Metropolitan Police Service, R (on the application of) v Chairman Of The Inquiry Into The Death Of Azelle Rodney

Under rule 12(4) of the Inquiry Rules 2006, limited disclosure of potentially restricted evidence is permitted only where the chairman concludes that the relevant restriction application cannot be satisfactorily determined without disclosure. “Necessary” does not mean convenient or desirable, and cost-effectiveness is not a relevant substitute for necessity. The power is exceptional. The chairman must consider the issues in the inquiry, the nature of the protected material, the quality of analysis required and whether the application can be determined without prior disclosure. Article 2 may require effective participation by next of kin, but does not necessarily require disclosure of sensitive information. Even where rule 12(4) is satisfied, the chairman retains a discretion to refuse disclosure where the public-interest risk is compelling.

The Lord Chancellor established a public inquiry under section 1 of the Inquiries Act 2005 into the death of Azelle Rodney, who was shot by an armed police officer during a vehicle stop. The Metropolitan Police Service sought to prevent disclosure of two hours of covert aerial surveillance footage because disclosure might reveal the capabilities of the surveillance platform.

The Inquiry Chairman ordered limited disclosure of the footage to the legal team representing Mr Rodney’s mother, Susan Alexander, so that they could make representations on a proposed restriction order under section 19 of the Act. The MPS sought judicial review, alleging that the Chairman had applied an insufficiently strict meaning of “necessary”, had relied on irrelevant considerations and had failed to give adequate reasons.

1. The claim was dismissed. The court granted permission for judicial review because the Chairman’s reasons appeared literally to treat the possibility of saving time as relevant to necessity. However, the reasons read as a whole showed that he had applied the correct legal test and that the immaterial consideration had not materially influenced his decision.
2. Rule 12(4) of the Inquiry Rules 2006 does not confer a broad discretion to disclose evidence whenever disclosure is convenient or desirable. In the context of a proposed public-interest restriction order, “necessary” means that the chairman concludes that the application cannot be satisfactorily determined without limited disclosure. The use of “may” confirms that disclosure remains discretionary, even where the conditions in rule 12(4) are met.
3. The occasions for using rule 12(4) during a public-interest immunity process will be extremely rare. The chairman must consider:
   1. the issues arising in the inquiry;
   2. the nature of the potentially restricted material;
   3. the quality of analysis needed to decide whether wider disclosure should occur; and
   4. whether the restriction application can be determined without prior disclosure.
4. The chairman must have regard to the need for effective participation in an Article 2 investigation by those closely concerned, including the deceased’s family. Article 2 does not necessarily require sensitive information to be disclosed to next of kin, since effective access to the investigative process may be achieved by other means.
5. The Chairman had viewed the footage, understood the issues and had received detailed submissions explaining its possible probative significance. He was therefore not seeking assistance merely because he lacked knowledge of the evidence. His conclusion was that analysis by the interested party’s legal team was necessary to determine the restriction application. The possibility that disclosure might also save time was only an incidental advantage.
6. Rule 12 does not require disclosure to be made only to a special advocate or a person with security clearance. It permits disclosure to an appropriate individual where the necessity condition is satisfied, followed by a separate judgment on whether disclosure to that person should be permitted.

The Chairman had properly considered the public-interest concerns, the confidentiality obligations under rule 12(5) and (6), and the competing requirements of a fair and effective inquiry.