The High Court has dismissed a claim for judicial review of a decision of the chairman of a statutory public inquiry to allow interim disclosure of surveillance evidence to the legal team of an interested party, in the context of an application by the police to restrict publication of that material.

Key points

  • The general position under the Inquiries Act 2005 is that evidence or documents which are before an inquiry are accessible by members of the public. However, the inquiry chairman may restrict the disclosure of such material to the extent he considers it to be conducive to the inquiry fulfilling its terms of reference or "necessary in the public interest". There is a related power in the Inquiries Rules 2006 to allow such material to be disclosed to a party who would not otherwise be permitted to see it, pending the determination of an application for restricted disclosure.
  • In this case, the chairman decided to use his power to disclose the potentially restricted information to the legal team of an interested party (the mother of the individual whose death was the subject of the inquiry) to enable them to consider it and make representations on the application to have the evidence withheld from the public.
  • The judgment considers the meaning of "necessary in the public interest" in this context and confirms that the power to restrict disclosure in such a case is not to be used lightly.
  • The chairman, in ordering the interim disclosure of the evidence to the legal team, had acted lawfully and reasonably.  

The inquiry

The inquiry in question related to the shooting by police of an individual, Azelle Rodney, when he and the other occupants of a car were stopped on suspicion of having intent to carry out an armed robbery. The police had intelligence that the occupants of the car were in possession of firearms. The vehicle had been placed under covert surveillance, from the air and on the ground, for a period of time before the order was given for a "hard-stop" by armed police officers and Mr Rodney was killed by one of those officers. One of the key issues in the inquiry was whether there had been an opportunity to stop the vehicle earlier and avoid the death of Mr Rodney. This involved consideration of the surveillance and stop operation.

The application to restrict disclosure of the covert surveillance footage

The police were concerned about making publicly available during the inquiry information which could potentially be helpful to criminals by jeopardising their operations. They were particularly concerned about disclosing the existence of the covert air surveillance platform and resulting footage. The footage, which lasted for some 2 hours, included about 2 minutes showing the stopping of the vehicle by the officers. At a directions hearing, the chairman had already indicated that he regarded most of the footage as irrelevant and that no questions should be asked about it.

However, the police made an application under section 19 Inquiries Act (the Act) to restrict disclosure of the aerial surveillance evidence. Under section 19, the disclosure or publication of evidence or documents given, produced or provided to an inquiry can be restricted by the chairman in certain limited circumstances. Restrictions must only be imposed in the following circumstances:-

  • where required by any statutory provision, enforceable Community obligation or rule of law; or
  • if they are conducive to the inquiry fulfilling its terms of reference or necessary in the public interest, having regard to certain specified matters.

The application was opposed and it was argued by the interested party (the victim's mother) that it was not possible to say (as the chairman had in his directions) whether the footage was irrelevant without having seen it. It therefore became necessary for the chairman to consider whether he should order limited interim disclosure to the interested party's legal team for that purpose.  

Disclosure of potentially restricted evidence under rule 12 (3) Inquiries Rules 2006

Rule 12 allows the chairman to disclose potentially restricted evidence (which covers evidence subject to an application under section 19 of the Act) to a person who would not normally be permitted to see it, pending the determination of the application. Certain conditions must be satisfied, including that the chairman must consider disclosure to be "necessary for the determination of the application" (rule 12 (4) (a)).

Having received written and oral representations from the parties (as required by the rules), the chairman decided to order disclosure to the interested party's legal team under rule 12 (3), having found with "no hesitation" that disclosure was "necessary" within the meaning of rule 12 (4) (a).  This was the decision under challenge in the judicial review proceedings.

Grounds of challenge

The main issue in the judicial review proceedings was whether the chairman had misdirected himself on the meaning of "necessary" in rule 12 (4) (a).  The court (Pitchford LJ giving judgment) began by considering the nature of the public interest which the police were seeking to protect, noting that any derogation from the "golden rule" of full disclosure must always be the minimum necessary to protect that public interest.  As to the meaning of "necessary" in this context, the court rejected the defendant chairman's argument that the wording conferred a broad discretion on him to do what was desirable or convenient, emphasising that the decision had to be made on the plain words of the rule.  To grant disclosure at this stage, the chairman must conclude that without it, the section 19 application could not satisfactorily be determined.  Had it been reasonably open to the chairman to reach that conclusion in this case?

The court found that it had.  Although it granted permission for judicial review (this being a rolled up hearing), the substantive claim was dismissed.  Whilst the chairman's reasons, taken literally, may have appeared to reveal that he took account of an irrelevant consideration (namely that the outcome of ordering interim disclosure may be that s.19 issue was disposed of), he was merely referring to a possible advantage rather than applying the wrong test.  It was clear that he had reminded himself of the precise terms of rule 12 and the requirement of "necessity".  Having done so, he was entitled to reach the conclusion he had.


Given that the whole purpose of public inquiries is to provide the public with a greater understanding about the relevant events, it is perhaps not surprising that the court adopted the approach it did.  One of the factors which must be considered by the chairman when deciding whether to allow an application under section 19 is the extent to which any restriction on disclosure might inhibit the allaying of public concern.  It is clear that any application to restrict public access to material which is put before an inquiry will therefore be considered very carefully and allowed only in exceptional circumstances. In order to be able to make informed representations on such applications, those affected (or at least their legal representatives) may need to see the material in question.  Having said that, however, it seems unlikely that this judgment will open any floodgates, since the court expressly noted that cases when it will be appropriate to use the power to make interim disclosure during a public interest immunity (PII) process will be "extremely rare".

R (Metropolitan Police Service) v Chairman of the Inquiry into the Death of Azelle Rodney [2012] EWHC 2783 (Admin)