Confidentiality, privacy and human rights

Evidence and human rights

Evidence may not be compelled by a public inquiry that breaches a witness’, or a third party’s, human rights. In some circumstances, the compulsion of evidence may constitute interference with such rights. Evidence includes, but is not limited to, calling witnesses to a public inquiry hearing. The interference must be balanced against the interest of openness, independence and effectiveness of the public inquiry so as to resolve whether there will in fact be an infringement. The more intrusive the disclosure, the more probative and relevant it will have to be to the inquiry. 

It is suggested that the Chairman of a public inquiry may be required to consider whether the compulsion of evidence breaches:

• Article 2, Right to Life;

• Article 3, Prohibition of Torture;

• Article 8, Right to Respect for Private and Family Life;

• Article 9, Freedom of Thought, Conscience and Religion;

• Article 10, Freedom of Expression

• Article 1, First Protocol, Right to Property

• Article 2, First Protocol, Right to Education
  

It may usefully be repeated here that public inquiries operating under the Inquiries Act 2005 are explicitly prohibited from determining civil rights and obligations or criminal charges, so are not caught in the ambit of Article 6. It has always been considered that no public inquiry has the power to determine criminal or civil liability, and accordingly it is difficult to see how Article 6 could apply even to a non-statutory inquiry. This should not of course hinder the Chairman’s unfettered quest for fairness to witnesses. 

Article 2, Right to Life

The inquiry Chairman may need to consider whether to compel any evidence would endanger the life of any witness. Their Lordships dealt with this question in Re Officer L when considering the question of witness anonymity. It was concluded that a public inquiry may have a positive obligation to protect life under Article 2, but that it arose only where calling the witness would present a real and immediate risk to his life, and that establishing such a threat required the witness to cross a high threshold. The causative link between calling the witness to give evidence openly and the real and immediate risk is properly dealt with by posing the question "would so calling him materially increase the risk?".

While this test was approved specifically in relation to witness anonymity, if mere attendance at the public inquiry hearing would endanger a person’s life, either by peril to their health or by malicious action of a third party, then Article 2 would be engaged. Similarly, if to call a person to the inquiry would put a third party’s life in real and immediate risk, for example, by disclosing the third party’s identity, then the witness could not be called. The inquiry’s obligations are not limited to those directly affected by the Chairman’s decisions.

The right to life is not absolute. The state may use lethal force to the extent that is “no more than absolutely necessary” in limited circumstances: in defence of any person from unlawful violence; in order to effect a lawful arrest; to prevent escape of a person lawfully detained or in action lawfully taken for the purpose of quelling a riot or insurrection.

Further, the state may, in certain limited circumstances, place the lives of persons at real and immediate risk. This can only be lawful where it is “absolutely necessary” in a democratic society to do so and it is prescribed by law. Situations where the state may exercise such power would include sending soldiers into battle. Their Lordships in Gentle, R (on the application of) & Anor v The Prime Minister & Anor [2008] UKHL 20 (9 April 2008) accepted that armed conflict exposes soldiers to the risk of death and does not breach their Article 2 rights.

While the general principle of calling witnesses to give evidence is clearly necessary in a democratic society that operates by the rule of law, the degree to which this can be applied in specifics has yet to be ruled upon. The authors submit that “absolutely necessary” must be read in general and specific terms. In order to call a witness to give evidence at a public inquiry where it would present a real and immediate risk to their life, it must be “absolutely necessary” for public inquiries to call witnesses, and the witness must be “absolutely necessary” for the inquiry to fully meet its terms of reference. It is submitted that it is highly unlikely that calling evidence in a public inquiry will ever meet this level. However, once it is determined that it is “absolutely necessary” to place the person at real and immediate risk to their life, then the state must take reasonable steps to minimise the risk. This mitigation of the risk and damage cannot affect whether the evidence can be called: the wording “absolutely necessary” leaves no room for a balancing exercise. The recent decision of the Court of Appeal in Secretary of State for Defence v Smith, R (on the application of) [2009] EWCA Civ 441, approved this test in recognising that, subject to jurisdiction, there must be investigation as to whether there was a real and immediate risk of Private Smith dying of heatstroke and, if so, whether all reasonable steps were taken to prevent it.

Article 3, Prohibition of Torture

The case of A v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71 considered whether evidence obtained under torture can be admitted in proceedings. Lord Bingham approved Article 15 of the Torture Convention, which states that ”Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” The authors suggest that the wide ambit of “any proceedings” includes a public inquiry.

Lord Bingham reaffirmed in his judgment the blanket nature of this provision, namely it cannot “be understood to differentiate between confessions and accusatory statements, or to apply only where the state in whose jurisdiction the proceedings are held has inflicted or been complicit in the torture. It would indeed be remarkable if national courts, exercising universal jurisdiction, could try a foreign torturer for acts of torture committed abroad, but could nonetheless receive evidence obtained by such torture.”

By way of rationale, in their work on The United Nations Convention against Torture (1988), p 148, Burgers and Danelius suggest that article 15 of the Torture Convention is based on two principles: “First of all, it is clear that a statement made under torture is often an unreliable statement, and it could therefore be contrary to the principle of 'fair trial' to invoke such a statement as evidence before a court. Even in countries whose court procedures are based on a free evaluation of all evidence, it is hardly acceptable that a statement made under torture should be allowed to play any part in court proceedings.

In the second place, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed, and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture." 

In short, an inquiry cannot usually compel or consider evidence that was obtained by torture, and the Chairman will not have to conduct a balancing exercise. However, given the slender exception in Article 15, it would be foreseeable, where the inquiry’s terms of reference included an examination of the circumstances of a death reached in detention, such as the Baha Mousa Inquiry or the inquiry called for into the alleged torture of Binyam Mohammed, that the evidence obtained under torture may be used in establishing facts as to whether torture was committed. 

Article 8, Right to Respect for Private and Family Life

The right to respect for private and family life is drawn widely and will include rights over the home, family, person and correspondence. The compulsion of personal evidence that may interfere with this right will include, but is not limited to, evidence such as: 

• Personal details such as address, phone numbers and date of birth

• Sight of personal correspondence, including telephone calls, internet correspondence and mail

• Sight of wounds or tattoos

• Sight of medical records

• Sight of custody or criminal records

• Access to the home or other private premises
  

Confidentiality does not attract the absolute bar to disclosure that legal professional or parliamentary privilege enjoy. Rather, as Lord Goff stated in the Spycatcher case [1990] 1AC 109, “ … although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure.” The scope of confidentiality in respect of the compulsion of evidence may usefully be aligned with the right to privacy.  

A public inquiry is not bound by the Rehabilitation of Offenders Act 1974 and may adduce spent convictions insofar as they are relevant to the date in question and it is fair to the witness to introduce the evidence.  

Material obtained by intrusive surveillance or intercept evidence will clearly interfere with the right to privacy, but is dealt with by reference to the Regulation of Investigatory Powers Act and is the subject of separate discussion. 

Article 9, Freedom of Thought, Conscience and Religion

Much of what a Chairman would wish to consider under this Article will be dealt with by fair respect for a witness’ privacy. Additional consideration to respect for a witness’ religion may include according additional sensitivity when considering whether to compel for example: 

• A witness' attendance at a hearing during a religious festival

• The witness to allow the inquiry to have sight of things made more intrusive by cultural or religious sensitivity e.g removal of a turban or veil. 

Article 10, Freedom of Expression

The right to freedom of expression protected by Article 10 ECHR includes the right to receive and to impart information and has been widely invoked, such as in Goodwin v UK [1996] 22 EHRR 123, for the protection of journalistic sources, that being “one of the basic conditions for press freedom … as without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.”  

Article 11, Freedom of Assembly and Association

It may be relevant to the inquiry to know about a person’s associations, including their: 

• Professional affiliations including company directorships and professional memberships including lawful trade union memberships.

• Political membership and allegiances,

• Allegiance with other groups such Masonic lodges or the Orange Order

• Membership of terrorist organisations 

While much of these matters will be dealt with by fair reference to Article 8, whether the organisation is lawful or whether it is one with whom association is protected by Article 11 may be a relevant factor. The European Court of Human Rights has held for example in Grande Oriente D`Italia di Palazzo Giustiniani v. Italy (No. 2) (application no. 26740/02) that to force disclosure of Masonic lodge connections in relation to job applications was a breach of Article 11 and Article 14. It is submitted that to compel the disclosure of such an association would have to be highly relevant to the public inquiry’s terms of reference. 

Article 1, First Protocol, Right to Property

An inquiry may require submission of a person’s property if it is required as evidence. 

Article 1, First Protocol, Right to Education

An inquiry may require a witness to attend at a time that is inconvenient to their schooling. 

Balancing Exercise

Calling evidence in a public inquiry will usually satisfy the ECHR requirements of being prescribed by law and necessary in a democratic society. Therefore, whether to compel the evidence constitutes a breach will fall to a balancing exercise. The Chairman, when considering whether to order disclosure, is advised to conduct an explicit balancing exercise between the interference and the importance to the inquiry, weighing in particular the importance of the evidence to the rights and reputations of other people, for example those persons whose reputation may be criticised within the terms of reference of the inquiry. The inquiry team should put in place all reasonable measure to obviate the interference, for example by flexibility in the witness scheduling to accommodate school terms and religious festivals, by promptly returning property, and by only requiring sight of that evidence which is relevant and sufficiently important. 

If a decision to compel evidence is made and is then the subject of a judicial challenge or is reconsidered by the High Court in defence to s.21 proceedings, the judge will then give due deference to the first instance decision maker.  

The authors suggest that an interference with Article 2 and 3 may not be capable of being balanced against the desirability to obtain and consider the evidence. In the other cases, a balancing exercise is inherent in the human right and must be undertaken. 

Intercept evidence

Intercepts would not be revealed by any ordinary process of evidence collection because of the statutory bar placed on their revelation by section 17(1) of the Regulation of Investigatory Powers Act 2000 (“RIPA”).  

A public inquiry may have reason to believe that there may be relevant intercept material. The question when assessing whether to call for evidence relating to such intercepts is whether it is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference (see section 18(8A) of the RIPA as amended). 

The Act is somewhat opaque in positing that no order can be made for delivery of the material unless it is essential for fulfilling the terms of reference. Unless and until it executes such an order it is impossible for an inquiry to know whether there was any interception or, if there was, whether any evidence still exists, let alone whether any remaining evidence will assist it. That being so, it seems that the word “essential” must be construed cautiously.  

A purposive construction would be to the effect that no order shall be made unless the inquiry has reason to believe that

• interception occurred; and that

• omission of the evidence obtained by the intercept may prejudice its ability to fulfil its terms of reference.  

Such an approach maintains the integrity of the RIPA while recognising that the test could never be passed if “essential” were taken literally. It is consistant with the wording of section 18(8). That permits a judge to order disclosure if satisfied that it is essential “in the interests of justice”. Further, the clear purpose of section 18(7)(a) and section 18(9) is to avoid miscarriage of justice. Public inquiries are constituted in order to protect and to further the interests of the public, and a plain-words interpretation of “essential” would tend to defeat those interests.  

The causative element of the test requires that “the exceptional circumstances of the case” make the disclosure essential. Again, that is rather Delphic because it is difficult to envisage what could be the ordinary circumstances in which an inquiry may wish to order disclosure of intercepts to itself.  

Any disclosure would be to the Panel: section 18(7)(c). There is nothing in the RIPA which would permit the Panel to disclose to others information from which interception could be inferred. That may appear to be an odd conclusion, but it results from the clear language of sections 17 and 18, in particular the phrases “judge alone” in section 18(7)(b) and “Panel alone” in section 18 (7)(c). It might be thought that some equivalent to section 18(7)(a) should be enacted for Counsel to a public Inquiry, but the fact that section 18(7)(a) was itself considered necessary supports the conclusion that, absent express words, only judges and Panel members are permitted to take advantage of the exceptions in section 18(7). Neither the Solicitor nor Counsel to a public inquiry will be permitted to see anything which confirms that there was interception and obviously no reference could be made to it in a hearing. 

However, the prohibition in that subsection against “disclosure” is evidently designed to prevent publication of the matters falling within subsection (2), and not of the content of the intercepted conversation. If publication is made to a person who already knows of the interception then it seems that there is no relevant disclosure. It may be that any intercepts would have been authorised by the sponsoring Minister to whom the public inquiry will report.  

Preventing Further Disclosure

Having had sight of the information the public inquiry may of course preserve some degree of confidentiality of the evidence by taking measures such as ordering redactions; preventing further disclosure other than to the Inquiry Panel or Inquiry Counsel for example; or other appropriate means. 

In terms of relevance, the inquiry team may have sight of things in order to determine their relevance, that turn out to be irrelevant. The authors have submitted that to interfere with a witness’ human rights requires a balancing exercise between intrusiveness (or interference with any right) and relevance. It may be that the relevance is not yet known. In these cases, preliminary disclosure to the inquiry team or Panel may be sought for the purposes of determining relevance. The disclosure will thus be limited to a number of persons who will likely have made confidentiality undertakings, and the intrusion will accordingly be less. Therefore, the human rights balancing test may be satisfied notwithstanding that the relevance of the evidence to the inquiry’s terms of reference may be lower, or may be unknown. 

In these circumstances, the Chairman may have to conduct two tests. An inquiry team may for example compel sight of a person’s private correspondence, because it has reason to believe that it may be of evidential value. The Chairman would conduct a balancing exercise to determine whether sight of the correspondence by the inquiry team or Panel would breach the witness’ Article 8 rights. If, having satisfied himself to compel disclosure, he found that the correspondence was indeed of some value, the Chairman would have to determine whether the intrusion would still be justified to call that correspondence as evidence, bearing in mind the greater intrusion of full disclosure to the public.