Application for disclosure of statements made by non-parties in the course of a criminal investigation

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/ EWHC/QB/2014/879.html&query=mitchell&method=boolean

An application for non-party disclosure was made under CPR r31.17 in respect of material which was  obtained in the course of an investigation under the Police Reform Act 2002 (relating to complaints  against police officers) and a criminal investigation. Tugendhat J held as follows:

  1. An order for non-party disclosure will rarely be made before a defence has been served (because  the test is whether the disclosure is likely to support or adversely affect a party’s case). In  this case, it was accepted that disclosure could be made earlier than that because the cases of the  parties in one action were very likely to be the same in the related action
  2. There is prior caselaw which recognises that those who make statements to the police, or give  information as witnesses, may do so in circumstances where an equitable obligation of confidence is owed to  them. That has to be balanced with the competing public interest that, as far as possible, the  courts should try civil claims on the basis of all the relevant material

Here, the judge drew a distinction on the basis that those who had made the statements in question  were not represented at the hearing. He declined to make the order. However, he commented that “For the avoidance of doubt, nothing in this judgment should be  taken as the expression by me of any view as to whether or not a non- party disclosure order should  be made in this case against the Commissioner in the event that the applications be renewed the  makers of the witness statements in question who have not consented to the making of an order are joined as parties or make representations to the court”.