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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Raissi v Commissioner of Police [2007] EWHC 3421 (QB) (15 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/3421.html Cite as: [2007] EWHC 3421 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		15 November 2007

MR JUSTICE MCCOMBE

1. In this action the claimants, Sonia Raissi (whom I shall call "Mrs Sonia") and Mohammed Raissi (whom I shall call "Mr Mohammed") claim damages for wrongful arrest, and false imprisonment, against the defendant, the Commissioner of Police of the Metropolis ("the Commissioner").
2. The claim arises out of the claimants respective arrests, on 21 September 2001, by officers of the Metropolitan Police Force, in purported exercise of powers of arrest under section 41 (1) of the Terrorism Act 2000. They were arrested and detained on suspicion of involvement in the terrorist attacks in the United States on 11 September of that year. The claimants are, respectively, the wife and brother of one, Lotfi Raissi (whom I shall call "Lotfi") who was also suspected of involvement in those attacks.
3. Section 41 of the 2000 Act provides as follows:

"A constable may arrest without warrant a person whom he reasonably suspects to be a terrorist."

4. A terrorist is defined by section 40 of the same Act to include a person who:

"Is or has been concerned in the commission, preparation or instigation of acts of terrorism."

5. I am presently concerned with a preliminary point arising at the opening of the trial of the action, as to the extent to which (if at all) the proposed defences to the claim (indicated in the pleadings and witness statements as served) infringe the exclusion from legal proceedings of matters (in broad) deriving from or relating to the issue of interception warrants or applications, for such warrants under the Interception of Communications Act 1985 (see sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 commonly known by its initial letters RIPA, which I shall call "RIPA". The arguments have proceeded on the hypothesis (without admissions) that the material does so derive.
6. So far as material, sections 17 and 18 of RIPA provide as follows, section 17:

"(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which or Inquiries Act proceedings which in any manner —"

(a) discloses, in circumstances from which its origin anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur."

"(2) The following fall within this subsection—

…

(c) the issue of an interception warrant or of a warrant under the [1985 c. 56.] Interception of Communications Act 1985;

(d) the making of an application by any person for an interception warrant, or for a warrant under that Act."

7. The claimants allege that their arrest and detention was unlawful and it is common ground that it is for the Commissioner to establish otherwise. It is, principally, in the case of Mr Mohammed that the preliminary point before me arises. I shall concentrate on the defence served in respect of his claim and the evidence proposed to be adduced in support of it.
8. The defences to each of the claims set out (in some detail) information received by the anti-terrorist branch of the Metropolitan Police, SO13, as to the possible involvement of Lotfi in the attacks. In the first version of the defence to Mr Mohammed's claim, the Commissioner goes on to plead (in paragraphs 12 to 15) as follows:

"12. On the evening of 20 September DCS Bunn received secret intelligence in respect of which public interest immunity is asserted, which revealed that Lotfi had been potentially alerted to law enforcement interest in him and that he had reacted by contacting his brother, the claimant.

13. The intelligence was significant in that it appears to show that: (1) Lotfi reacted quickly to notification of law enforcement interest in him; (2) One of Lotfi's closest associates was his brother, the Claimant.

14. By reason of the matters aforesaid DCI MacBrayne honestly and reasonably suspected that the Claimant was also concerned in the commission, instigation or preparation of acts of terrorism, namely, the 9/11 attacks. In arriving at the conclusion in the preceding paragraph DCI MacBrayne was entitled to and did rely upon: (i) SO13's experience that terrorist organisations require extensive support to carry out their activities and often rely upon familial networks; (ii) the reasonable inference that a brother, especially an apparently close brother, as the secret intelligence suggested, would have some idea about what his brother was up to; (iii) the reasonable inference that a brother could assist his brother in his terrorist design, whether intentionally or unintentionally."

9. The argument before me (as I say) has proceeded without admissions being made, upon the hypothetical basis that the intelligence, here referred to and repeated in later versions of the pleading, was derived from material potentially excluded by RIPA. No other reason for its exclusion has been suggested.
10. Following objection taken on behalf of the claimants (to the defence in its original form) the Commissioner sought leave to amend. The draft pleading was in the following form:

"On the evening of 20 September DCS Bunn received information which the pleader is prohibited by force of law from referring to which raised suspicions concerning the Claimant's involvement with Lotfi."

The remainder of paragraph 12 is then deleted. Paragraph 13 is deleted and the pleading continues in draft at 14:

"By reason of the matters aforesaid DCI MacBrayne honestly and reasonably suspected the claimant was also concerned in the commission in the commission, instigation or preparation of acts of terrorism, namely, the 911 attacks."

And paragraph 15 remains as before.

11. It will be noted that a substantial part of paragraph 12 of the original defence and the whole of paragraph 13 were to be deleted, and reliance was placed not on public interest immunity but upon a prohibition on the pleader, by force of law, from referring to the information received. The claimants continued to object to the amendment in that form.
12. The problem came before Silber J in February 2006. The judge ordered that the Attorney General be invited to instruct counsel to make submissions on the following point of law and procedure:

"What procedure may lawfully be adopted by the Court in circumstances where a Chief Officer of police wishes to justify an arrest, wholly or partly, in reliance upon secret information which he asserts he is prohibited by law from adducing or otherwise referring to in the public domain."

It was then directed (along with other directions) that a hearing of this issue should take place in March 2006.

13. When the matter came back before Silber J, in fact in April of that year, the judge (as I understand it) gave leave to amend the defence (broadly as asked) and left over the question of the consequences of that new pleading to the trial judge, who would have before him the witness statements of those that the Commissioner intended to call on this and any other issue.
14. I say that leave was given to amend "broadly as asked" because the version of the pleadings (as served pursuant to the learned judge's order) has omitted from it entirely the passages removed from the original pleading, which had appeared crossed out in the draft to which I referred earlier. Perhaps this was to meet a potential point (I do not know) that even the appearance of the earlier material, in deleted form, might offend against RIPA.
15. Mr Owen QC, with whom Mr Thomas appears for the claimants, told me (as I saw it not contradicted by Mr Beloff QC and Mr Beggs for the Commissioner) that Silber J was persuaded on that occasion by Mr Beloff that, in accordance with the law stated in O'Hara v The Chief Constable of the RUC [1997] AC 286, the defendants' case rested entirely upon the state of mind of the arresting officers and that the information deriving from the more remote and, possibly, objectionable sources was unlikely to be of substantial relevance. It is understandable, therefore, that the matter should be left over for trial when the "shape" of the likely evidence became clearer.
16. Mr Owen's objection now is that what happened thereafter was that the statements of two of the Commissioner's witnesses, senior officers in SO13 at the time, sought to reintroduce precisely the same objectionable material as had been deleted by the amendment. Further (he submits) that that material so reintroduced continues to infringe the exclusion in section 17 of RIPA.
17. The passages in the statements are to be found in paragraph 32 of the statement of Detective Chief Superintendent John Bunn (now retired) and paragraph 46 of the statement of DCI MacBrayne. Those paragraphs are in the trial bundles, at bundle 3, pages 540 and 624, and can be treated as read into this judgment (which I do not wish to lengthen unnecessarily).
18. Mr Owen says that those passages continue to rely on the content of a communication whose reception in evidence (on the agreed hypothesis) is excluded by section 17. He argues that these statements are, in any event, irrelevant to the state of mind of the arresting officers which (as Mr Beloff asserts) is the material factor governing the lawfulness, or otherwise, of the arrests and that, in any event, the offending material should be excluded from evidence on that basis.
19. Mr Beloff made three main submissions to me: first, that what he said was the so-called RIPA point will probably not arise in the context of this trial at all; secondly, that if it did, it was open to the court to consider the underlying contentious material itself, pursuant to the exception to section 17 (to be found in sections 18(7) and (8) of RIPA) and thirdly, that, in any event, it was premature to make any ruling on this now, the question should be left over until all the other evidence had been heard.
20. Mr Beloff's first point is that the case does, indeed, turn upon the states of mind of the arresting officers: a Mr Bredo (in the case of Mr Mohammed) and a Miss Miller (in the case of Mrs Sonia). Provided that the court accepts (says Mr Beloff) that they each genuinely suspected the claimants to be "terrorists" (within the meaning of the 2000 Act) and had reasonable grounds for doing so at the time, then the arrests were lawful; the sources of the information were not required to be revealed.
21. Mr Beloff took me to certain passages in O'Hara's case. He accepted, of course, that a junior police officer cannot rely upon the mere fact of instruction from a superior officer to make an arrest. The relevant officer must exercise an individual discretion, on the basis of the circumstances known to him or her as to whether to proceed with the proposed arrest or not.
22. It is material to refer to O'Hara in order to put Mr Beloff's argument into its proper context. The broad decision in the case emerges from a very short passage in Lord Steyn's speech, at page 289 of the report. His Lordship quotes section 12(1) of the Prevention of Terrorism Act, in very similar form to the relevant provisions of the 2000 Act (to which we have to be concerned), and says this:

"The constable made the arrest in connection with a murder which was undoubtedly an act of terrorism within the meaning of section 12(1) of the 1984 Act. It was common ground that subjectively the constable had the necessary suspicion. The question was whether the constable objectively had reasonable grounds for suspecting that the appellant was concerned in the murder. The constable said in evidence that his reasonable grounds for suspecting the plaintiff were based on a briefing by a superior officer. He was told that the plaintiff had been involved in the murder. The constable said that the superior officer ordered him to arrest the plaintiff. He did so. Counsel for the plaintiff took the tactical decision not to cross-examine the constable about the details of the briefing. The trial judge described the evidence as scanty. But he inferred that the briefing afforded reasonable grounds for the necessary suspicion. In other words the judge inferred that some further details must have been given in the briefing. The legal burden was on the Chief Constable to prove the existence of reasonable grounds for suspicion. Nevertheless I am persuaded the judge was entitled on the sparse materials before him to infer the existence of reasonable grounds for suspicion. On this basis the Court of Appeal was entitled to dismiss the appeal. That means the appeal before your Lordships' House must also fail on narrow and purely factual grounds."

23. To put the background of Mr Beloff's submissions in context, I was referred to certain other material passages in the speech of Lord Steyn and of Lord Hope of Craighead, three of which I would quote. First, page 293 E and following Lord Steyn said this:

"Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of the superior officer, and the fact that he gave an order, make a difference? In respect of a statute vesting an independent discretion in the particular constable, and requiring him personally to have reasonable grounds for suspicion, it would be surprising if seniority made a difference. It would be contrary to the principle underlying section 12(1) which makes a constable individually responsible for the arrest and accountable in law. In Reg v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458, 474 Lawton LJ touched on this point. He observed:

'[chief constables] cannot give an officer under command an order to do acts which can only lawfully be done if the officer himself with reasonable cause suspects that a breach of the peace has occurred or is imminently likely to occur or an arrestable offence has been committed'."

24. The two passages in the speech of Lord Hope, to which I would refer, are at page 298, beginning at letter A and going through to E where his Lordship said:

"My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part it is also an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based upon information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances."

Then one further short passage, page 301 at letter H to 302 at B to the following effect:

"Many other examples may be cited of cases where the action of the constable who exercises a statutory power of arrest or of search is a member of a team of police officers, or where his action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so he has reasonable cause to suspect before the power is exercised."

25. To emphasise the relevant unimportance of identifying the sources of an officer's information in effecting an arrest, Mr Beloff also took me to an old case, dealing with the question of the extent to which particulars of pleading can be required, of a defendant to a false imprisonment claim who seeks to justify the disputed arrest. The case was Green v Garbutt (1912) 28 TLR at page 575. The case is cited (it seems to me) accurately in the 1999 edition of the Supreme Court Practice as authority for the proposition that:

"Where the defendant justified the arrest of the plaintiff on the ground that the defendant had reasonable probable cause for suspecting that a felony had been committed, and that the plaintiff had committed it, he was ordered to give particulars of the alleged felony and also of the reasonable and probable cause for the suspicion, but not of the names of those who had given him the information against the plaintiff."

26. Thus (Mr Beloff submits) that the source of the information here in issue is not strictly material to the Commissioner's defence at all. He argues that insofar as the pleading or evidence goes further than necessary, that is not a material deficiency in the case he presents. He submitted that the evidence of Mr Bunn and Mr MacBrayne was (as I have noted his argument): "Immaterial to the state of mind of Bredo and Miller". He referred me to paragraphs 21 (and following) of the defence, which he said contained the fulcrum of the Commissioner's case, whereas the statement served may have gone rather further than that defence required.
27. In support of that submission, Mr Beloff produced what came to be called in argument "the Bowlerised versions" of Mr Bunn and Mr MacBrayne's statements, deleting the material that might hypothetically offend against the exclusion of section 17 of RIPA. He submitted that if the witnesses gave evidence, in accordance with those amended statements, it would then be open for him to object to any questions in cross-examination that tended to lead to identification of the course for the witnesses' information. Such fault as there might have been in the defence statements (said Mr Beloff) could only have been in giving evidence that was not truly needed for the Commissioner's case.
28. It was (in my judgment) significant that, in all of Mr Beloff's characteristically cogent submissions, he did not go so far as to submit that the evidence of Mr Bunn and Mr MacBrayne (as given in their signed statements) did not infringe the hypothetical exclusion in section 17 of RIPA. I consider he was right not to do so. It seems to be plain that (I emphasise on the agreed hypothesis) that the circumstances and contents of the pleadings, their amendment and of the witness statements, give rise to the clear inference that the evidence in issue has its origin in something "falling within subsection (2) of section 17: see against section 71".
29. Thus, it seems to me, care must be taken, subject to section 18 of RIPA, to confine the evidence to material that does not so infringe section 17 of that Act. In my judgment, the evidence of Mr Bunn and Mr MacBrayne must at the very least exclude the material excised by the "Bowdlerised" versions of the statements to which I have referred. However, the matter goes rather further than this. As noted, Mr Beloff conceded that the evidence of these two witnesses was immaterial to the states of mind of the two arresting officers. If that is so, as it seems to me it is, their statements, as a whole, must infringe the very first rule of evidence, namely, that the evidence must be relevant to an issue in the case. Mr Beloff's concession amounts to acceptance that this evidence may well not be relevant. Therefore, subject to section 18 and to Mr Beloff's submissions on timing (to which I shall shortly turn) I propose to direct now that, by reason of a potential or hypothetical breach of section 17 of RIPA, the evidence of Mr MacBrayne and Mr Bunn must exclude the material excised from the originals, as shown in the drafts produced by Mr Beloff in argument.
30. I also remain to be persuaded as to the relevance of any of the rest of their statements to the issue that I have to try. At present I am inclined to think that the material is probably inadmissible, simply because it is irrelevant for the reasons cogently explained by Mr Beloff himself. Subject to any further argument before the witnesses are called, I would so hold.
31. It may seem strange to an observer that the Commissioner cannot, as Mr Beloff put it, in order to achieve transparency, give evidence of the full circumstances leading to the arrest of these claimants. This "mismatch" between material lawfully available to the Executive and the evidence that a court will admit in legal proceedings, was considered by the House of Lords in the case of A v the Home Secretary No (2) (2005) UKHL 71. That was the celebrated case concerning the admissibility in evidence in English courts of material which may have been obtained by torture abroad. In what I would call, with great respect, his inspirational speech in that case, Lord Nicholls of Birkenhead said this, at paragraphs 71 and 72,

"Difficulties arise at the interface between the different approaches permitted to the Executive on the one hand and demanded of the courts on the other hand. Problems occur where the lawfulness of executive decisions is challenged in court and there is an apparent 'mismatch', as the Secretary of State described it, between the material lawfully available to the executive and the evidence a court will permit in its proceedings. Suppose a case where the police take into account information obtained by torture abroad when arresting a person, and that person subsequently challenges the lawfulness of his arrest. Can the police give evidence of this information in court when seeking to justify the arrest?

In my view they can. It would be remarkable if the police could not. That would create a bizarre situation. It would mean that the police may rely on this evidence when making an arrest but not if the lawfulness of the arrest was challenged. That would be a curious application of a moral principle. That would be to treat a moral principle as giving with one hand and taking away with the other. That makes no sense. Either the police may rely on such information when carrying out their duties or they may not. If they can properly have regard to such information despite its tainted source, and in the particular case do so, they should not be precluded from referring to this information in court when giving evidence seeking to justify the decisions and actions. Repugnance to the use in court of information procured by torture does not require the police to give an incomplete account of the matters they took into account when making their decisions."

There then follows an important passage:

"(Different considerations apply where, in the interests of national security, there are statutory or other restrictions on the use of certain matters in legal proceedings, such as the contents of intercepted communications or information attracting public interest immunity. In these cases the mismatch arises from a perceived need to preserve confidentiality, not from the application of a broad moral principle.)"

32. Lord Nicholls recognises the instinctive repugnance felt by the courts towards such a mismatch as arises, indeed in this case, between information potentially lawfully obtained and what may be adduced in evidence in legal proceedings. However, as can be seen from the passage quoted from his Lordship, he recognised that in the very field with which we are concerned today statute may intervene to preserve or create such a mismatch on policy grounds. As Lord Bingham said, in the same case, at paragraph 48:

"This is not an unusual position. It arises whenever the Secretary of State (or any other public official) relies on information which the rules of public interest immunity prevent him adducing in evidence: Makanjuola v Commissioner of Police of the Metropolis [1992] 3 All ER 617, 623 e to j; R v Chief Constable of West Midlands Police, Ex p Wiley [1995] 1 AC 274, 295F-297C. It is a situation which arises where action is based on a warranted interception and there is no dispensation which permits evidence to be given. This may be seen as an anomaly, but (like the anomaly to which the rule in R v Warickshall gives rise) it springs from the tension between practical common sense and the need to protect the individual against unfair incrimination. The common law is not intolerant of anomaly."

33. It is, however, comfort to note that in this case it appears to be common ground that the evidence, now in issue, is strictly introductory, background in nature and probably peripheral to the real issue that has to be decided. As such, the careful control that must be exercised in its admission is of less concern than might be in other cases. It seems to me that even when the exclusions are made the crux of the Commissioner's case can be fully and adequately presented.
34. I turn to Mr Beloff's further points.
35. A second point was that insofar as the evidence now in issue or any underlying material on which it may be based is covered by the exclusion of section 17 of RIPA, then this was a case in which the court may have resort to the exceptions to be found in section 18 of the Act. It will be recalled that section 18 provides as material as follows:

"(7) Nothing in section 17(1) shall prohibit any such disclosure that continues to be available for disclosure as is confined to—

(a)a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or

(b) [which is particularly relevant] a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone.

(8) A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice."

If it was to be found absent sight of the excluded material (Mr Beloff submits) a substantial injustice might occur because the Commissioner had been unable to lay fully before the court the justification for the arrests. He argued that it could well be a case, therefore, where the court would direct disclosure to it alone to prevent any such injustice occurring. Of necessity, such disclosure would not be shared with the claimants or their advisers.

36. Mr Owen objected that such disclosure, in this case, was not within section 18 when properly construed. He submitted that the real object of the exception was for a court in an exceptional case to examine materials said to fall within section 17 to see if it truly did fall within that section at all. It was primarily aimed (Mr Owen argued) at criminal proceedings where any material so disclosed would not go before the tribunal of fact, namely, a jury. He argued that any such disclosure (as Mr Beloff was proposing) went contrary to the fundamental tenets of our system of justice, namely, that a fact-finding tribunal should not have before it material upon which one side had not been able to see, and on which it had not been able to comment. He cited to me the case of Lamothe v The Commissioner 25 October 1999, an unreported a decision of the Court of Appeal consisting of Lord Bingham CJ and Lord Justice May. Mr Owen argued that if Parliament had intended to override such a well known principle of our law, it could be expected to use far clearer words than one finds in sections 18(7) and (8).
37. In these submissions, Mr Owen was supported in substance by Mr Swift, of counsel, on behalf of the Secretary of State for the Home Department intervening on this point. Mr Swift addressed short and helpful argument to me on the issues of law, after hearing Mr Owen but before Mr Beloff addressed the court. Mr Swift was unable to be in court when Mr Beloff spoke but he had seen the written argument and the Treasury Solicitor had already provided a summary of the Secretary of State's position in a letter of 9 November 2007 to my clerk, of which copies have been made available to the parties. Mr Swift accepted, in his short submissions, that letter as part of his argument.
38. Mr Beloff argued that section 18 was expressed in quite general terms. It was in no way limited to the restrictive purposes identified by Mr Owen and Mr Swift. He submitted that, in view of the exceptional nature of the exclusions to be found in section 17, it is not surprising that Parliament should have found an exceptional "failsafe" mechanism for preventing a real injustice being perpetrated because of the exclusion. He pointed me to the decision of the Court of Appeal in the case of Barracks v The Commissioner and Another [2006]EWCA (Civ) 1041 where, at paragraphs 42, 50 and 72 of the judgment the court envisaged the possibility of a disclosure hearing, under section 18, taking place in the context of proceedings before an Employment Tribunal.
39. Interestingly, when the Barracks case was before the Employment Appeal Tribunal the judge presiding held such a disclosure hearing in the absence of the claimant and her representatives. At its conclusion he announced that he was satisfied that the respondents of the claim were prohibited, by law, from revealing the nature of the reasons for the claimant's negative vetting that was being claimed by the respondents as the justification for her rejection for a police appointment that she had sought. This, of course, is very much in parallel to what Mr Owen said was the purpose of section 18 when used. The Court of Appeal said, however, that the legal basis of this procedure had not been revealed in the judgment of the Tribunal.
40. The primary decision of the Court of Appeal in Barracks was to uphold the setting aside by the Appeal Tribunal of an "unless order" which would have had the effect of striking out the respondent's defence to the claim as a whole unless they disclosed the material which they contended that they were prohibited, by law, from revealing. (See paragraph 15 of the judgment.) So far as material to this case, the court's conclusions in Barracks were set out by Lord Justice Mummery, at paragraphs 70 to 72, as follows:

"First, as I indicated at the outset of this judgment, I do not agree with the "unless order" made by the employment tribunal. It was rightly set aside on appeal by HHJ Ansell. Ordinarily, case management orders made in the exercise of the employment tribunal's wide discretion will not be disturbed on an appeal, which is confined to questions of law. In this case, however, it was wrong in law to make an unless order with which the police could not, on their case, comply without breaking the law, which they understood prohibited either disclosure of the information or of the legal basis for the prohibition on disclosure. The unless order unjustifiably prevented the police from defending the discrimination claim in the normal way, that is by adducing evidence in their defence at the substantive hearing. I would dismiss the appeal.

Secondly, although I would dismiss the appeal and uphold the decision of the Employment Appeal Tribunal on this point, I would not leave the matter as it was left by the Employment Appeal Tribunal. The matter is being remitted for a full hearing by the employment tribunal on the basis that it was wrong in law to prevent the police from defending the claim at least on the basis of evidence that they were not prohibited from adducing. This should not prevent Ms Monaghan, should the need to do so arise at the substantive hearing, from making legal submissions to the tribunal on the legal and evidential position, should the police refuse to answer a question put by her in cross examination or to produce a document relevant to their case. Those submissions may relate to the inferences to be drawn from the evidence, to the burden of proof and as to the legal entitlement of the police to refuse to answer her questions or request for documents. That, I would make clear, includes the EC and ECHR arguments outlined above. The proper way for the tribunal to deal with disputes about non-disclosure in this case was not to make an "unless order" but by a ruling if and when the need arises in the course of the hearing. Thirdly, one consequence of the position explained in the preceding paragraph is that, as already indicated, I would direct the employment tribunal to disregard paragraph 29 of the Employment Appeal Tribunal judgment. If such a "disclosure hearing" is to take place at all, it should not be on the appeal from the unless order and before the available evidence is available. The proper time for deciding whether there are circumstances which might justify taking such an exceptional step is at the substantive hearing after hearing all the available evidence. In case such a situation arises, I would direct that the hearing in the employment tribunal be chaired by a Circuit Judge to whom disclosure could be made as envisaged, for example, by section 18 RIPA."

41. Those conclusions fortify me in thinking that the proper course here is to allow the trial to proceed on the basis of the admissible evidence, modified as I have already decided. As already noted, Mr Beloff accepts that the defence does not depend upon any of the controversial evidence of Mr Bunn and Mr MacBrayne. We should see where the case proceeds on the basis of the more significant evidence as to the state of mind of the arresting officers, and the reasonableness of the views that they formed in deciding to effect the arrests. If, at the end of the process, it seems to me that justice may not be possible to achieve that material, I will, if necessary, reconsider the section 18 issue and/or any question of a stay of proceedings as canvassed as an alternative by Mr Beloff. However, notwithstanding the Court of Appeal's apparent approval of limited disclosure under that section, in some circumstances, for the reasons advanced by Mr Owen, I would be extremely reluctant to embark on such an ex parte procedure, unless firmly convinced that it was the only solution to any problem then arising.
42. I can turn (finally and briefly) to Mr Beloff's third point, namely, that no decision on any of these matters need be taken at this stage. Following the conclusions in Barracks case he submitted that I should postpone resolution of all these matters until a later stage of the proceedings when all the evidence had been given, including the question of the admissibility of the statements of the controversial witnesses, Bunn and MacBrayne. I do not think I can exercise such restraint. It seems to me I must resolve and rule now upon the disputed parts of that evidence, whether or not it falls within the primary exclusion of section 17, on the hypotheses upon which all the arguments have proceeded.
43. I have already given my view on that point above and rule accordingly, namely, that the unexpurgated versions of those witness statements do, on the excepted hypothesis, fall foul of section 17 and must be excluded on that basis and that the remainder of those statements, in view of Mr Beloff's concessions, appear to me to be inadmissible as irrelevant. If I did not rule on these aspects of the objections now, I consider that the case would be come unmanageable because of the continual need to review the admissibility of individual pieces of evidence from individual witnesses, with consequent disruption to the trial. The parties need to know how the broad shape of the evidence that is to be given. It may be that Mr Beloff will need a little time to consider the extent to which any of the evidence of Mr Bunn and Mr MacBrayne is essential to his case and relevant to it. If so, I would readily allow a suitable period for him to have time to consider.
44. I should not leave this issue without paying tribute to the elegant arguments made by counsel on both sides.