Law Report: Police inquiry papers can be used in defamation case: Regina v Bromell; re Coventry Evening Telegraph. Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Simon Brown, Mr Justice Roche), 24 July 1992

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The public interest in the confidentiality of evidence given to an internal police disciplinary investigation could be outweighed by the public interest in limited disclosure of such evidence to enable justice to be done in a defamation action brought by the officers whose conduct had been investigated.

The Court of Appeal (Criminal Division) granted an application by Coventry Newspapers Ltd, publishers of the Coventry Evening Telegraph, and varied an undertaking given by Michael Thomas Bromell, the defendant in earlier criminal appeal proceedings, so as to enable documents disclosed by the Police Complaints Authority (PCA) in those proceedings to be used by the applicant in defending a libel action brought by two police officers.

In 1987, Bromell was convicted at Warwick Crown Court of unlawful wounding. In 1988, his first appeal against conviction was dismissed. In July 1989 he complained that the police had fabricated admissions in his interview notes. Such malpractice could by then be exposed using Electrostatic Depression Analysis.

Bromell's complaint was investigated by officers of the West Midlands Police. But when they visited Warwick Crown Court they found that the original interview notes from Bromell's case were missing from the court file.

It transpired that some days earlier two police officers, including the one accused of falsifying the notes, had been given unsupervised access to the file. The officers were suspended while an inquiry was held. The inquiry concluded that there was no evidence the officers had removed anything from the court file and they were returned to duty.

On 17 April 1991, the Coventry Evening Telegraph ran an article headlined 'Why The Chief Cracked Down On His Crime Staff'. It referred to the suggestion that the interview notes had been removed by two officers from the West Midlands Serious Crime Squad, and suggested that allegations about tampering with court files could never be proved because the vital evidence contained in the file had disappeared.

The two officers sued the newspaper for libel.

Meanwhile Bromell's case was referred to the Court of Appeal by the Home Secretary. On the court's order, the PCA disclosed all its documents on Bromell's case. The documents proved vital to the appeal, which was allowed on 22 June 1992.

The applicants now sought to rely on those documents to support a defence of justification in the libel action. Bromell was anxious to co-operate, but was bound by an implied undertaking, similar to that arising on discovery in civil proceedings, restricting use of the documents to his appeal against conviction. The PCA opposed the application, relying mainly on public interest immunity.

Desmond Browne QC and Mark Warby (Oswald Hickson Collier & Co) for the applicants; Stephen Richards (Treasury Solicitor) for the PCA.

LORD TAYLOR LCJ, giving the judgment of the court, said public interest immunity plainly existed in relation to this class of documents. The nature of that immunity was explained in Makanjuola v Metropolitan Police Commissioner (the Independent, 29 March 1989), where the Court of Appeal refused an application by a woman who was suing the police for damages for alleged sexual assault and buggery, for discovery of documents resulting from a police disciplinary inquiry.

The public interest in the maintenance of an honourable, disciplined, law abiding and uncorrupt police force required allegations of improper conduct to be investigated and appropriate action taken, which in turn required those giving evidence in such inquiries to be encouraged to do so freely and without fear of harassment, intimidation or the use of any statement in other proceedings.

Circumstances might arise, however, which required not merely the carrying out of a fresh balancing exercise but the disclosure of documents within this otherwise immune class because of some yet more potent countervailing public interest. The establishment of innocence in criminal proceedings was classically recognised as one such public interest.

The applicants contended that another important, indeed pre- eminent public interest required disclosure of these documents, in the interests of justice, for the fair and proper disposal of the libel proceedings brought by these possibly corrupt police officers.

How strong was that countervailing interest? If, as both the applicants and the wider public now had every reason to suspect, these documents pointed clearly towards corruption by named police officers, it was surely not to be tolerated that those same officers should mulct the press in damages while the courts disabled their adversaries from an effective defence by withholding the documents from them.

That would be repugnant alike to justice, to the public and indeed to those who gave their co-operation to the PCA, the very people whose interest was said to underlie the immunity.

Nor could their Lordships believe that granting the application would deter potential witnesses from co-operating in future investigations. Reassurances of confidentiality given to such witnesses expressly admitted of exceptions. What better case for an exception than this?

Moreover, the documents here were for use not as a sword but as a shield: this was hardly a floodgate situation.

Their Lordships would therefore vary Bromell's undertaking to allow him to hand over to the applicants the relevant PCA documents for use only in defending the libel action.