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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Metropolitan Police Service, R (on the application of) v Chairman Of The Inquiry Into The Death Of Azelle Rodney [2012] EWHA 2783 (Admin) (15 October 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2783.html Cite as: [2012] EWHA 2783 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/10/2012

Lord Justice Pitchford :

Introduction

1. This is the judgment of the Court. On 10 June 2010 the Lord Chancellor established a public inquiry into the death of Azelle Rodney under section 1 Inquiries Act 2005. Its terms of reference are, "To ascertain by inquiring how, where and in what circumstances Azelle Rodney came by his death on 30 April 2005 and then to make any such recommendations as may seem appropriate".
2. The first public hearing, under the chairmanship of Sir Christopher Holland, was held on 6 October 2010. The Inquiry has been bedevilled by delays largely the consequences of statutory limitation on the disclosure of intelligence material. The Inquiry commenced hearing evidence on 3 September 2012 and after a month the present dispute again halted proceedings. It concerns the issue whether film footage taken from the air, showing Azelle Rodney's movements in the two hours before his death, should be disclosed to the legal team representing his mother, Susan Alexander, at the Inquiry, pursuant to rule 12(4) of the Inquiry Rules 2006 ("IR 2006"). This is the rolled up hearing of the claimant's application for permission to apply for judicial review of the Chairman's decision on 2 October 2012 to permit disclosure, with the review to follow should permission be granted.

Background facts

3. On 30 April 2005 Mr Rodney was a rear seat passenger in a VW Golf motor car travelling along Hale Lane, London, when at 7.42 pm the car was "hard-stopped" by armed police officers employed by the Metropolitan Police Service ("MPS") which is the claimant in this application. One of the officers discharged eight shots with a carbine towards Mr Rodney at short range from the nearside of the car. Mr Rodney was hit by six of those shots and killed. The officer in charge on the ground was a Detective Inspector called, for the purpose of the surveillance operation of the car and its occupants, 'Silver'. Other commanders were Bronze and Gold. The other 14 armed officers are identified for the purpose of the Inquiry as E1 – E14; E7 fired the fatal shots. He has taken no part in the present review.
4. The MPS was in receipt of intelligence which remains out of the public domain. Its effect was that the occupants of the vehicle were in possession of a number of firearms including automatic weapons. Their intention was to carry out a robbery upon men in possession of class A drugs. In consequence of that intelligence, orders were given to place the vehicle in which Mr Rodney was travelling and its occupants under surveillance, to use armed police officers to stop the vehicle, and, ultimately, to stop the vehicle where and when it was stopped.

Relevant issues at the Inquiry

5. One of the issues of importance to Ms Alexander, the First Interested Party and the deceased's mother, is whether there was an opportunity, or a better opportunity, to stop the VW Golf and/or its occupants at any time before the hard-stop which resulted in Mr Rodney's death. This issue involves consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. Silver commander is due to give his evidence and to be questioned by Mr Thomas on behalf of the First Interested Party.

Air surveillance

6. The VW Golf was under surveillance both on the ground and from the air. The surveillance from the air was performed by means of "a covert air surveillance platform" which produced about two hours of film footage. Susan Alexander was inaccurately informed that there was no aerial film footage. In or about June 2012 an expert instructed by the Inquiry, Mr Gary Gracey, viewed all two hours' footage including the moments preceding the stop and the stop itself ("the stop" which was filmed for two minutes). Mr Gracey concluded that he regarded only the evidence of the stop as relevant, but that footage required enhancement if it was to be of any value to the Inquiry. After a hearing before the Chairman on 20 June, held in the absence of the First Interested Party, it was agreed that the stop film would be disclosed.

Application for restriction order

7. On 13 June 2012 MPS made an application to the Chairman under section 19 Inquiries Act 2005 to restrict publication of the existence of the covert air surveillance platform and the footage which resulted. Section 19 provides:

"19 Restrictions on public access etc

(1) Restrictions may, in accordance with this section, be imposed on–

(a) attendance at an inquiry, or at any particular part of an inquiry;

(b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry.

(2) Restrictions may be imposed in either or both of the following ways–

(a) by being specified in a notice (a "restriction notice") given by the Minister to the chairman at any time before the end of the inquiry;

(b) by being specified in an order (a "restriction order") made by the chairman during the course of the inquiry.

(3) A restriction notice or restriction order must specify only such restrictions–

(a) as are required by any statutory provision, enforceable Community obligation or rule of law, or

(b) as the Minister or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4).

(4) Those matters are–

(a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern;

(b) any risk of harm or damage that could be avoided or reduced by any such restriction;

(c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry;

(d) the extent to which not imposing any particular restriction would be likely–

(i) to cause delay or to impair the efficiency or effectiveness of the inquiry, or

(ii) otherwise to result in additional cost (whether to public funds or to witnesses or others).

(5) In subsection (4)(b) "harm or damage" includes in particular–

(a) death or injury;

(b) damage to national security or international relations;

(c) damage to the economic interests of the United Kingdom or of any part of the United Kingdom;

(d) damage caused by disclosure of commercially sensitive information."

8. The hearing of 20 June 2012 overtook the section 19 application. Instead, on 28 August 2012, the Chairman gave directions that "irrelevant" footage had been removed and no questions should be asked concerning the technical aspects of the air surveillance platform or the provenance of the footage that would be disclosed following the 20 June hearing.
9. On 24 September 2012 the claimant made a further application for a restriction order under section 19: (i) excluding from the Inquiry the public and the press (but not including the First Interested Party and her legal team) during any examination of Silver's ability to call up or control the "aerial asset" and (ii) excluding the public and the press (including the First Interested Party and her legal team) while any evidence was given as to the capability of the aerial asset.
10. The application was resisted by counsel to the Inquiry, Mr Underwood QC, as unnecessary. There was, in his submission, no issue before the Inquiry which required MPS to make disclosure as to the nature of the aerial asset or its capabilities, since no-one was claiming that the two hour footage which preceded the stop film was relevant. The First Interested Party also resisted the application but on different grounds. Mr Thomas argued that since the Inquiry was concerned with the matters described in paragraph 5 above it was not possible to say (and had not been possible to say at the time of the Chairman's directions – paragraph 8 above) that the two hour footage was irrelevant. Mr Thomas applied for the variation of the directions previously given.
11. On 26 September 2012 counsel to the Inquiry submitted, in response to Mr Thomas's application, that it was "arguable" the two hour footage had become relevant. If that was so, a decision was required under rule 12(3) IR 2006 as to whether there should be limited disclosure "to a person who would not otherwise be permitted to see [the potentially restricted evidence]", namely the First Interested Party's legal team. Rule 12 provides:

"Disclosure of potentially restricted evidence

12.—(1) In this rule—

(a) "potentially restricted evidence" means any evidence which is in the possession of the inquiry panel, or any member of the inquiry panel, and which is the subject of a relevant application which has not been determined or withdrawn;

(b) "relevant application" means an application which is

(i) made by any person that evidence or documents are the subject of a restriction notice made by the Minister pursuant to section 19(2)(a) of the Act;

(ii) made by any person that the chairman exercise his discretion under section 19(2)(b) of the Act; or

(iii) made by any person that evidence or documents be withheld on grounds of public interest immunity,

and which entails the withholding of evidence from the public.

(2) Subject to paragraph (3), potentially restricted evidence is subject to the same restrictions as it would be subject to if the order sought in the relevant application had been made.

(3) Where the conditions in paragraph (4) are satisfied, the chairman may disclose the potentially restricted evidence to a person who would not otherwise be permitted to see it.

(4) The conditions are that—

(a) the chairman considers that disclosure to an individual is necessary for the determination of the application; and

(b) the chairman has afforded the opportunity to—

(i) the person providing or producing the evidence to the inquiry panel; or

(ii) any other person making the relevant application,

to make representations regarding whether disclosure to that individual should be permitted.

(5) Any person who is shown potentially restricted evidence pursuant to paragraph (3) shall owe an obligation of confidence to the person who provided or produced the evidence to the inquiry.

(6) A breach of the obligation referred to in paragraph (5) is actionable at the suit of the person to whom the obligation is owed, subject to the defences applying to actions for breach of confidence."

12. The application for disclosure to a person for the purpose of considering the section 19 application was resisted in writing by the claimant on the grounds that it was neither "necessary" within the meaning of rule 12(4)(a), nor appropriate; the material could be examined in closed session with the assistance of counsel to the Inquiry. The First Interested Party argued in writing that the Inquiry's Art 2 ECHR obligations made it necessary to order limited disclosure for the purpose of making a judgment upon the merits of the section 19 application. The Fourth Interested Party suggested that it was reasonable to order limited disclosure since the First Interested Party had already, on one occasion, been misled as to the existence of aerial footage.
13. On 2 October 2012 the Chairman was provided with a statement from Mr Osborne, head of the MPS Counter Terrorism Command, in which he gave detail of the public interest reasons for not making an order for, even limited, disclosure under rule 12(4)(a). The Chairman then heard oral submissions including submissions from Mr Thomas. Mr Osborne gave live evidence in closed session during which he enlarged upon his written statement. The Chairman indicated that, for reasons he would give later in writing, he would order disclosure to Mr Thomas, Mr Straw (counsel), Mr Machover (solicitor) and Miss Stone (assistant). He gave his written reasons later that day, subsequently corrected.

The Chairman's ruling

14. The Chairman recalled that he had viewed the two hour footage in 2011 knowing that if he were minded to introduce it into evidence there would be an application for a restriction order under section 19 on public interest immunity grounds ("PII"). It contained footage of surveillance of the suspects in Harlesden, followed by the journey of the VW Golf to Hale Lane and "an oblique view" of the stop in Hale Lane. The Chairman had seen nothing in the Harlesden footage which could add to the evidence of the surveillance officers which did not, at this stage of the operation, "invite detailed exposition". As to the progress of the VW Golf to Hale Lane, the Chairman recalled (bearing in mind the issue at paragraph 5 above) that there had been a point in Scrubs Lane where a "hard-stop" could have been performed, but having learned that SO19, the unit responsible for the stop, had not joined the convoy following the VW Golf at that stage, his impression as to the suitability of Scrubs Lane, formed as a layman, was academic. As to the hard-stop itself the Chairman could discern nothing of value. He reminded himself that under section 17(3) Inquiries Act 2005 he was required to make his procedural decisions with fairness and also "with regard to the need to avoid any unnecessary cost, whether to public funds or to witnesses or to others". He concluded that:

"Granted that what it showed was relevant, it lacked sufficient materiality to justify the disproportionate amount of time that would be necessary to view it and, more particularly, to have the first part explained and narrated. I did not then, and I do not now regard, the surveillance evidence as having major significance in fulfilling my terms of reference. Finally, I was conscious that my decision obviated the need for and the public expenditure on a PII application, with an onward potential for judicial review."

The Chairman recalled the sequence of events leading to his directions (at paragraph 7 above). He regretted his description of the two hour footage as "irrelevant". He had meant "insufficiently material to my terms of reference".

15. The Chairman turned to the situation which had arisen in September 2012. Counsel to the Inquiry and counsel for MPS had viewed all the footage and knew the public interest to be protected. They were therefore equipped "to frame questions which do not invite the witness to divulge something that may be against the public interest". Ms Studd QC submitted that Mr Thomas, for Ms Alexander, was unaware of the contents of the footage and of the information it was in the public interest to protect. The risk was that, unwittingly, Mr Thomas's questions would put into the public domain that which should remain protected. For this reason she sought a restriction order under section 19. Mr Thomas' response was that if he was to make meaningful submissions on the issue of restriction he would first, within the meaning of rule 12(4), "need" to see the material. The Chairman reminded himself that the requirement, before an order for limited disclosure could be made, was one of necessity. The Chairman explained his decision under rule 12(4)(a) to order disclosure with these words:

"It seems to me manifest, leaving aside Article 2 considerations, disclosure to Mr Thomas for viewing by him and his team is vital to setting the agenda for any PII application. Thus, if he were of the same mind as that of Mr Gracey and myself, the point all but disappears. If he seeks to put all or any of it in evidence, effectively challenging the 2011 decision, this time on an inter partes basis, then that brings the focus on to the correct bearing. I have no hesitation in ruling that the disclosure to him is necessary."

16. Turning to the rule 12(4)(b) representations made by MPS the Chairman confirmed that in closed session he had heard the evidence of Assistant Commissioner Osborne. He was concerned that viewing the two hour footage invited speculation as to the nature of the equipment which produced that footage. Mr Osborne had no objection to Ms Alexander's legal team as individuals but it was his evidence that the footage should not be disclosed at all. The Chairman concluded:

"Whilst respecting the sincerity with which all this was advanced and applauding the underlying motives, I cannot regard the objection as soundly based. As to this, following disclosure, the recording will be closely considered for its content. Interest in the technology does not necessarily arise; still less does the putting of two and two together make four in determining the nature of that technology; still less that it means that four having been arrived at, that total is boasted abroad willy-nilly. I emphasise this train of thought that has to be followed before any risk to the underlying concerns arises. Of course, I give close and additional emphasis to the fact that these four individuals are professionals, conscious of their obligations to their respective professions, conscious of their obligations to me and to my rulings of 28 August and conscious of their potential obligations to the Metropolitan Police imposed by paragraphs (5) and (6). I emphasise, to date there has been conspicuous observance of my directions of 28 August and I shall be astonished to see any alternative future behaviour whatsoever. Finally, I record that the submission helpfully made to me by counsel to the Inquiry and by the IPCC respectively supported the foregoing."

Grounds of claim

17. The claimant submits that the Chairman erred in law in that he misdirected himself as to the meaning of the word "necessary" in rule 12(4)(a). It is submitted that the terms of the Chairman's unhesitating acceptance that Mr Thomas could not contribute to the disclosure argument without first viewing the two hour footage implies that he applied a test akin to convenience or desirability (1) for the expeditious resolution of the PII issues by agreement or (2) to enable Mr Thomas to advance a more focused argument as to why the interests of Ms Alexander in favour of adducing the evidence outweighed the public interest in its remaining out of the public domain.
18. The Chairman, it is submitted, gave inadequate reasons for reaching his conclusion. He did not in his ruling address the claimant's argument that the occasion which had arisen was, in its procedural aspects, no different from a PII application in private. Counsel to the Inquiry owed a duty to ensure that Ms Alexander's interest in disclosure was properly represented. The Chairman failed adequately to weigh the public interest against disclosure.
19. Upon the material before the Chairman it is argued that his decision is unsustainable.

Grounds of opposition

Defendant

20. Counsel to the Inquiry argues that rule 12(4)(a) creates "a broad discretion". It is submitted that the "owner" of the PII material is safeguarded by rule 12 in two ways. First, the Chairman must hear representations notwithstanding he is of the provisional opinion that limited disclosure is necessary; second, the Chairman must consider those representations when exercising his broad discretion whether to order limited disclosure.
21. In Mr Underwood QC's submission the word "necessary" is to be construed liberally. The outcome of the Chairman's exercise of discretion must be consistent with his obligations under section 17(3) and, if it applies, the Inquiry's obligations under Art 2 ECHR. He contends that rule 12(5) and (6) create confidentiality obligations which permit disclosure of material which, in their absence, the Chairman would have been "bound to refuse". Mr Underwood QC says that the legislative context, namely the ability to appoint a public inquiry to allay the concerns of the public, conducted in accordance with section 17(3) to achieve fairness and cost-effectiveness, colours the discretion with which the Chairman is endowed by rule 12. A restriction order must, under section 19(3), be narrowly framed so as embrace only that which is required to comply with statute, Community obligations or the rule of law. This, it is submitted, is a more constrained power than that provided by section 23 which provides that the Chairman must not permit information to be revealed which might damage the economy, unless satisfied that the public interest in revealing the information outweighs the public interest in avoiding the risk of damage to the economy. Finally, it is suggested that the Minister's overriding power to issue a restriction notice under section 19(3), or even to bring the Inquiry to an end under section 14, implies that the Chairman has, subject to the exercise of those powers, a more liberal freedom of movement in the exercise of his rule 12 discretion than otherwise he might.
22. Mr Underwood QC seeks support for his interpretation of rule 12 in the observations of the Supreme Court in Al Rawi v Security Service [2012] 1 AC 531, in which their Lordships emphasised the principle of open justice and need to ensure that in the PII process there is no unfairness or inequality of arms.
23. Counsel points out that in a public inquiry, unlike in a court, the owner of the PII material is not put to its election to abandon its case or concede disclosure. If the PII material is relevant to issues within the terms of reference of the inquiry, or to the obligations arising under Art 2, the Chairman must take it into account. Mr Underwood QC argues that if the Chairman were to take account of material which is not in the public domain and may not be placed in the public domain a system of closed justice is created contrary to the public interest as identified by the Supreme Court in Al Rawi.
24. As to the procedural aspects of an Art 2 compliant inquiry, Mr Underwood QC relies upon R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 for the proposition that where State agents are implicated in a killing whose circumstances and possible motivation is best known to those agents, the widest possible light should be shed on events. The provision of the means for open justice encapsulates the state's obligations under Art 2 (per Hope at page 679B). There must be an investigation which is seen to be independent, open and thorough. This obligation colours the exercise of the Chairman's discretion under rule 15(4)(a).
25. As to the challenge to exercise by the Chairman of his discretion we were reminded of the words of Laws LJ in an earlier review of the Chairman's decision concerning the anonymity of witnesses and arrangements for the receipt of their evidence (R (E) v Chairman of the Inquiry into the death of Azelle Rodney [2012] EWHC 563 (Admin) at paragraphs 24 and 25) to the effect that the Chairman was in the best position to decide the merits of a controversial issue. Mr Underwood QC submits that Ms Alexander's legal team must be permitted to view the two hour footage in order to make their own assessment of its importance to the issue whether other and better opportunities arose for the interception of the VW Golf. They will not be permitted to receive information concerning the specific public interest MPS is seeking to protect, but they can at least assist the Chairman's balancing exercise by identifying those features of the evidence which they submit are essential to the proper resolution of the issues.

First Interested Party

26. Mr Thomas relies on the closing words of the Chairman's ruling:

"It does fill me ... with dismay that we seem to spend so much time on this topic of air surveillance. It is not a topic which is irrelevant, it has a modest part to play in fulfilling the terms of reference. It will certainly receive at least a paragraph in my report. It may be a bit difficult to extend it to two paragraphs. With that in mind the average member of the public may be becoming slightly concerned as to whether we cannot curtail this in some way, and so that we can focus time, energy and their money on the crucial matters which are: What happened in Hale Lane?"

The Chairman is at present, therefore, of the view that the two hour footage is relevant but has a modest part to play in the proceedings. He is not seeking Mr Thomas' assistance as to relevance but of the probative significance of the footage in a consideration of the issues at the centre of the Inquiry. At present the Chairman needs assistance and Mr Thomas cannot provide it without access to the footage. He, his legal team, and Ms Alexander are all content to abide by the confidentiality arrangements required by rule 12(5) and (6). The burden of confidentiality even from his own client does not cause him professional embarrassment.

27. Mr Thomas identifies those issues which he wishes to explore and upon whose resolution the aerial footage may have an important contribution to make. They are in summary:

(1) Should the suspects have been arrested on foot in Harlesden?

(2) One of the reasons given for not selecting Harlesden is that officers on the ground were not familiar with the area. Was the footage or should the footage have been available for the purpose of familiarizing officers on the ground with the location in Harlesden?

(3) Should the hard stop have been completed at some earlier stage between Harlesden and Hale Lane?

(4) Should those commanders on the ground have been made aware that aerial surveillance could have informed their decisions?

(5) When were the guns placed in the VW Golf?

Mr Thomas says that he cannot be expected to make submissions on the relevance of the footage until he has seen it. He submits that the First Interested Party "cannot (and should not be expected to) rely on the Inquiry to assess and weigh up each of the multifarious competing considerations in the way she would".

28. Mr Thomas joins with Mr Underwood QC in his contention that the Chairman enjoys a broad discretionary area of judgment under rule 12. The words "may" and "the chairman considers" demonstrate the breadth of the discretion. He relies upon Laws LJ's reference in E at paragraph 26 to the pressing public interest in openness:

"26. Next, there is, in my judgment, a very pressing public interest in openness on the facts of this case. It concerns, after all, a man sitting in a car with no weapon in his hand who has eight shots fired at him at close range causing his death. Because of intelligence considerations there is factual material which cannot be publicly divulged. There has been a long delay in the investigation. It seems to me the defendant was fully entitled to put what he called a premium on achieving as public an inquiry as possible, "so that at the least to counter or neutralise the obvious alternative surmise, namely a sustained cover up."

Mr Thomas supports Mr Underwood QC's submissions as to need for open justice and the procedural requirements for an Art 2 compliant inquiry. Contrary to Mr Underwood's argument, Mr Thomas maintains that he will be able to make submissions upon the public interest without full disclosure. He cannot, however, assist with submissions as to the balancing exercise without being able to judge first-hand the strength of his arguments as to probative significance of the footage. In particular, without seeing the footage he cannot judge whether the First Interested Party's interests would be protected adequately by the collection of stills from the moving pictures or the editing of the footage to remove that which is causing concern to MPS.

29. Mr Thomas emphasises that this would not be the only occasion during the Inquiry during which the First Interested Party's legal team has been in receipt of information which it has not been at liberty to reveal or discuss with her. He submits that rule 12(5) and (6) have been provided by Parliament to enable limited disclosure to take place in appropriate circumstances. They are designed to prevent harm to the public interest while, at the same time, protecting the public interest in open justice. Sensitive information is graded by MPS as (1) top secret, (2) secret, (3) confidential, (4) restricted and (5) protect. The first Interested Party has argued that the footage is now graded "(4) restricted" having been downgraded from "(2) secret". This is not accepted by the claimant. This, Mr Thomas submits, is relevant to the balance to be struck when deciding whether to order limited disclosure. Mr Thomas relies upon the Chairman's observation that viewing the footage does not obviously identify the nature of the aerial asset and that speculation would be unproductive. He suggests that even if the footage does reveal something about the technology, it may that the technology is already in the public domain.
30. As to the duty of the state to provide an effective investigation into death caused by state agents it was a principle that performance of that duty required effective participation by the deceased's next of kin.

Fourth Interested Party

31. The Independent Police Complaints Commission ("IPCC"), established under section 9 Police Reform Act 2002, carried out an investigation into the death of Mr Rodney and reported on 9 December 2009. On 28 June 2005 during a two hour meeting with Ms Alexander's lawyers, IPCC informed them that there were no aerial pictures of the incident in Hale Lane. Mr Cousins, senior investigator with IPCC, had been given that information by the commander in charge of intelligence information at MPS. In November 2005 Mr Cousins learned that footage existed. He was informed that it had 'secret' status. He viewed the material and considered that it did not depict the hard stop. Enhancement of the footage did not improve the images. IPCC having given its assurance to Ms Alexander that no footage existed, Mr Wadham, the Commissioner overseeing the investigation, considered IPCC's obligations under section 20 Police Reform Act 2002 and regulation 12 Police (Complaints and Misconduct) Regulations 2004. Regulation 12(b)(i) and (ii) provide that the (section 20) obligation to provide information to a complainant did not apply where in the opinion of the Commission non-disclosure "is necessary for the purpose of ... (b) preventing the disclosure of information in any circumstances in which its non-disclosure – (i) is in the interests of national security; is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders ...". Mr Wadham, exercising a conscientious judgment in which he took account of the apparent lack of evidential value of the material and the proportionality of disclosure, concluded that he should not make disclosure to Ms Alexander. Subsequently, the two hour footage was designated by MPS no longer as "secret" but as "restricted" and the concluding footage was enhanced by an expert on behalf of the Inquiry; as we have noted above, late disclosure of the existence of that enhancement was made. We also note Ms Studd QC's observation that the claimant continues to regard the footage as 'secret'.
32. IPCC supports the Chairman's decision to permit limited disclosure on the principal ground that it is the public interest that the suspicion of cover up by the police should be dispelled.

Discussion

The public interest the claimant is seeking to protect

33. In R v H [2004] UKHL 3, [2004] 2 AC 134 (HL), at paragraph 18, Lord Bingham of Cornhill described the nature of the public interest which the prosecution in a criminal case commonly seeks to protect when it is in possession of relevant material whose disclosure is resisted:

"18. Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and under-cover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial."

34. In the present case the MPS wishes to prevent disclosure to the public of the nature of the aerial surveillance platform which enabled the two hour footage to be filmed since to do so would jeopardise the success of future operations, by making public that the platform is available to the police as one of the means at their disposal to detect and prevent crime. Disclosure of the film would not, of itself, disclose the identity of the platform but, it will be argued before the Chairman, the film would enable those with relevant technical knowledge to infer its identity and capabilities. The Chairman has made plain his preliminary view that he is concerned, in the performance of his section 17(3) duty, to curtail the exploration of peripheral and unproductive lines of inquiry. However, he has concluded that the footage is not irrelevant and wishes to hear argument from the First Interested Party before ruling whether it should be placed before the Inquiry in public.
35. We have had the advantage of reading a transcript of proceedings in the closed session during which Mr Osborne attested to his witness statement and gave further evidence. We have no doubt that the public has a real interest in the non-disclosure of the technological capabilities of the covert aerial platform which recorded the footage. We make clear that we have not thought it necessary to view the two hour footage ourselves. We are aware of the concern that viewing the footage may provide a clue or clues to the technological capabilities of the asset and the reason for that concern.

The grounds

Issue 1: "disclosure to an individual is necessary for the determination of the application"

36. Section 19 Inquiries Act 2005 gives to the Minister and the Chairman of the Inquiry the power to control the public receipt of evidence by the Inquiry by two means. The first (section 19(1)(a)) is that one or more of the participants or the public may be excluded from the session when the evidence is received. The second (section 19(1)(b)) is that disclosure or publication of the evidence given, produced or provided to the Inquiry may be restricted. A restriction order issued by the Chairman may only specify restrictions (for the purposes of the present case) which are required by any rule of law (section 19(3)(a)) or that the Chairman considers to be conducive to the Inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard to the matters identified in section 19(4).
37. It is the duty of a litigant who asserts that documents are immune from production or disclosure on public interest grounds to take the issue of disclosure before the court. Where a litigant holds documents in a class which, on the face of it, is immune he must, save in an exceptional case, decline to disclose them and invite the court to rule upon the balance of the public interest (per Lord Bingham in Makanjuola v Commissioner of Police [1992] 2 All ER 617 at page 623).
38. Public interest immunity ("PII") is a well known feature of the rule of law by which parties to legal proceedings, civil or criminal, will be prevented from disclosing evidence it would be against the public interest to disclose. It is a curious feature of section 19(3) that separate protection is given to evidence which must be restricted by a rule of law and evidence which it is necessary in the public interest to restrict as defined by subsections (4) and (5). Subsections (4) and (5) specify any risk of harm or damage which may be avoided or reduced by a restriction order including (but not limited to) death or injury, damage to national security, international relations, national economic interests and damage caused by the disclosure of commercially sensitive information. It is difficult to envisage evidence the "owner" of which is obliged not to disclose on the grounds of PII, and which may be the subject of a restriction order under section 19(3)(a), which it would not also be in the public interest to restrict under section 19(3)(b). Ms Studd QC points out that there may be a duty of confidentiality owed by an inquiry, or the participants in an inquiry, which must be fulfilled notwithstanding the absence of any direct national or public interest save that the restriction order is "conducive to the inquiry fulfilling its terms of reference". We have doubts whether this is the explanation for the two-handed protection offered by section 19(3)(a) and (b) but this is not a conundrum with which this court is presently concerned because it is accepted on all sides that the two hour footage in the hands of the Inquiry is undoubtedly material in respect of which MPS is entitled to seek a restriction order.
39. When the Chairman considers the application for a restriction order he will first decide whether the evidence is relevant to the issues he must consider within his terms of reference. His preliminary view is that it is relevant. Assuming that counsel continues to maintain that the footage has probative significance, the Chairman will, secondly, decide whether there is a real risk of prejudice to an important public interest which may be caused by public disclosure. If there is such a risk, the Chairman will, thirdly, consider whether the Third Interested Party's interests can be protected by a form of disclosure which gives adequate protection to the public interest. Fourthly, the Chairman will consider the powers at his disposal to ensure that evidence which should not be in the public domain is not received in public session. In reaching his decision, the Chairman will have in mind the important principle that, so far as possible, those intimately concerned in an Art 2 inquiry must be afforded effective means of participation.
40. The present application concerns the interim stage, before the Chairman has given his ruling under section 19(3). By rule 12(3) IR 2006, made pursuant to the power given to the Secretary of State by section 41 of the Act, the Chairman "may disclose the potentially restricted evidence to a person who would not otherwise be permitted to see it". The First Interested Party's legal team are such persons since, for the purposes of the rule, potentially restricted evidence is subject to the same restrictions as if the order sought by MPS had already been made (rule 12(2)). By rule 12(4) the Chairman may only disclose potentially restricted evidence to a person not otherwise entitled to see it if he considers that it is necessary for the determination of the application and he has afforded those interested the opportunity to make representations as to whether the evidence should be disclosed to the individual concerned. There is no dispute that the Chairman received representations and indeed heard evidence in closed session from MPS as to why disclosure should not be made. The issue is whether it was reasonably open to the Chairman to decide that disclosure was necessary.
41. The claimant contends that, contrary to the submissions made by the defendant and interested parties, rule 12(4) does not create a broad-based discretion to do what is desirable or convenient but a narrowly circumscribed test for judgment, in a public interest context, whether the application cannot properly be decided without disclosure.
42. In our view, the meaning of the word "necessary" must be ascertained from the context in which it is used, namely the determination of a PII application the result of which may be that the chairman orders non-disclosure in the public interest. PII applications are made routinely in court proceedings. The judge will consider the material, usually (i.e. when the application is made ex parte on notice) with the benefit of preliminary representations on behalf of the opposite party as to the possible relevance of the material to the issues raised by the defendant or other party in the case. The step by step approach required, and very familiar in a criminal case, was set out by Lord Bingham in H at paragraph 36. Only as a last resort, when none of the preceding steps has resulted in a satisfactory resolution which protects the legitimate public interest and does fairness to the defendant, will the judge contemplate the possibility of seeking the assistance of "special counsel" to whom alone the material is provided pending a PII ruling. In our experience the engagement of special counsel is a rare event in a criminal case outside the special statutory jurisdiction of SIAC. In our judgment, the word "necessary" in rule 12(4) is not used in a sense synonymous with the words "convenient" or "desirable". Nor, despite the requirement upon the chairman in section 17(3) to have regard to the need to avoid unnecessary cost, does cost effectiveness have a role to play in his judgment; costs incurred in a properly conducted PII application are necessarily incurred. In our judgment, what is required is the chairman's conclusion that without limited disclosure the section 19 application cannot satisfactorily be determined. We were informed by Ms Studd QC that MPS is aware of only one other occasion when an Inquiry has applied rule 12(4)(a) to make interim disclosure. We are not surprised. We fully recognise that the occasions when it will be appropriate to use the power during a PII process will be extremely rare.
43. We reject the arguments addressed to us in writing that the chairman enjoys a broad-based discretion to make limited disclosure. We do not conclude that use of the words "may disclose" and "the chairman considers" liberalise the decision making process required by rule 12(4). When that provisional view was expressed from the Bench during argument we did not detect significant disagreement with it. Counsel to the Inquiry and Mr Thomas did submit that the Chairman, when making his judgment, was bound to have in mind his obligation to ensure that the family was afforded an effective opportunity to participate in the proceedings. We agree that throughout the Inquiry the Chairman will have this obligation in mind, but we do not consider that the obligation extends to making even limited disclosure when that is unnecessary for the determination of a PII application. It is well recognised in the ECtHR that Art 2 does not necessarily require the disclosure of sensitive information to next of kin, and the requisite access to the investigation's procedures may take place by other means (Ramsahai and Others v Netherlands (Case 52391/99) [2008] 46 EHRR 43 at paragraphs 347 and 348).
44. Ms Studd QC did not go so far as to submit that the only circumstances in which limited disclosure might be ordered would be those the equivalent of the need arising for the appointment of special counsel, but she did submit that necessity was, in effect a signpost for "last resort" in a PII application. She offered an example of other circumstances which might arise during the course of an inquiry. The chairman may receive information in circumstances of confidentiality which affects the interests or reputation of a core participant in the inquiry. He may wish to communicate that information to the core participant affected before receiving representations whether he should make a restriction order to prevent wider publication. In those circumstances no national interest will be involved. Here, the purpose of restricting disclosure will be defeated if the Chairman were to act according to the convenience of the Inquiry rather than upon principle. We recognise that there may be many different occasions on which the chairman will be required to exercise a judgment. However, examples of unlike circumstances do not provide a solution in these. We were reminded that in the ordinary PII proceedings the prosecution retains the ultimate right to protect material from publication by abandoning the prosecution. At the Inquiry MPS has no such power. It is bound by the Chairman's ruling subject to review and appeal. We accept that this is a consequence of the power given, subject to intervention by the Minister. However, we are not prepared to hold that disclosure was "necessary" only if the Chairman concluded that resolution of the application was impossible without limited disclosure.
45. Subject to the qualification we have expressed, we accept Ms Studd QC's submission that the Chairman is required to make a judgment confined to the plain words of rule 12(4). In judging whether it is necessary to make limited disclosure for the determination of the application, we conclude the Chairman was bound to have in mind (1) the issues arising in the Inquiry, (2) the nature of the PII material, (3) the quality of the analysis which would be required in order to reach a decision whether the evidence should be more widely shared and (4) the question whether the determination could be made without prior disclosure.
46. We have noted, at paragraph 43 above, that rule 12(2) provides that the Chairman may, where the conditions in paragraph (4) are satisfied, disclose evidence. He is not bound to do so. The circumstances may be such that, notwithstanding the paragraph (4) conditions are satisfied, the risk of serious damage to the public interest is so compelling a factor that no disclosure is appropriate. In our judgment it is in this sense that the word "may" is used in rule 12(3). We are also satisfied that the present material does not fall into this category.

Issue 2: the Chairman's exercise of judgment

47. We are engaged with the Chairman's consideration of both limbs of rule 12(4), his decision that disclosure was necessary at the interlocutory stage, and that disclosure should be made to the individuals named by the Chairman. Ms Studd QC was anxious, and rightly anxious, to dispel any suspicion that MPS had any reason to doubt the sincerity of those to whom the Chairman ordered disclosure. Her concern is the burden placed upon individuals who are bound by confidentiality not to make accidental disclosure of evidence which it is in the public interest to protect from disclosure, certainly unless and until the contrary order is made by the Chairman.
48. We accept Ms Studd QC's submission that, read literally, the Chairman's reasons appear to reveal that he took into account an immaterial consideration, namely that one outcome of disclosure to Mr Thomas and his team might be that the issue of public dissemination of the evidence would disappear. Mr Thomas might discover that on reflection there was nothing in the aerial footage which advanced his examination of the management of the operation. Had this been a significant element in the Chairman's consideration of necessity, MPS would have real ground for complaint. It is on this ground that we grant permission for judicial review.
49. We have the further advantage of a transcript of the argument addressed to the Chairman by counsel to the Inquiry, MPS and Ms Alexander before he retired to closed session to consider Mr Osborne's evidence and Ms Studd QC's further submissions on the evidence received in closed session.
50. The Chairman had viewed the footage. He had listened to Mr Thomas' cross-examination of the commanders on the ground as to the management of the operation. He had been provided in writing with Mr Thomas' submissions as to the probable materiality of the footage. The Chairman could see for himself that these questions appeared to pursue a proper line of enquiry. This is not, in other words, a case in which a chairman has proceeded with an incomplete knowledge of the evidence and the issues to seek the help of others in order to resolve a difficult PII application; (compare H in which the House of Lords held that the instruction of special counsel had been premature when the judge had not examined the PII material for himself). Notwithstanding his grasp of the evidence and the issues it was the Chairman's view (see paragraph 15 above) that:

"It seems to me manifest, leaving aside Article 2 considerations, disclosure to Mr Thomas for viewing by him and his team is vital to settling the agenda for any PII application."

We have no doubt that these words are not to be read literally. The Chairman did not mean by "settling the agenda" that he was adopting a course of procedural convenience. He made his meaning clear at the end of the same passage:

"If he seeks to put all or any of it in evidence, effectively challenging the 2011 decision, this time on an inter partes basis, then that brings the focus on to the correct bearing. I have no hesitation in ruling that the disclosure to him is necessary."

The Chairman was ruling that, contrary to his earlier view, he now had to determine the application, but he was unable to determine the application without analysis of the footage by Mr Thomas and representations from him explaining, with further particulars, its probative significance to the important issues in the Inquiry. It was undoubtedly a possible consequence of the Chairman's ruling that valuable time might be saved, but we are satisfied that the Chairman was not replacing the test provided in rule 12(4)(a) for one of his own. He was merely identifying an advantage which may result from a decision made according the requirements of the rule.

51. We are confident that this is the correct interpretation of the Chairman's words because, in the course of his lengthy ruling, the Chairman reminded himself of the precise terms of rule 12 and the requirement of "necessity". The Chairman had received detailed submissions from Ms Studd QC as to the ordinary progress of a PII application and he referred in his ruling to Ms Studd QC's "objections". The Chairman is, to the knowledge of this Court, highly experienced in the management of PII issues in the course of legal proceedings and, we are sure, fully appreciated Ms Studd QC's reference to ordinary PII procedure. At no stage in his ruling did the Chairman suggest that he was applying other than the plain meaning of the words "necessary for the determination of the application".
52. We do not accept Ms Studd QC's submission that the Chairman misunderstood the Art 2 obligation to provide an effective opportunity for participation by the deceased's family. We are quite sure he knew perfectly well that PII hearings, properly conducted, are compatible with an Art 2 investigation. He had, however, received submissions based upon Art 2, to the effect that Mr Thomas should be permitted to participate on an equal footing, but the Chairman said in his ruling in response that, "leaving aside Art 2 considerations", he concluded that disclosure was vital. We reject the argument that the Chairman had misapplied Art 2 jurisprudence as some sort of support for Mr Thomas' argument.
53. We respectfully adopt the opinion of Laws LJ in the earlier review of another of the Chairman's decisions (see paragraph 25 above). On the present occasion it was the Chairman's intimate knowledge of the evidence and the issues in the Inquiry which provided him with the best possible vantage point from which to reach his conclusion.
54. We turn to Ms Studd QC's argument that the Chairman was wrong to reject her submissions, first that Ms Alexander's interests could be properly and adequately represented by counsel to the Inquiry, in the same way that counsel for the owner of PII material is obliged to identify for the judge material which may undermine his own case or assist the case for his opponent and, second, that disclosure to Ms Alexander's legal team should not have been permitted. As to her first argument, there were two principal difficulties. Mr Underwood QC was of the view that Mr Thomas' application should succeed. No doubt he reached that view for reasons similar to those expressed by the Chairman - the moment had been reached when only Mr Thomas' examination of the material could result in the proper determination of Ms Studd QC's application for a restriction order. Secondly, counsel to the Inquiry was not the owner of the material. If Mr Underwood QC did not consider that he was in a position adequately or properly to fulfil the function of advocate for the owner of the documents, it does not seem to us a realistic procedure for the Chairman to have adopted.
55. We recognise fully the singular and respected position occupied by special advocates in the management of very difficult disclosure issues, particularly in the realm of litigation concerned with allegations of terrorism. However, rule 12 does not specify the office or function of the person/individual to whom disclosure may be made under paragraphs (3) and (4). Ms Studd QC's submissions imply that the only suitable course, should the rule 12(4)(a) condition be satisfied, is the engagement of an advocate with security clearance. We do not accept that this can be so. Rule 12(4) contemplates the necessity to make disclosure to "an individual" (not any individual) for the determination of the section 19 application. The stages of consideration of the rule 12 question are (1) whether disclosure to an individual is necessary and, if so, (2) should disclosure to that person be permitted? In our view, the Chairman approached these questions as the rule required. Having identified the individuals to whom disclosure was necessary, he posed for himself the question whether disclosure should be permitted. MPS had no objection to disclosure to any of the individuals identified by the Chairman. It was the principle of disclosure which was being resisted.

Conclusion

For the reasons we have given the claim is dismissed.