Privacy rights thwart evidence search in hammer attack lawsuit

Requests for other documents that would reveal the names of pupils not involved in the attack were also refused because a pressing social need for their disclosure had not been proved. The interference with the private lives of other children was not proportionate to the lawsuit's aim, the judge said.

In 2007, Henry Webster, then aged 15, was attacked by a gang of pupils and adults. In addition to being punched and kicked, he was hit repeatedly in the head with the sharp end of a claw hammer. Webster lived but suffered a fractured skull and brain damage. Fourteen people were convicted of the attack last year.

Webster believes the attack was racially-motivated. Webster is white and all of his attackers were Asian. Now aged 18, he is suing Ridgeway Foundation School for failing to prevent it. His family is also suing the school, alleging that they have suffered post-traumatic stress disorder as a result of the attack.

Webster argues that the school allowed racial tensions to develop and that this led to the attack. His legal team applied for disclosure of certain documents from the school, including staff meeting minutes and a log of racial incidents. Some documents were provided, but the names of pupils had been redacted. Webster's team challenged the removal of the pupils' names and sought access to an electronic database of pupil misbehaviour.

The school argued that the Data Protection Act prevented disclosure of the unredacted documents, because they would reveal personal data. Mr Justice Nicol said that was not relevant because the Act is not breached if disclosure is necessary for the administration of justice. He agreed with Webster's barrister's submission "that the Data Protection Act does not take the [school's] opposition to the Court making an order very far."

But the school also cited Article 8 of the European Convention on Human Rights, which provides that everyone has the right to respect for his private and family life. Mr Justice Nicol accepted that he could not order the school to reveal the identities of pupils "if doing so would violate their Article 8 rights."

Article 8 is not an absolute right: Article(1) sets out the general right to a private life; but Article 8(2) sets out some interferences with a person's private life that are lawful, including interferences necessary for the protection of the rights and freedoms of others.

"The interference must pursue a legitimate aim, but in the present context, it is sufficient to observe that one such aim can be the 'the protections of the rights and freedoms of others'," wrote Mr Justice Nicol. "However, even in those circumstances, the interference must additionally be 'necessary in a democratic society'. This imports the idea that there must be a pressing social need and the interference must be proportionate to the aim in question. It is important to emphasise that what is in issue is the proportionality of the interference with what would otherwise be the rights of the individual pupils whose names have so far been concealed."

The school argued that disclosure of the names was not necessary: the redacted documents show what measures were or were not taken in response to incidents of indiscipline in the school, it said.

The court ruled that a request for staff meeting minutes was disproportionate for being too broad and unfocused. "It is quite plain that very many of the entries where there have been redactions have no conceivable bearing on the issues between the parties," wrote Mr Justice Nicol.

But another request for names that was deemed proportionate was refused for interfering with the children's private lives. A year before the attack took place, a memo had been circulated among the school's Heads of Year seeking the names of pupils "who you feel have been involved in the present climate of racial tension." The names were supplied by the Heads of Year but redacted before being disclosed to Webster.

Mr Justice Nicol wrote: "The numbers involved are small. There can be no objection to the request on grounds of disproportionality. I do, however, accept that the disclosure of these children's identities would be an interference with their private lives."

He said that if any of these people was a defendant in the criminal proceedings, their names would be known by other means. "Otherwise, I am not persuaded that it is necessary for the Claimants to know their identities in order to have a fair trial," he wrote.

Mr Justice Nicol acknowledged that the right to a fair trial is also protected by the European Convention of Human Rights.

"The possibility that revelation of the names might trigger a memory in the minds of potential witnesses on the Claimants' behalf when those witnesses cannot already give the names of members of the Asian youth gang is too tenuous to justify interference under Article 8(2) or to make disclosure necessary for a fair trial," he wrote.

Instead, Mr Justice Nicol ordered the school to provide for each person whose name had been redacted an identifier which is unique to that person and that will allow Webster to know the person's race or ethnicity where it is known to the school.

Mr Justice Nicol also refused a request for the names of alleged victims featured in a 'log' of racial incidents. The alleged perpetrators' names that featured in the log had been disclosed already, without redaction. Mindful that the alleged victims had been upset by the matters detailed in the log, it "would plainly be an interference with the private lives of the pupils concerned to order disclosure of their identities," he wrote. "I am nowhere near satisfied that this interference is necessary for the Claimants to have a fair trial of their action."

Mr Justice Nicol also rejected a claim for access to an electronic database of pupil misbehaviour, called Reports Manager. Webster's legal team requested copies of the database in hard copy and electronic forms, together with the software manuals, internal policies and instructions for its use.

The English courts' Civil Procedure Rules (CPRs) provide that parties in litigation can inspect documents referred to in witness statements – unless the holder has a right or duty to withhold inspection, or it would be disproportionate.

"The Defendants submit that the Reports Manager database is huge," wrote Mr Justice Nicol. "It contains a vast amount of detail which has no possible relevance to the issues in this case."

"Allowing inspection of the whole database is therefore disproportionate," he said. "It would also disclose the names of pupils in a way that would interfere with their rights under Article 8 of the ECHR and for which there is no necessity so as to come within Article 8(2). Consequently, they are entitled and obliged to resist inspection."

He added that to require the school to provide a redacted version of their database "would also be a very substantial task which I regard as disproportionate to any possible benefit for the Claimants or the issues in the case."

The case is due to be tried in October.

The case is Webster and others v Governors of the Ridgeway Foundation School [2009] EWHC 1140 (QB), published 21st May 2009. At the time of writing the only copy available was at Lexis Library (which requires a paid-for subscription).