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Desmond v Chief Constable of Nottinghamshire, Court of Appeal, 12 January 2011

4 February 2011
The issues

Assumption of responsibility – duty of care – enhanced criminal record certificate – whether police in breach of duty of care in providing information to the Criminal Records Bureau where the investigating officer had not been contacted to establish why there was insufficient evidence to the charge.

The facts

The Claimant had been arrested in connection with a complaint by a woman of sexual assault. The investigating officer concluded that the Claimant was not responsible for the crime. Later the Claimant requested an enhanced criminal record certificate under the Police Act 1997 Part 5 in connection with his employment as a teacher. The Chief Constable authorised disclosure of the alleged complaint and the fact that the Claimant had been arrested but not charged because there was insufficient evidence to proceed. A certificate was issued containing that information. The Claimant brought proceedings in negligence alleging the police were in breach of their duty of care in providing that information to the Criminal Records Bureau without contacting the investigating officer to establish why there was insufficient evidence to charge.

The claim was struck out but the Claimant’s Appeal to the High Court was allowed in part, the High Court Judge finding that the claim was arguable on the basis that the police had assumed responsibility to the Claimant to take reasonable steps to collate all the information that was available in order to make a decision on disclosure in light of all relevant information.

The Claimant Appealed.

The Chief Constable Cross-Appealed.

The decision

The chief officer had a positive statutory duty to act, either by providing information to the Criminal Records Bureau or by refraining from doing so. There was necessarily a relationship deriving from the statute between the chief officer and the Claimant. The chief officer had a duty to act in the public interest and with a view to the proper protection of vulnerable young people. In the case of Mr Desmond the relationship was personal to him.

The core principle of general application was that in the absence of special circumstances, the police and the Crown Prosecution Service do not generally, in the interest of the whole community, owe individual members of the public (whether they are victims, witnesses or those who are prosecuted) a common law duty of care in undertaking and performing their operational duties of investigating, detecting, suppressing and prosecuting crime. The modified core principle may not apply in exceptional circumstances such as a road traffic claim or where a police officer on the facts is taken to have assumed responsibility to an individual Claimant.

The proper analysis of any claim in negligence requires the Court to ask and answer a composite single question, that is whether, in all the circumstance, the scope of duty of care contended for is such as to embrace damage of the kind which the Claimant claims to have suffered. In cases where the damage is essentially economic and not physical, reliance on the Defendant is an intrinsically necessary ingredient. A statutory power cannot of itself generate a common law duty of care.

Whether a statutory duty gives rise to a private common law cause of action is a question of construction of the statute requiring an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for its breach. The common law should not impose a concurrent duty which was inconsistent or might be in conflict with the statutory framework. If the policy of the statute was not to create a statutory liability to pay compensation the same policy should also ordinarily exclude the existence of a common law duty of care.

There might be special circumstances in which a Public Authority had assumed an obligation to a Claimant to act in a particular way. But if Parliament had stopped short of imposing a private law duty, sufficiently compelling special circumstances were required beyond the mere existence of the duty or power to make it fair and reasonable to impose a duty to an individual of a scope to be derived from the special circumstances.

There might be particular cases in which Public Authorities have actually done acts or entered into relationships or undertaken responsibilities such that they were taken to have assumed responsibility to a Claimant so as to give rise to a common law duty of care.

Factors to be taken into account included the subject matter of the statute; the intended purpose of the power or duty; whether a concurrent private law duty might inhibit the proper discharge of the statutory functions; whether such a duty would expose the Authority’s budgetary and other discretionary decisions to judicial enquiry; the ability of the Claimant to protect himself; and the presence or absence of a particular reason why the Claimant was relying or depending on the Authority. Reliance alone is usually not enough.

In this case the chief officer had acted pursuant to a statutory duty. He had not assumed a responsibility which the statute had not obliged him to undertake. There were no special facts in this case from which the Court might conclude that apart from the statutory duty this officer was to be taken to have assumed responsibility to the Claimant in particular. The statute did not provide or envisage a remedy in compensation for breach of the statutory duty. There was nothing beyond the existence of the statutory duty from which a common law duty of care might be discerned. The structure and purpose of the statute strongly suggested that there should be no duty of care. If there were there would be a conflict between the chief officer’s putative duty to the Claimant and the statutory purpose of protecting vulnerable young people. There was no sufficient relationship between the chief officer and the Claimant such as, for example existed in Phelps v Hillingdon. A supporting consideration was that there were a series of other remedies potentially available to the Claimant, including the statutory remedy under Section 117 of the 1997 Act, the Human Rights Act and the Data Protection Act.

Appeal dismissed.

Cross Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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