Neutral Citation No:  NIQB 42
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
"PSNI received information which indicated that [the Applicant] intended to take unlawful actions against persons in the Belfast area. A Disruption Notice** was served … informing him that police were aware of the above information and advising him to desist from that activity. [The Applicant] refused to sign a copy of the Notice. ….
Disruption Notices may be served when the identity of a potential victim is unknown or unclear. Police may issue such notices in cases where the identity of a person believed to be under threat from the criminal activities of another is not known. This is done in order to protect the lives of such persons ….
The PSNI does not accept that the Disruption Notice involves any interference with any protected right. The existence of the Notice is restricted to secure police systems and is only visible to officers and staff who have a specific business purpose to access it. Access to systems is audited …
Legal advice is required to be obtained and was obtained in this case prior to issuance. If PSNI were unable to issue such notices in appropriate cases our ability to protect life would be significantly reduced."
[** The impugned Notice]
"The gist of the intelligence was that the Applicant and a number of named associates were actively targeting drug dealers within the Great Belfast area for the purposes of extortion. The intelligence report had been entered onto the NICHE** system a number of days previously … [and] .. had already been disseminated to other divisions within PSNI ….
The Applicant and each of the named associates were all known to police and had significant criminal records for the commission of serious criminal offences …
The intelligence information had already been graded and was considered by me to be credible and reliable. I was aware from my own experience that within the recent past there had been attacks on known drug dealers within the Belfast area, including murder. This background knowledge appeared to me to be consistent with the intelligence report. In light of what I also knew of the past history and criminal records of the individuals mentioned in the report, I concluded that there was a real risk that the Applicant or one of his associates may cause serious harm to a member of the public. Since the report did not give any indication as to when any criminal conduct may take place, I was not in a position to make a conclusion about whether the risk was an immediate one. However, I considered that this possibility could not be excluded and that police should take measures on foot of this information to reduce or avert the risk of harm."
[**"NICHE" is a police computer records management system]
"One of the recognised operational responses for police is to issue a Disruption Notice. Notices of this nature are recognised as a means by which police may discharge any positive obligation arising under Article 2 ECHR to take steps to avert a real and immediate threat to life. Where the identity of the possible victim is known, it will generally be appropriate for the police response to include a Warning Notice (TM1) to that individual …
Disruption Notices are generally only appropriate where the information available to police identifies a potential perpetrator but not a victim …
The purpose of the Notice is both to alert the individual to the fact that police are aware of the threat and thereby to deter any possible future actions by the person which may cause harm to another person."
The CS further deposes to his assessment that reasonable grounds justifying the arrest of the Applicant or any of his associates did not exist. Nor was there sufficient information to warrant serving a Warning Notice on any identified potential victim. Following consultation with the Duty Officer and the PSNI human rights advisor (a qualified lawyer), both of whom concurred, the CS determined to issue the impugned Notice. The action of serving the impugned Notice on the Applicant was replicated in respect of each of the other identified suspected miscreants.
The Contentious Discovery Issues
(a) Acknowledges that the subject documents are relevant to the issues in these proceedings.
(b) Asserts that real harm to the public interest would, in the Minister's view, ensue if such documents were to be disclosed.
(c) Elaborates on this assertion in a specific schedule available to the Court only.
(d) Exhibits all of the documents in question.
(e) Suggests that certain documents can be produced only in redacted form; and, finally,
(f) (my paraphrasing) contends that the public interests engaged outweigh any right which the Applicant might otherwise have to receive the subject documents unredacted.
"The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly."
In R (Mohammad) v Secretary of State for Commonwealth Affairs  1 WLR 2653, the Court of Appeal formulated the following four questions at :
(i) Is there a public interest in bringing the documents into the public domain?
(ii) Will disclosure bring about a real risk of serious harm to an important public interest and, if so, which interest?
(iii) Can the real risk of serious harm to national security and international relations be protected by other methods or more limited disclosure?
(iv) If the alternatives are insufficient, where does the balance of the public interest lie?
While the second, third and fourth of these questions reflect a long-established approach in cases where discovery is resisted in whole or in part on PII grounds, the first question is somewhat more opaque. If the court provides an affirmative answer to the second question, it is not easy to ascertain how resort to the first of the questions could affect such answer. In the present context I observe only that this issue may be ripe for more detailed examination in a suitable future case. The submissions of the two parties have not raised it in the instant case.
"… relates to matters at issue in the proceedings and has lawfully been requested for discovery …"
This self-direction is a faithful reflection of the long-established test of relevance, namely – per Order 24, Rule 3(1) – whether the quest is to secure disclosure of documents ".. relating to any matter in question in the cause or matter". While the Minister's assessment is that the threshold test is satisfied, this does not, of course, bind the court.
".. was unable to challenge the basis upon which [the impugned Notice] was made or make any representations as to its validity before it was presented before the Court …
He should have been heard on the issue …
The creation, issue and use of the Notice is in breach of the common law duty to act fairly."
The context in which these complaints are advanced is, as noted in  above, that the prosecution, without advance notice, sought to rely on the impugned Notice upon the hearing of the Applicant's application to the High Court to vary his conditions of bail. I refer to the Applicant's first affidavit:
"The Notice says, in essence, that the police were in receipt of information which suggested that I was involved in threatening the personal safety of another person … that I had intended to take unlawful action against unnamed persons in Belfast and that I was advised to desist from this ….
It is of great concern to me that the existence and contents of this Notice were used against me before a Court which was considering issues which affected my liberty. In this instance it concerned lifting restrictions upon my liberty in order to allow me to take up employment."
The Applicant further complains that when police called at his home some two weeks before the hearing of the bail variation application the contents of the impugned Notice were simply read to him and he was not provided with a copy.
Infringement of the Principle of Legality
"The absence of a legislative or other legal framework to regulate the mechanisms for creating, issuing and using the Notice is unlawful."
This is repeated in the next following subparagraph which, paraphrasing, contends that legislation is indispensable. In my judgment it is abundantly clear that disclosure of the materials pursued is not necessary to enable the court to adjudicate fairly and justly on this ground.
Article 8 ECHR
Article 6 ECHR
"At the heart of Article 6 ECHR lies the fundamental right of the Applicant to confront his accusers and/or at the very least be provided with, some type of mechanism by which to challenge the very damaging assessment that has been, firstly, arrived at; secondly, publicised and, thirdly, relied upon to restrict his liberty. This is especially so given the absence of any relevant safeguards or procedures and the use to which the prosecuting authorities seek to put the Notice to …"
The first observation is that certain elements of this ground, considered as a whole, are encompassed by the Article 8 ECHR ground. The second is that there is clear duplication of the procedural unfairness ground. The discrete, free standing complaint which this ground advances is the denial of a mechanism whereby the Applicant could challenge the assessment embodied in the impugned Notice.