Redactions in disclosure

We wanted to bring to your attention a decision in a recent case, specifically relating to the redactions made by police on disclosure. Below we set out the facts of the case but also our recommendations and practical advice following the comments from the court. 

In short, the case establishes that it is imperative that each redaction made on disclosure is fully considered and genuinely justified. If it is not, then there could be a significant risk of an adverse costs order.

This particular case concerned a police force’s response to a series of Police Disclosure Orders in a public law Children Act 1989 case, and in particular the redactions that the police imposed on the disclosure sought. Often blanket redactions can be a result of fear of breaching GDPR.

The police had (in the view of the Court) unjustifiably redacted the material it disclosed in relation to a case of a baby who had been hospitalised with injuries consistent with having been shaken. The Court deemed this caused delay, whilst also wasting police and public resources.  Ultimately the police were ordered to make full disclosures to a local authority. 

In particular, the evening before a crucial fact finding hearing the police conceded that all the redactions previously made should be removed. However, this was at the point where the case was already at week 42 and the police's position had resulted in both an unnecessary hearing, and (in the view of the judge) a considerable waste of public funds

The court warned that, in future, the police would have to consider whether each redaction was justified, taking into account the law as set out in Durham CC v D, and that a failure to so would leave them at risk of a costs order.

Below are some practical points to note following the comments from the judge:

• the family court works on a presumption that all police disclosure will be provided to them unredacted;
• the lawful court order for disclosure will supersede any GDPR concerns the police may have and some disclosure orders contain a direction to confirm this;
• if any redactions will be accepted, the family court order will also set out explicit directions in the disclosure order on this.  The police should only redact details of any witnesses who refused to give statements for example third party children, PNC information;
• we would (typically) need to apply to vary the order if further redactions are needed beyond this;
• depending on the reason for the redaction, this will either be a standard application to vary or an application to vary on the grounds of public interest immunity (PII);
• parties should ensure that issues about relevance, redaction and PII should (where possible) be dealt with consensually and as early as possible;
• where you are seeking to redact documents which are otherwise disclosable then you should clearly explain and be able to justify for those redactions;
• a useful method for redaction would be to add in text overlays on the redacted sections of the documents to set out what the redaction is for example “third party info” or “prejudicial to investigation”. This should also be supported by a statement to confirm the justification for each redaction;
• as a first step,  it is worthwhile who will know the information for example information should only be redacted if the information would prejudice the investigation or put a third party at risk (for instance where someone who has made an allegation against a party but the suspect is not aware). If that issue arises, then a PII application;
• there should not be blanket redaction for all third parties  If in doubt,  the police can ask the local authority and parties for a list of third parties that all are aware of, or simply consider what has already been put to the parties in interview or given to the defence.