An Informer v A Chief Constable

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Toulson,Lady Justice Arden,Lord Justice Pill
Judgment Date29 February 2012
Neutral Citation[2012] EWCA Civ 197
Docket NumberCase No: A2/2011/0523
Date29 February 2012

[2012] EWCA Civ 197

IN THE COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Pill

Lady Justice Arden

and

Lord Justice Toulson

Case No: A2/2011/0523

Between:
An Informer
Appellant
and
A Chief Constable
Respondent

Mr Ian Glen QC and Mr Gordon Bishop instructed for the Appellant

Lord Faulks QC and Mr Edwin Buckett instructed for the Respondent

Hearing dates: 29 and 30 November 2011

Lord Justice Toulson

Introduction

1

This appeal raises the novel question whether a supplier of information to the police, which led to a criminal investigation, was owed a contractual or tortious duty by the police to exercise reasonable care in the conduct of the investigation so as to safeguard him from economic loss. The relationship between the informer and the police was complicated by the fact that he was not only an informer but became a suspect.

2

The informer's claim for damages against the police was dismissed by Wyn Williams J after a trial of issues of liability for breach of contract, negligence and misfeasance in public office. The appeal is against the dismissal of his claims for breach of contract and negligence but not against the dismissal of his claim for misfeasance in public office. The trial was conducted entirely in private, and the judge's reserved judgment of 145 paragraphs has not been published. The appeal was also conducted in private, because it was apparent that it would inevitably involve reference to matters which could not be referred to publicly without risk to the appellant, and it would not have been practical to try to divide the hearing into parts. It is understandable that there has not been any published version of the judgment since it is under appeal. However, as a general principle it is highly undesirable for there not to be a published judgment, with sensitive details omitted as may be necessary. Open justice is one of the characteristics of the rule of law. In this case there is the added ingredient of a novel question of law to be decided, which is not a private matter. Since there is no appeal against any finding of fact by the judge in his full and detailed judgment, it will be sufficient for present purposes to provide a summary of the facts which omits all reference to times and places or to the true identities of the people concerned.

Facts

3

I will call the claimant C. As a result of contacting the police he was introduced to two "contact handlers". I will call them H1and H2. They made written records or summaries of their meetings and telephone conversations with him, which the judge accepted were essentially accurate. At the first meeting C said that he had been having financial dealings with a man whom I will call X, but had recently learned that X was involved in criminal activities. This prompted him to inform the police.

4

According to the record of the first meeting, the police gave him a brief explanation of the steps which they would take to protect his identity. He was also warned that he had no authority to engage in any form of criminal activity. At the trial the police officers did not dispute that there may have been discussion relating to C's and his family's safety and general wellbeing, but the judge found that he was not satisfied that there was any discussion of the welfare of C and his family "which related to or could reasonably have been understood as referring to their financial circumstances".

5

Within a day or so, authorisation was given under the Regulation of Investigatory Powers Act 2000 ( RIPA) for the use of C as a "covert human intelligence sources" (or CHIS). I will come in due course to the provisions of the Act which are relied on by C.

6

From then onwards C provided a good deal of valuable information to his handlers about the activities of X and others over a substantial period of time. Payments were made to him, the details of which are irrelevant.

7

Some time after C began to provide information, he signed a set of instructions prepared by the police. The document stated that it was not intended to be legally binding but that the instructions were intended to protect C, his handlers and the information which he provided. Apart from stating that C's identity would be protected, it was silent about any responsibilities of the police.

8

As a result of C's information, the police began an investigation into the activities of X and others. H1and H2 were not part of the investigating team. H1and H2 were part of a team which handled informers and passed on the intelligence to investigating officers, who belonged to a different department. The separation of functions was deliberate. It was designed to protect the anonymity of the CHIS by limiting knowledge of his identity to his handlers, and at the same time to avoid the risk of the investigators being compromised or manipulated by someone whom they might have cause to investigate as a suspect. These were understandable reasons, but as time went by the separation led to problems.

9

In the investigation the police used specialist devices to listen to X's conversations with other people including C.

10

The investigation led to the arrest of a number of X's associates and C anticipated, correctly, that X was likely to be arrested. Around this time C reported to his handlers that X was wanting to talk to him about one of their deals, the circumstances of which suggested the possibility of money laundering by X, whether or not C knew or suspected it.

11

About the same time there was a change of H1and H2's immediate superior officer. C met the new superior officer with H1and H2. At the meeting C was asked to give details of his financial dealings with X.

12

At the trial C strongly challenged the accuracy of the police officers' note of the meeting but the judge rejected the challenge. He described C as worldly wise. He considered that C, realising by then that it was only a matter of time before X was arrested, may well have thought it to be in his own best interests to divorce himself from any beneficial interest in any assets resulting from their dealings.

13

A few weeks later X and others were arrested and charged with serious offences. X's property was searched. The police were concerned to investigate, among other things, whether X and the others who had been arrested had assets which might be the subject of a confiscation application and/or whether they had committed money laundering offences. They obtained a restraint order against X under s 41 of the Proceeds of Crime Act 2002 ( POCA).

14

The investigations included looking into X's dealings with C and the police obtained production orders under s 345 of POCA against C's bankers, solicitors and accountants.

15

The production orders revealed that C had misled bank staff and his solicitors about his sources of income, and the police learned from the solicitors that C was in the process of attempting to sell assets. C was recorded saying that he was going to go bankrupt and take the money out of the country. The police also had other information which suggested that he was intending to leave the country.

16

C was arrested on suspicion of money laundering, interviewed and released on bail. Although the handlers had advance knowledge of his arrest from the investigating team, up to that time no officer involved in the investigating team was aware of the identity of the handlers' source.

17

At the trial, Mr Glen QC on behalf of C accepted that the arresting officer had reasonable cause to arrest him on what he knew, but argued that this was only because the officer was in the dark about C's role as a CHIS. Wyn Williams J rejected this argument. He found that "even upon the basis that the Claimant was known to be a CHIS there was sufficient material available to make it proper to suspect him of having engaged in the offence of money laundering".

18

A few weeks after C's arrest, there was a meeting between a senior police officer who had oversight of the investigation and a senior police officer who had oversight of the conduct of C's handlers. The purpose of the meeting was to discuss the problems of information sharing and division of responsibilities now that C was both a CHIS and a suspect. The result of the discussion was a written Memorandum of Understanding (MoU).

19

The main points of the MoU were that –

a. the handlers would disclose the identity of the CHIS to a named officer in the investigating team, who would not disclose it to others;

b. the handlers would continue to maintain contact with C as a CHIS and would retain responsibility for "duty of care" issues in relation to him (a reference to the responsibilities of the police under RIPA);

c. the handlers would not seek to influence the work of the investigating team and would not speak to C regarding his own suspected criminality;

d. the investigating team would not charge C without first submitting an advice file to the CPS and would notify the handlers when an advice file had been submitted;

e. the investigating team would provide the handlers with a transcript of C's interview.

20

The MoU explained the rationale. It referred to the information which C had provided and added:

However, it is right and proper that the CHIS must be investigated for any potential wrongdoing specifically around any money laundering offences. The difficulty is that any subsequent defence by the CHIS would potentially be hampered by the fact that he is a CHIS and therefore his meetings, contacts and information he gave the police could all assist any future defence of himself.

This would be further complicated if,...

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