England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 December 2008

Mr Justice Eady :

1. The background to the present litigation is well known and centres upon the shooting of Mr James Ashley in the course of a police raid on his Hastings flat just after 4 am on 15 January 1998.
2. The officer who shot him was Mr Sherwood. He was acquitted of his murder on 1 May 2001 at the Central Criminal Court on the direction of Rafferty J. That is because she was of the view that there was no evidence to negative self-defence.
3. The current proceedings are brought against the Chief Constable of Sussex by the deceased's son and father, both of whom are also called James Ashley. Admissions have been made on the Defendant's behalf as to claims for negligence and false imprisonment. The House of Lords has indicated that the Claimants may nonetheless also pursue a claim for assault and battery in respect of the shooting and has given guidance on the appropriate test to be applied to self-defence in the civil context: [2008] 2 WLR 975. It is now clear that for the defence to succeed the person concerned (such as Mr Sherwood in the present case) must have believed that he was being attacked and also that belief must have been reasonable. That is the burden that lies on the Defendant in the present case.
4. It is quite possible that there will be no need for additional compensatory damages in respect of this cause of action, over and above what is recoverable for the torts already admitted, but the House of Lords (by a majority) agreed that the claim could proceed to trial for purposes of vindication. The assault and battery claim had been struck out at first instance as having no realistic prospect of success, the Judge having applied (as it was later held both in the Court of Appeal and in the House of Lords) an incorrect test with regard to self-defence.
5. What is now in issue is the subject of disclosure and inspection of certain police documents. Quite recently, on 3 November 2008, the Defendant has given disclosure by list of internal files: the next stage would be inspection. The parties are content that matters should take their course. On behalf of Mr Sherwood, however, who intervenes as he also did in the House of Lords, I am invited by Mr Suttle QC to rule that inspection should not be allowed to take place either because the documents in question are not relevant to either of the outstanding issues between the parties (i.e. self-defence and quantum of damages) or because inspection by the Claimants cannot be described as necessary or proportionate for the resolution of those issues.
6. Although the parties agree that inspection should take place, it is submitted for Mr Sherwood that it would infringe impermissibly his rights of privacy in the information in the files (and to some extent also the similar rights of another person, referred to as S, although she has not been consulted about the matter and probably knows nothing about it). In these unusual circumstances, the Defendant seeks directions from the court.
7. I propose to avoid, so far as possible, making any reference to the content of the disputed documents. Suffice to say that the material objected to consists mostly of parts of Mr Sherwood's discipline file and, to a more limited extent, some personal or medical details.
8. It does not seem to be controversial, as a matter of fact, that when Mr Sherwood shot the deceased he did so in a split second reaction after entering his bedroom in the dark. The deceased had just got out of bed and was naked and unarmed. The issues on liability can therefore be very simply stated. Will Mr Sherwood's evidence be accepted as to the genuineness of his belief that he was under threat of attack and, if so, was that belief reasonable – judged in the particular circumstances and in the light of the information he had been given prior to the raid (whether accurate or not)?
9. A complicating factor in the case is that disclosure has already been given by the Defendant of a (partly redacted) report which lifts the veil to some extent on matters to be found within Mr Sherwood's disciplinary file (some of which also involve S). It is known as the Moonstone Report after the name of the relevant police enquiry or as the Wilding Report after the name of the senior officer who conducted it. If and in so far as those matters may be prayed in aid at trial on the Claimants' behalf, the Defendant positively wishes to place reliance on the new material so that neither the court nor the Claimants will be misled by what may be a partial and misleading summary in the report. It is thus clear that the reason for disclosing the documents, in the language of CPR Part 31.6, is not so much that they would adversely affect the Defendant's case but rather that they are "documents on which he relies". He could hardly rely on them at trial if the Claimants were not permitted to inspect them.
10. In particular, it is sought to pray them in aid to refute any suggestion that might be made (on the basis perhaps of the partly disclosed Moonstone report) that Mr Sherwood was in any way prone to violence and that this might account for the shooting (rather than a belief that he was under attack). It was in this context that the Master of the Rolls commented that "… there is some evidence (albeit in dispute) that PC Sherwood has a history of violence and drinking which could explain what happened": [2007] 1WLR 398, 425 at [91]. To this extent, therefore, the Defendant would appear to regard the documents as exculpatory.
11. What is more, there is an order of the Court of Appeal to the effect that the Defendant is to disclose a copy of the sections of the Moonstone Report relevant to Mr Sherwood's conduct and material relevant to his experience, condition and instructions.
12. It is important to remember that it will be for the trial judge to decide on the relevance or admissibility of evidence and whether or not particular lines of cross-examination may be pursued. It will also be for the trial judge to decide to what extent (if any) information which may properly be characterised as confidential, or as giving rise to a reasonable expectation of privacy, should be heard in private. It by no means inevitably follows, if inspection is permitted, that the information will be relied on at trial or revealed in public. Accordingly, it is said to be premature to decide at the inspection stage that the information could have no relevance at trial or that it should not be relied upon by either side. I bear in mind also, of course, that the test for disclosure of documents under CPR Part 31 is different, and broader, than for the admissibility of evidence at trial: see e.g. the observations of the Master of the Rolls at [2007] 1 WLR 398, 440-441 at [160].
13. Mr Suttle argues that it cannot be left any longer because his client may not be permitted to intervene at any later stage, for example by making submissions as to privacy before the trial judge. Although I should not make assumptions about the trial judge's reaction, it seems to me unlikely that either of the parties will object to giving Mr Sherwood an opportunity to make representations or that the judge would refuse to entertain them.
14. It hardly needs to be stated that any documents revealed on inspection will need to be treated by the relevant parties and their advisers on a confidential basis, and I have no doubt that security arrangements can be put in place to avoid any unauthorised leaks. There is accordingly no reason to suppose that any truly private matters will become public at the inspection stage.
15. I am prepared to proceed on the basis, without deciding it, that some parts of the relevant documents contain information in respect of which there is a duty of confidence owed to Mr Sherwood by the Defendant and/or there is a reasonable expectation of privacy. Counsel accept that a third party's rights may be relevant considerations for the court to take into account in deciding whether to order specific disclosure or to restrict the scope of inspection.
16. It has to be recognised that this is very important litigation, so far as the parties are concerned, and that there is a particular public interest in ensuring, so far as possible, that the court is enabled to reach a solution which is fair and just. It is perhaps appropriate to record the following passages from the Master of the Rolls' judgment at [2007] 1 WLR 398, 441 at [160]-[161]:

"Large parts of the reports are already available and it seems to me, subject to what follows, that justice requires that the reports should be available.

It does not follow from that conclusion that all of the Wilding Report is or may be relevant. The only relevant pre-shooting issue relates to the conduct of PC Sherwood and material relevant to his experience and condition and to instructions given to him before the raid. The reports contain a great deal of other material which is relevant to the general planning of the raid. It does not seem to me that that material is relevant."

(This reasoning is reflected in the order for disclosure made in the Court of Appeal.) Against the background of this case, and the remaining issues as I have defined them above, those are significant matters to weigh in the balancing exercise to be carried out.

17. It is well known that a litigant's privacy or an obligation of confidence owed to a third party would not provide, in themselves, grounds for refusing to comply with the standard obligations of disclosure or inspection. That is why it becomes a matter of balancing competing interests in deciding what is necessary and proportionate for the objectives sought to be achieved.
18. Here the objective is, as I have said, to facilitate a fair and just outcome in important litigation arising from the shooting of an unarmed citizen in his home by a police officer. I have no reason at all, from what I have read so far, to suppose that the self-defence argument will fail, but it is important that the Defendant should be, as he certainly wishes to be, as open and co-operative as he can be in enabling the court to arrive at the correct outcome. Therefore any materials in his possession which may illuminate Mr Sherwood's actions on 15 January 1998, or potentially relevant aspects of his character, or his state of knowledge at the time, would seem to be disclosable. Moreover, any rights he may have in keeping the files from scrutiny on privacy or confidentiality grounds would appear to me, at this stage at least, to be outweighed by those fundamentally important considerations.
19. In all the circumstances, I can see no good reason to prevent the Defendant from according the Claimants the opportunity for inspection (as both parties wish).