Desmond v Nottinghamshire Police

A statutory duty imposed on a police chief officer to respond to a request for information for an enhanced criminal record certificate does not, without more, create a concurrent common-law duty of care to the applicant. The court must examine the statutory purpose, the parties’ relationship, any assumption of responsibility, the nature of the loss and the risk that a private duty would inhibit the statutory function. Here, the scheme under the Police Act 1997 was directed to protecting vulnerable young people and required a delicate disclosure judgment. A duty owed to the applicant would conflict with and inhibit that purpose. There was no special relationship or sufficient assumption of responsibility. Alternative statutory, public-law, human-rights and data-protection remedies supported the conclusion. The negligence claims were therefore struck out.

The appellant had been arrested on suspicion of a sexual offence but was not charged. Several years later, information about the arrest was disclosed in an enhanced criminal record certificate, affecting his prospects of employment as a teacher. He brought claims including negligence, alleging that the police had failed to obtain and assess complete information before disclosure under section 115(7) of the Police Act 1997.

HHJ Inglis struck out the negligence claims and granted summary judgment on other claims. Wyn Williams J partly allowed the appellant’s appeal in [2009] EWHC 2362 (QB). The appellant appealed further, while the respondent cross-appealed on the existence of a duty of care. The central issue was whether the statutory relationship and circumstances could give rise to a concurrent common-law duty.

1. Disposition. The appellant’s appeal failed and the respondent’s cross-appeal succeeded. The order striking out the negligence claims was restored.
2. The modified principle derived from Hill v Chief Constable of West Yorkshire [1989] AC 53, Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495, Van Colle v Chief Constable of Hertfordshire [2009] AC 225 and Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 remained relevant, although it was not decisive by itself. The proper negligence inquiry was whether, in all the circumstances, the proposed duty embraced the damage claimed. For essentially economic loss, reliance was intrinsically necessary, and the court had to examine the relationship, any assumption of responsibility and the statutory context.
3. A statutory power could not itself generate a common-law duty. Where Parliament had not created a private right to compensation, the mere existence of a statutory duty would ordinarily be insufficient. The common law should not impose a concurrent duty inconsistent with, or liable to inhibit, the statutory scheme. Relevant considerations included the statutory purpose, possible inhibition of statutory functions, exposure of discretionary decisions to litigation, the claimant’s ability to protect himself and any particular basis for reliance. Reliance alone was insufficient.
4. The chief officer’s function under section 115(7) of the Police Act 1997 was imposed by statute and was directed to protecting vulnerable young people. The officer had no choice whether to perform the function. There were no special facts showing an assumption of responsibility to this applicant beyond the statutory duty. A common-law duty would conflict with the statutory purpose, particularly because disclosure involved a sensitive judgment. The court could not separate information gathering from the wider statutory function and impose a duty on that component alone. Section 115(8) reinforced the potential conflict.
5. The availability of the statutory correction procedure, judicial review, claims under the Human Rights Act 1998, data-protection remedies and other possible remedies was a relevant supporting consideration. Equivalent reasoning applied to other stages of the process. The court rejected, as unarguable, the contention that striking out the negligence claim breached Article 6; it was deciding the particular absence of a duty, not granting blanket immunity.

1. Court of Appeal (Civil Division): dismissed the appellant’s appeal, allowed the respondent’s cross-appeal and restored the order striking out the negligence claims.
2. Queen’s Bench Division: Wyn Williams J partly allowed the appeal from the County Court in [2009] EWHC 2362 (QB) .
3. County Court: HHJ Inglis struck out the negligence claims under CPR Part 3.4 and granted summary judgment on the misfeasance and conspiracy claims.