THE CHIEF CONSTABLE OF THE GREATER MANCHESTER POLICE v JOSEPH MARTIN McNALLY [2002] EWCA Civ 14

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (RAFFERTY J)
[2002] EWCA Civ 14Case No Case No: A2/2001/2590
Between
THE CHIEF CONSTABLE OF THE GREATER MANCHESTER POLICEAppellantJOSEPH MARTIN McNALLYRespondent
Before
Lord Justice AuldLord Justice Robert WalkerSir Christopher SladeMr Graham Wells (instructed by Weightmans for the Defendant)Andrew Moran QC & John Jones (instructed by Jones Maidment Wilson for the Claimant)Date 24 January 2002

Lord Justice Auld :

The

[1]appeal arose out of proceedings before the Hon. Mrs. Justice Rafferty and a jury in Manchester in late November and early December 2001 in which the claimant sought damages from the Chief Constable of Greater Manchester Police for wrongful arrest, false imprisonment and malicious prosecution. In the course of the trial the Judge, on Friday, 23 rd November, ordered the Chief Constable to disclose whether a person called “X” in the proceedings was at any material time a police informer. On Friday, 30 th November 2001, this Court heard and dismissed the appeal of the Chief Constable against that order, the Judge having adjourned the trial pending the outcome of the appeal. These are the Court’s reasons for dismissing the appeal. The facts[2]The circumstances giving rise to the claimant’s claims were the arrest in December 1992, ten months remand in custody and abortive prosecution in October 1993 of the claimant for the murder of a man called Stephen Yates. An important part of the claim for malicious prosecution was that police officers threatened at least two potential witnesses for the prosecution in the murder case, Dennis McDaid and Roger Hartley, that they would be charged with various offences unless they gave false evidence implicating the claimant in the murder of Yates. They and others had originally made witness statements implicating the claimant in the murder, but before the committal proceedings McDaid had retracted his statement. The case nevertheless proceeded to trial on the strength of an eye-witness’s identification of the claimant implicating him in the murder, but was terminated with a verdict of not guilty on the second day of the trial on the direction of the Judge.[3]By the time the trial of the civil claim was interrupted by this issue, the claimant and four other witnesses had been called in support of the claim and two witnesses had been called for the defence. The defence proposed to call further witnesses. Two of the claimant's witnesses, McDaid and Hartley, had given evidence that the police, by threats of charging them with offences, had caused them to sign false witness statements against the claimant in the prosecution for murder. The claimant proposed to argue that the jury could properly infer from that evidence that the police did the same to others who had given witness statements in the prosecution confirming MrDaid’s and Hartley’s false statements, but whom he had not called in the proceedings before Mrs. Justice Rafferty. The Chief Constable’s case was that his officers had not threatened McDaid or Hartley or any other prosecution witness into making false witness statements and that they had all made them voluntarily. The officers who had taken the relevant statements had given or were expected to give evidence in support of that case.[4]The issue as to X’s involvement in the matter arose for the first time in cross-examination by counsel for the Chief Constable of McDaid. Counsel suggested to him that he had retracted his witness statement in the murder proceedings because a man, identified for the purpose as “X”, had threatened him. He said that, on the contrary, he had turned to X for help in dealing with threats from one of Yates’ friends that he should give false evidence against the claimant.[5]There was no police evidence to support counsel’s suggestion, still less to relate it to X – only evidence of a suspicion of threats by an unidentified person. X was mentioned in an advice on evidence of leading counsel for the prosecution given shortly after the committal proceedings in which she had noted that there was no evidence to support the belief that X had issued threats. In her advice, counsel had acknowledged that the prosecution would have to proceed without the evidence of McDaid (which she said would have been of the “greatest importance" in the Crown case), relying principally on the evidence of an eye-witness about which there were, as she had said, “difficulties”.[6]On 22 nd November 2001, towards the end of the second week of the trial and after the claimant had given evidence and the Chief Constable's counsel had cross-examined McDaid, the claimant raised for the first time the issue whether X was a police informer. Through his counsel, he asked the police to disclose whether he was. The police refused to do so, claiming public interest immunity, and the claimant’s counsel applied to Mrs. Justice Rafferty to order them, if it was so, to disclose it. He maintained before the Judge . – and in this appeal – that that information was material in two related and overlapping respects. First, if X was a police informer, he would have been most unlikely to have interfered in the course of a prosecution for murder by frightening potential witnesses into not giving evidence; and if he was a police informer, the police clearly had not told leading counsel for the prosecution of it, thus diminishing the value of her advice, as proposed evidence in rebuttal of the claimant’s allegations of malice and absence of reasonable and probable cause. Counsel for the claimant also maintained that, in any event, “the cat was out of the bag” because, according to the claimant’s instructions to him, X had bragged to him about it, an argument that the Judge rejected since this was merely an assertion relayed through counsel – not evidence – of the claimant.[7]Counsel for the Chief Constable resisted the application on two broad and overlapping grounds, namely: the importance to the public interest of the protection afforded to informers, in particular as to their identity; and the risk of undermining the effectiveness of the police in their reliance on informers. He maintained that stance in the appeal, arguing that only in the most exceptional circumstances could the competing public interest of a fair trial tip the scale in favour of disclosure. The judge’s ruling[8]The Judge identified the central issue for the jury on the allegation of malicious prosecution as whether the police had procured false statements by threat and/or coercion of two prosecution witnesses in the criminal trial of the claimant. Insofar as the other witness statements appeared to support those statements, the Judge noted the claimant’s intention to invite the jury to infer that they too were false. On this central issue, the Judge observed that “the information sought [went] to an issue in the malicious prosecution claim which, if not central, [was] at the least of significant importance”. She added that if X was an informant, his status would be “powerful weaponry” in the claimant’s hands as he strove to persuade the jury that X would not have threatened McDaid as the Crown believed he had. The Judge was of the view that the information could be decisive.[9]The Judge took as her starting point that there was a public interest in non-disclosure of the information and a competing interest in the fairness of the trial sufficient to call for a balancing exercise. In undertaking that exercise she took account of Articles 2, 5, 6 and 8 of the European Convention of Human Rights and a number of recent European and domestic authorities, and decided the matter in the following way:
“An infringement of a right must be case-specifically proportionate to any increment in the risk of another’s rights being infringed, and not a blanket reaction aimed at preserving or upholding a point of principle in the abstract” and that “as to competing public interests, the imperative of public confidence in the ability of the judicial process to receive and investigate all relevant evidence outweighs, in the particular circumstances of this case, the undoubted public interest in non-disclosure. The decisive factor is the possibility, of which I am on notice, that this jury might be misled were the question of X’s status unanswered. I find that the public interest in preserving the immunity is on balance less than the public interest in the jury hearing that relevant information. ”
The issues and the arguments[10]On the appeal, counsel for the Chief Constable submitted that the Judge’s decision was contrary to principle and authority, taking as his starting point the well-known dictum of Lord Diplock in D v. NSPCC [1978] AC 171 , at 218E-F: ”By the uniform practice of the judges which by the time of Marks v. Beyfus … had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.” Counsel maintained that, as a matter of law, the public interest in the protection of informers should prevail over any countervailing interest, save where the party seeking disclosure was at risk of his liberty, or where the informer had consented to disclosure or there was some other similarly exceptional circumstance, such as a threat to his safety. Here, the claimant’s liberty or safety were not at stake; X had not consented to disclosure of the information; and the possibility of the claimant being denied a fair trial of his claim was not a sufficiently exceptional circumstance. He argued that the law in this respect had not been altered by the advent of the European Convention of Human Rights into our domestic law, suggesting that the rights of an informer under Article 2 (to life) and Article 8 (to privacy and a home life), by their very nature, clearly outweighed the right of the claimant to a fair trial of the issues of wrongful arrest and malicious prosecution under Articles 5(5) and 6(1) of the Convention.[11]Counsel for the Chief Constable maintained that, in any event, the information sought, though important, would not be determinative of the central issue in the case. He also relied on the lateness of the claimant’s application, on his ability to pursue his claim in the same manner and with the same force as before raising the issue and on the absence of any direct evidence on the matter. He maintained that, so narrow was the ambit of discretion available to the courts on an issue as to the disclosure of an informer, the Court should treat the appeal as a rehearing rather than a review.[12]Counsel for the claimant accepted that, as a general rule, information as to the identity of informers is immune from disclosure on the grounds of public interest. However, he maintained that the range of possible exceptions to the rule is wider than suggested by Lord Diplock, especially now having regard to the advent of Human Rights to our law. He referred to the ruling of the European Court of Human Rights in Osman v. UK [1999] 1 FLR 193 , at 231D-233A, paras. (147)-(154) against the “blanket” application of public interest immunities without regard to countervailing public interest considerations particular to each case. He submitted that this requirement for case-specific proportionality in relation to any alleged infringement of Human Rights now runs as a thread through European jurisprudence and is already evident in our domestic case law on the right to a fair trial.[13]Counsel for the claimant submitted that the Judge had approached her task correctly, taking into account the relevant authorities and conducting an appropriate balancing exercise of weighing the competing public interests. He maintained that in so doing the Judge had been the best placed – eight days into the trial – to assess the forensic importance of the sought disclosure and the weight to be given to it as against the undoubted public interest in non-disclosure. He contended that the function of this Court was one of review, not of rehearing, and urged the Court not to attempt to substitute its own decision for that of the Judge, relying on the already familiar test of this Court in Tanfern Limited v.Cameron-MacDonald & Anor. (Practice Note) [2000] 1 WLR 1311 , CA , at p 1317, paras. 30-32. The Law[14]The authorities indicate the following state of the law. Material concerning the identity of informers is generally immune from disclosure on the ground of the public interest in supporting the police in the prevention and detection of crime through the medium of informers. To achieve this overall purpose it is important to protect informers in order to preserve and encourage the flow of information. The immunity may be claimed in civil suits, including claims for wrongful imprisonment and malicious prosecution, as well as in criminal cases: Marks v. Beyfus (1890) 25 QBD 494 , per Lord Esher MR at 499.[15]There are possible exceptions to that general rule. Those, so far illustrated by the authorities are: where disclosure is necessary to show innocence of a defendant or otherwise to prevent a miscarriage of justice: D v. NSPCC , per Lord Diplock at 218C-F; and where the informer consents to disclosure and a greater public interest is not harmed thereby: Savage v. Chief Constable of Hampshire [1997] 1 WLR 1061 , per Judge LJ at 1067E-G. As I have mentioned, counsel for the Chief Constable submitted that those, and possibly a third in the exceptional circumstance of a threat to the safety of the party seeking disclosure, are the only exceptions permitted by law. In so submitting, he took as his starting point Lord Diplock’s formulation of the rule in D v. NSPCC.[16]But in acknowledging the additional possible exception established by this Court in Savage where an informer consents to disclosure, counsel was obliged to accept that there had been some loosening of Lord Diplock’s constraint. Indeed, such loosening was inevitable once the courts began to consider the application of the public interest rule protecting informers to civil proceedings and the possibility in that context of exceptions to it. See Powell v.Chief Constable of North Wales Constabulary, CA, The Times, 11 February 2000 and Whitmarsh v. The Chief Constable of Avon and Somerset Constabulary, CA, (unreported) 31 st March 2000, in both of which this Court clearly undertook an exercise of balancing the public interest in the protection of informers against that of securing a fair trial..[17]In Powell the Court went straight to the relative weight of the competing interests without questioning the appropriateness of balancing them. In doing so it held that, while the public interest in protecting informers is as strong in civil as in criminal proceedings, the countervailing interest of a civil litigant suing for money, though significant, is not as strong as that of an accused in criminal proceedings whose good name and liberty is normally at stake: see Schiemann LJ at 8, Roch LJ at 9-10 and Beldam LJ at 10. The Court held on the facts of the case that the sought evidence about a police informer was not of sufficient importance to displace the general rule of immunity; Schiemann LJ described its potential value to the claimants as “of the slightest”.[18]In Whitmarsh the Court, seemingly accepting the possibility of such an unequal balance as explained in Powell , again held on the facts that the sought evidence about a police informer was of such little value to the claimant that the public interest in applying the general rule clearly prevailed. However, counsel for the Chief Constable drew our attention to the following words of Simon Brown LJ in paragraph 16 of the judgment in support of his [counsel’s] argument that Lord Diplock’s rule only permitted a balancing exercise in the most exceptional circumstances:
“In my judgment, it is not necessary to go so far as Lord Diplock went in D v. NSPCC to conclude that the judge’s ruling in the present case should not stand. Even supposing that in the context of a civil trial one could, exceptionally, have a situation in which it would be appropriate to strike the balance in an informer case as the judge here thought appropriate – namely, in favour of disclosure – to my mind this is certainly not such a case.”
However, Simon Brown LJ had earlier in the judgment expressly disclaimed any intention of embarking on “an exegesis” on this branch of the law. And there is no indication that the Court’s attention was drawn to the wider arguments and European dimension canvassed before us in this case.[19]Thus, in both cases the Court was not minded to take the shorter course, here contended for by counsel for the Chief Constable, of simply holding that the sought evidence did not come within an exhaustive and limited list of exceptions to the general rule. In both it undertook a balancing exercise, albeit that, in the circumstances of each case, it found that the public interest in protecting the informer was overwhelmingly greater than that of the claimant in the information sought.[20]Counsel for the Chief Constable also referred us to Carnduff v. Rock and Anor. [2001] 1 WLR 1786 , CA, a claim by an acknowledged informer against the police for payment for information he had given them. The sought evidence was undoubtedly critical to a fair trial of the issue, but the material was also of such a nature that, if the court ordered its disclosure, it would expose to the public gaze important operational procedures of the police in the detection and pursuit of serious criminals. It is not surprising in the circumstances that the majority of the Court concluded, without labouring the point as to balance of interest, that the public interest in not disclosing such information overwhelmingly overcame the public interest in providing the claimant with a fair trial of his claim. No such damage to the public interest would result from the information sought by the claimant in this case, simply evidential confirmation (or not) of his belief from what X had told him that he, X, was a police informer.[21]The acceptance of the Court in Savage , Powell and Whitmarsh of the need to soften the rigidity of Lord Diplock’s statement of the law in D v. NSPCC so as to permit a balance of competing public interests in a case specific manner is part of a wider jurisprudential move away from near absolute protection of various categories of public interest in non-disclosure. See, for example, the the observations of Lord Woolf in R v. Chief Constable of West Midlands Police , ex p. Wiley [1995] 1 AC, 274, HL, at 288D-291F, and the approach of Sir Thomas Bingham MR in Taylor v. Anderton [1995] 1 WLR 447, CA, at 462F-H and 465F-H. Now, with the advent of Human Rights to our law, this move has the force of European jurisprudence behind it;.see Osman , at paras. (149)-(154); Tinnelly & Sons Ltd. & Ors. v. UK (1998) 27 EHRR 249, at 288 and 291, paras. 72 and 778; and Brown v. Stott (Procurator Fiscal, Dunfermline) & Anor. [2001] 2 WLR 817 , PC, per Lord Bingham of Cornhill at 824D-828B and 836B-D, per Lord Steyn at 839C-840A and the Right Hon. Ian Kirkwood at 862B-E. Although the reasoning in these cases was directed in the first instance to the extent and manner of application of the Article 6 right of fair trial when confronted by a conflicting public interest claim, it is plain from the various formulations of the principles to be followed that that is simply the other side of the coin. Thus, Lord Bingham, in Brown v. Stott, put the matter in the following way at 836B-D:, “The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. … The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lonnroth v. Sweden (1982) 5 EHRR 35, 52 para. 69; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR 163, 191, para. 52.” Conclusions[22]The particular human rights (and considerations of public interest) in play here are: on the police side in the protection of informers, Article 2, the right to life, and Article 8, the right to respect for private and family life; and on the claimant’s side, Article 5.5, which provides an enforceable right to compensation to everyone who has been a victim of unlawful arrest or detention, and Article 6(1), the right to a fair trial.[23]The function of the Court on this appeal is one of review, not rehearing. It should only intervene if it is of the view that the Judge’s decision was wrong in law or an exercise of her discretion outside the bounds of possible reasonable disagreement. In our view, the Judge was entitled to balance the conflicting public interests in protection of an informer and in doing justice in the instant case rather than consider herself tied to an exhaustive list of possible exceptions suggested by Lord Diplock’s founding proposition in D v. NSPCC. As counsel for the claimant has submitted, the law has moved on since then and has received a decisive impetus towards a more case specific approach with the advent of Human Rights to our law. Undoubtedly, in undertaking that exercise, the Judge was required to give very considerable weight to the public interest in the protection of informers and to have regard, in some reduction of the weight of the claimant’s interest in a fair trial, that this was a civil case in which his liberty was not at stake. It is plain from her reference to the authorities cited to her and the structure of her (necessarily) brief ruling in the middle of the trial that she had such considerations well in mind. But given the nature of the claim, one seeking compensation for a long period of allegedly wrongful imprisonment, the limits of the information sought and its criticality to the central issue in the case, the Judge found that the balance of the competing public interests favoured that of the claimant in a fair trial.[24]We agree with the Judge that this was a case in which there were countervailing interests of the sort mentioned by Schiemann LJ in Powell that required a balancing exercise.[25]First, there was a serious risk of a miscarriage of justice, as the Judge put it, “were the question of X’s status unanswered”. The jury could be misled as to why McDaid had retracted his witness statement which had strongly supported the prosecution case. This was a central issue into which the role of X had been introduced by counsel for the Chief Constable in his cross-examination of McDaid. As the Judge said, information that X was a police informer, if it was so, would be “powerful weaponry” in support of the claimant’s case that they had procured his prosecution without reasonable and probable cause and with malice. Counsel for the claimant, in the course of argument in this appeal, said that it had “a considerable forensic impact on the case”. And counsel for the Chief Constable, in his skeleton argument, conceded that the information was “of litigious importance”. The fact that exclusion of relevant and important evidence in a civil claim could result in an unfair trial is not necessarily decisive against the public interest where a question as to the protection of an informer arises. However, where, as the Judge plainly considered here, it could have been decisive of the outcome of the case, she was, in our view, entitled to give it the significant weight that she did in the balance of interests that she rightly undertook.[26]Second, although the claimant’s liberty was not by then at stake, he was seeking redress for wrongful deprivation of liberty for over ten months whilst he had been in custody awaiting trial, an entitlement specifically recognised by Article 5.5 of the European Convention of Human Rights. We mention as a further consideration - though the Judge did not refer to it - the public interest in the possible exposure, through the jury’s verdict, of serious misconduct by police officers in the investigation and conduct of the prosecution of crime.[27]Third, although the Judge drew back from treating the case as one in which X had consented to the disclosure of information that he was a police informer, the scope for protecting him was limited by the fact that both sides knew who he was and that the claimant believed, rightly or wrongly, that he was an informer.[28]In those circumstances, we are of the view that the Judge correctly identified and properly applied the law and that there was no basis on which this Court could have properly intervened on her decision that the balance of public interests favoured answer to the question whether X was a police informer. Lord Justice Robert Walker:[29]I agree Sir Christopher Slade:[30]I also agree

Order

appeal dismissed with costs; public funded costs assessment of the respondent claimant's costs; permission to appeal to the House of Lords refused. (Order not part of approved judgment)

Cited in 4 later judgments