[1]The Exclusion of relevant evidence always calls for clear justification. All relevant documents, whether or not confidential, are subject to disclosure unless upon some recognised ground, including the public interest, their non-disclosure is permissible.[2]Since it has been accepted in this court that the documents for which the respondent seeks discovery are relevant to the contemplated litigation, there is a heavy burden upon the appellants to justify withholding them from disclosure: see in particular Conway v. Rimmer [1968] AC 910 and Reg v. Lewes Justice, Ex parte Secretary of State for the Home Department [1973] AC 388, 400H, per Lord Reid.[3]The fact that information has been communicated by one person to another in confidence is not, of itself, a sufficient ground for protection from disclosure in a court of law, either the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue upon which it is adjudicating: Alfred Crompton Amusement Machines Ltd v. Customs and Excise Commissioners (No.2) [1974] AC 405, 433-434. The private promise of confidentiality must yield to the general public interest, that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or identity of the informant from disclosure in a court of law: per Lord Diplock, D v. National Society for the Prevention of Cruelty to Children [1978] AC 171 , 218B. Immunity from disclosure was permitted in that case because the House of Lords recognised the special position of the NSPCC in the enforcement process of the provisions of the Children and Young Persons Act 1969, a position which the House saw as comparable with that of a prosecuting authority in criminal proceedings. It applied the rationale of the rule as it applies to police informers, that if their identity was liable to be disclosed in a court of law, this source of information would dry up and the police would be hindered in their duty of detecting and preventing crime.[4]Documents in respect of which a claim is made for immunity from disclosure come under a rough but accepted categorisation known as a "class" claim or a "contents" claim. The distinction between them is that with a "class" claim it is immaterial whether the disclosure of the particular contents of particular documents would be injurious to the public interest - the point being that it is the maintenance of the immunity of the "class" from disclosure in litigation that is important. In the "contents" claim, the protection is claimed for particular "contents" in a particular document. A claim remains a "class" even though something may be known about the documents; it remains a "class" even if part of documents are revealed and part disclosed: per Lord Wilberforce in Burmah Oil Co Ltd v. Governor and Company of the Bank of England [1980] AC 1090 , 1111.[5]The proper approach where there is a question of public interest immunity is a weighing, on balance, of the two public interests, that of the nation or the public service in non-disclosure and that of justice in the production of the documents. Both in "class" objection and the "contents" objection the courts retain the residual power to inspect and to order disclosure Burmah Oil case [1980] AC 1090 , 1134, per Lord Keith of Kinkel; pp. 1143-1144, per Lord Scarman.[6]A judge conducting the balancing exercise needs to know whether the documents in question are of much or little weight in the litigation, whether their absence will result in a complete or partial denial of justice to one or other of the parties or perhaps to both, and what is the importance of the particular litigation to the parties and the public. All these are matters which should be considered if the court is to decide where the public interest lies: per Lord Pearce in Conway v. Rimmer [1968] AC 910 , 987, quoted by Lord Edmund-Davies in the Burmah Oil case [1980] AC 1990, 1129, Lord Edmund-Davies commented that a judge may well feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents and cited in support of that view the observations of Lord Reid and Lord Upjohn in Conway v. Rimmer [1968] AC 910 , 953, 995". To these principles we would add that the power to inspect should be used with extreme care and in any event should not in a 'class' case be exercised prior to giving the defendant or respondent an opportunity to appeal. In general it seems that this power is to be used when the certificate or objection raised is insufficiently detailed or explicit, see AIR CANADA [1983] 2 AC at p.412 C-E, 419 G-H, 436 C-D BURMAH at p.117 per Lord Wilberforce CONWAY v. RIMMER at p.953D per Lord Reid. NEILSON v. LAUGHARNE [1981] 1QB, 736, 748 per Lord Denning Before considering the issue of public interest immunity, we must first consider the issues in this case upon the ordinary principles of discovery - RSC Order 24, Rule 15 and CCP Order 14. Thus, the first question is relevance to the issues raised in the case. The second question concerns the use of the word "necessary". CCP Order 14, Rule 8 reads - "(1) On hearing of an application under rules 1, 2, 5 or 5A, the court, if satisfied that the discovery, disclosure, production or supply sought is not necessary, or not necessary at that stage of the action or matter, may dismiss or adjourn the application and shall in any case refuse to make an order if and so far as it is of opinion that discovery, disclosure, production or supply, as the case may be, is not necessary either for disposing fairly of the action or matter or for saving costs." If the answer to both these questions is in the affirmative and not otherwise does the question of public interest immunity arise. When faced with issues of public interest immunity we ask ourselves the following questions in the following order:- 1.Is the class of documents - regarded as a class - of such standing, importance and sensitivity that in balancing the two public interests namely the proper administration of justice and the proper and secure functioning of some public or quasi public body, the weight to be given is so strongly in favour of the latter that there can be no question of disclosure? This is only likely to be so on rare occasions. 2.If the position is not abundantly obvious and perhaps where the details and reasoning of the Affidavit or other evidence supporting the claim are insufficiently cogent, then in considering the question further it may be legitimate for a Judge to "peep" at a particular document for two purposes:-(a) To decide whether that document is within the class - "properly in that file", and/or(b) to decide the importance of that document to the issue. The document is examined as a whole - the type of document - and not as to the details of its contents, which would only be relevant to a "contents" claim. This would only arise where it is common ground that the document is disclosable but the public interest immunity claim is made as to part of its contents. We remind ourselves that we are first of all considering a 'class' case. Thus, the issue of privilege in the present case will be applicable to any other form of litigation in which those files may be said to be relevant. Finally, issues of confidentiality alone cannot be the subject of public interest immunity and NASSE` and later cases deal with the sort of considerations relevant when trying to preserve the confidentiality of information about those who are not party to the case. As between the immediate parties to a case it is difficult to see how confidentiality will become an issue and it is not a basis for claiming privilege. We are considering three classes of documents - the ACPO file; the HMI Reports; and the Police Disciplinary File. It is a truism that every case must depend upon its own facts and in the present case one of the most important factors so far as discovery is concerned is that the background is the functioning of a police force. The relevant employment was that within the Police Force. This is a disciplined body with all that is implied by that expression. The public need to have confidence in the Police and the members of the Force need to have confidence in their superior officers and in a fair administration. It is surely no secret that there are elements in our society who seek to undermine the effectiveness of the Police by fair means or foul. As Mr Bennett has submitted once disclosure is made on discovery there is no guarantee - we used that word advisedly - that any part of the documentation will not find its way into the public domain. This background is emphasised in the speeches of CONWAY v. RIMMER (supra) per Lord Reid p.953F; Lord Morris p.952F; Lord Upjohn p.995D ACPO Files The ACPO files are those which are kept by the Police Authority upon each individual chief officer. There is a duty to keep them. A file will contain much which is confidential and much which could be of interest to the criminal community. For instance, in any future attempt to blackmail through knowledge of personal detail. Moreover there is a part of every chief officer's file to which not even he or she is entitled to have access. The importance of the ACPO files is best emphasised from the affidavit of Mr Brian Hayes who is the Chief Constable of the Surrey Police and the First Vice President of the Association of Chief Police Officers. The President of that body was on leave at the time. He deposes as follows - "2.As the First Vice President of ACPO (a body which endeavours amongst other things to achieve the greatest possible degree of consistency in the way in which individual police forces treat matters of national importance), I can say on behalf of that body that it would not he considered to be in the public interest for the particular documents mentioned in paragraph 1 above nor the classes of documents to which they belong to be disclosed. That is also my view in my capacity as a Chief Constable. 3.PERSONAL FILES Under Regulation 19 of the Police Regulations 1987, it is the duty of the Chief Officer of Police to cause a personal record of each Officer to be kept and it is the right of the Officer concerned to inspect such personal record. I understand that in the Merseyside Policy up to the rank of Superintendent the officer now has the right to see staff appraisals which may be made upon him or her. Further such Officers are entitled to see their computerised personal data sheets. Such officers have no right to see any other documents kept on them. In the case of Chief Officers, the documents which are kept in relation to them include their appraisals (from the rank of Constable to Superintendent), as well as documents relating to that Chief Officer's personal and professional life. Such documents may refer to past and present criminal investigations, strengths and weaknesses of that officer, analyses of decisions which that Officer has or has not taken in particular situations and the most personal details of that officer's private life. It will include medical information, recommendations for any honours, and documents relating to their security vetting. It will also include references which have been given in relation to those Officers. 4. ... 5.I share the concern of the Fourth Respondent as to the effect which public disclosure of such material might have on the free exchange of views between and about Chief Police Officers, and as to the fact that details of the personal files can form the basis for a public debate as to the fitness of particular officers, as to the merits of decisions made and as to the command structure of the police force in question. 6.I also share the concern of the Fourth Respondent that if information in relation to Chief Officers is made known to them or others in the course of any proceedings, then this could have an adverse affect upon their individual careers. It might undermine their self confidence or the confidence of others in them. It might prevent them from applying for other senior appointments if such information formed part of a public debate. 7.In my view it is essential that public confidence in the police and its senior officers be maintained. It is equally essential that Police Officers generally have confidence in their superiors; otherwise morale will be adversely affected. I believe that, as a class, these documents ought never to be disclosed." We also understand from submissions made that the ACPO files may disclose the source of information about an officer both in his professional and his private life. During submissions an ilustration was given of the sensitivity of information of any kind relevant to an officer who was, had been or who might be involved in the Intelligence aspects of policing. HMI Reports These reports are made by Her Majesty's Inspector of Constabulary to the Home Secretary. Until 1990 they were always considered confidential in the sense of being secret, but recently there has been a change of policy and these annual reports are now laid before Parliament. A report may be some 100 pages long and is provided to the Police Authority. Sir John Woodcock, HM Chief Inspector of Constabulary, says this in his Affidavit, " These reports are provided to police authority. The 1990 report will be the first such report to be a public document. It has not yet been published. The contents of the unpublished reports deal with the efficiency of various aspects of policing and it is not in the public interest for the strengths and weaknesses to be known, particularly by certain sections of the public." By the provisions of Ss.28 and 38(2) and (4) of the Police Act 1964 the Inspectors have a duty to report. We were told by Mr Bennett that a particularly sensitive area of any of these reports would be that in which recommendation was made or decisions indicated of where police resources should be most used in the immediate future. This information would be of the greatest interest to organised crime. Police Disciplinary Files Disciplinary proceedings within the Police can form part of either or both of the following and the documents maintained in disciplinary files can be relevant to and can refer to both. The procedures could be said to be interlocking and overlapping, as indeed is the documentation. The first type of procedure - the statutory procedure - takes place before the Police Complaints Authority under the provisions of Ss.83 -100 of the Police and Criminal Evidence Act 1984. These replace some provisions of the Police Acts 1964 and 1976. The second - the internal procedure - takes place under the provisions of the Police (Discipline) Regulations 1985. The Discipline Files will include statements made in the course of enquiries under either or both procedures; reports to the Director of Public Prosecutions and Crown Prosecutions Service and communication between those services and the Police; letters from the public, not in statutory form; notes of investigating officers; memoranda from Police Officers; attendance notes on telephone conversations with the public and other comments and advice. In referring to the public, it should be noticed that informers provide an important part of information reaching the police. Misinformation can seek to mislead and to undermine confidence. The Industrial Tribunal relied upon the case of SCIENCE RESEARCH COUNCIL v. NASSE` and LEYLAND CARS (BL CARS LTD) v. VYAS [1979] ICR 921 . These two cases concerned discovery where allegations of discrimination had been made in a selection process. The documents in dispute were confidential personal records of those with whom each of the applicants wished to draw a comparison. The objection to production was on the ground of confidentiality. In the Court of Appeal Leyland raised a new ground - that of Public Interest Immunity. Only Leyland took that point before the House of Lords and the SCIENCE RESEARCH COUNCIL the other Respondent argued against it. So far as it is relevant for our present purposes the House of Lords decided two things - first, " There is no principle of public interest immunity, as that expression was developed from CONWAY v. RIMMER [1968] AC 910 , protecting such confidential documents as those with which these appeals are concerned ." Secondly, "There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone." Thereafter their Lordships went on to consider how confidential reports and references could be dealt with in cases where comparisons were being made. It is a little difficult to see quite how Public Interest Immunity was relevant in the NASSE` case and the background facts are very different from those in the present case. In an employment case the nature of the employment and the degree of sensitivity of the class of documents are matters upon which evidence must be available and we ask ourselves whether the evidence is clear and sufficiently detailed. We also consider the threat to the candour of those reporting if these classes of documents are disclosed and the likelihood of the source of information continuing if secrecy is not maintained. We also consider whether there is a duty, indeed a statutory duty, to prepare the documentation. So far as the HMI Reports are concerned within the realms of control and direction of the police as the instrument of the public authorities against the whole gamut of crime and security in its widest sense, we consider these reports to rank with departmental reports as in BURMAH and AIR CANADA and we do not consider that the balancing exercise is required. The importance to public security is obvious. Now that these are to be made public no doubt sensitive aspects will be omitted, but heretofore we see no reason to doubt the basis on which the claim is put forward. We also have doubts about the strict relevance of these reports and whether their production is truly 'necessary'. There is however one aspect to which we will refer later. In considering the disciplinary files we find ourselves bound by authority. The evidence is clear that the disciplinary documentation whether under statute or internally is almost inextricably entwined and should be regarded as a whole. Authority has clearly decided that "class" privilege applies. Without examining each case in detail we derive our guidance from the following line of cases - NEILSON v. LAUGHARNE [1981] 1 QB 736 - CA HEHIR v. COMMISSIONER OF POLICE [1982] 1 WLR 715 - CA PEACH v. COMMISSIONER OF POLICE [1986] 1 QB 1064 - CA MAKANJOULA v. COMMISSIONER OF POLICE (The Times - 31st March 1989 - A full transcript was available to us) In this latter case the documentation for which "class" privilege was claimed was " (a) all the witnesses statements taken in the course of the S.49 investigation; (b) transcripts of the evidence given at the hearings before the Police Disciplinary Tribunal and the Disciplinary Appeals Tribunal;(c) the formal decisions of the Police Disciplinary Tribunal and the Home Secretary's formal decision on the appeal; and(d) the Discipline Book kept by the Commissioner relating to the second defendant." The Court of Appeal held that these documents were the subject of "class" privilege. We were also referred to the case of R v. COMMISSIONER OF POLICE - ex parte Hart-Leverto n (The Times, 8th February 1990 - a full transcript was available to us). This was a decision of the Divisional Court, Watkins LJ and Nolan J, and deals with disciplinary matters which were again held to be privileged. We have also been shown a transcript of a judgment of Master Rose given in Chambers in the case of DONOVAN v. COMMISSIONER OF POLICE - 1986 D863 , with the reasoning of which we would respectfully agree. It seems to us to be well established that this class of document is the subject of Public Interest Immunity Privilege. We find the decision over the ACPO files the most difficult. We do not consider this case to be one where the classes of documents are so clearly the subject of public interest immunity that the balancing exercises are unnecessary and "the scales can remain in the cupboard". It seems to us clear that there is a balancing exercise to be carried out where they are concerned. The files may be of no sensitivity where the basic record of police service of an individual is concerned. The documents dealing with positive vetting must remain secret as indeed, in our view, should those documents which deal with the private lives of the individual. We would be minded therefore if this matter was not appealed to order production and ourselves to inspect those personal police records. It may be that the personal records of service include recommendations for promotion and assessments for suitability of promotion in which case it may not be contrary to the public interest for those to be disclosed. These are matters which we would consider. We would sever the basic police records from the remainder and constitute them as a separate class or file. We are, however, unfortunately faced with the fact that production has already been ordered and indeed much of the documentation read by the lay members of the Industrial Tribunal, but we do not accept that this invalidates the claim to "class" privilege - see R v. COMMISSIONER OF POLICE, ex p Hart-Leverton (supra) and BURMAH per Lord Wilberforce p.1111G. During the hearing of this Interlocutory Appeal we directed that the relevant ACPO files should be placed in our custody and they have been sealed and held in safe custody ever since. To summarise therefore we decide that the HMI reports and the disciplinary files are privileged and that the positive vetting documentation and the documents relating to the private lives of the Chief Police Officers are also privileged but that we would be minded to look at the personal police records of those police officers to see whether they in fact could be treated as a separate class of which production should be ordered for our inspection. We turn to the actual reasoning of the Industrial Tribunal in each of these matters and remind ourselves that these are interlocutory appeals. Thus before we are entitled to interfere either the Tribunal must have erred in law or the decision in its discretion falls foul of the WEDNESBURY approach. We examined the principles in ADAMS v. WEST SUSSEX COUNTY COUNCIL [1990] ICR 546. The first appeal - the claims for "class" privilege is against the judgment sent to the parties on 16th January 1991 and relates to the hearing of 11th January. A number of points are made. First it is said that this Tribunal erred in deciding that because this was a discrimination case public interest immunity must be considered upon other than the established and accepted principles. This was, in our judgment, an error of law. Secondly, that almost total reliance was placed upon NASSE` . That was a case of confidentiality and public interest immunity played a very small part. Insofar as reliance was placed upon the speech of Lord Scarman, it must be noted that his views were somewhat different from those expressed in the other speeches. Thirdly, it is said that a quotation on page 2 of the decision is not a quotation. This may have been an error, but it must clearly be preferable to take the actual wording of the speeches. Paragraph 7 of the decision is also criticised. The first sentence reads, "The question of whether it is necessary for confidential documents to be diclosed is a matter for the tribunal, and to enable that decision to be made they must see them ." This shows a misunderstanding of the true basis of public interest immunity and the law as we have understood it and referred to it in this judgment. The last main criticism is that the Affidavits giving the grounds upon which the "class" claims were made were only referred to so far as the HMI Reports were concerned and not in connection with the ACPO or the Disciplinary files. We agree with these submissions and would add that paragraph 10 indicates in our judgment an erroneous approach based upon confidentiality and NASSE` . No other authority is cited. Looked at in the round or in detail, we are satisfied that the decision discloses errors of law. The second appeal is against the decision or order sent to the parties on 12th February 1991 and relates to the hearings on 21st and 22nd January. This refers to particulars already given by the Fourth Respondent under Paragraphs (9), (10), (20), (21), (24), (26) and (30). The actual form of the order can be seen at pages 3 and 4 of the decision. The first criticism made is that the order deals with documents not particulars. Secondly, that the further pleadings served during the currency of this appeal have largely provided any particulars needed; that the order as indicated is vague and imprecise; that much of the identifiable documentation is privileged. We agree with these general criticisms. It has also become apparent to us during the course of this appeal that very little indeed remains between the parties and that once inspection of documents has taken place this whole exercise may well be proved to have been unnecessary and expensive both in time and money. In both these appeals decisions were reached before close of pleadings and inspection of documents. We are not satisfied that all the documents sought are "relevant" or "necessary", but could not ourselves reach a decision on this until this case has been put into some order. How then should we deal with these two appeals? The orders in each case together with the two orders of 3rd June and that of 4th June 1991 must be set aside. We shall order that all parties swear affidavits of documents, but we wish to make it clear that in so far as we have held "class" privilege, there need be no reference to individual documents within those classes. Inspection of documents will follow. We would suggest that no further applications are made for particulars or specific or further discovery until after inspection, when if necessary, further applications can be made. We would have thought that the issues are now abundantly clear and that indeed the evidence on both sides has been substantially disclosed. We would welcome the assistance of counsel in drawing up the details of such an order. This case however has an unusual feature in that the Applicant was herself responsible for the Department in the Merseyside Force dealing with discipline and is therefore familiar with the contents of the Discipline Files. It seems to us therefore that in an attempt to assist her it may be possible for her to identify any particular document or documents and thereafter for such documents to be given individual consideration by the Respondents to see whether they could not be disclosed. We readily understand the problems in such a course - not least that of waiver, but we offer it as a suggestion. We also understand that the only part of the HMI Reports which the Applicant seeks is that referring to the Department for which she was responsible. Here again in order to help her, consideration might be given to our comment above. In neither case however would we suggest that any step be taken until the pleadings are declared closed and normal discovery and inspection has taken place. Until that time "relevance" and "necessity" under the Rules will not be sufficiently discernible. The Third Appeal arises in circumstances which we hope and believe are unusual and exceptional. This, like the others, is an interlocutory appeal against the refusal by the Industrial Tribunal to replace one of its members, a Mr Drayton, at the request of Mr Hand appearing for the Chief Constable of Merseyside. It arises from the decision sent to the parties on 4th March 1991 and relates to the hearing on 7th January of that year. An oral decision had been given on that day. We turn first to see what guidance there is in authority for the position and function of lay members of Tribunals. The position of a judge sitting as an arbitrator under the Workman's Compensation legislation was considered in REYNOLDS c. ASSOCIATED TIN PLATE CO LTD [1948] 2 All ER 140 by a strong Court of Appeal Lord Green MR and Cohen and Asquith LJJ. The view taken was that a judge was entitled to use his local knowledge - "that which everyone in the district would have known" - and to apply it to the evidence, but that it was the evidence which was needed and by inference that that was not something which the judge could supply. The position of a doctor sitting as a magistrate was considered in WETHERALL v. HARRISON [1976] 1 QB 773 . That was clearly a case of a "judge" of fact applying his professional experience to his findings of fact and his assessment of the evidence. Neither of these cases suggest that the judge of fact should seek his own evidence. Within this jurisdiction there is further assistance. The first case is DUGDALE AND ORS v. KRAFT FOODS LTD [1977] ICR 48. For our present purposes it is sufficient to quote from the judgment of the court given by the learned President, Mr Justice Phillips at p.54F where he says - "It is necessary to note this one final matter. At the end of paragraph 10 of the reasons the industrial tribunal say:
"In this matter, as in many other aspects of our decision, our unanimous view is reinforced by the invaluable shop floor experience of our lady member who works in a similar food manufacturing industry to that of the [employers]."
It is suggested that this indicates a wrong approach, and that the decision is based on evidence improperly obtained. The members of industrial tribunals are appointed because of their special knowledge and experience, and we have no doubt that they are entitled to draw upon it in playing their part in assisting the tribunal as a whole to reach a decision. The main use which they will make of this knowledge and experience is for the purpose of explaining and understanding the evidence which they hear. Certainly, they are entitled to use their knowledge and experience to fill gaps in the evidence about matters which will be obvious to them but which might be obscure to a layman. More difficult is the case where evidence is given which is contrary to their knowledge and experience. If such an occasion arises, we think that they ought to draw to the attention of the witnesses the experience which seems to them to suggest that the evidence given is wrong, and ought not to prefer their own knowledge or experience without giving the witnesses an opportunity to deal with it. Provided that this opportunity is given there seems to us to be no reason why they should not draw on their own knowledge and experience in this way also. But it is highly desirable that in any case where particular use is made by an industrial tribunal of the knowledge or experience of one or more of their members in reaching their decision this fact should be stated, and that particulars of the matter taken into account should be fully disclosed." That case fell to be considered and applied in HAMMINGTON v. BERKER SPORT CRAFT LTD [1980] ICR 248. That division of this Court was presided over by Mr Justice Talbot. This Court considered all the three cases to which we have referred and before turning to them said this at p.250D, "We would like to make it clear at the outside that the knowledge, experience and expertise of a member of an industrial tribunal is plainly something which should play its part in the assessment of the evidence and in its interpretation. This is in part why the members are appointed; but there are limits." After considering those authorities the judgment continues, "The essence, therefore, of the use of such specialised knowledge and information and experience is that it is to be used, as can be seen from all these authorities, for the purpose of weighing up and assessing the evidence and if necessary interpreting it. What must not be done is using that knowledge to substitute for the evidence given in court that derive from that knowledge; nor must it be used for producing some factor of evidence which is not evidence before the court with which the parties have not had an opportunity of dealing". This in our judgment is the true ratio of HAMMINGTON. This Court also gave guidance in HAMMINGTON of the way in which specialised knowledge should be handled. At p.253E it says - "The essence of the employee's case was that he had not succeeded, though his endeavours had been fairly substantial. In obtaining work anything like commensurate with that which he had been employed in when working for the company. The industrial tribunal found, as we have indicated, that they did not accept that £5,000 was the most he could expect to earn in the immediate future. It seems to us beyond doubt that in order to make that finding the industrial tribunal must have paid attention to the expert knowledge of facts which were held by Mr Apter. If that were the case not only was it necessary to indicate, as was properly done here, that Mr Apter was a specialist in this field and therefore had good knowledge of this particular branch of industry; but it was necessary to go further than that, according to the authorities, and to have brought the facts to the attention of the employee, or, in this particular case, his counsel, so that if they were facts relied upon then counsel could have dealt with them, or if necessary, as is submitted in this case, if unable to deal with them, he could have asked for an adjournment. It was not put to counsel in that way." The primary function of a lay member of the Industrial Tribunal is to find facts having listened to any direction in law given by the learned Chairman and to reach a decision. It is at that stage that their industrial experience may be of assistance to them and to the learned Chairman. They have often been referred to as "the industrial jury" and it is clear that their primary function is as jurors, finding the facts. This they must do upon the evidence and on many occasions this Court has been asked to consider the evidence before an Industrial Tribunal and to consider whether there was evidence upon which the findings of fact could be made. If jurors or lay members make investigations of their own it is impossible for either party to know precisely what questions were asked or what information was given or the precise circumstances of the experience or "evidence" obtained by that juror or lay member. It is most important that only the evidence before the Tribunal should be the basis of findings of fact. Unlike Industrial Tribunals where in most interlocutory matters a Chairman is entitled and usually does sit alone, the President of the Employment Appeal Tribunal has no power to do so when hearing an interlocutory appeal. There are very many cases where it would be extremely useful to be able so to do as the issues are short and mainly purely legal. However in this appeal I have been greatly assisted by and indebted to the lay members for their assistance and advice. Miss Holroyd has been and is a member of Industrial Tribunals for England and Wales and has served in the Eastern Region for some 17 years; she has been a member of this Court since 1986; Mr Lewis has been a member of this Court since 1984; each has therefore sat here with a number of former Presidents and Judges. The background facts are as follows. The full Tribunal sat on 19th December 1990. The members were Mrs Butler and Mr Drayton. By that date a substantial amount of documentation was already in existence including the questionnaires and some answers. On Saturday 5th January 1991 Mr Hand was in consultation with his client, when information was forthcoming that Mr Drayton had since 1986 been employed in the Personnel Department of the Greater Manchester Police Force as an Equal Opportunities Officer. Subsequently, but before the hearing of the substantive case started on 7th January, information was received by Mr Hand that at some time earlier - uncertain, but after the case had started - Mr Drayton had interviewed the Deputy Chief Constable and an Assistant Chief Constable of the Greater Manchester Force. On the morning of 7th January Mr Hand raised with the Tribunal the desirability of Mr Drayton continuing to sit. Apart from the fact that the information had only very recently been in his hands, this was clearly a matter appropriately raised at the first opportunity and before the substantive hearing had started. We have agreed notes of what took place. As background to his argument Mr Hand pointed out to us the fact, which would have been known to the Industrial Tribunal, that it was clear that the Applicant was going to seek to adduce voluminous "expert" evidence that there was general widespread sexual discrimination in Police Forces throughout this country and that it was therefore more likely that she had been the subject of sexual discrimination. In his initial submissions to the Tribunal Mr Hand raised a number of matters:- 1. A surprisingly large number of Chief Police Officers whose names would be mentioned during the case and at least one of whom would be giving evidence, had served in senior posts with the Greater Manchester Force. He identified them by name and their importance in the case. 2.Their reputations and other facts known about them would almost certainly be known by Mr Drayton. 3.Mr Drayton had obtained the interviews to which we have already referred for the purpose of the present case and not in the ordinary course of his duties. 4.There was therefore a clear danger that Mr Drayton in considering the case might apply his own knowledge obtained in the interviews rather than relying upon the evidence given at the hearing before the Tribunal. The agreed note shows that Mr Hand's submission ended by emphasising that it was made "with no intention of being discourteous". The Tribunal retired and on its return Mr Drayton stated that he had not discussed any matter relating to this case with anyone; that it was his integrity which was "on the line"; and that the application was "an affront to his integrity". He expressed the view that in order to ensure there is fairness in the system he believed that the background history was relevant. As a matter of comment, it seems to us that this latter statement indicates that he was seeking information relevant to the present case. Mrs Butler expressed her view that Mr Drayton "can do the case". The learned Chairman is noted as saying the following:- "The fact that an application such as this was made does not take me by surprise. I considered the matter very carefully before embarking upon the proceedings. This is a very special type of case. I felt that it would be useful to have someone on the panel with a background of special knowledge. I support the contention that knowledge of the general nature is not uncommon. These enquiries were made on a neutral basis. It was a matter of seeking general information. It did not relate to any of the individuals. I take the view that the case can proceed." Mr Hand then addressed the Tribunal further and a passage from the Notes give the gist of his argument - "But the issue is whether there is a reasonable suspicion of bias, not a malevolent partiality. The question is whether the case is going to be decided in such a way that both parties can say we are entirely satisfied that the matter has been determined on the evidence and not on extraneous matter. The matter is worse because there is now an element of resentment that this application has been made. That follows from what was said and how it was said." The Industrial Tribunal maintained its decision. Before us Mr Hand makes a number of points which now appear from a reading of the agreed notes and summarises his submissions thus:- (a)The Applicant's primary case is that Mr Sharples had discriminated against her by not approving her for a number of posts - in particular the Northampton post. Others were approved including the present Deputy Chief Constable at Manchester, who was interviewed by Mr Drayton. (b)Mr Drayton may have a view on the reputation or activities of many police officers involved in this case - some of whom had been approved for promotion when the Applicant had not. (c)The same comment may be made of one officer who is a witness and was preferred to the Applicant for an operational post. (d)Unlike any of the cases cited to us this application and objection is made at the start of the substantive case and Mr Hand submits that the stricter test of bias may not necessarily be the correct one. That situation might well have arisen in the case of R v. NAILSWORTH LICENCING JJ ex parte BIRD [1953] 1 WLR 146. In that case a member of the Licencing panel had signed a petition and the court used the word "undesirable" of her having sat. The basis of the decision was that the objection was not made at the time and Mr Hand points out and submits that had the objection been made at the start of the case it is almost certain that Mrs Alice Waine would not have sat nor have wished to sit. Our attention was drawn to a recital of the facts where it says, "By an Affidavit Mrs Alice Waine admitted signing the petition some weeks before the hearing, but stated that when she signed it she did not expect to sit on the Bench to hear the application; that she was asked to sit at short notice and was not told that licencing matters were to be considered: and that she did not remember having signed the petition until objection was taken after the decision had been announced." As we will indicate later we are inclined to agree with this submission. (e)The selection of Mr Drayton by the Chairman was an exceptional, unusual and undesirable step. (f)Unknown to the parties Mr Drayton had been selected not because he was from an ethnic minority as might have been the case if this was a racial discrimination case, but because of his "specialist" knowledge. This case does not involve special knowledge. In this case the fact that he is an equal opportunities officer and secondly that he is employed by the Manchester Police constitutes specialised knowledge - such a background is one which is open to objection. (g)It is unusual to pick a member for a Tribunal because of his type of employment. There are two panels of members of Industrial Tribunals - one from each side of industry. These are the source from which the two lay members are drawn and whereas it may be thought to be desirable where possible to have a woman member where sex discrimination is involved and a member of an ethnic minority in cases of racial discrimination, that is as far as any deliberate selection should go. The wider the choice the better. (h)This was not a "special" case save in its complexity and weight. (i)Lastly, Mr Hand asks us to view with concern the statement made by the learned Chairman taken together with the fact that the matter was not raised with the parties at the first hearing on 19th December 1990 and the question asked whether in the circumstances any objection was raised. Mr Tabachnik submitted - (a)that a member of a Tribunal should not be disqualified simply on the basis that a party had "no confidence" in that member. He quoted AUTOMOBILE PROPRIETARY LTD v. HEALEY [ 1979] ICR 809; (b)that it was a power to be exercised sparingly and only for a cogent reason; (c)that the mere fact that Mr Drayton had since 1986 been employed as an equal opportunities officer by the Manchester Force was not of itself sufficient to ask him to step down; (d)that if a member were to step down merely because he knew someone who might be called as a witness, it would make it exceptionally difficult to constitute tribunals; (e)that the fact that Mr Drayton may have been employed by the Manchester Police Force at the same time as many senior police officers involved in this case, was not a sufficient connection to make his continued presence undesirable although he conceded that it was "unwise" or "ill-advised" or "undesirable" or "unfortunate" that Mr Drayton had carried out his interviews; (f)that before deciding whether Mr Drayton should step down one would need to know the content of each interview and the precise involvement of each officer concerned; (g)that if later during the hearing Mr Drayton intended to rely upon information which he had obtained from his own enquiries rather than or in addition to the evidence in the case, then that matter could be raised in accordance with the procedures suggested in such cases as HAMMINGTON ; (h)Lastly he submitted that there was no risk that Mr Drayton could feel antagonistic to the Respondents as his reaction to Mr Hand's first submission was natural in view of the robust way in which that submission had been made. We have heard Mr Hand's advocacy - he refers to his own style as "measured" and we accept that adjective. It is common ground between both sides that the proper approach to the issue of bias is that justice must not only be done but must be manifestly seen to be done. There must be no appearance of bias. The test is a question of mixed fact and law; would the reasonable and disinterested observer present at the hearing, not being a party or associated with a party to the proceedings, but knowing the issues, reasonably gain the impression of bias? The reasonable and disinterested lay observer has been likened in other aspects of the law to "the man on the Clapham omnibus" or the "officious bystander". Mr Hand, as we have observed, submits that when considering at the start of proceedings whether a member should continue to sit, the use of the word "bias" is perhaps not entirely appropriate, although the notion expressed above must form the basis of the correct approach. We agree and would rephrase the question thus - Could the reasonable and disinterested observer present at the hearing, not being a party or associated with a party to the proceedings but knowing the issues, reasonably take the view upon the facts and circumstances unfolding before him that continued presence of the member was undesirable in that a party could reasonably feel that injustice might occur during the hearing. Both lay members emphasise that it has always been the practice in Industrial Tribunals and in this Court for disclosure to be made of any aspect of a member's connection with the case which if known might give rise to any suspicion that justice might not be seen to be done; and to which objection might be taken. I would like to add my own weight to the view of the industrial members sitting with me, that when considering the desirability of a member standing down at the start of a case a rather less stringent test should be applied and unless the application is irresponsible, frivolous or wholly without content, it is infinitely preferable that an Industrial Tribunal should, where possible, be reconstituted so as to avoid any feeling of injustice. At that stage it is inevitable that one would be looking at potential problems which could arise and if there is a real possibility that they may do so, it is surely preferable that they should be avoided. Miss Holroyd emphasises that before any sitting, a member of an Industrial Tribunal is expected to raise any aspect of the case on the pleadings which might in any way cause concern and, for instance, she would decline to sit where the respondent employer was a company in direct competition with her own employer. Secondly, there is no separate panel of lay members who sit on discrimination cases. In her experience, seminars for lay members are held about twice a year which the members are expected to attend and at which the Regional Chairman discusses current topics of employment law including discrimination issues. Discrimination law is always carefully explained by the presiding Chairman. Thirdly, she emphasises that Industrial Tribunals are generalist in their structure and members are asked to serve irrespective of the type of case involved, although it is thought advisable, where possible, for a woman or a member of the ethnic minority to sit on discrimination cases. During argument Mr Lewis cited some instances which had arisen in this Court and emphasised that there has always been the tendency to give opportunity for objection whenever it is thought that it could properly be made. It might be said that we are too sensitive and perhaps too ready to make enquiries whether any objection is to be put forward. Personal knowledge, whether about the parties or the witnesses would, in his view, cause him to offer to stand down without hesitation. We all feel that objection is far more likely to be raised in these difficult cases if members of Tribunals are specially selected rather than being appointed to sit on a random choice from the two panels. It is the familiarity and understanding of the principles of the law and practice in this particular field which is important and a parallel might perhaps be drawn with the family panels of magistrates. It is the tendency to restrict the choice that causes the problems. We are aware that anxiety has been expressed by the Equal Opportunities Commission and the Commission for Racial Equality about the training of Judicial and lay members who sit in discrimination cases and it may well be desirable for increased emphasis to be placed upon the difficulties and complexities of discrimination law during seminars or Judicial Studies courses. However, unless a specific panel could be so large as virtually to include almost all the lay members in the region we deem it undesirable that there should be a small pool from which lay members hearing discrimination cases are chosen. The preference is clearly to increase the training and experience of lay members in all aspects of the jurisdiction rather than having separate panels. This must be the approach which is best calculated to maintain confidence in the total impartiality of Tribunals. In its decision in paragraph 7 the Industrial Tribunal records part of the submission for the Applicant as follows, "His final, and in our view, telling point was that it was perhaps unusual that it was the fourth respondent who was objection because the people to whom Mr Drayton had spoken were police officers and, if anybody was to complain, then it ought to be the applicant." The core of the reasoning of the Industrial Tribunal is to be found in paragraph 8 where it says this - "There needs, of course, to be the greatest possible assurance in the minds of everyone concerned, that justice will be done, but equally for a Member of a Tribunal to dis-entitle himself or herself from sitting on a Tribunal of this kind, because of an application such as the one now made, is not a step to be taken lightly or hastily. That has been emphasised more than once by the higher Courts. The Chairman made the point that the Tribunal started from the point, made by Mr Tabachnik, that in all the circumstances if there is to be a complaint then it could more properly or was more likely to come from the applicant. It had not done so. Mr Drayton had made it quite clear that any enquiries which he made were on an entirely impartial and impersonal basis and for the purpose of getting an appreciation of operational Policing. The enquiry was not made in relation to any particular individual and most certainly not the applicant in this case. That, so far as the Tribunal was concerned, disposed of what could have been seen as the cornerstone of the complaint. Faced with the criticism of what he had done, the Chairman felt that Mr Drayton had explained his position very clearly. Understandably, with some force, but that should not, the Chairman felt, be taken as resentment or antagonism on his part. The Tribunal did not see themselves as a jury in the ordinary sense, a suggestion which had been made by Mr Hand in the course of argument. It was not felt to be a good comparison. The way in which lay members are selected and appointed, because of their special knowledge and experience, puts them in a quite different position. The point was made that Mr Drayton had proceeded along the lines referred to in Harvey, on the basis that he wished to add to his existing specialist knowledge. The Chairman gave an assurance that if, in practice, any difficulty did arise then the guidance afforded in the case of Hammington v. Berker Sportcraft Limited would, of course, be followed. So far as the question of any personal knowledge of anyone who might be called as a witness in the proceedings was concerned it was, the Chairman felt, entirely clear that that only amounted to contact in working relationships and that in no sense was there any close social or personal relationship of any kind. The Tribunal returned to the question of what would the reasonable observer think, faced with the information which the Tribunal now had. Would he be concerned Mr Drayton would not do justice to one or other of the parties? The concluded view of the Tribunal is that that would not be so. The decision of the Tribunal was that the Tribunal as constituted should proceed with the hearing of the case." We are quite unable with respect, to understand the importance or indeed the relevance of what is considered to be the most important point by this Tribunal nor indeed, despite the valiant attempts by Mr Tabachnik, do we see that it has any relevance whatsoever in a case where this problem arises. Either side could make the objection. The Tribunal clearly directed itself solely on a passage from Harvey's "Industrial Relations and Employment Law" and did not themselves, so far as we understand it, refer to any authority. This was confirmed by counsel. Had the Tribunal referred to those authorities to which we have referred and directed themselves in accordance with those authorities, it seems to us unlikely that they would have reached the decision which they did. Their approach was, in our judgment, flawed and amounted to an error of law. However, if we are driven to an application of the WEDNESBURY rules we take the view that this decision was plainly wrong. Applying the approach of the disinterested and impartial layman the two industrial members sitting with me express the view that the procedures which have come to light in the present case are wholly unacceptable. We find ourselves unable to accept Mr Tabachnik's submissions and will deal with some of them specifically. If there is to be a general case made of sex discrimination in police forces, it seems to us that Mr Drayton in his appointment is bound to be affected by any decision in this case. If at a later stage during the case Mr Drayton were to wish to rely upon some information obtained by him and this seems to us quite a possibility, then it is difficult to see how a direct conflict of evidence between him and a witness could be resolved. "You said this" - "I did not". This is not a question of experience, it is a matter of getting information. Where is this to stop? How can one decide the contents of each interview? Who is to decide? How is that information to be transmitted to the parties? Is Mr Drayton to be called as a witness? Moreover, in the light of what appears from the agreed notes of the hearing of 7th January, it would only be human nature if Mr Drayton now felt some antagonism towards the Respondents. In particular we disagree with the suggestion that the procedures which we have suggested will cause any problems in constituting Tribunals. We prefer the arguments of Mr Hand. It is clear that Mr Drayton should not continue to sit. However, the lay members go further taking the view that in looking at the whole picture it will be in the best interest of justice if a new Tribunal were constituted. The appropriate documentation could be prepared and exchanged well in advance of proceedings and no member would have seen documents which perhaps should best have remained unseen. This Tribunal is agreed that there is no criticism of Mrs Butler and no appeal so far as the learned Chairman is concerned, but the views of the lay members are clear and it may be that the learned Regional Chairman will wish to consider this whole matter and to discuss it with the present Chairman. This appeal will therefore be allowed and the direction will be given that Mr Drayton should not continue to sit as a member of this Tribunal. We will be grateful for the assistance of counsel as to the form of order. Leave to appeal.