Chief Constable of the Greater Manchester Police v McNally

Information concerning the identity of police informers is generally immune from disclosure in civil and criminal proceedings. The immunity protects the public interest in preventing and detecting crime, but it is not governed by an exhaustive list of exceptions. In civil proceedings the court must balance informer protection against the countervailing interest in a fair trial. Very considerable weight must be given to informer protection, while the claimant’s interest may be reduced where liberty is not presently at stake. The balance may nevertheless favour disclosure where withholding the information risks a miscarriage of justice, the information is potentially decisive on a central issue, and the claimant seeks redress for serious alleged unlawful detention. An appellate court reviews, rather than rehears, the discretionary decision.

The respondent brought a civil jury claim for wrongful arrest, false imprisonment and malicious prosecution arising from his arrest, ten months’ remand and failed murder prosecution. During the trial, the High Court, Queen’s Bench Division, presided over by Rafferty J, ordered the appellant Chief Constable to disclose whether a person identified as X was a police informer. The issue arose after cross-examination suggested that X had threatened a prosecution witness. The respondent contended that X had assisted the witness and that his informer status was material to the jury’s assessment of alleged police coercion, malice and lack of reasonable and probable cause. The Chief Constable argued that informer immunity permitted disclosure only in tightly defined exceptional cases. The central issue was whether the judge was entitled to balance the competing public interests.

Auld LJ delivered the judgment of the court, with which Robert Walker LJ and Sir Christopher Slade agreed. The appeal was dismissed.

1. Information concerning the identity of police informers is generally immune from disclosure in both civil and criminal proceedings. The rule protects the public interest in preventing and detecting crime by preserving the flow of information. The authorities illustrate exceptions, including disclosure necessary to prevent a miscarriage of justice and disclosure consented to by the informer where no greater public interest is harmed. The formulation in D v NSPCC [1978] AC 171 did not require an exhaustive list of exceptions in civil proceedings.
2. Powell v Chief Constable of North Wales Constabulary The Times, 11 February 2000 and Whitmarsh v The Chief Constable of Avon and Somerset Constabulary unreported 31st March 2000 demonstrated that the competing interests could be balanced. Carnduff v Rock and Anor [2001] 1 WLR 1786 was distinguishable because disclosure there threatened important police operational procedures.
3. The Convention strengthened the case-specific approach. The public interests engaged included informer protection under Articles 2 and 8 of the European Convention of Human Rights, and the claimant’s interests under Articles 5.5 and 6(1). Article 6 rights are capable of proportionate qualification where directed to a clear and proper public objective, no greater than necessary, and consistent with the overall fairness of the trial.
4. The appellate function was review, not rehearing. Intervention was justified only for an error of law or where the judge’s decision fell outside the bounds of possible reasonable disagreement. The judge was entitled to give substantial weight to informer protection, while treating the claimant’s civil status as reducing the weight of his immediate liberty interest. The balance nevertheless favoured disclosure because withholding the information created a serious risk that the jury would be misled on a central issue, the information could have been decisive, the claim concerned more than ten months’ alleged wrongful detention, and both sides knew X’s identity and the claimant believed him to be an informer. The possible exposure of serious police misconduct was an additional consideration.

The appeal was dismissed with costs. Public-funded costs were subject to assessment, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): [2002] EWCA Civ 14; dismissed the appeal against the disclosure order, with costs.
• High Court of Justice, Queen’s Bench Division (Rafferty J): during the civil jury trial, ordered disclosure of whether X was a police informer.