An Informer v A Chief Constable

The police owe a covert human intelligence source a duty to take reasonable care against risks to physical safety and wellbeing arising from the provision of information about others. The confidential relationship and the statutory arrangements governing a source support that duty.

The duty does not protect a source from a proper investigation into suspected criminality on the source’s own part. Nor, in such circumstances, does it extend to pure economic loss caused by arrest, production orders or restraint orders. A novel duty concerning pure economic loss must develop incrementally from established categories. It must not conflict with the police’s public responsibilities to investigate crime and preserve suspected criminal proceeds.

An informer became a covert human intelligence source and supplied valuable information leading to an investigation of serious crime. He subsequently became a suspect in money laundering inquiries. The police arrested and interviewed him, obtained production orders, and obtained a restraint order without informing the Crown Court of his status as a source.

Wyn Williams J dismissed claims in contract, negligence and misfeasance in public office after a private trial. The informer appealed only against the dismissal of the contractual and negligence claims. He alleged pure economic loss and psychiatric injury.

The central issue was whether the police owed a contractual or tortious duty to safeguard the source’s economic welfare when conducting a criminal investigation into his own suspected conduct.

1. The appeal was dismissed unanimously. Toulson LJ gave the principal judgment. Arden LJ agreed in the result, while analysing the case through assumption of responsibility and the investigations immunity. Pill LJ accepted that the relationship could extend beyond physical welfare, but found no breach on the facts.

2. The relationship between the police and a covert human intelligence source is confidential. The police owe a duty of care to protect the source from foreseeable risks to physical safety and wellbeing caused by the source’s provision of information about others. The arrangements required by section 29 of the Regulation of Investigatory Powers Act 2000 and the associated Code supported that conclusion, although they created no action for breach of statutory duty.

3. The duty does not give a source immunity from investigation or prosecution for suspected criminal conduct. A duty to protect the source’s economic interests could not be imposed where it would conflict with the police’s public responsibilities to investigate crime and preserve property reasonably suspected to represent criminal proceeds. Toulson and Arden LJJ therefore rejected liability for pure economic loss arising from the production order, arrest, interview, restraint order and its continuation.

4. A novel duty to prevent pure economic loss is not determined merely by asking whether liability would be fair, just and reasonable or whether responsibility was voluntarily assumed. The law develops incrementally by analogy with recognised categories. The court must examine the parties’ relationship, the claimant’s legitimate reliance and any conflicting public duties.

5. The failure to disclose the informer’s status when seeking the restraint order was troubling and breached the prosecution’s duty of candour to the court. Nevertheless, that procedural duty did not create a concurrent duty in negligence to the informer. Section 72 of the Proceeds of Crime Act 2002 specified the circumstances in which compensation for loss caused by a restraint order could be awarded. The court should not create a damages remedy for negligent non-disclosure falling short of the statutory threshold.

6. The contractual assurances concerned physical safety. No promise protected livelihood or financial wellbeing, and no such term was necessary to give the agreement efficacy. The claimed psychiatric injury was neither reasonably foreseeable nor within the scope of the duty, because the relevant acts formed part of the investigation of the informer’s own suspected conduct.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the dismissal of the contractual and negligence claims.
2. High Court: Wyn Williams J dismissed the claims for breach of contract, negligence and misfeasance in public office following a private trial. No citation was stated, and the reserved judgment was unpublished. The dismissal of the misfeasance claim was not appealed.