Appeal No. EAT/557/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 1992
	and 22 January 1993
	Judgment delivered 10 March 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MISS C HOLROYD

	MR P SMITH

COMMISSIONER OF THE METROPOLITAN POLICE	APPELLANT

MRS S LOCKER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P GOULDING
	       (of Counsel)
Solicitors Department
Metropolitan Police Service
New Scotland Yard
Broadway
London SW1H 0BG

For the Respondent	MISS V GAY (of Counsel)
Messrs Deighton Guedalla
127 City Road
London EC1V 1JB

	MR JUSTICE KNOX:   The principal issue in this appeal is whether public interest immunity attaches itself to statements made during the course of the Metropolitan Police grievance procedure initiated by the applicant Mrs Sarah Locker. The Chairman of the Industrial Tribunal at London (South) ordered discovery of such statements after a hearing on 9th April 1992 by a decision sent to the parties on the 6th July, on the basis that public interest immunity did not attach to such documents. The Commissioner of the Metropolitan Police appeals against that decision.

	The background facts are that Mrs Locker, a Muslim woman of Turkish origins, has been an officer of the Metropolitan Police since March 1980 and has presented two Originating Applications against the Commissioner. The first ("the Discrimination Application") was presented on the 27th August 1991, and complained of unfair treatment in selection for a post as a C.I.D. officer and racial and sexual discrimination in relation to her application for such a posting. The second Originating Application ("the Victimisation Application") was presented on the 12th March 1992 and complained of victimisation after her application in the Discrimination Application mentioned above.

	At almost the same time as she presented the Discrimination Application Mrs Locker initiated an internal grievance procedure on 21 August 1991. This procedure was established by Special Police Order 10/87 and is specifically designed to cover grievances of discrimination which is unlawful either under the Sex Discrimination Act 1975 or the Race Relations Act, 1976.

	Mrs Locker herself had three interviews with Commander Comben, the investigating officer, in the course of the grievance procedure on the 25th September and the 1st and 21st October 1991. The records of those interviews either have been or will be disclosed and no outstanding issue arose regarding them in the appeal before us. It is with regard to other interviews conducted in the course of the grievance procedure that the issues arise.

	The Special Police Order 10/87 establishing the grievance procedure contained the following provisions. The purpose was stated as follows:

"This grievance procedure exists to ensure that individuals who feel they have a complaint under the Sex Discrimination Act  and the Race Relations Act are dealt with justly and in a manner which complies with legal requirements, in order to assist in the promotion of equality of opportunity and treatment within the force. This is also intended to minimise the risk of the Metropolitan Police  being taken to an Industrial Tribunal."

	It was also stated that contravention of any section of the Sex Discrimination Act or the Race Relation Act, in addition to being unlawful, might amount to a breach of the disciplinary code. Paragraph 9 of the Discipline Code (a code of offences set out in a schedule to the Police (Discipline) Regulations 1985 made pursuant to s.33 of the Police Act 1964 and s.101 of the Police and Criminal Evidence Act 1984 creates an offence of:

"Racially discriminatory behaviour, which offence is committed (without prejudice to the commission of any other offence) when a member of a police force

	a) while on duty, on the grounds of another person's colour, race, nationality or ethnic origins, acts towards that other person in any such way as is  mentioned in paragraph 8 (abuse of authority); or

	b) in any other way, on any of those grounds, treats improperly a person with whom he may be brought into contact while on duty."

	The grievance procedure provides for a grievance to be taken by a complainant through five stages, if he or she so wishes, the first stage being to the first line manager of the complainant and the fifth to the Assistant Commissioner Personnel and Training. It also contains this provision by way of comment on stage three, complaint to Area or Departmental Deputy Assistant Commissioner:-

"Chief superintendents and D.A.C.s should bear in mind that if it appears that an individual officer has contravened the Sex Discrimination Act or the Race Relations Act there may also be contravention of the discipline code and it may be considered necessary to appoint an investigating officer. Clearly chief superintendents and D.A.C.s will have to exercise discretion on the need for an investigating officer, but if the decision is to appoint one, then the accused officer must be notified immediately and told that any statement he or she makes under this grievance procedure cannot be treated as privileged."

	A statement on similar lines was made by Commander Comben at her first interview under the grievance procedure which he opened by saying:

"I have been appointed by the Deputy Assistant Commissioner to investigate certain grievances that have been made by you under the grievance procedure and to report my findings. I should first make it clear to you that the interview is strictly for the purpose of grievance procedure. The questions I ask and any answers you choose to give will not be used in the course of any future criminal or disciplinary investigation. However any statements or documents prepared for the grievance procedure can be disclosed in the course of Industrial Tribunal proceedings."

	There are specific provisions in s.17 of the Sex Discrimination Act 1975 and s.16 of the Race Relations Act requiring the holding of the office of constable to be treated as employment by the chief officer of police and by the police authority as respects acts done by him or them. It is almost a truism that it is important for the well being not only of the Metropolitan Police but of the inhabitants of London that the Metropolitan Police should be free of unlawful racial and sex discrimination both in its relations with the public and internally. Great stress was laid upon this by Mr Goulding for the Commissioner. No one contends the contrary. We would add that it is also important in our view that it should be seen to be free of such practices.

	For documents to be subject to discovery and inspection it is common ground they must be shown to be relevant and necessary for the fair disposal of the proceedings. See Dolling-Baker v. Merrett [1990] 1 W.L.R. 1205 a decision on the Rules of the Supreme Court but accepted as authoritative upon the corresponding County Court Rules which are the ones to which the Industrial Tribunal Rules of Procedure refer. Relevance was conceded before the Industrial Tribunal and it was not sought to go back on the concession before us. Necessity for fairly disposing of the proceedings was not conceded before the Industrial Tribunal and was strongly challenged before us. The point was shortly dealt with by the Industrial Tribunal although the need for both relevance and necessity was identified. So far as the Victimisation Application is concerned reliance was placed by Mr Goulding on the date filled in in Box 9 of the Originating Application in answer to the question:

"If your complaint is not about dismissal, please give the date when the action you are complaining about took place (or the date when you first knew about it)."

	That date was 23.9.91 which is one of several dates mentioned in the next box headed "please give full details of your complaint". There can in our view be no sound basis for limiting the issues in the Victimisation Application to events of the 23 September 1991. We accept Miss Gay's submission that part of Mrs Locker's complaint in the Victimisation Application is that the grievance procedure was not properly pursued and that Mrs Locker was asked irrelevant questions which may have been prompted by interviews in the grievance procedure. Mr Goulding described the argument as a fishing expedition. We are not satisfied that this is a justified criticism. Assuming that the relevant questions were indeed asked as alleged by Mrs Locker, as for present purposes we are bound to do, we are of opinion that the product of grievance procedure interviews is a legitimate subject for inspection to identify their genesis.

	This situation is less plain in relation to the Discrimination Application which is concerned with Mrs Locker's non selection for a CID posting at an interview on 9 August 1991 which antedates the grievance procedure. The argument was concerned with the extent to which evidence later in point of time than the act of discrimination complained of was capable of being relevant and admissible before an Industrial Tribunal hearing an originating application claiming unlawful racial discrimination. We were referred to Chattopadhyay v. Headmaster of Holloway School [1982] I.C.R. 132 where the critical event occurred on 12 March 1979 and an issue arose whether subsequent events claimed to show malevolence and victimisation were admissible. Browne-Wilkinson J. said at p.137:

"It seems to us to be clear, following that principle, that if in this case the applicant had been able to lead evidence that a person who attended the meeting on March 12, 1979, had before March 12, 1979, treated the applicant with hostility, that evidence of hostility would be admissible as showing circumstances consistent with a racialist attitude exhibited by that person, even though at the end of the day there might be another, innocent explanation for such hostility. The industrial tribunal accepted correctly that evidence of events subsequent to the alleged discrimination was admissible if logically probative of a relevant fact. We can see no relevant distinction between hostility before the event and hostility after the event; the evidence of such hostility is admitted with a view to showing that the person involved was treating the applicant differently from other people, whether he was animated by racial considerations or not. In either case it seems to call for an answer."

	A little later at p.138 he pointed out that the question was not whether the evidence, if admitted, would be decisive but whether it might tend to prove the case. In the present case as Mr Goulding pointed out what is in issue is the inspection of statements about events which may themselves have been anterior in date to the discriminatory conduct complained of and not evidence of later acts which might show differential treatment as in Chattopadhyay. Mr Goulding submitted that the statements were not intrinsically logically probative in that a different officer conducted the CID interview, the subject of the Discriminatory Application, from the officer who conducted the grievance procedure. On balance we have reached the conclusion that the allegations in the Discrimination Application do go significantly wider than the conduct of the interview when Mrs Locker was not selected for a CID post and as frequently happens she relies upon a background of discriminatory treatment which in our view would, if proved, clearly be admissible material from which inferences could, if the Industrial Tribunal thought it appropriate to do so, be drawn of discrimination on racial grounds. On that basis it does seem to us that Mrs Locker's grievance procedure may well have produced statements that would tend to prove such background facts. We therefore agree with the decision of the Industrial Tribunal that the statements are not only relevant but necessary.

	That means that the question of public interest immunity has to be dealt with. Miss Gay accepted that the decision in Neilson v. Laugharne [1981] 1 Q.B.736 was binding upon this Tribunal. The documents involved in that case were generated in the course of a complaints procedure under s.49 of the Police Act 1964 initiated by the plaintiff. The issue regarding public interest immunity arose in an action against the Chief Constable of Lancashire for (inter alia) trespass, false arrest and false imprisonment. Oliver L.J., having rejected a claim to legal professional privilege, said this of public interest immunity at p.751:

"What, as it seems to me, one has to look at is the likely consequence of a general right to disclosure in civil litigation in the context of the statutory purpose sought to be achieved by the section and to ask, first, whether these likely consequences support the contention that such disclosure would be contrary to the public interest and, secondly, if so, whether that interest is a consideration of such importance as to outweigh the public interest in disclosure.

Every case of this kind depends ultimately upon balancing the public interest in the administration of justice, which demands the disclosure of all relevant material against a competing public interest in withholding that material. Immunity from disclosure, as Lord Salmon observed in Reg. v. Lewes Justices, Ex Parte Secretary of State for the Home Department [1973] A.C.388, is not lightly to be extended to classes of documents other than those always recognised by the courts as entitled to immunity, but the boundaries of immunity are not to be regarded as immutably fixed. He said at p.412

"The principle is that whenever it is clearly contrary to the public interest for a document or information to be disclosed, then it is in law immune from disclosure. If a new class comes into existence to which this principle applies, then that class enjoys the same immunity."

Of the police complaints procedure he said this at p.752:

"The statements are volunteered for a particular purpose, namely, the statutory inquiry. No doubt the consequence is accepted, as it must be, that the inquiry may lead to a prosecution or to a disciplinary inquiry in which the maker of the statement may be called  to give evidence of some or all of the matters contained in his statement and that the statement may, therefore, to this extent fall to be used if such proceedings ensue. But I do not think it follows from that that disclosure of the statements for the quite alien purpose of civil litigation would not inhibit those whose co-operation is required if the inquiry is to be sensibly and usefully conducted. And it is this which, as it seems to me, is the crucial test."

	He identified as the true test whether the production of the documents in issue was likely to impede the carrying out of the public statutory purpose for which they were brought into existence. He answered that in the affirmative saying at pp 752-3:

"The question therefore, as it seems to me, must be this - will liability to disclosure in civil proceedings of statements taken in the course of such inquiry adversely affect the attainment of the legislature's purpose? It seems to me that it will in a number of ways. Take first the position of police officers who are asked to co-operate on the inquiry. They may themselves be potential defendants and, if they are, would clearly be disinclined to provide statements which might subsequently be used to found civil claims against them. They may be called upon to provide information about the activities of superior officers under whose command they are going to have to continue to serve in future. They may be willing, in the performance of their duty to do this, and to accept that they may be called upon to give evidence if a prosecution or disciplinary proceedings follow. But the complaints which have to be investigated under the Act are not restricted to those which may lead to prosecution or disciplinary proceedings. They cover things as trivial as minor incivility and as serious as assault. Will officers freely co-operate in assisting inquiries into the conduct of their superiors if they know that, quite regardless of whether a prosecution or disciplinary proceedings ensue, not only the fact that they have participated in the inquiry but the very statements which they have made are likely to come to the knowledge of the officer whose conduct is under investigation and under whom they may have to continue to serve by disclosure as a result of discovery in civil proceedings.

Statements may have to be taken from relatives or associates or neighbours of the complainant - statements which may well, in the event, be adverse to the claim which he seeks to assert and which may result in a decision that disciplinary proceedings or prosecution shall not be instituted. Are such persons likely to be willing to offer free and truthful co-operation in investigations under the section if they know that any statements which they make are liable to be disclosed to the complainant in any civil proceedings which he may be minded to commence?"

	Mr Goulding submitted that the process of reasoning there adopted applied with equal force to the grievance procedure with which this appeal is concerned.

	We can at this stage dispose of two submissions made by Miss Gay. The first was that Neilson v. Laugharne was an illustration of a bad case making bad law and that its ratio should not be extended. It is a decision of the Court of Appeal binding upon us and we see no basis upon which we should adopt any such wholesale condemnation of a decision by a superior Court. Secondly, she submitted that the candour doctrine had become discredited and should not be relied upon. The candour doctrine is a convenient shorthand for the principle which accords immunity on the ground that if it is refused classes of persons will be less candid than they would be if the documents were immune from disclosure. This again is much too sweeping a statement for us to use it as a useful guide. There have been judicial criticisms of the candour doctrine e.g. by Lord Salmon in Science Research Council v. Nassé [1980] A.C. 1028 at 1070 and by O'Connor L.J. in Campbell v. Tameside Metropolitan Borough Council  [1982] 1.Q.B. 1065 at 1079. But equally there are authoritative statements that it survives. See for example Lord Wilberforce's reference to an excessive dose of cold water in Burmah Oil Co. v. Bank of England [1980] A.C. 1090 at 1112. What matters most for our purposes is that in Neilson v. Laugharne, supra, Oliver L.J. plainly considered it to be a significant factor and that decision is binding upon us. Much of course depends upon the status of the person whose candour is under investigation. Cabinet ministers are made of sterner stuff than police informers to take two extremes. It would clearly be inappropriate as a matter of principle for us to reject all arguments based on the effect of disclosure on candour.

	Neilson v. Laugharne, supra, was concerned with the statutory police complaints procedure. That decision was applied in that regard in Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 A.E.R. 617 where it was also held that statements used as evidence in police disciplinary hearings and transcripts of such hearings were similarly the subject of public interest immunity. Bingham L.J. at p.622 analysed the choice facing the Court of Appeal in Neilson v. Laugharne, supra, mentioned that the wisdom of the choice had been doubted in Hehir v. Commissioner of Police of the Metropolis [1982] 1 W.L.R. 715  and held that the Court of Appeal must apply the ratio of Neilson's case to any case not distinguishable from it in principle. A fortiori this Tribunal must do likewise. Bingham L.J. stated the view which prevailed in Neilson v. Laugharne  in the following terms at p.622:

"The competing view was that in the public interest, statements made for purposes of a s 49 investigation should be available for use to further those purposes (whether disciplinary and private, or criminal and public) but no other. The underlying public interest asserted was (one infers) in the maintenance of an honourable,, disciplined, law-abiding and uncorrupt police force. The protection of that public interest required that allegations of improper or criminal conduct by police officers should be investigated and appropriate action taken. To that end it was necessary that members of the public or other police officers should be encouraged to give any relevant information they had to the appropriate authority without fear of harassment, intimidation or use of any statement in any other proceedings. It was therefore desirable in the public interest that statements made to the appropriate authority investigating a complaint against a police officer should not be liable to be produced or disclosed or referred to in any proceedings save disciplinary or criminal proceedings officially brought against the police officer in question. To hold otherwise would frustrate the statutory purpose of an investigation under the Act."

	The central issue before this Tribunal is therefore whether the grievance procedure differs in principle from the police disciplinary and complaints procedures. Before examining that issue mention should be made of the other authority relied upon by Mr Goulding in support of the argument that public interest immunity should be held to attach to the grievance procedure documentation and that is Halford v. Sharples [1992] I.C.R. 583 where there was an appeal against a decision of this Tribunal that public interest immunity attached to police complaints and disciplinary files. Butler Sloss L.J. held that the Court of Appeal was bound by the decisions in  Neilson v. Laugharne and Makanjuola, unless factors could be shown distinguishing those cases. Of one argument adduced to achieve that end, namely that what was in issue in Halford v. Sharples was neither witness statements nor transcripts and that the principle in  Neilson v. Laugharne did not cover entire complaint and discipline files, Butler Sloss L.J. said at p.622:

"This argument does not recognise the underlying unity of the files which are concerned with complaints, disciplinary incidents and relationships between police officers throughout their careers . . . . . If the principle enunciated in the judgements of Oliver L.J. and Bingham L.J. is to be followed, all documents which depend upon, refer to or relate to complaints and discipline, whether reports, correspondence, memoranda or notes between police officers, as well as statements or other evidence, have to be protected and consequently excluded. To use or produce the file in civil litigation is to deviate from the purpose as explained by Oliver L.J."

	These statements were aimed at an argument which sought to distinguish between different categories of documents generated by police complaints and disciplinary procedures and rejected the distinction. Halford v. Sharples was not concerned with the quite separate issue which the appeal before us raises namely whether the grievance procedure is distinguishable in principle from the police complaints and disciplinary procedures. That does not seem to us to be touched by the proposition that the same protection should extend in the complaints and disciplinary field, not only to statements and transcripts but also to entire files because of the underlying unity of the files. It does not therefore seem to us that the decision in Halford v. Sharples does more than emphasise the already firmly established proposition that at any rate in the Court of Appeal and this Tribunal the decision in Neilson v. Laugharne is binding unless it can be distinguished in principle.

	Before turning to the critical question whether there is such a distinction between the grievance procedure on the one hand and the complaints and disciplinary procedures on the other, it will be convenient to dispose of a feature which weighed heavily in the Industrial Tribunal decision under appeal. That is that because of the statement that Commander Comber made to Mrs Locker and the comment in the Special Police Order which established the grievance procedure both of which have been quoted above, those dealing with grievance procedures were aware that statements made could be used in Industrial Tribunal proceedings. We do not find that to be of any great weight because the question to be answered is whether the class of documents is by virtue of the nature of the procedure in which they were generated of a type to which class protection attaches. Foreseeability of disclosure is not critical to that issue which turns on the intrinsic nature of the relevant procedure. A somewhat similar argument was identified by Bingham L.J. in the Makanjuola decision at p.622 when he stated the competing view which did not gain acceptance by the Court of Appeal in Neilson v. Laugharne. He said:

"One view, urged by the plaintiff in that action, was that any statement made for the purposes of a s 49 investigation might be used either in disciplinary proceedings or in a criminal prosecution against a police officer and so its contents might become known to the police officer, other witnesses and members of the public at large in the ordinary course of events. Since these consequences would be foreseeable from the outset such statements could not be regarded as confidential and would not be appropriate subjects for public interest immunity."

	The rejection of that view involves, among other things, a rejection of foreseeability of publication as a fatal objection to the existence of public interest immunity if the status of the process which generates the documents in question is such that the court is satisfied that public interest immunity should apply. If the court does so decide, then the intimation to those involved in it that there will be no immunity from disclosure is erroneous and has to be disregarded. To treat such an intimation as governing the question whether public interest immunity attaches to the procedure would in our view be to allow the tail to wag the dog. The decision of the Court on a class claim has to be founded on a study of the nature and status of the procedure in question when properly carried out, and if that leads to the conclusion that public interest immunity should attach, the proper carrying out of the procedure would not include a warning that statements were liable to be disclosed.
We turn therefore to the central question whether the grievance procedure differs from the disciplinary and complaints procedures sufficiently to make the decision in Neilson v. Laugharne, supra, distinguishable. We have reached the conclusion that it does.

	The first, and in our view the principal, difference between the grievance procedure on the one hand and the complaints and disciplinary procedure on the other hand is that the latter procedures are statutory processes intended to punish and deter wrong-doers whereas the grievance procedure is a purely internal procedure, set up with the approval of such bodies as the Equal Opportunities Commission and the Commission for Racial Equality. Its purpose has been set out earlier in this judgement and is more concerned with promoting non-discriminatory practices and securing remedies for victims of such discriminatory practices than with punishing offenders. In addition the grievance procedure has parallels in other organisations where exactly the same laudable objects of providing remedies for victims of discriminatory practices are pursued without there being question of public interest immunity.

	The special position of the police seems to us to reside in the exceptional importance of honesty and propriety in the dealings between the police force and the public. Bingham L.J. described the public interest as the maintenance of an honourable, disciplined, law abiding and uncorrupt police force. No one would suggest that a dishonourable, undisciplined, law flouting and corrupt organisation of any sort was in the public interest but those requisites are particularly important in connection with the police, hence the much more stringent codes imposed upon the police by Parliament than those imposed upon other public services such as the Health Service and the Fire Service. There is however no such higher requirement or more stringent code of conduct imposed upon the police in matters of sex and racial discrimination. In those fields the police is treated in much the same way as other employers. The special provisions in s.17 of the Sex Discrimination Act and s.16 of the Race Relations Act referred to above are only necessary because without them there could well be doubt whether there was such an employment relationship as to cause Part II of the Sex Discrimination Act and of the Race Relations Act to apply at all. Although it is very important that unlawful discrimination should not be practised within the police force, so it is elsewhere in our society and the special position which the police occupies and the special statutory provisions made with the intention of reflecting that provision are in our view centred on the need for discipline and integrity rather than on any particular need to eradicate discrimination. We appreciate that there is a link between the disciplinary code and discrimination but that does not in our view have the effect of converting the measures against discrimination into part of the police disciplinary code. Equally we appreciate that there will often be a degree of overlap between documents in disciplinary files and therefore covered by public interest immunity and the same documents in a grievance procedure which on our view will not.  This is not an unprecedented state of affairs in that public interest immunity for a class of documents will not infrequently embrace documents which are in fact in the public domain.

	We do not consider that arguments based on the extent to which disclosure requirements might be abused carry any significant weight. Oliver L.J. discounted such arguments in Neilson v. Laugharne and conversely we attach little, if any, importance to the fact that there may well be less possibility of abuse in the disclosure of documents generated in the course of a grievance procedure, which can only be set in motion by members of the force, than of those generated in the complaints and disciplinary procedures which can be set in force by any member of the public whether or not disaffected. We have earlier dealt with the argument based on the warnings that were given of possible disclosure in Industrial Tribunal proceedings.

	We do not regard Industrial Tribunal proceedings as "alien proceedings" in the context of the grievance procedure in the sense in which Oliver L.J. used that expression in Neilson v. Laugharne and Butler-Sloss L.J. interpreted the phrase in Halford v. Sharples, supra, at pp 622-3, in assessing the inter relation between disciplinary and complaints procedure on the one hand and civil proceedings such as an action for damages for trespass and false imprisonment in Neilson v. Laugharne and Industrial Tribunal proceedings in Halford v. Sharples on the other hand. There is a much smaller gulf set between the grievance procedure and Industrial Tribunal proceedings such as the present proceedings if only because the whole scheme of the grievance procedure is set up with an eye to Industrial Tribunal proceedings and in contemplation of their availability to a complainant. It is at this point that the intimation that statements might be used in Industrial Tribunal proceedings fits in with what we perceive to be the underlying thrust of the grievance procedure and to that rather limited extent we regard it as consistent with the view we take of the purpose of the grievance procedure rather than a justification in itself for holding that public interest immunity does not attach.

	Finally the question arises whether the balance struck by the Industrial Tribunal between the public interest in the administration of justice in securing that all relevant material is before the Tribunal and the public interest in the proper functioning of the police service was vitiated by an error of law.. The problem was addressed in paragraph 11 of the Industrial Tribunal decision which read as follows:

"A further submission made on behalf of the respondents is that public confidence in the police force will be undermined if these documents are disclosed because it is important that the public have confidence that the police will not tolerate sexual or racial discrimination. It is equally important that the public have confidence that Industrial Tribunals are able to have before them all matters that are relevant and necessary when a person is alleging racial or sexual discrimination. I stated earlier it is important for a Tribunal to know that a grievance procedure has been properly carried out. If it has not the Tribunal will ask itself why. If it has been properly carried out that will assist the Tribunal in deciding whether any inference of discrimination can be drawn. If these documents are not disclosed I find the Tribunal will be hampered in their public duty. Balancing that duty against the public interest in the functioning of the police service, which interest is that they, the public, maintain confidence in that service I find that the disclosure of these documents will not affect the public functions of the police service. Although the class of documents which are protected by public interest immunity cannot be closed it should not be enlarged unless essential in the interest of the public and 'necessary for the proper functioning of the public service'. I find that in these applications it is not essential in the interest of the public but it is essential for the proper functioning of the Tribunal that they are disclosed. Neither is it necessary for the proper functioning of the police service that they are withheld. I therefore reject the respondent's submissions and order the 

disclosure of statements made during the course of Mrs Locker's grievance procedure."

	The quotation "necessary for the proper functioning of the public service" derives from Conway v. Rimmer [1968] A.C. 910 and is in our view the correct test. The only point upon which we have differed from the view taken by the Industrial Tribunal is on the significance of the warning that statements made by officers in the course of the grievance procedure would not be protected by privilege but liable to disclosure in Industrial Tribunal proceedings. We do not consider that the weight attached in the Industrial Tribunal to that aspect of the matter vitiates the balance struck in the paragraph last quoted above which is not affected by the existence of those warnings. Upon that basis we see no error of law in the balance struck and we therefore dismiss the appeal.