Green, R (on the application of) v Prosecution Service

Articles 2 and 3 require an effective and independent investigation of an arguable breach by state agents. They require victim involvement only to the extent necessary to safeguard legitimate interests. They do not create an automatic right to receive other witnesses’ statements during a police complaints investigation.

Early disclosure to an eyewitness complainant risks contaminating evidence and may frustrate criminal or disciplinary proceedings. Legitimate interests are ordinarily protected by a thorough independent investigation, an opportunity to provide evidence, information about progress, and reasoned conclusions. Under Police Act 1996 section 80, disclosure must also be necessary for the proper discharge of the Authority’s statutory functions.

Mr Green was seriously injured when struck by an unmarked police car driven by a police officer. He complained that the officer had attempted to kill him. Another police force investigated the complaint under the supervision of the Police Complaints Authority.

Moses J, in the Administrative Court, held that Articles 2 and 3 entitled an eyewitness complainant to receive other eyewitness accounts and scene evidence so that he could comment on them. The Authority appealed. The central issue was whether the Convention and section 80 of the Police Act 1996 required disclosure of witness material while the complaints process was continuing.

Appeal allowed unanimously. The Court set aside the disclosure order.

1. Simon Brown LJ held that the obligation of an effective investigation under Articles 2 and 3 did not require an eyewitness complainant to receive other witnesses’ statements during the investigation. The involvement required by Jordan v United Kingdom, Application No 24746/94, was involvement sufficient to protect legitimate interests, not participation as though the complainant supervised the investigating bodies.
2. A complainant’s interests were adequately protected by an independent and thorough investigation, an opportunity to contribute evidence, information about progress, and reasoned conclusions. A general rule was appropriate: witness statements should not be disclosed before completion of the investigation. Early disclosure was particularly unsuitable for eyewitness complainants because it risked contaminating their evidence and undermining criminal or disciplinary proceedings.
3. Chadwick LJ reached the same result on the narrower statutory ground. The investigation had ended with the Authority’s statement under section 73. The Authority was then reviewing whether to recommend disciplinary proceedings under section 76. Disclosure could not be necessary for that later function merely to enable an eyewitness complainant to comment on other evidence.
4. Hale LJ agreed. The statutory scheme had to promote proper police conduct, fairness to both parties, and public confidence. Confidentiality was a particular rather than general objection, but the criminal-law concern about contamination justified withholding witness statements until a prosecution had been ruled out or completed. A fully reasoned decision would usually provide the principal safeguard of fairness and confidence.

The Court distinguished Edwards v United Kingdom, Application no 46477/99. Its requirement for wider exposure arose from a materially different inquiry into systemic failures concerning a prisoner’s welfare.

• Court of Appeal (Civil Division) — allowed the Police Complaints Authority’s appeal and set aside the disclosure order: [2002] EWCA Civ 389.
• Administrative Court — Moses J declared that the requested eyewitness and scene material was in principle discloseable in the judicial review of the Authority’s refusal.