COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON MR JUSTICE WYN WILLIAMS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEVESON
LORD JUSTICE TOULSON
|- and -
|THE CHIEF CONSTABLE OF NOTTINGHAMSHIRE POLICE
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Mr A Payne (instructed by Malcolm Turner (Force Solicitor)) for the Respondent
Hearing dates : 7TH and 8TH December 2010
Crown Copyright ©
President of the Queen's Bench Division:
Enhanced Criminal Record Certificates
a) section 117, whereby an applicant who believes that information contained in an ECRC is inaccurate may make an application to the Secretary of State for a new certificate. The Secretary of State has to consider such an application and issue a new certificate, if he is of the opinion that the information in the first certificate was inaccurate.
b) section 119(5), which relates to various sources of information including that provided by chief officers under section 115(7), whereby no proceedings shall lie against the Secretary of State by reason of an inaccuracy in the information made available or provided to him. The effect of this appears to be that no proceedings may be brought against the Secretary of State to whom a fee is payable, if the Criminal Records Bureau issues an ECRC which contains inaccurate information. There is no equivalent express statutory protection for chief officers who may supply inaccurate information to the Criminal Records Bureau.
c) section 115(8), which requires the Secretary of State to request relevant chief officers to provide relevant information which ought not to be included in the certificate in the interests of the prevention or detection of crime, but could nevertheless be disclosed to a prospective employer. Thus the statute embraces the prospective employer being provided with sensitive information which might prejudice the applicant's employment prospects, which will not be disclosed to the applicant.
"It is apparent Desmond is not responsible for the crime. The complainant visited and cannot state for certain if Desmond is responsible. Desmond refused charge and enquiries are continuing. All relevant paperwork attached."
"I seek your authority to disclose that the applicant was arrested on 26/5/01 on Suspicion of Indecent Assault on a Female and Attempt 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 match box 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 match box 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 05/06/2001 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 evidence to charge."
On the basis of this and apparently without further enquiry, ACC Ditchett acting for the chief Constable authorised disclosure on 21st December 2005 as follows:
"Relevant to disclose. The 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."
As a result of this disclosure, an ECRC was issued on 23rd December 2005 containing information in substantially the terms of the disclosure which ACC Ditchett had authorised.
"Information regarding what happened between leaving the "Voodoo" bar and entering the Indigo bar, at 36 Carlton Street, Hockley, Nottingham, has already been stated on the interview tapes – therefore no need to reiterate."
A transcript of this interview has not been made available, but no doubt it gave Mr Desmond's account of his meeting with a woman on Parliament Street from whom he asked for directions to the Woodville Hotel.
"… the ACC [Ditchett] never made any concerted effort to contact DC Kingsbury, never mind to establish why there was insufficient evidence to charge."
"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  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."
"… if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty".