Appeal No. EAT/179/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24 June 1992
	Judgment given 11 September 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M L BOYLE

	MR R H PHIPPS

(1)  COMMISSIONER OF THE METROPOLITAN POLICE	APPELLANTS
(2)  COMMANDER BLENKIN

MR W HALLIDAY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr S Wiggs
	(of Counsel)
The Solicitor's Department
Metropolitan Police
New Scotland Yard
Broadway
LONDON SW1H 0BG

For the Respondent	Mr K Menon
	(of Counsel)
	Messrs Makanda & Co
	Solicitors
	Paul Anthony House
	724 Holloway Road
	LONDON N19 3JD

	MR JUSTICE WOOD (PRESIDENT)     In this case the Applicant, who is a police constable, alleges race discrimination against both Respondents.  His Originating Application is dated 10th October 1990.  It makes the following allegation -
	"I am a serving police officer with the Metropolitan Police.  On 23 June 1989 I commenced Industrial Tribunal proceedings alleging race discrimination and victimisation by the lst Respondent and Inspector Thirkell.  My case (IT Ashford No.12300/89) was heard at the Industrial Tribunal, Ashford during 18 days between 12th February and 24th July 1990.  The decision has been reserved.

	 I was on duty on Saturday 14th July 1990 with 4 or 5 other police officers.  At or about 1.20 a.m. on Sunday 15th July 1990, I was involved in arresting a Mr Sidney Scamp.  As a result of being assaulted by Mr Scamp, in the course of the said arrest, I suffered injuries which resulted in my receiving medical treatment.  On 19th July 1990, officers of the M515 Branch searched my locker at Orpington police station.  I was informed by Chief Superintendent Charwood in the presence of Superintendent Sutherland that there was an allegation of assault.  On or about 3.30 p.m. on Friday 20th July I attended a meeting with the Second Respondent.  Others present were Chief Superintendent Humber, Chief Superintendent Charwood, D. Superintendent Lloyd, and P C Muir also attended as my friend.  I was served with a Complaint Form 163.  I told them that it was victimisation.  I was suspended. ..."

	The decision of the Industrial Tribunal at that earlier hearing in Ashford was handed down on 27th November 1990 and was in the Applicant's favour.

	Subsequently a report was sent to the Direct of Public Prosecutions (DPP) and on 22nd February 1991 PC Halliday was charged with assault on Mr Scamp.  On 27th July 1991 he was acquitted by a Jury.  Mr Scamp was not called as a witness.  The Applicant or his advisers have copies of the statements of all witnesses whose names appeared on the indictment, together with the unused material extending, we are told, to some 90 pages.

	His case is presented in two ways.  First, it is alleged that under the provisions of S.4(2)(c) and S.1(1)(a) of the Race Relations Act 1976 - direct discrimination - the Applicant has been subjected to racial discrimination in that in the course of his employment he has been subjected some other detriment, namely investigation and suspension to which less favourable treatment he would not have been subjected but for being black.

	Secondly, under the same S.4(2)(c) and S.2(1)(a), (b), (c) or (d) he suffered victimisation in that because he did one or more of the acts described in those sub-paragraphs, he was subjected to investigation and suspension.

	The arrest of Mr Scamp took place at 1.20 a.m. on Sunday 15th July.  On 18th July PC Graham and PC Whitewood complained to Chief Superintendent Charlwood concerning the alleged assault on Mr Scamp during his arrest.  Commander Blenkin of New Scotland Yard (the second Respondent) was approached and appointed Detective Superintendent Lloyd to investigate.  On 19th July, he, together with Detective Inspector Cooper, carried out the investigation.  On 20th July Form 163 was served on the Applicant setting out the allegations and he was suspended.

	The "Nature of Report, Allegation or Complaint" was as follows -
	"On Sunday 15th July 1990 at 1.20 am in Hearns Rise, Orpington Kent you arrested Mr Sidney SCAMP on suspicion of taking and driving away a motor vehicle, refusing to provide a breath specimen and for assault.

It is alleged that you struck Mr SCAMP about the head and body several times with your police truncheon, causing cuts to the head and bruising to the upper body.

It is further alleged that whilst you were escorting Mr SCAMP to Orpington Police Station in a police carrier you kicked the prisoner as he was lying on the floor and also used abusive and threatening language towards him.

It is also alleged that when you escorted Mr SCAMP from the police carrier into Orpington Police Station you pulled him by the hair, forcing his head downwards."  

	The Applicant relies upon events occurring after the presentation of his Originating Application on 10th October 1990 as relevant to indicate that what occurred before was of a discriminatory nature.

	In reply to a request for particulars of the names of those officers alleged to have been involved in the victimisation, the Applicant named those already mentioned and in addition Detective Sergeant McCullough, PC Ralph and PC Richardson.  When asked for the way in which each officer was involved, the Applicant alleges -
	"Reply

	(1)The Second Respondent suspended the Applicant on 19th July 1990 - see paragraph 10 of the Originating Application.

	(2)The Second Respondent, Chief Supdt Charlwood, Det Supdt Lloyd, Det Sgt McCullough and Det Inspector Cooper were involved at various stages in the illegal search of the Applicant's locker and/or in the investigation into the alleged complaint made by Mr Scamp and or in the preparation of reports which resulted in the decision to prosecute the Applicant.  The Applicant, understandably, is in no position to give precise details of each individual official's involvement in the acts of victimisation/racial discrimination.  In due course the Applicant will apply for discovery of the relevant documents from the Respondents.

	The Applicant would rely on the fact that at his trial at Middlesex Guildhall Crown Court on 15th - 17th July 1991 on counts of assault on Mr Scamp, the prosecution did not call on Mr Scamp to give evidence and the Applicant was acquitted on all charges by a jury.

	PCs Graham, Whitewood, Ralph and Richardson gave evidence for the prosecution at the same Crown Court trial." 

	By a letter dated 23rd August 1991, the Applicant's Solicitor applied inter alia for discovery of the following documents -
	"I should also be grateful to receive from you all documents, statements, notes, minutes made or taken by all investigating officers, including: Blenkin, Charwood, Lloyd, McCullough and Cooper, in the course of the investigation or complaint referred to in Form 163."

	Those documents are in effect the contents of the Complaints and Disciplinary Files.  (C and D Files).  The Industrial Tribunal has ordered discovery and inspection of those files, "save for those documents covered by legal professional privilege".

	The Respondents appeal.

	The learned Chairman in her careful judgment reviewed a substantial number of cases including the decision of this Court in HALFORD v. SHARPLES & Ors [1992] ICR 146, in which the present issue was raised, amongst others.  Since the hearing before the Industrial Tribunal which is now appealed, the Court of Appeal has delivered judgments in HALFORD upholding that decision and giving valuable guidance in cases such as the present.

	We appreciate the succinct way in which submissions have been made to us in this present appeal.  We have been referred only to HALFORD both in the Court of Appeal and this Tribunal and to SCIENCE RESEARCH COUNCIL v NASSÉ [1979] ICR 921 HL.

	By the time that HALFORD reached the Court of Appeal the only issue was whether the C and D Files were the subject of Public Interest Immunity (PII) "Class" privilege.  C and D Files were described in HALFORD at p.161B as follows -
	"Disciplinary proceedings within the police can form part of either or both the following and the documents maintained in disciplinary files can be relevant to and can refer to both.  The procedures could be said to be interlocking and overlapping, as indeed is the documentation.  The first type of procedure - the statutory procedure - takes place before the police complaints authority under the provisions of sections 83 to 100 of the Police and Criminal Evidence Act 1984.  These replace some provisions of the Police Acts 1964 and 1976.  The second - the internal procedure - takes place under the provisions of the Police (Discipline) Regulations 1985 (SI 1985 No.518).

	 The disciplinary files will include statements made in the course of inquiries under either or both procedures; reports to the Director of Public Prosecutions and the Crown Prosecutions Service and communication between those services and the police; letters from the public, not in statutory form; notes of investigating officers; memoranda from police officers; attendance notes on telephone conversations with the public and other comments and advice.  In referring to the public, it should be noticed that informers provide an important part of information reaching the police.  Misinformation can seek to mislead and to undermine confidence."

	A number of relevant principles emerge from those cases and from NEILSON v. LAUGHERNE [1981] 1 QB 736 AND MAKANJUOLA v. COMMISSIONER OF POLICE FOR THE METROPOLIS (16th March 1989 CA unreported).

	First, that whilst appreciating the problems which face any applicant who alleges discrimination, nevertheless proceedings before an Industrial Tribunal in such cases are civil proceedings for procedural purposes.  This is made clear in the judgment of Butler-Sloss LJ in HALFORD and in some passages in NASSÉ - per Lord Wilberforce, p.927D - 928D and in particular the phrase "... there is however the limitation that a person cannot be required to give information or produce documents, which he could not be compelled to give in evidence or produce in civil proceedings before the High Court."; per Lord Salmon, p.932H -933C; per Lord Edmond Davis, p.939E.

	Secondly, that in a PII "Class" case the file or files must be considered as a whole, as one entity.

	Thirdly, that the claim of PII privilege is not one made at the discretion of the party making the claim.  There is a duty to make that claim if the facts suggest that it arises.

	Fourthly, that there can be no waver of this privilege and it therefore follows that where certain documents from files have become public, for instance through a subsequent prosecution as have some statements in the present case, the integrity of the C and D Files is not thereby undermined. 

	Fifthly, that in a PII "Class" case, no question of balancing immunity from disclosure against public interest arises at the discovery stage.  It may possibly arise during trial.

	Sixthly, the judgments in HALFORD stress the importance of maintaining the separation between the various types of privilege, see per Butler-Sloss LJ.  In cases such as the present the issues must be considered in logical order - is the documentation protected by PII "Class" privilege?  If not, is any particular document or part of a document protected by PII "Contents" privilege?  If there is no PII privilege, then "confidentiality" may be relevant and the documents can then be considered on the NASSÉ principles.

	From the reading of the documentation and of the decision of the Industrial Tribunal in this case, it seems to us quite clear that the sole issue was PII "Class" privilege.  Until that is decided no other issue on discovery of these documents can arise.

	So far as an Industrial Tribunal and this Tribunal are concerned, C and D Files are the subject of PII "Class" immunity and are not discoverable.  There can be no question of discretion.

	The only relevant issue on PII in NASSÉ was whether or not documents at issue in that case were covered by PII privilege.  If they were, it was accepted that no order could be made for their discovery.  The House of Lords decided that they were not.  The only relevant protection to be considered thereafter was one of confidentiality and their Lordships then considered how an Industrial Tribunal should approach that issue in cases of discrimination.

	That case did not affect the law on Public Interest Immunity.

	With respect to the learned Chairman, upon reading paragraphs 15, 16 and 17 of her decision it seems to us that she has elided the two or possibly the three heads of privilege, PII "Class", PII "Contents" and confidentiality, and has thus failed to consider each of them in turn.  If the documentation - the C and D files - fall within PII "Class", the remaining heads of privilege are not to be considered.

	We find ourselves also unable to accept her analysis of NASSÉ and the principles to be extracted from that decision in the House of Lords.

	For the reasons which we have given above therefore this appeal must be allowed and 
the order of the Industrial Tribunal set aside.