MITCHELL CASE IN THE COURTS AGAIN (2): NON PARTY DISCLOSURE ISSUES
The substantive action in Mitchell goes on. A post on this blog in March considered the application for disclosure made against the police. This issue was considered again by Tugendhat J again yesterday when the judge made orders for disclosure against third parties.
- This matter has come back before the court following the judgment I handed down on 27 March 2014  EWHC 879 (QB). That judgment related to the applications made on 24 March. This judgment relates to the fresh application made on 19 May by Mr Rowland and NGN (“the Applicants”) for disclosure of documents, most of which are referred to in that judgment, but which I declined to order on 24 March. Two additional categories are also now sought.
- At the end of the hearing I announced my decision to grant the orders sought save in respect of the statements made by one of the third parties. I said I would give my reasons later and these are they.
- Mr Mitchell has still not served his Defence to the claim brought by Mr Rowland, but I was informed that that was expected to be served imminently. The issue between the parties in both actions is likely to include the following, as pleaded by Mr Mitchell in his Reply to the Defence of NGN. Para 3.8 of that Reply includes an allegation of collusion between police officers to make a false statement as follows:
“… Indeed, the author of the passer-by email has been forced to admit that he lied in stating he was present that night and that he simply did not witness the incident at all. However, his inclusion of exactly the same phrases as used in the police email before it was ever made public, demonstrates beyond argument that the fabrication of this email was done in collusion with the police email…”
- Unusually for an application for third party disclosure, an arrangement has been made whereby representatives of the Applicants have been permitted to inspect documents under conditions of confidentiality so that they could identify those which they submit are relevant and necessary for the purposes of CPR 31.17. Through the good offices of the Respondent, letters were sent to those who made statements and who had objected to the disclosure or who had not responded when contacted by the Respondent in advance of the application on 24 March, inviting them to attend this hearing or make representations through the Respondent.
- The Commissioner has also sought to assist the parties and the court by (a) identifying that documentation within his possession that might “arguably potentially be relevant” (to use the words in the Skeleton argument prepared by Mr Johnson) and (b) facilitating contact with those whose interests might be affected by the applications.
- The result of his endeavours has been that all police officers who might be directly affected by the applications for third party disclosure have been contacted. And a summary was prepared listing each individual affected, the statement or statements that have come into existence, the response (if any) of the third party concerned, and the gist of the statement. Only one third party appeared before me to raise an objection.
- In his submission the Commissioner listed the individuals whose witness evidence or documents are the subject of this application under a number of headings:
i) Witness evidence from the officers who witnessed the incident involving Mr Mitchell, or who became aware of it shortly afterwards. Some of those officers consented to the disclosure sought. Some did not respond and a small number objected to disclosure.
ii) Witness evidence from those who spoke to Mr Mitchell shortly after the incident. All individuals concerned consented except one.
iii) Transcripts of interviews with police officers (other than Mr Rowland) in which the specific details of the incident are addressed. All officers concerned consented.
iv) Documents relating to incidents on 20 September 2012 in which Mr Mitchell sought to leave Downing Street by bicycle.
- The third party who both objected and was represented before me was referred to as 1/12-13. There are two numbers after the forward slash because he made two witness statements. His evidence comes under heading (ii). He became aware of the incident shortly after it occurred, but is not a police officer.
- His evidence in item 12 relates to a conversation he had with a police officer who gave an account of the incident in question, and to a conversation between himself and Mr Mitchell. Item 13 provides additional clarification of the former conversations.
- His objections are on a number of grounds. But I need only consider one point. He submits that what he could say is hearsay. He accepts that he is not in a position to make submissions as to whether statements made by himself would be relevant, or disclosure of them necessary in the present proceedings. He leaves that question to the court.
- I am not satisfied that the statements made by 1/12-13 are likely to support the case of the Applicants or adversely affect the case of one of the other parties to the proceedings, or that disclosure is necessary in order to dispose fairly of the claim or to save costs. I reach that conclusion in so far as it is possible at this stage to identify the issues likely to arise in the two actions. If it should later appear that the issues may be different, then another judge could reach a different conclusion on a new application. My reasons are as follows.
- As to the evidence of his conversation with the officer, the officer who gave the account of the incident to 1/12-13 is one of those whose statements will be disclosed. The hearsay evidence of 1/12 is no more than evidence that a complaint was made shortly after the events. That is not likely to add anything to the first hand evidence of the officer who made the complaint to 1/12.
- As to the evidence of his conversation with Mr Mitchell, the most that can be said about it is that it would be relevant, if at all, as evidence of propensity or similar facts. In my judgment it is unlikely that a judge at trial would consider that the evidence of the words allegedly used by Mr Mitchell on the occasion of his conversation with 1/12-13 would have any material probative weight on any issue likely to arise in these actions.
- Having reached these conclusions I have not had to consider the objections which were advanced on behalf of 1/12-13. Those objections go substantially to whether, if the criteria of relevance and necessity had been satisfied, I ought to exercise the discretion that the opening words of rule 31.17(3) provides for (“the court may make an order”). But I record that if I had had to consider those objections I would have been assisted by the citations in Mr Bird’s skeleton argument, including Taylor v SFO  2 AC 177 at 198B and 211B.
- In relation to the other third parties, having considered the material put before the court, I was satisfied that the criteria set out in CPR 31.17(3)(a) and (b) are satisfied, and that I ought to exercise my discretion to make the orders for disclosure sought. This is a libel action between private parties. But the issues that it raises are ones that concern the public to a greater extent than most libel actions. There is a strong public interest in the court having before it all the relevant evidence and documents. The third parties have legitimate concerns about becoming involved in an action which attracts the interest that this action attracts. But they were all police officers and the events in question arise out of their official duties. The public interest in disclosure clearly outweighs the interests of the individual third parties. And in so far as the third parties have raised issues, their concerns can be substantially addressed by the conditions under which the order for disclosure is made, and by further orders of the court, to be made in the future, if necessary.