The High Court has ruled that the strong public interest in the Court having before it all the relevant evidence outweighs individual rights to confidentiality.
The recent ruling comes as part of the so-called “Plebgate” incident involving an altercation between Conservative MP Andrew Mitchell, the Government Chief Whip at the time, and police officers on duty at Downing Street. Police logs initially suggested that Andrew Mitchell had insulted the officers by calling them “plebs”. The minister subsequently apologized for the remark but ultimately resigned from his office one month later amid public outrage. Subsequent revelations called into question the officer’s account of the events, throwing doubt on whether the minister actually used the word “plebs”.
In two defamation claims relating to the incident, the police officer who had made the original allegation against Andrew Mitchell and the newspaper publisher that had reported on the “Plebgate” incident both sought third party disclosure by the Metropolitan Police of various witness statements created as part of an investigation of the events.
Some of the police officers who had given statements objected to their disclosure, invoking their equitable right to confidentiality and their right to respect for private and family life under Article 8. Tugendhat J had previously refused to order disclosure holding that he was not in a position to undertake the “genuine balancing exercise” required by the Human Rights Act 1998 as the objections had not been properly put in evidence and their authors were not represented at the hearing.
Following a fresh application for disclosure, all the officers who had objected were given an opportunity to make representations. This time, Tugendhat J was satisfied, based on the material before him, that the requirements of the test for orders of disclosure against third parties (set out in CPR 31.17) were met and that the balancing exercise weighed in favour of disclosure. Accordingly, on 19 May, Tugendhat J made an order for third party disclosure. On 11 June, he handed down his reasons, which included the following.
This is a libel action between private parties. But the issues that it raises are ones that concern the public to a greater extent than most libel actions. There is a strong public interest in the court having before it all the relevant evidence and documents. The third parties have legitimate concerns about becoming involved in an action which attracts the interest that this action attracts. But they were all police officers and the events in question arise out of their official duties. The public interest in disclosure clearly outweighs the interests of the individual third parties.
Tugendhat J also noted that the concerns raised by third parties could be adequately addressed by imposing certain conditions in the order for disclosure (such as strict limitations on the persons to whom copies of the disclosed documents may be provided), as had been done in Frankson v Home Office  EWCA Civ 655.