CLG & Ors v Chief Constable of Merseyside Police [2015] EWCA Civ 836

Case No A2/2014/0539[2015] EWCA Civ 836
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 60 (QB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
His Honour Judge Wood Q.C.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 28 th July 2015
Before
LORD JUSTICE MOORE-BICKVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE FULFORDLORD JUSTICE VOS
Between
CLG and OthersClaimants/AppellantsCHIEF CONSTABLE of MERSEYSIDE POLICEDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedTrading as DTI165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr. Tim Owen Q.C.and Mr. Rajeev Thacker (instructed by Bhatt Murphy) for appellantsMr. Jeremy Johnson Q.C.and Miss Kate Cornell (instructed by the Force Solicitor) for respondentHearing Hearing dates : 23 rd and 24 th June 2015
JudgmentLord Justice Moore-Bick :Background
[1]This is an appeal against the order of His Honour Judge Wood Q.C. sitting as a Judge of the High Court, dismissing the appellants’ claims for damages resulting from the disclosure of their address to the defendants in criminal proceedings in which they were to be called as witnesses. The claims were brought under the common law, the Human Rights Act 1998 and the Data Protection Act 1998.[2]The first two appellants, CLG and AJD are a couple who live together with their young son, the third appellant, JAD. The events which culminated in these proceedings began in December 2009 when an unidentified gunman fired a shot through the front door of their house. AJD telephoned the police, who attended the house without delay. Both CLG and AJD gave statements the same evening. CLG moved out of the house immediately afterwards together with JAD and went to stay at the home of her mother. On 13th March 2010 three men were convicted of possessing the gun that had been used in the shooting. Newspaper reports of the conviction mentioned the name of the road in which the appellants lived. The next day an envelope was put through the letterbox of the appellants’ home, on the outside of which had been written the words “See you soon, grass”. Inside was an imitation bullet. AJD moved out of the house and went to live with a friend. In August 2010 all three appellants moved to a new address which was known only to CLG’s immediate family.[3]In April 2011 CLG and AJD were notified that they were required as prosecution witnesses at the trial of various persons accused of, among other things, firing guns into residential premises, including their former home. The trial began in May 2011 and on 26th May CLG and AJD were served at their home by a police officer, Detective Constable Gaffney, with witness summonses requiring them to attend court the next day. They failed to do so and as a result D.C. Gaffney made a statement in support of applications for the issue of warrants for their arrest, in which he described the steps he had taken to serve the witness summonses. His account included a reference to the address at which he had attended for that purpose.[4]D.C. Gaffney’s statement should have been passed to the officer acting as Disclosure Officer in connection with the prosecution to enable him to consider its contents before it was passed to the Crown Prosecution Service (“CPS”). That is a routine step, one purpose of which is to enable the Disclosure Officer to consider whether the statement contains any sensitive material which requires protection. In this case, however, there was a breakdown in the system and either the statement was not passed to the Disclosure Officer at all or its contents were not properly reviewed before it was passed to the CPS.[5]The CPS should itself have considered the contents of the statement to see whether it contained any sensitive material before deciding what use to make of it. Again, it is not entirely clear what, if any, steps were taken in that regard, but it appears that the CPS decided to make use of the statement as part of its case at trial. Accordingly, on 3rd June 2011 it served the statement, including details of the appellants’ current address, on those representing the defendants under a notice of additional evidence. As a result, the appellants’ new address was disclosed to the defendants.[6]On 9th June 2011 D.C. Gaffney attended court in order to give evidence (in the absence of the defendants) in support of the applications for the issue of a warrant for the arrest of CLG and AJD. He was required to read out his statement, including the reference to the appellants’ address where he had served the witness summonses. Warrants for their arrest were issued by the trial judge and executed later that day. On 10th June 2011 when CLG and AJD were produced at court both they and the police became aware for the first time that their new address had been disclosed to the defendants. As a result, the police arranged for them to stay at various different locations until they were able to move to another new home towards the end of July. The proceedings below[7]On 23rd May 2012 the appellants started proceedings against the police claiming damages for personal injury, distress and financial loss. In summary, their case was that the police owed them a duty of care at common law to avoid exposing them to a risk of physical harm at the hands of known violent criminals and had broken that duty by releasing D.C. Gaffney’s statement to the CPS, and through the CPS to the defendants, without having first redacted their address. Alternatively, they contended that by releasing details of their address the police had acted in breach of articles 2 and 8 of the European Convention on Human Rights (“the Convention”) and in breach of section 6(1) of the Human Rights Act 1998. They also argued that the disclosure of their address involved a breach by the police of section 4 of the Data Protection Act 1998 and of the second, third and seventh data protection principles.[8]The Chief Constable denied that any of his officers had been negligent and argued that the CPS alone had been responsible for the disclosure of the appellants’ address. He also denied that he or any of his officers had acted in breach of the Convention or of the data protection principles. Apart from that, however, he relied on two important principles of public policy: first, the principle that the police are immune from proceedings based on acts and omissions committed in the course of their core duties of preventing and investigating crime and protecting property; second, the principle that there is no liability for anything said or done in the course of judicial proceedings.[9]The proceedings culminated in a three-day trial before Judge Wood sitting in the High Court in December 2013. On 31st January 2014 he delivered a full and carefully reasoned judgment in which he dismissed the appellants’ claim. He held that the police and the CPS were both at fault, the police having made what he described as a material contribution to the disclosure, and that they were jointly and severally liable for any breach of duty towards the appellants. However, he rejected the appellants’ submission that the police owed a duty of care to them at common law on the grounds that the case fell within the principles to be derived from the line of authority beginning with Hill v West Yorkshire Police [1989] A.C. 53 and culminating (now) in Michael v Chief Constable of South Wales Police [2015] UKSC 2. He dismissed the argument that the police were in breach of article 2 of the Convention on the grounds that the appellants were not at real and immediate risk of death or serious physical harm. He also dismissed the claim under article 8 on the grounds that the police had put in place an effective system for evaluating the existence of sensitive information and that an isolated instance of carelessness was insufficient to constitute a breach of their positive duty under article 8. The claims under the Data Protection Act were dismissed on the grounds that the police had not failed to comply with the relevant data protection principles. He did not think that the principles of witness immunity or immunity for acts done in the course of judicial proceedings, repeatedly considered and affirmed in the line of cases which includes Darker v Chief Constable of the West Midlands [2001] 1 A.C. 435, would have provided a defence to any of the claims. Negligence[10]The essence of the appellants’ claim in this case is that the police and the CPS together carelessly allowed details of their address to be passed to those who, as they knew or should have known, were liable to take violent reprisals against them. Logically, the first question for consideration is whether the police were as a matter of fact responsible for the disclosure made by the CPS. Mr. Johnson Q.C. sought to argue that they were not, but the judge found as a fact that errors on the part of the police as well as errors on the part of the CPS had been responsible for the disclosure and there is no appeal against that finding. In my view it is not open to Mr. Johnson to seek to go behind it.[11]It is well to notice at the outset that this is not a case in which the appellants gave the police in confidence information to which they would otherwise not have had access. Following the shooting in December 2009, they had made statements to the police, in the course of which they had told them where they were then living. How the police were informed about their new address is not entirely clear. There is nothing to suggest that it was divulged in confidence, however, and D.C. Gaffney had no difficulty in going to their home in order to serve the witness summonses. Nonetheless, the police were well aware that it would or might be dangerous to disclose their address to the defendants in the criminal trial because they had a reputation for violence and might take reprisals against them. The first question for consideration, therefore, is whether in those circumstances the police owed a duty of care to the appellants to take reasonable steps to prevent that from happening.[12]Mr. Owen Q.C. submitted that a duty of care arose at common law for one or both of two reasons: first, because the three-fold test in Caparo Industries plc v Dickman [1990] 2 A.C. 605 was satisfied in this case, and secondly, because in any event the police had assumed responsibility to the appellants to take reasonable care to ensure their safety. If this case had concerned only a relationship between private persons, I think there would have been much to be said in favour of the existence of a duty of care. The police were in possession of information of a sensitive nature which related to specific persons whose safety, as they knew, might be endangered if it were to get into the wrong hands. That would ordinarily be sufficient in my view to establish the degree of proximity necessary to establish the first of the three requirements identified in Caparo v Dickman, and once that element is established it is not difficult to conclude that the second, foreseeability of harm, would likewise be established. In those circumstances it would in my view have been fair just and reasonable to impose a duty of care. Police immunity[13]However, this is not a case involving only private persons. It is a case involving the police and as a result important considerations of public policy come into play. In Hill v Chief Constable of West Yorkshire [1989] A.C. 53 the House of Lords had to consider whether the police owe a duty of care to members of the public in relation to the way in which they conduct investigations. The circumstances giving rise to the claim in that case are well known and need not be repeated here, but it is worth bearing in mind that the claimant was the mother of a young woman, Jacqueline Hill, who had the misfortune to become one of the victims of the serial murderer Peter Sutcliffe. She was, therefore, a member of the public at large, who had no pre-existing relationship with the police and to whom the risk of harm was no greater and no less than that of any young woman living in that part of England. The plaintiff’s claim was based on the allegation that the police had been negligent in failing to identify Sutcliffe sooner. The case therefore raised in stark terms the question whether the police owe a duty of care to members of the public at large in carrying out their duty to investigate and suppress crime. In the view of Lord Keith of Kinkel, with whom Lord Brandon, Lord Oliver and Lord Goff agreed, the absence of any direct relationship between Miss Hill and the police was fatal to the claim, but quite apart from that, considerations of public policy militated against recognising a duty of care on the part of the police to members of the public in carrying out their core duty of investigating and suppressing crime.[14]The decision in Hill established the principle that police forces owe no duty of care to members of the public in carrying out their core functions. The principle has not since been doubted, but two aspects of it have provided fruit for debate: the precise boundaries of those core functions and whether the police may incur liability for negligence in cases in which there exists a more direct relationship between themselves and the claimant.[15]In Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 W.L.R. 1495 the claimant, Duwayne Brooks, was a friend of Stephen Lawrence and was with him when he was killed in a racist attack. He brought a claim against the police alleging, among other things, that they had failed to take reasonable steps to assess whether he was the victim of crime, had failed to take reasonable steps to afford him the protection and support commonly afforded to eye witnesses of a serious crime of violence and had failed to attach reasonable weight to his account and act upon it accordingly. Their Lordships reviewed Hill and the cases that followed it. Reservations were expressed about the width of some of the dicta in Lord Keith’s speech, but the fundamental principle was reaffirmed by Lord Steyn, with whom the other members of the House agreed. In paragraph 30 he said:
“30. But the core principle of Hill’s case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill’s case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence . . . . A retreat from the principle in Hill’s case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill’s case, be bound to lead to an unduly defensive approach in combating crime.”
[16]The next cases to which our attention was drawn were Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of Sussex Police [2009] 1 A.C. 225. In the first of these the claimants’ son, a potential witness at the trial of the accused, was threatened and subsequently killed by him shortly before he was due to give evidence for the prosecution. The claimants brought an action against the police for failing to protect their son from the risk of serious harm of which they were or should have been aware. In the second case the claimant had received threatening telephone calls and text and other messages from his former partner, but the police had declined to look at or record the messages or to take a statement from him. They had, however, traced the calls and kept him informed of the progress of the investigation. He was subsequently attacked by his former partner and brought a claim against the police for negligence for having failed to protect him. The question was whether the claim should be struck out as disclosing no cause of action.[17]Lord Bingham was in favour of allowing the claim to proceed on the grounds that:
“44. . . . if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.”
[18]He did not consider that approach to be inconsistent with the decision in Hill, but other members of the House took a different view. Lord Hope was of the view that to impose such a liability would be contrary to the public interest, because it would be liable to impede police operations. He said:
“76. The risk that the application of ordinary delictual principles would tend to inhibit a robust approach in assessing a person as a possible suspect or victim, which Lord Steyn mentioned in the last sentence of the passage that I have quoted from his opinion in Brooks, is directly relevant to cases of the kind of which Smith’s case is an example. . . . Not every complaint of this kind is genuine, and those that are genuine must be sorted out from those that are not. Police work elsewhere may be impeded if the police were required to treat every report from a member of the public that he or she is being threatened with violence as giving rise to a duty of care to take reasonable steps to prevent the alleged threat from being executed. Some cases will require more immediate action than others. The judgment as to whether any given case is of that character must be left to the police.”

Lord Phillips of Worth Matravers concluded that:

“100. . . . the elements in Lord Bingham's “liability principle” are facts which would render particularly egregious a breach of a duty of care that can be more simply stated: “where the police have reason to believe that an individual is threatened with criminal violence they owe a duty to that person to take such action as is in all the circumstances reasonable to protect that person.”
Such a duty of care is in direct conflict with the principle in Hill.[20]In Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, [2014] P.I.Q.R. P238 the claimant was walking along the street when she was knocked to the ground and injured by police officers involved in the arrest of a drug dealer. She brought proceedings against the police for negligence. The trial judge found that there had been a foreseeable risk of injury to members of the public and that the officer who had planned the arrest had acted negligently, but that police officers engaged in the arrest of offenders were immune from action. He therefore dismissed the claim. The claimant’s appeal was dismissed on the grounds that a sufficient relationship of proximity to give rise to a duty of care did not exist between members of the public and police engaged in apprehending criminals and that it would in any event not be fair, just and reasonable to impose a duty of care on the police in those circumstances.[21]In Brooks Lord Steyn described the core duty of the police as being to prevent the commission of crime, protect life and property, apprehend criminals and preserve evidence. Hill remains authority for the proposition that the police do not owe members of the public in general any duty of care in carrying out their functions of investigating crime and obtaining and preserving evidence. Whether that is because there is no sufficient proximity of relationship or because public policy requires it does not matter for present purposes. It has been recognised, however, that in some circumstances the police may incur liability to individual members of the public for harm caused in carrying out aspects of their core functions. In Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] Q.B. 335 the question for decision was whether the CPS owes a duty of care to those it prosecutes. Steyn L.J. held that the interests of the community at large were better served by not imposing a duty of care on the CPS, but he was prepared to contemplate the existence of a duty of care in circumstances where the CPS had by conduct assumed a responsibility towards a particular defendant (page 350A-B). It is perhaps not surprising, therefore, that the cases in which claims against the police for breach of a duty of care have been allowed to proceed have been those in which there has arguably been an assumption of responsibility to the claimant, or something akin to it. In such cases the claimant has been able to satisfy the court that there is a degree of proximity between himself and the police which makes it appropriate to impose a duty of care and that to do so would not have a significantly adverse effect on the operational effectiveness of the police and thereby on the interests of the public.[22]In my view the actions of the police in serving a witness summons, making a statement with a view to giving evidence of that fact and producing that statement to the prosecuting authority for the purposes of making an application for a warrant of arrest all form part of their core function of obtaining and preserving evidence, in the discharge of which they do not owe a duty of care to the public at large. Nor in my view do the police owe a duty of care to potential witnesses in general, although they may incur a duty of care towards a particular individual if they have had dealings with him of a kind that involve an acceptance of responsibility for his safety.[23]In support of his submissions Mr. Owen drew our attention to two cases in which, he said, a duty of care had been recognised in circumstances analogous to those of the present case. The first of these was Swinney v Chief Constable of Northumbria [1997] Q.B. 464. In that case the first plaintiff gave information to the police about the identity of the driver of a vehicle which had hit and killed another officer. The information was recorded in a document together with details of the informant’s name, address and telephone number. The document was stolen from a police vehicle and came into the hands of the alleged driver, who was known to be of violent disposition. The plaintiffs brought an action against the Chief Constable on the basis that the information had been provided in confidence and that the police owed them a duty of care to ensure that it was not divulged to the alleged driver. The Chief Constable applied to strike out the claim as disclosing no cause of action. The application succeeded before the District Judge, but Laws J. and this court on appeal held that it was arguable that a special relationship had arisen between the plaintiffs and the police as a result of an assumption of responsibility by the police to preserve the confidentiality of the information. All three members of the court expressed the view that, as a result of giving confidential information to the police, it was arguable that the plaintiffs had entered into a special relationship with them of a kind which involved an assumption by the police of responsibility for keeping the information safe. The application of this principle may be clearly seen in the reasoning of this court in An Informer v A Chief Constable [2013] Q.B. 579, to which our attention was also drawn.[24]In both Swinney and An Informer the court recognised that there is a strong public interest in encouraging those who are willing to give information to the police to come forward. In those circumstances the personal relationship between an informer and the police which will almost inevitability have come into existence as the result of providing sensitive information is likely to provide a solid basis for finding an assumption of responsibility on the part of the police, often by conduct rather than by express words. Mr. Owen submitted that there is an equally strong public interest in encouraging people to give evidence and that the claimants in the present case were entitled to expect similar support from the police. In ethical terms I would agree, but in Brooks Lord Steyn cautioned against converting ethical values into legal duties of care to victims and witnesses. In the present case there was, in my view, no comparable assumption of responsibility on the part of the police to the appellants. CLG and AJD approached the police following the original shooting incident and as a result the police took routine statements from them. When it was decided that they should be called to give evidence witness summonses were issued and served. The police already knew where they were living; there is nothing to suggest that the appellants disclosed their address to the police on a confidential basis. In my view, therefore, the claim in negligence cannot be sustained. Witness immunity[25]Mr. Johnson’s alternative defence to the claim in negligence was that the release of D.C. Gaffney’s statement to the CPS and its release by the CPS to the defendants was subject to witness immunity. As the judge held in paragraph 137 of his judgment, it is a basic principle of the common law that those who participate in the judicial process are immune from suit in respect of anything said or done in the ordinary course of those proceedings. The principle is established by a series of decisions stretching back to the 19th century and beyond. One of the leading restatements of the principle in modern times is to be found in Darker v Chief Constable of the West Midlands, in which the question arose whether the fabrication of evidence by police officers fell within it. Not surprisingly, their Lordships held that it did not, but the basic principle was there reasserted in emphatic terms.[26]In Darker the claimants alleged that police investigating the importation of cannabis and associated financial offences had fabricated evidence against them. The police applied to have the claim struck out. The House of Lords held that the absolute immunity from action given in the interests of the administration of justice to a party or witness in respect of what he said or did in court extended to statements made for the purpose of court proceedings, but did not extend to things done by the police during the investigative process which could not fairly be said to form part of their participation in the judicial process. Lord Hope expressed the general principle in the following terms:
“My Lords, when a police officer comes to court to give evidence he has the benefit of an absolute immunity. This immunity, which is regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and probable cause: Dawkins v Lord Rokeby (1873) LR 8 QB 255 , 264, per Kelly CB. The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence.”
[27]Although the immunity exists to enable witnesses to speak freely when giving evidence, it has been recognised that if it is to be effective it must also extend to statements made in preparation for giving evidence and to the communication by investigating officers of statements made by potential witnesses to other officers involved in the investigation. Thus in Taylor v Director of the Serious Fraud Office [1999] 2 A.C. 177 Lord Hoffmann said at pages 214-215:
“When one turns to the position of investigators, it seems to me that the same degree of necessity applies. It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J. in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192: ‘the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.’ This formulation excludes statements which are wholly extraneous to the investigation—irrelevant and gratuitous libels—but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other.”
[28]The allegations made against the police in Darker made it necessary for their Lordships to enquire into the limits of the immunity. In Lord Hope’s view in the case of police officers it was to be drawn between things said or done in the ordinary course of preparing to give evidence as witnesses or potential witnesses and things said or done in the course of investigations (page 448C-E). In Lord Hutton’s view the line was to be drawn between preparing statements for use in court and the fabrication of evidence (page 469F). Their Lordships were agreed, however, that the immunity is intended to protect witnesses in respect of statements made or things done when giving or preparing to give evidence.[29]Since the decision in Darker the scope of the immunity has been considered on a number of occasions. In Smart v Forensic Science Service Ltd [2013] EWCA Civ 783, [2013] P.N.L.R. 32 the CPS sent two bullets to the defendant for forensic analysis. The defendant reported that the bullet taken from the claimant was live and he therefore pleaded guilty to a charge of possessing live ammunition. It later became apparent that the bullet that had been taken from the claimant was not in fact live and his conviction was set aside, but the passage of time meant that he was unable to claim compensation for the miscarriage of justice. He therefore began proceedings against the defendant claiming damages for negligence. The defendant sought to rely on witness immunity as grounds for striking out the claim. On appeal this court held, following an amendment of the particulars of claim to allege deceit, that the claim should be allowed to proceed. The court drew a distinction between deliberate fabrication or falsification of evidence and simple negligence, but it also allowed the claim in negligence to proceed because the facts on which it was based were closely linked to those relating to the claim in deceit and called for investigation before any decision was made.[30]In Singh v Reading Borough Council [2013] EWCA Civ 909, [2013] 1 W.L.R. 3052 the claimant sought to include in proceedings before the Employment Tribunal against her former employer, the council, a claim for constructive unfair dismissal based on an allegation that it had put pressure on another employee to include false allegations against her in a witness statement made for the purposes of the proceedings. The tribunal struck out that part of her case on the grounds that the statement and its preparation were protected by judicial proceedings immunity. The Employment Appeal Tribunal upheld that decision, but this court allowed the claimant’s appeal on the grounds that in relation to witnesses the immunity attached only to the giving of evidence and to such collateral activities as required protection in order to prevent the core immunity from being outflanked. Having considered the authorities, Lewison L.J., with whom Maurice Kay and Gloster L.JJ. agreed, summarised the relevant principles as follows:
“66. Summarising this part of the case: (i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court; (ii) The core immunity also comprises statements of case and other documents placed before the court; (iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked; (iv) Whether something is necessary is to be decided by reference to what is practically necessary; (v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity; (vi) In such cases the principle that a wrong should not be without a remedy prevails.” (i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court; (ii) The core immunity also comprises statements of case and other documents placed before the court; (iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked; (iv) Whether something is necessary is to be decided by reference to what is practically necessary; (v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity; (vi) In such cases the principle that a wrong should not be without a remedy prevails.”
[31]This line of authority has been considered very recently by this court in Daniels v Chief Constable of South Wales Police [2015] EWCA Civ 680, in which Lloyd Jones L.J., with whom Davis and McFarlane L.JJ. agreed, expressed the view that the scope of the immunity is limited to statements made by witnesses in the course of giving evidence and to certain limited but necessary extensions of that principle. The fact that an activity may be intimately associated with the judicial phase of the criminal process, as distinct from the administrative or investigatory function, arguably does not, in itself, necessarily give rise to immunity.[32]One of the features of the present case, which it shares with Swinney v Chief Constable of Northumbria, is that the claim is based not on anything that D.C. Gaffney said in his statement, but on what the police and CPS subsequently did with it. It is accepted that the CPS should have been alerted to the fact that the statement contained sensitive information and that on this occasion the system for ensuring that it was examined by the Disclosure Officer broke down. The question for decision, however, is whether the transmission of the statement by the police to the CPS was part and parcel of preparing for D.C. Gaffney to give evidence in support of the application by the prosecution for a warrant of arrest. In my view it was, because it falls squarely within Lord Hoffmann’s statement in Taylor v Director of the Serious Fraud Office, to which I referred earlier. It is true that the action in the present case is not based on the nature of the statement itself, as it would be if the claim were for defamation, but it is based on the transmission by the police to the CPS of a statement required for the purposes of enabling D.C. Gaffney to give evidence in court, as he subsequently did. In substance, the position is essentially the same as if D.C. Gaffney had made his statement orally to a representative of the CPS. To hold the police liable for communicating its contents to the CPS would outflank the immunity to which they were entitled in relation to the evidence once given in court. In my view, therefore, the police are immune from action in respect of the transmission of his statement to the CPS, despite the fact that it was carried out negligently. Article 8 of the Convention[33]The judge approached this part of the claim in the understanding that the appellants were asserting a breach of the state’s positive obligation to protect their private life. He held that the disclosure of their address had interfered with their rights because it had caused them to move house, which he considered to have been a reasonable response in all the circumstances. Nonetheless, he held that there had been nothing more than an isolated act of carelessness rather than a failure to put in place a system capable of protecting the claimants’ rights.[34]Mr. Owen submitted that the judge had misunderstood the appellants’ argument, which had not been based solely on the breach by the state of its positive obligation under article 8, but had included the argument that the release of personal information in the form of their address amounted in the circumstances to a breach of the obligation not to interfere unlawfully with their right to respect for their private and family life. In support of his argument he relied on the decision of the European Court of Human Rights in Craxi v Italy (No. 2) (Application No. 25337/94) (2004) 38 E.H.R.R. 47. A single act of carelessness can, he argued, be sufficient to found liability.[35]Mr. Johnson submitted that the case advanced before the judge had been one of a breach of the state’s positive obligation and that the claim could not succeed on any other basis. The judge found that the disclosure resulted from an isolated incident and not from the absence of an adequate system for ensuring that sensitive personal information was not released without good reason. As to the negative obligation, the claimants’ address was identified in D.C. Gaffney’s statement in order to support an application for a witness summons. It therefore fell within the scope of article 8.2 and if there was an interference with their rights it was justified.[36]In my view the judge was correct in his understanding of the nature of the appellants’ case as pleaded. The appellants’ case in paragraph 25 of the particulars of claim was that the police had acted in breach of articles 2 and 8 of the Convention. It was based on the allegation that they knew or ought to have known that there was a real and immediate risk to the appellants’ lives, but had failed to take such steps as were within their powers to avoid it. Alternatively, they alleged that the police had failed to take sufficient steps to protect their right to personal autonomy and family life. The thrust of the pleading is that the police owed a duty to the appellants to take positive steps to prevent an infringement of their rights under both articles.[37]The judge rejected the claim under article 2 because he was not persuaded that there had been any real and immediate threat to the appellants’ lives and that part of his decision has not been the subject of any appeal. He also rejected the claim under article 8 because he held, correctly, that it could not succeed in the absence of evidence that the police had failed to establish a system for ensuring, as far as reasonably possible, that sensitive personal information was not published more widely than necessary. No doubt for that reason Mr. Owen put his case before us primarily on the basis that the police had unlawfully infringed the appellants’ right to private and family life.[38]In Craxi v Italy telephone calls made by the claimant were intercepted by the Italian authorities, transcripts of which were filed with the court for use as evidence in the proceedings against him. Extracts from the transcripts were read out in court and the contents of some conversations subsequently found their way into the hands of the Press and were published. Ultimately, however, the evidence was not used at the trial. The claimant argued that the release into the public domain of telephone conversations of a private nature constituted a breach of his rights under article 8. The court held that the state’s failure to provide safe custody of the transcripts and to carry out an investigation into how they had been released into the public domain constituted a breach of his rights. Some of the conversations had been of a strictly personal nature and publication was not required in order to meet a pressing social need.[39]In my view the claim based on a breach of the state’s positive obligation could not succeed in the face of the judge’s finding that the release of the claimants’ address was the result of an isolated act of carelessness on the part of the police. That finding was open to him on the evidence and was fatal to the claim then being put forward. Moreover, I think Mr. Johnson was right in submitting that if the consequences of a breach of a positive obligation are said to have been exposure to the risk of death or serious injury, as was the case here, the claimant can succeed only if he can establish a breach of the state’s positive obligations under articles 2 or 3. In DSD v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) Green J. observed in paragraph 242 that he could not see any circumstances in which article 8 would provide a greater level of protection than article 3 and that in none of the Strasbourg cases had the court treated article 8 as having an effect extending beyond article 3. It is unnecessary to reach a final decision on that question in the present case, but in a case in which the appellants pursued, but have since abandoned, a claim under article 2, it is difficult to see how they could hope to succeed under article 8. The judge was in my view right to reject that part of their case.[40]It may well be, however, that in principle an isolated act of carelessness may be sufficient to constitute a breach of the negative obligation contained in article 8, but, as is well known, the Convention right to respect for private and family life is not unqualified. In the present case the appellants’ address was properly included in D.C. Gaffney’s statement because it was an essential part of the evidence needed to support an application for a warrant for their arrest. The disclosure of that information to the CPS was in accordance with the law and necessary in a democratic society in the interests of preventing crime. In my view, therefore, whichever way the case is put, the claim based on a breach of the appellants’ rights under article 8 fails. The Data Protection Act 1998[41]The Data Protection Act 1998 establishes certain principles (“data protection principles”) with which those who collect and process data (“data controllers”) must comply. Section 13 provides that a person who suffers damage by reason of a failure on the part of a data controller to comply with the requirements of the Act may obtain compensation. The appellants rely on the second, third and seventh data protection principles which are as follows: “2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. 3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.” “Processing” data for these purposes includes disclosing it to a third party.[42]Part IV of the Act contains various exemptions from the provisions of Parts II and III. Section 27 provides, so far as material, as follows:
“27.— Preliminary. (1) References in any of the data protection principles or any provision of Parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this Part are exempt from that principle or other provision. (2) . . . (3) In this Part “the non-disclosure provisions” means the provisions specified in subsection (4) to the extent to which they are inconsistent with the disclosure in question. (4) The provisions referred to in subsection (3) are— (a) . . . (b) the second, third, fourth and fifth data protection principles . . .” (a) . . . (b) the second, third, fourth and fifth data protection principles . . .”
[43]Section 29 contains exemptions in relation to the processing of data relating to crime and taxation. So far as material it provides as follows:
“29.— Crime and taxation (1) Personal data processed for any of the following purposes— (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders (c) . . . are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection. . . . (3) Personal data are exempt from the non-disclosure provisions in any case in which— (a) the disclosure is for any of the purposes mentioned in subsection (1), and (b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection.” (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders (c) . . . are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection. (a) the disclosure is for any of the purposes mentioned in subsection (1), and (b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection.”
[44]Before the judge counsel submitted that, although the processing of the appellants’ data by including their address in D.C. Gaffney’s statement was legitimate, the subsequent disclosure of it to the accused amounted to processing the data in a manner incompatible with the initial lawful purpose of proving service of the witness summonses. The judge, however, rejected that argument on the grounds that, insofar as disclosure to the defendants in the criminal trial would otherwise have been in breach of the second and third data protection principles, it was protected by section 29 of the Act and that there had been no breach of the seventh data protection principle, because appropriate measures had been put in place to prevent unauthorised or unlawful processing of personal data.[45]Mr. Owen argued that the judge had been wrong to reject the appellants’ argument on these grounds. He submitted that the disclosure of the appellants’ address involved a further processing which was incompatible with the original lawful purpose of proving service of the witness summonses. However, that processing was carried out by the CPS, not by the police themselves, and was the result of a decision by the CPS to adduce D.C. Gaffney’s account in evidence at the trial. In those circumstances it was necessary for it to serve the statement on the defendants and the application of the principles restricting disclosure would have been likely to prejudice the prosecution of offenders. The claim based upon a failure to comply with the second and third data protection principles therefore fails.[46]The seventh data protection principle relates to the implementation of appropriate systems for ensuring the protection of personal data. The judge found that both the police and the CPS maintained appropriate systems for preventing the unauthorised and unlawful processing of personal data and in my view he was right to do so. The language in which the seventh data protection principle is cast (“appropriate . . . measures shall be taken against . . . unauthorised or unlawful processing”) is not apt to impose an absolute duty to prevent the misuse of data. It imposes no more than a duty to put in place a system of measures to safeguard data that are appropriate having regard to the operations of the data controller and the nature of the data for which he is responsible. What is appropriate will vary from case to case. In the present case the judge was entitled to hold that, despite the errors that were made, the systems put in place by the police and the CPS to prevent unauthorised or unlawful disclosure of sensitive personal information were appropriate. I agree with that conclusion. I would therefore reject this ground of appeal. The position of the third appellant[47]The third appellant, JAD, is a child who was nearly four years old when the shooting incident occurred in December 2009 and about 5½ years old when the appellants moved into their final home in July 2011. The schedule of loss served by the appellants identifies a number of expenses which are said to have been incurred as a result of their having been forced to use temporary accommodation and moving to their current address, but none of that was incurred by JAD. I would accept that he must have suffered a degree of disruption to his life as a result of having to live in temporary accommodation for a few weeks, but it is likely to have been modest and there is no reason to think that his safety was ever in danger. If the police had owed his parents a duty to take reasonable care to prevent their suffering injury, I see no reason why they should not have owed a similar duty to him, since he could have been involved, deliberately or by chance, in any revenge attack directed at them. However, for the reasons I have given I do not think that CLG or AJD are entitled to recover damages against the police and JAD’s claim fails with theirs.[48]For these reasons I would dismiss the appeal.

Lord Justice Fulford :

[49]I agree.

Lord Justice Vos :

[50]I also agree.

Cited in 4 later judgments