Azelle Rodney Inquiry lawyers can see surveillance film footage
16 October 2012
R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties  EWHA 2783 (Admin) – read judgment
concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.
The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party) was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel.
The MPS wantedSection 19 Inquiries Act 2005 gives the chairman to the inquiry the power to restrict decide whether there is a real risk of prejudice to an important public interest which may be caused by public disclosure. If there is such a risk, the Chairman will consider whether the party’s interests can be protected by a form of disclosure which gives adequate protection to the public interest. Finally, the Chairman will consider the powers at his disposal to ensure that evidence which should not be in the public domain is not received in public session. In reaching his decision, the Chairman will have in mind the important principle that, so far as possible, those intimately concerned in an Article 2 inquiry must be afforded effective means of participation. IR 2006 the Chairman may only disclose potentially restricted evidence to a person not otherwise entitled to see it if he considers that it is necessary for the determination of the application; here, the Chairman decided to make such disclosure.
The nature of the public interest which the prosecution in a criminal case commonly seeks to assert when it is in possession of relevant material whose disclosure is resisted was described by Lord Bingham in R v H UKHL 3:
public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and under-cover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial.
that the Chairman had erred in law in deciding that the film should be shown to the legal teams in the argument over public interest immunity (PII), which the police were claiming for the footage. It was also submitted that the Chairman had given inadequate reasons for reaching his conclusion. The defendants and interested parties contended that the Chairman had to have regard to his obligations under section 17(3) Inquiries Act 2005 to make his procedural decisions with fairness and the Inquiry’s obligations to make a full investigation under Article 2 of the Convention. They relied Al Rawi v Security Service  1 AC 531, in which their Lordships emphasised the principle of open justice and need to ensure that in the PII process there is no unfairness or inequality of arms. Taking this argument further, they contended thatAl Rawi. Where State agents are implicated in a killing whose circumstances and possible motivation is best known to those agents, the widest possible light should be shed on events R (Amin) v Secretary of State for the Home Department  1 AC 653 .
The Court dismissed this application by the MPS.
The Court’s reasoning
The Court acknowledged the interested parties’ arguments that the Chairman, when making his judgment, was bound to have in mind his obligation to ensure that the family was afforded an effective opportunity to participate in the proceedings. The Chairman would indeed have this obligation in mind, but
Ramsahai and Others v Netherlands (Case 52391/99) 46 EHRR 43 at paragraphs 347 and 348).
Nevertheless the Court was satisfied that the Chairman had directed himself properly under the rules of the Inquiry in this dispute over disclosure. moment when only examination by Ms Alexander’s counsel of the material could result in the proper determination the MPS’s application for a restriction order.
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