X, R (On the Application Of) v The Chief Constable of Y Police & Anor

Public interest immunity requires the court to balance the public interest in protecting police informants and confidential vetting information against the fair administration of justice. Article 6 does not confer an absolute right to disclosure of the gist of allegations. The question is one of degree, assessed in the context of the proceedings and the interests at stake. Where disclosure or gisting would risk identifying informants, and the claimant’s interests are comparatively limited, non-disclosure may be justified. Any restriction must nevertheless be strictly necessary, and the court must consider safeguards such as redaction, anonymity, confidentiality arrangements or special advocates. A voluntary police vetting process may materially strengthen the public interest in preserving confidentiality.

The claimant challenged the refusal of police vetting clearance for a voluntary community liaison position. The decision was based on confidential police intelligence, including serious allegations made by anonymous informants. The Chief Constable accepted that the withheld records were relevant and material to the judicial review, but applied for public interest immunity in respect of them. The claimant argued that disclosure, or at least a gist of the allegations, was required to enable effective participation under Article 6(1) of the ECHR. The issue was whether the public interest in protecting informants and the confidentiality of the vetting process outweighed the claimant’s procedural rights.

1. The PII application succeeded. The withheld records and the unredacted statements exhibiting them were not disclosed. The court invited the parties to agree the consequential order.
2. The records were relevant and material to the challenges to the retention and use of adverse information, and disclosure would ordinarily have been necessary for the fair disposal of the claim.
3. The applicable approach was a balancing exercise between the public interest in avoiding harm to the public service and the public interest in the fair administration of justice, as explained in R v Chief Constable of West Midlands, ex parte Wiley [1995] AC 274 HL. The protection of police informants was a very weighty public interest, reflecting the established principle discussed in D v National Society for the Prevention of Cruelty for Children [1978] AC 171.
4. Article 6(1) remained a powerful consideration, but it did not create an absolute right to the gist of allegations. The Court of Appeal’s broader approach in Bank Mellat v HM Treasury [2010] EWCA Civ 483, [2012] QB 91 had been reversed in the relevant respect by the Supreme Court in Home Office v Tariq [2012] 1 AC 452. The question was always one of degree, requiring the competing interests, the nature of the litigation and the interests involved to be assessed together.
5. Gisting was impossible without a significant risk of revealing the informants. The claim concerned neither liberty, health, current employment nor a substantial financial interest. The claimant had voluntarily entered a vetting process which might involve confidential and sensitive information. The balance therefore overwhelmingly favoured non-disclosure.
6. Any restriction had to be strictly necessary, consistently with Dunn v Durham County Council [2013] 1 WLR 2305. A confidentiality ring, undertakings or disclosure to the claimant’s lawyers would not adequately protect the informants or permit the claimant to give effective instructions.