R v Chief Constable of West Midlands Police, Ex p Wiley (R v Chief Constable of Nottinghamshire Constabulary, Ex parte Sunderland, Sunderland, Ex parte, Wiley, Ex parte)

Public interest immunity does not attach as a class to all documents generated by investigations under Part IX of the Police and Criminal Evidence Act 1984. A new class immunity requires clear and compelling evidence that it is necessary. The public interest in preventing harm through disclosure must outweigh the public interest in the administration of justice.

Complaint material may still attract immunity because of its particular contents. The possibility of a properly established, narrower class for investigating officers’ reports was left open.

Immunity ordinarily protects against disclosure of documents or their contents, not against using knowledge derived from them. Absent exceptional circumstances, courts should not impose injunctions or undertakings barring such use. Questions of immunity should normally be resolved within the proceedings in which the material is relevant.

These consolidated appeals concerned statutory investigations of complaints made by Kelvin Wiley and Tony Sunderland against police officers. Wiley had commenced civil proceedings for false imprisonment and malicious prosecution. Sunderland intended to claim damages for false imprisonment, malicious prosecution and assault.

Popplewell J declared that the Chief Constables had acted unlawfully by refusing undertakings not to use complaint-investigation material. He also restrained the Chief Constable of Nottinghamshire Police from using material generated by the Sunderland investigation. The Court of Appeal dismissed the Chief Constables’ appeals in [1994] 1 W.L.R. 126.

The principal question was whether statements and other documents generated under Part IX of the Police and Criminal Evidence Act 1984 formed a class protected by public interest immunity. A subsidiary question concerned whether immunity prevented use of information as well as disclosure, and whether those issues should be decided through collateral judicial-review proceedings.

1. The consolidated appeals were allowed unanimously. Lord Woolf delivered the leading speech. Lord Templeman agreed with his reasoning and conclusions, while Lords Bridge of Harwich, Slynn of Hadley and Lloyd of Berwick also agreed that the appeals should be allowed for Lord Woolf’s reasons.

2. Per Lord Woolf, public interest immunity requires a balance between two aspects of the public interest: avoiding harm through disclosure and ensuring the proper administration of justice. The courts have final responsibility for that balance. Before immunity arises in civil proceedings, the document must also be relevant and its discovery or inspection necessary for the fair disposal of the proceedings or the saving of costs.

3. Clear and compelling evidence is required before a new class immunity may be recognised. No sufficient evidential basis had ever existed for treating every document created during a complaint investigation under Part IX of the Police and Criminal Evidence Act 1984 as immune. The supposed risk that complainants, witnesses or police officers would withhold co-operation was not established. The immunity could itself discourage co-operation by placing complainants at a litigation disadvantage.

4. Neilson v Laugharne [1981] Q.B. 736 was overruled. Lord Woolf held that it and the decisions applying its general class immunity had been wrongly decided. Lord Templeman expressly stated that Neilson, Hehir v Commissioner of Police of the Metropolis and Makanjuola v Commissioner of Police of the Metropolis should be overruled.

5. The rejection of general class immunity did not exclude claims based on the contents of particular documents, including sensitive operational information or information identifying informants. Lord Woolf left open whether clear evidence might support a narrower class claim for an investigating officer’s report. Lord Slynn expressly reserved that question, and Lord Lloyd likewise declined to rule out a limited class claim.

6. Per Lord Woolf, public interest immunity ordinarily prevents disclosure of a document or its contents. In the absence of exceptional circumstances, it does not prohibit a party or its lawyers from using knowledge already obtained from the document. Injunctions or undertakings designed to prevent all such use are impractical and may increase injustice. Courts and legal advisers should instead consider partial disclosure, restricted disclosure or the provision of necessary information by other means.

7. Questions of immunity should, where possible, be decided in the proceedings in which the documents are relevant. The balance of public interests may change before or during trial. The declarations and injunction granted by Popplewell J, and the Court of Appeal orders affirming them, were set aside. The causes were remitted to the Queen’s Bench Division, with no order for costs apart from legal-aid taxation.

1. House of Lords: The consolidated appeals were allowed unanimously. The orders of the Court of Appeal and Popplewell J were set aside, save as to legal-aid taxation. The causes were remitted to the Queen’s Bench Division.

2. Court of Appeal: In [1994] 1 W.L.R. 126, the court unanimously dismissed the Chief Constables’ appeals. It upheld the conclusion that police complaint files attracted class immunity and that the police should not be permitted to use the protected information in the related civil proceedings.

3. Queen’s Bench Division: Popplewell J granted both applicants declarations that the Chief Constables had acted unlawfully by refusing the requested undertakings. Sunderland also obtained an injunction restraining use of the investigation material. Wiley’s separate challenge to the decision dispensing with further investigation of his complaint was unsuccessful.