Background

"There is no discrepancy between what the Chief Constable told the Police Authority in 1999 and the correspondence between the CAJ, the Minister's office and the Chief Constable's office in August/September 1998. As a result of the said correspondence, the CAJ was advised by the Minister's office a to how Mrs Nelson might apply to have protective measures installed at her home; how she could contact local police crime prevention officers for advice; and even how she might apply for a personal protection firearm. None of these possibilities was followed through.

The Chief Constable's answers to the Police Authority in April 1999 refer to the fact that the RUC itself did not have information to substantiate a threat to Mrs Nelson's life before her murder. Further in response to a specific question he said he was unaware of any request made to the Prime Minister's office for protection to her."

"I explained at our meeting, having called in Colin Port and John Stevens respectively in connection with the investigation of the murders of Rosemary Nelson and Pat Finucane, and having given them such an independent remit, it is much more appropriate for them rather than me to discuss aspects of their ongoing investigations which at this stage are appropriate for discussion. The remit given to them places no obstacle whatever for ongoing interaction between them and your organisation and others. This is something I very much encourage.

In connection with your letter of 3 June 1999 specifically relating to the murder of Mrs Nelson, I explained to you at our meeting that the RUC itself had no intelligence prior to Mrs Nelson's death to indicate a threat of the dreadful atrocity that was to be carried out. In relation to the documents to which you refer, as these remain a matter of ongoing investigation, neither I nor Mr Port believe that it is appropriate to discuss the details you raise while the investigation is current. You should be aware, however, that in relation to the threatening note received by Mrs Nelson, nothing of potential forensic value was lost in the period between the sending of the note and its subsequent forensic examination. At this stage, nothing has been disclosed in the examination which has assisted Mr Port's inquiry."

"… we understand that the investigation in relation to the documents is now complete and that this issue is once again under consideration by your office. In these circumstances, we would be grateful if you could indicate to us the outcome of the police inquiries in relation to the documents. You will understand that we remain concerned to discover what steps, if any, were taken by the police when they received the threatening documents from Minister Ingram's office."

1. The RUC report documenting the actions that the RUC took or failed to take in connection with the threats against Rosemary Nelson that Minister Ingram forwarded to the Chief Constable's office;

2. Mr Port's review of the RUC report;

3. The original letter from the Minister to the Chief Constable and all subsequent related correspondence;

4. A copy of the RUC's security assessment on Rosemary Nelson;

5. A copy of any guidance which exists for carrying out security assessments;

6. A copy of any relevant pages in Mr Wright's diary;

7. A copy of any reports documenting the RUC's investigation of the threats made against Rosemary Nelson in Mr Wright'

"I hope this information is of assistance to you; the investigation is now well under way after the initial difficulties. I would hope that all documentation will have been inspected within the next two weeks but I am obviously in the hands of the RUC. I will be as open as I can with you in respect of the conclusions reached but you must understand that confidential documents secured by us during the course of an investigation must remain confidential. You are, of course, free to request the documentation to which you refer from the RUC but it must be a matter for the Chief Constable as whether he discloses it to you. We are given extremely strong powers to require such documentation in order that the public can be satisfied that in the investigation of complaints we can achieve such access to ensure all aspects are properly investigated. You can thus be assured that all apparent avenues of investigation will be pursued."

1. The correspondence between the Northern Ireland Office and the RUC following the dispatch of the material by CAJ to Mr Ingram;

2. The internal review of the RUC investigation and the report of Mr Port on that review;

3. Documents relating to the assessment by the RUC of the risk to Rosemary Nelson's life;

4. The criteria for the risk assessment.

The judicial review application

The arguments

The relevant statutory provisions

"51. - (1) For the purposes of this Part there shall be a Police Ombudsman for Northern Ireland.

(2) …

(3) …

(4) The Ombudsman shall exercise his powers under this Part in such manner and to such extent as appears to him to be best calculated to secure-

(a) the efficiency, effectiveness and independence of the police complaints system; and

(b) the confidence of the public and of members of the police force in that system."

[35] The relevant parts of section 63 of the Act are: -

 "63. - (1) No information received by a person to whom this subsection applies in connection with any of the functions of the Ombudsman under this Part shall be disclosed by any person who is or has been a person to whom this subsection applies except-

(a) to a person to whom this subsection applies;

(b) to the Secretary of State;

(c) to other persons in or in connection with the exercise of any function of the Ombudsman;

(d) for the purposes of any criminal, civil or disciplinary proceedings; or

(e) in the form of a summary or other general statement made by the Ombudsman which-

(i) does not identify the person from whom the information was received; and

(ii) does not, except to such extent as the Ombudsman thinks necessary in the public interest, identify any person to whom the information relates.

(2) Subsection (1) applies to-

(a) the Ombudsman; and

(b) an officer of the Ombudsman."

"7. - (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

…

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."

Confidentiality

"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."

"The other factor considered by the Court of Appeal was the desirability of maintaining the confidentiality of statements given by witnesses. They did not consider that, in itself, this was a sufficient reason for never disclosing witness statements. I agree: if disclosure were indeed necessary for the proper discharge of the authority's functions, then the statements would have to be disclosed, whether or not they were regarded as confidential. But it should be recognised that the starting point of section 80 is that information provided to the authority is to be kept confidential. This mirrors the position with both the police and the prosecuting authorities. As a general rule, this appears to be entirely appropriate. Of course, witnesses who give evidence to the police must expect that, whether favourable or unfavourable to the potential accused, it will be disclosed and become public in the event of a trial. But, subject to that, they may have good reasons for being anxious that it should not be revealed—for example, if it tends to cast doubt on a complainer's trumped-up allegation against a police officer. The potential risks to such a witness are obvious. Parliament recognises this legitimate concern in section 80 (1) (c) which allows information to be disclosed in the form of a summary that does not identify the person from whom the information was received. Similarly, in complaints against the police, as in many other cases, the statements will often show individuals, including the witnesses themselves, in a bad light—behaving, especially through drink, in ways or in circumstances that they would be ashamed to see made public. So witnesses will be understandably concerned that their evidence about their own or others' misdemeanours should be kept confidential unless there is a trial. The concern will be shared by the other people involved. The police and prosecutors are expected to respect that concern."

The statutory incentive to confidentiality

The human rights arguments

"33. While Article 24 allows each Contracting State to refer to the Commission "any alleged breach" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 [now article 34], claim "to be the victim of a violation . . . of the rights set forth in (the) Convention". Thus, in contrast to the position under Article 24 – where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application – Article 25 requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation."

Conclusions