Desmond v The Chief Constable of Nottinghamshire Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 01 October 2009 |
| Neutral Citation | [2009] EWHC 2362 (QB) |
| Docket Number | Case No: 7NG11186 |
| Court | Queen's Bench Division |
| Date | 01 October 2009 |
[2009] EWHC 2362 (QB)
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
ON APPEAL FROM HIS HONOUR JUDGE INGLIS
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Wyn Williams
Case No: 7NG11186
The Claimant appeared in Person
Ms Samantha Leek (instructed by The Force Solicitor) for the Defendant
Hearing date: 21 July 2009
Mr Justice Wyn Williams:
On 22 November 2007 the Appellant, Mr Desmond, commenced these proceedings against the Respondent in the Nottingham County Court. He claims damages for personal injury and loss of wages allegedly arising out of tortious acts which he maintains were committed by police officers and/or civilian employees for whom the Respondent is responsible. The various acts and omissions about which the Claimant complains took place during the period May 2001 to February 2007. By his Amended Particulars of Claim, the Claimant alleges that the Defendant is responsible for acts or omissions amounting to negligence, acts amounting to misfeasance in public office and the tort of conspiracy to cause him injury.
On 14 November 2008, at the Nottingham County Court, His Honour Judge Inglis struck out that part of the Appellant's claim which alleges negligence; further, the Learned Judge gave summary judgment for the Respondent in respect of the allegations of misfeasance in public office and conspiracy to injure.
The Appellant appeals against the decision to strike out his negligence claim with the permission of the Judge. He seeks permission from this Court to appeal against the Judge's conclusion that he should give summary judgment for the Respondent in respect of the allegations of misfeasance in public office and conspiracy to injure.
I should stress at the outset that the claim based in negligence must be considered on the basis of the facts as alleged by the Appellant. In relation to the allegations of misfeasance in public office and conspiracy to injure it is permissible to consider the facts critically. However, I stress and accept that it is not permissible to embark upon a mini trial. A court should give summary judgment only if there is no reasonable prospect that a claim can succeed and there is no other compelling reason why a trial should take place.
The Relevant Facts
The relevant facts can be taken, largely, from the judgment of HH Judge Inglis.
In the late evening of 25 May 2001 a young woman, SB complained that she had been attacked on Parliament Street in Nottingham. The initial call to the police was by her father. Two police officers, Police Constable Ollerenshaw and Police Constable Leeson attended her house and received her initial complaint. This took place at about 11.54 pm. SB said that she had been dragged by a male person into Newcastle Street off Lower Parliament Street. The male then pushed her head towards her stomach and attempted to pull her trousers down. SB also referred to a conversation which had taken place between her and a man very shortly before this incident. The man had asked directions to his hotel and shown her a card with a picture of the hotel on it. The hotel was in Mansfield Road, Nottingham and its name began with the letter W. SB described the man as being white, 5 foot 10 inches tall, average build, clean shaven, white wavy hair and aged about 50. He was also described as smartly dressed.
Following the obtaining of this information from SB, PC Ollerenshaw recorded it in her notebook. She then left PC Leeson to take a witness statement while she made her way to Mansfield Road to look for the hotel. She went with PC Routeley. They soon discovered that a hotel, called the Woodville Hotel, existed in Mansfield Road and they were actually at that hotel when the Appellant arrived in a taxi. At that time (as now) the Appellant had white hair and in the view of PC Ollerenshaw he answered the general description of the alleged attacker. The officer approached the Appellant, asked him to go into a private room in the hotel and she then enquired where he had been that night. He replied that he had been in Nottingham town centre for drinks and a curry. The police officer decided to arrest the Appellant. She informed him of the reasons for his arrest, cautioned him and he replied “I asked a blonde female for directions and that's all”.
Whilst these events were unfolding PC Leeson was taking a witness statement from SB. The material parts of that witness statement are set out in paragraphs 5 and 6 of the judgment of HH Judge Inglis and I need not repeat them. It suffices that I note that SB described some aspects of the attack upon her somewhat differently the account which she had given to PC Ollerenshaw when she was first seen.
During the course of the evening a handover file was prepared. In my judgment it matters not whether it was prepared by PC Leeson or PC Ollerenshaw since it seems to me that the Appellant may establish that the two officers shared information and, in particular, that PC Ollerenshaw knew that SB had made a full witness statement.
In a document entitled “Appellant's factual submissions for the Appeal” the Appellant sets out his belief that PC Ollerenshaw entered details about his arrest onto the Police National Computer in the early hours of the morning of 26 May 2001. He sets out that allegation at paragraph 21 of his Document and he asserts that the information entered upon the computer was consistent with the initial complaint taken by PC Ollerenshaw but inconsistent with some aspects of SB's witness statement. The Appellant further alleges that PC Ollerenshaw entered the same details onto the Respondent's local intelligence system and that such information as was placed upon the computer systems in use in 2001 by the Nottingham Police Force either by PC Ollerenshaw or any other officer remained stored in the systems.
It is common ground that PC Ollerenshaw and PC Leeson played no role in the investigation of this alleged crime after 7.00 am of 26 May 2001. The handover file which had been prepared was given to Detective Constable Stanley Kingsbury who assumed responsibility for the inquiry.
Some of the steps taken by DC Kingsbury in furtherance of his investigation are recorded in paragraph 9 the judgment of HH Judge Inglis. It is also to be observed that one of the investigative steps taken by the officer was that he collected and viewed CCTV film from a bar which the Appellant claimed he was visiting at the time of the alleged attack upon SB. The CCTV film apparently showed the Appellant within the bar. DC Kingsbury made a note to that effect in his pocket book. There came a point in time when the officer decided to close the file against the Appellant. He wrote:
“It is apparent Desmond is not responsible for the crime. The complainant has been visited and cannot state for certain if Desmond is responsible. Desmond refused charge and inquiries are continuing. All relevant paper work attached.”
The decision to close the file as against the Appellant was probably made on or about 31 May 2001. The file was stored. It did not emerge again until after these proceedings had been commenced. At some point in time before the autumn of 2005 DC Kingsbury retired. His pocket books were kept despite his retirement in accordance with normal procedure. The pocket book in which the officer made his entry about viewing the CCTV film was stored. Just like the criminal investigation file, the pocket book came to light only after these proceedings had been commenced.
In December 2004 the Appellant obtained an enhanced criminal record certificate under the provisions of the Police Act 1997. The certificate showed that the Appellant had no convictions and no other adverse information was contained within the certificate. The certificate was provided to the Appellant by the Criminal Records Bureau which is the agency delegated by the Secretary of State to discharge his function under the 1997 Act to issue enhanced certificates. On 4 July 2005 the Appellant applied for another certificate. On this occasion Nottinghamshire Police indicated to the Criminal Records Bureau that it had information about the Appellant.
The decision about whether disclosure of that information was to be given to the Criminal Records Bureau for inclusion on the certificate was taken by Assistant Chief Constable Ditchett on 21 December 2005. He was asked to authorise the following disclosure:
“I seek your authority to disclose that the applicant was arrested on 26/5/01 on Suspicion of Indecent Assault on a Female and Attempted Rape on a Female together with the circumstances, that whilst walking down a street in Nottingham City Centre a female was approached by a man who engaged her in conversation, during the conversation he showed her a matchbox which had a picture of a hotel on it and he stated that he was staying at that hotel. Then he suddenly dragged her into an alleyway and attempted to forcibly remove her trousers. She resisted and during the struggle he let her go and he ran from the scene. Police attended the hotel which was depicted on the matchbox and a person fitting the description of the attacker was just getting out of a taxi. When questioned about the incident he made significant comments and was arrested. On 05/6/2001 Mr Desmond was refused charge due to insufficient evidence to proceed.
The OIC has since retired and we have been unable to establish why there was insufficient to charge.”
Assistant Chief Constable Ditchett's response was as follows:-
“Relevant to disclose. A prospective employer should have an opportunity to question the applicant and satisfy themselves that he poses no threat given the key position of trust he is...
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