R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties ( EWHA 2783 (Admin)). The public inquiry into the death of Azelle Rodney, which commenced in 2010, was still under way when it was interrupted by the present dispute. It concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.
The Chairman of the Inquiry decided to permit disclosure and the Metropolitan Police Service (MPS) took these proceedings to challenge the decision.
The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party) was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel.
The MPS wanted to prevent disclosure to the public of the nature of the aerial surveillance platform which enabled the two hour footage to be filmed since to do so would jeopardise the success of future operations, by making public that the platform is available to the police as one of the means at their disposal to detect and prevent crime. Section 19 Inquiries Act 2005 gives the chairman to the inquiry the power to restrict disclosure or publication of the evidence provided to the Inquiry. If the Chairman (as in this case) is persuaded of the relevance of the material, he has to decide whether there is a real risk of prejudice to an important public interest which may be caused by public disclosure. If there is such a risk, the Chairman will consider whether the party’s interests can be protected by a form of disclosure which gives adequate protection to the public interest. Finally, the Chairman will consider the powers at his disposal to ensure that evidence which should not be in the public domain is not received in public session. In reaching his decision, the Chairman will have in mind the important principle that, so far as possible, those intimately concerned in an Article 2 inquiry must be afforded effective means of participation. By rule 12(4) IR 2006 the Chairman may only disclose potentially restricted evidence to a person not otherwise entitled to see it if he considers that it is necessary for the determination of the application; here, the Chairman decided to make such disclosure.
The nature of the public interest which the prosecution in a criminal case commonly seeks to assert when it is in possession of relevant material whose disclosure is resisted was described by Lord Bingham in R v H ( UKHL 3):
“public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and under-cover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial”.
The MPS claimed that the Chairman had erred in law in deciding that the film should be shown to the legal teams in the argument over public interest immunity (PII), which the police were claiming for the footage. It was also submitted that the Chairman had given inadequate reasons for reaching his conclusion. The defendants and interested parties contended that the Chairman had to have regard to his obligations under section 17(3) Inquiries Act 2005 to make his procedural decisions with fairness and the Inquiry’s obligations to make a full investigation under Article 2 of the Convention. They relied the observations of the Supreme Court in Al Rawi v Security Service  1 AC 531, in which their Lordships emphasised the principle of open justice and need to ensure that in the PII process there is no unfairness or inequality of arms. Taking this argument further, they contended that if the Chairman were to take account of material which is not in the public domain and may not be placed in the public domain a system of closed justice is created contrary to the public interest as identified by the Supreme Court in Al Rawi. Where State agents are implicated in a killing whose circumstances and possible motivation is best known to those agents, the widest possible light should be shed on events R (Amin) v Secretary of State for the Home Department  1 AC 653 .
The Independent Police Complaints Commission supported the Chairman’s decision to permit limited disclosure on the principal ground that it is the public interest that the suspicion of cover up by the police should be dispelled.
The Court dismissed this application by the MPS.
The Court’s reasoning
The Court acknowledged the interested parties’ arguments that the Chairman, when making his judgment, was bound to have in mind his obligation to ensure that the family was afforded an effective opportunity to participate in the proceedings. The Chairman would indeed have this obligation in mind, but
“we do not consider that the obligation extends to making even limited disclosure when that is unnecessary for the determination of a PII application. It is well recognised in the ECtHR that Art 2 does not necessarily require the disclosure of sensitive information to next of kin, and the requisite access to the investigation’s procedures may take place by other means (Ramsahai and Others v Netherlands (Case 52391/99) 46 EHRR 43 at paragraphs 347 and 348)”.
Nevertheless the Court was satisfied that the Chairman had directed himself properly under the rules of the Inquiry in this dispute over disclosure. At no stage in his ruling did the Chairman suggest that he was applying other than the plain meaning of the words “necessary for the determination of the application”. He had made his decision in favour of disclosure at the moment when only examination by Ms Alexander’s counsel of the material could result in the proper determination the MPS’s application for a restriction order.
This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.