Frankson and Others v Home Office; Johns and another v Home Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Scott Baker |
| Judgment Date | 08 May 2003 |
| Neutral Citation | [2003] EWCA Civ 655 |
| Docket Number | Case No: B3/2003/0054 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 May 2003 |
[2003] EWCA Civ 655
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COLLINS, CBE)
lord Justice Pill
Lord Justice Scott Baker and
Mr Justice Wilson
Case No: B3/2003/0054
B3/2003/0731
Mr Philip Havers Q.C. (instructed by Lees Lloyd Whitley) for the Appellants
Mr Tim Owen Q.C. and Mr Matthew Ryder (instructed by Hickman & Rose and Birnberg Peirce) for the Respondents
Following complaints by prisoners at Wormwood Scrubs prison of assaults on them by a number of prison officers, the police carried out a criminal investigation. In the course of it a number of prison officers, as suspects, were interviewed under caution. In the result some prosecutions and some convictions did follow, but not in the cases with which this case is concerned. However, several of the prisoners have pursued civil claims against the Home Office in respect of their complaints. The issue in this appeal is whether those interviews under caution should be disclosed to the relevant claimants. The issue came before his His Hon Judge Collins, CBE in the Central London County Court, first in the case of Abbey v The Home Office on 3 May 2002. Judge Collins found in favour of disclosure, but gave permission to appeal to the Court of Appeal because of the number of other pending actions and possible claims in which the same point was likely to arise. The case of Abbey was, however, settled before the appeal was heard. The present case then came before Judge Collins on 13 December 2002. It raised the same point. Judge Collins again ordered disclosure, saying that the two judgments should be read together.
The Commissioner of Police, from whom disclosure is sought, has taken a neutral stance. So has the Home Office, who are the defendants in the civil actions. The appellants are three prison officers, Rowe in the case of the claim by Fryers, and Green and Davies in the case of the claim by Johns. Fryers and Johns are the respondents to the appeal. The appellants were joined in the proceedings for the purposes of resisting the applications for third party disclosure.
It is necessary to begin by looking at the court's power to order third party disclosure. Section 53 of the County Courts Act 1984 provides, so far as is material:
"(2) On the application, in accordance with rules of court, of a party to any proceedings….., a county court shall, in such circumstances as may be prescribed, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to any issue arising out of the said claim –
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order, ?
(i) to the applicant's legal advisers; or
(ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or
(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant."
There is a similar provision in section 34 of the Supreme Court Act 1981.
Section 54(1) expressly provides that a court is not to make an order under section 53 if it considers that compliance with it, if made, would be likely to be injurious to the public interest. Section 54(2) is the rule-making power.
The relevant Rule is C.P.R. 31.17. It provides:
"(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where –
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs."
The remainder of the rule is not relevant for the purposes of this appeal.
It was common ground before the judge that the interviews met the test of relevance in (3)(a) above. The issue was whether disclosure was necessary in the terms of (3)(b) and whether the judge should exercise the discretion, that was undoubtedly given by the opening words of paragraph (3), in favour of disclosure.
The appellants' argument on the facts runs thus. Prison officers are particularly vulnerable to the kind of accusations that have been made in the present case. Quite frequently allegations are made against prison officers by prisoners. Sometimes individual officers are identified; sometimes not. This may result in the police interviewing all the officers who were on duty at the relevant time. Prison officers invariably agree to assist the police in their investigations and to be interviewed. It is very much in the public interest that this assistance should continue. It is said that in the vast majority of cases complaints by prisoners do not lead to prosecution of prison officers and even where charges are preferred the conviction rate is very low. In the present cases, the prison officers were interviewed under caution but no charges were brought. Mr Havers Q.C, for the appellants, points out that prison officers are particularly vulnerable to unfounded allegations by prisoners and that things may be said in answer to questions by the police that could support a case that a prisoner later chooses to bring, for example that the officer questioned or a colleague was on duty at the particular time. There are others too in public sector employment who are in a similarly vulnerable position, for example immigration officers or care workers. When someone is interviewed under caution the questions are answered in circumstances of confidentiality and these prison officers were entitled to believe that their answers would not see the light of day except in the event of criminal proceedings. The words of the caution, so it is submitted emphasise this. These are:
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
The contrary argument for the prisoners is that they too are in an extremely vulnerable position and it is critical that any evidence supporting their claims should be available for the court to consider. No unnecessary hurdle should be put in the way of a prisoner who may have a perfectly good civil claim. This is particularly important bearing in mind many prisoners will start with credibility problems because of the very fact that they are prisoners and that they have criminal records. Little can be read into the Crown's decision not to prosecute, because criminal charges will only be brought if there is a good prospect of conviction. What the appellants said in interview may well turn out to be crucial to the success of a civil claim against the Home Office.
CPR 31.17 applies, as paragraph (1) makes clear, when disclosure is sought by a person who is not a party to the proceedings. Many and varied circumstances are envisaged. Examples that come readily to mind are records held by local authorities about children, police accident reports in road traffic cases and documents held by bodies such as the Health and Safety Executive, hospitals and so forth. It is important to emphasise that disclosure is sought against the Commissioner as a non-party to the proceedings and it is disclosure against non-parties to which C.P.R. 31.17 is directed. Had the appellants been defendants instead of, or in addition to, the Home Office the ordinary rules for disclosure between parties would have applied but the appellants could have applied to withhold disclosure or inspection under C.P.R. 31.1C.P. R. 31.19(1) provides that a person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.
The word 'only' in paragraph (3) emphasises that disclosure from third parties is the exception rather than the rule. Disclosure will not be routinely ordered but only where the conditions there specified are met. The first condition in (3)(a) is that the documents sought are likely to support the case of the applicant or adversely affect the case of one of the other parties. In other words they must have a potentially relevant bearing on one or more of the live issues in the case. The question is whether they are likely to help one side or the other. In Three Rivers District Council and Others v Governor and Company of the Bank of England (No.4) [2003] 1 WLR 210 Chadwick L.J, giving the judgment of the court, explored in some depth the meaning of the word 'likely' in this rule before concluding in para 32:
"In those circumstances, unless there were reasons which compelled a different conclusion, we would think it right to reject the submission that the work "likely", in the context of the threshold condition in rule 31.17(3)(a), means "more probable than not"; and to hold that the word has, in that context, the meaning "may well" which this court thought it should bear in rule 31.16(3)(a) and (b). We are not persuaded that there are reasons which compel a different conclusion. Indeed, it seems to us that the reasons which led this court to reach the...
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