Judgments - Regina v. Police Complaints Authority (Respondents) ex parte Green (FC) (Appellant)

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    59.  Both parties accepted that a convenient summary of the requirements of an effective investigation for the purposes of article 3, according to the case law of the European Court of Human Rights, was to be found in the speech of my noble and learned friend, Lord Bingham of Cornhill, in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2003] 3 WLR 1169, 1177-1179, para 20. In point 10 he said, referring to Jordan v United Kingdom (2001) 37 EHRR 52:

    "The court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, para 143. But it is 'indispensable' (Jordan, para 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force."

While the general points analysed by Lord Bingham were not in doubt, counsel were sharply divided on the implications of article 3 for the involvement of a complainant, such as the appellant, in the investigation. Mr Gordon referred, in particular, to the judgments of the European Court of Human Rights in Edwards v United Kingdom (2002) 35 EHRR 487 and Jordan v United Kingdom, both involving applications based on article 2.

    60.  The first case arose out of the killing of Mr Christopher Edwards by a mentally disturbed prisoner who was sharing his cell in Chelmsford Prison. On the basis of article 2 Mr Edwards' parents alleged that the authorities had failed to protect their son's life and that they were responsible for his death. In addition they argued that the investigation of his death had not been adequate or effective. The European Court of Human Rights held that there had been a violation of article 2 in both respects. So far as the second aspect is concerned, there had been no inquest and the fellow prisoner had pleaded guilty to manslaughter and been dealt with by means of a hospital order. For that reason the circumstances of Mr Edwards' death were not investigated fully at his trial. The authorities involved did, however, set up a non-statutory inquiry to investigate the circumstances. The inquiry, chaired by a Queen's Counsel, sat in private. It heard evidence on 56 days over a period of 10 months and eventually published a detailed report. The inquiry did not, however, have the power to compel the attendance of witnesses and, in fact, two prison officers refused to give evidence. The evidence of one of them, at least, would have been potentially significant.

    61.  The court dealt with the inquiry in this way, at 35 EHRR 487, 515, paras 81 - 84:

    "The inquiry sat in private, during its hearing of evidence and witnesses. Its report was made public, containing detailed findings of and criticisms of failures in the various agencies concerned and recommendations.

    The Government argued that the publication of the report secured the requisite degree of public scrutiny. The court has indicated that publicity of proceedings or the results may satisfy the requirements of article 2, provided that in the circumstances of the case the degree of publicity secures the accountability in practice as well as theory of the state agents implicated in events. In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the court considers that the public interest attaching to the issues thrown up by the case was such as to call for the widest exposure possible. No reason has been put forward for holding the inquiry in private, any possible considerations of medical privacy not preventing the publication of details of the medical histories of Richard Linford and Christopher Edwards.

    The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel or, for example, through the inquiry panel. They had to wait until the publication of the final version of the inquiry report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the inquiry, the court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests."

The court concluded, at p 516, para 87, that the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded, save when they were giving evidence, failed to comply with the requirements of article 2.

    62.  In this respect the difference between the parents of the victim in Edwards and the appellant in the present case could not be more striking. Mr Edwards' parents were excluded from the inquiry, except when giving evidence, and so could not even find out what was going on. The first they knew was when the inquiry published its report. By contrast, the appellant has been involved throughout the investigation of the incident envisaged by the Act. At the outset, he was interviewed and was able to give his version of events. At a later stage he and his solicitor saw the video recording and he then had a further opportunity to give evidence to the investigating officer. When the investigation was complete, the appellant received a copy of the appropriate statement by the Authority, in terms of section 73(4). This was accompanied by a letter explaining what would happen next and, in particular, that the Authority would have the power to recommend that disciplinary proceedings should be taken. In due course the Authority member wrote to the appellant in fairly detailed terms to tell him that she had decided not to recommend such proceedings. This gave the appellant the opportunity to point out an error in the member's reasoning, which led her to withdraw that letter and issue a fresh decision letter. The appellant was then able to challenge that letter successfully in judicial review proceedings. Once these were over, another Authority member, who had taken over the case, wrote to the appellant to explain how she proposed to conduct the review of his complaint. Again, the appellant was able to comment on her letter and bring about a modification in her approach. She also told the appellant the names of the witnesses whose statements she would be using, although she refused to disclose the statements themselves. After the decision of Moses J, the appellant was supplied with a copy of the video recording of the incident. Even while the present appeal was pending, the Authority were in correspondence with the appellant's solicitors to explain how they proposed to proceed with the review. Finally, the Authority member sent the appellant a very detailed letter setting out her proposed decision not to recommend proceedings. The letter explained the reasons, under reference to the evidence obtained in the initial police inquiry and a further expert report commissioned by the Authority. The Authority member also gave the appellant an opportunity to comment on the proposed decision and to submit further evidence. He intends to do so. Clearly, the member will have to consider any relevant material that the appellant submits. If, after doing so, the Authority member remains of the same view, she will send the appellant a detailed letter setting out her final decision not to recommend proceedings and explaining the reasons. If, on the other hand, she changes her mind and decides to recommend disciplinary proceedings against DS Lawrence or any other officer, the appellant will have the right to be present at the hearing. Moreover, if the officer concerned gives evidence, the presiding officer at the hearing will require to put to him any proper questions proposed by the appellant and may indeed allow the appellant to put the questions himself.

    63.  In my view there is nothing in the judgment of the European Court of Human Rights in Edwards 35 EHRR 487 to suggest that this degree of involvement of the appellant in the investigation of this particular incident is anything other than sufficient to safeguard his legitimate interests and so to meet the requirements of article 3.

    64.  In Jordan v United Kingdom 37 EHRR 52 the applicant claimed that in 1992 his son had been unjustifiably shot and killed by an officer of the Royal Ulster Constabulary and that there had been no effective investigation into, or redress for, his death. The court held that the inquest procedure under Northern Ireland law did not allow any verdict or findings which could play an effective role in the identification or prosecution of any criminal offences that might have occurred. For that reason it fell short of the requirements of article 2.

    65.  Having explained that a prompt response by the authorities to the investigation of a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts, the court continued, at p 88, para 109:

    "For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests."

In considering the police investigation, the court held, at p 91, para 121:

    "As regards the lack of public scrutiny of the police investigations, the court considers that disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects to private individuals or other investigations and, therefore, cannot be regarded as an automatic requirement under article 2. The requisite access of the public or the victim's relatives may be provided for in other stages of the available procedures."

The court clearly recognised that there are legitimate reasons why police investigations cannot be subjected to public scrutiny. Therefore, even though the victim or his next-of-kin must be involved in the investigative procedure to the extent necessary to safeguard his or her legitimate interests, this does not mean that article 2 gives any automatic right for them to be given access to police reports and investigative materials. So far as the public or the victim requires to be given access, this can be done at a later stage in the procedure - for example, at any inquest, trial or disciplinary proceedings. It appears that in Jordan, at p 95, para 134, the court would have favoured the disclosure of witness statements in advance of any inquest.

The decision not to disclose statements in this case

    66.  At the time of the decision letter of 3 April 2001 the Authority member was at the stage of considering, in terms of section 76, whether to recommend that disciplinary proceedings should be brought against police officers, in particular, DS Lawrence. The relevant question is, accordingly, whether the disclosure of the witness statements sought by the appellant was necessary for the proper discharge of that particular function of the Authority. While it is correct to say that the investigation supervised by the Authority had been completed by that time, section 76(7)(b) envisages that at this stage the Authority themselves may wish to obtain further information. Moreover, the provisional decision issued after the judgment of the Court of Appeal shows that, contrary to what Chadwick LJ had supposed, at para 70, the Authority recognise that the appellant might indeed have something to contribute at this stage. Under the procedure now adopted by the Authority in article 2 and 3 cases, the complainant has an opportunity to make that contribution when the Authority member sets out her provisional decision and gives detailed information about the evidential basis of that decision. Even without seeing the witness statements and other primary material, such a letter puts a complainant, such as the appellant, in a position to make constructive criticisms of the proposed decision. For instance - to take the example on which Mr Gordon relied - the appellant can draw the member's attention to the absence of any reference to the evidence of the independent witnesses who, he says, support his view that DS Lawrence was trying to kill him. The appellant can also draw attention to any legal or other flaw in the reasoning of the proposed decision. In these ways, even without the material being disclosed, the appellant can make an effective contribution to the process of reaching the final decision on the complaint. Mr Gordon suggested that, even though DS Lawrence had been prosecuted and fined for driving without due care and attention, the Authority might be persuaded by the appellant's response to the provisional decision to recommend that disciplinary proceedings be taken on the basis that he had, in effect, tried to kill the appellant. There is, however, considerable force in Mr Harrison's submission that this suggestion was unrealistic. In any event, the final decision under section 76 rests with the Authority.

    67.  In the Administrative Court, Moses J focused on the particular status of a complainant under article 3. He concluded that, to give effect to that status, the Authority should disclose the statements of eyewitnesses to a complainant such as the appellant. Having accepted that the appellant was not entitled to disclosure of certain internal communications, Moses J continued, at paras 54 and 55:

    "54. But eyewitness accounts seem to me to fall into a different category. It seems to me that the claimant's legitimate interests cannot be adequately safeguarded without affording him an opportunity to comment upon factual statements made by those present at the scene at the time or shortly thereafter, for instance those who observed the aftermath at the site of the accident, such as debris or skid-marks, no doubt available from the accident report.

    55. As a witness and as one whose individual rights are engaged, it seems to me that he does have a right to comment upon the evidence of others which relates to evidence at the scene of the accident. There does not seem to be any other way in which his particular status can be recognised or his particular legitimate interest be safeguarded."

While it is correct, of course, that the appellant would be a witness in any disciplinary proceedings, that is in itself no reason for saying that he has a right to see and comment on others' evidence about the scene of the incident. Similarly, there are many ways in which the appellant's particular status and legitimate interests as a complainant can be recognised and safeguarded in the procedure required by article 3: the involvement of the appellant at many stages, from the start of the investigation through to the invitation to comment on the proposed decision on disciplinary proceedings, shows this. I would, accordingly, respectfully reject the reasoning and conclusion of Moses J, which he reached without the benefit of the fuller evidence now available and at a time when the Authority had not adopted the general practice of issuing provisional decisions in article 3 cases.

    68.  For these reasons I am satisfied that in her letter dated 3 April 2001 the Authority member was entitled to take the view that, in terms of section 80(1)(a) of the Act, disclosure of the witness statements and other material sought by the appellant was not necessary for the proper discharge of the Authority's functions under section 76.

    69.  Indeed, as Hale LJ observed, at para 86, in complaints against the police

    "the best safeguard for all concerned is a fully reasoned decision, giving an account of the evidence received, any conclusions reached on disputes of fact, applying the appropriate law to the facts found, and explaining the considerations which have affected any discretion exercised. Only rarely should the reasonable recipient of such a decision be so suspicious as to wish to see the underlying evidence on which it is based. I would therefore conclude that a fully reasoned decision is the best way to safeguard the integrity of and promote individual and public confidence in the complaints procedure."

It is unnecessary to consider in this case whether, as Hale LJ went on to envisage, there might be exceptional cases in which it would be necessary for the Authority to disclose the underlying evidence, even after the complainant has received a fully reasoned final decision letter.

    70.  My Lords, on the approach that I have adopted, the issues of the possible contamination of the evidence and of the need to maintain the confidentiality of witness statements are somewhat peripheral. Since both Simon Brown LJ and Hale LJ examined them in considerable detail, however, I add some brief observations.

Contamination of evidence

    71.  The Authority's role is to supervise the police investigation of alleged misconduct by police officers. Where the report of the investigation shows that a crime may have been committed, it is then for the prosecuting authorities to consider whether to take proceedings. Plainly, Parliament cannot have intended that anything done by the Authority should risk compromising the investigation or impairing the prospects of the Crown mounting a successful prosecution in an appropriate case. While there is no absolute rule that prevents a potential witness in a criminal trial from being shown the statements of other witnesses, in general this is avoided so far as possible. There are sound reasons for this approach. At worst, a dishonest witness - and there are many dishonest complaints against the police - may trim his evidence to fit the evidence of another witness whose statement he has seen. If the issue was covered in his original statement, the alteration will be apparent and a cross-examiner can bring out the contradiction. But in other cases the witness will be alerted to a point that he had not mentioned in his original statement. Trimming of that kind is not so easily demonstrated. Even an honest witness may suppress a genuine doubt about what he saw or heard, if he discovers that another witness is going to give evidence to a certain effect. Equally importantly, if a witness has seen the statements of other witnesses, his evidence becomes vulnerable to cross-examination and comment on the basis that he has consciously, or subconsciously, altered his evidence to fit the evidence of the other witnesses. There are, certainly, situations where the overall benefit from disclosing the evidence of another witness can be said to outweigh these disadvantages. But the correct bodies to make that judgment are the police and the prosecuting authorities. The Authority, who do not carry out the investigation or conduct the prosecution, are not well placed to reach a sound judgment on the point. A decision by the Authority to disclose witness statements might therefore prejudice a potential prosecution. This would be contrary to the whole intention of Parliament in setting up the Authority. Of course, if disclosure were actually necessary for the proper discharge of the Authority's functions prior to any decision on prosecution, then the Authority would have both the duty and the power to make it. But the risk of prejudicing the work of the police and prosecuting authorities by contaminating the evidence is a further reason for concluding that disclosure of witness statements to complainers who are potential witnesses is not, as a rule, to be considered necessary for the proper discharge of the Authority's functions under the Act. If disclosure is to be made at this stage, it should be made by the police - as indeed is the current practice.

    72.  Similar factors apply at the stage when disciplinary proceedings are under consideration. As long as no final decision has been taken on bringing proceedings, a complainant such as the appellant is a potential witness in those proceedings. While it is true that they are civil in nature, the risks of contaminating the evidence and reducing its cogency remain important. Again, the Authority are not the body charged with conducting the proceedings and it is important that nothing which they do should have the potential for adversely affecting the quality of the evidence available at any hearing. These considerations reinforce the conclusion that the proper discharge of the Authority's functions under section 76 will not, as a rule, necessitate disclosure of witness statements.

Confidentiality of witness statements

    73.  The other factor considered by the Court of Appeal was the desirability of maintaining the confidentiality of statements given by witnesses. They did not consider that, in itself, this was a sufficient reason for never disclosing witness statements. I agree: if disclosure were indeed necessary for the proper discharge of the Authority's functions, then the statements would have to be disclosed, whether or not they were regarded as confidential. But it should be recognised that the starting-point of section 80 is that information provided to the Authority is to be kept confidential. This mirrors the position with both the police and the prosecuting authorities. As a general rule, this appears to be entirely appropriate. Of course, witnesses who give evidence to the police must expect that, whether favourable or unfavourable to the potential accused, it will be disclosed and become public in the event of a trial. But, subject to that, they may have good reasons for being anxious that it should not be revealed - for example, if it tends to cast doubt on a complainer's trumped-up allegation against a police officer. The potential risks to such a witness are obvious. Parliament recognises this legitimate concern in section 80(1)(c) which allows information to be disclosed in the form of a summary that does not identify the person from whom the information was received. Similarly, in complaints against the police, as in many other cases, the statements will often show individuals, including the witnesses themselves, in a bad light - behaving, especially through drink, in ways or in circumstances that they would be ashamed to see made public. So witnesses will be understandably concerned that their evidence about their own or others' misdemeanours should be kept confidential unless there is a trial. The concern will be shared by the other people involved. The police and prosecutors are expected to respect that concern. And, again, in section 80(1)(c) Parliament has recognised that it is genuine. For these reasons I consider that the desirability of maintaining the confidentiality of witness statements is a legitimate factor to be taken into account when considering what the proper discharge of the Authority's functions requires at any particular stage.

    74.  Finally, in this regard, it should be noted that, as Mr Smith QC emphasised on behalf of the Chief Constable, there is no provision in the Act which imposes any duty of confidentiality on the recipient of information disclosed by the Authority under section 80. There would therefore appear to be nothing to prevent him from providing other witnesses with any statements disclosed to him. Of course, many complainants would be responsible and would not do this. Indeed, in the present case before Moses J the appellant gave an undertaking to keep the information confidential. But in other cases less scrupulous complainants would abuse the material disclosed, with possible adverse effects on the quality of the evidence available in any prosecution or disciplinary proceedings. It is hard to see how an Authority member would be in any position to make an accurate assessment of the potential risks in any individual case. This again suggests that, in general at least, the proper discharge of the Authority's functions under the Act does not require them to disclose witness statements.

    75.  For these reasons I would refuse the appeal.

LORD CARSWELL

My Lords,

    76.  I have had the advantage or reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry, and I am in agreement that the appeal should be dismissed. My reasons for so holding coincide very closely with his, but I should like to take the opportunity to state my conclusions in my own terms.

    77.  The appeal concerns the application of section 80(1)(a) of the Police Act 1996, which provides that no information received by the Police Complaints Authority shall be disclosed except to the Secretary of State or to a member, officer or servant of the Authority, "or, so far as may be necessary for the proper discharge of the functions of the Authority, to other persons." The basic function of the Authority is to oversee the handling of complaints made by members of the public against police officers. The issue which we have to decide turns on the determination of the way in which the Authority should properly discharge its functions in a case of this kind. In order to determine that it is necessary to consider the purposes of the 1996 Act in instituting the system of oversight by the Authority of complaints against the police. Hale LJ set out in paragraphs 75 to 77 of her judgment in the Court of Appeal a definition of three of those purposes, in the following terms:

    "(1)  The primary purpose must be to secure proper behaviour by police officers, by ensuring that allegations of improper behaviour are fully investigated and any wrongdoers brought to book, either by prosecution or by disciplinary proceedings.

    (2)  That purpose can only be achieved by a process which is fair, and perceived to be fair, by both parties to the complaint, the complainant and the officer against whom the complaint is made. Proper behaviour is not secured or promoted by a disciplinary process which is arbitrary or unfair. Why keep to the rules if you may be punished anyway? Why make a complaint if it will be turned down anyway?

    (3)  The process must also be such as to promote public confidence in the police. It is hugely important in a democratic society that the great mass of the population who are inclined to be law-abiding should have the reassurance that their law enforcement agencies can be trusted to act properly or face sanctions if they do not."

I share the difficulty felt by Lord Rodger of Earlsferry in accepting this formulation and I should prefer to set out my own.

    78.  Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded. I therefore consider that the proper discharge of the functions of the Authority involves fulfilling its objectives of maintaining and enhancing public confidence in the police and the proper administration of police services by endeavouring to ensure that the following ends are achieved:

(a)  police officers who behave in a way which falls below acceptable standards are not exempt from sanction but are duly subject to criminal and/or disciplinary proceedings;

(b)  members of the public, in particular those who have a legitimate complaint against a police officer, can see that this is being done with a suitable degree of transparency and that there is no collusion in or tolerance of improper behaviour by officers;

(c)  the process is conducted in a manner which is fair both to complainants and to police officers.

As Lord Rodger of Earlsferry stated in his opinion, it is not the function of the Authority to secure proper behaviour by police officers, although the exercise of their functions may tend to have that effect. Nor is it to bring wrongdoers to book, which is for prosecuting or disciplinary authorities. To that extent accordingly I could not accept Hale LJ's description of the first purpose of the Authority, as set out by her in paragraph 75 of her judgment, although her second and third purposes are not dissimilar to those which I have formulated.

 
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