Case No: HQ 13X01121
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HON. MR JUSTICE SWEENEY
Between :
James Marsh | Claimant |
- and - | |
Ministry of Justice - and - The Chief Constable of Surrey Police | Defendant Non-Party |
Andrew Roy (instructed by Anthony Gold Solicitors) for the Claimant
Tim Holloway (instructed by Treasury Solicitors Department) for the Defendant
Peter Taheri (instructed by Surrey Police Legal Services) for the Non-Party
Hearing dates: 30 April 2015, 6 May 2015, 5 November 2015, 23 November 2015, 26 November 2015
Judgment
OPEN JUDGMENT
Mr Justice Sweeney :
Introduction
This is a claim for personal injury which arises against the background of the Defendant’s employment of the Claimant as a prison guard at HMP Downview.
In short, in 2009 the Claimant complained about, and was the subject of a complaint of serious sexual assault by, a prisoner, Ms Garces-Rosero – who, it later transpired, was having an illegal affair with a Governor.
The Claimant was suspended in February 2010 pending disciplinary charges in relation to Ms Garces-Rosero’s allegations, which were investigated as part of a wide-ranging Surrey Police investigation, called Operation Daimler, into crimes at the prison.
In August/September 2010 it was confirmed that no criminal charges were to be brought against the Claimant. Nearly two years later, in June 2012, disciplinary proceedings were finally held in relation to an allegation made by Ms Garces- Rosero that, around Xmas 2008, the Claimant had smacked or squeezed her buttock. The Claimant was acquitted.
It is alleged that, as a result of failures by the Defendant, involving negligence, breach of statutory duty, and breach of contract by the Defendant its employees and agents, the Claimant (who was dismissed by the Defendant on grounds of ill-health) has suffered serious psychiatric injury.
The Claimant asserts two broad areas of failure by the Defendant, as follows:
Failures leading up to the suspension, namely:
Failing properly to investigate or deal with the 2009 complaints at the time.
Failing to furnish police with information exculpating the Claimant.
Failures relating to suspension, namely:
Suspending the Claimant rather than considering alternative options.
Keeping the Claimant suspended for 28 months.
The Claimant’s letter of claim was sent on 16 March 2012, and was followed by a supplementary letter in November 2012. The claim was issued in March 2013.
Examination of the Particulars of Claim (which include a complaint about lack of pre-action disclosure), Defence (dated 5 August 2013), Reply (dated 12 September 2013), the Claimant’s Part 18 request for further information and production of associated documents (dated 13 September 2013), and the Defendant’s Response (dated 23 December 2013) reveals, in my view, a self-evidently widely pleaded case, the great majority of which is in dispute. The unfortunate procedural history up to the hearings before me on 30 April 2015 and 6 May 2015 is set out in a chronology helpfully provided by the Claimant – which I have added to and append to this judgment as Appendix A.
By reference to Appendix A it will be observed, inter alia, that:
On 18 September 2013 the parties agreed disclosure by 28 November 2013 - which the Defendant failed to make.
Since then the proceedings have been marked by numerous applications by the Defendant, and Orders by the Court, extending time for the Defendant to provide disclosure.
The Defendant first contacted the Surrey Police to request documentation on 26 March 2014.
On 4 July 2014 Collins J made an Order in which he recorded his consideration of the necessity for, and proportionality of, disclosure having regard to the nature of the claim (which he summarised) and went on to require Surrey Police to disclose the documents or classes of documents specified in paragraph 2 of the Order by 4pm on 3 October 2014. He also ordered the Defendant to provide further standard disclosure by list by 4pm on 25 July 2014 (which was done in so far as it could be).
On 25 July 2014 Simon J (as he then was) vacated the then trial dates of 6-14 October 2014, and (following non-party disclosure by the Surrey Police) extended the time for further standard disclosure by the Defendant to 4pm on 24 October 2014 – with inspection by 4pm on 7 November 2014.
On 19 November 2014 Singh J ordered, inter alia:
Surrey Police disclosure to the Defendant by 5 December 2014 of the HOLMES list of documents in relation to the Claimant, and disclosure by list of a reduced number of documents or classes of document with inspection to be provided, on request, by 16 January 2015.
The Defendant to provide standard disclosure to the Claimant, by way of an updated list, by 13 February 2015 and to make any application for withholding any disclosure or inspection or for any determination of whether a claim made under CPR 31.19 (3) should be withheld, by the same date.
A one day hearing between 14 April 2015 and 30 April 2015 to determine all issues of disclosure, inspection and related matters.
On 5 December 2014 the Chief Constable of the Surrey Police duly provided disclosure by list to the Defendant, but also made an application to withhold disclosure of seven documents.
By 16 January 2015 the Chief Constable provided inspection of documents, running to some 10,400 pages, to the Defendant.
On 20 January 2015 there was a hearing before Phillips J, who adjourned the Chief Constable’s application to withhold disclosure to 30 April 2015 and (given that no bundle or open or closed skeleton argument had been prepared) ordered her to pay the costs thrown away.
The Claimant granted the Defendant an extension of time for updated disclosure to the Claimant until 18 February 2015 – on which date the Defendant served its Supplemental List of documents (dated 13 February 2015) on the Claimant and made two applications as follows:
For an Order permitting the Defendant to withhold disclosure and inspection of documents and/or for a determination of whether a claim made under CPR 31.19 should be withheld or disclosed on the grounds that the documents are subject to public interest immunity.
For an Order (relating to third parties) permitting the Defendant to withhold, or an order permitting disclosure and inspection of documents, and/or for a determination of whether a claim made under CPR 31.19 should be withheld or disclosed to the Claimant.
The Supplemental List sets out 82 documents from the Surrey Police, and 16 documents from the Defendant in relation to which there is no objection to inspection and copying; 260 documents from the Surrey Police and 13 from the Defendant where third party information has been redacted subject to third party consent and/or a court order; and 8 documents from the Surrey Police and three from the Defendant where PII is claimed in whole or in part.
On 28 April 2015 the Chief Constable sought an adjournment of her application to withhold disclosure, which I refused.
The purpose of the hearings before me was thus to determine all issues of disclosure, inspection and related matters and, in particular, the application made by the Chief Constable on 5 December 2014 and the applications made by the Defendant on 18 February 2015. This therefore included the consideration of public interest issues.
The principles
To state the basics, the disclosure and inspection of documents is governed by CPR Part 31, Practice Directions 31A & B, and the relevant authorities on the topic. It is an important part of the court’s overall responsibility to ensure that disclosure is proportionate (i.e. limited to what is really necessary in the particular case) in order to give effect to the overriding objective to enable the court to deal with the case justly.
As I have set out above, the Defendant was ordered to provide standard disclosure by list. By virtue of CPR 31.6 standard disclosure requires a party to disclose only the documents on which he relies; the documents which adversely affect his own or another party’s case, or support another party’s case; or which he is required to disclose by a relevant practice direction. CPR31.3-(2) provides that a party may refuse inspection if it would be disproportionate to the issues in the case, and CPR 31.7-(7) gives the Court wide powers to regulate disclosure.
The principles applicable to whether public interest immunity applies are set out in the judgment of Phillips J in R (on the application of X) v (1) Chief Constable of Y (2) Police and Crime Commissioner for Y [2015] EWHC 484 (Admin).
It was common ground that the leading authority as to the essential principles requiring consideration in the context of a claim that disclosure would damage the public interest is Dunn v Durham City Council [2012] EWCA Civ 1654; [2013] 1 LR 2305.
At [23] of the judgment Morris Kay LJ said:
“…First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include ‘train of inquiry’ points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the parties seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing Convention rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.”
At [26] Munby LJ agreed with Morris Kay LJ’s formulation and added at [50]:
“The second point is that, particularly in the light of the Convention jurisprudence, disclosure is never a simply binary question: yes or no. There may be circumstances, and it might be thought that the present is just such a case, where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if has first been anonymised. Disclosure of third party personal data is permissible only if there are what the Strasbourg Court in Z v Finland (1997) 25 EHRR 371, para 103, referred to as ‘effective and adequate safeguards against abuse’. An example of an order imposing such safeguards can be found in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673, 699 (Appeal dismissed A Health Authority v X) [2002] 2 All ER 780).….”
Tomlinson LJ, at [51], agreed with both judgments.
The procedure at the hearings
By the time of the first hearing before me on 30 April 2015:
The Chief Constable had consented to the disclosure to the Defendant of four of the seven documents which she had originally sought to withhold, but had not provided the Defendant with the remaining three documents that she still sought to withhold.
Mr Taheri, on behalf of the Chief Constable, had provided an open skeleton argument and a closed skeleton argument dealing with the three documents sought to be withheld, which skeletons were supported by an open witness statement and a closed witness statement made by Detective Inspector Sidaway.
Mr Holloway, on behalf of the Defendant, had provided an open skeleton argument in relation to the Chief Constable’s application; a further open skeleton argument (but with redactions) supplementing his previous skeleton argument in relation to the Chief Constable’s application, and concerning both the Defendant’s applications dated 18 February 2015; and a closed version of the second skeleton – with the redactions removed and the addition of an Annex. Each of the Defendant’s applications was accompanied by both an open and a closed witness statement made by Shelley Dixon, a lawyer employed by the Treasury Solicitor’s Department, who had also made a further closed supplemental statement.
There was, however, at that stage, no PII Certificate before the Court – though I was assured that one would be provided in due course, but I judged that it was not necessary to delay consideration of the issues to await the certificate (albeit that the certificate would have to be provided in due course before a final determination could be made).
Mr Roy, on behalf of the Claimant, had provided a skeleton argument dealing with the Chief Constable’s application, as originally advanced, and a further skeleton argument dated 28 April 2015 dealing with both the Chief Constable’s application and the Defendant’s applications.
At the hearing on 30 April 2015 Mr Roy argued that, as things stood, the Claimant was effectively precluded from meaningful participation in the hearing which was, he submitted, in clear breach of the overriding objective and of the Claimant’s Article 6 ECHR right to a fair trial. Mr Roy repeated invitations to the Chief Constable and to the Defendant to provide at least some further information so that the Claimant could understand in general terms what was being asked for and why.
I ensured that as much of the hearing as possible was conducted inter partes, with the Mr Roy, on behalf of the Claimant, being given as full an opportunity as possible to place before the court the matters that he wished the Court to take into account when considering the materials themselves ex parte (as inevitably had to be the case).
At [8] of his skeleton argument dated 28 April 2015 Mr Roy asserted that it was important, with an eye to proportionality and the proper management of the case, to identify the scope of the litigation - which he then set out from the Claimant’s perspective, underlining that the claim was limited to the pleaded issues (rather than being a general inquisition into the goings on at the prison) and the Claimant’s concern that the Defendant was seeking to include documents whose prejudicial effect (insinuating guilt by association) outweighed their probative value, if any. He further submitted that, at the least of it, there was a concern that a large volume of documents was being produced the marginal relevance of which rendered the exercise disproportionate.
I dealt with the application by the Chief Constable first. After submissions inter partes, I inspected the three documents and heard evidence from Detective Inspector Sidaway ex parte. In the result I asked for further enquiries to be made – in consequence of which Detective Inspector Sidaway gave further evidence ex parte.
Using the same broad procedure, I then dealt with the first of the Defendant’s applications – going through each suggested PII related redaction in each document one by one ex parte. During the course of this it emerged that there were issues as to which further information was required from the Defendant.
As to the second of the Defendant’s applications, it seemed to me that there was a way in which the Claimant could be enabled to play a fuller part in the argument in relation to third parties by being provided with a version of the relevant schedule with enough information unredacted to enable him to be better informed. That was done.
Against that background I adjourned the hearing until 6 May 2015 when there was argument inter partes as well as consideration ex parte of the relevant materials. In the light of the latter consideration it was clear that there was further PII information that needed to be provided by the Defendant and considered before a final determination could be made.
On 5 November 2015, having not received any of the further PII information, nor a PII Certificate, and by which time the trial fixture had been vacated by agreement, I held a further ex parte hearing during which I was informed that the PII Certificate was unlikely to be available until the end of the month (which I indicated that I was not prepared to wait for and instead proposed to make ultimate rulings contingent on it being provided) and (insofar as it was not able to be provided at the time) I required the Defendant to provide the outstanding PII material forthwith.
The outstanding PII material was thereafter delivered in two tranches, the second on Friday 20 November 2015 – consideration of which made it clear that a further PII hearing was required in the very near future. However, I decided that it was necessary to promulgate an (albeit necessarily incomplete) draft open judgment in order to be able to make at least some progress at the hearing I had by then fixed for 23 November 2015. Having promulgated the draft that morning, I duly held the hearing, during which both sides made submissions as to the appropriate way ahead, including the need for another ex parte PII hearing and another inter partes hearing (later fixed for 10 December 2015) before the end of term to chart the way ahead, including the identification, if possible, of a trial date.
I held the final ex parte PII hearing on 26 November 2015. During the course of it I was finally provided with the Closed Certificate of Andrew Selous, Her Majesty’s Parliamentary Under Secretary of State for Prisons, Probation and Rehabilitation, and considered and ruled upon all outstanding PII issues. I also ensured, for a final time, that there was no further relevant information held by the Surrey Police, and approved final versions of the lists of those third parties in Group A and those in Group B and the broad consequential redactions relating to those in Group B.
On 7 December 2015, in a further Skeleton Argument, Mr Roy raised further concerns on behalf of the Claimant about the delays in the case generally, and the delay in the resolution of these applications in particular – against the background, it was asserted, that the Claimant had lost all faith in the judicial process. It was suggested that the completion of this judgment offered an opportunity to “mitigate” the situation and it was urged that the opportunity be taken. Complaints were made arising from the incomplete nature of the incomplete draft provided to the parties on 23 November 2013. In particular, it was suggested that:
On the face of it the ruling appeared to be that the Defendant was not bound by either the pleadings or considerations of proportionality.
No consideration appeared to have been given to the impact of the volume of the documentation that would need to be considered in relation to the timing of the new (fourth) trial date.
The situation created a significant risk of an appearance of pre-determination in the Defendant’s favour, with a significant risk that a fair-minded observer would gain the impression that the Defendant was being granted what it wanted irrespective of:
Whether its arguments in support were good, bad or absent.
The Claimant’s arguments.
The effect on the Claimant.
The overriding objective.
The danger of an appearance of bias was all the greater given:
The procedural history – as to which it was said that: “the Claimant’s advisers have never experienced a case were (sic) one party has been so repeatedly indulged to the detriment of the other party”.
The repeated closed hearings, sessions and judgments without the Claimant being informed even of their progress - which was incompatible with the requirements of open and natural justice by reference e.g. to Al-Rawi v Security Service [2011] UKSC 34.
The nature of the Defendant – as to which it is said that:
“The unavoidable fact is that the Ministry of Justice is in charge of the judiciary. There is thus a particular and acute need to ensure both the substance and appearance of fairness to both sides. That is simply not being achieved as things currently stand”.
The Court was therefore respectfully asked to reconsider the rulings in the incomplete draft and to address the matters raised (rather than to recuse itself).
In a written Response dated 13 December 2013, Mr Holloway submitted inter alia, on behalf of the Defendant that:
Assertions of delay had been a continuing theme of the Claimant’s submissions to the Court – with a tendency to cloud a considered approach to what was required to bring this widely pleaded claim to trial.
The Claimant’s assertions went back to his opposition to the Defendant’s ultimately successful application before Deputy Master Eyre to revoke the original agreed directions placed before Master Fontaine, which equated to little more than fast track directions and which ought not to have been presented to the Court as being suitable for this claim. The Defendant had then lost a significant amount of time by appealing unsuccessfully.
At each stage the Defendant had sought, as appropriate, to provide a scheme of case management directions to progress the matter in a manner reflecting the complexities of the claim – to which there had been significant resistance by the Claimant.
Surrey Police had made an application to narrow the non-party order and their attendance, unprepared (at the hearing before Phillips J) had caused a further lapse of time.
There was no objective justification for the Claimant’s asserted loss of faith in the judicial process, and it was quite inappropriate for it to be submitted that this judgment should be used as an opportunity to “mitigate” the Defendant’s loss of faith. The purpose of the judgment should be to address the issues before the Court not to ameliorate the Claimant’s “disgruntlement”.
The Claimant’s proposed approach whereby the Court directed that only certain documents identified by numbers should form part of disclosure had no sound basis in the CPR. The responsibility for identifying documents that should be disclosed lay with the Defendant and was assessed in light of the issues in the statements of case, and any obligation or right to withhold material. The Court should also have regard to the potential for the Defence to be amended so as to aver that the Claimant was in fact responsible for the acts complained of. The breadth of the allegations made had had a direct bearing on the Defendant’s application for non-party disclosure and, within that process, the quantity of documentation had been narrowed down.
If the Claimant did not wish to see the documentation then he was not obliged to pursue or to accept the offer of inspection.
There was an ongoing tension between the Claimant, at one stage, pressing for wider disclosure and, at another, seeking to narrow disclosure. Potential impact on “the fourth trial date” was simply not the appropriate test.
As to the issue of bias, the case had come before Master Fontaine, Deputy Master Eyre, Collins J, Simon J, Singh J, (Phillips J), and myself and at which points the Defendant had been “repeatedly indulged” was wholly unclear. Such closed hearings as there had been had taken place as the need had dictated, the Ministry of Justice was not “in charge of the judiciary”, and the Claimant was reminded of the concept of the separation of powers.
Whilst the nature of the accusation left the Court in an almost impossible position, the Defendant invited the Court to complete the judgment as it would have done had the allegation not been made.
After receipt of the Claimant’s Skeleton Argument dated 7 December 2015, I indicated to the parties that I have proposed to treat the assertion of bias (whether actual or by way of appearance) with the utmost gravity. Accordingly, although not asked as such to consider recusing myself, I decided that it was necessary to address that issue. In so doing, I have reminded myself of the principles enunciated in Porter v Magill [2002] 2 AC 357; Locabail (UK) Limited v Bayfield Properties [2000] QB 45; Helow v Secretary of State for the Home Department [2008] 1 WLR 2416; AWG Group v Morrison [2006] EWCA Civ 1315; Okritie v Urmurov [2014] EWCA Civ 1315; and Re K (A Child) [2014] EWCA Civ 905.
The Ministry of Justice is not in charge of the judiciary in the sense implied by Mr Roy is his Skeleton Argument of 7 December 2015. It is the most basic aspect of the judicial function that judges carry out their judicial duties independently, in good faith and to the best of their ability and without bias – whether actual or apparent.
The fact that the Ministry of Justice is the Defendant in this case has had no influence on my conduct of the case at all. To the extent that I have been the author of any delay, I must apologise. Applying Porter v Magill (above) I have asked myself whether the fair-minded and informed observer would, having considered the facts, conclude that there was a real possibility that I was biased – whether in favour of the Defendant or against the Claimant. The characteristics of the fair-minded and informed observer are described in Porter v Magill itself, and in [1]–[3] of the speech of Lord Hope in Helow v Secretary of State for the Home Department (above). I am sure that such an observer would recognise the extreme pressures of work on a judge who is both a full time judge and the Lead Presiding Judge of the South Eastern Circuit, and who has also had to deal with another matter (of which the parties are aware) during the material period, as explaining any contribution by him to the delay in dealing with the issues in the case, rather than any such contribution being the result of a real possibility of bias. I am also sure that such an observer would also recognise that the unusual provision of an incomplete draft judgment was intended to help the parties (and in particular the Defendant) to see the overall outcome in the circumstances as they were then known to be and thus to move the case forward - rather than being intended to be a fully comprehensive exposition of the court’s reasoning, and thus conclude that the provision and content of the incomplete draft did not indicate a real possibility of bias.
It is not for me to comment on the conduct of the other judges who have dealt with the case - only to observe that there has been one appeal by the Claimant, and that it failed.
Against that background I agree with Mr Holloway that I should complete this judgment. However, as I indicated to the parties that I would, I have re-read the papers and reviewed each of my earlier decisions. That required the cancellation of the proposed hearing on 10 December 2015, which (in view of the size of the task of re-reading and reviewing) was re-fixed to 21 December 2015.
In so doing I have continued to regard the pleadings as delineating the issues in the case, and have also continued to have regard to proportionality and to the volume of documentation involved.
The Surrey Police Application
This can (still) be dealt with very shortly. I have no doubt whatsoever that the three items are disclosure irrelevant. Even if they had some marginal relevance, I am equally sure that disclosure should be withheld in the public interest. I am also satisfied that there is nothing else in the sole possession of the Surrey Police that requires consideration.
The arguments at the hearing on 6 May 2015
Consistent with his Supplemental Skeleton Argument, Mr Roy argued that:
Documents should only be disclosed if they are:
Relevant to the pleaded issues; and
Of sufficient importance that disclosing them would be proportionate.
Any document so qualifying should be produced for inspection without redactions save insofar as it had been demonstrated that it was strictly necessary to withhold or redact (subject to any necessary safeguards).
By contrast the Defendant’s proposal that it should be for the Claimant to apply for inspection or removal of redactions, was both wrong in principle and undesirable in practice.
Proportionality was relevant to disclosure and inspection:
Specifically, by reference to CPR 31.3-(2) and 31.5-(7)
Generally, by application to the overriding objective at CPR 1.1 and by reference to CPR 1.2 and 1.3.
There was no evidence that the Defendant in its approach to disclosure and inspection had given sufficient, if any, consideration either to proportionality or to the scope of the pleadings. The evidence was all to the contrary, namely that:
Over 10,000 documents were obtained from the police which was proof positive that there had been little or no attempt to restrict the documents to those which were proportionate and relevant to the pleaded issues. On the contrary there had been something resembling an indiscriminate trawl for most of the documents generated by Operation Daimler.
The list itself demonstrated that the Defendant was seeking to produce a mass of documents well beyond the scope of the pleaded cases.
There appeared to be no consideration of proportionality with the Defendant being unable to supply even an approximate figure for the volume of documents.
Relevance was defined by reference to the pleaded issues with liability turning on what the Defendant did or did not do in the light of the material that was or should have been available at the time, as opposed to material only available subsequently following a court order.
The vast majority of relevant material would have been within the Defendant’s own disclosure and thus had already been produced. Whilst it had taken a great deal of time there was no suggestion that the second disciplinary process had been deficient in any way in collating the relevant evidence which had already been produced.
The vast bulk of the material produced by the police which the Defendant was unable to see absent a non-party disclosure application was by definition unlikely to be material which would have been available to it at the time equally, material obtained after the Claimant was charged could have no effect on the decision to charge him and the manner in which that had been gone about. The documents from the police were therefore prima facie unlikely to be relevant, only a relatively small residual class of documents, namely those materials which might have been available to the Defendant had it investigated matters properly first time around were relevant.
The bulk of the list consisted of documents going well beyond the scope of the pleaded case. Material not available at the time was prima facie irrelevant for example, the Claimant could not fairly rely on a document wholly undermining the complaint against him but which would not have been available to the Defendant at the time of the disciplinary proceedings.
In so far as the material did have some legitimate probative value in respect of the pleaded issues, disclosure would still only be justified if it were sufficiently important when balanced against the expense and time required in dealing with it. It would not be proportionate to disclose a large amount of evidence relating to a given individual just for the sake of one passage of marginal relevance.
The Defendant had failed to approach disclosure with a proper focus on the pleaded issues and without proper reference to proportionality and thus could not complain that the court could do no more than a rough justice. Albeit, that, equally, the Claimant accepted that there was a risk in waiving his rights to inspect documents which might assist him and which he, unlike the Defendant had not had the opportunity to consider.
The documents which could properly be said to be relevant were those which were:
Pertinent to the actual pleaded issues; and
Contained material which might have been available to the Defendant had it investigated matters properly first time around.
Whilst the Claimant reserved his position on proportionality it was submitted that the relevant items were:
1,2,3,4,11,33,39,47,49,55,56,58,62,65,74,76,77,92.
In addition Mr Roy argued, inter alia, that:
Whilst it was not suggested that the Defendant had acted with bad faith or improper motive, it was nevertheless the fact that the Defendant’s approach had been profoundly misguided.
Documents should be disclosed without any redactions save where redactions were strictly necessary, yet redactions were proposed in a number of documents that the Claimant either already had an unredacted copy of (such as the Transcript of the disciplinary hearing on 7 June which the Claimant had disclosed to the Defendant – see document no.19 in the Claimant’s list dated 14 November 2013) or had otherwise seen unredacted (e.g. his own personnel records including the names of occupational health doctors) or which related to public events (e.g. transcripts of criminal trials). In any event, unredacted disclosure could be made on terms that would protect third party interests
Correspondence from the Claimant in August 2014 had been ignored and the fact that there was no costs budget in the case meant that it was particularly important that disclosure was dealt with proportionately.
In response Mr Holloway argued, consistent with his Skeleton Argument, that the issues in the case included:
The matters that the police were investigating.
The credibility of the Claimant’s accuser(s)
The responsibility of the Prison for the information which was or was not received by the Police for the purpose of that investigation.
The Claimant’s conduct within the prison, not only in the sense of whether he turned a blind eye to the conduct of others but also in the sense of whether he was actively engaged in misconduct alone and/or with others.
The conduct of the Prison in relation to the Claimant whilst he and others were investigated and how this compared or contrasted with the treatment of other members of staff under investigation.
Why the Prison acted as it did towards the Claimant and whether that was influenced by any request from the Police.
If so, why that was appropriate in the context of investigation and prosecution of other individuals.
The basis for the Claimant’s ongoing suspension subsequent to the conclusion of the prosecution of others including the nature of the information that was then available to the Prison from the Police.
Whether the pursuit of an internal investigation during the term of the criminal prosecutions would have risked prejudicing those prosecutions given the overlap of witnesses etc, or whether an internal investigation could have been carried out in any event.
Expanding on those issues, Mr Holloway argued that:
It was apparent that the Police investigation had been wide-ranging and had included the receipt of information from many third parties, including prisoners and officers; investigation of the knowledge of officers, including the Claimant, of the criminal or illicit conduct of other officers and of the involvement of prisoners; the investigation of the specific issue of collusion between officers in respect of such conduct; and the Claimant’s own conduct, whether alone or in collusion with other officers – including Christopher Bevan, Simon Dykes, Darren Paske and Russ Thorne.
The very nature and extent and scope of the police investigation was a significant element of the defence.
The assertion in the Particulars of Claim that the Defendant had failed to “convey all relevant material that it had or should have collected” to the Police was, though particularised to some extent, a broadly pleaded issue which raised the question of the very nature and extent of the Defendant’s co-operation with, and the provision of information to, the Police.
The degree of overlap between the issues and the witnesses involved in the Police investigations and criminal proceedings on the one hand, and the Prison Service investigations on the other was in issue and extended not only to the period of police investigation of the Claimant, but also to the period when the criminal proceedings against others were extant.
The existence of justification for pursuing an investigatory / disciplinary process against the Claimant was in issue.
The reference in the Particulars of Claim to other “copious evidence” which would have rendered the evidence of Garces-Rosero incredible begged the question as to what that evidence was and whether there would have been any proper basis for ignoring the evidence which was unfavourable to the Claimant (and what that evidence was).
Not only was the perception of the Claimant’s conduct and credibility, as well as the perception of the credibility of his accusers in issue, but the Claimant had asserted his innocence – a fact that the Defendant had expressly not admitted and which the Claimant was required to prove.
It had already been averred (amongst other matters) that that there were other allegations of inappropriate conduct against the Claimant of which he was aware; that the investigating officer in 2009 had believed the version of events given by Garces-Rosero; that the internal disciplinary investigation had concluded that there was sufficient evidence for the Claimant to be charged under the Code of Discipline and that the Claimant had failed to disclose information in dereliction of his duty to do so – against which background and in light, inter alia, of the police disclosure, that could very well extend to a positive assertion on behalf of the Defendant that the Claimant did conduct himself in the manner alleged (in the event of which or in the absence of the Claimant proving his claimed innocence, that could very well be determinative of the claim).
Causation was in issue, not only in respect of injury and loss but also in respect of the events that would in fact have occurred had any different approach been taken – such as how Garces-Rosero would have responded and how investigation would have proceeded.
In addition, Mr Holloway pointed out that there had been no application by the Claimant to limit disclosure, or to delimit how the Defendant should go about disclosure. Having summarised the procedural history, he reminded me that the effect of Singh J’s order had been to reduce the amount of police material to be disclosed. The material was however important given that the prison concerned was no longer a woman’s prison, and that it was likely that documents that had been in the prison had been dispersed (for example with prisoners to other prisons). The proposed redactions related to matters of concern in relation to third parties (a number of whom had objected to their identity being revealed in the course of the proceedings) and to PII issues. It was highly likely that a substantial number of redactions would need to be removed – in particular, the Police had redacted the transcript of the disciplinary hearing on 7 June and it was accepted that they could not be maintained. Equally, it was obvious from the Claimant’s Skeleton Argument that it was accepted that matters relating to a number of other individuals were relevant in these proceedings.
Mr Holloway further submitted that, given that it was not possible for the Court to inspect the listed documents themselves, general decisions in relation to disclosure could only sensibly be taken by reference to the issues in the case. It was not right that the case would be decided on what the Defendant did or did not know at the time. The Claimant, he pointed out, alleged that the allegations against him were false and had said in interview in relation to a number of individuals that he did not, but would certainly have known if his best friend Officer Bevan was involved in sexual misconduct – thus proof of what Bevan was or was not doing was of relevance.
As to third party interests, Mr Holloway underlined that the Defendant’s application made a distinction between two groups:
Group A – which related to third parties whose identities were relevant to the determination of the claim (to include those to whom substantial reference was likely to be made such that the handling of the trial could become unmanageable in the event that they were not identified) and whose identity would thus not be redacted.
Group B – which related to third parties whose identities as such were not perceived to be relevant, or at least of central relevance, to the determination of the claim and whose identity should thus, with Article 8 in mind, be redacted – particularly if, after being traced by the Defendant or otherwise notified, they had objected to their details being disclosed.
That, he submitted represented a pragmatic solution to a somewhat difficult problem – provided, I would add, that it took into account unredacted documents already in the possession of the Claimant and the other types of document addressed in paragraph 40(2) above. Otherwise, it was proportionate that the names in Group B and details about them were not disclosed.
Mr Holloway pointed out that the mere fact that a particular governor, officer or member of staff was referred to in documentation as having been engaged in some aspect of their duties was not considered of itself to be sufficient to justify redaction or other protective measures – save in respect, for example, personal telephone numbers and the like.
In reply Mr Roy noted that the Defendant appeared to accept that a number of that a number of documents should no longer be redacted, but argued, amongst other things, that the documents should never have been redacted in the first place, that other redactions were avoidable, and that the Defendant had failed to give the necessary thought to proportionality and costs
The Defendant’s first application - PII
Now that all argument and consideration has been completed, and applying the principles to which I have made reference, I propose to grant the application that disclosure of certain material (to be set out in detail in the Closed Judgment) should be withheld on the ground of public interest immunity. There are, however, certain items as to which either the Defendant volunteered during the relevant hearing, or I ruled, that the public interest did not require non-disclosure. These will be identified by markings on the originals and must thereafter be disclosed.
The Defendant’s second application – third parties
For the pragmatic reasons touched on in argument, and taking into account concessions correctly made, in my view, by the Defendant as to transfers from Group B and Group A, I propose to order, on terms to be agreed or ruled upon, the disclosure of a list of those now ruled by me to be in Group A (whose details will not be redacted), but no more. I approve the non-disclosure of the personal details of those in Group B in accordance with the indications, specific and general, that I gave during the relevant ex parte hearings. It seems to me that given the minimal relevance, if any, of their roles and their Article 8 rights, that the redactions are strictly necessary and the best way of protecting their rights whilst not interfering with the right of the Claimant to a fair trial. That said, I did not approve of the redactions hitherto made in the sort of documents referred to in paragraph 41(2) above – i.e. those that are or have been in the Claimant’s possession unredacted, his personnel records, records of his discipline proceedings, or those that deal with events in public such as the trial transcripts.
General Conclusions
I repeat that I have proceeded upon the basis that the pleadings delineate the issues in the case and that both proportionality and the potential volume of material are relevant issues. However, having considered the rival arguments for the Claimant (summarised at paragraphs 38,39-41 & 49) and for the Defendant (summarised at paragraphs 42-45) I remain persuaded by the Defendant, for the reasons advanced by Mr Holloway, that its conduct of the general exercise has been in accordance with the law – albeit that it was overcautious in relation to the Claimants personnel records, transcript of his disciplinary proceedings etc. Hence I (still) reject the contentions advanced on the Claimant’s behalf that there have been wholesale failures of approach by the Defendant to the whole disclosure exercise.
I also reject the contention that I should restrict disclosure to the items specified in paragraph 40 above. To do so would, in my view, involve the imposition of a wholly unjustified limitation.
Costs
At the hearing on 6 May 2015 I heard argument on costs as between the Claimant and Defendant. In my view the correct order is costs in the case.