1971 Act. It was (see [47]) the evidence given on oath by a police officer when the application was considered that provided the reasonable grounds for suspicion necessary for the Magistrate to issue the warrants. Ouseley J (at [49]) referred to the fact that “since the proceedings are conducted in the absence of the party whose liberties and rights are to be infringed, it is incumbent on the applicant and the Court to be able to identify the basis for the grant of the warrant, subject to [PII]” and stated that where there is additional information to that in the Information, the applicant for the warrant and the Court must keep a record of it so that, subject to PII, the basis of the warrant can be explained to its subject when he enquires “as he is entitled to do”.

It follows from the entitlement to obtain the Information and the similar entitlement to the additional information, that, where, as in this case, and as was the position in the cases of Eastenders and G, the police object to an application on the grounds of PII, the question whether or not to accept the PII claim is an issue for the Magistrates’ Court to consider. To regard the Magistrates’ Court as functus officio after the warrant was executed would negate the entitlement of a person to obtain the Information to assess whether it contains material justifying the issue of a warrant. This is because, in almost all cases, the property owner will not know about the warrant until it is executed.

I also observe that to require a person to issue an application for judicial review in order to obtain the material which would enable him or her to assess whether a challenge to the lawfulness of the warrant should be launched would encourage the making of speculative applications for judicial review. This is because, without seeing the Information, it will very rarely be possible to ascertain the reasons for the grant of the search warrant so as to be able to assess whether there are in fact grounds for challenging the warrant. It is also unnecessarily cumbersome to require the first step to be taken in the High Court rather than the Magistrates’ Court which granted the warrant and has some knowledge of the relevant facts. Moreover, the procedure in judicial review proceedings is not suited to the hearing of live evidence which will often, as it was in this case, and in the cases of Eastenders and Austen, (Footnote: ³) be necessary in order to conduct the necessary balancing exercise.

The approach by the District Judge in excluding Ms Bangs’ representatives from the hearing when hearing the evidence from the police officer and considering the contents of the Information and submissions based on that evidence and those contents was correct. It broadly follows the procedure that regularly takes place in Crown Courts considering disclosure applications and claims to PII, and Mr Bunting, on behalf of Ms Bangs, accepted that it was appropriate for her representatives to be excluded. Provided the safeguards referred to in Davies, Johnson and Rowe (1993) 97 Cr App R 110, Rowe and Davies v UK (2000) 20 EHRR 1 and R v H [2004] UKHL 3, reported at [2004] 2 AC 134 are satisfied, those decisions show that, even in the case of a criminal trial where the guilt and possibly the freedom of the individual is at stake, this procedure conforms to the requirements of procedural fairness at common law and under Article 6 of the European Convention on Human Rights. Here, Ms Bangs’ personal liberty was not at stake, but the issue is whether the interference with her privacy by the non-consensual entry into her home and the search of her person was unlawful and, if so, is a serious infringement of rights which the common law regards as fundamental.

I have stated that, although the Criminal Procedure Rules do not apply to civil applications in the Magistrates’ Court such as this, the provisions of Part 22 provide useful guidance to what procedure should be adopted when considering an objection by the police to an application for disclosure of an Information on PII grounds. In the present case, the redacted copy of the Information was provided to Ms Bangs in the way envisaged by CrPR 22.3(3)(b) in cases to which the Rules apply. CrPR 22.3(7) states that the general rule is that the court must consider representations first by the party seeking PII, then by the defendant, in open court, and then further representations by the prosecutor in the defendant’s absence. But, although the District Judge had skeleton arguments from both those representing Ms Bangs and the Commissioner, and both parties were represented at the hearing, it appears from paragraph 5 of the case stated that no submissions were heard in open court before the court heard evidence and submissions on behalf of the Commissioner “ex parte in camera”.

It was common ground and is obviously correct that purely legal matters should be resolved in a public hearing if that is possible. I accept Mr Bunting’s submission that, by analogy with the requirements in Part 22 of the Criminal Procedure Rules, the correct approach would have been to hear such submissions as could have been heard from each side in public, for example as to the correct test to be applied in relation to a PII claim, before moving to the private hearing. It may be that, particularly where the party claiming PII has not furnished an “open” skeleton argument to the party seeking disclosure, that party will have little or nothing to add to the written submissions.

In cases where the person seeking disclosure wishes to add to the written submissions, any additional submissions need not take much time. But, hearing such submissions as could have been made in open court may assist in focusing the legal question, to the extent that it can be focused on the basis of the open material. As Mr Shetty submitted, in some circumstances the legal matters may be so interwoven with the factual matters which are the subject of the PII application that part of or much of the legal argument in support of PII will have to be heard in private. In the circumstances of this case, where the District Judge rejected the application for PII and ordered disclosure, the party seeking disclosure, the Respondent, was not prejudiced by the absence of an opportunity to make oral submissions supplementing the written submissions before the private hearing. It is, however, desirable that an opportunity be given to that party to add to the written submissions.

I also accept Mr Bunting’s submission that the court did not provide adequate information about its decision following the PII application. He relied on the decision of the Supreme Court in Bank Mellat v HM Treasury [2013] UKSC 38, reported at [2013] 4 All ER 495, handed down by the Supreme Court on 19 June 2013, which concerned the very different context of the Counter Terrorism Act 2008. Notwithstanding the difference in context, the guidance given by the President of the Supreme Court to courts which resolve issues in closed session contains valuable assistance. This guidance was not available to the District Judge because the judgments in Bank Mellat case were handed down almost three months after the hearing before her.

Lord Neuberger P stated that, where there has been an open and a closed hearing and a judge gives an open and a closed judgment, it is highly desirable in the open judgment to identify every conclusion in that judgment which has been reached in whole or in part in the light of points made in evidence referred to in the closed judgment and state that this is what has been done: see [68]. He also stated that, where closed material has been relied on, the judge should, in the open judgment, say as much as can properly be said about that closed material. Lord Neuberger stated (at [69]) “any party who has been excluded from the closed hearing should know as much as possible about the court’s reasoning, and the evidence and arguments it received”. I accept that in some cases in the light of the nature and basis of the claim to PII, this may not be very much. I also accept that account should be taken of what is practical in a busy Magistrates’ Court. The judgment of this Court (Thomas LJ and Lloyd Jones J) in R (Mohammed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] EWHC 152 (Admin), [2009] 1 WLR 2653 at [39] and [84] (“Binyam Mohammed’s case”) and paragraph 10 of Practice Guidance: Interim Non-Disclosure Orders, the Master of the Rolls also contain useful guidance. In Binyam Mohammed’s case the court referred to the particular importance of the principle that decisions and reasons must be made public to the extent that this is possible where there has been a hearing in private, and to how it is sometimes possible to protect the interests of a litigant and the public interest by some means other than full disclosure.

I have stated that it became clear during the hearing that the basis of the Commissioner’s claim to PII in this case is essentially the nature of the source of the information in the Information. Mr Bunting stated that, in the absence of further detail, his submissions were speculative. As in the case of his written submissions below, they were made on the assumption that the source of the information was either covert surveillance or an informant, or both, and that the Commissioner’s case was that non-disclosure was necessary to protect the individual source.

There were three limbs to Mr Bunting’s submissions. The first was that the decisions show that the balancing exercise is not less strict in the civil context than in criminal cases: see R v Chief Constable of West Midlands, ex parte Wiley [1995] 1 AC 274, R (Mohammed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] EWHC 152 and 2549 (Admin) and Al Rawi v Security Service [2011] UKSC 34, reported at [2012] 1 AC 531. The issues in this case concern the grant and execution of a search warrant authorising the entry by officers of the state into a person’s home, interfering with the person’s privacy which, if unwarranted, is a serious infringement of the liberty of the citizen.

There is a kernel of truth in this. But there is also an element of overstatement. Mr Bunting did not grapple with the difficulties posed by the decision of the Court of Appeal in Powell v Chief Constable of North Wales Constabulary (16 December 1999). The claimant sued the Chief Constable for wrongful imprisonment and malicious prosecution. A witness wished to give evidence that, as a result of an overheard conversation, he believed that a third party was a police informer. The Chief Constable, who neither admitted nor denied that the third party was an informer, sought an order from the trial judge that the claimant should not be allowed to lead that evidence. The trial judge’s refusal of this application was reversed by the Court of Appeal.

Roch LJ stated that the public interest in having all the information which might assist a court to ascertain facts relevant to an issue it is required to adjudicate will “clearly … be stronger in criminal cases than in civil cases because, normally, what will be at stake in criminal cases, namely the good name and liberty of the accused, will be weightier than what will be at stake in civil proceedings” (emphasis added). Schiemann LJ stated that while “the public interest in protecting both individual informers and informers and potential informers as a class is as strong in civil as in criminal proceedings, the countervailing interest of a litigant suing for money is not as strong as that of the accused in criminal proceedings whose liberty is at stake”, but “nonetheless it is a significant interest”. Beldam LJ stated that the public interest in preserving the immunity of the informant was “infinitely stronger” than the right of the claimant to have the statement admitted in evidence.

Roch LJ’s reference to what is “normally” the position is important. It should not be forgotten that, even in civil proceedings, personal liberty may be at stake, as where a person is detained under the Immigration Act 1971 or under the former system of Control Orders and the “TPIMs” made under the Terrorism Prevention and Investigation Measures Act 2011. Even where it is not, the interest of a person in protecting the integrity of his or her home against unwarranted intrusion and securing redress for such intrusion has long been regarded as very significant, see for example Lord Camden’s ringing words in Entick v Carrington (1765) 1 St Tr 1030, 1066. In all cases where the issue of PII is raised, what has to be balanced are the public interest which demands the material be withheld as against the public interest in the administration of justice that the individual and the court should have the fullest possible access to all relevant material.

The second strand of Mr Bunting’s submissions is that the fact that a “gist” was provided did not mean there is a lesser interest in disclosing the full Information, and that, in any event, the “gist” in this case was inadequate. This is (see [8] above]) essentially the submission made in his skeleton argument for the hearing by the District Judge. He argued that the “gist” in this case was simply the conclusion reached by the Commissioner, and did not explain what the evidence obtained by the Commissioner was, how reliable it was, or what information on police databases confirmed it.

It was common ground that derogation from the rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question. It is well recognised that where a claim to PII is established, and a complete document cannot be disclosed, it is incumbent on the court to consider whether relevant extracts can be disclosed or a summary made of the relevant effect of the material: see R v Chief Constable of West Midlands Police, ex p. Wiley [1995] 1 AC 274 at 306 – 307 per Lord Woolf and Al-Rawi v Security Services [2011] UKSC 34, [2012] 1 AC 531 at [145] per Lord Clarke. In ex p. Wiley, Lord Woolf stated that the legal advisers of a party in possession of material which is the subject of immunity from disclosure “will be in a better position to perform what they should consider to be their duty, that is to assist the court and the other party to mitigate any disadvantage which results from the material being not disclosed”. He referred to the possibility of providing any necessary information without producing the actual document, to disclose a part of the document, or to produce the document on a restricted basis.

It is important that a “gist” prepared because the full document is properly the subject of immunity from disclosure must not mislead and should accurately reflect that part of the material in the document which it is possible to disclose. In the present case, the District Judge quite properly examined the revised “gist” to this end, and concluded that it did not accurately reflect the Information. If, however, disclosing what the evidence was, how reliable it was or what information confirmed it would pose a real risk of substantial or serious harm to an important public interest (see ex p. Wiley [1995] 1 AC 274 at 281 per Lord Templeman) and non-disclosure is necessary for the proper functioning of that public interest (see Conway v Rimmer [1968] AC 910 at 952 per Lord Reid)it cannot be disclosed in a “gist”.

The third strand of Mr Bunting’s submissions proceeded on the basis that his assumption that PII was claimed because the intelligence had come from an informer was correct. He submitted that, even if this was the case, the decision in Chief Constable of the Greater Manchester Police v McNally [2002] EWCA Civ 14, reported at [2002] 2 Cr App. R. 37, shows that the mere fact that the material which is subject to a PII claim is obtained from an informant does not automatically mean that there should not be disclosure. This also contains an element of overstatement.

Mr Bunting is correct in stating that McNally’s case shows that the mere fact that the material which is subject to a PII claim is obtained from an informant does not automatically mean that it should not be disclosed. But it is important to remember that in that case Auld LJ recognised a general rule that “material concerning the identity of informers is generally immune from disclosure on the ground of the public interest in supporting the police in the prevention and detection of crime through the medium of informers”. The case is an example of the operation of one of the exceptions to the general rule. Even in an informer case that does not fall within the limited list of exceptions to the general rule, in McNally’s case and Powell v Chief Constable of North Wales Constabulary the Court of Appeal rejected submissions that it was not necessary to undertake a balancing exercise. But, in concluding that the trial judge in McNally’s case had correctly identified and properly applied the law, Auld LJ stated (at [23]) that, in undertaking the balancing exercise, the judge was undoubtedly “required to give very considerable weight to the public interest in the protection of informers and to have regard in some reduction of the weight of the claimant’s interest in a fair trial that this was a civil case in which his liberty was not at stake”.

In the present case, in her judgment and in paragraph 13(b) of the case, the District Judge simply referred to what she described as “well-established principles” in relation to the particular head of PII under consideration, but she did not state what they were. Neither her judgment nor paragraph 13 of the case stated, in which she summarises her decision and reasoning, refer to the balancing exercise. Paragraph 7 of the case, where the propositions and authorities relied on by the Commissioner are summarised, does, however, refer to the need to balance the competing public interests. I have set out what the District Judge recorded in respect of Al Rawi’s case and Conway v Rimmer at [20] above. This shows she was aware of the need to balance the interests, but it does not show how she did so, or the weight she gave to the different interests, and whether she regarded either interest as having particular force in the circumstances of this case.

Although, paragraph 13 of the case stated uses both the words “would” and “could” to assess whether the risks of disclosure identified by the Commissioner would eventuate, the test given by the District Judge in paragraph 13(c) of the case was whether disclosure would lead to this result. She stated in paragraph 13(d) of the case that some of the material would have been of common knowledge, and that there were no grounds for saying that it could lead to the risk identified by the Commissioner eventuating. She also stated (in paragraph 13(e) of the case) that she was not satisfied that the information would lead to this, and that the temporal factors and other material provided in the Information were not of sufficient detail to lead to that result.

The District Judge also did not consider what weight to give to the evidence she heard from a police officer about the consequences of disclosing the information. While the ultimate decision is a matter for the court, it is well established that proper weight must be given to the view of the public official, whether a government minister or a police officer, who has claimed PII. The statements to this effect are primarily in cases where PII is claimed by a government minister, often in the context of national security, but, with due allowance for the difference of context, they are also of relevance where PII is claimed by another public body such as the police.

In Conway v Rimmer [1968] AC 910 at 952 Lord Reid stated, of the view expressed by the Secretary of State for Home Affairs about disclosure, that if the “reasons are of a character which judicial experience is not competent to weigh, then the Minister’s views must prevail”. Lord Morris stated (at 935) that some aspects of the public interest are chiefly within the knowledge of some minister and can best be assessed by him”: see also Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin), at [53] – [58]. The margin accorded to the responsible official is likely to be widest where the view concerns risks to national security and relationships with other governments, or the risks of identifying methods of covert surveillance, or informers. The position will generally be different where the view concerns the risk of a miscarriage of justice, because that is a matter within the particular expertise of the judge. Here the views do not concern the risk of a miscarriage of justice. The aspect of PII relied on is primarily a matter within the knowledge of the police.

I have concluded that, insofar as the District Judge asked whether disclosure “would” result in the harm identified by the Commissioner rather than whether there is a real risk of it occurring, she fell into error. I have also concluded that the case stated does not accord the appropriate weight to the view of the Commissioner and the officer who gave evidence. The officer’s evidence was that, if the Information was disclosed, there was a “very strong likelihood” that the public interest which it was sought to protect by withholding the document would be fundamentally compromised. There is no recognition in the case stated of the expertise of the police or of the officer, or of the significance of the temporal and contextual matters to which the officer referred in his evidence in assessing whether there was a real risk of disclosure compromising the public interest. The District Judge focused on her assessment that much of the information would have been common knowledge or obviously known to the police, and that the Information itself was insufficiently detailed for the public interest which it was sought to protect to be compromised.

For these reasons, I have concluded that the exercise undertaken by the District Judge did not amount to a balancing exercise of the sort referred to in the cases of Conway v Rimmer, Powell v Chief Constable of North Wales, McNally v Chief Constable of the Greater Manchester Police and Al Rawi v Security Services to which I have referred and in D v NSPCC [1978] AC 171, at 218. Accordingly, she fell into error. In the light of the parties’ submissions, the task of balancing the public interest in withholding the information and the public interest in the administration of justice now falls on this court.

In the light of the error by the District Judge and the parties’ submissions, in reality what has to be considered is whether this court should, in the light of its conduct of the balancing exercise, order disclosure of the Information and the legal adviser’s notes. I first consider the submissions by Mr Shetty contending that disclosure should not be ordered and those by Mr Bunting contending that it should. I then consider how, in my view, this court should balance the conflicting interests.

Mr Shetty submitted that, because Ms Bangs’ ultimate remedy would be a modest claim for damages for trespass to property for a short period of time, and because there is no prospect of a claim for malicious prosecution, assault or false imprisonment which could attract exemplary or aggravated damages, the public interest favouring disclosure and Ms Bangs’ need for the Information “is quite slight in the overall balance”: skeleton argument, paragraph 25. I reject this submission. It is common ground that the execution of a search warrant is a serious interference with the liberty of the suspect: see Williams v Summerfield [1972] 2 QB 512, 518 per Lord Widgery CJ. Even if any claim for damages would ultimately be for a relatively modest amount, it is difficult to regard the ability of the citizen in protecting himself or herself from unlawful intrusion into his own home and from seeking to establish the information that will enable him or her to do so as “quite slight”: see e.g. G v Commissioner of Police for the Metropolis [2011] EWHC 331 (Admin) at [20] per Laws LJ.

Moreover, the duty on the officer seeking such a warrant to make a full, complete and frank disclosure to the magistrates is a serious one which, if breached, may invalidate the warrant: see Redknapp v Commissioner of the City of London Police [2008] EWHC 1177 (Admin) at [16] and, in the context of section 23 of the 1971 Act, R (Austen) v Chief Constable of Wiltshire Police [2011] EWHC 3385 (Admin).

Although, for these reasons, it is in my judgment wrong to characterise the public interest favouring disclosure “quite slight”, as the editor of Cross and Tapper on Evidence (12^th ed. 2010 at 489) states “it remains, of course, the case that the interest in disclosure is likely to be less strong in a civil case in which the party seeking it is merely claiming damages, than in criminal proceedings in which disclosure is necessary to secure acquittal”.

The second ground upon which Mr Shetty submitted that the Magistrates’ Court was wrong to order disclosure was the evidence given by the police officer at the private hearing before the District Judge about the nature of the source of the information and the consequences of disclosing the Information. I concluded earlier in this judgment (see [50] above) that, in the light of that evidence and the approach to it which a court should (see [48] – [49] above) take, the conclusion of the District Judge that there was insufficient evidence of the risk identified by the Commissioner was a finding that was not open to her.

I have considered the temporal and contextual material in the Information and the officer’s evidence, as recorded in the case stated. For reasons given more fully in the closed judgment, that material, if disclosed, would in my judgment have compromised the public interest which it was sought to protect by withholding the document, particularly if the notes of the officer’s evidence were also disclosed.

I turn to the balancing process. I have re-assessed the balance between the public interest in withholding the Information which would be compromised by ordering disclosure and the public interest in the administration of justice and Ms Bangs’ own interest in ascertaining the reasons for the decision to grant the warrant was given and being able to assess whether it contained material which justified the warrant. I have done so applying the principles discussed earlier in this judgment. I consider that in this case three factors are of particular relevance to the assessment of where the balance lies. The first is that this is not a case in which the question of disclosure has arisen in criminal proceedings where the liberty of the defendant is at stake. The second is that the head of PII invoked by the Commissioner in this case is a particularly weighty and sensitive one. It is a context, in which the Court of Appeal Criminal Division has stated that judges should adopt a robust approach in declining to order disclosure when it is not justified. The third, which points in a different direction, is that Ms Bangs’s property was entered by police officers and she was subjected to an intimate personal search. I have concluded that the public interest in withholding the Information and the legal adviser’s notes is clearly stronger in the present case than the public interest in the administration of justice served by ordering disclosure. In reaching this conclusion, I have also taken into account that disclosure is to be made of the information offered by the Commissioner at the hearing before the District Judge, and the “gist” provided to the court after the hearing, amended in the way in which I have indicated at [18] above to reflect the two matters, one of which had previously been disclosed and the other was the subject of an offer to disclose.

What I have said earlier in this judgment in answering question 2 about the procedure is relevant to this question. If the Magistrates’ Court has considered such representations as it can in open court, in particular on legal questions (see [32] above) and has given such reasons for its decisions as it is possible to do (see [35] above), those matters should be reflected in the copy of the case stated provided to the party seeking disclosure. In this case, the District Judge was understandably cautious. But (see [17] above) she redacted information which the Commissioner had agreed to provide, and in respect of which there could no longer be a public interest in withholding. There are other signs of excessive caution in what was made available to Ms Bangs and her legal representatives. For example, paragraph 3 of the case stated, which only states “a copy of the Information and the legal adviser’s notes are attached” was redacted in the copy provided to them. It is also not clear whether the District Judge considered that none of the material in paragraphs 10 – 13 of the case stated, which were redacted in their entirety, could have been made available or summarised in the way that I have done at [21] above. In many cases, it will not be possible to say anything specific, but consideration should be given to providing as much detail as is possible to enable the points of law to be properly argued should there be an appeal against the decision.

My answers to the questions asked are:

I agree and have nothing to add.