Desmond v The Chief Constable of Nottinghamshhire Police

On 22 November 2007 the Appellant, Mr Desmond, commenced these proceedings against the Respondent in the Nottingham County Court. He claims damages for personal injury and loss of wages allegedly arising out of tortious acts which he maintains were committed by police officers and/or civilian employees for whom the Respondent is responsible. The various acts and omissions about which the Claimant complains took place during the period May 2001 to February 2007. By his Amended Particulars of Claim, the Claimant alleges that the Defendant is responsible for acts or omissions amounting to negligence, acts amounting to misfeasance in public office and the tort of conspiracy to cause him injury.

On 14 November 2008, at the Nottingham County Court, His Honour Judge Inglis struck out that part of the Appellant’s claim which alleges negligence; further, the Learned Judge gave summary judgment for the Respondent in respect of the allegations of misfeasance in public office and conspiracy to injure.

The Appellant appeals against the decision to strike out his negligence claim with the permission of the Judge. He seeks permission from this Court to appeal against the Judge’s conclusion that he should give summary judgment for the Respondent in respect of the allegations of misfeasance in public office and conspiracy to injure.

I should stress at the outset that the claim based in negligence must be considered on the basis of the facts as alleged by the Appellant. In relation to the allegations of misfeasance in public office and conspiracy to injure it is permissible to consider the facts critically. However, I stress and accept that it is not permissible to embark upon a mini trial. A court should give summary judgment only if there is no reasonable prospect that a claim can succeed and there is no other compelling reason why a trial should take place.

The relevant facts can be taken, largely, from the judgment of HH Judge Inglis.

In the late evening of 25 May 2001 a young woman, SB complained that she had been attacked on Parliament Street in Nottingham. The initial call to the police was by her father. Two police officers, Police Constable Ollerenshaw and Police Constable Leeson attended her house and received her initial complaint. This took place at about 11.54 pm. SB said that she had been dragged by a male person into Newcastle Street off Lower Parliament Street. The male then pushed her head towards her stomach and attempted to pull her trousers down. SB also referred to a conversation which had taken place between her and a man very shortly before this incident. The man had asked directions to his hotel and shown her a card with a picture of the hotel on it. The hotel was in Mansfield Road, Nottingham and its name began with the letter W. SB described the man as being white, 5 foot 10 inches tall, average build, clean shaven, white wavy hair and aged about 50. He was also described as smartly dressed.

Following the obtaining of this information from SB, PC Ollerenshaw recorded it in her notebook. She then left PC Leeson to take a witness statement while she made her way to Mansfield Road to look for the hotel. She went with PC Routeley. They soon discovered that a hotel, called the Woodville Hotel, existed in Mansfield Road and they were actually at that hotel when the Appellant arrived in a taxi. At that time (as now) the Appellant had white hair and in the view of PC Ollerenshaw he answered the general description of the alleged attacker. The officer approached the Appellant, asked him to go into a private room in the hotel and she then enquired where he had been that night. He replied that he had been in Nottingham town centre for drinks and a curry. The police officer decided to arrest the Appellant. She informed him of the reasons for his arrest, cautioned him and he replied “I asked a blonde female for directions and that’s all”.

Whilst these events were unfolding PC Leeson was taking a witness statement from SB. The material parts of that witness statement are set out in paragraphs 5 and 6 of the judgment of HH Judge Inglis and I need not repeat them. It suffices that I note that SB described some aspects of the attack upon her somewhat differently the account which she had given to PC Ollerenshaw when she was first seen.

During the course of the evening a handover file was prepared. In my judgment it matters not whether it was prepared by PC Leeson or PC Ollerenshaw since it seems to me that the Appellant may establish that the two officers shared information and, in particular, that PC Ollerenshaw knew that SB had made a full witness statement.

In a document entitled “Appellant’s factual submissions for the Appeal” the Appellant sets out his belief that PC Ollerenshaw entered details about his arrest onto the Police National Computer in the early hours of the morning of 26 May 2001. He sets out that allegation at paragraph 21 of his Document and he asserts that the information entered upon the computer was consistent with the initial complaint taken by PC Ollerenshaw but inconsistent with some aspects of SB’s witness statement. The Appellant further alleges that PC Ollerenshaw entered the same details onto the Respondent’s local intelligence system and that such information as was placed upon the computer systems in use in 2001 by the Nottingham Police Force either by PC Ollerenshaw or any other officer remained stored in the systems.

It is common ground that PC Ollerenshaw and PC Leeson played no role in the investigation of this alleged crime after 7.00 am of 26 May 2001. The handover file which had been prepared was given to Detective Constable Stanley Kingsbury who assumed responsibility for the inquiry.

Some of the steps taken by DC Kingsbury in furtherance of his investigation are recorded in paragraph 9 the judgment of HH Judge Inglis. It is also to be observed that one of the investigative steps taken by the officer was that he collected and viewed CCTV film from a bar which the Appellant claimed he was visiting at the time of the alleged attack upon SB. The CCTV film apparently showed the Appellant within the bar. DC Kingsbury made a note to that effect in his pocket book. There came a point in time when the officer decided to close the file against the Appellant. He wrote:

“It is apparent Desmond 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.

In December 2004 the Appellant obtained an enhanced criminal record certificate under the provisions of the Police Act 1997. The certificate showed that the Appellant had no convictions and no other adverse information was contained within the certificate. The certificate was provided to the Appellant by the Criminal Records Bureau which is the agency delegated by the Secretary of State to discharge his function under the 1997 Act to issue enhanced certificates. On 4 July 2005 the Appellant applied for another certificate. On this occasion Nottinghamshire Police indicated to the Criminal Records Bureau that it had information about the Appellant.

The decision about whether disclosure of that information was to be given to the Criminal Records Bureau for inclusion on the certificate was taken by Assistant Chief Constable Ditchett on 21 December 2005. He was asked to authorise the following disclosure:

“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 Mr Desmond 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.

It is necessary to set out in some detail the sequence of events which led to the making of the decision to disclose information to the Criminal Records Bureau. Some time after the Appellant made his request for an enhanced certificate on 4 July 2005, the Criminal Records Bureau sent out a request to police forces for information relating to the Appellant. The request was directed to the Disclosure Unit of the Nottinghamshire Police Force and an employee within that Unit would have been responsible for beginning the search for information relating to the Appellant. Normal practice was that the employee would search a number of internal databases. Those databases are described in paragraph 9 of the witness statement of Ms Susan Timmons who was (and maybe still is) a civilian employee of the Nottinghamshire Police Force with managerial responsibility for the Disclosure Unit. She says that the paperwork retained in the Disclosure Unit demonstrates that one of the databases – the custody system – identified that the Appellant had been arrested on suspicion of offences of indecent assault and attempted rape and that there was later found to have been insufficient evidence to proceed.

This information was apparently provided to Mr Malwyn Carnall. He is a decision maker within the Disclosure Unit. No witness statement has been served from Mr. Carnall, so far as I am aware. However, Ms Timmons has set out in her witness statement the steps taken by Mr. Carnall to obtain information about the Appellant’s alleged involvement in the assault upon SB. It appears that Mr. Carnall attempted to contact the investigating officer, DC Kingsbury by email; no response was received from DC Kingsbury, presumably because DC Kingsbury had retired and he had no access to internal emails. Mr. Carnall also obtained information from PC Ollerenshaw. In her witness statement PC Ollerenshaw says that in October 2005 she received an email from Mr. Carnall asking her if she recalled details of the offence for which the Appellant was arrested. PC Ollerenshaw replied. The exchange of emails between Mr. Carnall and PC Ollerenshaw is set out fully in paragraph 16 of the judgment of HH Judge Inglis.

In paragraph 19 of her witness statement Ms Timmons says that it was not unusual for Mr. Carnall to make follow-up enquiries of an investigating officer. She also says, however, that in 2005 no search was made against crime files since they were not stored electronically.

In paragraph 18 of his judgment His Honour Judge Inglis records that the crime file was “apparently believed destroyed”. He does not explain this further. On the basis of Ms Timmons’ witness statement it may be that the correct position is that no attempt was made to ascertain whether the crime file existed since, in 2005, it was not the practice to search for that file.

There is no suggestion in any of the evidence that any attempt was made to locate DC Kingsbury’s pocketbook.

As HH Judge Inglis correctly records in his judgment, the information which was considered by Assistant Chief Constable Ditchett prior to disclosure to the Criminal Records Bureau came from initial computer records and the account which PC Ollerenshaw gave to Mr. Carnall by email in October 2005.

As is obvious from the foregoing, two important sources of information were not collated by the civilian employees of Nottinghamshire Police Force. I refer, of course, to the crime file and DC Kingsbury’s pocketbook. Consequently the information contained within those documents was not considered by the Assistant Chief Constable when he ordered disclosure.

When the Appellant received his enhanced certificate he was surprised to find that it included information about the alleged attack upon SB. He spent eleven months seeking to persuade the Nottinghamshire Police Force that the information should not have been included upon the certificate. The steps he took and the responses of the Nottinghamshire Police Force are properly and accurately summarised in the judgment of HH Judge Inglis.

On 16 October 2006 the Appellant made a fresh application for an enhanced certificate; the information which had previously been supplied was still held by the Nottinghamshire Police Force. However, when the Criminal Records Bureau sent out a request for information the Force replied that it had none. That was an error and it has always has been acknowledged as such. The error was spotted quickly; on 14 November 2006 an employee of the Nottinghamshire Police Force asked the Criminal Records Bureau to re-initiate investigations. All the relevant facts relating to the error and the correcting of the error are set out in the judgment of His Honour Judge Inglis.

On 21 February 2007 Assistant Chief Constable Ackerly was asked to authorise disclosure of the following information to the Criminal Records Bureau:-

“I seek your authorisation to disclose that on 26 May 2001 Vincent Paul Desmond, 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.”

Assistant Chief Constable Ackerly declined to authorise disclosure. Consequently as from March 2007 the Appellant was provided with an enhanced certificate containing no information relating to the alleged assault upon SB.

It is to be observed that the crime file and DC Kingsbury’s pocketbook had not been located by the time that authorisation for disclosure was sought from Assistant Chief Constable Ackerly. Further, as it seems to me, the disclosure sought may contain a material inaccuracy. I know of no evidence to support the suggestion that a file was submitted to the Crown Prosecution Service who advised against proceeding against the Appellant.

The Appellant alleges that the conduct of officers and civilian employees of the Nottinghamshire Police Force has caused him psychiatric illness. He also asserts that their conduct has caused him financial loss. Essentially, he alleges that from 21 December 2005 to March 2007 he was unemployable as a teacher given the contents of the enhanced certificate. It should be noted that the claim for financial loss is not parasitic upon the claim for damages for personal injury. Consequently, it is a claim for pure economic loss.

In paragraph 33 of his judgment, HH Judge Inglis conveniently groups the allegations of negligence made by the Appellant in his Amended Particulars of Claim. It was not suggested that the approach of the learned Judge to distilling the allegations of negligence was erroneous. Accordingly, I propose to deal with them in the same way.

In paragraph 76 (a-i) the Appellant makes allegations of negligence relating to the period beginning with the alleged assault upon SB and ending on or about 6 June 2001. HH Judge Inglis records in paragraph 33(1) of his judgment that the Claimant elected not to pursue a cause of action in negligence relating to this period. Not surprisingly, therefore, the learned Judge found that the Claimant had failed to establish a cause of action in negligence in respect of any act or omission of any person for whom the Respondent was responsible in the period 25 May to 6 June 2001.

I have no doubt that the Appellant was correct to abandon these allegations. It seems to me that all the allegations relating to this period were complaints about acts or omissions which were undertaken exclusively during the course of a bona fide investigation into the alleged crime against SB. As will become apparent, shortly, successive decisions of the House of Lords beginning with Hill v The Chief Constable of West Yorkshire [1989] A.C.53 have held that as a matter of public policy the police are immune from actions for negligence in respect of their activities in the investigation and suppression of crime.

Paragraph 76 (j-p) contains allegations that it was negligent for the Police Force for which the Defendant was liable to maintain information about SB’s complaint and the Appellant’s involvement in that complaint on the various databases available to the Force. His Honour Judge Inglis concluded that the information which was stored, electronically, was not inaccurate. It was a summary of events surrounding the arrest of the Appellant. He could see no basis upon which it could be concluded that the Defendant was under a duty to remove that information from its databases and in the event that it did not there would be an actionable breach of that duty giving rise to a claim in negligence. I agree. As will be explained shortly, the circumstances in which a duty of care may arise between an individual and police officers are somewhat limited. I can think of no basis upon which the alleged duty to remove information can arise on the facts of this case.

In paragraphs 76(q)-(y) and paragraph 77 the Appellant makes allegations of negligence relating to the period October 2005 to 21 December 2005. A number of different persons are said to be negligent. The allegations are in the following terms:-

“(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.

In order to reach a conclusion about whether HH Judge Inglis was correct to strike out these allegations it is necessary, first, to consider in some detail, the decisions of the House of Lords beginning with Hill to which I referred in paragraph 26 above.

The Claimant in Hill was the mother of a young woman who was attacked and killed by an offender (known as the “Yorkshire Ripper”) who was convicted of her murder. Over some years prior to this murder the offender had attacked and killed other women in similar circumstances. The Claimant claimed on behalf of her deceased daughter’s estate damages for negligence against the Chief Constable of West Yorkshire. She alleged that officers for whom the Chief Constable was responsible had been negligent in the conduct of investigations into the crimes which had been committed previously and that, in consequence, the police had failed to apprehend the offender and prevent the murder of her daughter. The Defendant applied to strike out the claim. His application was upheld at first instance, in the Court of Appeal and in the House of Lords.

For the purposes of this judgment it is sufficient to set out extracts from the headnote in order to ascertain the principles upon which the case was decided in the House of Lords.

“……….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.

The principles in Hill were considered again by the House of Lords in Brooks v Commissioner of Police of Metropolis and Others [2005] 1 WLR 1495. In this case the Claimant and his friend L, who were black, were set upon by white youths in a racist attack, and L was killed. The Claimant was dealt with by the police in a way that was subsequently the subject of severe criticisms in an enquiry into the matters arising from L’s death. The Claimant brought an action against the Defendants (for these purposes the Commissioner of Police and a number of named police officers) in which he claimed damages for negligence, false imprisonment, misfeasance in public office and breaches of section 20 of the Race Relations Act 1976. At first instance, the Judge struck out the action against five of the named officers and the Commissioner of Police. On appeal, the Court of Appeal allowed the Claimant’s appeal in relation to his claim in negligence against the Commissioner of Police in respect of the three duties of care that he alleged had been owed to him; those were specified to be a duty to take reasonable steps to assess whether he was a victim of crime and, if so, to accord him reasonably appropriate protection, support, assistance and treatment; a duty to take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye witness to a serious crime of violence and a duty to afford reasonable weight to the account that he had given of events and to act on it accordingly. In the House of Lords their Lordships re-affirmed that as a matter of public policy the police generally owed no duty of care to victims or witnesses in respect of their activities when investigating suspected crimes; they held further that since the duties of care alleged by the Claimant had been inextricably bound up with the investigation of a crime the claim based on those duties should be struck out.

The principal speech in Brooks was delivered by Lord Steyn. He devoted a section of his speech to considering the status of the decision in Hill. The extracts which are relevant to the instant case are as follows:-

“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.”

The third of the cases in the House of Lords to which it is necessary to refer is Van Colle and another v Chief Constable of the Hertfordshire Police and another [2008] 3 WLR 593. The appeal before the House of Lords involved two distinct cases. In the second case the Claimant reported to the police that he had received persistent and threatening telephone, text and internet messages from his former partner following the break-up of their relationships including threats to kill him. He provided the officers with details of his former partner’s previous history of violence, his home address and the contents of the messages. The officers declined to look at or record the messages, took no statements from the Claimant and completed no crime form. However, they did take steps to trace the calls and inform the Claimant of the progress of their investigation. Shortly thereafter the Claimant was attacked at his home by his former partner and he sustained severe and continuing injury. He brought proceedings against the Defendant Chief Constable claiming damages for negligence in respect of the officers’ failure to protect him from the attack. At first instance, the Judge struck out the claim as disclosing no cause of action. The Court of Appeal allowed the Claimant’s appeal and remitted the case for a hearing. In the House of Lords the Defendant’s appeal was allowed. The relevant part of the headnote of the report reads as follows:-

“……….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 principle—Caparo 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).”

It should not be thought, however, that Van Colle (or for that matter Brooks) lays down any wider principle of immunity from actions in negligence than that suggested in Hill itself. In his speech Lord Hope of Craighead draws attention to the fact that there are many classes of case in which the police may be sued in negligence under “ordinary principles”: see paragraphs 79 to 81. None of their lordships took a different view.

In the last extract from the speech of Lord Brown quoted in paragraph 38 above his Lordship draws attention to the fact that a person who is the victim of a crime of violence has the prospect of compensation in respect of that violence by reason of an alternative remedy. The possibility of an alternative remedy is a theme which runs through a number of cases which have decided that no duty of care should be imposed upon public bodies. In Elguzouli-daf v Commissioner of Police of the Metropolis and another [1995] 2 WLR 173 one of the issues was whether or not a duty of care should be imposed upon the Crown Prosecution Service in relation to the conduct of a prosecution against a particular individual. In his judgment in the Court of Appeal, Steyn LJ (as he then was) had this to say about alternative remedies.

“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.”

In her oral submissions, in particular, Ms Leek for the Respondent laid some stress on the fact that in the circumstances of the instant case alternative remedies may have been available to the Appellant. She pointed to the fact that it would have been open to the Appellant to seek judicial review of the decision of ACC Ditchett to authorise disclosure; he might also have brought a claim against the Defendant under the Data Protection Act 1998. I accept, of course, that an application for judicial review was possible and I am prepared to assume that a claim may have existed under the 1998 Act. (I say assume since there was no argument in detail about this possibility and no examination of the statute was undertaken). In my judgment, however, it is at least arguable that public policy arguments based upon the existence of alternative remedies do not prevent a duty of care arising where a claimant establishes that a defendant has assumed a responsibility to take reasonable care in the particular circumstances of the case (see the first part of the extract of the speech of Lord Steyn in Brooks set out in paragraph 37 above).

It seems to me that the following principles can be distilled from the authorities cited above. First, the police are immune from an action in negligence at the suit of an individual if the damage complained of was caused by an act or omission in furtherance of the investigation or suppression of crime (the core principle in Hill). Second, if the core principle is not engaged a duty of care may by imposed upon the police upon “ordinary principles” if the police are directly involved in causing actionable damage to an individual. Third, the police can be held liable in negligence for damage (including pure economic loss) if they have assumed a responsibility to the individual in question to act with reasonable care.

I turn next to deal with the statutory context in which a Chief Constable comes to provide information to the Criminal Records Bureau for inclusion upon an enhanced criminal record certificate. Ms Leek, Counsel for the Respondent, has set out in her Skeleton Argument those parts of the legislation which are relevant. She correctly identifies that the Police Act 1997 was the governing statute during 2005. Those parts of that statute which are extracted by Ms Leek are as follows:-

“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.”

As I have said, the Secretary of State performs his functions under section 115 or 117 through the Criminal Records Bureau. The Chief Constable, as is apparent from this and many other cases delegates his functions under section 115 to a very senior officer or officers within the Force for which he is responsible.

In the context of this case Assistant Chief Constable Ditchett was carrying out the function set out in section 115(7) of the 1997 Act when he authorised disclosure on 21 December 2005. He was providing information which in his opinion might be relevant for the statutory purpose identified and which, in his opinion, ought to be included in the certificate.

I should also draw attention to Home Office Circular 5/2005 which was issued on 1 February 2005. The document makes it clear that a police officer charged with making a decision upon disclosure under section 115(7) must consider, with care, the question of relevance. Is the information held by the police relevant to the statutory purpose under consideration? That is a very important question. Paragraphs 9 and 10 of the Circular are in the following terms:-

“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.”

It is also worth noting that paragraph 4 of the Circular advises police forces that failure to observe relevant legal provisions and principles lays forces open to legal challenge, and possibility to action for damages. However, no indication is given about the basis upon which damages might be awarded.

Ms Leek submits that the process of gathering information held by a police force for the purpose of presenting it to an appropriate officer so that he can make a decision about its disclosure is a process which is inextricably linked to the suppression of crime. She further submits that the decision actually made by the officer in question is inextricably linked to the same purpose. Accordingly she submits that the core principle in Hill is engaged and the Defendant in this case and any Defendant in the same position is immune from an action in negligence.

HH Judge Inglis did not accept that the process of collating information for a decision maker who has to decide upon disclosure for the purposes of section 115(7) Police Act necessarily falls within the core principle of Hill – see paragraph 61 of his judgment. I agree with the Learned Judge. It seems to me that it is at least open to argument that the collation of information in order that a decision can be made about whether information should be disclosed to a potential employer is not an activity which necessarily does or should fall within the core principle in Hill. Clearly, the protection of vulnerable people is a crucial factor which underpins the legislation. Nonetheless, in my judgment, it cannot be said that there is no realistic prospect that a court would hold that the core principle in Hill does not apply to the function of collating information.

However, notwithstanding his rejection of the proposition that the core principle in Hill necessarily applied to the collation of information in advance of a decision to disclose information HH Judge Inglis struck out those particulars of negligence which related to that process. His reasoning for so doing is set out in paragraph 61 of his judgment and the lynchpin appears to be his view that there was no positive duty assumed by or on behalf of the Defendant towards the Claimant to make particular enquiries. It seems to me that in so finding the Learned Judge was accepting that no duty of care could arise in favour of the Appellant since it could not be proved that the Respondent had assumed responsibility towards the Appellant in relation to the collation of information about him.

As is apparent from the speech of Lord Steyn in Brooks and as is expressly conceded by Ms Leek a duty of care can arise between persons for whom the Defendant is responsible and particular individuals if the Defendant is taken to have assumed responsibility in the sense that phrase is understood in the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partner Ltd [1964] AC 465.

Is it at least open to argument that the Respondent assumed responsibility to the Appellant to take reasonable steps to collate all the information which was available to the Force relating to the Appellant in order that a decision upon disclosure could be taken in light of all relevant information? In my judgment it is properly arguable that such a responsibility was assumed. The following factors seem to me to support such a possible conclusion. First, the Defendant knew or should have known that the Appellant was required to pay a fee to obtain an enhanced certificate. Second, he knew that the any information disclosed would, in turn, be disclosed to prospective employers; information which was adverse was likely to have a very detrimental effect upon the Appellant’s prospects of obtaining employment. Third, Nottinghamshire Police Force had a designated unit consisting, at the very least in part of civilian employees, which was responsible for collating the information. Fourth, on the state of the evidence so far adduced, the relevant information could only be retained in a finite number of databases and/or documents and/or locations. Fifth, the Appellant was entitled to rely, at least arguably, upon the Respondent to ensure that reasonable steps were taken to ensure that the information placed before a decision maker was both accurate and complete.

I appreciate, of course, that arguments can be made which point against the existence of the duty identified in the preceding paragraph. Ms Leek made them forcibly before me. However, I am not persuaded it is appropriate for me to conclude that the pleaded allegations of negligence set out in paragraph 32 above which relate to the collation of information cannot succeed because the identified duty did not exist.

The allegations of negligence set out in paragraph 32 above include assertions that PC Ollerenshaw and ACC Ditchett were personally negligent. PC Ollerenshaw is said to have been negligent, in effect, by communicating information by email to Mr. Carnall which was allegedly inaccurate. ACC Ditchett is said to have been negligent by reaching a decision upon disclosure upon information which was incomplete. The suggestion is made that he should have checked the crime file himself (or ensured that it was checked).

HH Judge Inglis deals with the allegations against PC Ollerenshaw in paragraph 62 of his judgment. He says that the information she provided in October 2005 accurately identified the circumstances leading to the arrest and did nothing more. I agree with that analysis. Further, it is inconceivable that this conclusion can change. The terms of the email sent by PC Ollerenshaw are self-evident.

I consider that HH Judge Inglis would have been justified in granting summary judgment to the Defendant against the Appellant upon the issue of whether PC Ollerenshaw was negligent in October 2005. There is simply no prospect whatsoever that a court would conclude that she had acted negligently in composing the email as she did.

HH Judge Inglis also concluded that no duty of care existed between PC Ollerenshaw and the Appellant. I consider that conclusion is probably correct in the factual circumstances of this case but it is not necessary to determine that issue conclusively and I am reluctant to do so given that the Appellant is in person and, with respect to him, he does not have the legal skills of an experienced barrister. However, to repeat, I am quite satisfied that the claim against PC Ollerenshaw relating to her email of October 2005 is bound to fail for the reasons set out in paragraph 55 above.

The issue of whether ACC Ditchett owed any duty of care to the Appellant when discharging the function of deciding whether to disclose information about him is, in my judgment, a difficult issue. I can envisage circumstances in which it is possible to argue that a person carrying out the function undertaken by ACC Ditchett assumed a duty to act with reasonable care. However, I am completely satisfied that there is no realistic possibility that the Claimant could establish a breach of duty on the part of ACC Ditchett on the particular facts of this case. It is clear from the evidence that his function was to decide upon whether disclosure of information should take place. He was the person given the responsibility of performing the statutory function under section 115(7) under the 1997 Act. Accordingly he had to consider whether the information provided to him might be relevant for a potential employer to consider and whether it ought to be included in an enhanced certificate.

Upon the available evidence (and there will be no further evidence which could affect this conclusion) ACC Ditchett was entitled to assume that the information presented to him was accurate and a sufficient summary of all the information that existed. In my judgment no court would conclude that he was negligent in failing to check (either personally or through a subordinate) that he had, indeed, been provided with accurate and sufficient information. On the basis of that which was presented to him ACC Ditchett was not negligent in authorising disclosure. Indeed, it is difficult to imagine any decision maker faced with the information provided to ACC Ditchett making a decision which was different from the one reached by him.

In the light of the foregoing I unhesitatingly conclude that it would be appropriate for summary judgment to be given in favour of the Defendant in relation to allegations of negligence against ACC Ditchett.

There remains one further group of allegations of negligence. As HH Judge Inglis points out, paragraph 137 of the Amended Particulars of Claim relates to the period between 21 October 2006 when the new application for a certificate was made and 26 February 2007 when the new certificate was issued. HH Judge Inglis deals with these allegations in paragraphs 64 and 65 of his judgment. Essentially I agree with much of what is set out in those paragraphs. In relation to the point made by the Appellant that the Respondent should have removed information from databases I repeat the view which I expressed in paragraph 31 above.

It was, obviously, a mistake for the Force to respond to the Criminal Records Bureau by suggesting that it held no relevant information upon the Appellant. HH Judge Inglis found that the relevant employee of the Force who made that mistake was under no duty to the Appellant to ensure that the correct answer was given. I consider the Learned Judge to be correct in that conclusion essentially for the reasons he gives. In any event it is inconceivable that this mistake caused any meaningful loss to the Appellant.

It follows that in large part I uphold the view of the HH Judge Inglis that the Appellant’s claims in negligence should not be permitted to proceed. In one respect alone (identified in paragraph 52 above) I reach a different conclusion and to that limited extent I propose to allow this appeal.

The Appellant needs my permission to pursue appeals against the summary judgment given by HH Judge Inglis against him in relation to these allegations. Permission is refused. The Learned Judge has explained his reasons for giving summary judgment in paragraph 67 to 72 of his judgment. No useful purpose would be served in repeating or analysing what is said therein. I agree, completely, with the views expressed by the Learned Judge. There is no prospect whatsoever on the state of the available evidence that the Appellant can make out the torts of misfeasance in public office and conspiracy to cause loss. The allegations made against PCs Ollerenshaw and Leeson, in particular, regrettably, are fanciful.

I allow the appeal to the limited extent indicated in relation to the claim in negligence. The application for permission to appeal in relation to the allegations of misfeasance in public office and conspiracy to injure/cause loss is refused. At the handing down of this judgment I will give directions for the future conduct of that part of these proceedings which will continue. With the assistance of Counsel and the Appellant I will identify the allegations of negligence within the Amended Particulars of Claim which survive.