Savage v Chief Constable of Hampshire
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEGGATT,LORD JUSTICE JUDGE,LORD JUSTICE POTTER |
| Judgment Date | 06 February 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0206-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENI 96/0108/E |
| Date | 06 February 1997 |
[1997] EWCA Civ J0206-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE TUCKER QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Leggatt
Lord Justice Potter
Lord Justice Judge
QBENI 96/0108/E
MR D BARNARD (Instructed by Messrs Reynolds & Hetherington, Hampshire PO12 1PF) appeared on behalf of the Appellant
MR S RUSSEN (Instructed by Hampshire County Solicitors, Hampshire) appeared on behalf of the Respondent
Thursday, 6 February 1997
My brother Judge will give the first judgment.
On 17 August 1994 the plaintiff began the present proceedings in Portsmouth County Court. He was acting in person. His pleading was inadequate and defective. A draft amended particulars of claim was prepared by counsel. Leave to amend was sought. The defendant opposed the application on the ground that, even in its proposed amended form, the action was frivolous, vexatious and an abuse of the process of the Court.
On 25 April 1996 His Honour Judge Martin Tucker QC sitting as a Deputy Judge of the High Court, concluded that the amended claim was properly stigmatised as frivolous and vexatious. He therefore refused the application for leave to amend and struck out the claim. Leave to appeal against his decision has been granted by this Court.
The plaintiff's claim in its amended form asserted that the defendant, as Chief Constable of Hampshire, was liable to pay him on a contractually agreed basis for his work as a police informer. For the purposes of this appeal it must be assumed that the plaintiff did indeed work as a police informer who, following his arrest in 1990 for unlawful possession of drugs, was invited to assist the police and agreed to do so after discussions which culminated in an oral agreement with a Chief Inspector of the Hampshire Constabulary that he would be paid for information leading to the arrest and conviction of persons involved in serious crime, or the prevention of serious crime, or the recovery of property. Payment would be calculated on the basis of 10 per cent of the value of any property concerned, less any insurance reward. Alternatively, if payment could not be calculated in this way, then a reasonable sum would be payable. The plaintiff claims that the Chief Inspector was acting within the scope of his actual or apparent authority as agent for the Chief Constable.
Subsequently, in performance of this agreement, the plaintiff provided appropriate assistance and information, and has not received the agreed or any reasonable payment. If the case proceeds to a hearing, an alternative view of these crucial facts is likely to be pursued, but as the appeal is not concerned with the factual merits or otherwise of the plaintiff's claim but with the single question whether or not it is legally tenable, nothing more need be said about the facts.
In essence the question for decision is whether a police informer is precluded from taking proceedings to recover monies promised to him by a police officer in exchange for information. The claim is not concerned with rewards offered or paid by, for example, insurance companies to those who assist police to solve a crime, nor with witnesses who come forward to offer information and eventually give evidence at any subsequent trial.
Ignoring for the moment the unsuccessful arguments deployed on behalf of the defendant, the successful submission was concisely summarised by the judge. The claim was not admissible as it involved an assertion by the plaintiff in open Court that he was a police informer. He was not permitted to allege or give evidence to establish any such case. The plaintiff argues that this conclusion was wrong in law.
It is well understood that on occasion the public interest requires that evidence which would otherwise be relevant and admissible in litigation should nevertheless not be disclosed or adduced in Court. The need to conceal the identity of informers is justified, "not only for their own safety but to ensure that the supply of informers about criminal activities does not dry up" (per Lawton LJ in R v. Hennessy (1978) 68 Crim App R 49; see also D v. NSPCC [1978] AC 171).
These are not the only considerations. In a limited number of cases, the claim for concealment is justified on the basis that the police service could not otherwise function properly and perform their public duty. In Conway v. Rimmer [1968] AC 910 Lord Reid explained:
"The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities."
The principle is of long-standing:
"The rule clearly established and acted on is this, that, in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for 50 years … We think the principle of the rule applies to the case where the witness is asked if he himself is the informer." ( Attorney General v. Briant (1846) 15 M&W 169).
As the language demonstrates, this case was not concerned with civil proceedings but with a criminal prosecution. In Marks v. Beyfus (1890) 25 QB D 494, the plaintiff issued civil proceedings for damages for malicious prosecution. He called the Director of Public Prosecutions as a witness. He refused to identify the name of the person who had given him the information on which he had acted against the plaintiff. The Court of Appeal upheld the judge's decision that he should not do so. Lord Esher explained that:
"… this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches … I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion…"
At the end of his judgment he added that the rule applied:
"… not only to the trial of the prisoner, but also to a subsequent civil action between the parties on the ground that the criminal prosecution was maliciously instituted or brought about."
The principle firmly established and constantly repeated thereafter was that immunity from disclosure was not a privilege to be waived by one or other party to the proceedings. (See also R v. Lewes Justices Ex parte Secretary of State for the Home Department [1973] AC 388; and D v. NSPCC). Secondly, non-disclosure was not limited to criminal prosecutions but extended in some circumstances to civil proceedings as well. However, Lord Esher did not use language to suggest that the principle applied to every civil action in whatever form the proceedings might take. In Conway v. Rimmer Lord Reid explained:
"….. it would...
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