AB v A Chief Constable (Rev 1) [2014] EWHC 1965 (QB)

[2014] EWHC 1965 (QB)Case No 2MA91038IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONLiverpool Civil Justice CentreVernon St, Liverpool, L2 2BXDate 16/06/2014
Before
MR JUSTICE CRANSTON
Between
ABClaimantA Chief ConstableDefendant
David Lock QC and Michael O'Brien QC (instructed by Lewis Hymanson Small) for ClaimantJohn Beggs QC and Susanna Rickard (instructed by Shoosmiths) for DefendantHearing Hearing dates: 12-15 and 23 May 2014
JudgmentMr Justice Cranston :I INTRODUCTION
[1]In outline the claimant, AB, was a senior police officer with the defendant Chief Constable’s police force (“the Force”). He applied to a Regulatory Body for a job. A Regulatory Body has, as one aspect of its functions, ensuring the professional standards of individuals it regulates and deciding who can be disciplined and ultimately prevented from working in the area. The Force sent a standard reference which did not answer questions in the Regulatory Body’s reference request raising the claimant’s sickness and disciplinary record. The Regulatory Body gave the claimant the job and he resigned from the Force. In a novel argument the Chief Constable contends that he was under a legal duty in both private and public law to send a second reference with this information. The claimant’s case is that the Chief Constable is under no such duty. If the Chief Constable is correct and there is a legal duty the claimant contends that to send the second reference would be in breach of data protection principles and his legitimate expectations. II BACKGROUND The Force

II BACKGROUND

[2]The police force in these proceedings (“the Force”) covers one of the counties in England and Wales. As with other police forces in the country it has both warranted police officers and police staff. The latter are under the direction and control of the Chief Constable, as well as the warranted officers. In 2012 the Force was organised as follows. Immediately under the Chief Constable was the Deputy Chief Constable, CD. At the next level were Assistant Chief Constables E and F and Assistant Chief Officer GH. These five persons constituted the Force’s executive. They were at the level to be members of the Association of Chief Police Officers. They occupied a suite of offices in close proximity in the same corridor at police headquarters. Each could contact the others simultaneously on the one email address. Below the ACPO Chief Officers were a number of chief superintendants, including the claimant.[3]Deputy Chief Constable CD was the decision maker (“the appropriate authority” under the Police (Conduct) Regulations 2008, now the Police (Conduct) Regulations 2012) in relation to disciplinary matters concerning the claimant. As a result of events which had happened during his time at a previous Force, CD was under an investigation. When CD came to make an application to move to another role CD disclosed details of the investigation before applying and discussed it at length with his prospective employers before a decision was made to offer him the position.[4]Assistant Chief Officer GH was the most senior member of the police staff, managing the finances, procurement and so on. After the appointment of the defendant Chief Constable, Human Resources (HR) was transferred within GH’s remit. He was not a HR specialist and MN, who had spent his whole career in police human resources work, was appointed to head the HR department in 2011. Although under the supervision and control of the Chief Constable, Assistant Chief Officer GH’s job description conferred on him “a strong element of self discretion”. Assistant Chief Officer GH took voluntary redundancy in October 2012, shortly after the events considered in this judgment. Neither side called GH as a witness. All that I have heard leads me to conclude that GH was of the highest integrity.

The claimant, the 2011-2012 disciplinary investigation and his illness

[5]The claimant had joined the Force in 1988 after being a special constable. Apart from a short period with another police force he spent the whole of his career with the Force. During his time with the other force he had been subject to professional criticism for his role in a high profile investigationalthough the investigation did not lead to any disciplinary charges against the claimant. He became a Chief Superintendent. For a relatively short period he was seconded to another police organisation. At the time of his resignation he had been a member of the local Criminal Justice Board and was involved in the Police Superintendents’ Association.[6]In 2009 the claimant was disciplined for misconduct and accepted the charge. He was given a Final Written Warning. This is the most serious sanction in a misconduct case. He appealed this sanction on the ground, inter alia, that the disciplinary action imposed was unreasonable and disproportionate. The appeal was determined by the acting chief constable of another police force who dismissed the appeal and expressed concern that the panel’s powers were restricted to those associated with misconduct rather than gross misconduct. In his view the claimant’s explanations in response to the allegations raised further concern about his honesty and integrity and the evidence presented strong grounds to question whether the claimant should hold the office of constable and the rank of Chief Superintendent. On the evidence I conclude that it is rare for so senior a police officer to receive a final warning.[7]An action plan was devised for the claimant to address issues raised by the misconduct finding. The claimant met periodically with Assistant Chief Constable E to discuss its implementation. Eventually the Chief Constable accepted that the action plan had been completed and signed it off in May 2011.[8]The claimant was married with children but, as puts it in his witness statement, he came to realise that he had a homosexual orientation. He had met X by chance at a gym in September 2010 and they became friends. X is gay. The claimant’s evidence was that he has never had a physical relationship with X although X did live with him for a period when X’s father excluded him from the family home. In February 2011 the Force learnt that the claimant was gay after he was outed by a relation.[9]On Remembrance Day 2011 the Force issued the claimant with a notice of alleged breach of professional behaviour under regulation 15 of the Police (Conduct) Regulations 2008. The notice had been triggered by concerns raised by Assistant Chief Constable F about the claimant’s role in attempting to influence the appointment of X as a special constable with the Force. The notice set out allegations that the claimant tried to influence more junior officers, a member of the interview panel and the head of human resources. It alleged that he had made adverse comments to a Superintendent in respect of other police officers possibly associated with X to influence the decision-making; that he informed X that he had passed vetting in November 2011 and needed to present himself for a medical, when that was not the case; and that he had actively involved himself in X’s case despite the conflict of interest. The notice alleged that he had abused his position, which if proved might breach the standards of professional behaviour for honesty and integrity. The notice assessed the allegations as constituting gross misconduct.[10]About five weeks later, in December 2011, the Force issued a more detailed notice under regulation 15. It particularised the allegations contained in the first Regulation 15 notice. Over the following months the lead investigator into the allegations was Assistant Chief Constable F.[11]The claimant accepted in his evidence that these were potentially serious allegations which could lead to his dismissal from the police force but said that his lawyers had advised that he had a 75 percent chance that the allegations would be defeated. In evidence his explanation for the course he had taken in relation to X was that the Force was guilty of institutional discrimination. X had suffered depression but that was no reason to exclude someone from becoming a special constable. Concerns had been raised about X in a criminal intelligence report, but there seemed no suggestion that he was in any way criminal. The claimant said that the Force may be discriminating against X because of his sexuality. The claimant’s evidence was that he was being disciplined because he was perceived as being disloyal to the Force. The Force was attacking him because he was challenging it on behalf of the minorities. Challenging discrimination seemed the right thing to do. The claimant’s evidence was that he had acted in good faith and had not abused his authority because he was open about his concerns and declared his personal interest at all times.[12]Regulation 6 of the Police (Conduct) Regulations 2008 envisaged that the subject of disciplinary proceedings can have a friend appointed to assist (“a police friend”). (Regulation 6 of the Police (Conduct) Regulations 2012 is to the same effect). Chief Superintendent OP of a neighbouring police force occupied that role from November 2011. The defendant Chief Constable accepted that Chief Superintendent OP was of complete integrity and no one in the case questioned that.[13]During the gross misconduct investigation the claimant’s point of contact with the Force was Assistant Chief Officer GH. As explained shortly, the claimant was away on sick leave during most of the period. GH’s appointment to this role was effectively by a process of elimination since the other ACPO officers in the Force were compromised: Assistant Chief Constable E was the investigating officer, Assistant Chief Constable F was a potential witness, Deputy Chief Constable CD would be the decision-maker and the Chief Constable was likely to be involved in any appeal. I accept the evidence of the Force that during the period of the investigation Assistant Chief Officer GH was there as a point of contact for welfare purposes. The claimant’s evidence was that Assistant Chief Officer GH acted and behaved as his line manager. At one point in early January 2012, he actually said he was acting as the claimant’s line manager. Over the following months the claimant and Assistant Chief Officer GH had regular contact with each other, mainly by text. However, GH was not his line manager; his line manager continued to be Assistant Chief Constable F, although because of the claimant’s absence on sick leave that did not have practical consequences.[14]The investigating officer, Assistant Chief Constable E, completed a 56 page report in relation to the Regulation 15 notice. On 25 May 2012, having taken legal advice on the report, Deputy Chief Constable CD wrote to the claimant that as the appropriate authority under the Police (Conduct) Regulations he had decided that the matter should go to a misconduct hearing. Under those Regulations there had to be a fresh and independent determination of whether there was a case to answer. The Regulation 21 notice enclosed set out the case to answer in respect of gross misconduct, namely, that the claimant’s interventions in the Special Constable recruitment process concerning X between 1 September 2010 and 30 November 2011 were in breach of the standards of professional behaviour set out in the Regulations in that his conduct(i) lacked honesty and integrity;(ii) was an abuse of his authority and(iii) was discreditable. The misconduct hearing would be conducted by a panel of three from outside the force from 28 August until 6 September 2012.[15]The Regulation 21 notice having been issued the claimant was no longer under investigation and the process had entered a new phase. On 31 May 2012 the claimant’s legal representatives disputed on his behalf all the allegations. In the solicitor’s Regulation 22 response, the claimant refuted the allegations along the lines advanced in his evidence at trial, referred to earlier in this judgment.

The claimant’s sick leave and search for other jobs

[16]For most of this period the claimant had been on sick leave. He had taken sick leave on 15 December 2011 with a chest infection but from early January because of psychological difficulties. When his GP signed him off sick for a further period in March 2012 he described it as stress and anxiety. Assistant Chief Officer GH informed the other ACPO officers. The claimant told me that he decided to leave the police force during a period in February/March 2012 when he was at a police convalescent home. He met Assistant Chief Officer GH on 20 April 2012 and informed him that he was seeking other employment. His evidence was that during the meeting he asked and GH agreed to keep their conversations confidential. On 23 May he was signed off sick again until 11 June.[17]A member of a police force is entitled while absent on sick leave to full pay for 6 months in any one year period. Thereafter he or she becomes entitled to half pay for 6 months in any one year period. Assistant Chief Officer GH wrote informing the claimant of this on 24 April 2012, and that the six month period would expire on 14 June 2012. The claimant said that he planned to return to work but would take two weeks leave and thus return on 25 June. He was to return for 3 hours a day for 3 days a week and would work on a collaborative project with other forces.[18]When the claimant returned to work on 25 June Assistant Chief Officer GH informed him that his line manager was Assistant Chief Constable F, but that GH would continue to be in touch with him on a fortnightly basis. The following day the Chief Constable emailed GH that he would prefer that the claimant attended chief officer group meetings, as soon as he was ready, because it was a really good way of getting him up to speed with Force issues. Assistance Chief Constable F expressed the same view about a week later. On 27 June Deputy Chief Constable CD requested that those managing the hearing dates for the disciplinary hearing should be as flexible as possible to accommodate the claimant. Chief Superintendent OP, the claimant’s police friend, expressed appreciation.

Force references

[19]Until 2008 the Force had a policy of providing references for officers and staff when leaving which covered the same areas as where the Force sought references for those being recruited. This was illustrated by Policy E3, “Police staff recruitment and selection”, which contained two paragraphs under the heading “Responding to Reference Requests”. In summary, when providing references, Force employees had to ensure that statements were true and accurate and gave a fair representation of the person.[20]In 2009 the Force introduced a template (or standard) reference. The Force were unable to provide any evidence about the background to this change, who was responsible for its introduction or the reasons behind it. The template had the address “HR Services, Human Resources” and read:
“Thank you for your recent letter received requesting a reference for the above. I can confirm that ... Served with [the Force] as a Office/Staff from … to … …. worked as the following during his/her time at [ ]: • • It is not our policy to provide any further information regarding an employee. This reference is given to the addressee in confidence and only for the purpose for which it was requested. It is given in good faith but neither the writer nor [the Force] accepts any responsibility or liability for any loss of damage caused to the addressee or any third party as a result of any reliance being placed on it. Yours sincerely Name HR Services Co-ordinator”
In May 2010 the Force’s Policy E3 was changed to reflect the template letter: in that the paragraph “Responding to reference requests” was deleted. Yours sincerely Name HR Services Co-ordinator”

Name

[21]The template was used for many references the Force wrote after 2009, although it is unable to say how many. These included situations where it was used for departing officers who had allegations or findings of gross misconduct against them. The Force has been able to identify five such occasions. Four involved constables or community support officers. The fifth concerned a civilian employee. One constable resigned, pending a disciplinary hearing for alleged gross misconduct, and was given a template reference. The other constable and the two community support officers were dismissed for gross misconduct and were given template references. Then in 2013, the year following the events in this case, two template references were issued for a Detective Chief Inspector who had received a final written warning for sexual harassment in 2011. He had been discharged from the Force on medical grounds. In none of these cases was a second reference sent or any action taken against those responsible for issuing the template references.[22]The Chief Constable issued Force Orders on 22 July 2012. These stated at the outset that they were confidential to members of the Force; that officers and staff were under a duty to monitor the contents of Force Orders, published on a weekly basis, and that “[t]hese instructions have the effect of an order from the Police Constable”. Part 5 was entitled “The Provision of references and testimonials”. It began that on many occasions the Force received questions about the provision of references and testimonials and, to that end, guidance had been prepared, which was in keeping with the need to ensure that the Force, its officers and staff maintained an independent role, did not show undue favour and discharged their function with integrity and impartiality.[23]As to employment references for those with the Force or previously with the Force, the Force Orders stated that these could only be completed by the Force HR Department and requests should be referred to HR. With regard to personal character references and testimonials, the Force Orders stated that these were permissible but should be completed as a private individual and not on behalf of the Force or the Chief Constable. That had to be stated. In providing such testimonials a member of staff should ensure that it accurately reflected their knowledge of the individual. It would not be appropriate to comment on the performance of a person in their duties as a member of staff since this would be the responsibility of the Force. It would be permissible to describe their personal qualities.[24]There is no evidence that Assistant Chief Officer GH was aware of the Force Order. I accept the evidence of the claimant that he was ignorant of it; he was just returning from an extensive period of sick leave.[25]The Force has been able to find only a few instances where it issued non-template references over the relevant period. The Chief Constable wrote a detailed reference for Deputy Chief Constable CD, supporting a successful application to become the Chief Constable of another police force. Between 2010 and 2012 Assistant Chief Constable GH wrote 5 non-template references where he addressed the questions which potential employers had asked. In these references he commented on the person’s strengths and weaknesses, in light of the reference requests, and sometimes at length. In his evidence the Chief Constable stated that he did not regard any of these references as exceptional. He also accepted that it was within GH’s discretion to write these references. However, he said a reference should not have been given in the claimant’s case because of the exceptional circumstances of his seniority, his disciplinary record in 2009 and the current gross misconduct proceedings, and his job application being to a body with important regulatory functions.[26]The evidence of MN, the head of HR from June 2011, was that the template was generally used in typical situations but that it was not a policy. Not only was this wrong but so was MN’s evidence was that there was no formal policy in the Force about providing references, other than the information communicated in June 2012 in the Force Orders. In his evidence the Chief Constable said that HR had the responsibility for references. He acknowledged that there was no written guidance as to when it was not appropriate to send a standard reference. The Chief Constable’s evidence was that he suspected that he did not become aware of the template until the current litigation. None of the other ACPO officers who gave evidence were aware of the details of how the Force gave references. Mr Beggs QC realistically accepted that the evidence from the Force about policy and practice on references was unimpressive.[27]In late 2012 there was a service agreement with another Force for it to prepare template references. In late 2013, over a year after these events, the Force changed its policy on references, essentially returning to the pre 2009 position. Assistant Constable E gave evidence of one reason for the change, namely to prevent incidents such as the well known case of the police officer sacked from the Metropolitan Police after the death of Ian Tomlinson at the G20 protests in 2009. That officer had previously resigned from the Met before an internal investigation into his misconduct was completed, only to join another force and then return to the Met without proper vetting. These policy developments in 2013 have no relevance to this case.[28]In my view the evidence clearly establishes that the Force adopted a policy or practice from 2009 until late 2013 (a year after these events) to provide template references (except from early 2013 and possibly earlier where a compromise agreement was reached). That was done even in misconduct cases. There was no policy or practice for exceptional cases. Moreover, the Force repeatedly informed the world that it would not disclose personal information, since the template stated that it was not Force policy to provide further information regarding one of its members apart from basic information on positions held and start and finishing dates. Whether the Chief Constable, the other ACPO officers or even MN were personally aware of the policy or practice operated by the HR department – and the evidence demonstrated that they were not – is irrelevant.

The application to the Regulatory Body and the first reference

[29]In the first part of 2012 the claimant made a number of job applications. His application to the Regulatory Body, dated 8 May 2012, at issue in this case, named as referees Assistant Chief Constable F and Assistant Chief Officer GH. In the course of completing the various sections of the Regulatory Body’s application form the claimant set out his role in the Force, his other responsibilities and his regional involvements. Under the appropriate heads he detailed matters such as his training and skills. In the section on “reasons for application” he explained that he felt passionately that members of the public should have the right to complain and believed that the Regulatory Body shared his values and was where he could continue to develop and progress. At the end of the form he declared that information in the form was complete and that for withholding relevant details his application could be rejected or he would be liable to dismissal.[30]The claimant’s evidence before me was that there were no specific sections in the application form, nor had he been asked in his two interviews, for details of his sickness or disciplinary history. No medical report was required and his illness was caused by the way the Force had treated him. Thus he did not volunteer any information on those matters. In any event, he asserted, the information about his sickness and disciplinary record was, in the main, confidential. If he were to provide a full account the confidence of others would be compromised. This was in conflict with what the claimant said in his witness statement where he stated that if he had known the Force would disclose these matters he would have made full disclosure to the Regulatory Body.[31]In his evidence the claimant also said that he could have acted in a more open way but he did not want to disclose that he was gay or his psychological issues. The ongoing disciplinary matter was especially complex and could not be explained in a short period of time. The 2009 disciplinary matter was spent. He had addressed all issues and the Chief Constable had signed off on the action plan as being satisfied. He accepted that as a police officer he had to act with honesty, integrity and openness, but he also had to exercise discretion. He was advised, in part, by Chief Superintendent OP, as well as by his lawyers, that he did not have a duty to disclose these matters to the Regulatory Body.[32]The claimant was informed, on 13 July 2012, that the Regulatory Body would offer him the job. The offer was subject to references being “entirely satisfactory” and the start date was 26 September 2012. On 19 July he contacted the Regulatory Body to request that they defer asking for references until the following week, the reason being that he would like to take the opportunity to inform “my boss” in person at a meeting scheduled for the Monday. “Also, as I have been with the Police for over 23 years there would only be one employer’s reference and that by way of Police Regulations will be a simple certificate of service. I did put two names on the application but the reference request should be directed to [Assistant Chief Officer GH] …” This, of course, was nonsense. Assistant Chief Officer GH was not his boss and never had been: only a few weeks before GH had made clear to him that his line manager was Assistant Chief Constable F. I do not accept his explanation that he regarded anyone above him in rank as his boss. Nor was his assertion of “Police Regulations” close to the mark. Regarding a character reference, the claimant made two proposals, including the Force’s medical officer, whom he said he had known for 16 years.[33]The claimant’s obvious concern had been with what any referees would say. His police friend, Superintendent OP, had met with Assistant Chief Officer GH on 12 June 2012. OP inquired what a Force reference would contain. GH undertook to make inquiries of the HR department. At a meeting sometime in July Assistant Chief Officer GH asked RS, a senior member of the HR department, a general question about references and what information was provided. No individual was mentioned. RS explained the template and its limited information on start and leave dates and positions held. Assistant Chief Officer GH then asked about what happened when someone was under investigation or subject to disciplinary action. RS expressed the view that it was not appropriate to provide that sort of disciplinary information in a reference when the outcome had not yet been established. On 23 July 2012 the claimant and OP met with GH. The claimant informed GH that he had named GH as a referee. GH said that he would provide the Force’s standard reference.[34]There were submissions by Mr Beggs QC for the Chief Constable that the claimant had manipulated Assistant Chief Officer GH to obtain a standard reference. One basis on which I was asked to draw the inference of manipulation was because contact between the claimant and Assistant Chief Officer GH was by text. That suggestion was put paid to by the Deputy Chief Constable, who knew of the texting, had no criticism of it and saw it as GH being supportive of the claimant and wanting to be seen as such during his illness.[35]It would be quite wrong in my judgment to draw an inference of manipulation when the Chief Constable did not call GH as a witness. When matters later blew up GH told the Deputy Chief Constable that he gave the reference because he thought it was in the interests of both the claimant and the Force. There was nothing in the evidence to suggest that Assistant Chief Officer GH was other than experienced and loyal, in which case it is difficult to conceive of his having been manipulated. However, I have no doubt that the claimant orchestrated matters over a period and employed his interpersonal skills to ensure that he obtained a reference which did not contain damaging information. He well knew that if the Chief Constable or ACPO officers were asked they would not have given a reference or if they did would it contain more information than in the template.[36]Assistant Chief Constable F’s evidence was that at some point in July Assistant Chief Officer GH had told him that the claimant had asked him to be a referee, possibly to give a reference. He said that GH should take advice. In his evidence he acknowledged that there were good reasons for the claimant to approach Assistant Chief Officer GH and not him for a reference. One factor was that he was a possible witness in the claimant’s misconduct hearing. Neither GH nor Assistant Chief Constable F informed the other ACPO officers in the Force about GH acting as the claimant’s referee or giving a reference.[37]On 24 July 2012 the Regulatory Body asked the claimant if it was now appropriate to contact the referees. The following day he emailed that the referees could now be approached, Assistant Chief Officer GH and the Force’s medical officer. The claimant added:
“I know it is stating the obvious but could they both be marked Private & Confidential”
. That same day, 24 July, the claimant met Assistant Chief Constable F, his line manager, who had been trying to meet with him for some time. The claimant told him that he had a possible job offer and complained at length about his treatment by the Force.[38]On 26 July 2012 the Regulatory Body emailed Assistant Chief Officer GH with a reference request explaining that the claimant had given his name as a referee and asking for the following information:(1) job title;(2) date of employment;(3) reason for leaving;(4) outline of role and responsibilities;(5) number of days lost to absence in the last 12 months of employment;(6) periods of parental leave in last 12 months;(7) “any further comments you may feel relevant”.[39]That same afternoon, 26 July, Assistant Chief Officer GH emailed RS in HR, asking for the standard information in respect of a reference. The email named the claimant as the subject of the reference. RS’s evidence was that he was content with the advice he had given previously since he thought the claimant was still under investigation and, in any event, he did not know the details. Assistant Chief Officer GH texted the claimant that he had received the request: the Regulatory Body was “asking a series of questions (nothing contentious) but I will provide standard info”. Could he assume that the claimant had received a job offer? The claimant replied late afternoon by text that he had been offered a job, that he had wanted to tell him at the Monday meeting, “but of course wasn’t sure …” He would like to get to the point when the Regulatory Body could confirm the offer so he was then in a position to submit his resignation, once he knew it had accepted the reference.[40]Completion and dispatch of the reference is evidenced by a series of emails. Just after 6.30pm RS in HR emailed Assistant Chief Officer GH “to confirm that as an organisation in respect of a reference, HR only provided the start date, the leave date [and] the position held in the organisation.” RS added:
“It is advisable for all references to be provided by HR”
. Assistant Chief Officer GH thanked RS, stating that “in this particular case I will provide the reference”, but that he wanted to use the “usual” letter so could a copy be forwarded. The next morning, 27 July, RS replied: “Sure, please find attached the template reference letter as requested”.[41]Meanwhile, Assistant Chief Officer GH had had his staff officer find the basic information on the claimant, i.e. start and leave dates and positions held. Just after 1pm on 27 July Assistant Chief Officer GH sent to the Regulatory Body “the standard reference information provided by the Force for [the claimant]”. A minute later he sent a copy to RS asking RS to place it on the claimant’s personal file. RS confirmed that he had done so. Within an hour of the reference being dispatched the Regulatory Body acknowledged receipt. Assistant Chief Office GH had already texted the claimant that he had sent the standard reference, and a bit later that the Regulatory Body had received it.[42]In evidence RS said that he gave no further thought to the matter until there were inquiries about it on 13 August. With the information he then had the reference had not been of concern. That is inconsistent with other evidence that he felt he could not resist Assistant Chief Officer GH’s request for the template. RS’s evidence was that broadly speaking, the Force Orders on references had been followed in that Assistant Chief Officer GH had made inquiries of the HR department through him. The practice was to issue the template and, given that the claimant had not yet had a hearing of his disciplinary matters, it would be unfair to mention them.

The claimant’s resignation and the second reference

[43]On 13 August Deputy Chief Constable CD discovered that Assistant Chief Officer GH had sent the reference to the Regulatory Body and its contents. He was incandescent. A Gold Group was formed to discuss the course the Force should take. Deputy Chief Constable CD consulted the national ACPO lead for misconduct and a former colleague experienced in conduct matters at another police force. There were also informal discussions among senior officers of the Force, including the Chief Constable.[44]At a meeting with the Assistant Chief Officer F on 13 August the claimant told him of the job offer and that he would resign from the Force. He sent his resignation letter on 15 August 2012. Under regulation 10 of the Police (Conduct) Regulations since he was not suspended the Force could not refuse to accept it. He requested that since he had not been able to take his annual leave during his illness could it be paid to him on his departure, which would be 25 September. He also formally requested confirmation of the Force’s decision of the position regarding the forthcoming disciplinary hearing, which was to begin on 28 August. In a sentence inserted by the claimant’s solicitor, but on his instructions, the letter read:
“[I]t is my hope that common sense will prevail and that you will confirm by return that in view of my notice there will be no such hearing”
. The letter continued:
“I wish to briefly inform you of my reasons for leaving. I have enjoyed a long and successful career with the police service. I have risen to the rank of Chief Superintendent and was looking forward to progressing my career to join a command team in the near future. I had been preparing for this until recent actions by the Force intervened. I am resigning my position because I believe that I have been victimised by [the Force] for raising matters with the Force relating to the Equality Act and the Data Protection Act which were potentially adverse to the Force. A number of the disciplinary charges I am facing are clear examples of victimisation and I am unwilling to remain in the employ of a police force or police service that could so blatantly discriminate against one of its officers. I have no doubt whatsoever that were I to appear before a disciplinary panel I would be cleared of any wrongdoing given the overwhelming evidence of prejudice by the Force and the lack of evidence against me. Yet were the disciplinary panel to clear me, I would be resigning nonetheless. I am unwilling to work for an organisation that could treat its members in such a way and continue to do so unchecked despite my legal advisors and I raising points of serious prejudice on several occasions. I have been actively seeking alternative employment for a number of weeks as I resolved to resign my position when I realised that the Force intended to press ahead with discriminatory disciplinary action, and as you probably know I have secured a position with [the Regulatory Body]. I would not have taken the decision to leave the police service were it not for the actions of the Force as outlined above.”
[45]At a Gold Group meeting on 16 August those attending were aware that the claimant was likely to resign in the next few days. That, it was noted, could not be prevented, since he was not suspended. The superintendent in charge of the professional standards department noted that the claimant might wish to resign with assurances around his reference. The question was raised as to how others had been treated in the past, a point returned to at other Gold Group meetings.[46]At a meeting of the Gold Group on 20 August 2012 four options were considered: to tell the Regulatory Body but not to hold the disciplinary hearing: to tell the Regulatory Body and to hold the hearing; not to tell the Regulatory Body and not to hold the hearing; and not to tell the Regulatory Body but to hold the hearing. The advantages and disadvantages of each of these options was canvassed. The first options involved informing the claimant that the reference would be “corrected”. Deputy Chief Constable CD noted that if told the Regulatory Body may withdraw the job offer. The superintendent in charge of professional standards said that it was important to treat the claimant as with any other case.[47]MN told the Gold Group that the Force would put pure fact, for example that the claimant had resigned before a misconduct hearing. (In that, of course, MN was not only mistaken but also misled the Deputy Chief Constable about what the Force normally did, although this may have been the approach of other police forces where MN had worked). As to the claimant possibly withdrawing his resignation, since he continued in post after the hearing until 25 September, Deputy Chief Constable CD indicated that that he would not allow that. (In theory that was a decision for the Chief Constable to make). MN’s evidence was that he had advised Deputy Chief Constable CD against cancelling the hearing, but that advice was rejected. Leaving the claimant without either job would, in MN’s view, be unsatisfactory.[48]Deputy Chief Constable CD had accepted the claimant’s resignation on 17 August 2012. A further letter of 21 August 2012 rejected the claimant’s allegation of victimisation as misplaced and without foundation. The inquiry into his conduct was necessary and properly conducted and there were sufficient grounds for a charge of gross misconduct. However, CD added, in light of the claimant’s resignation it had been decided not to proceed and the imminent hearing would be stayed. The claimant was no longer required to attend work during the notice period.[49]The 21 August letter did not give any indication that consideration was being given to disclosing additional information to the Regulatory Body. In evidence Deputy Chief Constable CD accepted that the claimant may have taken a different course if he had known that a second reference was being contemplated. Staying the disciplinary hearing denied him the opportunity of ever resolving the allegations levelled at him. In advising a police force now about this type of decision, CD accepted that fairness demanded that the officer have a chance to have the hearing take place.[50]The Force tried on 2 September 2012 to arrange a short meeting between the claimant and MN, head of human resources. The claimant refused to attend. In his evidence MN raised the possibility of the claimant at the meeting withdrawing his resignation but conceded that nothing might have come of it. No meeting ever took place. Nor did the claimant, or those acting on his behalf, seek to withdraw the resignation.[51]On 3 September 2012, the Force wrote to the claimant that the Chief Constable was aware that the Regulatory Body had sought a reference which had asked seven questions but that Assistant Chief Constable GH’s reply had not answered some of them. The reply had been reviewed, including by counsel:
“We are driven to conclude we have to furnish a ‘corrected’ response [to] [the Regulatory Body], a copy of which is enclosed …” (“the second reference”). The key passages of the second reference were as follows: “3. Reason for leaving. [the claimant] submitted his resignation on 15 August 2012 to be effective on 29 September 2012. … 5. Absence. In year 21 August 2011 to August 2012 the total level of recorded absence for AB amounts to 168 days, divided into two periods (15 December 2011 – 19 February 2012 - 67 days: 20 February to 2 March 2012 recuperative period …: 3rd March 2012 to 11 June 2012 - 101 days. … 7. Further comments. [The claimant’s] resignation letter pre-dated by some 13 days a gross misconduct hearing at which he was due to appear to face allegations of (i) lack of honesty and integrity (ii) discreditable conduct and (iii) abuse of authority in relation to a recruitment issue. It is right to record that he strenuously denied those allegations. In the light of his resignation the misconduct hearing has been stayed as it is not in the public interest to incur the cost of a hearing when the officer concerned has already resigned, albeit his final date of service post-dating the hearing. … The contents and the requirement for a second reference have been shared with [the claimant] and his legal representative.”
[52]In a lengthy letter before claim dated 10 September 2012, the claimant’s solicitors served notice pursuant to section 10 of the Data Protection Act 1998, i.e. that sending the second reference would be unlawful, to which the Force responded. Both private and public law claims were issued on 17 September 2012. Preparations were made for an application for an interim injunction to prevent the Force sending the second reference. These became unnecessary when on 19 September 2012 the Force gave an undertaking not to do so until trial.[53]The claimant ended with the Force and began work with the Regulatory Body on 26 September 2012. He has been with it ever since.

III A DUTY TO SEND THE SECOND REFERENCE

[54]The Chief Constable contends that he is under a legal duty to the Regulatory Body – a public and regulatory organization - as regards the reference about the claimant. He is subject to more onerous duties than would ordinarily be the case. A reference having already been given, and responsibility to the Regulatory Body having been assumed, it was incumbent on him to take further steps since the content of that first reference was inconsistent with the duty he owed to the Regulatory Body and with the overriding public interest in which he is required to act. The reference which Assistant Chief Officer GH sent was incomplete and misleading. The claimant’s situation was wholly exceptional and it fell outside any policy or standard practice the Chief Constable could be said to have. The duty, the Chief Constable contends, obliged him to provide a reference which was true, accurate, and fair to the recipient, and is not misleading. That required him to respond to the specific questions asked and not to omit information which he would reasonably be expected to disclose to a fellow regulator.

The private law duty of care

[55]The first way Mr Beggs QC for the Chief Constable puts the case is in reliance on Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The Chief Constable’s duty in giving a reference is to exercise reasonable care and skill in its preparation and to give a reference which is true, accurate and fair. The exceptional circumstances here include the position of the claimant as a senior police officer and his disciplinary record, the Chief Officer’s role and the Force’s status as a public body, coupled with the Regulatory Body’s position as a public and regulatory body. All these have a bearing on what information is relevant to be included in a reference. The Chief Constable’s duty to the Regulatory Body is to disclose the claimant’s disciplinary record.[56]For a duty of care to arise under Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 in this context there must be an assumption of responsibility. That duty in the case of a reference is owed to both the recipient and the subject of the reference: Spring v Guardian Assurance PGH [1995] AC 296, at 336B, per Lord Slynn, at 346H, per Lord Woolf. If there is an assumption of responsibility, the giver of the reference must take reasonable care both as to the factual content and as to the opinions expressed in it. In Spring Lord Wolf referred to the public policy that references should be full and frank: 352A. (See also 309F, 323B, 329D-H, 376B-C, 351H). The honest but negligent misrepresentation constitutes a breach of duty. Moreover, the Spring duty entails that a reference must be fair in its overall balance and the opinions expressed: Cox v Sun Alliance Life Ltd [2001] EWCA Civ 649, [81]. I take that to be fairness to both the subject and recipient of the reference.[57]If the discrete components of a reference are factually correct it may yet give an unfair or misleading impression overall: Bartholomew v London Borough of Hackney[1999] IRLR 246, [22]. A duty to provide information arises where, without it, a relevant statement made within the context of an assumption of responsibility is misleading: Green v Royal Bank of Scotland [2012] EWCA Civ 1197, [17]. In Kidd v Axa Equity and Law Life Assurance [2000] IRLR 301, Burton J offered a useful categorisation of the cases:
“[14] In the course of argument, I called a Spring [1994] IRLR 460 case, based upon the negligent provision of false information, a stage one case, a Bartholomew [1999] IRLR 246 case, based upon the negligent provision of misleading information, a stage two case, and the case referred to by Walker LJ in paragraph 22 of Bartholomew [1999] IRLR 246, based upon an assertion of a duty of care to give a full and comprehensive reference, whose existence in that case the Court of Appeal did not accept, a stage three case.”
[58]In Bartholomew v London Borough of Hackney the reference Hackney Council gave to Richmond-upon-Thames London Borough Council had not answered certain specific questions asked but had mentioned the claimant’s suspension from work and the unproven (and never likely to be adjudicated upon) disciplinary action for gross misconduct, which had lapsed automatically on his departure. He sued Hackney Council on the basis that although the reference was accurate it was unfair and in breach of duty. The Court of Appeal held that judging the matter in the round there was no breach of duty. Walker LJ (with whom Butler-Sloss LJ agreed) said: “It does seem to me necessary to look at the realities of the situation. What in this situation was Hackney to do in order to fulfil its duty to provide a reference, and a fair reference, to Mr Bartholomew without being unfair ... to the recipient of the reference? The terms of the letter from Richmond-upon-Thames ... suggest that the letter was in standard form and that in turn suggests that Mr Bartholomew had told them little or nothing about the background to the matter... Had it [Hackney] omitted all reference to the suspension and the disciplinary enquiry Hackney might well, it seems to me, have considered itself as failing in its civil duty to other local authorities, their ratepayers and clients. That must be true even though the charges against Mr Bartholomew were unproven and now, as I have said, are unlikely ever to be adjudicated on”: [21].[59]To similar effect is Jackson vLiverpool City Council[2011] IRLR 1009 where, a short while after he left Liverpool City Council for Sefton Borough Council, the claimant’s team manager identified problems with his work. Since he was no longer with Liverpool City Council, these were not investigated. A further reference request was made a year later by Sefton Borough Council, since the claimant was applying for a different role within that council. The new reference identified the concerns but Liverpool made clear that they had not been investigated. The first instance judge concluded that the reference was unfair, but the Court of Appeal held that there had been no breach of Liverpool’s duty. Leveson LJ (with whom Maurice Kay and Richards LJJ agreed) said that he could not see how the employer could have honestly answered the questions posed by the reference without identifying the concerns, but equally it had underlined that there had been no formal investigation. The result was that the new reference did not answer the question in either a positive or a negative manner. Overall, Leveson LJ concluded, the reference was fair. “It was then a matter for Sefton whether it wished to raise these issues with Mr. Jackson to give him a chance to deal with them…”: [32].[60]In what the first reference in this case said about the claimant it misrepresented the true position and was not fair to the Regulatory Body. It was a misleading information case in the categories Burton J identified in Kidd v Axa Equity and Law Life Assurance. Unlike the position in Bartholomew v London Borough of Hackney, the reference here omitted to mention the disciplinary matters being brought against the claimant and set out in the Regulation 21 notice, despite the Regulatory Body’s questions. That these were unproven allegations did not mean that they could not be mentioned: Bartholomew and Jackson are authority for that. This is why I reject Mr Lock QC’s submission that the first reference was accurate and that is enough: it was accurate as far as it went, but as regards information about the claimant it gave a misleading impression. The information in the second reference would correct that misleading impression.[61]That does not mean that there was a Hedley Byrne duty of care obliging the Chief Constable to send the second reference. In this case the reference which Assistant Chief Officer GH sent was the template reference, with its clear statement that it was not the Force’s policy to provide any further information, and with the additional disclaimer clause that neither GH nor the Force “accepts any responsibility or liability for any loss of damage caused … as a result of any reliance being place on it.” The Chief Constable contends that despite this the claimant’s situation was so wholly exceptional for the reasons mentioned so that(1) it fell outside any policy he could be said to have and(2) the disclaimer did not apply.[62]As regards assumption of responsibility in Hedley Byrne, the issue is what the reasonable recipient of the reference would take it to mean. In my judgment the reasonable recipient of this reference would read it to mean that firstly, the Force’s policy was to provide only basic information and secondly, that the Force through Assistant Chief Officer GH was disclaiming any assumption of responsibility in relation to the giving of the reference and the accuracy of the basic information provided. As regards the first aspect, this meant that when read as a whole the reference was not misleading. Nor would the recipient understand that there was any category of exceptional cases. If a recipient like the Regulatory Body wanted additional information it would need to press the Chief Constable for a special reference. Secondly, as in Hedley Byrne itself, a duty of care does not arise if the reference giver indicates that no assumption of responsibility is being accepted and therefore no duty assumed. That is what the reference here clearly said. Thus I conclude that there was no legal duty based on the Hedley Byrne line of authority for the defendant Chief Constable to send the second reference.

The public law duty

[63]The second way Mr Beggs QC advances his case on duty is by reference to the Chief Constable’s more onerous obligation as compared with an ordinary, private-sector employer. In his submission this arises in part from the standards of professional behaviour set out in the Police (Conduct) Regulations and other guidance and codes, in part from the Chief Constable’s position as the holder of a public office and in part by virtue of the Regulatory Body’s status as a public regulatory body. The Chief Constable’s duty obliges him to advise the Regulatory Body of the serious misconduct proceedings against the claimant.[64]Made under the Police Act 1996, the Police (Conduct) Regulations 2008 and 2012 contain a Schedule setting out standards of professional behaviour. These govern the conduct of members of the police force: s. 50(2)(e) of the Act. Paragraph 1 of the Schedule provides under the professional standard “Honesty and Integrity” the following:
“Police officers are honest, act with integrity and do not compromise or abuse their position.”
[65]Home Office guidance on standards of professional behaviour (“the guidance”), has been issued under section 87(1) of the Police Act 1996. The police are under a duty to have regard to it: s. 87(3). The current guidance was revised in November 2012, states that public confidence in the police depends on officers demonstrating the highest level of personal and professional standards of behaviour. The standards set out in the guidance are said to reflect the expectations that the police service and the public have of how officers should behave. The standards do not restrict officers’ discretion but define the parameters of conduct within which it should be exercised. Those entrusted to supervise and manage others are said to be role models for delivering a professional, impartial and effective policing service and should lead by example.[66]As well as restating paragraph 1 of the Schedule in the Police (Conduct) Regulations, the guidance provides that officers should be open and truthful in their dealings with the public and their colleagues, so that confidence in the police is secured and maintained. Moreover, officers should not knowingly make any false, misleading or inaccurate oral or written statements or entries in any record or document kept or made in connection with any police activity. The standards apply not only to professional but also to personal behaviour.[67]The standards of professional behaviour in the Police (Conduct) Regulations and the guidance are underpinned by codes of ethics. The Association of Chief Police Officers has adopted the Nolan principles as its code: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. The College of Policing has published a code of ethics which builds on these principles. The code states that the principles should inform every decision and action across policing. The principles should be more than words on a page and must become embedded in the way police professionals think and behave. Under the code chief officers must, inter alia, show moral courage to do the right thing even in the face of criticism, and must promote openness and transparency within policing and to the public. In spelling out the standard of honesty and integrity, the code of ethics gives as one example “not knowingly making a false, misleading or inaccurate oral or written statement in any professional context”.[68]Mr Beggs QC who referred to the standards for references laid down by CIPD, the professional body for human resources and development. CIPD accepts that employers can have a policy of providing a bare minimum reference but that ideally this should be applied uniformly to all employees and not be used as a means of conceding something serious. Before giving a reference, an employee should ensure it is not only factually accurate but also fair and not misleading in the overall impression it gives to the recipient. A reference should also be prepared by the individual’s line manager who has been trained in preparing references and has all the relevant information regarding the individual. “A former employer will probably be exposed to a claim from a subsequent employer if there is a serious issue of gross misconduct which the former employer has omitted to mention. If an employee leaves with serious questions hanging over their performance or conduct, or if these concerns arise after the employee has left, the employer should disclose the issues accurately to any prospective new employer. However, the employer should also be careful to make absolutely clear if the allegations have, or have not, been investigated. The main point is that the reference must be true, accurate and fair in substance and therefore must mention the negative issue, for example, the gross misconduct or events giving rise to a disciplinary process in a way which is overall accurate and correct.”[69]In my judgment, given that the professional standards in the Police (Conduct) Regulations are made pursuant to statute, they form the basis of a series of public law duties imposed on the Chief Constable (and indeed all police officers). These public law duties are separate and distinct from the private law duty of care to which the Chief Constable would ordinarily be subject. Public law duties like these are given content in various ways. They can be informed by relevant private law standards just as any statute can be interpreted against the backdrop of the common law. Moreover, their interpretation may be informed by relevant material such as in this case the guidance made pursuant to a statutory power and the code of ethics of the College of Policing. The duties in the Police (Conduct) Regulations are imposed on the Chief Constable by legislation and the court’s function is to give them content.[70]Mr Lock QC submits that no public law duties can be derived from the professional standards in the Police (Conduct) Regulations. In part he invokes the general principle of breach of statutory duty, where outside the health and safety context there has long been a reluctance to construct duties owed in private law on the back of regulatory standards. The relevant statute itself might preclude the possibility of a public and private law duty being imposed: see Leach v Chief Constable of Gloucestershire [1999] 1 WLR 1421. But with respect the issue is not whether, as it was in Leach, an individual can sue in private law (in that case, relying part on the codes made under the Police and Criminal Evidence Act 1984). Here we are in the realm of public law duties owed to the general public requiring public officials to act in a certain manner and potentially enforceable by the range of discretionary public law remedies.[71]The real issue in this case is the meaning of the public law duty of honesty and integrity imposed on the Chief Constable in the context of providing a reference and the legal ramifications of that for the Chief Constable in this case sending the second reference. In my judgment that standard of honesty and integrity is appropriately informed here by the common law standard, which requires that references should be full and frank and not give a misleading or unfair impression, coupled with the guidance and code of ethics which deprecate knowingly making false, misleading or inaccurate oral or written statements. To my mind the Chief Constable was obliged by his duty to act with honesty and integrity not to give a standard reference for the recipient. Something more was demanded. In this case the Chief Constable was prima facie under a duty to supply the Regulatory Body at the least with the information about disciplinary matters in the second reference.

IV THE BARRIERS TO SENDING THE SECOND REFERENCE

[72]If as I have concluded the Chief Constable was under a public law duty that does not mean that he is free to send the second reference. First, dissemination of the information in the second reference is subject to control under the Data Protection Act 1998 (“the 1988 Act”). Secondly, the Chief Constable must exercise his public law duties in accordance with public law principles such as the principle of protecting legitimate expectations.

Data Protection principles

[73]There is no dispute that the data which the Chief Constable proposes to send in the second reference is personal data under the 1998 Act and that he as a data controller has to “process” that data lawfully. Processing includes disclosure of data: s. 1(1). As a data controller the Chief Constable is obliged in processing data to comply with the data protection principles set out in the Act: see section 4(4) of the 1998 Act. The first data protection principle is as follows:
“Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless – (a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.”
Thus if the Chief Constable is to disclose data it must be done (1) fairly; (2) lawfully; (3) to meet at least one of the conditions in Schedule 2; and (4) in the case of sensitive data, to meet at least one of the conditions in Schedule 3.[74]Sensitive personal data is defined in section 2 of the 1998 Act and would include the claimant’s illness record: s. 2(e). At the trial the main focus was on the disclosure of the disciplinary allegations made against the claimant. No case was advanced by the Chief Constable that a condition in Schedule 3 was met. Thus I cannot find that the details about the claimant’s sickness record, which the Chief Constable proposes to provide to the Regulatory Body in the second reference, can lawfully be disclosed.[75]That leaves disclosure of the disciplinary matters. First, disclosure of these must under the first data protection principle be fair. There is no definition of fairness in the 1998 Act. The Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, to which the 1998 Act gives effect, contains a reference to protecting privacy rights, as recognised in article 8 of the European Convention on Human Rights and in general principles of EU law: recital 10. However, I cannot accept Mr Lock QC’s submission that the duty of fairness under the Directive and the 1998 Act is a duty to be fair primarily to the data subject. The rights to private and family life in Article 8 are subject to the countervailing public interests set out in Article 8(2). So it is here: assessing fairness involves a balancing of the interests of the data subject in non-disclosure against the public interest in disclosure.[76]In submitting that it was fair to send the second reference Mr Beggs QC referred to what at one point he described as the claimant’s own culpability. First, the claimant failed to inform the Regulatory Body, at his own initiative, of the disciplinary proceedings. There was no reason that he could not do that in context, giving his side of the story. Instead he proceeded in an underhand way. Secondly, if I rejected the notion of manipulation of Assistant Chief Constable GH, Mr Beggs QC submitted that at the least the claimant had engaged in a campaign of sophisticated and subtle orchestration to ensure that he obtained a favourable reference from LC. The claimant well knew that, given the 2009 finding and the current disciplinary proceedings, if he approached any of the ACPO officers he would not have received the same response. If they had given a reference it would have been along the lines of the second reference.[77]In my view the claimant’s behaviour with his job application to the Regulatory Body did not exhibit the honesty and integrity demanded by the Police (Conduct) Regulations, nor did it meet the standards set out in the Home Office guidance and the Police College ethical code. The excuse he gave to me in evidence about necessarily breaching the confidences of others were he to be frank with the Regulatory Body about the disciplinary proceedings was palpable nonsense. The claimant’s evidence was at times evasive and not a true explanation for his behaviour. In being frank with the Regulatory Body he could have waived confidentiality in relation to himself; he could have juxtaposed his good record before 2009 with what happened after; he could have put his side of the story, summarised in his resignation letter; and he could have deployed the favourable legal advice he said he had received about the outcome of the misconduct proceedings. I can only conclude that he did not do any of this because he was concerned that it would not wash.[78]However, I am not persuaded that as a matter of law fairness in the first data protection principle entails too wide ranging an inquiry into the behaviour of the data subject and antecedent events leading to the data controller’s decision to disclose. Not only would that type of inquiry lead a court into unchartered territory but it would render redundant some of the legitimizing conditions for disclosure set out in Schedule 2, which refer to public interest considerations. The focus must be on fairness in the immediate decision to disclose the data. In this case the factors making it fair to disclose the information were the public interest in full and frank references, especially the duty of the police service properly to inform other police forces and other regulatory bodies of the person they are seeking to employ. To disclose the information in the second reference would patently have been fair to the Regulatory Body, so it could make a rounded assessment of the claimant, especially given his non-disclosure during the application process.[79]On the one side of the fairness balance in this case is that disclosing the disciplinary matters would be in breach of Assistant Chief Officer GH’s undertaking to provide a standard reference, with its very limited information. It would also be contrary to the Force’s policy and what it routinely did, even in cases of gross misconduct. But what in my view is determinative, and tips the balance of fairness in this case in favour of the claimant, is that he changed his position by resigning from the Force and requesting it to discontinue the disciplinary proceedings, before knowing that the Chief Constable intended to send the second reference. That second reference threatened the job which he had accepted with the Regulatory Body. It is unrealistic to think that the claimant could have taken steps to reverse his resignation in the few weeks before it would take effect. Deputy Chief Constable CD for one had indicated that he would not allow it. The reality was that the claimant was in an invidious position, where in reliance on what the Force through GH had said and done, he was deprived of the opportunity to reinstate the disciplinary proceedings and to fight the allegations against him. This substantive unfairness for the claimant was coupled with the procedural unfairness in the decision to send the second reference without giving him the opportunity to make representations against that course of action. Asking him to comment on its terms after the final decision to send the second reference was too little, too late.[80]I am fortified in my conclusion that it would be unfair for the Force to send the second reference by the evidence of its own witnesses. The Chief Constable appeared to accept with hindsight that it would have been fairer not to have decided that the claimant could not withdraw his resignation. Deputy Chief Constable CD accepted that it would have been fairer to have asked the claimant for his views on an informed basis before he cancelled the disciplinary hearing. Most clearly MN’s evidence was that leaving the claimant without either job was deeply unsatisfactory and that he advised against cancelling the disciplinary hearing but the Deputy Chief Constable did not accept his advice. The evidence also points to the Deputy Chief Constable receiving misleading advice at the Gold Group meetings as to the Force’s practice. The superintendent in charge of professional standards rightly raised the issue of ensuring that the claimant should be treated consistently with other cases, but MN unintentionally misled the Gold Group meeting by saying that the detail about misconduct proceedings would normally be included in a standard reference. Moreover, no consideration seems to have been given at the Gold Group meetings that sending the second reference would be contrary to Assistant Chief Officer GH’s undertaking.[81]Since on balance it would be unfair to disclose the second reference, there is no need for me to deal in detail with other aspects of the data protection claim. Suffice to say that earlier in the judgment I held that disclosure would be lawful, so the second condition would be satisfied. Thirdly, disclosure would satisfy Condition 3 in Schedule 2 which reads:
“The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.”
Since I have held that there was a public law duty on the Chief Constable under the Police (Conduct) Regulations to provide a fuller reference than the first reference, that condition is applicable.[82]Mr Lock QC submits that unless condition 3 applies the section 10 notice deprives the Chief Constable of his right to take advantage of it. Section 10(1) reads as follows:
“(1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons – (a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another and (b) that damage or distress is or would be unwarranted.”
However, section 10(2)(a) of the Act provides that subsection (1) does not apply in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, i.e. including condition 3.[83]The claimant contends that the Chief Constable cannot take advantage of this subsection to deprive the section 10(1) notice of force because the Chief Constable has not complied with section 10(3). That provides:
“(3) The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice – (a) stating that he has complied or intends to comply with the data subject notice, or (b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.”
The claimant relies on the words “to any extent” in section 10(3) so that if the Chief Constable had wished to challenge whether the section 10(1) notice was justified, on any basis other than that conditions 1 to 4 were satisfied, he was obliged to set out his reasons in his written response. The Chief Constable served a notice under section 10(3) but did not address whether the claimant would be likely to suffer substantial damage or distress by the sending of the second reference nor the issue of whether the damage or distress was unwarranted.[84]In my view there is no warrant in the Act for reading section 10(3) as giving a data controller a single chance to respond to a section 10(1) notice to raise any specific reasons why the notice is alleged to be unjustified. Nor is it a matter of enabling data subjects to know the case they must meet. Where the data controller declines to comply with the claimant’s objection in the section 10(1) notice the issue falls to be decided by the court and all aspects can be considered at that stage: s. 10(4). The data subject must demonstrate that the grounds of his objection are made out before the data controller is obliged to comply.[85]I must therefore consider under section 10(1) whether the proposed processing is likely to cause the claimant substantial damage or distress and whether such damage or distress would be unwarranted. Guidance from the Information Commissioner refers to the right to prevent processing in the Act and comments:
“Although this may give the impression that an individual can simply demand than an organisation stops processing personal data about them, or stops processing it in a particular way, the right is often overstated. In practice, it is much more limited.”
There is a need to balance the reasons for the processing, such as the rights and interests of the data controller, third parties and the public, against the grounds of objection from the data subject. To an extent that the court considers the section 10(1) notice to be justified it “may order [the data controller] to take such steps for complying with the notice (or for complying with it to that extent) as the court sees fit”: section 10(4).[86]In this case the substantial damage which would result to the claimant if the second reference is sent is obvious: he would most likely lose his employment with the Regulatory Body. Sending the second reference would be likely to cause him distress for the same reason and because, at best, it would involve a distressing period of uncertainty and the need to explain the background and de facto having to disclose his sexuality. Given the factors I have already considered about the unfairness of sending the second reference, it seems to me that the claimant has also established that it would be unwarranted.

The claimant’s legitimate expectation

[87]A legitimate expectation may arise either from the existence of a promise or regular practice which a claimant can reasonably expect to continue: Council of Civil Service Unions and Others v Minister for the Civil Service [1985] AC 374, 401B, per Lord Fraser. Laws LJ has said that in legitimate expectation cases, whether substantive or procedural, the practical questions are to what has the public authority by promise or practice committed itself; whether the authority has acted or proposed to act unlawfully in relation to its commitment; and what the court should do: R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237, [19]. In obiter remarks in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, Laws LJ said that the standard of review which the court should adopt when a public body seeks to resile from its previous promise is that of proportionality. Good administration requiring public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances: [68].[88]In this case Assistant Chief Officer GH undertook to the claimant that he would provide the Regulatory Body with the Force’s standard reference in relation to his job offer. In my view there can be no issue about Assistant Chief Officer GH’s authority to take this course. The Chief Constable accepted in his evidence that he had the authority to write the five non-template references she had during 2010-2012 and that none of them were exceptional. In the claimant’s case he accepted that GH had acted in good faith but questioned his judgment in doing so given the exceptional nature of the case. Assistant Chief Constable F knew that the claimant had approached Assistant Chief Officer GH for a reference and acknowledged that there were good reasons for him to do so.[89]Moreover, Assistant Chief Officer GH spoke to RS in the HR department about the reference, and RS provided the template knowing that Assistant Chief Officer GH would use it for the claimant. That to my mind means that the first reference was given in accordance with the 2012 Force Orders; the matter had gone to HR as they required. In any event, whatever Assistant Chief Officer GH’s actual authority to agree to send the template reference, given his position he had apparent authority to do so. So there was an undertaking to give the Force’s standard reference by someone with authority to do so: see R (Flanagan) v South Bucks DC [2002] 1 WLR 2601, [17].[90]The Chief Constable appears to accept that the use of the template was at least regular practice, yet suggests that the claimant should have known that it would not apply in his case. The Chief Constable had not pronounced any exceptions to giving standard references so I can see no possible foundation to the suggestion that it should be known that he would wish to depart from this practice in some undefined category of exceptional case. So there was a regular practice – indeed a policy – to provide a template reference.[91]In my judgment Mr Lock QC is correct in his submission that the claimant was entitled to rely on the Force’s undertaking (through GH) to provide a standard reference backed up by its policy to that effect. Prima facie it is difficult to conceive that these do not give rise to a legitimate expectation. The claimant then acted to his potential detriment in reliance on the undertaking that only the standard reference would be provided. The issue thus becomes whether the Chief Constable was permitted to depart from the undertaking or was bound by it. In R (Nadarajah) Laws LJ said that where a promise is given to an individual or a specific group overriding a legitimate expectation is more likely to be harder to justify: [69]. The Court of Appeal in R (Coughlan) v North and East Devon Health Authority [2001] QC 213 explained that in balancing the different factors a court needs to ensure fairness to the individual: [70].[92]In this case the claimant was prima facie entitled to expect that GH’s undertaking backed by Force policy would be applied to him when any decision fell to be taken as to what reference would be provided. There is the countervailing public interest against upholding his legitimate expectation: the need to inform the Regulatory Body of his disciplinary background by sending the second reference. For the reasons already canvassed when considering fairness in the data protection context, the proportionate outcome, is that his legitimate expectation should not be overridden in the special circumstances of this case.

V CONCLUSION

[93]Maintaining public confidence in police forces and individual police officers is a legally recognised public interest: see R (Chief Constable of Dorset) v Police Appeals Tribunal [2012] EWCA Civ 1047, [21], per Maurice Kay LJ (see also Burnett J at first instance: [2011] EWHC 3366 (Admin), [19]-[22]). If the police are not accountable for improper behaviour public confidence is eroded: see R (Green) v Police Complaints Authority [2004] 1 WLR 725, [78], per Lord Carswell. As laid down in the Police (Conduct) Regulations, underlined by the Home Office Guidance and College of Policing ethical codes, the police are held to high standards of honesty and integrity. My conclusion is that in this case the public law duty of honesty and integrity would ordinarily have demanded that the Chief Constable send the Regulatory Body something more than the anodyne reference about the claimant the Force through Assistant Chief Officer GH sent on his behalf. The Chief Constable took a principled stance to remedy the situation by his decision to send the second reference, consistent with his public law duty. The second reference letter is factual, neutral, and fairly records the claimant’s response to the disciplinary allegations in a manner consistent with the authorities canvassed earlier, Bartholomew and Jackson. In ordinary circumstances it is the type of reference the Chief Constable would be obliged to send.[94]In the special circumstances of this case, however, the Chief Constable cannot send this second reference. The Force through Assistant Chief Officer GH had given the claimant an undertaking to send the standard, template reference which was the Force’s policy and practice to send (and which was also used by other police forces at the time). In reliance on this the claimant resigned his position as constable to take up the job offer from the Regulatory Body and requested that the gross misconduct proceedings be terminated. The Force allowed him to do that. He was thus in the position that for the Force to send the second reference would most likely leave him without employment and without the opportunity to refute the gross misconduct allegations. In these special circumstances it would be a breach of the Data Protection Act 1998 and undermine his legitimate expectations for the second reference to be sent. The identity of the claimant must not be disclosed. To anonymise this judgment all persons are referred to as “he” in the judgment. That is to ensure that no individual is identified and is not intended to convey any discourtesy to any of the witnesses or other individuals in the case.

Cited in 4 later judgments