A, Re Application for Judicial Review  NIQB 21 (25 June 2001)
Neutral Citation no.  NIQB 21
Judgment: approved by the Court for handing down
(subject to editorial corrections)
The applicant applied to the court to be known as “A” for the purposes of these proceedings. It was suggested that his life might be put at risk if his identity was revealed. The respondent did not oppose the application that the applicant be referred to as “A”. The court acceded to the application and the applicant has been so described throughout the proceedings.
In these proceedings the applicant challenges the refusal by the Chief Constable to release certain information concerning a find of material held by loyalist paramilitaries. It is believed that the material included information about the applicant and a photocopy of a photograph of him.
On 28 October 1999 police stopped two cars in the Antrim town area. Two men were arrested and an automatic rifle was recovered. Both men were suspected members of the Orange Volunteer Force. In a follow up search at Stoneyford Orange Hall, police uncovered a plastic bag from beneath a stair head. This bag contained a number of pages on which were found certain particulars relating to named individuals from various areas.
On 12 November 1999 police officers called at the home of the applicant’s parents and asked that he contact police regarding his personal safety. They said, in answer to a query, that “personal details” of the applicant had been discovered amongst the material found at Stoneyford. On 16 November 1999 the applicant’s solicitors wrote to the police asking for information about the material relating to the applicant that had been found and for details of the police investigation into it. Detective Superintendent Jack Harvey replied to this letter on 18 November describing the material found. He declined to give further information as “these matters [were] currently under investigation”.
In the meantime, police officers had called at the applicant’s home on 17 November 1999, where they spoke to the applicant’s wife. They told her that the documents discovered in Stoneyford Orange Hall contained the name of the applicant and a very poor quality photocopy of a photograph purporting to depict him. She was also told that the documentation in question was believed to be in the hands of loyalist paramilitaries. Further correspondence was engaged between the applicant’s solicitors and the police but the refusal to disclose the material was maintained.
Two men had been arrested when police stopped the two cars in Antrim. Further arrests were made in the days that followed and on 2 November 1999, three men were charged with a range of terrorist offences. Two of the men were charged under Section 33 of the Northern Ireland (Emergency Provisions) Act 1996 with possession of information likely to be of use to terrorists. Two other men were charged with related offences.
Two of those charged in connection with the find of documents at Stoneyford Orange Hall pleaded guilty to a number of terrorist offences including possession of documents likely to be of use to terrorists. A third person charged in relation to the documents entered a plea of not guilty. The latter’s trial commenced on 20 November 2000 and on 23 November 2000 he was re-arraigned and changed his plea to one of guilty to possession of documents likely to be of use to terrorists and assisting offenders. The fourth person pleaded guilty to related terrorist offences.
According to Detective Inspector Roy McComb, police enquiries are still being pursued in relation to the origins of the documents found at Stoneyford Orange Hall. Detective Inspector McComb is the Deputy Senior Investigating Officer in an investigation into the activities of the loyalist paramilitary organisation the Orange Volunteer Force. He has said that further arrests and charges are still possible and that senior police officers remain of the opinion that disclosure of the material or any further information relating to it would be inappropriate at this stage.
The request for information
The information sought by the letter of 16 November from the applicant’s solicitors was as follows: –
“(1) Full details of the information which ha[d] been found regarding [the applicant]
(2) The source of the document or documents found
(3) In particular, please clarify whether:
(a) the documents themselves emanate from the security forces, or
(b) they are documents containing information which comes from the security forces
(4) Which branch of the security forces is the source
(5) If the documents do not emanate from the security forces, the source or suspected source of this information
(6) The date of the documents in question
(7) If the date of the documents is not apparent, the believed date on which the documents were prepared
(8) Finally, please supply us with a copy of the documents relating to [the applicant]”
Detective Superintendent Harvey’s reply of 18 November 1999 stated that the applicant’s name was on the list found at the Orange Hall but that no address or other particulars were associated with the name. A “very poor photocopy of a photograph” of the applicant was also found. The Detective Superintendent further stated that in relation to the other queries raised by the applicant’s solicitors these matters were under investigation and no information on those could be supplied.
The applicant’s solicitors renewed their request in a letter dated 30 November 1999 but this elicited the response from Detective Superintendent Harvey that the information provided satisfied all the legal obligations on the Chief Constable.
The judicial review application
The applicant claims that the refusal to disclose the information sought is unreasonable and that it constitutes a violation of his rights under Articles 2 and 8 of the European Convention on Human Rights.
The grounds on which judicial review is sought may be summarised thus: –
1. The procedural requirements of Article 2 of the European Convention on Human Rights included a duty to disclose information which would enable a person such as the applicant
(a) to raise a complaint about the disclosure of the material by members of the security forces
(b) to monitor the progress of the investigation
(c) to make informed representations as to whether an outside police force should be involved in the investigation of the circumstances in which the information came into the possession of those who had it
(d) to determine whether any rights of the applicant had been infringed and, if so, which
(e) to enable the applicant to be advised whether he could bring proceedings, and, if so, against whom
(f) to assess the nature of the threat against him
(g) to be completely informed of the nature of the threat so that suspicion arising from media reports might be allayed
2. The disclosure of personal details of the applicant to loyalist paramilitaries constituted a violation of his rights under Articles 2 and 8 of the Convention.
3. An effective remedy for violation of Articles 2 and 8 rights (guaranteed by Article 13 of the Convention) required a thorough and effective investigation of the circumstances in which such breaches occurred.
4. Such an investigation required the imparting of the information sought to the applicant so that he could monitor its independence and thoroughness. The denial of disclosure therefore constituted a violation of the Articles.
The reasons for refusing to disclose the material
In response to the various grounds of challenge contained in the amended Order 53 statement, Detective Superintendent Harvey, in an affidavit filed on behalf of the respondent, summarised the reasons for refusing to disclose the material, as follows: –
“4. On behalf of the Chief Constable, I respond to each of these … grounds as follows:
(a) The information which has been disclosed to the Applicant to date is contained in my letter dated 18 November 1999 to his solicitors … It remains the judgment of the Chief Constable and his senior officers that disclosure of this information to the applicant, coupled with the readiness of the police to provide security advice to the applicant and discuss his security arrangements with him, is sufficient to protect the applicant’s personal safety and security at present. Further, it remains the judgment of the Chief Constable and his senior officers that, as already averred in the affidavit of Detective Inspector McComb … it would be inappropriate to disclose to the applicant or any other person whether any of the additional information sought in his solicitor’s letter is in the possession of the police and/or to reveal any such information, as this would be prejudicial to the continuing police investigation. It is also the judgment of the Chief Constable and his senior officers that to disclose to the applicant or anyone else whether any of the additional information is in the possession of the police and/or to reveal any such information could be prejudicial to the applicant’s personal safety and security. Every act of dissemination would create a risk of further unauthorised dissemination, whether intentional or inadvertent, with a resulting threat to the personal safety and security of the applicant and, perhaps, other persons. This would also be detrimental to the maintenance of law and order. It could also compromise the continuing criminal investigation and, possibly, any consequential criminal proceedings. If the applicant wishes to make a complaint against the Chief Constable or the Ministry of Defence or any other agency, he is at liberty to do so and any such complaint will be duly processed in accordance with the established procedures.
(b) It is the judgment of the Chief Constable and his senior officers that if any of the additional information sought by the Applicant is in the possession of the police, disclosure of such information to him would not assist him in monitoring the progress of the investigation. Further, it is of paramount importance that the investigation, which continues, should be conducted as efficaciously as possible and should not be compromised in any way. One of the fundamental aims of this investigation is, self-evidently, to trace the source of the documents in question. This has entailed the commitment of very considerable human and financial resources on the part of the Chief Constable.
(c) It is the judgment of the Chief Constable and his senior officers that if any of the additional information sought by the applicant is in the possession of the police, disclosure of any of this information to the applicant would not assist him in making informed representations about whether an external police force should be involved in the investigation. If the applicant wishes to make representations about this matter on the basis of the information already disclosed to him, he is at liberty to do so.
(d) As appears from my averments above, it is the judgment of the Chief Constable and his senior officers that there are two over-riding objectives to be achieved. The first is to take reasonable steps to alert persons such as the applicant to such of the contents of the material documents as may possibly relate to him, in the interests of the personal security and safety of the applicant and his family. The second is to investigate and uncover all offences connected in any way with the discovery of the documents in question as efficaciously as possible, employing such strategies as the Chief Constable and his senior officers consider appropriate. It is the judgment of the Chief Constable and his senior officers that any other interest (such as the possible infringement of any personal rights of the applicant or others) must yield to the aforementioned two over-riding interests.
(e) … in comparable cases in the past, persons in the applicant’s position have commenced legal proceedings against the security forces without first acquiring the information requested in the letter dated 16 November 1999 from the applicant’s solicitors.
(f)&(g) I repeat my above averments.
(h) I repeat my above averments. The Chief Constable and his senior officers are aware of the speculative media reporting of the incident which has occurred. The purpose of the police investigation is to establish the truth of all matters related in any way to the discovery of the offending documents and this investigation continues.”
The case for the applicant
Mr Treacy QC on behalf of the applicant claimed that collusion by the security forces with loyalist paramilitary groups was an ongoing problem. Any act of collusion that puts a person’s life at risk constituted a violation of Article 2 of the Convention, he suggested. This Article imposes procedural obligations on the State. These include a thorough investigation of the circumstances in which an individual’s right to life was put at risk. Such an investigation must be prompt, thorough, independent and impartial. It should be accessible to the victim’s family – Ogur v Turkey No 21594/93. In order to ensure that the procedural safeguards are in place, the applicant is entitled, it was claimed, to be provided with the information requested. Otherwise it was impossible for him to make any judgment as to the independence and impartiality of those conducting the investigation, he was deprived of the opportunity to take proceedings against those who were responsible for leaking the information about him and he was denied effective access to the investigatory procedure.
The case for the respondent
For the respondent Mr McCloskey QC accepted that Article 2 can give rise to positive as well as negative obligations. He submitted, however, that, before any such obligation arose in the present case, the applicant must establish that there was a real and immediate threat to his life and that the authorities had failed to take measures within the scope of their powers to address that risk. He claimed that the applicant had failed to establish either proposition.
Furthermore, Mr McCloskey argued, the police authorities were entitled to a measure of respect in the exercise of their judgment as to whether the information sought by the applicant should be revealed. The decision not to release the information fell comfortably within the scope of their discretion. In any event, the decision was manifestly reasonable, he claimed.
Finally he suggested that Article 2 did not import any freestanding right of access to the investigation file, as had been suggested by the applicant. The case of Ogur did not purport to afford such a right generally.
The duty to disclose
Although this case was launched before the incorporation of the European Convention on Human Rights into domestic law, on the hearing of the application, it was not suggested that any duty on the part of the police to disclose the material sought arose under common law. The claim to be entitled to disclosure of the material was founded solely on asserted Convention rights, therefore.
In Aydin v Turkey (1997) 25 EHRR 251, the European Court of Human Rights held that where an individual has an arguable case that there has been a violation of an Article 3 right (prohibition of torture), the notion of an effective remedy entailed “a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure”. The applicant in the present case argued that an analogous right existed under Article 2. Mr Treacy submitted that the applicant should have access to the information contained in the police file, pointing out that in the Ogur case the Court was critical of the fact that during the administrative investigation of the death of the deceased the case file was inaccessible to the victim’s close relatives.
Article 2 (1) of the Convention provides: –
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
It is clear that one of the procedural safeguards that underpin the substantive rights enshrined in Article 2 is that there be a thorough and effective investigation of the circumstances of an unlawful death. It is also clear that Article 2 gives rise to a positive duty on the part of the State to safeguard the lives of its citizens. In Osman v United Kingdom (2000) 29 EHRR 245 the Court dealt with this subject in the following way: –
“115. The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions1998-III, p. 1403, § 36). It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. “
The Court recognised that not every claimed risk to life would give rise to the duty to take preventative measures. Only where the authorities knew of “a real and immediate risk to the life” of an identified individual would the duty arise. Thus at paragraph 116 of its judgment, the Court said: –
“For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life (see paragraph 107 above). Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 45, § 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”
Although the Court held that it was sufficient that an applicant show that the authorities had not done all that could be reasonably expected of them, it recognised (at least implicitly) that a measure of discretion was available to the police in deciding what steps were required. This much is clear from the passage of the Court’s judgment in which it was stated that it required to be established “that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”.
In R v Director of Public Prosecutions ex parte Kebeleine and others  2 AC 326, 379 Lord Hope of Craighead dealt with the margin of appreciation argument in this way: –
“The doctrine of the ‘margin of appreciation’ is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court:Buckley v. United Kingdom (1996) 23 E.H.R.R. 101, 129, paras. 74-75. Although this means that, as the European Court explained in Handyside v. United Kingdom (1976) 1 E.H.R.R. 737, 753, para. 48, ‘the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights,’ it goes hand in hand with a European supervision. The extent of this supervision will vary according to such factors as the nature of the Convention right in issue, the importance of that right for the individual and the nature of the activities involved in the case.
This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of Human Rights Law and Practice(1999), of which Lord Lester of Herne Hill and Mr. Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the ‘discretionary area of judgment.’ It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society:Murray v. United Kingdom (1994) 19 E.H.R.R. 193, 222, para. 47.”
In the present case, of course, the decision under challenge was not taken by an “elected body” and the degree of deference due to it is commensurately less but it appears to me that an appropriate level of discretion must be available to the police authorities in deciding what measures are required to afford the applicant adequate protection in fulfilment of his Article 2 rights. The police are inevitably in a better position than is the court to assess the level of threat to the applicant and to judge the degree of risk that would accrue if the information sought by the applicant were released to him. They are also aware whether further arrests are likely and whether future prosecutions might be jeopardised if the information was disclosed. These considerations do not relieve the court of its supervisory duty but the court should be conscious of them in exercising superintendence of the respondent’s decision.
It is clear that the discovery of material relating to the applicant, a republican, in the hands of loyalist paramilitaries is at least indicative of a risk to his life. It is, in my opinion, also clear that the state authorities are under a duty to ensure that a thorough investigation of that risk is undertaken. That investigation must comprehend a searching inquiry into the circumstances in which the information on the applicant was obtained by those in whose possession it was found. It is certain that, in order to be thorough and effective, the investigation must also involve the participation of the applicant. This necessarily requires that he be informed of the find of material relating to him. It is in any event essential that he be aware of the risk so that he may take such precautions as he can. It is not inevitable that he must be told everything about the find, however. The duty of disclosure must relate to the assessment of the risk to the applicant and the steps necessary to counteract it. While the investigation into the circumstances in which the information on the applicant came into the wrong hands must be impartial, I am not persuaded that it inexorably follows that the applicant is entitled to have access to all the information in the possession of the police in order to monitor the independence and impartiality of those conducting the investigation. Nor do I consider that he is entitled to access to the information that he has sought in order to take proceedings against those responsible for releasing information about him unless it is shown that such a facility is required in order to provide him with adequate safeguards under Article 2 and I do not consider that this has been established in the present case.
The right to compensation
Mr Treacy argued that Strasbourg jurisprudence had recognised a freestanding right to compensation as a feature of Article 2 rights. This right, he asserted, was unrelated to the need for a thorough and effective investigation of the circumstances in which the substantive violation of Article 2 arose. He founded this claim principally on the decisions of ECtHR in Aydin v Turkey(1997) 25 EHRR 251 and Aytekin v Turkey (1998) EHRR. In the first of these cases the applicant had been raped and ill-treated in custody. It was held that there had been a violation of her Article 3 rights. She also claimed that there had been a breach of Article 6 because the failure of the authorities to conduct an effective investigation into her suffering while in detention resulted in her being denied access to a court to seek compensation. The Court held that the essence of her complaint concerned the inadequacy of the official investigation and it was therefore considered appropriate to examine the complaint at issue under Article 13. The Court held that the notion of an effective remedy entails, in addition to the payment of compensation where appropriate, the conduct of a thorough and effective investigation capable of leading to the identification and punishment of the culprits. At paragraph 101 the Court said: –
“It appears to the Court that the essence of her complaint under Article 6 § 1 of the Convention is the failure of the public prosecutor to conduct an effective investigation, which, if not giving rise to a prosecution, at the very least would prove that she had suffered harm while in custody, thus enhancing the prospects of success of her claim for compensation.”
I do not construe this passage as suggesting that the applicant had a freestanding right to claim compensation deriving from the alleged breach of Article 6 but divorced from the violation of Article 3. On the contrary, the claim to compensation appears to have been considered by the court to be an element of her right to an effective investigation of the “harm” that she had suffered while in custody.
In Aytekin v Turkey the applicant was the widow of a man who was unlawfully killed by a soldier. The soldier had been prosecuted for causing the death of the applicant’s husband and had been convicted of unintentional homicide. At the time that the application was being considered by ECtHR, the widow’s appeal against the verdict was pending as was the prosecution’s appeal against the leniency of the sentence imposed. The Court decided that the applicant had not exhausted her domestic remedies and concluded that it could not consider the merits of the case on that account. At paragraph 84 of the judgment the Court said: –
“As to the possibility of instituting compensation proceedings in respect of the death of her husband, the Court recalls that an alleged violation of Article 2 of the Convention cannot be remedied exclusively through an award of damages to the relatives of the victim.”
Again, this does not suggest that a “stand-alone” claim for compensation is an invariable incident of an Article 2 violation. A claim for compensation may be an element of the procedural safeguards that derive from Article 2; it is not inevitable that this should be so. I do not consider, therefore, that the applicant in the present case is entitled to assert a claim under Article 2 to have access to the information sought in order to promote a claim to compensation which is unrelated to the need for a thorough and effective investigation into the circumstances in which the alleged violation of Article 2 occurred.
Access to the investigation file
On the question of the applicant’s asserted right to access to the investigation file I accept Mr McCloskey’s argument that the Strasbourg jurisprudence does not recognise a freestanding right to have such access, as claimed by the applicant. In particular, Ogur v Turkeyis not authority for that proposition. In that case the security forces carried out an armed operation at a site belonging to a mining company. The applicant’s son, who worked at the mine as a night watchman, was killed as he was about to come off duty. According to the Government, the scene of the incident had been used as a shelter by four terrorists who were members of the PKK (Workers’ Party of Kurdistan), including the applicant’s son. The applicant claimed that her son had merely been one of the guards at the mining company’s site and he had been shot dead by the security forces without warning. The Court held that the obligation to protect the right to life under Article 2 of the Convention required that there should be some form of effective official investigation when individuals have been killed as a result of the use of force [Paragraph 88]. The Court found that no such investigation had been conducted in that case. It was against this backdrop that the Court referred to the fact that the investigation file was inaccessible to the applicant. At paragraph 92 of the judgment the Court stated: –
“It must be noted, lastly, that during the administrative investigation the case file was inaccessible to the victim’s close relatives, who had no means of learning what was in it (see paragraph 15 above). The Supreme Administrative Court ruled on the decision of 15 August 1991 on the sole basis of the papers in the case, and this part of the proceedings was likewise inaccessible to the victim’s relatives. Nor was the decision of 15 August 1991 served on the applicant’s lawyer, with the result that the applicant was deprived of the possibility of herself appealing to the Supreme Administrative Court.”
I do not construe this passage as indicating that the Court intended that the relative of a deceased victim should in all circumstances be entitled to have access to the investigation file. The fact that the applicant in the Ogur case did not have access to information about the investigation was a further illustration of the inadequacy of the inquiry. It does not follow that, in every instance, in order to be effective, an investigation must be conducted by allowing the victim access to all of the information available to the investigating authorities.
The case of Ogur was considered by the Court of Appeal in Re Adams [January 2001] unreported. After quoting paragraphs 90 to 92 of the judgment of ECtHR, the Lord Chief Justice (who delivered the judgment of the court) said: –
“It will be seen from the portions which we have quoted … that ECtHR does not lay down any ruling that for an investigation to be regarded as effective the claimant must have access to the investigation papers. It is merely one element among others which may demonstrate the inadequacy of an investigation. It does not follow that a thoroughly conducted investigation is to be regarded as deficient if the complainant has not been given access to the investigators’ documents.”
I respectfully agree with this statement. I do not consider that access to the police file was necessary in order to demonstrate the sufficiency of the police investigation in this case.
In Velikova v Bulgaria No 41488/98, the Court emphasised that each case must be determined according to its own particular facts. In that case the applicant complained under Articles 2, 6, 13 and 14 of the Convention in respect inter aliaof the alleged ineffective investigation into the death in police custody of Mr Tsonchev, the man with whom she had been living. At paragraph 80 of the judgment the Court said: –
“The Court recalls that the State’s obligation under Article 2 to protect the right to life, read in conjunction with its general duty under Article 1 of the Convention ‘to secure to everyone within their jurisdiction the rights and freedoms defined [therein]’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49 §§ 161-163, and the Çakici judgment, cited above, § 86).
The Court further considers that the nature and degree of scrutiny which satisfies the minimum threshold of the investigation’s effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. It is not possible to reduce the variety of situations which might occur to a bare check list of acts of investigation or other simplified criteria (see the Tanrikulu v. Turkey judgment of 8 July 1999, Reports1999-§§ 101-110, the Kaya v. Turkey judgment of 19 February 1998,Reports 1998-I, pp. 325 and 326, §§ 89-91, and the Güleç v. Turkey judgment of 27 July 1998, Reports1998-IV, pp. 1732-1733, §§ 79-81).”
Detective Superintendent Harvey described the measures taken by police after discovery of the material in paragraph 4 of his first affidavit: –
“Following deliberations among senior police officers, a strategy was devised. As part of this strategy, it was determined to locate the whereabouts of each of the individuals named in the documentation so that they could be alerted to the discovery of the documentation and such of the contents thereof relating to the individual concerned. In those cases where the documentation did not identify clearly the individual to whom the particulars related, police concentrated their efforts on identifying the most likely person. The purpose of this was to alert each individual to a possible threat from loyalist paramilitaries and to warn them to take enhanced precautions for their personal security.”
The applicant’s spouse and parents were informed of the find, he was advised to take enhanced precautions for his personal safety, he was told that the police were willing to provide security advice and to discuss his personal security arrangements with him. Four individuals have been arrested and successfully prosecuted as a result of the find. All of these circumstances must be taken into account in deciding whether the investigation into the find has been adequate or whether it requires to be supplemented by the disclosure of the information sought by the applicant. In my judgment, it has not been shown that the investigation is inadequate or that the applicant requires to be provided with the information sought.
There is an obvious public interest in keeping some aspects of a criminal investigation confidential. The United Nations Guidelines on the Role of Prosecutors paragraph 13 (c) provides: –
“[In the performance of their duties prosecutors shall] keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise.”
This international standard is reflected in the domestic law of the United Kingdom. In Taylor and others v Serious Fraud Office  4 All ER 801, documents generated by a Serious Fraud Office inquiry were disclosed to the solicitors of defendants in a criminal trial. The solicitors in turn disclosed them to the first plaintiff who issued proceedings for libel. The House of Lords held that an implied undertaking applied to material disclosed by the prosecution in criminal proceedings.
At page 807 Lord Hoffman said: –
“The implied undertaking in civil proceedings is designed to limit the invasion of privacy and confidentiality caused by compulsory disclosure of documents in litigation. It is generated by the circumstances in which the documents have been disclosed, irrespective of their contents. It excludes all collateral use, whether in other litigation or by way of publication to others.”
and at page 810: –
“Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion, without coming within the category of informers whose identity can be concealed on grounds of public interest. They will be moved or obliged to give the information because they or the law consider that the interests of justice so require. They must naturally accept that the interests of justice may in the end require the publication of the information, or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected.”
These passages identify the public interest in maintaining confidentiality for police investigations unless the interests of justice require otherwise. Unless it can be demonstrated that there are compelling reasons for disclosing the contents of a police investigation file, its vital confidentiality should be preserved. I do not believe that such a need has been established in the present case. The applicant is well aware of the nature of the find. He has been offered advice on personal security and an inquiry as to how the material relating to the applicant was leaked is under way.
I am satisfied that a proper investigation of the circumstances in which the information about the applicant was released is under way and that the applicant is equipped with the information necessary to launch in personam proceedings against the security forces, if he wishes to do so. I do not consider that the applicant has established any entitlement to the documents in dispute and the application for judicial review must be dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND