Zaw Lin and Another v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 25 August 2015 |
| Neutral Citation | [2015] EWHC 2484 (QB) |
| Docket Number | Case No: HQ15X0311 |
| Court | Queen's Bench Division |
| Date | 25 August 2015 |
[2015] EWHC 2484 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: HQ15X0311
Gerry Facenna, Julianne Kerr Morrison, and, Nikolaus Grubeck (instructed by Leigh Day) for the Claimants
Anya Proops, and, Christopher Knight (instructed by instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Hearing date: 21 st August 2015
Approved Judgment
A. Introduction: Issues and facts
(i) The issue / preliminary matters
This case concerns the application by two defendants facing capital charges in criminal proceedings in Thailand for disclosure to them of personal data held by the Defendant, the Commissioner of Police for the Metropolis (" MPS"). The data is contained in a confidential report (" the Report") prepared by the MPS into a murder inquiry conducted in Thailand. The purpose of the Report was to enable the MPS to provide reassurance to the families of the victims about the investigation being conducted by the Thai authorities. The application is brought under section 7(9) of the Data Protection Act 1998 (" DPA 1998").
This matter has been brought before the Court on an urgent and expedited basis during the vacation. As of the present date the trial of the Claimants (who are the accused in the Thai criminal proceedings) in Thailand is ongoing having commenced in early July 2015. The prosecution has nearly completed presenting its case; the accused (the Claimants in these proceedings) will open their defence shortly and it is anticipated that the trial will continue until mid/late September 2015, when the court will adjourn to consider the evidence and arrive at verdicts. The decision is taken by a judge; there is no jury. I am told that the defence can tender evidence, which therefore includes any disclosure ordered as a result of these proceedings, until the end of their case.
In order to address certain procedural issues arising I convened a case management hearing on 19 th August 2015 and the substantive hearing was held on 21 st August 2015. Judgement is now being given upon an expedited basis. I indicated to the parties at the case management hearing on 19 th August 2015 that, having made enquiries myself by that stage and regardless of outcome, I would grant permission to appeal and that the Court of Appeal would hear any appeal very expeditiously in order that the final outcome of this case would be in time to enable any disclosure that was ultimately ordered to be assessed and placed before the Thai court, if that was considered appropriate. I took this view because the issues of both law and fact are complex, novel and difficult. The stakes are very high for both sides. For the Claimants they could hardly be higher: life or death. For the Defendant it has been urged upon me that an incursion by a court into the ability of the police, or of Ministers, to make promises of confidentiality to foreign authorities, could have substantial and adverse consequences for law enforcement and/or the fulfilment of public policy or security objectives.
In order to explain my reasoning it has been necessary in this judgment to record the arguments of the accused in the Thai proceedings. I should make clear at the outset of this judgment that, in setting out arguments made by the parties and in particular the Claimants about the Thai criminal investigation and the proceedings, nothing that I say is intended to express any view by this Court whatsoever on the merits of the issues arising in the Thai courts or upon the conduct of those proceedings by the authorities there.
On 19 th November 2014 each Claimant submitted a subject access request to the MPS under section 7(9) DPA 1998 (set out below at paragraph [72]). They each sought disclosure of material held by the MPS in connection with its review. The MPS accepts that, prima facie, it does hold information ("personal data") relating to the Claimants. However, it relied upon section 29 DPA 1998 (set out below at paragraph [74]) which permits access requests to be refused in certain defined circumstances relating to criminal law enforcement. In this case the MPS says that in preparing the Report: (i) it was processing the Claimant's personal data for purpose of family liaison which it submits is a legitimate part of crime enforcement; and (ii), it was proportionate on the facts to withhold the data, even in a death penalty case.
The MPS has confirmed that the total of the potentially relevant "personal data" is to be found in drafts of the final report and in one email from 2014. I shall refer throughout this judgment to this material generically as the "Disputed Information", but I also refer to the "Report" to indicate the final version of the Report prepared by DCI Lyons and his team.
With that introduction I turn now to the facts.
(ii) The basic facts: the murders
On 15 September 2014 two young British tourists, Hannah Witheridge and David Miller, were brutally murdered on the island of Koh Tao in Thailand. Hannah was also raped. The crimes made international news. The Claimants in this case — Zaw Lin and Wai Phyo — are Burmese nationals who were living in Thailand. They were arrested and charged by the Royal Thai Police ("RTP") with the murders of Hannah and David. The Claimants confessed to these attacks both during interviews with the police and then later during a video recorded demonstration of how they acted before police officers. Later they were taken to the scene of the murders where they re-enacted the attacks this time with the world's media in attendance. Later on the Claimants alleged that the confessions had been tortured out of them and the confessions have now been retracted. They have subsequently complained of the conduct of the prosecution and by the courts and they allege they cannot obtain a fair trial. If convicted the Claimants face the death penalty and indeed this is actively sought by the prosecution. The incident, but also the misgivings about the handling of the prosecution arising out of the Claimants allegations, has received worldwide coverage in the media. For obvious reasons the case is one of great sensitivity to the Thai authorities.
(iii) The deployment of the DCI Lyons of the MPS to Thailand and the concerns expressed by the MPS about confidentiality
The misgivings raised were sufficient for the Prime Minister to engage in discussion with the Prime Minister of Thailand with the consequence that the two reached agreement that The Commissioner of Police for the Metropolis (MPS) would send a team led by a senior officer to Thailand to conduct an independent inquiry. That senior officer was DCI Lyons. The legal basis for this cooperation was section 26 Police Act 1996. This empowers a police authority to provide advice and assistance to foreign police authorities and it includes a power to send police officers on a temporary basis to a third country to engage with such foreign authorities. The power can only be exercised with the express authority of the Secretary of State subject to such conditions as the Minister might consider appropriate.
In the present case the authority granted by the Minister took account of the fact that Thailand maintained the death penalty and that in the absence of assurances about the possible punishment that might be imposed at the end of the trial the officers assigned to go to Thailand were to undertake, in essence, a listening or observer role. The authority emphasised the need to avoid " straying in the area of advice and support". Evidence before the Court included that from Ms Cressida Dick, an Assistant Commissioner with the MPC seconded to the Foreign Office but at the time an Assistant Commissioner responsible for Specialist Crime and Operations. She has explained that because assurances about the death penalty were not forthcoming "…the s26 authority was prepared on the basis that the initial stage of his [DCI Lyons's] deployment would be comprised of observational work which would serve the family liaison function, and the wider needs of the families".
In paragraph 15 of her witness statement Ms Dick has explained that "… the Commissioner of the RTP had sought and obtained express agreement from DCI Lyons at the outset that his observations of the deployment, as set out in the Report, would only be shared with the Miller and Witherbridge families, and would not be disclosed any further".
There are three further points which arise from this evidence. These are: that agreements of this sort are routine; that they are considered to be "essential"; and, that without them the engagement would simply not occur. The Assistant Commissioner thus explains that in her experience "… agreements of this kind are commonplace and essential where foreign governments and policing authorities provide us with access to their information, and vice versa, whether on an ad hoc or routine basis. I was content that DCI Lyons's agreement was wholly appropriate, and it is my view that without such agreement, it would not have been possible for DCI Lyons's team to achieve any of their objectives".
The purpose of the engagement was therefore not that the MPS could conduct its own investigation. Further, because the MPS will not, as a matter of as a matter of settled policy, assist foreign authorities to pursue investigations where there is a risk of the imposition of the death penalty, the purpose of the inquiry was also not to enable the MPS to provide advice to the Thai authorities. In further consequence the Report has not been provided to the Thai authorities.
Nonetheless as is evident from the documents that I have read, the Thai...
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