John Buck successfully appeared for the Metropolitan Police Commissioner in the Court of Appeal

John Buck appeared for the Metropolitan Police Commissioner in the Court of Appeal successfully resisting an appeal by parents against an order for disclosure to the police of witness statements they had made and a record of conversations they had had with the Children’s Guardian within care proceedings. These formed part of the evidence for a fact finding hearing in which both parents were found to be responsible for the inflicting of life changing injuries upon their baby son including permanent brain damage leaving him “very severely disabled”.

The police sought disclosure of this material to assist with its criminal investigations and the C.P.S. with any charging decision.

The material did not include any confessions or admissions. Nor was it potentially valueless.

The parents argued disclosure should be withheld because the trial judge when taking into account those factors set out in the checklist in RE C (1997) 2 WLR 322 sub nom RE EC (DISCLOSURE OF MATERIAL)(1996) 2 FLR 725 misdirected herself:

1. by approaching the issue of confidentiality on the narrow basis of confidentiality of the child’s identity, rather than on the wider basis of the confidentiality which arises from care proceedings held in private;
2. by treating as identical, or broadly identical, the public interest considerations which arise in respect of:
   • disclosure of material from police investigations into care proceedings; and
   • disclosure from care proceedings into police investigations;
3. by apparently conflating  arguments that disclosure would compromise the parent’s right against self-incrimination with whether s98(2) CA 1989 confers a right to silence.

The parents argued, on a consideration of previous authorities where an appellate court had reviewed the way in which a trial judge had applied the RE EC checklist, because the material in question neither had the “magnetic” properties of a confession or admission nor was so “blandly anodyne” as to be valueless, the court should have been cautious not to allow disclosure by default.

It was argued on behalf of the Commissioner that it was not possible to discern from the transcript of the trial judge’s judgment that she had, in fact, misdirected herself in the manner alleged or at all. The court should be wary of analysing the minutiae of an extempore judgment as opposed to looking at it in the round. Moreover the only pattern which emerged from a review of the authorities on RE EC was of the circumstances in which    disclosure had been withheld such as where a transcript of evidence was valueless, for example, because it was unintelligible where its make suffered from a disability and/or where a criminal prosecution risked undermining a placement with its maker or another family member. Such circumstances were, by their very nature, exceptional.

It was argued on behalf of the parents that the material should not be disclosed because it could not possibly assist a prosecution or a charging decision. It was argued on behalf of the Commissioner that, absent any confession or admission the material was potentially of very great importance as circumstantial evidence forming part of an overall picture which might, following any re-interview of the suspects, lead to a decision to prosecute. But it might be of equal importance in leading to a decision not to prosecute.

The Court of Appeal dismissed the parents’ appeal.