Jersey Unreported Judgments

[2011]JRC190

Royal Court

(Samedi)

30 September 2011

Before     :

M .C. St. J. Birt, Esq., Bailiff, sitting alone.

 

The Plaintiff appeared in person.

Advocate M. T. Jowitt for the Chief Officer.

judgment

the bailiff:

1.        The plaintiff is an advocate of the Royal Court.  He has presented a draft Order of Justice which contains an ex parte interim injunction restraining the Chief Officer from disclosing to the Law Society the transcript of a police interview given by the plaintiff under caution.  The Law Society wishes to have the transcript for the purposes of a disciplinary investigation which it is conducting following a complaint made against the plaintiff. 

2.        Notice of the application was given to the Chief Officer and Advocate Jowitt has appeared on behalf of the Chief Officer.  He has argued that I should not grant the requested injunction. 

The background

3.        I take the background essentially from the Order of Justice and supporting affidavit.  I have however also received a letter from Advocate Redgrave (the case delegate appointed by the Law Society for the purposes of the disciplinary investigation) with an amended complaint and amended answer in respect of the disciplinary proceedings.  These documents were copied to the plaintiff and to Advocate Jowitt. 

4.        The plaintiff acted for an elderly lady ("the interdict") from September 2003 until a curator was appointed for the interdict on 8th May, 2009.  The person appointed as curator was the interdict's son, who lives in England. 

5.        On 11th September, 2009, the interdict paid an impromptu visit to the plaintiff's offices.  He was aware that she was under curatorship at that time.  She insisted on making a telephone call to the Department of Works and Pensions ("the DWP") in the UK in connection with payment of her pension.  The plaintiff assisted her in making that call.  The Court has seen the transcript of that conversation.  In essence the interdict said that she wished to make arrangements for her pension payments to be made to the plaintiff's client account.  The plaintiff joined the telephone call and gave the DWP details of his client account. 

6.        The plaintiff acknowledges that he should not have co-operated with the interdict in making this request because she was under curatorship.  In mitigation, he says that, having been told by the DWP that their records showed the changes had been made to the interdict's account for payment only two days earlier, the plaintiff believed that the DWP had been notified of the establishment of the curatorship and that, before making any transfer, they would surely realise that they were not authorised to make any payments without the consent of the curator, so that no transfer would in fact be made.  He therefore thought no more of the transaction and did not even alert his accounts department to look out for the incoming payment.  In fact, on 18th September, 2009, £1,241.50 arrived from the DWP into the plaintiff's client account.  It has remained there since. 

7.        Shortly after 8th May, 2009, the plaintiff had, at the request of the curator, rendered fee notes in respect of work done until the establishment of the curatorship.  On receipt of these fee notes, the curator had expressed surprise at the quantum and subsequently, in February 2010, he made a complaint to the Law Society in respect of the plaintiff's professional conduct.  That complaint contained a number of allegations but did not at that stage specifically refer to his action in assisting the interdict to procure payment of the pension into the plaintiff's client account by means of the telephone conversation on 11th September, 2009. 

8.        On 26th November, 2010, the plaintiff voluntarily attended an interview under caution at Police Headquarters.  This interview related to the re-direction of the pension payment about which the curator had made a complaint to the Attorney General.  According to the Order of Justice, the plaintiff acknowledged during the course of the interview that he had acted foolishly in acquiescing in a telephone call, gave an assurance that the funds were still in his client account and were available to be transferred back to the DWP or to the curator; maintained that he had not acted dishonestly in any way; and apologised for his actions. 

9.        On 6th June, 2011, the police informed the plaintiff by telephone that he would not be prosecuted in respect of the re-direction of the pension payment.  During the same telephone conversation the police inspector requested the plaintiff's permission to disclose the transcript of the interview to the Law Society for the purposes of their investigation.  The plaintiff refused consent.  This was followed by a written e-mail request on 6th June which the plaintiff also refused. 

10.      On 14th July Mrs Miles, Head of Criminal Justice Department at Police Headquarters, wrote to the plaintiff informing him that Advocate Redgrave, on behalf of the Law Society, had requested a transcript of the interview.  She went on to say that the police believed the information to be relevant to the disciplinary complaint being investigated by the Law Society and intended to disclose the transcript.  On 1st August, 2011, with the assistance of the case delegate, an amended complaint in relation to the Law Society investigation was presented.  This included specifically as a head of complaint:-

"On 11th September, 2009, knowing a curatorship was in force, he procured by misrepresentation the transfer of an asset of [the interdict] out of the control of the curator and into his own control."

11.      In his amended answer to the amended complaint, filed on 16th September, 2011, the plaintiff admitted that, most regrettably, he had co-operated in the transfer of the pension payment into his client's account.  He asserted that there was no intention of wrong-doing but acknowledged his foolhardiness in allowing himself to be bamboozled by the interdict into providing details of his client account to which the transfer could be made. 

12.      There was further correspondence between the police and the plaintiff as to the disclosure of the transcript of the interview but in due course the police stated that the transcript would be disclosed unless the plaintiff obtained a court order to the contrary; hence the Order of Justice and the matter came before me for hearing as a matter of urgency on 22nd September. 

The Law

13.      The parties did not essentially disagree over the applicable test.  In my judgment the position is accurately stated in the headnote of Woolgar-v-Chief Constable of Sussex Police [1999] 1 WLR 25.  In that case a registered nurse was arrested and interviewed under caution after a patient died.  She was not charged.  Subsequently the regulatory body for nursing sought disclosure of the interview.  The nurse refused to consent and sought an injunction to restrain the police from disclosing it.  The Court of Appeal upheld the decision of the judge at first instance refusing the injunction.  The position was summarised in the headnote as follows:-

"Dismissing the appeal, that the public interest in ensuring the free flow of information to the police for the purposes of criminal proceedings which required that information given in confidence would not be used for some collateral purpose had to be balanced against a countervailing public interest in protecting public health and safety which entitled the police to disclose to a regulatory body operating in that field confidential information which the police reasonably believed was relevant to an inquiry being conducted by that body on the basis that confidentiality would be otherwise maintained; that the primary decision on disclosure was for the police rather than the court; that, where the police were minded so to disclose such material, they should, unless it was impracticable or undesirable, inform the person affected in time for that person, if so advised, to seek the court's assistance; and that, if the police refused disclosure, the regulatory body could, if it was aware of its existence, make an appropriate application to the court."

See also the judgment of Kennedy LJ at 36 where he said:-

"Essentially Mr Wadsworth's submission was and is that when the plaintiff answered questions when interviewed by the police she did so in the reasonable belief that what she said would go no further unless it was used by the police for the purposes of criminal proceedings.  The caution administered to her so indicated, and in order to safeguard the free flow of information to the police it is essential that those who give information should be able to have confidence that what they say will not be used for some collateral purpose. 

However, in my judgment, where a regulatory body such as UKCC operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an inquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that, save in so far as it may be used by the regulatory body for the purposes of its own inquiry, the confidentiality which already attaches to the material will be maintained.  As Mr Horan said in his skeleton argument:-

'A properly and efficiently regulated nursing profession is necessary in the interest of the medical welfare of the country, to keep the public safe, and to protect the rights and freedoms of those vulnerable individuals in need of nursing care.  A necessary part of such regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate.'

Putting the matter in Convention terms Lord Lester submitted, and I would accept, that disclosure is 'necessary in a democratic society in the interests of ... public safety or ... for the protection of health or morals or for the protection of the rights and freedoms of others.'"

14.      Although Woolgar was concerned with regulation of the nursing profession and therefore the judgment refers to the field of public health and safety, the principle applies in my judgment equally in respect of the regulation of lawyers.  As Advocate Jowitt submitted, there is a strong public interest in the proper administration of justice in the Island and this requires the assistance of competent and ethical lawyers.  This is key to the public interest in the maintenance of the rule of law and of public confidence in the integrity of those charged with a role in maintaining it.  He argued, and I would agree, that the quotation from counsel's argument in Woolgar can, with little alteration, be applied to this case as follows:-

"A properly and efficiently regulated legal profession is necessary in the interests of maintaining the rule of law, in keeping the public safe and protecting the rights and freedoms of individuals, especially the vulnerable who need its protection.  A necessary part of such regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate."

The Law Society of Jersey is tasked by statute to ensure that those who practise law in the Island are fit and proper to play their part in the administration of justice. 

15.      The plaintiff referred to Cole-v-Chief Officer of the States of Jersey Police [2007] JLR 606 and argued that it should be preferred as an authority to Woolgar.  However, the issue in that case was whether Mr Cole had consented to the disclosure of his criminal record to his temporary employers.  It was therefore a very different case.  Nevertheless, the Court in passing held at paragraphs 31 - 32 that, even where there was no consent to disclose, the police were lawfully entitled to do so if it was necessary or desirable in the public interest.  I see no material distinction between the test in Cole and that in Woolgar. 

16.      The plaintiff also referred me to Frankson-v-Home Office [2003] EWCA Civ 655.  In that case the claimants, who were prisoners, complained of assaults by prison officers.  During the police investigation into the complaints, prison officers were interviewed and made statements under caution.  The claimants brought civil actions against the Home Office in respect of the alleged assaults and applied for disclosure orders requiring the police to disclose to them the prison officers' statements.  The Court of Appeal held that the issue for consideration was whether the public interest in the civil claim being tried on the basis of all the relevant evidence outweighed the public interest in maintaining the confidentiality of those who had made the statements in the expectation that their confidence would be maintained.  The court upheld the trial judge's decision to order disclosure.  In my judgment the principle applied in that case is entirely consistent with Woolgar and indeed Cole. 

17.      Reference was also made to the Data Protection (Jersey) Law 2005 ("the 2005 Law").  Disclosure of the transcript of the police interview in this case would amount to the processing of data for the purposes of the 2005 Law.  Article 4(4) provides:-

"(4) ... it shall be the duty of a person to comply with the data protection principles in relation to all personal data with respect to which the person is a data controller."

18.      The police service is a data controller in respect of the data in this case, comprising the record of the interview. 

19.      The key principle is the first principle contained in schedule 1 of the 2005 Law which reads:-

"Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless:-

(a) in every case, at least one of the conditions set out in paragraphs 1 - 6 of schedule 2 is met; and

(b) in the case of sensitive personal data, at least one of the conditions in paragraphs 1 - 10 of schedule 3 is also met."

20.      Turning to schedule 2, which contains the conditions for processing personal data, the relevant paragraph which would permit processing (by way of disclosure) in this case is that contained at paragraph 5(b) which reads:-

"The processing is necessary for:-

(b) the exercise of any functions conferred on any person by or under any enactment..."

The Law Society is exercising a function conferred upon it by the Law Society of Jersey Law 2005, namely the disciplinary control of advocates and solicitors.  It thus falls within 5(b), providing of course that the Court considers the processing to be necessary for the exercise of its functions in this case. 

21.      Advocate Jowitt concedes that the data in this case (comprising the record of the interview) is also '"sensitive personal data" as defined in Article 3 of the 2005 Law and that accordingly, before it can be lawfully processed, one of the conditions in Schedule 3 must also be met.  The relevant paragraph of Schedule 3 relied upon is paragraph 7(b).  It is in fact in identical terms to paragraph 5(b) referred to above in respect of personal data and reads as follows:-

"The processing is necessary for:-

(b) the exercise of any functions conferred on any person by or under any enactment ..."

22.      In summary therefore both parties agreed that disclosure to the Law Society of the data comprising the record of the police interview with the plaintiff is lawful under the 2005 Law provided that it is, in the opinion of the Court, "necessary" for the exercise of the disciplinary functions conferred upon the Law Society. 

23.      I should add that at one stage, an issue arose between the parties as to whether Article 31 of the 2005 Law was also relevant, but both were agreed that, even if it was, it did not add anything to the matters which the Court must consider as described above. 

Discussion

24.      In his letter to the Court, the case delegate states that the allegation regarding the pension is, in the Law Society's view, the most serious of the allegations which the plaintiff faces.  In essence, it is alleged that the plaintiff supported and facilitated a request by an interdict client to transfer her pension payments into his firm's client account, when he was fully aware that she had no capacity to make this transfer; and he misled the pension provider in doing so.  The Law Society considers that, when deciding whether to accept his explanation of how this occurred, it may well be material to know how he responded to the allegation when it was first put to him.  This was when he was interviewed by the police.  Such evidence could, depending on its nature, be relevant to the plaintiff's credibility in the disciplinary proceedings.  The case advocate submits that it would be in the public interest for disclosure to be made of any material that was likely to have a significant impact on the way the disciplinary committee would view the plaintiff's conduct in this matter. 

25.      I have read the transcript of the interview.  The effect of that interview was summarised by Miss Miles in her affidavit as follows:-

"(k) The Applicant was interviewed on 26th November, 2010.  He asserted that he had had no professional contact with [the interdict] or her financial affairs since the imposition of the curatorship, and that from then on 'as far as I am concerned I was simply a friend and a social visitor'. 

(l) He was then presented with the evidence of the phone call to the DWP.  He said he had forgotten all about the phone call.  He explained that he had, in behaving as he did, intended only to appease [the interdict] and that he assumed the DWP would know about the curatorship and refuse to transfer the pension payments.  He said he did not believe at any stage that the pension payments would be paid into his client account."

26.      The plaintiff submitted that the public interest in maintaining confidentiality of police interviews outweighed any public interest in ordering disclosure of the interview to the Law Society.  He had admitted what he had done and the Law Society had the transcript of the conversation between the DWP, him and the interdict.  He had acknowledged that he was at fault and it was simply a question of what disciplinary penalty, if any, the Law Society should impose.  When pressed by the Court as to whether there was any prejudice to him in disclosure, he submitted that some might infer that he was not being truthful at the beginning of the interview when he said he had not acted professionally for the interdict after the appointment of curator.  This would be unfair because he had been given no warning of what he was to be questioned about when he attended at the police station for interview and he had genuinely forgotten the conversation with the DWP until presented with the transcript of it by the police. 

27.      Advocate Jowitt argued that that submission by the plaintiff made the case for disclosure.  If it was open to someone to draw the inference from the transcript of the police interview that the plaintiff had not been honest at the beginning of the interview, this was highly relevant to the disciplinary inquiry being carried out by the Law Society.  The plaintiff would of course have every opportunity to explain the position, but if the Law Society were to conclude, in the light of all the evidence and having given the plaintiff an opportunity to give his side of things, that he had not been honest at the beginning of the police interview, this would be very material when considering whether he had lived up to the appropriate standards required of lawyers and what sanction should be imposed.  Just as in the case of the regulatory body for nursing in Woolgar, the Law Society needed to have all available evidence in order to fulfil its public duty to the best effect. 

28.      Having considered the submissions, I am in no doubt that the public interest in favour of disclosing the interview to the Law Society greatly outweighs the public interest in preserving its confidentiality in this particular case. 

29.      There is the clearest possible public interest in ensuring that advocates at all times behave in accordance with the high standards required of them in connection with their clients.  This will usually point towards the Law Society, as disciplinary authority, being placed in possession of the best available information.  I accept that it is likely to be relevant for the Law Society to see what the plaintiff's explanation was when first questioned about the conduct which the Law Society itself is investigating and must assess as part of its disciplinary function.  In particular, the plaintiff's initial assertion that his role as the interdict's lawyer had ended with the curatorship and his later assertion that he had forgotten the phone call to the DWP and he never believed the pension payments would be diverted to his account may well be relevant to the Law Society's consideration of the complaint against him. 

30.      Furthermore, I agree with Advocate Jowitt that the plaintiff's submission that it would be prejudicial to him to make disclosure because some might consider his initial answers to the police not to have been honest, far from being a reason not to make disclosure, is in fact an additional reason for holding that the Law Society should see the transcript.  The plaintiff will have full opportunity during the disciplinary process to seek to show that he was not being dishonest in his initial answers but had merely forgotten about the telephone conversation. 

31.      For the same reasons, I also find that disclosure to the Law Society is "necessary" for the exercise of the Society's disciplinary role and that disclosure therefore complies with the data protection principles.  I also find that disclosure is necessary and proportionate for the protection of the rights and freedom of others and is therefore not a breach of Article 8 of the European Convention on Human Rights. 

32.      I therefore decline to grant an injunction in this case restraining the police from disclosing the transcript of the interview to the Law Society for the purposes of the Law Society's disciplinary investigation into the conduct of the plaintiff.  Naturally any disclosure by the police must be made on the usual terms that the Law Society will use the transcript only for the purposes of its disciplinary investigation and not for any other purpose and that the Society will not disclose the transcript to any person save as may be necessary for the purposes of its investigation. 

Authorities

Woolgar-v-Chief Constable of Sussex Police [1999] 1 WLR 25.

Cole-v-Chief Officer of the States of Jersey Police [2007] JLR 606.

Frankson-v-Home Office [2003] EWCA Civ 655.

Data Protection (Jersey) Law 2005.

Law Society of Jersey Law 2005.