R Metropolitan Police Service (Claimant) The Chairman of the Inquiry Into the Death of Azelle Rodney (Defendant) (1) Susan Alexander (2) E7 (3) HM Revenue and Customs and Another (Interested Parties)

Hearing date: 11 October 2012

This is the judgment of the Court. On 10 June 2010 the Lord Chancellor established a public inquiry into the death of Azelle Rodney under section 1 Inquiries Act 2005. Its terms of reference are, "To ascertain by inquiring how, where and in what circumstances Azelle Rodney came by his death on 30 April 2005 and then to make any such recommendations as may seem appropriate".

The first public hearing, under the chairmanship of Sir Christopher Holland, was held on 6 October 2010. The Inquiry has been bedevilled by delays largely the consequences of statutory limitation on the disclosure of intelligence material. The Inquiry commenced hearing evidence on 3 September 2012 and after a month the present dispute again halted proceedings. It concerns the issue whether film footage taken from the air, showing Azelle Rodney's movements in the two hours before his death, should be disclosed to the legal team representing his mother, Susan Alexander, at the Inquiry, pursuant to rule 12(4) of the Inquiry Rules 2006 ("IR 2006"). This is the rolled up hearing of the claimant's application for permission to apply for judicial review of the Chairman's decision on 2 October 2012 to permit disclosure, with the review to follow should permission be granted.

On 30 April 2005 Mr Rodney was a rear seat passenger in a VW Golf motor car travelling along Hale Lane, London, when at 7.42 pm the car was "hard-stopped" by armed police officers employed by the Metropolitan Police Service ("MPS") which is the claimant in this application. One of the officers discharged eight shots with a carbine towards Mr Rodney at short range from the nearside of the car. Mr Rodney was hit by six of those shots and killed. The officer in charge on the ground was a Detective Inspector called, for the purpose of the surveillance operation of the car and its occupants, 'Silver'. Other commanders were Bronze and Gold. The other 14 armed officers are identified for the purpose of the Inquiry as E1 – E14; E7 fired the fatal shots. He has taken no part in the present review.

The MPS was in receipt of intelligence which remains out of the public domain. Its effect was that the occupants of the vehicle were in possession of a number of firearms including automatic weapons. Their intention was to carry out a robbery upon men in possession of class A drugs. In consequence of that intelligence, orders were given to place the vehicle in which Mr Rodney was travelling and its occupants under surveillance, to use armed police officers to stop the vehicle, and, ultimately, to stop the vehicle where and when it was stopped.

One of the issues of importance to Ms Alexander, the First Interested Party and the deceased's mother, is whether there was an opportunity, or a better opportunity, to stop the VW Golf and/or its occupants at any time before the hard-stop which resulted in Mr Rodney's death. This issue involves consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. Silver commander is due to give his evidence and to be questioned by Mr Thomas on behalf of the First Interested Party.

The VW Golf was under surveillance both on the ground and from the air. The surveillance from the air was performed by means of "a covert air surveillance platform" which produced about two hours of film footage. Susan Alexander was inaccurately informed that there was no aerial film footage. In or about June 2012 an expert instructed by the Inquiry, Mr Gary Gracey, viewed all two hours' footage including the moments preceding the stop and the stop itself ("the stop" which was filmed for two minutes). Mr Gracey concluded that he regarded only the evidence of the stop as relevant, but that footage required enhancement if it was to be of any value to the Inquiry. After a hearing before the Chairman on 20 June, held in the absence of the First Interested Party, it was agreed that the stop film would be disclosed.

On 13 June 2012 MPS made an application to the Chairman under section 19 Inquiries Act 2005 to restrict publication of the existence of the covert air surveillance platform and the footage which resulted.Section 19 provides:

" 19 Restrictions on public access etc

(1) Restrictions may, in accordance with this section, be imposed on–

(a) attendance at an inquiry, or at any particular part of an inquiry;

(b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry.

(2) Restrictions may be imposed in either or both of the following ways–

(a) by being specified in a notice (a "restriction notice") given by the Minister to the chairman at any time before the end of the inquiry;

(b) by being specified in an order (a "restriction order") made by the chairman during the course of the inquiry.

(3) A restriction notice or restriction order must specify only such restrictions–

(a) as are required by any statutory provision, enforceable Community obligation or rule of law, or

(b) as the Minister or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4).

(4) Those matters are–

(a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern;

(b) any risk of harm or damage that could be avoided or reduced by any such restriction;

(c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry;

(d) the extent to which not imposing any particular restriction would be likely–

(i) to cause delay or to impair the efficiency or effectiveness of the inquiry, or

(ii) otherwise to result in additional cost (whether to public funds or to witnesses or others).

(5) In subsection (4)(b) "harm or damage" includes in particular–

(a) death or injury;

(b) damage to national security or international relations;

(c) damage to the economic interests of the United Kingdom or of any part of the United Kingdom;

(d) damage caused by disclosure of commercially sensitive information."

The hearing of 20 June 2012 overtook the section 19 application. Instead, on 28 August 2012, the Chairman gave directions that "irrelevant" footage had been removed and no questions should be asked concerning the technical aspects of the air surveillance platform or the provenance of the footage that would be disclosed following the 20 June hearing.

On 24 September 2012 the claimant made a further application for a restriction order under section 19: (i) excluding from the Inquiry the public and the press (but not including the First Interested Party and her legal team) during any examination of Silver's ability to call up or control the "aerial asset" and (ii) excluding the public and the press ( including the First Interested Party and her legal team) while any evidence was given as to the capability of the aerial asset.

The application was resisted by counsel to the Inquiry, Mr Underwood QC, as unnecessary. There was, in his submission, no issue before the Inquiry which required MPS to make disclosure as to the nature of the aerial asset or its capabilities, since no-one was claiming that the two hour footage which preceded the stop film was relevant. The First Interested Party also resisted the application but on different grounds. Mr Thomas argued that since the Inquiry was concerned with the matters described in paragraph 5 above it was not possible to say (and had not been possible to say at the time of the Chairman's directions – paragraph 8 above) that the two hour footage was irrelevant. Mr Thomas applied for the variation of the directions previously given.

On 26 September 2012 counsel to the Inquiry submitted, in response to Mr Thomas's application, that it was "arguable" the two hour footage had become relevant. If that was so, a decision was required under rule 12(3) IR 2006 as to whether there should be limited disclosure "to a person who would not otherwise be permitted to see [the potentially restricted evidence]", namely the First Interested Party's legal team.Rule 12 provides:

" Disclosure of potentially restricted evidence

12.—(1) In this rule—

(a) "potentially restricted evidence" means any evidence which is in the possession of the inquiry panel, or any member of the inquiry panel, and which is the subject of a relevant application which has not been determined or withdrawn;

(b) "relevant application" means an application which is

(i) made...