Dear Colleagues,

A short case from the English Court of Appeal today: Desmond v The Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3, http://www.bailii.org/ew/cases/EWCA/Civ/2011/3.html. The claimant had been arrested on suspicion of indecent assault but was never charged, with the relevant police officer noting on the file that "It is apparent Desmond is not responsible for the crime. The complainant visited and cannot state for certain if Desmond is responsible. Desmond refused charge and enquiries are continuing. All relevant paperwork attached." Some years later, the claimant, a teacher, applied for an Enhanced Criminal Record Certificate, which is necessary to secure employment as a teacher. The chief of the relevant police force has discretion in such cases as to whether to disclose the fact of such arrest without charge on the record certificate, and is expected to make a considered judgment. It was no longer possible to determine why there had been insufficient evidence to proceed, and the office in charge’s note had apparently gone missing. Nevertheless, they did disclose the fact of the arrest on the record certificate, a decision which the Court of Appeal believed would have been a breach of duty ([15]), if such a duty was owed, which was the key issue in the appeal.

The claimant advanced various claims, in negligence, under the Human Rights Act and misfeasance, including claims for aggravated and exemplary damages, on the basis that including the information on the certificate had impeded his employment as a teacher and caused him associated other losses. The issue for the Court of Appeal was whether the negligence claim should be struck out on the basis of there being no duty of care owed by the Chief Constable to the claimant. The Court of Appeal takes into account the statutory context, which imposed a positive duty to act in either providing the information on the certificate, or not doing so, bearing in mind the public interest in the protection of young people. Taking in the line of police liability authorities from Hill to Van Colle, the duty in the statutory context cases and also economic loss cases, the Court of Appeal concludes that there could be no duty, as it might lead to conflict with the statutory aim to protect young people. Nor could the Chief Constable be said to have assumed responsibility for the claimant. The possibility of alternative remedies available to the claimant was also considered to be relevant.

Best wishes,

James

 

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James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple

Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15  2TT, United Kingdom
 
Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk