CLG & Ors v Chief Constable of Merseyside Police

The police owe no general duty of care to members of the public when performing their core functions of investigating crime and obtaining or preserving evidence. A duty may arise towards a particular person where the police have accepted responsibility for that person's safety.

Witness immunity extends beyond evidence given in court where protection of a practically necessary preparatory communication is required to prevent the core immunity from being outflanked.

The positive obligation under article 8 ordinarily requires an appropriate system for protecting sensitive personal information. An isolated operational error does not establish a breach where such a system exists. The seventh data protection principle likewise requires appropriate safeguards, not an absolute guarantee against accidental disclosure.

The appellants were prosecution witnesses whose new home address was included in a police officer's statement proving service of witness summonses. A failure to review and redact the statement led to its transmission through the Crown Prosecution Service to defendants accused of serious firearms offences.

His Honour Judge Wood QC dismissed claims in negligence, under the Human Rights Act 1998 and under the Data Protection Act 1998: [2014] EWHC 60 (QB). He found both the police and the prosecution at fault but held that no actionable duty or statutory breach had been established.

The appeal concerned whether the police owed a common-law duty of care, whether witness immunity protected transmission of the statement, whether article 8 was infringed, and whether the second, third or seventh data protection principle had been breached.

1. Appeal dismissed. Moore-Bick LJ, with whom Fulford and Vos LJJ agreed, held that the negligence, article 8 and data-protection claims all failed.

2. The police acts of serving witness summonses, making a statement to prove service and supplying that statement to the prosecuting authority formed part of the core function of obtaining and preserving evidence. Under the principle established in Hill and reaffirmed in Brooks, the police owed no duty of care to potential witnesses generally while performing that function. Although a duty can arise through an assumption of responsibility towards a particular person, none arose here. The appellants had not supplied their new address confidentially, and the routine taking of statements and service of summonses did not amount to an acceptance of responsibility for their safety.

3. Alternatively, witness immunity protected the police's transmission of the statement to the prosecution. The immunity covers evidence in court and those preparatory communications which must be protected to prevent the core immunity from being outflanked. The statement was required to enable the officer to give evidence supporting applications for arrest warrants. Communicating it to the prosecution therefore fell within the protected process, notwithstanding the negligent failure to identify and redact sensitive information.

4. The pleaded article 8 case concerned the state's positive obligation to protect private and family life. That claim failed because the judge was entitled to find that appropriate protective arrangements existed and that disclosure resulted from an isolated operational error. The court did not finally determine whether article 8 could afford greater positive protection than articles 2 or 3 where the alleged consequence was exposure to death or serious injury.

5. An isolated act of carelessness might in principle infringe the negative obligation under article 8. Here, however, the address was an essential part of evidence proving service of the witness summonses. Its disclosure to the prosecution was lawful and necessary in a democratic society for the prevention of crime. That alternative formulation therefore also failed.

6. Any incompatibility with the second and third data protection principles was displaced by section 29 of the Data Protection Act 1998. The prosecution needed to serve the statement, and restricting disclosure would have been likely to prejudice the prosecution of offenders. The seventh principle required appropriate technical and organisational measures, rather than an absolute guarantee against misuse. The judge was entitled to find the police and prosecution systems appropriate despite the errors made.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2015] EWCA Civ 836.
2. High Court, Queen's Bench Division: His Honour Judge Wood QC dismissed the claims in negligence, under the Human Rights Act 1998 and under the Data Protection Act 1998: [2014] EWHC 60 (QB).