Woolgar v Chief Constable of Sussex Police and Another

JurisdictionEngland & Wales
JudgeLord Justice Kennedy,Lord Justice Otton,Lord Justice Waller
Judgment Date26 May 1999
Judgment citation (vLex)[1999] EWCA Civ J0526-12
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: QBENI 98/1297/1
Date26 May 1999
Woolgar
Appellant
and
Chief Constable of Sussex Police
1st Respondent

and

U.K.C.C.
2nd Respondent

[1999] EWCA Civ J0526-12

Before:

Lord Justice Kennedy

Lord Justice Otton

and

Lord Justice Waller

Case No: QBENI 98/1297/1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE ASTILL

Royal Courts of Justice

Strand, London, WC2A 2LL

MR JAMES WADWORTH QC & MISS CATHERINE EWINS (instructed by Royal College of Nursing Legal Services for the appellant)

MR JOHN HORAN (instructed by Sussex Police Legal Services for the First Respondent)

LORD LESTER QC & MS GEMMA WHITE (instructed by Walker Martineau for the Second Respondent)

Lord Justice Kennedy
1

1. This is an appeal from a decision of Astill J who on 3rd September 1998 dismissed the appellant's application for an order that the Chief Constable be restrained from disclosing to UKCC the contents of an interview between the appellant and the police which took place at Worthing Police Station on 6th December 1997.

2

2. Background Facts.

3

The background facts are simple and not contentious. The appellant is a registered nurse, and in 1997 she was matron of a nursing home at Worthing. After the death on 23rd November 1997 of a patient in her care allegations were made which led to her being arrested and interviewed by the police on 6th December 1997. The officer concerned was Detective Sergeant Julie Buchan, and it is clear from her affidavit that the allegation with which she was particularly concerned was one of over-administration of diamorphine, but she was also aware of other allegations which were matters of concern to the Registration and Inspection Unit of the West Sussex Health Authority.

4

At the conclusion of her investigation Detective Sergeant Buchan notified the appellant and also the owner of the nursing home and the RIU that the evidence did not meet the evidential test required for criminal charges, and the matter was then referred by the RIU to UKCC which is the regulatory body for nursing, midwifery and health visiting. It is a disciplinary body, with power to remove nurses from the register if that is necessary to protect patients. The allegations which UKCC had to investigate were more wide-ranging than those which had been considered by the police. Other patients were involved, and in addition to allegations of misuse of drugs there were allegations of other forms of maltreatment. UKCC began to investigate in April 1998, and on 24th June 1998 the appellant was officially informed of what was afoot.

5

3. U.K.C.C.'s normal procedure.

6

UKCC receives over one thousand complaints per annum, and where the police have been involved the practice is to contact the police for relevant information. That obviously can save re-interviewing, and may expand the area of enquiry. It is not the practice to interview the professional under investigation at the investigative stage.

7

4. Progress of Investigation.

8

The police practice was to seek authority from those who had given statements to the police, and if authority was given to disclose the statements. By early July authority had been obtained from most of the witnesses by Detective Sergeant Buchan, but the Royal College of Nursing, on behalf of the appellant, in a letter dated 3rd July 1998, indicated that her agreement to disclosure would not be forthcoming. On 13th August 1998 Detective Sergeant Buchan replied saying that on 25th August 1998 she proposed to break the seal on the master tape recording of the appellant's interview of 6th December 1997, to copy it, and to re-seal it. The RCN representative was offered the opportunity to be present, and was told that after copying the police solicitor would listen to the tape and decide whether it should be disclosed to UKCC.

9

On 18th August 1998 the regional solicitor for the RCN replied, objecting to any disclosure to the nursing regulatory body, and questioning whether the proper authority had been obtained from the Chief Officer of police for breaking the seal. In a letter of 19th August 1998 to the Chief Constable the regional solicitor advised him of her intention to seek an injunction to prevent the course of action proposed by Detective Sergeant Buchan. Part of that letter reads—

"We place on record our concern that DS Buchan is pursuing this approach to a confidential conversation our client had with the police in connection with the death of a patient. She has been told that no action is being taken by the police against her, and at no time was she informed in her interview that the purpose of taping was anyhow connected with any investigation except by the police. The conversation our client had with your officers was undertaken on that basis, and we are really worried that you have officers who believe that such tapes can be sent to any other body, particularly after our client had expressly informed your officers that she would not consent voluntarily to such disclosure."

10

The police advised the RCN solicitor that they intended to proceed as indicated by Detective Sergeant Buchan. The regional solicitor also approached UKCC as to why disclosure was being sought when the appellant's consent had been refused. UKCC refused to be drawn, saying that it was a matter for the appellant and the police.

11

5. These Proceedings.

12

On 21st August 1998 the appellant commenced these proceedings. In her affidavit in support of the application for an injunction Helen Caulfield, the solicitor for the RCN, said at paragraph 17—

"The UKCC has not, so far as I am aware, made any representations to the Sussex police to the effect that there is any specific reason why the disclosure of the tape/transcript of the interview would be in the public interest. Further, the allegations contained in the letter from the UKCC to the plaintiff dated 24th June 1998 do not include any allegation in respect of the death of any patient and thus the interview does not appear relevant to any UKCC investigations. Moreover, the UKCC has its own means of carrying out investigations, which are described in Statutory Instruments 1993 number 893, the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993. There is no express statutory power permitting the UKCC to obtain transcripts of police interviews."

13

By the time that the matter was considered by the judge there was also before him an affidavit of Detective Sergeant Buchan and an affidavit from Paul Duncan Trott, solicitor to the Sussex Police.

14

On 18th February 1999 this court gave leave for UKCC to be joined as a party to the appeal, and before us there are two other affidavits which were not before the judge, namely an affidavit of Katrina Wingfield, solicitor to UKCC, and a second affidavit of Helen Caulfield.

15

6. The Issue.

16

Undoubtedly when someone is arrested and interviewed by the police what he or she says is confidential. Plainly it may be used in the course of a criminal trial if charges are brought arising out of that investigation, but if it is not so used the person interviewed is entitled to believe that, generally speaking, his or her confidence will be respected. If authority be required for that proposition, it can be found in Taylor v Serious Fraud Office (1998) 4 All E R 801 but, as all of the authorities cited to us indicate, there are exceptional circumstances which justify the disclosure by the police, otherwise than in the course of a criminal trial, of what has been said by a suspect during the course of an interview, in circumstances where the suspect, or former suspect, does not consent to such disclosure. The question which arises in this case is whether, if the regulatory body of the profession to which the suspect belongs is investigating serious allegations and makes a formal request to the police for disclosure of what was said in interview, the public interest in the proper working of the regulatory body is or may be such as to justify disclosure of the material sought. If the answer to that question is in the affirmative how, as a matter of procedure, should contentious issues in relation to disclosure be resolved?

17

7. Authorities.

18

Mr Wadsworth Q.C., for the appellant, submits that it is right to start from the position that, as Millett L.J. said in the Court of Appeal in Taylor v Serious Fraud Office (1997) 4 All E R 877 at 904—

"Members of the public who volunteer information to the police are entitled to expect that it will be used only for the purpose of the investigation and subsequent criminal proceedings. Their expectations should be respected."

19

Mr Wadsworth further submits that over the years and partly no doubt as a result of European influence, it is possible to see the public interest in maintaining that initial confidentiality being ever more closely guarded. Whether the police have obtained information from an informer, a witness, or a suspect who has not been charged, if the police do not themselves prefer charges what has been said to the police should, save in exceptional circumstances, not be passed on.

20

Article 8 of the European Convention of Human Rights indicates that to protect private and family life, where such information has been obtained in confidence there should be no disclosure "except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." Mr Horan, for the Chief Constable, and Lord Lester Q.C. for UKCC, invite us to note the reference in Article 8 to the protection of health,...

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3 books & journal articles
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    ...HIV PartnerCounselling and Referral Services’ (2003) 23 Women’s Rights Law Reporter 45.99 Woolgar v Chief Constable of Sussex Police [1999] 3 All ER 604.100 Attorney-General v Guardian Newspapers Ltd [1988] 3 All ER 545 at 659.101 The onus, however, is always on those who seek disclosure to......

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