QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GRIFFITH WILLIAMS
| Commissioner of Police for the Metropolis
|- and -
Jude Bunting (instructed by Fisher Meredith) for the Respondent
Hearing date: 12 December 2013
Crown Copyright ©
Lord Justice Beatson:
The factual and procedural history:
"…reliable information was received by police within the month prior to the application for the warrant. The Information was cross-referenced with police databases and found to be credible."
The solicitors were not satisfied with that, and, on 28 February 2013, they applied to the Magistrates Court for full disclosure of the Information or an adequate, properly particularised gist of it. On 6 March the Commissioner agreed that it was appropriate to determine the issue of disclosure at a preliminary hearing in the Magistrates' Court. The matter was listed for hearing on 26 March.
The procedure in the Magistrates' Court:
The District Judge's judgment:
The procedure in this court:
"Recent, reliable information that Dawn Bangs was involved in the supply of class A drugs from her home address was received by police prior to the application for the search warrant. The information was consistent with older information held on the Police National Computer and police databases and was therefore considered to be credible. There was no reason to suggest the information was malicious or reckless."
While I am satisfied that this "gist" is, so far as it goes, accurate, in one respect there is less information in it than in the "gist" supplied (see  above) on 9 January. In that "gist", it is stated that the information was received "within the month" prior to the application for the warrant. Moreover, the "gist" provided to the court since the hearing is also in one respect less specific than the information the Commissioner agreed to provide to Ms Bangs at the closed hearing before the District Judge. At that hearing, he offered to state not only that Ms Bangs was "involved in the supply of class A drugs", but that "she was both buying and selling drugs from her home address". Since the Commissioner was prepared to disclose these two details before and at the hearing before the District Judge, the gist provided since the hearing should be amended to include them. The material previously redacted which the Commissioner is now prepared to disclose is underlined in the copy of the redacted Information in the Appendix.
The case stated by the District Judge:
"Al Rawi v Security Services  1 AC 531 at : Disclosure of documents which ought otherwise to be disclosed under CPR Part 31 may only be refused if the court concludes that the public interest which demands that the evidence be withheld outweighs the public interest in the administration of justice. Even where the complete documents cannot be disclosed it may be possible to produce relevant extracts to summarise the relevant effect of the material. If the public interest in withholding the evidence does not outweigh the public interest in the administration of justice, the document must be disclosed unless the party who has possession of the documents conceded the issue to which it relates."
Paragraph 7(b) refers to Conway v Rimmer  AC 910 and states that case "also details the balancing exercise for the court". I have referred to the fact that, in the copy of the case stated supplied to Ms Bangs' representatives, the identity of four of the authorities relied on by the Commissioner was redacted. They were cases in which it was the nature of the source of the information that led to the claim to PII.
"9. In the ex-parte hearing, the Commissioner agreed to provide to the respondent further information as follows: that she was both buying and selling drugs from her home address, the information was cross referenced with PNC and police intelligence systems, found to be credible, no reason to suggest information is malicious or reckless.
10. [A police officer] gave evidence that, if the information was disclosed, there was a very strong likelihood [that the public interest which it was sought to protect would be compromised] …
11. The court was provided with a document compiled by [the police officer who gave evidence] of the intelligence that the police had received in relation to Dawn Bangs. Due to the confidential nature of this information, the document was not retained by the court. …..
12. The Commissioner sought PII on the basis that:
(a) The information in the warrant [merited protection]
(b) Disclosure of the [temporal and contextual material in it] could [compromise the public interest which the police sought to protect].
(c) The details on the Information would reveal to Dawn Bangs [the nature of the information].
(e) …. This could result in a real risk of the [public interest which the police sought to protect being compromised]
(f) There should be a balancing exercise between the public interest in non-disclosure and the interests of the respondent.
13. In my judgment, I found:
(a) The further gist proposed did not accurately reflect the Information. It could give the impression that the recent information of supply from the address and the other details…was cross-reference[d] with other sources and that was not correct.
(b) There are well-established principles in relation to [the category of PII claimed by the police]
(c) The contents of the Information would reveal [the nature of the source of the information but not all details]
(d) In relation to the information regarding [those at the address] there has been no … intelligence to suggest that the information…is [either] malicious [or] reckless. Much of this information would have been common knowledge or obviously known to the police, such as the previous convictions ….
(e) I was not satisfied that the disclosure of the Information, … would lead to the [risks to the public interest of disclosure eventuating]. Neither the [temporal or the contextual material], nor the Information itself was of sufficient detail to [do so]
(f) The Commissioner had conceded that those dealing drugs [engage in speculation], and therefore the information [in the Information] was not going to lead to additional speculation or risk.
(g) There was insufficient evidence [of the risk identified occurring].
(h) As a result of these findings, there were no grounds for finding public interest immunity and I ordered disclosure of the information in full along with the legal adviser's notes.
14. The questions for the High Court are:
(a) Did the court have jurisdiction to hearing [sic] the disclosure application?
(b) Did the court adopt the correct procedure in relation to the disclosure application and the PII application?
(c) Did the court apply the correct test to the disclosure application?
(d) Was the court wrong in law to order disclosure of the information and legal advisor's [sic] notes?
(e) What procedure should be adopted by the court when stating a case if there are issues of PII?"
The answers to the questions:
Question 1: Did the court have jurisdiction to hear the disclosure application?
Question 2: Did the court adopt the correct procedure in relation to the disclosure application and the PII application?
Question 3: Did the court apply the correct test to the disclosure application?
Question 4: Was the court wrong in law to order disclosure of the Information and the legal adviser's notes?
Question 5: What procedures should be adopted by the court when stating a case if there are issues of PII?
Question 1: Did the Court have jurisdiction to hear the disclosure application? Yes, for the reasons given at  –  above.
Question 2: Did the Court adopt the correct procedure in relation to the disclosure application and the PII application? The procedure in the closed part of the hearing was correct: see  above. By analogy with the requirements in Part 22 of the Criminal Procedure Rules, before moving to the closed hearing, the correct approach would have been to hear such submissions as could have been heard from each side in public: see  –  above. After the closed hearing, it is highly desirable to identify in open court the result and as much as can properly be said about the reasoning: see  –  above.
Question 3: Did the Court apply the correct test to the disclosure application? For the reasons given at  –  above, the Court did not apply the correct test.
Question 4: Was the Court wrong in law to order disclosure of the Information and the legal adviser's notes? For the reasons given at  –  above, the Court erred in law in ordering disclosure of the Information and the notes.
Question 5: What procedure should be adopted by the Court when stating a case if there are issues of PII? Guidance on this is given at  above.
I therefore consider that this appeal must be allowed and that the order by the District Judge that the Information and the notes made by the legal adviser be disclosed be set aside.
Mr Justice Griffith Williams
The informant on oath pursuant to Section 23 of the Misuse of Drugs act 1971 states that there are reasonable grounds for suspecting Dawn BANGS of 131 KEMPE ROAD, ENFIELD, EN1 4RD of selling Class A drugs – Heroin from her home address.
[4 redacted paragraphs.]
BANGS has been convicted of 12 offences to date, which include drugs offences, theft – shoplifting, receiving handling stolen goods and obtaining property by deception.
BANGS has previously received a caution for Possession of Cannabis and has two convictions of Possession of Class A – Heroin.
[4 redacted paragraphs.]
This application was made in order that police have the power to enter and search the venue including outbuildings and garages associated with this address and any vehicles at the venue under the control of the subject for Controlled substances.
Furthermore a warrant will allow Police to enter the premises should officers be refused entry at the door, thus preventing any attempt to dispose of evidence or cause sufficient damage to property to render it unidentifiable.
A warrant was executed at the address in 2008 under Section 23 Misuse of Drugs Act, Dawn BANGS was present along with others and heroin was found on her. She was arrested for possession of a Class A drug.
Intelligence suggests that two children aged 8 and 13 are residing at the address with their grandmother Dawn BANGS who is their legal guardian. Consideration would be given should a warrant be executed.
Two Staffordshire bull terriers were present at the location in 2008 search and were of good temperament. There has been no further intelligence to neither [sic] confirm nor dent the dogs are still at the location. This would be taken into consideration prior to a warrant being executed.