Desmond v The Chief Constable of Nottinghamshhire Police

The police are generally immune from negligence claims where the alleged damage arises from investigating or suppressing crime. That immunity does not extend automatically to every police function. Where the core principle is not engaged, ordinary negligence principles may apply. A duty may also arise where the police have assumed responsibility to take reasonable care towards an individual, including in relation to pure economic loss. The collation of information for an enhanced criminal record certificate is arguably outside the core immunity and may support an assumed-responsibility duty. However, a claim should proceed only where breach and causation remain realistically arguable. A decision-maker may ordinarily rely on information presented as accurate and complete.

The claimant appealed against decisions of His Honour Judge Inglis in the Nottingham County Court. The negligence claim was struck out, and summary judgment was entered for the defendant on claims for misfeasance in public office and conspiracy to injure.

The claimant alleged that police officers and civilian employees negligently retained, collated and disclosed information concerning his arrest when applying for enhanced criminal record certificates. He claimed psychiatric injury and financial loss, including loss of employment opportunities. The appeal concerned whether the negligence allegations disclosed an arguable duty and breach, and whether permission should be granted to appeal the judgments on misfeasance and conspiracy.

1. Summary judgment. The court had to consider the negligence claim on the pleaded facts. Summary judgment was appropriate only where the claim had no reasonable prospect of success and there was no other compelling reason for a trial ([4]).
2. Police negligence. The principles in Hill v The Chief Constable of West Yorkshire [1989] A.C.53, reaffirmed in Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 and applied by the majority in Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, establish a core public-policy immunity for acts or omissions in the investigation and suppression of crime. The authorities do not create a wider immunity from negligence claims involving the police. Ordinary principles may apply where the core principle is not engaged.
3. Assumption of responsibility. Consistently with Hedley Byrne & Co Ltd v Heller & Partner Ltd [1964] AC 465, and the qualification recognised in Brooks, a duty may arise where responsibility has been assumed to take reasonable care. This may include responsibility concerning pure economic loss.
4. The collation of information for a decision under section 115(7) of the Police Act 1997 was not necessarily within the Hill immunity. It was properly arguable that the police had assumed responsibility to take reasonable steps to collect accurate and complete information before disclosure to a prospective employer. That part of the negligence claim therefore survived.
5. The claim against PC Ollerenshaw concerning her October 2005 email was bound to fail because the email accurately recorded the circumstances leading to the arrest. The claim against ACC Ditchett also could not succeed: he was entitled to rely on the information presented to him as accurate and sufficient, and no breach was realistically arguable.
6. The allegations concerning the later erroneous response to the Criminal Records Bureau, and the alleged duty to remove information from police databases, were properly struck out. Permission to appeal on misfeasance in public office and conspiracy to injure or cause loss was refused. The appeal was allowed only to the limited extent concerning collation of information.

• High Court (Queen’s Bench Division): appeal from the decision of His Honour Judge Inglis in the Nottingham County Court. The negligence appeal was allowed to a limited extent. Permission to appeal the summary judgment on misfeasance in public office and conspiracy was refused.