CLG and Others (Claimants/Appellants) v Chief Constable of Merseyside Police (Defendant Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Fulford,Lord Justice Vos |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] EWCA Civ 836 |
| Date | 28 July 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2014/0539 |
[2015] EWCA Civ 836
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
His Honour Judge Wood Q.C.
[2014] EWHC 60 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-president of the Court of Appeal, Civil Division
Lord Justice Fulford
and
Lord Justice Vos
Case No: A2/2014/0539
Mr. Tim Owen Q.C. and Mr. Rajeev Thacker (instructed by Bhatt Murphy) for the appellants
Mr. Jeremy Johnson Q.C. and Miss Kate Cornell (instructed by the Force Solicitor) for the respondent
Hearing dates: 23 rd and 24 th June 2015
Background
This is an appeal against the order of His Honour Judge Wood Q.C. sitting as a Judge of the High Court, dismissing the appellants' claims for damages resulting from the disclosure of their address to the defendants in criminal proceedings in which they were to be called as witnesses. The claims were brought under the common law, the Human Rights Act 1998 and the Data Protection Act 1998.
The first two appellants, CLG and AJD are a couple who live together with their young son, the third appellant, JAD. The events which culminated in these proceedings began in December 2009 when an unidentified gunman fired a shot through the front door of their house. AJD telephoned the police, who attended the house without delay. Both CLG and AJD gave statements the same evening. CLG moved out of the house immediately afterwards together with JAD and went to stay at the home of her mother. On 13 th March 2010 three men were convicted of possessing the gun that had been used in the shooting. Newspaper reports of the conviction mentioned the name of the road in which the appellants lived. The next day an envelope was put through the letterbox of the appellants' home, on the outside of which had been written the words "See you soon, grass". Inside was an imitation bullet. AJD moved out of the house and went to live with a friend. In August 2010 all three appellants moved to a new address which was known only to CLG's immediate family.
In April 2011 CLG and AJD were notified that they were required as prosecution witnesses at the trial of various persons accused of, among other things, firing guns into residential premises, including their former home. The trial began in May 2011 and on 26 th May CLG and AJD were served at their home by a police officer, Detective Constable Gaffney, with witness summonses requiring them to attend court the next day. They failed to do so and as a result D.C. Gaffney made a statement in support of applications for the issue of warrants for their arrest, in which he described the steps he had taken to serve the witness summonses. His account included a reference to the address at which he had attended for that purpose.
D.C. Gaffney's statement should have been passed to the officer acting as Disclosure Officer in connection with the prosecution to enable him to consider its contents before it was passed to the Crown Prosecution Service ("CPS"). That is a routine step, one purpose of which is to enable the Disclosure Officer to consider whether the statement contains any sensitive material which requires protection. In this case, however, there was a breakdown in the system and either the statement was not passed to the Disclosure Officer at all or its contents were not properly reviewed before it was passed to the CPS.
The CPS should itself have considered the contents of the statement to see whether it contained any sensitive material before deciding what use to make of it. Again, it is not entirely clear what, if any, steps were taken in that regard, but it appears that the CPS decided to make use of the statement as part of its case at trial. Accordingly, on 3 rd June 2011 it served the statement, including details of the appellants' current address, on those representing the defendants under a notice of additional evidence. As a result, the appellants' new address was disclosed to the defendants.
On 9 th June 2011 D.C. Gaffney attended court in order to give evidence (in the absence of the defendants) in support of the applications for the issue of a warrant for the arrest of CLG and AJD. He was required to read out his statement, including the reference to the appellants' address where he had served the witness summonses. Warrants for their arrest were issued by the trial judge and executed later that day. On 10 th June 2011 when CLG and AJD were produced at court both they and the police became aware for the first time that their new address had been disclosed to the defendants. As a result, the police arranged for them to stay at various different locations until they were able to move to another new home towards the end of July.
The proceedings below
On 23 rd May 2012 the appellants started proceedings against the police claiming damages for personal injury, distress and financial loss. In summary, their case was that the police owed them a duty of care at common law to avoid exposing them to a risk of physical harm at the hands of known violent criminals and had broken that duty by releasing D.C. Gaffney's statement to the CPS, and through the CPS to the defendants, without having first redacted their address. Alternatively, they contended that by releasing details of their address the police had acted in breach of articles 2 and 8 of the European Convention on Human Rights ("the Convention") and in breach of section 6(1) of the Human Rights Act 1998. They also argued that the disclosure of their address involved a breach by the police of section 4 of the Data Protection Act 1998 and of the second, third and seventh data protection principles.
The Chief Constable denied that any of his officers had been negligent and argued that the CPS alone had been responsible for the disclosure of the appellants' address. He also denied that he or any of his officers had acted in breach of the Convention or of the data protection principles. Apart from that, however, he relied on two important principles of public policy: first, the principle that the police are immune from proceedings based on acts and omissions committed in the course of their core duties of preventing and investigating crime and protecting property; second, the principle that there is no liability for anything said or done in the course of judicial proceedings.
The proceedings culminated in a three-day trial before Judge Wood sitting in the High Court in December 2013. On 31 st January 2014 he delivered a full and carefully reasoned judgment in which he dismissed the appellants' claim. He held that the police and the CPS were both at fault, the police having made what he described as a material contribution to the disclosure, and that they were jointly and severally liable for any breach of duty towards the appellants. However, he rejected the appellants' submission that the police owed a duty of care to them at common law on the grounds that the case fell within the principles to be derived from the line of authority beginning with Hill v West Yorkshire Police [1989] A.C. 53 and culminating (now) in Michael v Chief Constable of South Wales Police [2015] UKSC 2. He dismissed the argument that the police were in breach of article 2 of the Convention on the grounds that the appellants were not at real and immediate risk of death or serious physical harm. He also dismissed the claim under article 8 on the grounds that the police had put in place an effective system for evaluating the existence of sensitive information and that an isolated instance of carelessness was insufficient to constitute a breach of their positive duty under article 8. The claims under the Data Protection Act were dismissed on the grounds that the police had not failed to comply with the relevant data protection principles. He did not think that the principles of witness immunity or immunity for acts done in the course of judicial proceedings, repeatedly considered and affirmed in the line of cases which includes Darker v Chief Constable of the West Midlands [2001] 1 A.C. 435, would have provided a defence to any of the claims.
Negligence
The essence of the appellants' claim in this case is that the police and the CPS together carelessly allowed details of their address to be passed to those who, as they knew or should have known, were liable to take violent reprisals against them. Logically, the first question for consideration is whether the police were as a matter of fact responsible for the disclosure made by the CPS. Mr. Johnson Q.C. sought to argue that they were not, but the judge found as a fact that errors on the part of the police as well as errors on the part of the CPS had been responsible for the disclosure and there is no appeal against that finding. In my view it is not open to Mr. Johnson to seek to go behind it.
It is well to notice at the outset that this is not a case in which the appellants gave the police in confidence information to which they would otherwise not have had access. Following the shooting in December 2009, they had made statements to the police, in the course of which they had told them where they were then living. How the police were informed about their new address is not entirely clear. There is nothing to suggest that it was divulged in confidence, however, and D.C. Gaffney had no difficulty in going to their home in order to serve the witness summonses. Nonetheless, the police were well aware that it would or might be...
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The Queen (on the application of M) v The Chief Constable of Sussex Police
...to all personal data, not just sensitive data, was considered by this Court in CLG and others v Chief Constable of Merseyside Police [2015] EWCA Civ 836, at a time when it was known as the seventh data protection principle (Schedule 2, para 7 of the Data Protection Act 1998). In that case,......
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The Queen (on the application of M by her Litigation Friend the Official Solicitor) v The Chief Constable of Sussex Police
...Data Protection Principle (para 7 of Schedule 2 of the Data Protection Act 1998). In CLG & Ors v Chief Constable of Merseyside Police [2015] EWCA Civ 836, the Court of Appeal ( Moore-Bick LJ, Fulford and Vos LJ concurring) held that the principle: “46 …. relates to the implementation of ap......