[COURT OF APPEAL]

REGINA v. CHIEF CONSTABLE OF WEST MIDLANDS, Ex parte WILEY

REGINA v. CHIEF CONSTABLE OF NOTTINGHAMSHIRE, Ex parte SUNDERLAND

Practice - Discovery - Public interest immunity - Complaints against police - Police refusal to undertake not to use complaints procedure documents or rely on information in them in any civil proceedings - Complainants refusing to make statements - Whether public interest immunity prohibiting any use of documents in connection with civil proceedings - Whether police wrong not to give undertakings

The first applicant was arrested, detained and charged with robbery and shotgun offences. At his trial the prosecution offered no evidence. In August 1989 he made a complaint against the police and in 1990 he commenced an action for damages against the chief constable. The second applicant was arrested following a street fight during which he had struck a plain clothed police officer. He claimed that he was seriously assaulted at the police station and made a complaint to that effect. Each applicant declined to make any statements under the police complaints procedure without an undertaking from the police that documents which came into existence for that purpose would not be used, and information contained in them would not be relied upon, in any civil proceedings commenced or contemplated by him. In each case the chief constable declined to give any such undertaking. Each applicant applied for judicial review by way of, inter alia, a declaration that the chief constable's decision had been unlawful and an injunction restraining the chief constable from making use of the documents in the civil proceedings. Popplewell J. granted the declarations sought and, in the second case, the injunction.

On the chief constables' appeals: -

Held, dismissing the appeals, that public interest immunity prohibited both the disclosure in civil proceedings of documents created for the purpose of the investigation of a complaint under the police complaints procedure and also the use of any information contained in them in or in connection with civil proceedings; and that, accordingly the chief constables had been wrong not to give the undertakings sought and could not use the documents or any information in them in any way to assist their cases in the civil proceedings commenced or contemplated by the applicants (see post, pp. 126B-D, 128A-B).

Neilson v. Laugharne [1981] Q.B. 736, C.A.; Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 All E.R. 617, C.A. and Halford v. Sharples [1992] 1 W.L.R. 736, C.A. applied.

Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, H.L.(E.) considered.

Reg. v. Commissioner of Police of the Metropolis, Ex parte Hart-Leverton, The Times, 8 February 1990, D.C. disapproved.

Decision of Popplewell J. affirmed.

The following cases are referred to in the judgments:

Coventry Newspapers Ltd., Ex parte [1993] Q.B. 278; [1992] 3 W.L.R. 916; [1993] 1 All E.R. 86, C.A.

Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973] 2 All E.R. 1169, H.L.(E.)

English & American Insurance Co. Ltd. v. Herbert Smith [1988] F.S.R. 232

Halford v. Sharples [1992] 1 W.L.R. 736; [1992] 3 All E.R. 624, C.A.

Hehir v. Commissioner of Police of the Metropolis [1982] 1 W.L.R. 715; [1982] 2 All E.R. 335, C.A.

Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 All E.R. 617, C.A.

Neilson v. Laugharne [1981] Q.B. 736; [1981] 2 W.L.R. 537; [1981] 1 All E.R. 829, C.A.

Peach v. Commissioner of Police of the Metropolis [1986] Q.B. 1064; [1986] 2 W.L.R. 1080; [1986] 2 All E.R. 129, C.A.

Reg. v. Bromell (unreported), 13 May 1992, C.A.

Reg. v. Commissioner of Police of the Metropolis, Ex parte Hart-Leverton, The Times, 8 February 1990, D.C.

Reg. v. Secretary of State for the Home Department, Ex parte Anderson [1984] Q.B. 778; [1984] 2 W.L.R. 725; [1984] 1 All E.R. 920, D.C.

Solicitors, In re A Firm of [1992] Q.B. 959; [1992] 2 W.L.R. 809; [1992] 1 All E.R. 353, C.A.

The following additional case was cited in argument:

Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624; [1942] 1 All E.R. 587, H.L.(E.)

APPEALS from Popplewell J.

By a notice of motion dated 12 July 1991 the applicant, Kelvin Raymond Wiley, sought judicial review by way of (i) a declaration that the Chief Constable of the West Midlands Police, by his decision on 20 March 1991 refusing to give undertakings in relation to documents created in the course of a police complaints investigation following the applicant's complaint of 17 August 1989, had acted unlawfully; (ii) an order of certiorari to bring up and quash that decision; and (iii) injunction restraining the chief constable from (a) using those documents for any purpose in civil proceeding, brought by the applicant (save for the purpose of identifying those documents as being subject to public interest immunity on discovery), and (b) from relying on any information obtained from those documents in those proceedings. On 16 December 1992 Popplewell J. granted the declaration sought.

By a notice of motion dated 11 December 1992 the applicant, Tony Sunderland, sought judicial review by way of (i) a declaration that by his decision of 4 November 1992 the Chief Constable of Nottinghamshire Police had acted unlawfully in refusing to give an undertaking, in relation to documents created in the course of a police complaints investigation following the applicant's complaint of 9 November 1991; (ii) an order of certiorari to bring up and quash that decision; and (iii) injunctions restraining the chief constable from (a) using those documents for any purpose in the proposed proceedings, to be brought against him for false imprisonment, malicious prosecution and assault (save for the purpose of identifying those documents as being subject to public interest immunity on discovery), and (b) for relying on any information obtained from those documents in the proposed proceedings. On 16 December 1992

Popplewell J. granted the declaration sought and an injunction in the terms sought at (iii)(a).

By notices of appeal dated 13 January 1993 and 12 January 1993 respectively the chief constables appealed on the grounds that the judge was wrong in law (1) in holding that the chief constables had acted unlawfully in refusing to give the undertakings and should have held that the chief constables were acting lawfully; and (2) in failing to follow the Divisional Court decision in Reg. v. Commissioner of Police of the Metropolis, Ex parte Hart-Leverton, The Times, 8 February 1990.

The facts are stated in the judgment of Staughton L.J.

Jeremy Gompertz Q.C. and Simon Freeland for the chief constables.

Frederic Reynold Q.C. and Richard Clayton for Mr. Wiley.

Richard Clayton for Mr. Sunderland.

David Pannick Q.C. for the Police Complaints Authority.

23 July. The following judgments were handed down.

STAUGHTON L.J. On 8 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 the West Midlands Police.

In outline the case of Mr. Sunderland is similar. He was arrested in Nottingham on 9 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 retrial 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 Police. 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] Q.B. 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] Q.B. 1064. It may turn out that this was not the inquiry 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 12 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:

"A practising barrister . . . (h) 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 paragraph 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 and 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 16 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 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 constables.

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 court, that public interest immunity has a different effect under the police complaints procedure: it prohibits use of the documents or the information contained in them for any purposes other than those for which they were obtained or made. Thus they can be used for police disciplinary proceedings or for the prosecution of crime; but not for or against the chief constable in civil proceedings.

Counsel have been unable to refer us to any case where public interest immunity has been held to have that effect outside the context

of police complaints. And there is a passage in the speech of Lord Cross of Chelsea in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405 which supports the contrary view.

Practical considerations: (i) in favour of the new restriction

It is said that a chief constable would have a considerable advantage over his opponent in civil litigation if he were allowed to use (but not disclose) knowledge of what is in the police file. Secondly, it is said that people who might make complaints are for that reason deterred from doing so. Or at any rate having made a complaint they are unwilling to support it with a statement.

As to the first of those considerations, it is accepted that there is some advantage to the chief constable if he can use knowledge of what is in the file. The advantage is difficult to quantify in general terms, and I am somewhat sceptical as to its extent. After all, the rules of civil procedure as to pleadings and discovery are designed to inform each party of the case he has to meet. The main point, as was agreed in the course of the argument, is that the chief constable will or may learn the names and addresses of witnesses previously known only to the plaintiff. (He can ascertain the names of some witnesses, such as police officers and others, without using the file, if he simply follows the same route as that taken in the complaints investigation.) It is also said that a consideration of the file will enable the chief constable to make an appropriate offer in settlement at an early stage, with a greater degree of knowledge than may be possessed by his opponent.

As I have said it is conceded, in my opinion correctly, that the chief constable will in general have some advantage. But the degree of advantage is difficult to quantify. Unless the decision of Popplewell J. is right, that is the price to be paid by someone who wishes to pursue both a civil action and a complaint against the police.

Secondly, there is the question whether potential complainants will be discouraged or deterred if they know that information which they give may be used (but not disclosed) by the chief constable in defence of a civil action. They already have to face the prospect that the file may be used in disciplinary or criminal proceedings. That in itself may deter some. Will this additional hazard deter others?

On that topic we have been referred to the Triennial Review of the Police Complaints Authority for 1988-1991. After referring to the law as it was thought to be before the decision of Popplewell J., it continues, in paragraph 4.5:

"In our view this gives the police an advantage over the plaintiff which is not insubstantial - and which results in plaintiff/complainants refusing to co-operate with the complaints procedures until after their civil claim for damages has been heard and settled. This is a serious matter because it may deprive the police of any reasonable chance to enforce discipline on an officer if, in fact, he has misconducted himself."

Once it is accepted that a civil plaintiff will be at somedisadvantage, whether great or small, the result envisaged by the Police Complaints Authority will follow with increasing frequency. Solicitors and counsel will advise him not to pursue his complaint against the police, or else to seek the kind of undertakings that were sought by Mr. Wiley and

Mr. Sunderland. Indeed it seems that the cognoscenti among lawyers are already giving that advice. It is no hardship for the plaintiff not to pursue his complaint against the police, since the Police Complaints Authority cannot (so far as we are aware) afford any remedy that will benefit him. But it is a matter of public concern if potential complainants are deterred in that way.

Practical considerations: (ii) against the new restriction

The major point under this head is that the chief constable will have to employ two separate lawyers, or teams of lawyers. Whether or not his legal department is involved during the investigation of the complaint, he will need advice on discovery in the civil action, which will require consideration of the complaint file. It is said that a separate lawyer will be required to deal with other aspects of the civil action. But some police forces employ only one solicitor; and in any force the head of the legal department is responsible for supervising members of his staff.

Various solutions to the problem have been suggested. First, there could be an information barrier (also known as a Chinese wall) erected between those who have to consider the file and those who are not allowed to use the information in it. But there is, on the authority of this court, doubt whether save in a very special case an impregnable wall can ever be created, and the view that only in very special cases should an attempt be made to do so: see In re A Firm of Solicitors [1992] Q.B. 959, 971.

Secondly, Mr. Pannick submitted that chief constables and those that they employ will act in good faith, and that no information barrier is necessary. The same view was, I think, put forward for Mr. Wiley and Mr. Sunderland. But there may not always be such confidence in the integrity of the police, particularly in a complaints context. It is easy to suppose that in other cases there will be loud assertions that justice must be seen to be done, and that an impregnable information barrier is required.

Thirdly, police forces sometimes employ outside solicitors to defend legal actions. It is said that this can be done when the complaints procedure is invoked at the same time as a civil action, although presumably the advice on discovery would still be handled by an in-house lawyer.

There was some discussion of the principle that everyone is entitled to uninhibited access to his legal adviser: cf. Reg. v. Secretary of State for the Home Department, Ex parte Anderson [1984] Q.B. 778. I do not find that principle helpful. The chief constable is by statute required to receive the report of the investigation. Manifestly he may show it to his lawyer for advice on discovery. If he is not entitled to use it in the civil action, he may still show it to his lawyer, but the lawyer may not use it.

There is a precedent for the law requiring litigants or their legal advisers not to use information in their possession. That has happened in cases like English & American Insurance Co. Ltd. v. Herbert Smith [1988] F.S.R. 232, where privileged information of one party innocently comes into the possession of his opponent. But even then the order only restrained making overt use of the information, and not merely having it in mind. I would regard that as not altogether a happy solution, but the best that could be found in the circumstances short of requiring a party to dismiss his lawyer and find another.

The other practical consideration relied on against imposing a restraint on the use of information in these cases is that it is wasteful. The chief constable or his staff will have to investigate the facts all over again, with a view to assembling precisely the same material as he already has in the complaint file. Police witnesses may perhaps not be surprised when they are asked the same questions and to identify the same documents a second time; but civilian witnesses may find it irksome if not absurd.

I do not find a clear preponderance, one way or the other, between the practical considerations in favour of a restraint on the use of information and those against it. The purity of the stream of justice must never, in theory, be stained by soil on the smallest slope at one end of the level playing field. But in practice that can sometimes only be avoided by expense and inconvenience which are disproportionate to the objective sought.

The law

Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405 was concerned with information acquired by the Customs and Excise from other traders either voluntarily or in the exercise of compulsory powers. The Court of Appeal had held that the information was privileged because it was given in confidence. That view was rejected by the House of Lords. Lord Cross of Chelsea said, at p. 433:

"'Confidentiality' is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest."

Later he said, in upholding the claim for public interest immunity, at p. 434:

"No doubt [the information] will form part of the brief delivered to counsel for the commissioners and may help him to probe the appellants' evidence in cross-examination; but counsel will not be able to use it as evidence to controvert anything which the appellants' witnesses may say."

I cannot find any hint in the report, or in the printed cases that were lodged in the House of Lords, to show that the use that might be made of information subject to public interest immunity was in issue. And the faint recollection which I have, after 20 years, that the topic was touched on in argument is of no value. But one is not to suppose that Lord Cross would have said what he did unless he was confident that it was right. Indeed it reflected the orthodox view of privilege or immunity which I have already mentioned.

Next there is Neilson v. Laugharne [1981] Q.B. 736. That case was concerned with discovery. So the reason of the decision cannot be anything to do with the use of material in the complaint file by the chief constable or his advisers. But there are dicta which bear on the point, not all in the same direction. Oliver L.J. said, at p. 752:

"Now although it cannot, as Mr. Somerset Jones points out, be contended here that statements made to the investigating officer in pursuance of his inquiries under section 49 of the Police Act 1964 are made under any assurance of confidentiality, it does seem to me that nevertheless the same principle applies. The statements are volunteered for a particular purpose, namely, the statutory inquiry.

No doubt the consequence is accepted, as it must be, that the inquiry may lead to a prosecution or to a disciplinary inquiry in which the maker of the statement may be called to give evidence of some or all of the matters contained in his statement and that the statement may, therefore, to this extent fall to be used if such proceedings ensue. But I do not think that it follows from that that disclosure of the statements for the quite alien purpose of use in civil litigation would not inhibit those whose co-operation is required if the inquiry is to be sensibly and usefully conducted. And it is this which, as it seems to me, is the critical test."

Later, Oliver L.J. said, at pp. 753-754:

"Finally, there is the position of the complainant himself. Mr. Somerset Jones, in the course of his argument, stressed the unfairness of a position in which, in effect, the defendant got a proof of the plaintiff's evidence in advance whilst he was deprived of the opportunity of seeing the defendant's. But this seems to me to be an argument in favour of, rather than against, the protection which is sought. There is no compulsion upon the complainant to co-operate in the inquiry. Having made his complaint, he may refuse to give a statement to the investigating officer and he is, I should have thought, very much more likely to do so if he thinks that any statement which he makes may be quoted against him in any civil proceedings which he has in contemplation. If, however, these statements are protected from disclosure in any proceedings, that consequence will be avoided. If public policy prevents disclosure, it prevents it, in my judgment, in all circumstances except to establish innocence in criminal proceedings. It is not like legal professional privilege which is the personal right of the party entitled to it and can be waived: Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388, per Lord Simon of Glaisdale, at p. 407, and per Lord Salmon, at p. 412. As a consequence, therefore, although no doubt the complainant's statement may be included in counsel's brief and may form the basis of cross-examination, it cannot be used as evidence to controvert anything the complainant's witnesses may say: Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 434, per Lord Cross of Chelsea. Thus, it seems to me that, here again, the protection sought in this case would assist the proper carrying out of the statutory purpose if it were allowed and impede it if it were refused."

On the one hand it can be said that the judgment is concerned with disclosure and not with use, and that it accepts the dictum of Lord Cross in the Alfred Crompton case [1974] A.C. 405, 434. But against that there is the reference to "the quite alien purpose of use in civil litigation."

In Hehir v. Commissioner of Police of the Metropolis [1982] 1 W.L.R. 715 the question was whether the plaintiff could be cross-examined on his statement in the complaint investigation, for which immunity had been claimed by the defendant on discovery. It was held that immunity could not be waived by him. But Lawton L.J. said, at p. 719: "The defendant's counsel has had the plaintiff's statement in his brief because it is in the possession of the defendant." Later he quoted with apparent approval the second passage from the judgment of Oliver L.J. which I have set out.

Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 All E.R. 617 was again concerned with discovery. The issues appear in the main as to have been whether the plaintiff's own statement and transcripts of disciplinary proceedings were in a different category from complaint documents generally, and whether immunity could be waived by the maker of a statement. But there are important dicta in the judgment of Bingham L.J. Reciting the case against disclosure, he said, at p. 622:

"It was therefore desirable in the public interest that statements made to the appropriate authority investigating a complaint against a police officer should not be liable to be produced or disclosed or referred to in any proceedings save disciplinary or criminal proceedings officially brought against the police officer in question. To hold otherwise would frustrate the statutory purpose of an investigation under the Act."

That reasoning may perhaps be confined to disclosure rather than use. But then there are these important passages, at p. 623:

"The second suggested distinction is that, whereas in Neilson v. Laugharne there had been no disciplinary hearing and no criminal prosecution, here there have been two disciplinary hearings at each of which the complainant has attended, given evidence, been cross-examined and heard the evidence of other witnesses. Accordingly, it is said, the statements have lost the confidentiality they had once had and there is no surviving public interest to protect. I do not think this is a valid point of distinction either. The public interest which the court upheld in Neilson's case was not based on confidentiality (see . . . [1981] Q.B. 736, 747, 751 per Lord Denning M.R. and Oliver L.J.), but on the need to reassure informants that statements would not be usable for any but section 49 purposes. This need remains as strong after disciplinary proceedings as before, perhaps even stronger. Statements do not in my view lose the immunity upheld in Neilson's case simply because proceedings contemplated when the statements were made in fact occur. . . .

"On these grounds I would allow the first defendant's appeal and dismiss the plaintiff's cross-appeal. I would, however, add this. Where a litigant asserts that documents are immune from production or disclosure on public interest grounds he is not (if the claim is well founded) claiming a right but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation. This does not mean that in any case where a party holds a document in a class prima facie immune he is bound to persist in an assertion of immunity even where it is held that, on any weighing of the public interest, in withholding the document against the public interest in disclosure for the purpose of furthering the administration of justice, there is a clear balance in favour of the latter. But it does, I think, mean: (1) that public interest immunity cannot in any ordinary sense by waived, since, although one can waive rights, one cannot waive duties; (2) that, where a litigant holds documents in a class prima facie immune, he should (save perhaps in a very exceptional case) assert that the documents are immune and decline to disclose them, since the ultimate judge of where the balance of public interest lies is not him

but the court; and (3) that, where a document is, or is held to be, in an immune class, it may not be used for any purpose whatever in the proceedings to which the immunity applies, and certainly cannot (for instance) be used for the purposes of cross-examination."

No reference was made in the judgments to the Alfred Crompton case [1974] A.C. 405. But here there is emerging a doctrine which prohibits not merely the production of documents in civil proceedings, but also the use of information contained in those documents.

The process was carried a stage further in Halford v. Sharples [1992] 1 W.L.R. 736. There an assistant chief constable applied for discovery of police complaints and disciplinary files, which she herself had previously had in her charge. The application failed. It was evidently accepted on behalf of the defendant that there would be restrictions on the use which he could make of the documents, if disclosure to the plaintiff were refused on the ground of public interest immunity. Thus Sir Stephen Brown P. said of counsel for the chief constable, at p. 745:

"He acknowledged that in the case of at least some of the particulars furnished by the chief constable information taken directly from the complaints and disciplinary files had been used. He acknowledged that this was improper and could not be relied upon in the course of the substantive proceedings by the chief constable if the files were held to be the subject of public interest immunity. What was 'sauce for the goose was sauce for the gander.'"

Later, at p. 746:

"It has been accepted in argument by all parties that if the ruling of the Employment Appeal Tribunal is upheld, then it will also have an effect upon the position of the chief constable in the sense that he will be unable to make use of the files for his own part. This would seem to mean that he would have to amend his particulars to some extent, or that the applicant would be able to move to strike out a number of the particulars. Despite the careful and persuasive argument advanced by Miss Lang, I consider that there is an overriding public interest in maintaining the integrity of the police complaints and disciplinary files. In my judgment this court is bound by the decisions in the Neilson and Makanjuola cases. The particular position of the applicant [Miss Halford] as a member of the Merseyside Police Force does not alter the essential character of the complaints and discipline files. The reasoning of Oliver L.J. in the Neilson case, to which I have referred, applies in full measure to these files. They should not be opened and used in the course of the proceedings before the industrial tribunal. The effect of the decision will be binding upon all parties. I would therefore dismiss the cross-appeal of the applicant."

Butler-Sloss L.J. said, at pp. 771 - 772:

"In Reg. v. Commissioner of Police of the Metropolis, Ex parte Hart-Leverton The Times, 8 February 1990, Nolan J. accepted that 'it has been settled in law' since Neilson that papers relating to the disciplinary hearing of the police officer involved, police reports, statements, documents and correspondence for the purpose of the disciplinary inquiry were subject to public interest immunity. (See also Hehir v. Commissioner of Police of the Metropolis [1982]

1 W.L.R. 715, 721, per Lawton L.J.) I agree, but in my view it goes further. If the principle enunciated in the judgments of Oliver L.J. and Bingham L.J. is to be followed, all documents which depend upon, refer to or relate to complaints and discipline, whether reports, correspondence, memoranda or notes between police officers, as well as statements or other evidence, have to be protected and consequently excluded. To use or produce the file in civil litigation is to deviate from the purpose as explained by Oliver L.J."

Later, after referring to the judgment of Bingham L.J. in the Makanjuola case, she said, at p. 774:

"The consequences of the rule, which appear from the above passage, do not appear to have been sufficiently considered in the present voluminous and somewhat chaotic proceedings. The effect of class immunity is to close the file completely for the purposes of the external or alien proceedings in the sense that none of the parties may rely on anything contained within it, and to prohibit the use of the documents by any party."

Ralph Gibson L.J. dissented.

It seems to me that whatever was said in that case as to the use of documents, as opposed to disclosure, was not part of the issue that had to be decided - and indeed had been conceded on behalf of the chief constable. Even his pleading of particulars extracted from the complaint file was not the subject of a formal ruling; as Butler-Sloss L.J. said, it was not before the Court of Appeal.

We were also referred to a case in the Criminal Division of the Court of Appeal, Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278. Lord Taylor of Gosforth C.J. said, at p. 290, that the public interest immunity of police complaints material

"is not, or at least not principally, confidentiality based. Rather . . . it is intended to reassure informants that their statements will only be used for the investigation of complaints and for such criminal or disciplinary proceedings as directly flow."

Meanwhile there had occurred the only case which is directly on the point that arises in this appeal: Reg. v. Commissioner of Police of the Metropolis, Ex parte Hart-Leverton, The Times, 8 February 1990. That was a decision of the Divisional Court, comprising Watkins L.J. and Nolan J. It too arose out of the refusal of the commissioner to give an undertaking that he would not use information contained in the complaint file to defend a civil action against him.

Halford v. Sharples [1993] 1 W.L.R. 736 had not at that time been decided, and it seems likely that the argument was rather less elaborate than it has been before us. The court held that the commissioner had not acted unlawfully, relying principally on what was said by Lord Cross in the Alfred Crompton case [1974] A.C. 405, 434, and on the practical difficulties which would otherwise arise for chief constables.

There is further support for the case of the chief constables in Reg. v. Bromell (unreported), 13 May 1992.

Conclusion

As was said at an early stage of this judgment, it is necessary to consider whether concessions made on behalf of chief constables in these

and earlier cases were correct. It is conceded that information in a complaints file (i) cannot be used to assert a positive case, (ii) cannot form the basis of cross-examination, and (iii) cannot be justification for a pleading (if that is different from (i) above). If public interest immunity prohibits use in civil proceedings, those concessions are right but do not go far enough. If on the other hand the prohibition is only on disclosure, they are not justified - unless it be thought in a particular case that a pleading or the form of a question implicitly amounts to disclosure. I mention this point because the applicants say that there is no logic in the chief constables' dividing line. I agree; one way or another, the dividing line must be somewhere else.

There is in my opinion no authority binding us to hold that public interest immunity in a police complaints case extends to use of information in civil proceedings as well as disclosure of documents. If it does, that seems to me an extension of existing doctrine as to privilege and immunity in civil cases. But I must recognise that eminent judges have adopted that view in plain terms. It would not in my judgment be right for this court to differ from them, as I cannot be satisfied that they were wrong to develop the law in this way. So I would dismiss these appeals.

NOLAN L.J. I agree that these appeals must be dismissed.

The reason why public interest immunity from disclosure has been held to attach to documents relating to or resulting from an inquiry into complaints against police officers is that the disclosure of the documents would be likely to impede the carrying out of such inquiries, and thus to impede the carrying out of the statutory purpose for which the documents were brought into existence: see Neilson v. Laugharne [1981] Q.B. 736, 752f, per Oliver L.J. At the time of that decision it was evidently assumed that the carrying out of the statutory purpose would not be impeded by a police authority making use of the documents when preparing and conducting its defence to civil proceedings brought by the complainant. This, I think, is plainly implicit in Oliver L.J.'s remark later in his judgment, at p. 753g, that "no doubt the complainant's statement may be included in counsel's brief and may form the basis of a cross-examination." In the following year it was held in Hehir v. Commissioner of Police of the Metropolis [1982] 1 W.L.R. 715 that the plaintiff could not be cross-examined on the statement which he had made for the purposes of the complaints inquiry, but it was accepted that the defendant's counsel would have the statement in his brief "because it is in the possession of the defendant:" see perLawton L.J., at p. 719. In Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 All E.R. 617 (decided on 16 March 1989), where the plaintiff sought unsuccessfully to obtain disclosure of documents (including her own statement) made in the course of a complaints inquiry, it was held that the documents

"may not be used for any purpose whatever in the proceedings to which the immunity applies, and certainly cannot (for instance) be used for the purposes of cross-examination:" see per Bingham L.J., at p. 623.

Thus far, the authorities did not deal with the question to what extent a defendant police authority could properly make use outside court of information resulting from the inquiry and contained in the documents,

beyond apparently accepting that, for better or for worse, that information would be within the knowledge both of the defendant police authority and of its legal representatives. In Reg. v. Commissioner of Police of the Metropolis, Ex parte Hart-Leverton The Times, 8 February 1990, the defendant commissioner conceded, as have the defendant chief constables in the present case, that statements taken in the course of a complaints inquiry could not be tendered in evidence, could not be used to assert a positive case and could not form the basis of cross-examination, but refused to give wider undertakings in substantially the same terms as those sought by the applicants in the present case. The Divisional Court upheld his refusal, for the reasons which I gave in a judgment with which Watkins L.J. agreed. I said:

"Neither the respondent nor his legal advisers can or should exclude from their minds in contesting the case the information derived from the complaints inquiry. They are bound to keep it in mind and thus to use it in a sense, if only to ensure that excluded material is not put before the court. By doing so, they may help or they may hinder the respondent's case. The guiding principle is simply that they should not seek to introduce the material directly or indirectly into the case."

That is the line which the appellant chief constables seek to hold before us. In the present case, however, unlike Hart-Leverton's case, the applications are made by applicants who have refused to take part in the complaints inquiry except on the basis that the undertakings are given, arguing that to do so would place them at an unacceptable disadvantage in their civil litigation. In this they are supported by the Police Complaints Authority on whose behalf Mr. Pannick tells us that the use by chief constables of complaints investigation material in preparing their defence "has a very detrimental effect on the important public interest of speedy and effective investigations into alleged police misconduct," and quotes the passage from the authority's Triennial Review for 1988-1991 which Staughton L.J. has cited. This seems to me to make it plain beyond argument that the line drawn in Ex parte Hart-Leverton cannot be held. The assumption underlying Oliver L.J.'s original dictum about the material to be included in counsel's brief cannot be sustained. Even the limited use of the complaints file which the chief constables seek to preserve is evidently tending to defeat the purpose for which the immunity from disclosure was created, and cannot therefore be allowed to continue.

The precise manner in which it is to be prohibited presents much greater difficulties. As Mr. Reynold, for Mr. Wiley, observed, what they are really asking for is a form of self-denying ordinance, but one which the chief constables and their legal representatives may be expected to obey. Mr. Gompertz, for the chief constables, while drawing our attention to the expense and duplication of effort which will be required of police authorities as a result of the judge's decision does not argue that practical difficulties should be a decisive factor. These difficulties coupled with the difficulties faced by applicants as a result of the decision in Neilson v. Laugharne [1981] Q.B. 736 do, however, lead me to venture the suggestion that more recent practical experience might justify a broader reconsideration of the assumptions upon which the decision was based. But that is not a matter for this court.

NOURSE L.J. I agree with the judgments of Staughton and Nolan L.JJ.

In this court we are bound by Neilson v. Laugharne [1981] Q.B. 736. I agree with Nolan L.J. that there are now good grounds for the head of public interest immunity established by that decision to be considered at the highest level. But while it exists I would not make any distinction between use of information contained in the documents and use of the documents themselves. No such distinction is made in the case of legal professional privilege and the principle of the thing is not in my view affected by the consideration that the privilege can be waived whereas the immunity cannot.

Although I am extremely doubtful whether it was open to Popplewell J., once he had decided, correctly, that the facts of these cases were indistinguishable from those in Reg. v. Commissioner of Police for the Metropolis, Ex parte Hart-Leverton, The Times, 8 February 1990, to decline to follow that decision, I gladly adopt the following passage in his judgment as a broad justification for the decision taken by this court:

"The development of the law in relation to public interest immunity and the reasoning upon which it is based leads me clearly to the conclusion that the documents which come into existence for the purpose of the complaints procedure and the information therefrom are not to be used in the civil proceedings for any purpose whatever save for the purpose of enabling the legal adviser to advise on discovery. It is difficult to see what logic there is which prevents the use of the complainant's statement by way of cross-examination but nevertheless entitles the legal advisers to the chief constables to use it for other purposes. There can, in my judgment, be no half-way house in this exercise. Either the chief constable is entitled to use whatever information comes into his hands as a result of the complaints procedure for the purpose of civil litigation or he can use none of it. The half-way house contended for by the chief constables has no logic."

I too would dismiss these appeals.

Solicitors: Solicitor, West Midlands Police Authority, Birmingham; County Solicitor, Nottinghamshire County Council, West Bridgford; White & Billingham, Wolverhampton; Nelson Johnson & Hastings, Nottingham; Treasury Solicitor.

G. F.