AAA v A Chief Constable

Open justice is a fundamental constitutional and Convention principle. A civil hearing may be conducted in private only where a clear case establishes that privacy is strictly necessary for justice to be done. The court must apply that test to the particular evidence and keep the arrangement under review. Where sensitive evidence creates a real risk to life or would prevent essential witnesses from giving evidence, a private hearing and a suitably sanitised open judgment may be justified.

A contractual claimant must plead and prove the contractual terms relied on, breach and causative loss. Assistance provided by a public authority under a witness-protection arrangement does not establish a binding entitlement to indefinite financial support where the contemporaneous documents provide for assistance subject to review.

AAA, a former confidential human intelligence source, claimed damages from a Chief Constable. He alleged that police officers had promised to protect him and his family, preserve his former financial position, obtain employment, meet mortgage liabilities and provide continuing welfare support after he entered witness protection.

The Chief Constable denied the alleged contractual arrangements and relied on written CHIS terms and memoranda of understanding governing the assistance provided. The court first determined whether the trial should be heard in private because publication of the evidence could expose AAA and police officers to serious harm. It then considered whether the alleged contractual terms existed, whether they were enforceable, and whether any breach had caused loss.

1. Private hearing. The general rule under CPR r 39.2(1) is that hearings are public. Applying CPR r 39.3 and the strict-necessity test, the court held that the trial had to be heard in private. Publicity would have risked identifying AAA and police officers, preventing them from giving evidence and creating real risks to life. The matter was kept under review, but no part of the trial could safely be heard in open court.
2. Open justice. Open justice is a constitutional principle and is also protected by Article 6(1) of the Convention. It may be restricted only where strictly necessary. The court preserved the principle as far as possible by publishing an open judgment while withholding sensitive material in a closed judgment. The course was consistent with the approach commended in An Informer v A Chief Constable [2013] QB 579.
3. Contractual claim. AAA failed to establish the alleged contract. His pleaded cases changed materially, the alleged terms were unsupported by reliable evidence, and the alleged promises were inconsistent with the contemporaneous CHIS terms and memoranda of understanding. The relevant officers lacked authority to promise the claimed financial and employment benefits, and it was inherently unlikely that such extensive obligations would have been agreed before the witness-protection assessment was complete.
4. The court accepted that the October memorandum was explained to AAA and knowingly signed. It governed the support provided after assessment, allowed financial support to be reviewed and amended, and required AAA to minimise the financial burden on the witness-protection unit. Payments, accommodation, a vehicle and counselling were provided under that arrangement or on an interim basis, rather than under the alleged binding contract.
5. There was therefore no binding contract in the terms pleaded. Alternatively, the Chief Constable acted in accordance with the memoranda. The claim was dismissed.