A.A.S. Zuckerman*

C Receding Judicial Scrutiny of Claims for Immunity

The enthusiasm with which the House of Lords in Conway v Rimmer asserted responsibility for adjudicating claims of public interest immunity did not translate itself into an enthusiasm for exercising this newly acquired jurisdiction. It soon became clear that the courts are very reluctant to subject ministerial claims for immunity to searching scrutiny. By degrees the courts indicated that they were prepared to leave large swathes of public administration concealed from the gaze of the courts and immune to the demands of the administration of justice. Several legal devices have contributed to this result: blanket immunity from disclosure awarded to certain classes of documents, easy acceptance of the argument from candour and technical obstacles to inspection.

Blanket Immunity

As we have seen, it was an important aspect of the decision in Conway v Rimmer that immunity from production in evidence should not be extended on an a priori basis to certain classes of documents. According to that decision, claims for immunity have to be balanced, in each individual case, against the interests of the administration of justice. This exercise necessitated consideration of the effect that the withholding of evidence would have on the court’s ability to determine the factual issues in question. Notwithstanding the fact-dependent nature of the balancing test, the courts were soon tempted to extend blanket immunity to whole classes of documents and forgo altogether a case-by-case balancing exercise in respect of these classes.

The House of Lords decision in Rogers v Secretary of State for the Home Department29 set an example. Rogers applied to the Gaming Board for a gaming licence. The Board obtained a report from the police, as was its normal practice, and refused the application. A copy of the police report came into Rogers’ hands and he instituted proceedings for criminal libel against the officer who wrote the report. The Board and the Crown objected to the disclosure of the report in the libel case on the grounds that disclosure would be injurious to the public interest. The House of Lords reasoned that without protection from disclosure the sources of information might dry up and result in hindering the Board’s ability to carry out its functions. Therefore, it accepted that there was a public interest in non­disclosure. Against this interest the House of Lords set the general interest of applicants for a licence to have an opportunity to rebut allegations that have been made against them. On balance, the court came down in favour of the public interest and held that persons who provide information to the Gaming Board are entitled to protection analogous to the protection accorded to police informers.[1] The ruling of the House of Lords was encapsulated in Lord Salmon’s dictum:

In my view, any document or information that comes to the Board from whatever source and

by whatever means should be immune from discovery.[2]

It is striking that within so short a time after the decision in Conway v Rimmer the House of Lords should sanction blanket immunity, regardless of the effect that this would have on the ability of the individual litigant to establish his claim. Moreover, the court’s reasoning in this case leaves one in doubt whether the court attached any weight to Rogers’ interest in establishing the libel. For even if there were an overwhelming case for protecting the Gaming Board’s sources of information, it could not possibly require the suppression of the police report in this particular case. The report was by a policeman and not by an informer and, more important, the report was already known to Rogers and there was therefore no further danger to the informer’s anonymity or to the inviolability of the class. Reading the House of Lords judgment one is left in little doubt that the aim of the ruling was to free policemen from the risk of proceedings for libel.[3] However desirable such an end may be, the principles of public interest immunity are the wrong tools for promoting it because, once a rule of evidence has been employed to stifle what the court considers an unmeritorious claim, a precedent has been set for stifling other claims too.[4]

Unfortunately, it did not take long for this to happen. In Gaskin v Liverpool City Council[5] a youth sued a local authority for negligence in respect of mental injuries, which he allegedly suffered as a result of being in the custody of the local authority from the age of six months until he was seventeen years old. He sought discovery of the documents concerned with the history of his treatment which were in the custody of the local authority’s welfare services. The local authority claimed public interest immunity on the grounds that disclosure of the documents would inhibit those charged with child welfare in the free expression of opinion. The Court of Appeal accepted the authority’s claim and held that immunity attached to the documents. The plaintiffs access to the only evidence that could shed light on the history of his treatment while in local authority care was barred without conducting a balancing exercise. Expressing satisfaction at this outcome, Lord

Denning MR had this to say: ‘The history shows that this young man is a psychiatric case, mentally disturbed and quite useless to society. His solicitors now want to see all the reports so as to bolster up a claim for damages. Though what good damages would do to him, I do not know.’[6] Happily for justice, the European Court of Human Rights declared the result to be contrary to Article 8 of the European Convention.[7] [8]

The Gaskin case is notable for two aspects that came to be associated with public interest immunity. It illustrates a trend of according immunity on grounds that have nothing to do with the functioning of central government and without any ministerial intervention by a certificate or otherwise. This trend had been established by D v NSPCC37 where the House of Lords held that, again by analogy with the rule relating to police informers, the public interest required that the identity of those who give information concerning child abuse should remain immune from disclosure, since otherwise the NSPCC’s sources of information would dry up. Further, the Court of Appeal in the Gaskin case, just as did the House of Lords in the Rogers and the NSPCC cases, was prepared to condone, indeed encourage, suppression of evidence even if this resulted in making it impossible for the court to investigate the issues and determine the truth. In other words, the immunity was accorded as blanket immunity which would apply regardless of its effect on the administration of justice.[9]

One particular class of blanket immunity has attracted considerable litigation: immunity from disclosure of information obtained in the course of inquiries into complaints against the police under section 49 of the Police Act 1964. This immunity emanates from the decision in Neilson v Laughame.[10] The plaintiff brought an action for trespass, false imprisonment and assault against the Chief Constable of Lancashire. Earlier the Chief Constable had set up an inquiry under section 49 of the 1964 Act to look into the police actions which led to the complaint. The plaintiff sought disclosure of statements made to the inquiry and of the report made by the investigating officer pursuant to section 49. The Court of Appeal accepted the claim of immunity for these materials, holding that the disclosure of statements made to the inquiry would be likely to impede the statutory purposes of section 49 by inhibiting police officers from giving their full co-operation to investigations of this kind. Accordingly, the Court of Appeal decided that the whole class of documents was immune from production. No regard was given to the effect that immunity might have on the prospects of the plaintiff to establish his case or on the ability of the court to determine the truth. As a result, this decision came to be accepted as establishing a rule whereby public interest immunity attaches to all statements made in the course of a section 49 inquiry.[11] [12]

The matter was taken further in Makanjuola v Commissioner of Police for the Metropolis.4‘ The plaintiff brought an action against the police commissioner and

a police officer for assault. The plaintiffs initial complaint led to an investigation under section 49, which was followed by disciplinary proceedings and by an appeal, by the police officer involved, to the Disciplinary Appeals Tribunal. In the civil action the plaintiff sought discovery, inter alia, of witness statements taken in the course of the section 49 investigation and of transcripts of the hearings at the two disciplinary stages. Objection was taken on grounds of public interest immunity. Lord Donaldson MR found a simple expedient for circumventing the balancing exercise when he observed:

Although it was submitted that the balancing operation had to be conducted in each case and that accordingly we were not bound by Neilson v Laughame … I consider that it at least binds us to start from the position that in a similar case public interest immunity will apply and that any re-balancing should only be undertaken if there are additional factors which need to be taken into account.[13]

It should be noted that the immunity conferred by that decision was immunity from use in evidence, not simply immunity from disclosure. For the plaintiff was already aware of most of the materials in question because she was present during the disciplinary proceedings in which witnesses were called and documents adduced. Further, the immunity from use in evidence of the testimonies obtained at the disciplinary inquiry was undermined by the fact that the plaintiff was free to call the witnesses that she heard testifying at the inquiry. The effect of the decision was therefore to deprive the plaintiff of the facility of challenging the witnesses by reference to what they said at the inquiry. The Court of Appeal did not explain why, in the circumstances, this outcome was in the public interest.

A similar line was taken in Halford v Sharpies.[14] The applicant, a woman assistant chief constable, made a complaint of unlawful sex discrimination, on the grounds that they impeded her promotion, against the Home Secretary, the Inspector of Constabulary and the police authority. The respondents contended that the applicant’s lack of promotion was due to defects in the performance of her duties. To counter this contention she sought discovery of police complaints and disciplinary files which she had handled in the course of her duties and which were used by the chief constable in formulating his report about her performance. Rejecting the application for discovery, Sir Stephen Brown P said:

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.[15]

How the ‘integrity’ of the disciplinary files would suffer from being considered by an industrial relations tribunal, which could conduct its proceedings in private, was not explained. Further, little attention was given to the effect that the withholding of the evidence might have on the applicant’s ability to prove sex discrimination without putting before the court all the materials relevant to the appraisal of her performance. Nonetheless, Butler-Sloss LJ had no doubt that:

There is public interest immunity, which is subdivided into class immunity and contents immunity, and there is confidentiality which may arise in litigation, both with private and with public dimension. Consequently, in this appeal, if the class immunity did not apply, contents immunity would almost certainly be raised and if that failed it would not preclude the raising of an objection on the ground of confidentiality.[16]

Litigants are therefore warned to keep well clear, for there is more than one way of ensuring that they do not gain access to such information. In this way, the courts sought to block once and for all access to the class in question and free themselves from the responsibility of examining, on a case-by-case basis, whether the interests of the administration of justice outweighed the interests in non-disclosure.

One would have thought that blanket immunity would at least produce certainty. But even certainty is not achieved under the present practice since in some situations the courts balk at accepting the consequences of this particular blanket immunity, as Peach v Commissioner of Police of the Metropolis46 illustrates. Blair Peach was killed by a policeman during a demonstration and his mother sued the police. Immediately after the incident the police started an inquiry and obtained statements from witnesses, including L who was with the deceased at the time. These statements were produced at the inquest into the deceased’s death, but the police commissioner refused to disclose them to the deceased’s mother in her action against the police. The commissioner claimed public interest immunity on the basis that under the rule in Neilson v Laughame47 the information was immune from disclosure. The commissioner argued that the material was obtained for the purpose of a section 49 inquiry which had been instituted in consequence of complaints against the police made by L in the statement she made following the incident.

Giving judgment at first instance, Sir Neil Lawson decided that while he was bound by Neilson v Laughame to hold that there was a public interest in protecting the confidentiality of documents produced for section 49 inquiries, he was not relieved of the need to balance this public interest against the countervailing interests of the plaintiff in the case before him. The Court of Appeal disagreed, however, holding that the decision in the Neilson case left no room for a balancing exercise. At the same time, the Court of Appeal could not bring itself to deny access to the best evidence regarding the deceased’s death. Accordingly, the court embarked on a tortuous legalistic consideration of questions such as these: When is an allegation against the police a ‘complaint’ for the purpose of section 49? Is it enough that the police believe that there has been a ‘complaint’ when in fact there has not been one? Is it enough that the police believe that they are conducting a section 49 inquiry? What conditions have to be fulfilled for there to be a section 49 inquiry? These are sterile questions with little bearing on the substance of the real issue in the case: does the public interest demand the suppression of relevant evidence?

In the event the Court of Appeal decided that the documents were brought about only partly for a section 49 inquiry, since their predominant purpose was to facilitate a general investigation of the deceased’s death. Consequently, the Court of Appeal held that it was free of the shackles of Neilson v Laughame.48 Having freed itself from precedent, the Court of Appeal conducted a balancing exercise and found that the interest in disclosure outweighed the public interest in secrecy, as Purchas LJ explained:

Bearing in mind that after a period of some six years the fair trial of a civil action in which the

evidence is given orally, based on recollection, the conduct of that trial would be seriously [17] [18] [19]

inhibited if contemporary statements were not available for the purpose either of refreshing the memory of the makers of those statements or for cross-examining them were they to testify to facts not supported by the contents of those statements.[20]

While this conclusion is both just and consonant with the principle of Conway v Rimmer, the court was only able to reach it by drawing spurious distinctions which do little credit to the administration of justice. More significantly, the Court of Appeal in the Peach case did not criticise the claim for public interest immunity. On the contrary, it accepted that had the materials been obtained only for an inquiry under section 49 they would have been suppressed, notwithstanding their importance to the determination of the truth in this case.

The position regarding the status of inquiries under s 49 of the 1964 Act has now changed. Presumably influenced by the reverberations of the Scott inquiry, the House of Lords has gone some way towards removing the bane of class immunity. It held in R v Chief Constable of West Midlands Police, ex p Wiley[21] that Neilson had been wrongly decided, that there were never sound grounds for believing that the disclosure of materials collected for the purpose of a police complaints inquiry would be deleterious to the public interest, and that such materials are not entitled to class immunity. Seeing how tenaciously the Court of Appeal has held on to this class immunity, the House of Lord’s judgment affects a bold change of policy. Equally important, there are indications in Lord Woolfs speech of a willingness to revert to the Conway v Rimmer rule of judging claims for immunity on a cases by case basis and in the light of the importance of the evidence sought to the determination of truth. If this happens, the Matrix Churchill will have brought about an important improvement in the administration of justice.

In relation to national security, blanket immunity subsisted both before and after Conway v Rimmer. In Conway v Rimmer itself there were dicta that could be interpreted as saying that decisions to withhold evidence on grounds of national security must be left to ministerial discretion.[22] [23] Later, this view was clearly spelt out by the House of Lords in Council of Civil Service Unions v Minister for the Civil Service 52 where Lord Fraser stated:

The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the government and not for the courts; the government alone has access to the relevant information, and in any event the judicial process is unsuitable for reaching decisions on national security.[24]

Recently, this policy has been reiterated by Russell LJ, who held that ‘once there is an actual or potential risk to national security demonstrated by an appropriate certificate, the court should not exercise its right to inspect.’[25] Thus, the words ‘national security’ need only be uttered by a minister for the information in question to become inaccessible even in the interests of justice. In the United

States, by contrast, the courts have kept the jurisdiction to judge claims of privilege on grounds of national security firmly in their hands.[26]

Acceptance of the Argument from Candour

The principle in Conway v Rimmer has been eroded not only by the granting of blanket immunity but also, and perhaps more significantly, by a ready acceptance of the argument from candour. It stands to reason that, for instance, it is in the public interest that military secrets should be kept inviolable. But what justification is there for according public interest immunity to, say, statements in the course of a police inquiry under section 49 of the Police Act 1964? Or, to take another example, what justification is there for according immunity to correspondence between social workers? The argument from candour provides the justification.

The argument from candour has two facets: internal and external. The internal facet proceeds as follows. For public institutions, such as government departments and local authority welfare agencies, to function properly, their officers must not be inhibited from expressing their candid professional views. In the absence of immunity, civil servants and other public employees would be inhibited in the expression of opinion. Ergo, immunity is in the public interest. The external facet proceeds on two assumptions: first, that to fulfil their functions, public bodies, such as the police, social workers or child welfare organisations, require information from the public. Second, if members of the public thought that such information might be made public, they would be reluctant to come forward. Ergo, immunity is necessary in order to encourage the divulgence of information.

The House of Lords in Conway v Rimmer was very critical of the internal facet of the argument from candour. Lord Upjohn said:

I cannot believe that any Minister or high level military or civil servant would feel in the least inhibited in expressing his honest views in the course of his duty on some subject, such as even the personal qualifications and delinquencies of some colleague, by the thought that his observations might one day see the light of day.[27]

Lord Hodson added:

It is strange if civil servants alone are supposed to be unable to be candid in their statements made in the course of duty without the protection of an absolute privilege denied to other fellow subjects.[28]

Notwithstanding the scepticism expressed in Conway v Rimmer about the validity of the argument from internal candour, some of the judges in that case were prepared to recognise that a few classes deserved immunity. These included disclosure which might have adverse political consequences, cabinet minutes, dispatches from ambassadors, communications between heads of departments and communications concerning the promotion of high level personnel.[29] Candour was not the sole reason for immunity in these categories, but it appears to have played a significant part. It is, therefore, not to be wondered at that later the courts extended the reasoning from candour to justify, as we have seen, immunity for communications between social workers concerning child welfare or communica­tions by policemen in the context of section 49 inquiries.

The external argument from candour has proved even more powerful.[30] We have seen that the courts have extended immunity, by analogy to the immunity accorded to police informers, to the providers of information to the Gaming Board, to the providers of information to child welfare organisations, to the providers of information to police inquiries and the like.

The factual basis for the external argument from candour is no sounder than that which is relied on in support of the internal aspect. It may be accepted, of course, that if the names of those who provide information to the NSPCC were to be made public as a matter of course, many people would be inhibited. But it is quite a different matter to suppose that people would be inhibited by the possibility that their name might figure in legal proceedings. Indeed, in some circumstances the providers of information might wish their information to be used for the purpose of doing justice: a point illustrated by Ex p Coventry Newspapers Ltd.[31] B was convicted in 1987 for unlawful wounding and sentenced to seven years imprisonment. Subsequently, he complained that the records of his interviews were falsified by Detective Constable W. An inquiry was launched into his complaint and materials obtained in the course of it were made available to B, whose appeal against his conviction was successful. In the meantime, a newspaper published an article about these events which gave rise to the suggestion that Detective Constable W interfered with court files. The officer sued the newspaper for libel. The newspaper was anxious to see the documents which had been made available to B, and the latter was willing to oblige, but he was duty bound by an undertaking not to reveal the materials disclosed to him. B, supported by the newspaper, sought to be released from the undertaking so that he may be allowed to hand over the materials to the newspaper for use in the libel action.

Lord Taylor CJ explained that what was at stake here was not only the release of B from his undertaking but also public interest immunity. Referring to Makanjuola v Commissioner of Police for the Metropolis,[32] he observed that materials obtained for an inquiry by the Police Complaint Authority are entitled to immunity even if they have been either read or referred to in open court. Nonetheless, the Lord Chief Justice found that the interests of justice outweighed the interest in immunity:

If, as both CNL [the defendant newspaper] and the wider public now have every reason to suspect, these documents appear to point clearly towards corruption on the part of named police officers, it is surely not to be tolerated that those same officers should continue to mulct the press in damages whilst the courts disable their adversaries from an effective defence by withholding the documents from them. That we believe would be repugnant alike to justice, the public and, we would suggest, to those who gave their co-operation to the PC A [the Police Complaints Authority] — CNL’s intended witnesses — the very people whose interest is said to underlie the immunity.[33]

The argument from candour, in both its internal and external versions, is in any event undermined by the fact that immunity from production is not absolute but dependent on the outcome of the balancing process. As we have observed, even blanket immunity is not impregnable. Further, as we shall shortly see, claims for immunity tend to give way in criminal cases. Thus, the providers of information cannot be wholly confident that their statements will never be produced in court. Since the possibility of disclosure does not, as things stand, have a serious adverse effect on the availability of advice from public officials and on the flow of information from the public at large, it would appear that immunity is not essential.[34] [35] What informants do need is not so much immunity from disclosure as immunity from being sued, but this cannot be provided by a rule of immunity from use in evidence, nor should it.

The frequent judicial assertion that the need for promoting candour should, at the very least, be taken into account in the balancing process has given ministers and public bodies ample justification to claim immunity. For, surely, when the courts themselves have indicated that it is in the public interest that certain classes of documents should remain immune from production, it is only to be expected that ministers, who are charged with the protection of the public interest, should assert such public interest.

[1]    The principal authority for the police informer immunity is Marks v Beyfits (1890) 25 QBD 494. For recent authority, see R v Keane [1994] 2 All ER 479. For discussion, see Lawler, ‘Police Informers Privilege: A Study for the Law Reform Commission of Canada’ (1985—86) 28 CLQ 91.

[2]    [1972] 2 All ER, at p 1069. The Board is, however, bound by the requirements of natural justice and must afford an applicant for gaming licence an opportunity to dispel the reasons that the Board have for withholding licence: R v Gaming Board for Great Britain, ex p Benaim [1970] 2 All ER 528; see Baldwin and McCrudden, Regulation and Public Law (London, 1987) 88.

[3]    See also Hasselbald (GB) Ltd v Orbinson [1985] 1 All ER 173.

[4]    cf Hasselbald (GB) Ltd v Orbinson, id.

[5]    [1980] 1 WLR 1549.

[6]    id at 1552.

[7]    Gaskin won on the privacy aspect of Article 8 and not on the point that he had a right to receive information under Article 10; Gaskin v United Kingdom, Series A, vol 160 (1990) 12 EHRR 36. Subsequently, Parliament passed the Access to Personal Files Act 1987, which would enable citizens to obtain information of this kind.

[8]    [1977] 1 All ER 589.

[9]    Though the blanket immunity was not always maintained. For example, in Campbell v Tameside Metropolitan Borough Council [1982] 2 All ER 791, the court ordered disclosure of documents concerned with child welfare notwithstanding the decision in the Gaskin case.

[10]  [1981] 1 All ER 829.

[11]  Heir v Commissioner of Police of the Metropolis [1982] 2 All ER 335.

[12]  [1992] 3 All ER 617.

[13]  [1992] 3 All ER 620.

[14]  |19921 3 All ER 624.

[15]  [1992] 3 All ER 633.

[16]  [1992] 3 All ER 955. But see the powerful dissent by Ralph Gibson LJ.

[17]  [1986] 2 All ER 129. For discussion, see Harlow and Rawlings, Pressure Through Law (London: Routledge, 1992) 177.

[18]  n 44 above.

[19]  Freedom from these shackles was also secured in Commissioner of Police of the Metropolis v Locker [1993] 3 All ER 584, by deciding that documents prepared for the purpose of an internal police grievance procedure did not fall under the Neilson v Laughame rule.

[20]  [1986] 2 All ER 144.

[21]  The Times Law Report, July 15, 1994.

[22]  [1968] 1 All ER 874, 880, 888, 890.

[23]  [1984] 3 All ER 935.

[24]  [1984] 3 All ER 944; see also per Lord Diplock at 952.

[25]  Balfour v Foreign and Commonwealth Office [1994] 2 All ER 588, 596. The judge went on to say: ‘We recognise the importance of this case to the appellant [whose application for discovery was refusedl, but in our judgment the uninhibited prosecution of his claim for unfair dismissal cannot prevail. We do not accept, as counsel submitted we should, that in such a situation a defendant should abandon his defence just as the Crown will abandon a prosecution where there exists a risk of the innocent being convicted.’ Both the Court of Appeal and the House of Lords refused leave to appeal.

[26]  United States v Reynolds (1953) 345 US 1; (Note) ‘The Military and State Secrets Privilege: Protection for National Security or Immunity for the Executive?’ (1982) 91 Yale LJ 570; Dycus, Berney, Banks and Raven-Hansen, National Security Law (Boston: Little Brown & Co, 1990). For the position in Canada, see Mewett, ‘State Secrets in Canada’ [1985] Can Bar Rev 358; Cohen, ‘Freedom of Information and National Security’ in McCamus (ed), Freedom of Information: Canadian Perspectives (Toronto: Butterworths, 1981) 151.

[27]  [1968] 1 All ER 915.

[28]  [1968] 2 All ER 903 – 904.

[29]  [1968] 2 All ER 882 – 883, 888, 901-902, 914.

[30]  See, for instance, D v NSPCC [1977] 1 All ER 589; Rogers v Secretary of State for the Home Department [1972] 2 All ER 1057; Hasselbald (GB) Ltd v Orbinson [1985] 1 All ER 173.

[31]  [1993] 1 All ER 86.

[32]  [1992] 3 All ER 617. See text relating to n 41 above.

[33]  [1993] 1 All ER 95. Cf Re Arrows Ltd (No 4), Re Bishopsgate Investment Management Ltd, Re Headington Investments Ltd [1993] 3 All ER 861; Re Manda [1993] 1 All ER 733.

[34]  This consideration was instrumental in removing immunity from s 49 inquiries: R v Chief Constable of West Midlands Police, ex p Wiley The Times, July 15, 1994.

[35]  [1979] 3 All ER 700. For a general discussion, see Williams, ‘Crown Privilege and Burmah Oil’ [19801 CU 1.