Green, R (on the application of) v Police Complaints Authority

The central legal issue was whether the Police Complaints Authority was required by section 80(1)(a) of the Police Act 1996 to disclose witness statements and other investigatory material to the complainant when the Authority was conducting a review under section 76 as to whether to recommend disciplinary proceedings. The House held that section 80(1)(a) does not impose a general duty to disclose: disclosure is permitted only "so far as may be necessary for the proper discharge of the Authority's functions", and the Authority member's judgment that disclosure was not necessary was lawful and reasonable. The court accepted that the complainant's allegations engaged the Convention (articles 2 and 3) and required a thorough, impartial investigation, but concluded that where the Authority had supervised a suitable investigation, certified it as satisfactory and given the complainant substantial involvement (interview, viewing the video, provisional and final reasoned decisions and opportunity to comment), articles 2 and 3 did not require the wider disclosure sought. Considerations of possible contamination of evidence and the confidentiality of witness statements supported withholding disclosure in the normal case.

The appellant, Mr Green, alleged that a police officer deliberately drove a car at him causing serious injury. The complaint was investigated by an officer of another force under Police Act 1996 supervision and the Police Complaints Authority (the Authority) issued a statement that the investigation had been conducted to its satisfaction. The Director of Public Prosecutions brought a charge of driving without due care and attention, to which the officer pleaded guilty. The Chief Constable decided not to bring disciplinary proceedings and the Authority initially declined to recommend disciplinary action; after correspondence and a judicial review claim, the Authority agreed to review and invited the appellant to submit further evidence. The appellant asked for disclosure of witness statements and documentary material held by the Authority; the Authority refused relying on section 80(1)(a) of the Police Act 1996. Moses J ordered disclosure but the Court of Appeal allowed the Authority's appeal. The appellant appealed to the House of Lords.

Nature of the claim: judicial review of the Authority's refusal to disclose investigatory material to the complainant during its review under section 76.

Issues framed:

• Whether section 80(1)(a) of the Police Act 1996 required disclosure of witness statements and documents to the complainant as "necessary for the proper discharge" of the Authority's functions;
• whether articles 2 and/or 3 of the European Convention required disclosure in order to secure an effective investigation;
• the weight of practical considerations such as contamination of evidence and confidentiality.

Court’s reasoning: the House analysed the statutory scheme and the Authority's supervisory role, concluding that section 80 creates a general prohibition with narrowly drawn exceptions and that subsection (1)(a) permits disclosure only when necessary for the proper discharge of the Authority's functions. The Authority had developed a practice of giving reasoned provisional decisions and inviting the complainant's comments; the appellant had already been interviewed, had viewed the video and was given opportunities to participate. The court accepted that articles 2 and 3 were engaged by the allegation and required an effective investigation, but held that in the circumstances the Convention did not require the further disclosure sought. The risk of contaminating evidence in potential criminal or disciplinary proceedings and the legitimate expectation of confidentiality in witness statements were material considerations supporting non-disclosure. The Authority member's conclusion that disclosure was not necessary for the proper discharge of functions was within lawful judgment and should stand.

Appeal dismissed. The House held that section 80(1)(a) of the Police Act 1996 permits disclosure only where it is necessary for the proper discharge of the Authority's functions and that the Authority member was entitled to conclude that disclosure of witness statements and documents was not necessary in the circumstances. Although articles 2 and 3 were engaged, the supervisory structure, the Authority's certification that the investigation was satisfactory and the complainant's substantial involvement meant that Convention rights did not require the wider disclosure sought; considerations of contamination and confidentiality further supported refusal.

Moses J (Administrative Court) ordered disclosure ([2001] EWHC Admin 1160). The Court of Appeal allowed the Authority's appeal [2002] EWCA Civ 389. Leave to appeal to the House of Lords was granted on 17 December 2002; the appeal was dismissed by the House of Lords ([2004] UKHL 6).