R v Chief Constable of the West Midlands Police, ex parte Wiley ; R v Chief Constable of Nottinghamshire Police, ex parte Sunderland
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAUGHTON,LORD JUSTICE NOLAN,LORD JUSTICE NOURSE |
| Judgment Date | 23 July 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0723-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 1993 |
[1993] EWCA Civ J0723-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(Mr Justice Popplewell)
Before: Lord Justice Nourse Lord Justice Staughton and Lord Justice Nolan
MR J. GOMPERTZ QC and MR S. FREELAND (instructed by the West Midlands Police Authority) appeared on behalf of the West Midlands Police Authority
MR D. PANNICK QC (instructed by The Treasury Solicitor) appeared on behalf of the Police Complaints Authority
MR F. REYNOLDS QC and MR R. CLAYTON (instructed by Messrs White & Billingham, Wolverhampton) appeared on behalf of the Respondent Wiley
MR R. CLAYTON (instructed by Messrs Nelson, Johnson & Hastings, Nottingham) appeared on behalf of the Respondent Sunderland
MR J. GOMPERTZ QC and MR S. FREELAND (instructed by the County Solicitor, Nottinghamshire County Council) appeared on behalf of the Chief Constable of Nottinghamshire
On 8th May 1987 Mr Wiley was arrested in Wolverhampton and detained; on the following day he is said to have made a confession in a police interview, and was charged with robbery and shotgun offences. Six months later, in December 1987, he was released on bail. The prosecution subsequently offered no evidence at his trial, in January 1988. In August 1989 a complaint against the police was made on Mr Wiley's behalf; and in 1990 he commenced an action for damages against the Chief Constable of West Midlands.
In outline the case of Mr Sunderland is similar. He was arrested in Nottingham on 9th November 1991, following a fight in the street during which he struck a police officer in plain clothes. His case is that he was seriously assaulted at the police station. On returning from hospital, where his arm was x-rayed and put in plaster, he made a complaint under the police complaints procedure. He appeared for trial at Nottingham Crown Court in May 1992. In the event that trial was not concluded, and a re-trial was ordered. The prosecution then offered no evidence. Besides his complaint against the police, Mr Sunderland too is minded to commence an action for damages, in his case against the Chief Constable of Nottinghamshire. But as I understand it he has not yet done so.
The police complaints procedure, in the ordinary way, results in the accumulation of a file of documents. There has to be an investigation, conducted by a senior officer of the same or another police force; statements are taken from witnesses, who would naturally include the person making the complaint; those statements may refer to other documents, which are included in the file; and the investigating officer makes a report. When the investigation is supervised by the Police Complaints Authority, as happened in these two cases, and even when it is not, statute requires that a copy of the report be sent to the Chief Constable or the police authority, after the investigation has been concluded.
That gives rise to a problem if the complainant has also commenced a civil action for damages against the police, or is minded to do so. It is settled law, at any rate in this court, that in civil proceedings public interest immunity applies to the documents in the file: Neilson v. Laugharne (1981) 1 QB 736. But it does not follow automatically that any file with "Police Complaint" written on the cover is wholly covered by that immunity. First, the Chief Constable must decide, with the help of his legal adviser, what was the dominant purpose of the investigation: Peach v. Commissioner of Police (1986) QB 1064. It may turn out that this was not the enquiry into a complaint but something else. Secondly, there may be documents in the file which came into existence before the complaint was made or independently of it; public interest immunity does not attach to them.
Subject to those two points the Chief Constable is not obliged to disclose the file on discovery in a civil action, and indeed may not do so. Nor may the documents be put before the court, or shown to a witness in court; and a witness may not be asked what the contents of any of the documents were. About that there is no dispute.
What is contested is whether the Chief Constable may use the information contained in the documents in any other way to assist his case in civil proceedings. For example, the documents may reveal the names of witnesses and what they would say, information not previously known to the Chief Constable. Is he entitled to act upon that information by arranging for persons to be interviewed, and if appropriate called as witnesses? Or the documents may reveal a line of defence, such as that the complainant had drunk twelve pints of beer at the time when he says that he was innocently driving his car and was stopped and manhandled by the police. Is Counsel for the Chief Constable entitled to ask the complainant in cross-examination whether that was the case? The Code of Conduct of the Bar provides in paragraph 610(h)
A practising barrister … must not suggest that a witness or other person is guilty of crime fraud or misconduct … unless such allegations go to a matter in issue (including the credibility of the witness) which is material to his lay client's case and which (sic) appear to him to be supported by reasonable grounds.
The Chief Constables concede that the documents (i) cannot be used to assert a positive case, and (ii) cannot form the basis of cross-examination. But it will be necessary to consider whether the concession is rightly made, and whether a line can logically be drawn at that point. The same applies to the question whether information in the documents may be used for the purpose of drafting a pleading. On that topic para 606 of the Code of Conduct provides:
A practising barrister must not … draft any … pleading … containing (a) any statement of fact or contention (as the case may be) which is not supported by his lay client or by his brief or instructions.
This problem is apparently well-known to those who are minded to complain against the police and also to commence civil actions, or at any rate to their legal advisers. In consequence the Chief Constable in each of these cases was asked by the solicitors for Mr Wiley or Mr Sunderland to give an undertaking, not to use the documents or rely upon any information contained in them in the civil proceedings contemplated by their client. In each case the Chief Constable refused to give that undertaking.
Thereafter the two cases diverged. Mr Wiley declined to make any statement about his complaint to the investigating officer without such an undertaking. Apparently it was thereupon suggested to the Police Complaints Authority that the investigation could not proceed. The Authority agreed with that suggestion, and formally reached a decision dispensing with the requirement for an investigation. The result is that no police complaints file has come into existence in Mr Wiley's case. Nevertheless he has sought judicial review of the Chief Constable's decision not to give the undertaking requested. Before Popplewell J., who gave judgment on 16th December 1992, he succeeded. It was declared that the decision was unlawful.
Mr Sunderland similarly refused to make any statement to the officer investigating his complaint, since his request for an undertaking from the Chief Constable had been refused. But in his case the investigation did proceed, and presumably a file containing some documents has come into existence. He applied for judicial review of the Chief Constable's decision; and sought a declaration and an injunction against the use of the documents, or any information contained in them, in his proposed civil proceedings. He too succeeded before Popplewell J.
A declaration and an injunction were granted.
Both Chief Constables now appeal.
There were two other applications for judicial review considered by Popplewell J. at the same time. One was by
Mr Wiley against the Police Complaints Authority, in respect of its decision to dispense with an investigation of his complaint, following his refusal to make a statement in support of it. The other was a similar application by a
Mrs Johnson, who was complaining against Merseyside police. Both those applications failed, and there is no appeal in respect of those decisions. But Mr Pannick QC appears, as he did below, for the Police Complaints Authority. He supports the case of Mr Wiley and Mr Sunderland, and opposes the appeals of the Chief Constable.
The main issue
Until recent times public interest immunity, or crown privilege as it used to be called, was concerned with the disclosure of documents or the information contained in them; disclosure to persons not entitled to the documents or the information would not be enforced in legal process and was prohibited. By contrast anyone lawfully in possession of the documents or information was entitled to use them for his own purpose.
In that respect public interest immunity was similar to legal professional privilege. Manifestly a litigant is entitled to use the advice of his lawyer, and the lawyer is entitled to use information provided by his client. But there is this difference, that legal professional privilege can be waived, whereas in general at any rate public interest immunity can not.
It is now submitted on behalf of Mr Wiley and
Mr Sunderland, on the basis of cases recently decided in this...
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