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Focus on Regulation

High Court upholds public inquiry chairman’s decision to disclose covert surveillance footage

The High Court has rejected an application by the Metropolitan Police to withhold aerial surveillance footage from the legal team representing the mother of an individual shot and killed by police.  The High Court turned down the Met’s application for a judicial review of a decision by the chairman of an inquiry set up to investigate the death that the footage should be disclosed, holding that, although disclosure could only be made when “necessary” (and that was a strict test) the chairman had not erred in ordering disclosure in this exceptional case (R (on the application of Metropolitan Police Service) v The Chairman of the Inquiry into the death of Azelle Rodney and others [2012] EWHC 2783 (Admin)).

On 30 April 2005, further to the receipt of intelligence, a vehicle containing individuals suspected of being in possession of fire arms and intent on carrying out a robbery of men in possession of class A drugs was “hard-stopped” by armed police.  Azelle Rodney, who was sitting in the rear of the vehicle, was shot and killed.

At the inquiry, Azelle Rodney’s mother (“S”) raised questions as to whether there had been another, or a better, opportunity to stop the vehicle.  The Met released two minutes of covert aerial surveillance footage, which showed the hard-stop, but sought to withhold a further two hours of footage under s.19 of the Inquiries Act 2005, which relates to restrictions on disclosure on the basis of public interest grounds.  S applied for disclosure of the remaining footage under Rule 12(4)(a) of the Inquiry Rules 2006 which gives the inquiry chairman discretion, where “necessary” for the determination of a corresponding restriction application, to order the disclosure of potentially restricted material.  The chairman of the inquiry ordered the disclosure of the footage to S’s legal team.

The Met applied for judicial review of the claimant’s decision on the basis that the chairman had:

(a) erred in law in that he misdirected himself as to the meaning of the word “necessary” in Rule 12(4)(a) and applied a test akin to “convenience” or “desirability”;

(b) had not provided adequate reasons for his decision; and

(c) failed to give adequate weight to the public interest against disclosure. 

A trio of High Court judges upheld the decision of the chairman, and found that he was entitled to find that disclosure to S’s legal team was necessary.  While Rule 12(4) is used only rarely to facilitate interim disclosure, the chairman had been correct in interpreting the test set out in Rule 12.  The Court observed that the chairman was in the best position to decide the merits of such an application given his intimate knowledge of the evidence and issues at hand.  In order for the disclosure to be “necessary” the chairman needed to conclude that the s.19 application could not satisfactorily be determined without disclosure.  The chairman had correctly exercised his judgment.

In addition, the court rejected the submission of the claimant that the chairman had misunderstood the Article 2 obligation under the European Convention on Human Rights 1950 to provide an effective opportunity for participation by the deceased’s family.  The Court found that the chairman was well aware that public interest immunity restrictions on disclosure, when properly applied, are compatible with Article 2 investigations.