Neilson v Laugharne
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE OLIVER,LORD JUSTICE O'CONNOR |
| Judgment Date | 17 December 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J1217-1 |
| Docket Number | Plaint No. 79 00530 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1980 |
[1980] EWCA Civ J1217-1
The Master of The Rolls
(Lord Denning)
Lord Justice Oliver and
Lord Justice O'connor
In The Supreme Court of Judicature
Court of Appeal
(His Honour Jude Sellers)
MR. E. SOMERSET JONES, Q. C. and MR. H. EDWARDS (instructed by Messrs. Reynolds Porter Chamberlain, London agents for Messrs. Williams Elsby & Co. of Bootle) appeared on behalf of the Plaintiff (Appellant).
MR. RICHARD CLEGG. Q. C., MR. JOHN ROWE and MR. PETER SUSMAN (instructed by Brian Hill, Esq.) appeared on behalf of the Defendant (Respondent).
George Neilson has brought an action against the police. He wants to see some of their papers. Can he do so? In July 1978 George Neilson was living at No. 131 Burleywood, Skelmersdale, Lancashire. He went away for a few days. While he was gone, the police on the 5th July, 1978 went to magistrates and got a search warrant under section 23 of the Misuse of Drugs Act 1971. No doubt the police had reasonable ground for suspecting that controlled drugs were on the premises. In pursuance of the warrant, two detectives - one a man, the other a woman - got into the house. They opened a sliding window panel and climbed in. They searched for drugs, but found none. They did notice, however, that the electric meter had been tampered with. The lead seals were missing. They thought that someone might have been dishonestly abstracting electricity without paying for it, contrary to section 13 of the Theft Act 1968.
On the 9th July, 1978 George Neilson returned home. He saw that someone had been in. Soon afterwards two detectives called to see him. He was ready with a complaint. He told them that, whilst he had been away, his house had been burgled and that several articles had been stolen, including one valued at £150. The detectives asked him to come to the police station. He went with them. There he was asked questions about the missing articles; also about drugs and electricity. He was there for five or six hours. During the interview he said he had to take tablets for his heart and wanted them. Someone went and got them for him. He complained that they were too slow about it. Eventually he made a written statement. He withdrew the allegation that his house had been burgledor anything stolen. He went home. No charge was brought against him. Presumably the police had not enough evidence to warrant it.
Most men in George Neilson's position would have considered themselves lucky to have got away with it so easily. But not so George Neilson. He turned round on the police and made all sorts of allegations against them. He went to solicitors and got legal aid. His solicitors wrote to the Chief Constable a letter dated -the 7th August, 1978 - a letter before action:
"We are instructed to bring proceedings against you for damages for trespass, damage to our Client's property and belongings, false arrest, wrongful imprisonment and assault. Unless we have heard from you within the course of the next 7 days that you are prepared to compensate our Client adequately, we are instructed to bring proceedings against you without further warning".
Stopping there for a moment, if the Chief Constable had taken the ordinary course in litigation - if he had interviewed the witnesses and taken statements from them - all the statements would have been covered by legal professional privilege. They would be prepared for the dominant purpose of litigation, Waugh v. British Railways Board (1980) Appeal Cases 521.
1. THE POLICE INVESTIGATION
But the Chief Constable did not take that course. Instead he regarded himself as bound to cause an investigation to be held within the police force. This was done by reason of section 49 of the Police Act 1964 which says:
(1) When the chief officer of police for any police area receives a complaint from a member of the public against a member of the police force for that area he shall… furtherrecord the complaint and cause the complaint to be investigated.
"(3) On receiving the report of an investigation under this section, the chief officer of police, unless satisfied from the report that no criminal offence has been committed, shall send the report to the Director of Public Prosecutions".
The object of that statute was to ensure that if a policeman had done anything wrong, the appropriate proceedings should be taken against him. Either criminal proceedings, if it were a criminal offence by the policeman, or disciplinary proceedings, if it were a disciplinary offence. Or no proceedings if there was no offence.
In pursuance of his duty under section 49, the Chief Constable wrote on the 5th September, 1978 to George Neilson's solicitors:
"I have decided to call for an investigation under the provisions of Section 49 of the Police Act 1964, and to this end have appointed Detective Superintendent Rimmer to act as Investigating Officer in this matter, Mr. Rimmer will be contacting you and your Client in due course. The question of compensation will be considered at the conclusion of the investigation".
The investigation was held. The police took statements from several persons. We are not told who they were, but it is easy to surmise. I expect they took a statement from the informer who suggested that there were dangerous drugs to be found in the house; from the two detectives who executed the search warrant; from the electricity people; and from George Neilson himself. These statements were taken between the 13th December, 1978 and the 7th March, 1979. Then on the 12th March, 1979 Detective Superintendent Rimmer made his report. Thiswas sent to the Director of Public Prosecutions. He decided that the evidence did not justify the institution of criminal proceedings against any police officer. The report was then sent to the Police Complaints Board. This was in accordance with section 2 of the Police Act 1976. The Complaints Board decided that there was no reason why disciplinary charges should be brought against any police officer. These decisions were communicated to George Neilson and his solicitors. Put into plain language, there was no ground for either criminal or disciplinary proceedings against the police.
2. THE CIVIL ACTION
Nevertheless, George Neil son's solicitors decided to bring a civil action for damages against the police. They got a civil aid certificate and issued a plaint in the county court against the Chief Constable. They delivered particulars of claim for damages not exceeding £2,000. Lists of documents were ordered. The Chief Constable inserted this item:
"Statements (excepting that of Plaintiff) made for purpose of enquiry pursuant to Section 49 of the Police Act 1964 from 13th December, 1978 to 7th March, 1979".
The Chief Constable objected to produce these statements on the grounds:
(i) that to do so would be injurious to the public interest; and
(ii) that they are subject to legal professional privilege.
These objections were supported by two affidavits. One by a common law clerk who asserted that the dominant purpose of the inquiry by Detective Superintendent Rimmer was to obtain evidence for the defence of the action. The other was by the Deputy Chief Constable that the statements were confidential,and that their confidentiality should be maintained so as to ensure the co-operation of those concerned.
The registrar of the county court ordered production of the statements. He held there was no legal professional privilege. The claim for public interest privilege was not pressed before him. The judge upheld the claim for legal professional privilege: but was very doubtful whether there was any public interest privilege.
3. LEGAL PROFESSIONAL PRIVILEGE
Since the decision in Waugh v. British Railways Board (1980) Appeal Cases 521, we have to look for the dominant purpose of the police in taking the statements. On this point I am not prepared to accept the affidavit of the common law clerk. To my mind it is clear that there were two purposes. One was to carry out the statutory duty to investigate required by section 49 of the Police Act 1964. The other was to be able, in due course, to deal with the letter before action. Of these two, the dominant purpose was to carry out the duty under section 49. After that was done, then, and then only, was the question of compensation to be considered. Seeing that litigation was not the dominant purpose, there is no legal professional privilege available here.
4. THE INTENDED USE OF THE STATEMENTS
No one could suggest that these statements were so confidential that they could never be used in any legal proceedings. It was clearly contemplated that they might be used by the police in these ways:
If one or both of the detectives was charged with a criminal offence, the statements could be used just as any other statements taken by the police are used in a prosecution.There would be no "class" privilege in respect of them: though there might be a "contents" privilege, as, for instance, to keep secret the name of an informer.
Likewise, if one or both of the detectives was charged with a disciplinary offence, the statements could be used. The complainant would be present and would hear all that was said by the witnesses. There would be no "class" privilege, but there would be a "contents" privilege in respect of any information "which, in the public interest, ought not to be disclosed to a member of the public", see regulation 20(2)(b) of the Police (Discipline) Regulations 1977.
Some reference was made to section 9 of the Police Act 1976, but that is of no relevance. It is only concerned with the staff of the Complaints Board. At any rate, seeing that confidentiality was not absolute, the question is whether it was...
To continue reading
Request your trial
- Commissioner of Police of the Metropolis v Locker
-
Peach v Commissioner of Police of the Metropolis
...11The Commissioner's claim for immunity, which was rejected by the Judge, is based upon the decision of the Court of Appeal in Neilson v. Laugharne (1981) Q.B. 736 , where the Court of Appeal held that statements taken in the course of an inquiry pursuant to Section 49 were immune from ......
- Ganesan a/l Singaram v Setiausaha Suruhanjaya Pasukan Polis and Others
-
Sharples v Halford and Others
...that 'class' privilege applies. Without examining each case in detail we derive our guidance from the following line of cases— Neilson v. Laugharne [1981] 1 Q.B. 736—CA Hehir v. Commissioner of Police [1982] 1 WLR 715—CA Peach v. Commissioner of Police [1986] 1 Q.B. 1064—CA Makanjuol......
-
NEW TWISTS IN LEGAL PROFESSIONAL PRIVILEGE: COMMUNICATIONS FOR THE PURPOSE OF LITIGATION AND BETWEEN THE LAWYER AND CLIENT
...Mal LR 24. Also see note 117. 112 [1978J AC 171, at 232. 113 See Marks v Beyfus(1890) 25 QBD 494, at 498. 114 Also see Neilson v Laugherne[1981] QB 736, at 753, where Oliver LJ said: “If public policy prevents disclosure, it prevents it, in my judgment, in all circumstances except to establ......
-
Court of Appeal
...chief constable in each caserefused to give such an undertaking and judicial review of those decisionswas sought. In Neilson v Laugherne[1981]1 QB 736, it was held thatpublic interest immunity applies to documents in the file relating to suchan inquiry; but, as Staughton LJ pointed out in t......
-
Recent Judicial Decisions
...see R. v, Chief ConstableofWestMidlands Police ex parte Wiley and Others (1995) 159 LG Rev. 181 which overruledNeilson v, Laugharne [1981] QB 736 and Halford v, Sharples [1992]1 WLR 736.In O'Sullivan v. CommissionerofPoliceofthe Metropolis (1995) The Times, July 3,it was held that the initi......