X, R (On the Application Of) v The Chief Constable of Y Police & Anor

The first defendant (“the Chief Constable”) applies for an order that certain police records relating to the claimant (“X”), a man aged 32, should be withheld from disclosure in these proceedings on the grounds of public interest immunity (“PII”).

The records in question (“the withheld records”) were the determining factor in the Chief Constable deciding, on 26 July 2013, not to grant X the vetting clearance required to be appointed to a community liaison role (“the Position”) by the second defendant (“the PCC”). That decision was upheld by an appeal panel appointed by the Chief Constable on 19 August 2013, the panel advising that X should not be appointed. The PCC accepted that advice.

In these judicial review proceedings X contends that the Chief Constable’s retention of information concerning allegations against him was an interference with his right to respect for private life under Article 8 of the European Convention on Human Rights (“the ECHR”), as was the use of that information in reaching the vetting decision of 19 August 2013. He further contends that the 19 August 2013 decision, having been made without disclosing to X the allegations recorded against him or even the gist of those allegations, was in any event an interference with his Article 8 rights and procedurally unfair. The above interference, he argues, was disproportionate and/or not in accordance with the law, with the consequence that the 19 August 2013 decision was unlawful. He further contends that the PCC’s decision not to appoint him, being based on an unlawful decision of the Chief Constable, was also unlawful.

On 28 February 2014 Green J granted permission for the claim to proceed, directing that written submissions be exchanged as to “how… procedurally the substantive hearing should be conducted eg. as a PII hearing or otherwise”. The result was that, pursuant to a consent order of Hickinbottom J. dated 10 April 2014, the present interlocutory application was issued on 23 April 2014.

The procedure adopted was as follows. Two of the Chief Constable’s officers prepared statements detailing the information held relating to X and exhibiting all relevant police records. The versions served on X were heavily redacted, removing all material in respect of which an order was sought, namely, the withheld records. In addition to the redacted version, the full unredacted material was lodged with the court and read by me in advance of the hearing. At the hearing of the application Mr Beggs QC, leading counsel for the Chief Constable, invited me to hear from him in private as to the import of the withheld records. Mr Buttler, counsel for X, objected in general terms to Mr Beggs being permitted to make submissions in the absence of X and his representatives, but accepted that such a course would be practical and appropriate if I had questions for Mr Beggs as to the possibility of providing any further indication as to the gist of the allegations in question. I therefore heard from Mr Beggs in private on that limited basis, before resuming the hearing in public, subject to the restriction that X’s identity may not be disclosed or published. To further protect his identity I direct that he be referred to in connection with these proceedings as X and that the police area to which this matter relates shall be referred to as Y.

The Position involves acting as the liaison between the PCC and (i) community groups in a specified locality within the county, in particular attending community meetings and reporting to the PCC on those meetings, and (ii) the local team of police officers. A person appointed to the Position is not an employee or a member of the PCC’s staff, but is paid an annual fee of less than £1000 to recognise the minimum time commitment and likely expenses which will be incurred. The PCC regards it as essential that the holder of the Position is a person of integrity, of good standing and able to act with considered judgment: all successful applicants are subject to vetting by the police.

The Assistant Chief Constable of Y Police (who chaired the appeal panel dealing with X’s case) explains in her statement that a holder of the Position would have access to police premises and would therefore see and hear confidential police information, including highly sensitive personal data, and might have sight of officers’ computer screens displaying information from the command and control system or intelligence system. It was therefore considered appropriate that successful candidates for the Position should be required to pass Non Police Personnel Vetting at level 2 (there being 3 levels).

X applied for the Position by application dated 30 May 2013. On 18 June 2013 he was offered the post, subject to vetting clearance. X duly completed and submitted to the Chief Constable a standard security vetting form dated 1 July 2013. He declared (truthfully and accurately) that he did not have any convictions or cautions, whether or not spent.

By letter dated 26 July 2013 the Chief Constable’s vetting case officer informed X that he had failed the vetting process and that he would not be granted vetting clearance. The officer stated that he was unable to explain further the reasons for their judgment on this occasion, but informed X of his right to appeal in writing to the Deputy Chief Constable.

X requested further information or reasons for the decision, but that request was refused. He lodged an appeal, protesting that it was very difficult to appeal a decision having little or no knowledge of the reason behind it. He was limited to making general assertions that he had always maintained probity in his private and public life and had never been in any sort of trouble.

As stated above, the appeal panel refused X’s appeal on 19 August 2013. On 30 August the Chief Constable, in response to a Subject Access Request made by X, disclosed a redacted version of the appeal panel’s decision sheet, as well as the redacted version of some of the police records.

The factual basis of the appeal panel decision was blanked-out in the disclosed version of the decision sheet, but the panel’s conclusion was disclosed and reads as follows:

“It was felt that this was indicative of the applicant’s personality thereby posing a potential risk to vulnerable people, which would be heightened if placed in a position of trust or authority.

Further, it was considered that there would be significant risk to the reputation of the organisation viz the Office of Police Commissioner should the intelligence known to ourselves become public knowledge as a result of complaints

The applicant would not be supported for any police role whether employed full time or as a volunteer with [Y] and [Z] police”

The police records, disclosed in redacted form, contained a number of incident reports during the period 2004 to 2010. In the Chief Constable’s response dated 14 November 2013 to X’s letter of claim, the position was summarised as follows:

“27.

There were three separate aspects of intelligence held in [Y]Police records which formed the basis of the decision to refuse vetting in this case.

28.

First, there are incident reports in relation to the breakdown of relationships between [X] and women, in particular the reports dated 29 March 2008 to 28 July 2008 and, less relevantly, the reports dated 5 and 10 June 2010. In these reports it is clear that the relationships became particularly acrimonious, cross-allegations were made and police were involved, but took no further action.

29.

The records disclosed indicate that the intelligence held by police is mixed - [X] levelled allegations and is referred to as the victim - and the recording officers took a balanced approach. In the incident report dated 5 June 2010, it was recorded X reported to police that he had anxiety and depression issues at that time. The latter information accords with another, unrelated, incident report (dated 15 February 2010, also referring to anxiety and depression). It is acknowledged that these matters are three to five years old, and that the issues involved in the relationships were personal and may have been complicated.

30.

For those reasons the information was considered relevant, but not determinative of [X]’s application. If this were the only information held about [X] it is less likely that vetting would have been refused.

31.

The second and third aspects of intelligence held in [Y] Police records were more serious, and were determinative of the decision to fail vetting. We confirm that they did not involve criminal convictions or cautions, but they did involve allegations against [X] that were serious in nature. This information has not been disclosed as part of the subject access requests.

32.

The Chief Constable is not able to detail these intelligence reports further without disclosing information relating to other individuals who would necessarily be identified from that information. In respect of both pieces of intelligence, the person reporting information provided the information in confidence, declined to take the complaint further and requested to remain anonymous.

33.

These two aspects of intelligence were the bases for the conclusion in the 19 August 2013 decision disclosed to [X], in redacted form …

34.

Since that assessment was made, [X has]explained that the unusually high number of incident reports involving him as being due to the fact that he was, in his words, a “magnet for psychos”. If that is [X]’s experience, it may cause him difficulties, working along side the police, and that is a factor for the purposes of vetting.”

In fact a review of the disclosed records would suggest that the Chief Constable’s summary of the first aspect of the intelligence may, in one respect, have been overly charitable to X. An incident report dated 29 May 2008 records that X's former partner (they had just split up) was alleging that X had assaulted her, pushing her, grabbing her arms and pulling her hair. A subsequent report records that this former partner returned to X’s flat on 28 July 2008 to collect belongings, alleging that X was refusing to return them, whilst X was counter-alleging that she owed him money. The police warned both parties as to their behaviour. X then claimed that he was being harassed by the two police officers dealing with the matter. He made a further call seeking to make a complaint because the officers had come to his home even though he was not very well, suffering from ME.

On receipt of the response to the letter of claim X issued these judicial review proceedings.

Certain further information about the allegations against X and the informants who had made the complaints is revealed in the redacted version of the witness statements served by the Chief Constable for the purpose of this application:

One of Mr Buttler’s contentions on behalf of X was that his client was not even aware of whether the allegations against him are said to involve criminal conduct. However, paragraph 22 of the disclosed version of the Data Protection Officer’s statement refers to “all three of the alleged offences”. In my judgment it is entirely clear from what has been disclosed that three separate allegations have been made to the police, in each case alleging that X has committed at least one criminal offence. Two of those allegations were of criminal offences “of particular seriousness” (paragraph 29 of the statement of the Assistant Chief Constable), were made by unconnected people at different times, and indicated that X posed a risk to vulnerable people.

Having considered the withheld records in detail, I am satisfied that, to the extent that they have been summarised by the Chief Constable, that summary is fair and accurate. I am also satisfied that no further summary (or “gisting”) would be possible without giving rise to a significant risk that the identity of the relevant informants, if their allegations are true, would be apparent to or might be ascertained by X. In particular, the disclosure of sufficient information to enable X to make a meaningful response to the allegations would be likely to reveal the identity of the alleged informants.

Mr Buttler submits that, if X has indeed committed three serious criminal offences, he will already know what he has done, so the disclosure of the information will reveal nothing new to him. That is, in my judgment, an overly simplistic view of criminal conduct and the circumstances in which it may take place. But in any event the argument only has any logical application if X has committed no more than three serious criminal offences.

It would not be appropriate for me to make any other comment on the withheld records or the allegations they record.

Whether the withheld records are disclosable

The parties are agreed that the first question which arises on the Chief Constable’s application is whether the withheld records are relevant and material to the issues which arise and disclosure is necessary for the fair disposal of these proceedings: see in particular the speech of Lord Templeman in R v. Chief Constable of West Midlands, ex parte Wiley [1995] AC 274 HL at 280G.

Mr Beggs, on behalf of the Chief Constable, concedes that the withheld records are relevant and material to the question of the lawfulness of his retention of such information and of its use in a police vetting decision, and that such disclosure would otherwise be necessary for the fair disposal of the claim. In my judgment that concession was rightly made: X’s challenge to the retention and use of material adverse to him, in respect of which he has been given permission to proceed to a full hearing, would in the usual course require full disclosure by the Chief Constable of the information so retained and used.

It was also common ground that an application based on public interest immunity requires the court to balance (i) the public interest in avoiding harm being done to the nation or the public service by disclosure, as against (ii) the public interest in that fair administration of justice should not be frustrated by the withholding of the production of documents: see R v. Chief Constable of West Midlands Police ex parte Wiley (above). Lord Woolf, at page 298 F, explained that:

“The conflict is more accurately described as being between two different aspects of the public interest. If it is decided that the aspect of the public interest which reflects the requirements of the administration of justice outweighs the aspect of the interest which is against disclosure, then it is the public interest which requires disclosure.”

The primary aspect of the public interest on which the Chief Constable relies in this case is the long recognised and well established public interest in protecting the identity of police informants. In D v. National Society for the Prevention of Cruelty for Children [1978] AC 171the House of Lords considered whether to extend similar protection to the identity of an NSPCC informer, the public interest in protecting the identities of police informers being taken for granted. Lord Diplock stated at page 218C-F as follows:

“The public interest which the N.S.P.C.C. relies upon as obliging it to withhold from the plaintiff and from the court itself material that could disclose the identity of the society’s informant is analogous to the public interest that is protected by the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by a process of discovery or by oral evidence at the trial: Marks v. Beyfus (1890) 25 Q.B.D. 494.

The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus (1890) 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.”

Lord Hailsham stated at page 229F-G:

“ ... it is common ground that information given to the police is protected to the extent demanded by the society. This is clear from many cases including Marks v. Beyfus (1890) 25 Q.B.D. 494 (which applied the principle to the Director of Public Prosecutions), and many of the recent cases in your Lordships’ House. The rule relating to the immunity accorded to police informants is in truth much older, so old and so well-established, in fact, that it was not and could not be challenged in the instant case before your Lordships. Once, however, it is accepted that information given to the police in the instant case would have been protected, it becomes, in my judgment, manifestly absurd that it should not be accorded equally to the same information if given by the same informant to the local authority (who would have been under a duty to act on it) or to the appellant society, to whom, according to the undisputed evidence, ordinary informants more readily resort.”

Lord Simon stated at pages 232F-233A:

“ ... the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest-namely, the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be disclosed: see Lord Reid in Conway v. Rimmer [1968] A.C. 910, 953G-954A. The law therefore recognises here another class of relevant evidence which may - indeed, must - be withheld from forensic investigation - namely, the sources of police information...

Here, however, the law adds a rider. The public interest that no innocent man should be convicted of a crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial: see the citations in Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973]A.C. 388, 408A. It would appear that the balance of public interest has been struck, both in the general rule and in its rider, in such a way as to conduce to the general advantage of society, with the public interest in the administration of justice as potent but not exclusive.”

Mr Beggs accepts that the modern approach requires a balance to be struck between the public interest in protecting the identity of police informants and in the administration of justice in every case where those factors arise, there being no pre-determination that such a balance favours non-disclosure in civil cases.

Nevertheless, the public interest in the protection of the identity of police informants, whilst not giving rise to matters of national security in the present case, plainly remains a very weighty factor.

On the other side of the equation, X’s claim does not concern his liberty, his health or his current employment. Nor does it involve any real financial interest, relating to his failure to obtain an effectively voluntary position by reason of a vetting process for which he also volunteered. Whilst there may be potential reputational issues for X, those issues would appear to be relatively confined (and further damage will be prevented by orders preserving X’s anonymity in these proceedings). It is also relevant that there is no underlying dispute between X and the Chief Constable and there is no question of documents being withheld which might show wrongdoing on the part of the Chief Constable, whether in relation to X or otherwise.

Mr Buttler does not dispute any of the above factors (although he argues that the risk of reputational damage should not be underestimated), but contends that, no matter how clearly the balance may otherwise appear to favour non-disclosure, X’s procedural rights under Article 6(1) of the ECHR in these judicial review proceedings require that he is given sufficient information (by way of “gisting” or otherwise) to enable him to participate effectively in the proceedings, including the current PII application. Mr Beggs did not seek to persuade me that Article 6(1) does not apply in these proceedings, although he formally reserved the Chief Constable’s position on that issue.

If, as I have found, the withheld material is not capable of further gisting without risking the disclosure of the identities of the informants, the effect of Mr Buttler’s submission would be that the withheld records must be disclosed. He relies upon the Court of Appeal decision in Bank Mellat v. HM Treasury [2010] EWCA Civ 483, [2012] QB 91, in which Lord Neuberger MR stated at 99C:

“17.

…. The Treasury's case is that the procedural requirements of article 6.1 vary according to context and that, in every case where it is said that the contents of potentially relevant documents in the possession of one party should not be disclosed to the other party on public interest grounds, a balance has to be struck between the rights of the latter party in the litigation and the wider public interest.

18.

In relation to many article 6.1 arguments I readily accept that such a balancing exercise will be appropriate. However, there are irreducible minimum rights which article 6.1, like the common law (albeit that the minimum rights may not always be identical: see Al Rawi v. Security Service (Liberty intervening) [2012] 1 AC 531), requires to be accorded to any parties involved in litigation to which the article applies. For the reasons given by Maurice Kay LJ in Tariq v Home Office [2010] ICR 1034, I consider that every party to litigation has the right to be given sufficient information about the evidential case against him, so as to enable him to give effective instructions in relation to that case, to paraphrase what Lord Phillips of Worth Matravers said in the AF (No 3) case [2010] 2 AC 269, para 59…..

………………

21.

The first point to make is that the requirements of article 6.1 are such that the information to be provided by the Treasury must not merely be sufficient to enable the bank to deny what is said against it. The bank must be given sufficient information to enable it actually to refute, in so far as that is possible, the case made out against it.”

Mr Buttler submits that the above decision is authority, binding on me, that X is in any and all circumstances entitled to disclosure of sufficient details of the allegations against him to enable him to refute those allegations. I do not agree. The reasoning of Maurice Kay LJ in Tariq v. Home Office, adopted by Lord Neuberger MR, was disapproved on appeal to the Supreme Court (Home Office v. Tariq [2012] 1 AC 452, a constitution of nine Supreme Court Justices) and the Court of Appeal’s decision in that regard was reversed. The Supreme Court (Lord Kerr dissenting) rejected the contention that the right to a fair trial under Article 6.1 gives rise to irreducible minimum rights, re-stating that the question was one of degree, balancing the competing interests. Lord Mance, after a detailed consideration of the use of a closed material procedure in proceedings where the claimant was claiming that the withdrawal of his security vetting clearance as an immigration officer was discriminatory, concluded (at paragraphs 67 and 68) as follows:

“The question is therefore whether there is in the European Convention on Human Rights, as explained by the European Court of Human Rights, any such absolute requirement, where this would involve the disclosure to Mr Tariq of the detail of allegations which would in normal litigation require to be disclosed, but which the interests of national security require to be kept secret. Clearly, it is a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it will lead to a claimant not knowing of such allegations in such detail. As the Home Office acknowledges, it is an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case; and this should be kept under review throughout the proceedings.

“However, to say that it is not possible under the Convention as interpreted by the Court in Strasbourg is in my view impossible, in the light of the clear line of jurisprudence culminating in the Court's decision in Kennedy which I have already discussed in paras 27 to 37 above. It is significant that, when the Court of Appeal reached its decision, it did not have the benefit of Kennedy.”

Lord Hope’s conclusion, at paragraph 83, was as follows:

“There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law. As I said at the beginning, the principles that lie at the heart of the case pull in different directions. It must be a question of degree, balancing the considerations on one side against those on the other, as to how much weight is to be given to each of them. I would hold that, given the nature of the case, the fact that the disadvantage to Mr Tariq that the closed procedure will give rise to can to some extent be minimised and the paramount need to protect the integrity of the security vetting process, the balance is in favour of the Home Office. I would allow the appeal.”

Lord Dyson agreed (at paragraph 138) that the Court of Appeal was wrong to find that, in all cases in which article 6 (civil) is engaged, it is necessary for an individual to be provided with sufficient information about the allegations against him to enable him to give effective instructions. At paragraphs 159 and 160 he added the following:

“I have no doubt that article 6 does not require that Mr Tariq should be given the gist of information which would damage or jeopardise national security. First, and above all, this is a security vetting case and in such a case article 6 does not require gisting if and in so far as it would jeopardise the efficacy of the personnel control procedure. That is a sufficient reason for allowing the Home Office appeal. There is no sensible basis for distinguishing the present case from Leander and Esbester. In those cases (which concerned a complaint about the manner in which security vetting was conducted where the applicant was applying for a sensitive post), article 8 did not require disclosure of the security material. In the present case, the complaint is about the decision not to allow a person to remain in a post where security vetting was employed. There can be no distinction in principle between the two cases. A related point is that in all cases where security clearance is sought, it is because the individual has volunteered to undergo the clearance process for the purpose of doing (or continuing to do) the job that he is employed to do. He must be taken to know that checks will be made that may produce material that cannot be shown to him. As Lord Hope points out, he is a volunteer.

I would add the following points which reinforce the Home Office case. First, the subject-matter of the claim is a claim for damages for alleged discrimination. I do not wish to underestimate the importance of the right not to be subjected to discrimination. But on any view, discrimination is a less grave invasion of a person's rights than the deprivation of the right to liberty… ”

It follows that it is entirely clear that a party’s Article 6.1 right to a fair trial (which equates to the public interest in the proper administration of justice) remains a powerful factor in the balancing exercise the court is to undertake in determining a claim for public interest immunity, but that factor is not decisive of the question of whether a party is entitled to disclosure of the gist of allegations against him, being capable of being overridden by other compelling factors.

Neither party referred to Home Office v. Tariq in written or oral submissions, so I invited further written submissions as to the effect of the decision. In his further submissions Mr Buttler maintains that there is a general absolute right to disclosure of the gist of allegations, but that, in the light of Home Office v. Tariq, concedes that there is an exception to that right in the national security/surveillance context, where non-disclosure is strictly necessary and the limitation on disclosure is sufficiently counterbalanced by other procedural safeguards. He contends that, as the present case does not involve national security or surveillance, X does indeed have an irreducible right to disclosure of the gist of the allegations against him.

Whilst the Supreme Court was considering Article 6(1) rights in the context of national security vetting, I do not accept that the passages set out above can be read in the way Mr Buttler contends. It is quite clear that the Supreme Court rejected the contention that Article 6(1) gives rise to any absolute requirements. The exercise is always one of balancing competing factors, the nature of the litigation and the interests involved being the crucial context in which that balance is to be struck.

In my judgment, taking into account the factors discussed above, the balancing exercise in this case overwhelmingly favours the non-disclosure of the withheld records. The public interest in protecting the identity of police informants (and in the confidentiality of a vetting process which involves such information) far outweighs X’s rights in relation to proceedings which, far from concerning his liberty, do not impact on his interests to any significant degree. Further, X voluntarily submitted to the vetting process, which he must be taken to know might involve the consideration of confidential or sensitive records which cannot be shown to him.

It is noteworthy that in R (A) v. Chief Constable of B Constabulary [2013] EWHC 4120 (Admin) Jay J. also upheld a PII claim by a Chief Constable in proceedings brought to challenge a refusal to grant vetting clearance to the claimant, who had been providing vehicle breakdown and recovery services to the police. The public interest in protecting sources of police intelligence was held to prevail over the claimant’s rights to a fair trial, even though, in that case, the decision under challenge had serious financial implications for the claimant. X’s case for disclosure is considerably weaker than the unsuccessful claimant in that case.

It was also common ground that the denial of disclosure or inspection must be limited to circumstances where such denial is strictly necessary and that, where some restriction was necessary, consideration should be given to the use of redaction, confidentiality rings, anonymity orders or other steps to respect protected interests: see Dunn v. Durham County Council [2013] 1 WLR 2305 per Maurice Kay LJ, paragraph 23.

In the present case, neither party suggested that special advocates should be appointed. Mr Buttler, however, urged me to order disclosure of the withheld records to parties within a confidentiality ring and/or to accept undertakings from X not to contact the police informants in question. He contended that such measures were necessary to ensure that X could fairly engage in the proceedings, even if disclosure was to be limited.

As I have held above that the public interest which must be favoured is the protection of the identities of the police informants, there can, in my judgment, be no question of disclosing information to X which might reveal those identities. No undertaking he could give would adequately address the risks in this case nor avoid the broader damage to the public by undermining the confidence of police informants in the confidentiality of their communications. Further, disclosure to X’s legal representatives (on the basis that they would keep the information from X) will not address his avowed concern, namely, being in a position to give instructions so as to rebut the allegations against him. Any benefit from submissions which might be made about the withheld records in the absence of such instructions (which would, in my judgment, be very limited) would be far outweighed by the risks of inadvertent disclosure to X. Without casting the slightest doubt on the integrity and competence of X’s representatives, there is an inherent risk that, if the withheld records are disclosed to those representatives, an unguarded comment during their subsequent discussions with X or in his presence may implicitly reveal some aspect of one of the allegations, enabling him to guess the source.

The Chief Constable’s PII application in relation to the withheld records (and the full versions of the statements exhibiting them) accordingly succeeds. I invite the parties to agree a form of order, failing which the parties should submit written submissions on that issue and any other consequential issues which may arise.