Court of Appeal
| Published date | 01 February 2002 |
| Date | 01 February 2002 |
| DOI | http://doi.org/10.1177/002201830206600103 |
| Subject Matter | Court of Appeal |
Court
of
Appeal
Right
of
Informer
to
Sue
Police for
Payment
for
Information
Carnduffv Rockand another [2001] 1 WLR 1786
Aregistered police
informer
brought
an
action against apolice inspector
and
the
chief constable, claiming £1
00,000
or a reasonable
sum
on
quantum meruit
under
an
agreement
which
he alleged
had
been
made
to
the
effect
that
he gave
the
police
information
and
assistance in
support
of
their
investigation
into
an
organisation
of persons engaged in break-
ing
the
law
relating to
the
misuse of controlled drugs. He alleged
an
agreement
with
the
inspector
that
he
would
give
the
police atip-off
and
would
arrange
for
an
undercover
police officer to infiltrate
the
criminal
organisation. He claimed
that
he
had
carried
out
his side of
the
bargain
and
that, as a result,
the
ringleader
had
been
arrested
and
successfully
prosecuted to conviction,
and
the
police
had
been
enabled
to seize a
large
quantity
of drugs. In general
support
of his claim, he
added
that
he
had
on
many
occasions
thus
contracted
with
the
police
and
had
in fact
been
paid by
them
for
the
information
and
assistance he
had
given
them.
The police
admitted
that
they
had
paid
him
on
earlier occasions,
but
asserted
that
these
had
been
gratuitous
payments,
because no
contract
had
ever
been
entered
into. In dealing
with
the
substance of
the
matter,
the
police reply
on
this occasion was (1)
that
no
contract had
been
entered
into
as a result of
the
conversations
between
the
informer
and
the
inspector,
and
(2)
there
was
no
substance
in
the
claim
that
any
success
which
the
police
had
in
the
named
investigation was attributable
to
any
of
the
informer's activities, as claimed.
The proceedings
are
noted
here, however, because of
the
issues
which
arose
out
of
the
police application to
the
judge
to stay
the
proceedings,
principally on
the
ground
of public policy.
It
was suggested by
the
police
that
agreat deal of sensitive
information
would
have
to be revealed,
if
there
were
to be a fair trial. In most cases
concerning
informers,
they
are
anxious
to
remain
anonymous,
but
here,
the
police denial
that
their
action
had
in fact
stemmed
from
what
he
had
said or
done
would
mean
that
they
would, in
order
to establish
that
fact, probably
have
to reveal
the
identity of
the
informers on
whose
information
they
said
they
had
acted. The judge, however, refused
the
police application. The police
appealed against his ruling.
The police
advanced
two
sets of
arguments
in
support
of
their
submis-
sion
that
the
action be
stayed-first
that
there
was no contract, because
the
agreement
was
uncertain
and
no
sum
in
payment
had
been
fixed,
and
the
court
had no
means
of
remedying
those defects. Moreover,
there
was no
intention
to create legal relations. Secondly, if
the
claim
were
to be
further
pursued, it
would
be inevitable
that
the
claimant
would seek to rely on sensitive
information
and
would
have
to try to
produce evidence of matters which
would
have
to be excluded as being
31
The Journal
of
Criminal Law
the
subject of public interest immunity. The
claimant
argued
that
all
those
matters
should
await
determination
at
the
trial.
HELD,
ALLOWING
THE
APPEAL,
Laws Uwas of
opinion
that,
even
if
a
contract
were
established, proof
that
the
informer's actions
were
the
reason for
any
police success could
not
be established
without
the
production
of sensitive
information
and
the
attempted
adduction
of
evidence
which
would
have
to be excluded. No
meaningful
amendment
of
the
statement
of claim could result in this
consequence
being avoided.
As
there
could be
no
fair trial in
the
absence of
that
evidence,
there
was
no
point
in allowing
the
claim to be
pursued
merely
to reach
that
result
in
the
end.
Jonathan
Parker
Uagreed
that
'the
overriding public interest
in
not
requiring
the
police
to
disclose information or material for
the
purpose
of a civil trial
where
such
disclosure
would
not
be to
the
public
interest'
demonstrated
the
need
to stay
the
action. The dissenting judg-
ment
of Waller Uappears to be
on
the
narrow
ground
that
it was
premature
to
come
to
that
conclusion at
that
stage of
the
proceedings. In
his opinion,
the
preliminary
question
of
whether
there
was a contract
ought
to be allowed to go to trial.
If
there
were
acontract,
the
police
should
not
be allowed to avoid
their
contractual obligations. The ques-
tion
whether
the
claimant
could
make
out
his
statement
of claim
should
be
determined
by a trial
and
not
assumed
to be impossible, before
the
case
came
to trial.
COMMENTARY
It
would
seem
that
apolice
informer
who
wishes to proceed
on
a
contractual basis in his relation
with
the
police will
sooner
or
later
come
up against
the
barrier
of public policy. The effect of
the
decision of
the
majority of
the
court
on
this occasion
means
that
it will be
sooner
rather
than
later. The
judgment
of Waller LJ
would
merely
postpone
the
inevitable.
It
may
be
doubted
whether
the
doctrine of public interest
immunity
would
be modified to
accommodate
even
the
contractual
claims of police registered informers.
Mandatory
Lifer
Claims
'Human
Right'
of
Access to
Facilities
for Artificial
Insemination
R (on the application
of
Mellor)
vHome
Secretary
[2001]
3WLR
533
While serving a life
sentence
on
conviction of murder,
the
appellant
met
afemale
member
of
the
staff of
one
of
the
prisons in
which
he was
serving his
sentence
and
they
were
married in prison. Unlike
the
police
in
one
or
two
European
countries,
the
policy
adopted
in
the
English
Prison Service is
not
to
permit
conjugal visits to prisoners serving a
sentence
after
conviction. For
that
reason,
the
prisoner, at a time at
which
he
had
at least
another
seven years to serve
under
his tariff before
he could be considered by
the
Parole Board for
even
temporary
release,
applied for permission to
have
access to facilities to provide
semen
for
32
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