Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE TOULSON
| AN INFORMER
|- and -
|A CHIEF CONSTABLE
Lord Faulks QC and Mr Edwin Buckett instructed for the Respondent
Hearing dates: 29 and 30 November 2011
Crown Copyright ©
Lord Justice Toulson:
a. the handlers would disclose the identity of the CHIS to a named officer in the investigating team, who would not disclose it to others;
b. the handlers would continue to maintain contact with C as a CHIS and would retain responsibility for "duty of care" issues in relation to him (a reference to the responsibilities of the police under RIPA);
c. the handlers would not seek to influence the work of the investigating team and would not speak to C regarding his own suspected criminality;
d. the investigating team would not charge C without first submitting an advice file to the CPS and would notify the handlers when an advice file had been submitted;
e. the investigating team would provide the handlers with a transcript of C's interview.
However, it is right and proper that the CHIS must be investigated for any potential wrongdoing specifically around any money laundering offences. The difficulty is that any subsequent defence by the CHIS would potentially be hampered by the fact that he is a CHIS and therefore his meetings, contacts and information he gave the police could all assist any future defence of himself.
This would be further complicated if, because of this information, the CHIS was acquitted. The other defendants, including [X] may seek to use "evidence" in the CHIS acquittal to their benefit.
The obvious solution therefore is to allow for an independent person to make a judgment based on ALL the facts and perform a balancing test prior to charge. In other words, look at any potential prosecution evidence and balance it against the [handlers'] records…
The obvious way to do this is for an advice file to be submitted to [the] CPS…and for them to view all the…material…The reason this course has been chosen is that it is felt…that if the CHIS were charged then subsequently not prosecuted it would raise considerable suspicion of the CHIS among [X] and others.
The reason no other officer is being involved is one solely related to security…
that the Claimant's welfare, livelihood and reputation remained free from any adverse consequences arising out of the Claimant's decision to assist and/or cooperate with the police's investigations of [X] and his criminal organisation.
"there is no proper factual basis to conclude that the Defendant ever made a promise to the Claimant that the Claimant's livelihood or financial wellbeing would be treated as a matter of priority or otherwise safeguarded by the Defendant".
"There is no possible basis to conclude that any term could be implied either to safeguard the Claimant's livelihood or financial well-being or take reasonable care not to damage those interests. This is not the basis of the claim, but in any event such terms would not be necessary to provide "business efficacy" to the agreement; nor would the officious bystander say "of course" if asked whether such terms were part and parcel of the contract."
C's case on appeal
a. the obtaining of a production order;
b. C's arrest;
c. the interviewing of C after his arrest;
d. the obtaining of a restraint order without disclosure to the court of C's status as a CHIS;
e. the duration of the restraint order.
RIPA and the Code of Practice
a. that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of the authority, and for the source's security and welfare;
b. that there will at all times be another person holding an office, rank or position with the authority who will have general oversight of the use made of the source;
e. that records made by the relevant investigating authority that disclose the identity of the source will not be made available to persons except to the extent that there is a need for access to them to be made available to those persons.
The person referred to in section 29(5)(a) of the 2000 Act will have day to day responsibility for:
- dealing with the source on behalf of the authority concerned;
- directing the day to day activities of the source;
- recording the information supplied by the source;
- monitoring the source's welfare and security.
The person referred to in section 29(5)(b) of the 2000 Act will be responsible for the general oversight of the use of the source.
Any public authority deploying a source should take into account the safety and welfare of that source, when carrying out actions in relation to an authorisation or tasking, and to foreseeable consequences to others of that tasking. Before authorising the use or conduct of a source, the authorising officer should ensure that a risk assessment is carried out to determine the risk to the source of any tasking and the likely consequences should the role of the source become known…
a. in the investigation there has been a serious default by a [police officer] and
b. the investigation would not have continued if the default had not occurred.
"a convenient phrase but it is clear that it was not intended to be a test for the existence of a duty for, on analysis, it means no more than that the act of the defendant in making the statement or tendering the advice was voluntary and that the law attributes to it an assumption of responsibility if the statement or advice is inaccurate and is acted upon."
"55. The fact that this is a novel claim is not necessarily fatal because the categories of negligence are never closed. But the Privy Council and the House of Lords have approved the well-known judgment of Brennan J in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43-44, where he expressed the view that:
"the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of the person to whom it is owed". "
See Yuen Kun Yeu v Attorney General of Hong Kong  AC 175, 191 and Caparo (618, 633-634).
56. As Lord Oliver observed in Caparo (634), Brennan J was echoing a theme expressed in Hedley Byrne & Co Limited v Heller and Partners Limited  AC 465 by Lord Devlin, whose speech in that case has come to be seen as particularly significant. (See the observations of Lord Goff in Henderson v Merrett Syndicates Limited  2 AC 145, 178 & ff.) In Caparo (634-635) Lord Oliver cited a lengthy passage from Lord Devlin's speech about the development of the law since Donoghue v Stevenson  AC 562, in which he concluded:
"The real value of Donoghue v Stevenson to the argument in this case is that it shows how the law can be developed to solve particular problems. Is the relationship between the parties in this case such that it can be brought within a category giving rise to a special duty? As always in English law, the first step in such an enquiry is to see how far the authorities have gone, for new categories in the law do not spring into existence overnight."
57. Lord Oliver in an important passage (632-635) observed that the extension of the concept of negligence since the decision in Hedley Byrne to cover cases of pure economic loss had given rise to "a considerable and as yet unsolved difficulty of definition". The postulate of a simple duty to avoid any harm that was, with hindsight, reasonably capable of being foreseen was untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality. He observed that those limits had been found by the requirement of what has been called a "relationship of proximity" between the claimant and the defendant and by the imposition of a further requirement that the attachment of liability for the harm which had occurred be "just and reasonable". But it was impossible to identify some common dominator by which the existence of the essential relationship could be tested, and that "to search for any single formula which will serve as a general test of liability is to pursue a will-of-the-wisp". The most that could be attempted is a broad categorisation of the decided cases according to the type of situation in which liability has been established in the past in order to found an argument by analogy.
58. These words needs to be emphasised because there is sometimes a tendency (as the present case shows) to pluck out the words "fair, just and reasonable" as if they provide some comprehensive touchstone. In itself, the expression means little more than that the court should only impose a duty of care if it considers it right to do so. The various speeches in Customs & Excise Commissioners v Barclays Bank plc  UKHL 28,  1 AC 181 underline the point that the "threefold test" provides no straightforward answer to the question whether in a novel situation a party owes a duty of care (Lord Bingham at 6, Lord Hoffmann at 35-36, Lord Rodger at 53, Lord Walker at 71 and Lord Mance at 93). In considering whether there is sufficient "proximity" to make it just and reasonable to impose a duty of care, the courts examine carefully the nature of the relationship between the parties and begin by considering whether it is reasonably analogous to other cases in which such a duty has been recognised. The court is looking to see whether there is "that special relationship of proximity which is required to give rise to the duty of care" to protect the claimant from economic loss (using the language of Lord Oliver in Caparo at 650F) – which is another way of framing the question posed by Lord Devlin in Hedley Byrne "Is the relationship between the parties in this case such that it can be brought within a category giving rise to a special duty?".
60. For a duty of care to arise, there needs to be something particular about the relationship between the defendant and the claimant, in relation to some particular transaction or activity likely to have economic consequences for the claimant, such that the claimant can properly expect to be entitled to rely on the defendant to safeguard him from economic harm likely to result from want of care on the part of the defendant. This need is reflected by the usage of the words "special duty" or "special relationship". "
"…it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to a duty not to misrepresent. It consists in a duty to consider what any other interested party would, if present, wish to advance by way of fact, or say in answer to the application, and to place that material before the judge. The duty applies to an applicant for a restraint order under POCA in exactly the same way as to any other applicant for an order without notice. Even in relatively small value cases, the potential of a restraint order to disrupt other commercial or personal dealings is considerable. The prosecutor may believe that the defendant is a criminal, and he may turn out to be right, but that is yet to be proved. An application for a restraint order is emphatically not a routine matter of form, with the expectation that it would be routinely granted. The fact that the initial application is likely to be forced into a busy list, with very limited time for the judge to deal with it, is yet further reason for the obligation of disclosure to be taken very seriously. In effect, the prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge. "
"One must therefore ask the question whether foreseeable injury to the suspect may be caused on the hypothesis either that he has never been charged or, if charged, that he has been acquitted at trial or on appeal, or that his conviction has been quashed on an application for judicial review. It is, I accept, foreseeable that in these situations the suspect may be put to expense, or may conceivably suffer some other economic loss, which might have been avoided had a more careful investigation established his innocence at some earlier stage. However, any suggestion that there should be liability for negligence in these circumstances runs up against the formidable obstacles in the way of liability in negligence for purely economic loss… Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect."
Summary and conclusion
a. the relationship between C and the police was a confidential relationship;
b. the defendant owed a duty of care to protect C from risks to his physical safety and wellbeing to which he was potentially exposed as a result of his activities as a CHIS in providing information about others;
c. the duty did not extend to protecting C from investigation of suspected criminal conduct on his part;
d. the duty did not extend to purely economic loss.
Lady Justice Arden:
"… it is incontrovertible that the fight against crime is daily dependent upon information fed to the police by members of the public, often at real risk of villainous retribution from the criminals and their associates. The public interest will not accept that good citizens should be expected to entrust information to the police, without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected. The welfare of the community at large demands the encouragement of the free flow of information without inhibition. Accordingly, it is arguable that there is a duty of care, and that no consideration of public policy precludes the prosecution of the plaintiffs' claim, which will be judged on its merits later."
"(5) For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring–
(a) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source's security and welfare; ...""
Lord Justice Pill:
"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."
"But the core principle of Hill has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police Conduct Regulations 2004 (No. 645). 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; and apprehending criminals and preserving evidence: [authority is stated]. A retreat from the principle in Hill 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 risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a 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 interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill, be bound to lead to an unduly defensive approach in combating crime."
"… I would also be reluctant to endorse the full breadth of what Hill v Chief Constable of West Yorkshire  AC 53 has been thought to lay down, while readily accepting the correctness of that decision on its own facts."
Lord Nicholls of Birkenhead, also concurring, stated, at paragraph 6:
"Like Lord Bingham and Lord Steyn, in reaching this conclusion I am not to be taken as endorsing the full width of all the observations in Hill v Chief Constable of West Yorkshire  AC 53. There may be exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law. Then the decision in Hill's case should not stand in the way of granting an appropriate remedy."
"True it is that in Brooks both Lord Nicholls of Birkenhead and Lord Steyn contemplated the possibility of exceptional cases on the margin of the Hill principle which might compel a different result. If, say, the police were clearly to have assumed specific responsibility for a threatened person's safety—if, for example, they had assured him that he should leave the matter entirely to them and so could cease employing bodyguards or taking other protective measures himself—then one might readily find a duty of care to arise. That, however, is plainly not this case. There is nothing exceptional here unless it be said that this case appears exceptionally meritorious on its own particular facts—plainly not in itself a sufficient basis upon which to exclude a whole class of cases from the Hill principle."
"They [the claimants' counsel] also sought assistance in the careful reserved judgment of Tudor Evans J. in Welsh v Chief Constable of the Merseyside Police  1 All ER 692. In that case the judge held, in the context of a striking out application under R.S.C. Ord. 18, r. 19(1)(a), that it was arguable that the C.P.S. owed a duty of care to a defendant to inform the magistrates' court that certain offences had already been taken into consideration by the Crown Court. The C.P.S. failed to do so. That had resulted in the plaintiff's re-arrest and detention. Any judgment of Tudor Evans J. in such a case requires the most careful consideration by us. But Welsh's case must be put in perspective. The judge approached the matter on the basis that the C.P.S. assumed by conduct a responsibility to keep the magistrates' court informed as to the fact that the offences had been taken into consideration. The judge repeatedly emphasised this feature of the case. By contrast the cases before us do not involve any suggestion of an assumption of responsibility by the C.P.S. Ultimately, it seems to me that the decision in Welsh's case is not of assistance on the central point before us. Contrary to the views of the deputy High Court judge in the case before us I do not regard Welsh's case as wrongly decided. But it turned on its own special facts, and in particular on the issue of assumption of responsibility by the C.P.S."
"Subject to one qualification, my conclusion that there is no duty of care owed by the C.P.S. to those it prosecutes is intended to be of general application. The qualification is that there may be cases, of which Welsh v Chief Constable of the Merseyside Police  1 All ER 692 was an example, where the C.P.S. assumes by conduct a responsibility to a particular defendant: see Spring v. Guardian Assurance Plc.  2 AC 296, 317c-318E, per Lord Goff of Chieveley. And it is trite law that such an assumption of responsibility may generate legal duties. But that qualification has no relevance to the cases before us."
In a concurring judgment, Morritt LJ also stated that he did not "wish to be thought to be casting doubt on the decision of Tudor Evans J in Welsh".
"… [the CPS] do not generally in the interests of the whole community owe individual members of the public, be they 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 principle is one of public policy which has regard to the practical needs of law enforcement; "
Sir Anthony May also referred, at paragraph 51, to:
"…a relevant supporting consideration … that there is a series of other possible remedies potentially available to [the claimant]."
The court accepted, at paragraph 32, that:
"The modified core principle in Hill may not apply in exceptional circumstances at the margins;…"
"I do not actually find it helpful to bear in mind – what is in any event obvious – that the public policy consideration which has first claim on the loyalty of the law is that wrong should be remedied. Harm which constitutes a 'wrong' in the contemplation of the law must, of course, be remedied. But the world is full of harm for which the law furnishes no remedy."
Lord Rodger provided examples which do not relate to the present facts.
"In agreement with [Lord Keith in Hill] it seems to me properly arguable that an informant, giving in confidence sensitive information to the police, is in a special relationship to the police, that relationship being based on an assumption of responsibility towards the informant by the police, such that, when through the negligence of the police that information is disclosed to criminals, it can result in a valid claim by the informant in respect of consequent damage to the informant."
At page 486D, Gibson LJ considered the case of negligent disclosure of confidential information in that context. He stated:
"For my part, I have difficulty in seeing why the police should be immune in such a case on the ground of public policy, regardless of whether or not the police were, at the time of the negligence, investigating or suppressing crime. But whether or not this is right, it seems to me that the judge was justified in taking the view that in a case of this sort the important public policy considerations asserted by the police must be balanced against the other public policy considerations to which I have referred, and that the appropriate time to do the balancing is at the trial, when all the facts are known to the court."
"The law of negligence does not require perfection of professionals; not does it guarantee desired results … Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere "errors of judgment" which any reasonable professional might have made and therefore, which do not breach the standard of care"."
"… People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations."
Status of a CHIS
"that records made by the relevant investigating authority that disclose the identity of the source will not be made available to persons except to the extent that there is a need for access to them to be made available to those persons."
The exception would permit disclosure to a judge from whom a restraint order is sought.
"For what it is worth I am inclined to the view that C did not engage in criminal activity with X and his associates and that he went to the police as soon as he discovered that X was a criminal. Thereafter, as is acknowledged by the respondent, C provided very valuable information which led to the conviction of serious criminals."
Submissions and discussion
"The phrase 'assumption of responsibility' can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts on the advice". [my emphasis]
"It is not so much that responsibility is assumed as that it is recognised or imposed by law."
Lord Slynn had prefaced that conclusion by stating:
"It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one: Henderson v Merrett Syndicates Ltd  2 AC 145, 181. The phrase means simply that the law recognises that there is a duty of care."
"Thus, like Colman J,… I think it is correct to regard an assumption of responsibility as a sufficient but not a necessary condition of liability, a first test which, if answered positively, may obviate the need for further enquiry. If answered negatively, further consideration is called for."
"… it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. "
In this case the judge rightly found, at paragraph 133, that officers "should have acted in such a way so as to seek to ensure that an application with potential for causing considerable hardship to C was not made without proper disclosure to the judge of all relevant material."
"A fourth factor to be considered is whether the suggested duty of care to the claimants would be inconsistent with the bank's or the defendants' duty to the court. Clearly it would not. It would complement and if anything reinforce performance of that duty, as Colman J  1 WLR 2027 recognised in paragraph 63 in his judgment, at p 2052."
A duty can be owed by the police to a CHIS to be candid with a court from which the police are seeking orders against him.