Court of Appeal in Northern Ireland Decisions

1. This appeal is brought by way of case stated under Article 61 of the County Courts (Northern Ireland) Order 1980 against a ruling given by the Recorder of Belfast His Honour Judge Hart QC on 8 June 1999 at Belfast Recorder's Court in the course of hearing an action brought by the respondent against the appellants for damages for "assault, batteries and trespasses to her person". By that ruling the judge rejected in part a claim put forward by the appellants for public interest immunity in respect of certain documents relating to the events out of which the respondent's claim arose.

2. Those events took place on 2 March 1992, when Governor Gibson ordered a full search of a number of prisoners in Mourne House, the female wing of Maghaberry Prison. He had received information which led him to believe that a gun might have been smuggled into Mourne House, and regarded this as a serious threat to the safety of persons within the prison and the public at large and to good order and discipline within the prison. He decided that a full-scale search of Mourne House and a full body search of all prisoners would have to be carried out. This was a very substantial and difficult operation, as it was strenuously resisted by a number of Republican prisoners, who barricaded themselves into their cells and did their utmost to prevent the searches from being carried out or to obstruct the process. Teams of officers carried out the search of the prisoners, including the respondent, but no gun was found.

3. Seventeen prisoners commenced proceedings in the county court against the appellants for damages, of which the respondent's was the first to come on for hearing. The basis of her claim is set out in her reply to the appellants' notice for particulars:

4. The hearing commenced on 4 March 1999 and continued on a number of days thereafter with the calling of witnesses on each side.

5. Discovery of documents was made in accordance with an order dated 16 February 1999, but in the course of cross-examination of one of the defence witnesses on 25 May 1999 it became evident that a report made by Governor Hall had not been discovered. It was accepted by counsel for the appellants that it should have been included in discovery, but he raised the possibility of a claim of public interest immunity, and the proceedings were adjourned to enable consideration to be given to this. On 4 June 1999 a list of documents which included the missing report was furnished, verified by affidavit, in which it was stated that the appellants objected to production of the item described as "Governor Hall's Report", amongst other documents, except as sealed or covered up, on the ground that –

6. The list of documents was accompanied by a certificate signed by the Right Honourable Paul Murphy MP, then Minister of State in the Northern Ireland Office, in which he stated in paragraphs 4 to 8:

7. The document in question was more fully described by counsel on the direction of the judge as containing several portions, the report itself and five annexures:

8. Several portions of item 1 were obliterated and items 2 to 6 were withheld altogether. The appellants furnished edited copies of the documents to the respondent's solicitors without making any objection to production of the documents.

9. In his certificate Mr Murphy referred to certificates made by the Secretary of State on 24 February and 19 April 1999 in this action, in which she advanced a claim to withhold on public interest grounds the names of the members of the control and restraint teams who took part in the search of the prisoners. In the certificates she described the background of the respondent and the state of security in Northern Ireland at the time. She set out facts tending to show that threats have been made to members of the prison staff and that if the prisoners knew the identities of the members of the control and restraint teams they and their families could be put at risk.

10. Mr Treacy submitted on behalf of the respondent that the issues which arose in the action were the lawfulness of the search and the extent of the force used in the course of the search. The latter issue speaks for itself, as it must be established that the force used was reasonably necessary in the circumstances of each case, and we need not discuss it further. The lawfulness of the search was one of the issues considered in Re Baker's Application (1994, unreported), an application for judicial review brought by eleven of the prisoners searched who were charged with offences against the Prison Rules (Northern Ireland) 1982 in refusing to comply with a lawful order to submit to a search. The Court of Appeal held on appeal from the Queen's Bench Division that on the proper construction of Rule 9(1) the governor of the prison has a right to order a search at any time, subject to the direction of the Secretary of State, and is not required to give any reason for the search. Nicholson J, who gave the judgment of the court, added the sentence "The only limitation on that right is that it must be exercised bona fide." The respondent's counsel in the present case submitted that this sentence meant that there was an obligation on the prison authorities as part of their proofs to prove affirmatively the presence of good faith on the part of the governor in ordering the search. Basing themselves on this premise, they argued that the documents or parts thereof withheld or covered up were relevant because they might contain material which would be of assistance in challenging the good faith of the governor in ordering that a full search be carried out. They suggested that the prison authorities might have decided to use the receipt of intelligence about the importation of a weapon as an excuse for a severe search in order to subdue and exercise control over the female prisoners. If the weapon was of such a size or nature that it could not possibly be concealed on the persons of the prisoners, that would, they submitted, tend to show that the body search was not instituted for bona fide reasons.

11. On this issue the judge appears to have accepted the proposition that there is an onus on the appellants affirmatively to prove the governor's good faith in ordering the search, but we do not consider that this is correct or that Nicholson J intended to convey it in the sentence which we have quoted. It is not incumbent upon him, any more than it is on a person making any other administrative decision whose lawfulness is subsequently challenged, to establish affirmatively by evidence as part of his proofs that his action was taken in good faith. It is only if something appeared in the course of the evidence which cast doubt upon the governor's bona fides in ordering the body search, which would clearly affect the lawfulness of his order, that his good faith would become a matter in issue. We accordingly approach on this basis the possible relevance of the documents which are the subject of the claim for public interest immunity.

12. The judge started his consideration of the issues by asking whether production of the documents was necessary for disposing fairly of the action. He concluded that because counsel for the appellants had conceded that they should have been included in the list of discovered documents the question was ipso facto answered in the respondent's favour. As we shall show, to put matters in this way incorrectly conflates two distinct parts of the discovery process. Such a "relaxed practice" may be permissible where there is no claim of immunity, but not where a reasoned objection to production is put forward: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 444, per Lord Scarman. The judge then cited the principles set out by Ackner LJ in Campbell v Tameside Metropolitan Borough Council [1982] 2 All ER 791 at 796-7 and concluded from them that the burden of proof rests upon the party seeking to withhold documents on public interest immunity grounds to justify doing so and that the burden is a heavy one. He held that the established category of public interest immunity under which the identity of informants may be protected did not extend to employees of the Prison Service. He went on then to carry out a balancing process, on the basis that he may not have been correct in his conclusion that employees of the Prison Service do not come within the category under which the identity of informants is protected. He concluded:

13. He granted the appellants' application in respect of certain other parts of the report which had been obliterated, stating that no submissions had been addressed to the court in respect of these:

14. Mr Treacy stated before us that the immunity of the latter passages was not conceded and reserved his position about them, so we shall take them into consideration when determining the appeal.

15. Mr Weatherup QC in opening the appeal on behalf of the appellants criticised the judge for revealing that X, from whom certain information had been received, was a member of the prison staff. The appellants had been careful not to state from which source any information had come, to minimise the risk that prisoners might be able to deduce the identity of any source. It is difficult to see, however, how the judge could have decided the issue on which he reached his conclusion about the ambit of the protection afforded by the material category of public interest immunity without adverting to the fact that X was a member of the staff. We would only say that it is incumbent upon judges in determining applications for public interest immunity meticulously to avoid saying anything which might have the effect of revealing by a side-wind what the party withholding the documents wishes to avoid disclosing, bearing in mind that an appellate court may take a different view of the extent of the immunity. We would urge them to take every possible precaution to ensure that they do not by inadvertence let slip information which ought properly to be protected.

16. Before we consider the question of how to approach the assessment of the documents we must determine whether the claim advanced by the appellants falls within any of the recognised categories of public interest immunity. Those categories are not closed (see D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 230, per Lord Hailsham of St Marylebone) but, as Lord Woolf stated in R v Chief Constable of the West Midlands, ex parte Wiley [1995] 1 AC 274 at 305, "the recognition of a new class-based public interest immunity requires clear and compelling evidence that it is necessary"; cf Murphy on Evidence, 6 ^th ed, p 362, n 30. We should observe also that the division into class and contents claims for immunity is, if not obsolete, at least of much less significance since the announcements made to Parliament on 18 December 1996 by the Lord Chancellor and the Attorney-General, in the course of which they said:

17. The Government intend that this test shall be rigorously applied before any public interest immunity claim is made for any government documents.

18. It is impossible in advance to describe such damage exhaustively. It may relate to the safety of an individual such as an informant, or to a regulatory process; or it may be damage to international relations caused by the disclosure of confidential diplomatic communications. Normally it will be in the form of direct and immediate harm to, for example, the nation's economic interests or our relations with a foreign state; in some cases it may be indirect or longer-term damage, to which the disclosure of the material would contribute, as in the case of damage to a regulatory process. In any event, the nature of the harm will be clearly explained.

19. This new, restrictive approach will require, so far as possible, the way in which disclosure could cause real damage to the public interest to be clearly identified. Public interest immunity certificates will in future set out in greater detail than before both what the document is and what damage its disclosure would be likely to do, unless to do so would itself cause the damage which the certificate aims to prevent. This will allow even closer scrutiny of claims by the court, which is always the final arbiter."

20. This was supplemented by the Attorney-General's paper Public Policy Immunity , in which he stated that as a matter of practice the government will no longer claim immunity solely upon a document's membership of a given class. Moreover, whereas the classic view in assessing class claims (even after the conclusiveness of a minister's assertion of a claim was rejected in Conway v Rimmer [1968] AC 910) was that the minister was likely to be able to make the best judgment about the importance of the public interest, Mr Murphy in his certificate accepts that the final responsibility lies with the court to assess the relevance and importance of the information to determining the issues in the proceedings.

21. The rule whereby the identity of informers in criminal prosecutions is not to be disclosed is well established: it was articulated in Marks v Beyfus (1880) 25 QBD 494, but is of much older origin. It is but one example of the application of a wider rule, as Bridge LJ stated in the Court of Appeal in Burmah Oil Co Ltd v Bank of England [1979] 2 All ER 461 at 473-4:

22. As in all such cases, the operation of the principle in any particular case must be tested against the necessity in the public interest for the protection of the names. It was submitted in the present case that the public service could suffer if the identity of the persons concerned was revealed and their safety put at risk. As in the case of police informers and persons giving information to the NSPCC, it is likely that the flow of information necessary for the proper carrying out of their public functions would dry up or be restricted. It was objected on behalf of the appellant that the prison officers were under a statutory duty by virtue of Rule 87(3) of the Prison Rules (Northern Ireland) 1982 to inform the governor of breaches of the rules, and that it must be supposed that they would continue to perform their duty irrespective of threats to their safety. We observe, however, that in some of the decided cases, such as Alfred Crompton Amusement Machines Ltd v Comissioners of Customs and Excise (No 2) [1974] AC 405 it was not an obstacle to the claim for public interest immunity in respect of information supplied by customers that it was so supplied under a statutory obligation. It may be a factor to bear in mind, but we do not regard it by any means as conclusive. Moreover, there is in our view a legitimate public interest in not putting at risk the safety of prison officers, since if they are not given reasonable protection their morale and efficiency may decline. They may have to leave their employment, and it may well become more difficult to engage suitable prison staff with the qualities which the Prison Service seeks.

23. The judge stated in the course of his ruling:

24. We have been quite unable to find any authority for the proposition accepted by the judge that the immunity does not extend to cases where the information has come from an employee of the party seeking to withhold documents, nor were counsel able to cite any to us. Indeed, it seems to us to have no foundation in principle or support from such authority as bears upon the point – some of the documents for which immunity was successfully claimed by the Commissioners of Customs and Excise in the Alfred Crompton case came from members of their staff. In principle we consider that, just as Lord Simon of Glaisdale held in D v NSPCC [1978] AC 171 at 241 that there is no distinction between information received by the police or local authorities and that received by the NSPCC, so there is none between information coming from third parties and that furnished by the employees of the Prison Service. We accordingly must conclude that the judge was in error in holding that such a distinction exists.

25. Given then that the appellants have advanced a claim for public interest immunity in respect of parts of these documents which may be sustainable in law, the court has to undertake the process of applying the correct principles to see whether the documents should be given immunity. It is in some cases important to keep distinct the several stages of this process, although less directly material in the present proceedings. The first is to determine whether the documents possess sufficient possible relevance to the issues in the action, by the application of the test set out by Brett LJ in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 62-3, to require to be included in a list of documents. That is not in dispute, as counsel for the appellants correctly conceded in the court below. The next stage is concerned with production of the documents, for it does not follow that the court will require all documents to be produced for the inspection of the other party, even if they possess some actual or possible relevance. By Order 15, rule 2(6) of the County Court Rules (Northern Ireland), which echoes RSC (NI) Order 24, rule 15(1) –

26. Only if that test is satisfied does the question of balancing the public interests arise. The test of necessity was discussed by Lord Salmon in Science Research Council v Nassé [1980] AC 1028 at 1071 in the following terms:

27. In such cases as Campbell v Tameside Metropolitan Borough Council [1982] QB 1065 the court held that there was a real risk of the plaintiff being the victim of a denial of justice if the documents in question were not disclosed. It therefore held that the balance in weighing the interests came down in favour of disclosure, it being clear as part of its reasoning that the documents were necessary for disposing fairly of the action. We do not say that a party seeking disclosure would be required to go through such a narrow gate in every case, but it is certainly a more difficult criterion to satisfy than the very broad and general one specified by Brett LJ in the Peruvian Guano case when dealing with the issue whether documents relate to any matter in question in the action. We think that perhaps the most apposite formulation of the test is that propounded by Bingham J and approved in the speech of Lord Scarman in the House of Lords in Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 445:

28. As we have indicated, this issue is of less direct importance in the present case, for the appellants have impliedly accepted that the test is satisfied by producing the documents, seeking only to withhold parts which have been obliterated in the copies furnished.

29. Similarly, the question whether we should inspect the documents is less difficult to decide in this case than in many others. It was made clear in Air Canada v Secretary of State for Trade (No 2 ) [1983] 2 AC 394 that the issue of production is itself determined by the application of a two-stage test: the party seeking production must first show that the documents are sufficiently likely to contain material which would support his case to induce the court to inspect, then the court after having inspected the documents must be satisfied that they are in fact necessary for fairly disposing of the proceeedings: cf Murphy, op cit , p 369. It may be that the court should be somewhat more ready to inspect than in previous years, in the light of the change in government practice, as is suggested by Murphy, op cit , p 372, and this would appear to be supported by the attitude of the court in Wallace Smith Trust Co Ltd v Deloitte Haskins and Sells [1996] 4 All ER 403. We do not find it necessary to pursue this point, however, as we consider that there were good grounds in the circumstances of the present case to inspect the documents, since they were not described with the usual precision in the minister's certificate lest that defeat the purpose of claiming immunity for them. We have accordingly inspected the documents in their unexpurgated form.

30. When the judge has determined that production of the documents is necessary for the fair disposal of the action, then he must carry out the balancing exercise, weighing in one scale the public interest in the proper adminstration of justice, which requires that parties should not be unnecessarily hindered in obtaining material which would assist them to present their case, against the public interest in withholding from disclosure documents whose release could be harmful to the nation or the public service under one of the heads recognised by the law. In reaching conclusions on the balancing issue the onus of proof may be material, if the scales are found to be evenly balanced. The judge in the present case applied a test which he took from the judgment of Ackner LJ in Campbell v Tameside MBC [1982] QB 1065 at 1075, and held that the appellants had to undertake a "heavy onus" of establishing that relevant documents should not be disclosed. In saying this Ackner LJ based himself on a remark of Lord Reid in Rogers v Secretary of State for the Home Department [1973] AC 388 at 400, in which he cited the earlier decision of the House of Lords in Conway v Rimmer [1968] AC 910. It is apparent from Lord Reid's words, however, that he was referring to class claims, which he considered had to be very carefully considered before they were admitted, since by its nature a class claim will encompass documents which may be entirely innocuous as far as the public interest is concerned and which may be capable of making a critical difference to the other party's chance of success in the litigation: see Lord Reid's speech in Conway v Rimmer at page 943 cf also Lord Woolf in R v Chief Constable of the West Midlands, ex parte Wiley [1995] 1 AC 247 at 291.

31. The matter is put beyond doubt by the observations of the members of the House of Lords in their speeches in the Air Canada case. At page 435 Lord Fraser of Tullybelton stated that before the court should even inspect the documents the party seeking disclosure --

32. Lord Edmund-Davies formulated the test at page 442:

33. Our conclusions therefore are as follows:

34. The questions contained in the appellants' requisition, which were adopted by the judge in the case stated, do not appear to us to deal with the issues of law on which the matter turns. Mr Weatherup submitted to us a revised set of draft questions, but we have decided to reframe them yet again, as follows:

35. We answer both questions in the negative.

36. We accordingly consider that the judge's decision cannot stand, but we do not consider it necessary to remit the matter to him for further determination. We have read the withheld portions of the documents with minute care in order to see whether they could conceivably assist the respondent in making the case that the search was unlawful or carried out with excessive force. We can find nothing in them which would give her any assistance whatsoever in advancing her case in either respect. On the other side of the scales, we consider that the reasons advanced by the minister in his certificate have substantial weight. We are of opinion that if the correct principles are applied when the balancing test is carried out, any court must inescapably rule in favour of immunity.

37. We therefore allow the appeal and order that the appellants are entitled to immunity from disclosure in respect of the documents forming part of Governor Hall's report described as follows:

38. For the avoidance of doubt we also order that the immunity attaches to the following portions of documents, in respect of which the case for immunity is at least as strong as that in relation to those which we have just set out: