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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Desmond v The Chief Constable of Nottinghamshhire Police [2009] EWHC 2362 (QB) (01 October 2009) URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/2362.html Cite as: [2009] EWHC 2362 (QB) |
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
ON APPEAL FROM HIS HONOUR JUDGE INGLIS
Strand, London, WC2A 2LL |
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B e f o r e :
WYN WILLIAMS
____________________
VINCENT ![]() ![]() |
Claimant |
|
- and - |
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THE CHIEF CONSTABLE OF NOTTINGHAMSHHIRE POLICE |
Defendant |
____________________
Ms Samantha Leek (instructed by The Force Solicitor) for the Defendant
Hearing date: 21 July 2009
____________________
Crown Copyright ©
Mr Justice Wyn Williams
:
The Relevant Facts
"It is apparentDesmond
is not responsible for the crime. The complainant has been visited and cannot state for certain if
Desmond
is responsible.
Desmond
refused charge and inquiries are continuing. All relevant paper work attached."
The decision to close the file as against the Appellant was probably made on or about 31 May 2001. The file was stored. It did not emerge again until after these proceedings had been commenced. At some point in time before the autumn of 2005 DC Kingsbury retired. His pocket books were kept despite his retirement in accordance with normal procedure. The pocket book in which the officer made his entry about viewing the CCTV film was stored. Just like the criminal investigation file, the pocket book came to light only after these proceedings had been commenced.
"I seek your authority to disclose that the applicant was arrested on 26/5/01 on Suspicion of Indecent Assault on a Female and Attempted Rape on a Female together with the circumstances, that whilst walking down a street in Nottingham City Centre a female was approached by a man who engaged her in conversation, during the conversation he showed her a matchbox which had a picture of a hotel on it and he stated that he was staying at that hotel. Then he suddenly dragged her into an alleyway and attempted to forcibly remove her trousers. She resisted and during the struggle he let her go and he ran from the scene. Police attended the hotel which was depicted on the matchbox and a person fitting the description of the attacker was just getting out of a taxi. When questioned about the incident he made significant comments and was arrested. On 05/6/2001 MrDesmond
was refused charge due to insufficient evidence to proceed.
The OIC has since retired and we have been unable to establish why there was insufficient to charge."
Assistant Chief Constable Ditchett's response was as follows:-
"Relevant to disclose. A prospective employer should have an opportunity to question the applicant and satisfy themselves that he poses no threat given the key position of trust he is applying for."
I should have recorded, earlier, that as of late 2005 the Appellant wanted an enhanced certificate so as to facilitate his applications for teaching posts. In accordance with the decision of the Assistant Chief Constable, disclosure of the information set out above was given to the Criminal Records Bureau. In due course it was included in the enhanced certificate which was supplied by the Bureau to the Appellant.
"I seek your authorisation to disclose that on 26 May 2001 Vincent PaulDesmond
, born 31.3.1963 was arrested on suspicion of indecent assault and attempted rape of a female in Nottingham City Centre. A file was submitted to the Crown Prosecution Service who advised that Mr.
Desmond
should be refused charge. Consequently, on 5 June 2001 Mr. Vincent was refused charge."
The Assistant Chief Constable was also informed:-
"We previously disclosed information in December 2005 which was more detailed. In April 2006 Mr.Desmond
disputed the information disclosed and advice was sought from Malcolm Turner [the Force solicitor] and his advice was that we should state that we have reviewed all the information we hold and believe the information is accurate and that the disclosure was relevant and proportionate. Malcolm did, on his memo to us, question whether all of the details should have been disclosed in the circumstances, hence the brief details of the facts in the new one. We have no records that we can trace in respect of his interview so we do not know if he denied the allegations, although he states in his dispute that he did. One of the officers states that when arrested he made significant comments."
The Appellant's Allegations of Negligence
"(q). Failing to take reasonable steps to make effective contact with the (OIC) ex-DC Kingsbury to obtain further information for the ultimate decision maker to make a proper informed decision as to whether to disclose details of the Claimant's arrest or not to the Criminal Record Bureau;
(r) Failed to even review the crime file in this matter before making an informed decision whether to make the disclosure or not;
(s) Disclosed details about the Claimant's arrest 4 ½ years after the event based on PC Ollerenshaw's recollection from memory;
(t) Allowing the arresting officer (PC Ollerenshaw) to provide information to the Disclosure Unit on 8 October 2005 when she was not the official investigating officer;
(u) Failure by the Police to consider obtaining further information from the investigating officer PC Leeson;
(v) Making a decision to authorise false information to be disclosed on the 21 December 2005 by the ACC Ditchett;
(w) Failing to have an effective system and policies in place when making decisions of disclosing non-conviction information;
(x) Disclosing false information to the Criminal Records Bureau and thereafter disclosed to Social Networks Limited;
(y) Failing, in all the circumstances, to take reasonable care of the Claimant after the conclusion of the investigation and thereafter."
In paragraph 77 the Appellant alleges that the disclosure of information was caused by PC Ollerenshaw's negligent misstatement in her email of 8 October 2005.
" .although police officers could be liable in tort to persons injured as a direct result of their acts or omissions, there was no general duty of care owed by them to identify or apprehend an unknown criminal, nor did they owe a duty of care to individual members of the public who might suffer injury through the criminal's activities save where their failure to apprehend him had created an exceptional added risk, different in incidence from the general risks to the public at large from criminal activities, so as to establish a sufficient proximate relationship between the police officers and the victim of the crime; but although it could have been reasonably foreseen that [the offender] if not apprehended, would be likely to harm young female members of the public, the fact that the plaintiff's daughter had been young and female did not of itself place her at special risk establishing a duty of care owed towards her by the Defendant in relation to the apprehension of [the offender] .."
Their Lordships also went on to hold that as a matter of public policy the police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime.
"28. With hindsight not every observation in Hill's case [1989] AC 53 can now be supported. Lord Keith of Kinkel observed at p63, that:
'from time to time [the police] make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it'.
Nowadays, a more sceptical approach to the carrying out of all public functions is necessary.
29. Counsel for the Commissioner concedes that cases of assumption of responsibility under the extended Hedley-Byrne doctrine (Hedley Byrne & Co Ltd v Heller & Partner Ltd [1964] Ac 465) falls outside the principles in Hill's case. In such cases there is no need to embark on an enquiry whether it is "fair, just and reasonable" to impose liability for economic loss:Williams v Natural Life Health Foods Limited [1998] 1 WLR 830.
30. But the core principles of Hill's case have remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years . It is of course, desirable that police officers should treat victims and witnesses properly and with respect: but to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; apprehending criminals and preserving evidence: .A retreat from the principles of Hill's case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risks of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interest of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combating crime.
31. It is true, of course, that the application of the principle in Hill's case will sometimes leave citizens, who are entitled to feel aggrieved by negligent conduct of the police, without a private law remedy for psychiatric harm. But domestic legal policy, and the Human Rights Act 1998, sometimes compel this result. .
32. While not challenging the decision of the House of Lords in Hill's case counsel submitted that it can be distinguished. The only suggested distinction ultimately pursued was that in Hill the police negligence was the indirect cause of the murder of the daughter whereas in the present case the police directly caused the harm to Mr Brooks. That hardly does justice to the essential reasoning in Hill. .. The distinction is unmeritorious."
In the section of his speech headed "The Three Critical Questions" Lord Steyn said:-
"33. That brings me to the three critical alleged duties of care before the House. It is realistic and fair to pose the question whether the three surviving duties of care can arguably be said to be untouched by the core principle in Hill. In my view the three alleged duties are undoubtedly inextricably bound up with the police function of investigating crime which is covered by the principle in Hill's case. .. If the core principle in Hill stands, as it must, these pleaded duties of care cannot survive.
34. It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the Hill principle. It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise. But such exceptional cases on the margins in Hill's case will have to be considered and determined if and when they occur."
" .it was a core principle of public policy that, in the absence of special circumstances, the policy owed no common law duty of care to protect individuals from harm caused by criminals since such a duty would encourage defensive policing and divert man power and resources from their primary functions of suppressing crime and apprehending criminals in the interest of the community as a whole; the public interest was best served by maintaining the full width of the core principle and an exception which imposed a duty of care in circumstances such as arose in the Claimant's case, where the police were discharging their general public duty of law enforcement, could not be accommodated within it .
Lord Bingham delivered a powerful dissenting speech in Van Colle. As can be seen from the headnote, however, the majority of their Lordships adhered to the principles which had been laid down and applied in Hill and Brooks. Public policy was at the heart of each of the speeches of the majority. It is sufficient for the purposes of this judgment, however, to cite extracts from the speech of Lord Brown of Eaton-under-Haywood.
"131. Fourthly, some at least of the public policy considerations which weighed with the House in Hill and Brooks to my mind weigh also in the present factual context. I would emphasise two in particular.
132. First, concern that the imposition of the liability principle upon the police would induce in them a detrimentally defensive frame of mind. So far from doubting whether this would in fact be so, it seems to me inevitable. If liability could arise in this context (but not, of course, with regard to the police's many other tasks in investigating and combating crime) the police would be likely to treat these particular reported threats with especial caution at the expense of the many other threats to life, limb and property of which they come to learn through their own and others' endeavours. They would be likely to devote more time and resources to their investigation and to take more active steps to combat them. They would be likely to arrest and charge more of those reportedly making the threats and would be more likely in these cases to refuse or oppose bail, leaving it to the courts to take the responsibility of deciding whether those accused of making such threats should remain at liberty. The police are inevitably faced in these cases with a conflict of interest between the person threatened and the maker of the threat. If the police would be liable in damages to the former for not taking sufficiently strong action but not to the latter for acting too strongly, the police, subconsciously or not, would be inclined to err on the side of over-reaction. I would regard this precisely as inducing in them a detrimentally defensive frame of mind. Similarly with regard to their likely increased focus on these reported threats at the expense of other police work.
133. The second public policy consideration which I would emphasise in the present context is the desirability of safeguarding the police from legal proceedings which, meritorious or otherwise, would involve them in a great deal of time, trouble and expense more usefully devoted to their principal function of combating crime. ..
134. Just such policy considerations as these (the conflicts of interest involved and the desirability of limiting litigation against those concerned to act in the interests of the wider community) informed the judgments of the House, not only in Hill and Brooks but also (of the majority) in D v East Berkshire Community Health NHS Trust [2005] 2 AC 373. "
It is also worth noting extracts from paragraph 139 of Lord Brown's speech:-
" Rather I am satisfied that the wider public interest is best served by maintaining the full width of the Hill principle. There is, of course, in these cases (as in D v East Berkshire) always a price to be paid by individuals denied for public policy reasons (as not being "fair, just and reasonable" within the Caparo principleCaparo Industries plc v Dickman [1990] 2 AC 605) a civil claim in the interests of the community as a whole. At least in the present context the state makes some payment under the Criminal Injuries Compensation Act (albeit nowadays a tariff sum far short of common law damages)."
"The need for, or desirability of, a duty of care owed by the C.P.S to those it is prosecuting must be considered in the context of other protections and remedies offered by the principles from which our democracy is founded. First, by convention the Attorney-General is answerable to Parliament for general prosecution policy and for specific cases where the Attorney-General or the D.P.P. intervenes. The sanction is an adverse vote in Parliament on the conduct of the Attorney-General, which could make his position untenable. But, in the nature of things, Parliament can usually only call the Attorney-General to account after a prosecution has run its course. And Parliament will not give directions to the Attorney-General. That is cold comfort for a citizen who suffered as a result of maladministration. On the other hand, the Attorney-General's accountability to Parliament is a brake on maladministration. Secondly, there is the possibility of judicial review of decisions by the CPS. Given the nature of prosecution process, it is, however, right to say that the scope for such judicial review proceedings is very limited indeed: . Turning to private law remedies there is first of all the tort of malicious prosecution . It is also necessary to consider the tort of misfeasance in public office. The essence of the tort is the abuse of public office. Potentially such liability might attach to a decision of a CPS prosecutor. But, as the law stands, the plaintiff has to establish either that the holder of the public office maliciously acted to the plaintiff's detriment or that he acted knowing that he did not possess the relevant power. . By way of summary, one can say that as the law stands a citizen, who is aggrieved by a prosecutor's decision, has in our system potentially extensive private law remedies for a deliberate abuse of power."
"115. Enhanced criminal record certificates
(1) The Secretary of State shall issue an enhanced criminal record certificate to any individual who
(a) makes an application under this section in the prescribed form countersigned by a registered person, and
(b) pays any fee that is payable in relation to the application under regulations made by the Secretary of State.
(2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked
(a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (3) or (4), or
(b) for a purpose relating to any of the matters listed in subsection (5).
(3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18.
.
(6) An enhanced criminal record certificate is a certificate which
(a) gives
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and
(ii) any information provided in accordance with subsection (7), or
(b) states that there is no such matter or information.
(7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate.
(8) The Secretary of State shall also request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion
(a) might be relevant for the purpose described in the statement under subsection (2),
(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime, and
(c) can, without harming those interests, be disclosed to the registered person.
(9) The Secretary of State shall send to the registered person who countersigned an application under this section
(a) a copy of the enhanced criminal record certificate, and
(b) any information provided in accordance with subsection (8)."
Section 117 of the Act provides:-
"(1) Where an applicant for a certificate . believes that the information contained in the certificate is inaccurate he may make an application in writing to the Secretary of State for a new certificate.
(2) The Secretary of State shall consider any application under this section; and where he is of the opinion that the information in the certificate is inaccurate he shall issue a new certificate."
"It is important to stress at the outset that, in the final analysis, it is for the employer to decide whether or not information is relevant to the issue of the applicant's suitability for the position in the individual case. But, so far as the police are concerned, information should only be disclosed if there is clear reason to believe that it might be materially relevant i.e. not fancifully, remotely or speculatively relevant but materially relevant. For example, information should not be disclosed on the basis that, although there is no apparent reason to believe that it is relevant, it could conceivably turn out to be. Information should only be disclosed if there is clear reason to believe that it is or might be relevant.
10. The mere fact that a person has behaved badly, or is believed to have done so, is not relevant. The key purpose of disclosure is not a general "character assessment" of the individual, but to consider the risk or likelihood of an offence being committed against the vulnerable. Therefore, information should not be provided unless it has a direct bearing on the matter in hand i.e. the job or position in connection with which the disclosure is required. It is important also to keep in mind that, although child protection is a major matter of public and political concern and forces will be well aware of that sensitivity, information is not to be provided simply in order "to protect the forces' back just in case something should go wrong in the future."
Misfeasance in public office and conspiracy to cause loss.
Conclusion