Rowe & Ors v Fryers & Anor

Under C.P.R. 31.17, third-party disclosure requires documents which may well assist or undermine a party’s case and which are necessary for fair disposal or cost saving. If those conditions are met, the court retains a residual discretion.

Statements made to police, including interviews under caution, are confidential. They have no special or near-absolute protection merely because the interviewee was cautioned. The weight of confidentiality depends on the circumstances. The court must balance it against the strong public interest in deciding civil claims on all relevant evidence. Where disclosure is ordered, stringent restrictions should preserve confidentiality and prevent collateral use.

Prisoners brought civil claims against the Home Office alleging assault, misfeasance in public office and negligent prison management at Wormwood Scrubs. During a related police investigation, prison officers had been interviewed under caution. No charges were brought against the officers involved in these appeals.

The claimants sought third-party disclosure of the interview transcripts from the Commissioner of Police. The Commissioner and the Home Office adopted neutral positions. The prison officers, joined to resist the applications, opposed disclosure on confidentiality and public-interest grounds.

His Honour Judge Collins in the Central London County Court ordered disclosure in the present proceedings, having reached the same conclusion in earlier related proceedings. The central issue was whether confidential police interviews under caution should be disclosed for use in the civil claims.

1. The appeals were dismissed unanimously. The disclosure orders were upheld, subject to their strict conditions of use.

2. Per Scott Baker LJ, with Wilson J agreeing and Pill LJ giving concurring reasons, C.P.R. 31.17(3) requires three stages. The documents must be likely to support the applicant’s case or adversely affect another party’s case. They must also be necessary to dispose fairly of the claim or save costs. Only then does the court exercise its discretion, in which wider public-interest considerations may be balanced.

3. The interviews satisfied the relevance condition by concession. Disclosure was necessary for fair disposal because the officers’ accounts could materially establish or negate liability. The appellants had not invited the judge to inspect the material and had instead sought a ruling of principle.

4. Information provided to police during a criminal investigation is confidential, whether supplied by a witness or a suspect interviewed under caution. But the caution gives no special category of protection. The expression “exceptional circumstances” in Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 means that confidentiality should not readily be overridden; it does not impose a separate exceptional-circumstances test.

5. The court had to balance the public interest in maintaining police confidentiality against the public interest in a fair civil trial on full evidence. The latter was of very great weight in claims arising from the same alleged prison violence investigated by police. Particular reasons, such as informer protection, intimidation, privilege or comparable public-interest immunity, may justify non-disclosure in another case. None was established here.

6. Disclosure was not routine or uncontrolled. The judge’s restrictions confined use of the transcripts to the litigation, limited recipients, and preserved the court’s control over use at trial. Similar safeguards should accompany disclosure in comparable cases.

• Court of Appeal (Civil Division): dismissed the prison officers’ appeals and upheld the third-party disclosure orders.

• Central London County Court: His Honour Judge Collins ordered disclosure on 13 December 2002. In earlier related proceedings, he had also ordered disclosure on 3 May 2002; those proceedings settled before an appeal was heard.