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Duty of Care - Police owe informants duty of confidentiality

Swinney and Another v Chief Constable of Northumbria Police (No 2)

(1999) The Times, May 25QBD


The Facts

The first plaintiff ( Mary Kathleen Swinney) gave to the police information relating to the possible identity of a murder suspect, for use in the course of the murder investigation, on the basis that they would take all reasonable steps to ensure that the information was not disclosed more widely than was necessary for the purpose of the police inquiry.

The information in question was disclosed as a result of the theft of documents from a briefcase in a locked police car. As a result, the Swinney's were subjected to extremely unpleasant threats and harassment.

The circumstances were different from those in which the police had achieved immunity from liability in negligence either because there was no duty of care because of a lack of proximity, or because there was immunity from suit on the ground of public policy: see Hill v Chief Constable of West Yorkshire [1989] AC 53, Alexandrou v Oxford [1993] 4 All ER 328 and Ancell v McDermott [1993] 4 All ER 355.

When an informant entrusted to the police confidential information, the release of which was likely to put him in danger, a duty of care might well arise: see the judgment of the Court of Appeal in a striking out application in the present case in Swinney v Chief Constable of Northumbria Police The Times March 28, 1996; [1997] QB 464. The Swinney's were not simply members of the general public as in Hill, Alexandrou and Ancell.

An informant such as the Mary Kathleen Swinney established a special relationship with the police, such as to give rise to proximity. And considerations, of public policy, which pointed heavily against imposing a duty of care in Hill, Alexandrou and Ancell, were here even more evenly balanced: see Swinney (at pp 486-7.

It was only in rare and exceptional circumstances that considerations of public policy conferred immunity or negated a duty of care which would otherwise arise. Where, as here, public policy considerations were even more evenly balanced, they should not have the effect of excluding a duty of care.

It was rightly conceded by the chief constable that Mary Kathleen Swinney, in giving information to the police relating to the possible identity of the murderer, did so in circumstances giving rise to a duty of care. That duty of care should be formulated as "a duty to take reasonable care to avoid unnecessary disclosure to the general public of the information which the first plaintiff had given to the police". That formulation accorded with legal principle.

First, disclosure of such sensitive information and its source to the general public was liable to lead to recriminations against Mary Kathleen Swinney and care should be taken to prevent that.

Second, the public policy of encouraging informants to come forward would be promoted by formulating the duty in that way.

Third, "to the general public" recognised that information could pass without inhibition between police officers, the Crown Prosecution Service and similar agencies.

Fourth, "unnecessary disclosure" catered for the various situations in which the police could be required by law to make disclosure.

Fifth, "reasonable care" properly limited the extent of the duty.

Sixth, his Lordship noted the criticisms expressed by the European Court of Human Rights of the decision of the Court of Appeal in Osman v Ferguson [1993] 4 All ER 344: see Osman v United Kingdom The Times November 5, 1998.

On the facts, however, the police had complied with the duty of care. Since Mary Kathleen Swinney's claim failed, the claim of James John Swinney also failed and it was unnecessary to analyse in detail whether the defendant owed any duty of care to him.


The Decision

Where an informant gave information to the police in confidence for use in the course of a murder investigation, the police owed the informant a duty to take reasonable care to avoid unnecessary disclosure to the general public of the information.

Mr Justice Jackson, so held on the trial of an action by the plaintiffs, Mary Kathleen Swinney and James John Swinney, against the defendant, the Chief Constable of Northumbria Police, for damages for loss suffered, inter alia, as a result of the alleged negligence of the defendant's officers in failing to keep secure confidential information relating to a murder inquiry supplied to them by the first plaintiff.

The judge nevertheless dismissed the action on the ground that the police were NOT in breach of the duty.


Comment

Swinney Number 1 case was reported as Swinney and Another v Chief Constable of Northumbria Police, (1996) The Times, March 28 1996, Court of Appeal, it held that Police were not immune from negligence suit.


Insuring Against the Risk

In Lancashire County Council V Municipal Mutual Insurance Ltd, (1996) The Times, April 4, the Court of Appeal said it was not contrary to public policy for local authorities and chief constables to insure against their vicarious liability to pay damages, including exemplary damages, for the criminal acts of employees or police officers.

An insurance provision indemnifying the insured's legal liability to pay "compensation" was not wholly clear and unambiguous and could in context include awards of exemplary damages.

The Court of Appeal so held dismissing an appeal by the defendant insurers, Municipal Mutual Insurance Ltd, against a declaration by Judge Kershaw, QC, in the Queen's Bench Division at Manchester on May 23, 1994 that an insurance policy held by the plaintiffs, Lancashire County Council, provided indemnity for the liability to pay exemplary damages.


Telling Somebody Else.

In Woolgar v Chief Constable of Sussex Police and Another, (1999) The Times, May 28, the question of Police disclosure to a Regulatory Body was discussed.

It was held that where the police interviewed a suspect in connection with serious allegations the information obtained was confidential, but that confidentiality was subject to the exception that the police were entitled to disclose to a regulatory body, concerned with public health and safety, material which they reasonably believed to be relevant to an inquiry by that body.

Disclosure was on the basis that the information would be used only for the purposes of the investigation by that regulatory body, and the confidentiality which already attached to it would be maintained.

A balance had to be struck between the two competing public interests of the free flow of information to the police for which confidentiality was required and the disclosure of relevant information to regulatory bodies in the interests of public health and safety.

Where the police intended to disclose information, it was desirable for the person interviewed to be informed in time to make an application to the court if so advised, unless that course was not practicable or desirable. The primary decision on disclosure was one for the police, not the court.

The Court of Appeal so held, dismissing the appeal of Junia Edith Rosemary Woolgar, against the refusal by Mr Justice Astill on September 3, 1998 of her application for an order that the Chief Constable of Sussex Police be restrained from disclosing to the United Kingdom Central Council for Nursing Midwifery and Health Visiting ("UKCC") the contents of her interview with the police at Worthing Police Station on December 6, 1997.


Rob Jerrard