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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wood v West Midlands Police  EWCA Civ 1638 (08 December 2004)
Cite as:  EWCA Civ 1638,  EMLR 20,  Po LR 277
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE DYSON
THE RIGHT HONOURABLE LORD JUSTICE WALL
| BEN WOOD
|- and -
|CHIEF CONSTABLE OF THE WEST MIDLANDS POLICE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
ADRIENNE PAGE Q.C. and WILLIAM BENNETT
(instructed by PETER CARTER RUCK & CO) for the APPELLANT
Crown Copyright ©
Lord Justice May:
"Mr Hart has recently been arrested and charged with numerous offences including stealing motor vehicles and dismantling them in order to re-sell and "ring" further vehicles. He has to date not been convicted at Court as we are awaiting a Crown Court Trial, however, I feel I must bring this to your immediate attention. On this occasion we recovered 17 stolen vehicles, many as stated already "cut up".
Mr Hart was employed for some years by Hunters Salvage, Bott Lane, Lye, West Midlands and now operates under the company name of Vehicle Salvage Group, Chester Road, Cradley Heath, West Midlands. My aim is to inform companies like yourselves of Mr Hart and his attempt to disguise his criminal activities with a veil of legitimacy. I am aware that you are using Mr Hart to salvage Tarmac vehicles and would ask that you consider your position with him. If you require any further details please do not hesitate to contact me."
"I am aware that he has contracts with companies such as Tarmac and British Gas who hold insurance Bonds and I will be notifying them direct. I would ask that Mr Hart's details are circulated. Accordingly if you require further details please do not hesitate to contact me."
"Further to our telephone conversation last week please find the details of HART as discussed. HART used to be employed at Hunters Salvage, Bott Lane, Lye, West Midlands and now works under the company name of Vehicle Salvage Group, Chester Road, Cradley Heath, West Midlands. HART is presently on bail to Crown Court for many offences including having 17 stolen vehicles found at his home address. Some of which have been "cut up" for resale and use.
I have already contacted John Wagstaff and written to him regarding circulation to the Insurance World however, I would ask that you also circulate his details in order that he is unable to use a legitimate business front to disguise a criminal venture."
"Wrote a number of letters to insurance companies and other businesses, prior to HART's trial stating that your aim was to warn the "insurance world" of HART's attempt to disguise his illegal dealings with a veil of legitimacy."
The outcome of the investigation was that Mr Mulligan received "advice".
"In about September 1999 I received a telephone call from DCI Mulligan of the West Midlands Police. With the passage of time I am unable to recall the precise details of this conversation. However, Mr Wood's solicitors have shown me a copy of a letter addressed to me from West Midlands Police dated 10th September 1999 that I understand was sent to me at Markfield. I do not recall receiving this letter but my conversation with DCI Mulligan was essentially in the same terms as the letter; DCI Mulligan said that Gary Hart was using VSG as a cover for ringing salvage vehicles."
"I have been shown a copy of a letter of 10th September 1999 addressed to myself from DCI Mulligan. I have to say that I have no recollection whatsoever of having received this letter. However, I do recall a telephone discussion with Mr Mulligan around that date which I think was very much in the terms of the letter and in which Mr Mulligan only made reference to Mr Hart."
Grounds of appeal
"… a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."
The judge's decision
"(i) As a matter of principle, the same principles apply to disclosure of information concerning individuals convicted of other offences, albeit that the application of the principles may differ in such cases;
(ii) The same principles also apply, but with greater force, to disclosure of information concerning individuals who have not been convicted of any offence, but who are on bail awaiting trial, or who are not currently facing any charges at all;
(iii) Each case does fall to be considered on its own facts, both by the police officer making, or proposing to make a disclosure, and by a court asked to decide an issue as to whether a disclosure was lawful or not, or made on an occasion protected by qualified privilege or not."
"The general principle governing disclosure remains that police information should not be disclosed unless there are important considerations of public interest to justify departure from the general rule of confidentiality. The three areas in which the exceptions are made are the protection of vulnerable members of society; the need to ensure probity in the administration of law and national security. Annex A to this Circular sets out specific groups within these areas on which the police are asked to provide information about relevant past convictions and other background information in connection with pre-employment and other checks (Schedule 1), and those groups whose convictions the police are asked to report as they occur."
The judge noted that insurers were not on the lists in the Schedule to this Circular. Although the Circular dealt primarily with information about convictions, paragraph 8 contained specific provision about "cases pending". There was guidance for the police on providing such information at their discretion on the groups in Schedule 1 to specific public authorities. None of the groups or authorities identified had anything to do with insurance or car theft or fraud.
"That persons charged with, but not yet convicted of, handling stolen goods should be deprived of their businesses on the recommendation of a police officer who personally believed that person to be guilty is a matter which was described by His Honour Judge Tonks, the judge before whom Mr Hart was tried, as a chilling and daunting thought. He called for the matter to be investigated. The impositions of sanctions is a matter for the courts, after conviction, and never for the police. (cf. Ellis para ). Mr Perks made clear that the defendant does not rely on any such justification for the publications complained of in the present case."
"On the basis of the evidence and facts that I am assuming to be true, and absent evidence of the kind which might have been, but is not, to be adduced, I am satisfied that there is no prospect of the Defendant establishing the defence of qualified privilege. In my judgment there was no lawful justification, still less any duty, on Mr Mulligan disclosing the information that he did disclose in so far as it concerned Mr Hart. In so far as I assume that the information related to the Claimant, there can be even less justification."
In paragraph 57, the judge summarised his reasons, and felt able to form a confident view, as follows:
"i) Mr Mulligan was acting in his capacity as a police officer;
ii) It seems likely that the information he disclosed was not generally available to the publishees (otherwise he would not have thought it necessary to write to them), but I assume Mr Mulligan's statement to be true at para 24 when he says that the information was already in the public domain, and as a matter of law that makes no difference;
iii) The disclosures were potentially damaging not only to Mr Hart but also to any other person, such as the Claimant who might be involved in or dependent upon the business of VSG;
iv) The disclosure of the information was neither necessary nor, in my view materially effective, in preventing crime or enabling the detection of crime;
v) No careful judgment was exercised before publication as to whether it was necessary or desirable to make the publication for the purpose of preventing crime or alerting the publishees to an apprehended danger;
vi) There were no safeguards, such as consultation with more senior police officers, other agencies, or a written policy applying to such disclosures which was being complied with;
vii) No attempt was made before disclosure to enquire of those potentially affected, namely Mr Hart and the Claimant, to enable Mr Mulligan to assess the risk of damage;
(viii) There was no urgency;
ix) The public had not been warned that the WMP might consider themselves free to make disclosures otherwise than in accordance with the 1978 Guidelines or the Home Office Circular;
x) The person to whom Mr Mulligan has admitted he wrote had no interest in receiving the information which materially distinguished them from any other member of the public who is interested in the prevention and detection of crime, in particular because it is not explained how these publishees might have been expected to act on the information."
The case of Thorpe
"When, in the course of performing their public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for the performance of its public duty or enabling some other public body to perform its public duty. This principle would not prevent the police making factual statements concerning police operations, even if such statements involved a report that an individual had been arrested or charged, but it would prevent the disclosure of damaging information about individuals acquired by the police in the course of their operations unless there was a specific public justification for such disclosure. This principle does not in my view rest on the existence of a duty of confidence owed by the public body to the member of the public, although it might well be that such a duty of confidence might in certain circumstances arise. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce."
"It seems to me to follow that if the police, having obtained information about an individual which it would be damaging to that individual to disclose, and which should not be disclosed without some public justification, consider in the exercise of a careful and bona fide judgment that it is desirable or necessary in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure that is judged necessary to achieve that purpose."
"Just as the police have claimed this protection, if protection is the right way to characterize it, to facilitate their public law duties, equally they are limited by their public law obligations. As Lord Bingham CJ has said, those obligations include observance of the fundamental rules of good public administration, which this court will if necessary enforce. Another way of looking at the matter, although it may in practice produce the same results, is to say that the police only act in their public capacity, and thus can only claim to be using information in the public interest, when they observe those rules of good public administration. Those rules therefore not only constrain how administrators may act but also define when administrators are performing their public duties and when they are not."
"It would be lamentable if a police office who gave accurate information to a public authority with a need to know could be sued for defamation because the information redounded to someone's discredit."
In the present case, however, Mr Mulligan did not give accurate information about VSG; it was not given to a public authority; and the insurance world did not sufficiently need to know it in the reciprocation with Mr Mulligan's supposed duty to disclose it.
Discussion and decision
The judge's decision
"I bear that in mind. It is not an insubstantial point. On the other hand, standing back and doing the best I can and with I have to say some hesitation, it seems to me that it would be equitable to allow the claimant's claim in slander to proceed as proposed. I bear in mind in reaching this decision that the jury have already heard the evidence of Mr Simpson and whatever conclusion I reach on this application, they are going to have to be given directions as to how they are to treat that evidence. It is not going to be easy to tell them to disregard much of what they have heard since it is so closely bound up with matters which would be relevant, assuming I were to refuse permission. On balance, and I repeat with some hesitation, it seems to me that for the reasons I have given I ought to allow the amendment."
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and
(b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents,
the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
(a) the length of, and the reasons for the delay on the part of the plaintiff;
(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A –
(i) the date on which any such facts did become known to him, and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
(c) the extent to which, having regard to the delay, relevant evidence is likely –
(i) to be unable, or
(ii) to be less cogent than if the action had been brought within the period mentioned in section 4A. "
"(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim … to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
(4) Rules of court may provide for allowing a new claim to which sub-section (3) above applies to be made as there mentioned, but only if the conditions specified in sub-section (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in sub-section (4) are the following –
(a) In the case of a claim involving a new caurse of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and
(b) … "
"The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
"The court may allow an amendment whose effect will be to add … a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which a party applying for permission has already claimed a remedy in the proceedings."
"I am going to invite the jury to conclude – and I will give you an opportunity to say anything you want to about this – that in your telephone conversation with Mr Simpson of Markfield, you said to him substantially the same as you wrote in your letter to him. Do you want to comment on that? "
Mr Mulligan answered that he told Mr Simpson entirely about Mr Hart, but that he could not recall VSG being mentioned. Miss Page reminded Mr Mulligan of the terms of his witness statement. In a later question, she said that she was going to suggest to the jury in due course that Mr Mulligan's categorical denial that he mentioned VSG on the telephone to Mr Hart was incredible and a lie. To this Mr Mulligan said that he had told her exactly what he had said. He proceeded to elaborate the evidence he had given.
"I do not recall receiving this letter, but my conversation with DCI Mulligan was essentially in the same terms as the letter: DCI Mulligan said that Gary Hart was using VSG as a cover for "ringing" salvage vehicles … during the telephone call from DCI Mulligan, he suggested that I consider whether I wanted to continue doing business with VSG. I was surprised and disappointed that VSG were involved with criminal activity and did, as suggested by DCI Mulligan divert future salvage from VSG to other providers."
Mr Simpson's oral evidence was to the effect that he could not remember what had been said about the purpose of the telephone call, nor whether VSG was mentioned. Miss Page suggests that further questioning could scarcely have improved the position for the Chief Constable. As I have said, the judge gave the jury proper directions on this topic.
Discussion and decision