Ashley & Anor v Sussex Police

Privacy and confidentiality do not, by themselves, justify refusing disclosure or inspection of relevant documents. The court must balance those interests against the need for a fair and just resolution, applying necessity and proportionality. At the inspection stage, it is generally premature to determine that disclosed material cannot be relevant or admissible at trial. Disclosure is broader than admissibility. Where a party relies on documents to support its case or avoid a misleading account of the evidence, inspection should ordinarily be permitted, subject to appropriate safeguards for confidential information and later decisions about admissibility, cross-examination and hearings in private.

The claim arose from the fatal shooting of James Ashley by a police officer during a police raid. Claims in negligence and false imprisonment had been admitted. Following earlier decisions in the same litigation, a civil assault and battery claim based on self-defence remained for trial, principally to obtain vindication.

The defendant had disclosed internal police files, including disciplinary material concerning the officer. The parties supported inspection, but the intervening officer objected on relevance, necessity, proportionality, privacy and confidentiality grounds. The issue was whether inspection should be prevented or restricted before trial.

1. Inspection permitted. There was no good reason to prevent the defendant from allowing the claimants to inspect the disclosed documents, as both principal parties wished.
2. At the inspection stage, it was premature to decide that material could have no relevance at trial or could not be relied upon. The trial judge would determine relevance, admissibility and the permissible scope of cross-examination. The judge would also decide whether confidential or private information should be heard in private.
3. The test for disclosure under CPR Part 31 is broader than the test for admissibility at trial. Documents may therefore properly be inspected even though their eventual evidential use remains uncertain.
4. Privacy and confidentiality rights are relevant considerations, including where they belong to a third party. They do not, without more, justify refusing standard disclosure or inspection. The court must balance those rights against the requirements of necessity and proportionality.
5. This was important litigation concerning the shooting of an unarmed citizen in his home. Material capable of illuminating the officer’s actions, potentially relevant aspects of his character, or his state of knowledge at the time appeared disclosable. The defendant wished to rely on the material, including to avoid a partial or misleading account. Inspection was therefore necessary to enable a fair and just determination.
6. Confidential handling and security arrangements could protect genuinely private material from unauthorised disclosure before trial. The relevant privacy and confidentiality interests were, at this stage, outweighed by the interests of justice.

The judgment records earlier decisions in the same litigation:

• House of Lords: the assault and battery claim was permitted to proceed and guidance was given on the civil self-defence test: [2008] 2 WLR 975.
• Court of Appeal: the earlier strike-out decision was held to have applied the wrong self-defence test, and disclosure directions were made concerning material relevant to the officer’s conduct, experience, condition and instructions: [2007] 1 WLR 398.
• High Court (Queen’s Bench Division): inspection of the disclosed documents was permitted.