Michael Cooper v National Crime Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Baker,Sir Geoffrey Vos |
| Judgment Date | 22 January 2019 |
| Neutral Citation | [2019] EWCA Civ 16 |
| Docket Number | Case Nos: A2/2017/1901 & A2/2018/1717(B), A2/2017/1901(E), A2/2017/1901(C) & A2/2018/1717 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2019 |
[2019] EWCA Civ 16
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
2200215/2013
AND ON APPEAL FROM THE COUNTY COURT
AT CENTRAL LONDON CHANCERY LIST
B03CL155/ /D10CL332
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Geoffrey Vos, CHANCELLOR OF THE HIGH COURT
Lord Justice Sales
and
Lord Justice Baker
Case Nos: A2/2017/1901 & A2/2018/1717(B), A2/2017/1901(E), A2/2017/1901(C) & A2/2018/1717
Philip Coppel QC and Estelle Dehon (instructed by Bindmans LLP) for the Appellant
Catrin Evans QC, Simon Murray and Jonathan Scherbel-Ball (instructed by the Government Legal Department) for the Respondent
Hearing dates: 30, 31 October, 1 and 13 November 2018
Approved Judgment
Before the court are two appeals which arise out of the same subject matter. In each case the appellant is Mr Cooper and the respondent is the National Crime Agency, which stands in the shoes of his former employer, the Serious Organised Crime Agency. The Serious Organised Crime Agency existed until 7 October 2013, when it was replaced by the National Crime Agency. For convenience I will refer to the respondent as “SOCA”. Mr Cooper was employed by SOCA, initially as an intelligence officer and latterly as a continuous improvement officer. The appeals arise out of the circumstances in which Mr Cooper came to be dismissed by SOCA in 2012.
The first appeal is from a decision of the Employment Appeal Tribunal (HHJ Eady QC) (“the EAT”). The EAT partly dismissed and partly allowed an appeal by Mr Cooper against a decision of the Employment Tribunal (“the ET”) by which Mr Cooper's claim of unfair dismissal against SOCA was dismissed. SOCA dismissed Mr Cooper on grounds that his behaviour during an incident outside a public house in Hove on the night of 7 April 2012, in consequence of which Mr Cooper was arrested and charged with being drunk and disorderly in a public place and with assault on a police officer, had been a serious breach of the SOCA Code. The ET and the EAT held that SOCA was entitled to expect high standards of conduct from its officers, including when they were off-duty; that it had carried out a reasonable investigation into the incident; and that in the circumstances dismissal was within the range of reasonable responses available to SOCA as employer of Mr Cooper.
However, on reading the ET's decision, the EAT was not confident that the ET had given proper consideration to a significant aspect of Mr Cooper's case before reaching the overall conclusion that he had been fairly dismissed. The EAT therefore decided to remit the case to the same ET judge to ensure that this was done. SOCA cross-appeals against the order remitting the case to the ET: it contends that in fact it does sufficiently appear from the ET's reasoning that this aspect of the case had been properly considered by it.
The second appeal is from a judgment of HHJ Dight CBE sitting in the Central London County Court. The judge dismissed a claim by Mr Cooper against SOCA for damages for unlawful processing of sensitive personal data in relation to him, contrary to his rights under the Data Protection Act 1998 (“the DPA”), in the context of its decision to dismiss him. The sensitive personal data in question comprised materials received by SOCA from Sussex police in relation to the incident in Hove on 7 April 2012. Judge Dight held that there were a number of justifications for the processing of the data by SOCA which were available to SOCA under the DPA relating to its contractual rights as employer and its public functions as a law enforcement agency.
Factual background
Mr Cooper, who was born in 1960, is a former warrant officer, cryptologist and intelligence specialist, who served in the Royal Navy between 1977 and 2004. In January 2004 he was appointed as an intelligence officer with what was then known as the National Crime Squad. On 1 April 2006 SOCA came into existence pursuant to the Serious Organised Crime and Police Act 2005 (“SOCPA 2005”) and took over the functions and staff of the National Crime Squad. On about 1 April 2006 SOCA issued Mr Cooper with a written contract of employment which Mr Cooper signed to indicate his acceptance of its terms (“the employment contract”).
The employment contract included the following terms:
Clause 3.2:
“As a SOCA officer you are expected to maintain the highest professional standards. You are required to comply with all such subsisting policies, procedures and the Staff Charter for SOCA officers, as may from time to time be notified and made available to you.”
Clause 16:
“ 16 Disciplinary procedure
16.1 SOCA expects the highest professional standards from its officers. You will be expected to comply with the Statement of Values and Staff Charter for SOCA officers, which will be made available to you.
16.2 SOCA has a disciplinary procedure, which is set out in the SOCA Misconduct and Discipline Policy, a copy of which is available for your reference in the Human Resources Department.
Clause 22.2:
“SOCA will not terminate your employment unless it has followed its own internal policies and procedures. … SOCA may only terminate your employment without notice in circumstances where you have been found to have committed an act or omission of gross misconduct.”
Clause 24:
“ 24 Data Protection
24.1 In relation to Personal Data and Sensitive Personal Data (as defined by the Data Protection Act 1998) provided by you to SOCA, you give your consent to the holding and processing of that data for all purposes relating to your employment by SOCA.
24.2 In particular, you agree that SOCA can hold and process Personal Data and Sensitive Personal Data so that it can pay and review your remuneration and other benefits and provide and administer any such benefits, provide information to the HM Revenue and Customs and the Contributions Agency, administer and maintain personnel records (including sickness and other absence records), monitor and review data for the purpose of planning, policy development and to ensure SOCA's compliance with existing policies and legislation, carry out reviews of your performance, give references to future employers, and transfer your Personal Data and Sensitive Personal Data to countries outside the United Kingdom for the purpose of your duty, if you are either posted or travel abroad on SOCA business.”
In order to work for SOCA, Mr Cooper had to have security clearance which was kept up to date. This was for obvious reasons relating to the access which he might have to highly confidential information about investigations in respect of serious organised crime.
Part 2 of the Police Reform Act 2002 (“the PRA 2002”) sets out procedures for dealing with complaints about and misconduct by police officers and established the Independent Police Complaints Commission (“the IPCC”). SOCA was not a police force subject to Part 2 of the PRA 2002. However, SOCPA 2005 amended the PRA 2002 to insert a new section 26A which imposed a duty on SOCA to enter into an agreement with the IPCC to establish and maintain procedures corresponding or similar to those provided for by Part 2 of the PRA 2002 in relation to SOCA's staff. The IPCC and SOCA duly made a written agreement dated 31 March 2006 as required by section 26A (“the IPCC Agreement”). SOCA's Misconduct and Discipline Policy was adopted pursuant to this agreement.
In a section of this judgment below I set out the relevant statutory provisions and policies which established the legislative and policy environment in which SOCA conducted its affairs. The relevant policies are the Misconduct and Discipline Policy, a Security Clearance Policy and a so-called Revelation Policy governing the sharing of information about misconduct by SOCA employees with other police forces and prosecuting authorities.
Pursuant to the employment contract and, in particular, the Security Clearance Policy, Mr Cooper had an obligation to report to SOCA, as his employer, if he was arrested or became subject to any criminal proceedings.
On the evening of Saturday, 7 April 2012, Mr Cooper was drinking with a friend in the Slug and Lettuce public house in Hove. According to Mr Cooper, as explained in his defence to criminal charges eventually brought against him, he had drunk a lot and had approached women in a manner which led to him causing offence, with the result that he was punched by a man who was accompanying them.
Police officers of Sussex Police attended an incident outside the public house, involving Mr Cooper. Mr Cooper was abusive to the police and was arrested for being drunk and disorderly. He was handcuffed and placed in a police van. While being transported to Brighton police station he fell into the well of the compartment at the back of the van and while sprawled on the floor he kicked a female police officer in the leg. I should mention here that Mr Cooper's case was that his behaviour outside the public house was the consequence of being punched, which had such an effect that his behaviour was outside his control, and that the kick had been accidental, due to him trying to get back on his seat while he was handcuffed and the van was in motion.
A contemporaneous custody record was drawn up at the police station, which recorded “poor behaviour” on the part of Mr Cooper in the custody suite before being taken to the cells for the night. There was also CCTV footage of Mr Cooper in the custody suite. A transcript was made of an interview with Mr Cooper on the following day, 8 April 2012. Shortly afterwards, statements were taken from three police officers who had been involved. An incident report was also completed by the police. Like HHJ Dight, I refer to these materials together as the Brighton custody material.
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