AAA v A Chief Constable
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 14 February 2019 |
| Neutral Citation | [2019] EWHC 259 (QB) |
| Docket Number | Case No: HQ14X01432 |
| Court | Queen's Bench Division |
| Date | 14 February 2019 |
[2019] EWHC 259 (QB)
IN THE HIGH COURT OF JUSTICE
UPPER TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: HQ14X01432
The Claimant appeared in person
Mr W (instructed by Force Solicitor) for the Defendant
Hearing dates: 22–25 October 2018
OPEN JUDGMENT
The Honourable
Introduction
This is my open judgment which is for publication. For reasons which will become apparent an order has been made protecting the identity of the parties and others and the trial was heard in camera. There is also a closed judgment that is confidential to the parties which cannot be published.
This is a contractual claim for damages by AAA against the Chief Constable. The background is as follows. For a short time in 2XXX AAA was a confidential human intelligence source (‘CHIS’) for the Chief Constable's police force (‘the Force’). In April of year 2XXX AAA entered the Force's witness protection program (‘WPP’) because of real and genuine threats to his life from known criminals. He remains in the WPP. He claims damages from the Chief Constable for what he says has been the failure by the Chief Constable to pay him what was agreed between them under alleged contractual arrangements, and for other losses.
Hearing in private
Following submissions, at the outset of the hearing I ordered that the trial should be heard in private pursuant to CPR r 39(3). I said that I would keep the matter under review and would sit in open court if I was able to do so for any part of the trial. In the event, because of the subject matter of the trial, that was not possible. I said I would give reasons in my judgment for sitting in private, and this I now do.
On behalf of the Chief Constable Mr W submitted that the trial should be heard in private. He said that it was common ground between the parties that AAA remains at risk of serious harm from a man who I will refer to as X. As Foskett J recorded following a directions hearing on 11 April 2016:
“It is common ground between the parties to the case that any revelation of the details of the case or of the identity of the individuals concerned in it could have grave implications for the safety of those individuals, including the Claimant.”
X is a well-known criminal in XXX of England and is the person in relation to whom AAA was a CHIS. The Chief Constable believes that X and his associates are capable of inflicting serious harm or death on X, and indeed part of the evidence at the trial was of an Osman warning which the Force gave to AAA in 2XXX because of the risk posed by X. That is the reason why AAA remains in the Force's WPP in 2018.
Mr W submitted that if the case were to be heard in open court then the press would be likely to report it. He said if that occurred there could be a number of extremely serious consequences. He said that even if the press only reported, for example, that a former CHIS who went into hiding in 2XXX following threats from a notorious criminal was suing the Chief Constable in the High Court in a five day hearing, then X would readily be able to identify AAA as the Claimant and would know where he could be found during that five day period. Because AAA is in the WPP, the Chief Constable owes him a duty of care in relation to his safety. The Chief Constable's position is that if the trial were reported even in a limited way he would not sanction AAA's continued attendance at the trial because he would be at risk. Nor would he sanction his officers' attendance (to whom he also owes a duty of care) because they would also be at risk. Further, for them even to be seen in the vicinity of the court would jeopardise their continued deployment as officers involved with CHISs. Also, if AAA's identity were compromised in any way then the Chief Constable would likely insist on AAA assuming a new identity which would be disruptive and damaging for him. In all likelihood, it would require AAA to be relocated and a new set of police officer handlers to be appointed.
Whilst accepting that the deployment of CHISs, the use of undercover officers, and the workings of WPPs are all matters of public interest, Mr W said that the subject matter of this claim did not go beyond a private law contractual claim for damages and that there was nothing specific about this case which engages the public interest. Mr W accepted the principle of open justice and accepted that derogations from it have to be strictly justified. However, he said that the unusual facts of this case, and the very real risks to AAA and to the Force's officers, justified sitting in private. A witness statement from Mr XXX, a Force Solicitor, explains that screens would not provide sufficient protection because individuals could be readily identified from their voices. Mr W said that open justice could be served by the production of a suitably sanitised judgment that could be published.
This litigation has something of a history, and at earlier points AAA agreed that the trial would have to take place in private. However, before me he said that he had changed his mind and that he wanted a trial in open court. He said he wanted the public to know how he had been treated by the Chief Constable. He also said that at an earlier criminal trial in which he was a defendant (and was tried under his real name) his role as an informer had been revealed in open court. I expressed surprise at that submission, and Mr W was able to show by reference to Mr XXX's statement that whilst AAA's status as a CHIS had featured in the criminal trial, the court sat in camera whilst that evidence was given, or was referred to in submissions. Nothing had been said in public about AAA being a CHIS, and AAA's identity or status as a CHIS had not been compromised by the criminal trial.
I also heard submissions from Mr Sam Tobin of the Press Association, on behalf of the press. He submitted that because this case involved a claim for damages which would be paid out of public funds, there was a legitimate public interest in the claim which meant that the trial should be heard in public.
I begin by reminding myself that the openness of judicial proceedings is a constitutional principle long recognised by the common law: R (Guardian News and Media Ltd) v. City of Westminster Magistrates' Court (Article 19 intervening); Guardian News and Media Ltd v. Government of the United States of America [2013] QB 618. It is also a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights, which protects individuals from secret justice administered without public control and constitutes a means of preserving confidence in the courts. Making the administration of justice transparent helps to achieve the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the most fundamental principles of a democratic society: Stefanelli v San Marino (2001) 33 EHRR 16. Given that open justice is fundamental to the rule of law and to democratic accountability, it must only be departed from where a very clear case is made out that to do so is strictly necessary for justice to be done: Re Guardian News and Media Ltd [2016] 1 Cr App R 33.
CPR r 39.2(1) provides that the general rule is that a hearing is to be in public. CPR r 39.3 provides that a hearing or any part of it may be in private if:
“(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court considers this to be necessary, in the interests of justice.”
Having scrutinised them closely and applied the ‘strict necessity’ test, I was wholly satisfied for the reasons advanced by Mr W on behalf of the Chief Constable that it was necessary in order not to defeat the object of the hearing, and that it was necessary in the interests of justice, for the trial to be heard in private. It would have been impossible to have held the trial in public because that would have resulted in neither AAA nor the Chief Constable's officers being able to give evidence, as I have explained. That would have defeated the ends of justice. Also, as a public authority, I have duties under the Human Rights Act 1998 and Article 2 of the Convention, and I was satisfied on the evidence that there would be real risks to the life of AAA and the Chief Constable's officers had this trial been held in public.
It was for these reasons that I ordered that the trial should be held in private. As I have said, I kept the matter under constant review during the hearing but, in the event, it was not possible to hold any of the trial in open court because of the nature of the evidence. I have ensured that the principle of open justice is maintained as far as it can be by producing this open judgment.
Although a decision whether to sit in private is always fact sensitive, I note that the course I decided to take in this case (ie, a trial in private with a closed judgment and a sanitised open judgment) was the course commended by the Court of Appeal in An Informer v A Chief Constable [2013] QB 579, [2], which was a contractual and tortious claim for damages by an informer against a Chief Constable:
“The informer's claim for damages against the police was dismissed by Wyn Williams J after a trial of...
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