CLG & Ors v Chief Constable of Merseyside Police  EWCA Civ 836
The appellants were witnesses in a criminal matter being prosecuted by the respondent. Following violent threats, the appellants relocated and refused to give evidence against the accused for fear of reprisal. The police therefore served the appellants with a witness summons. The steps taken to serve the summons were recorded in a statement, which included the appellants’ new address. In breach of internal procedure, the statement was provided to the CPS, and then to the accused’s solicitors, without the appellants’ address being redacted. The accused’s solicitors then communicated this information to the accused. Upon discovering that their new address was known to the accused, the appellants issued proceedings against the defendants, claiming damages for personal injury, distress and financial loss. The appellants alleged common law negligence, breach of Articles 2 and 8 of the ECHR, and breach of section 4(1) of the Data Protection Act 1998. In addition to denying all breaches, the respondent argued that, even if they were in breach, witness immunity applied.
At first instance, HHJ Wood found that the respondents had indeed been careless, but nevertheless dismissed the claim on the basis that there was no duty of care, that neither Article 8 nor Article 2 of the of the ECHR had been breached, and that there had been no failure to comply with the Data Protection Act. He held, however, that if there had been a breach, witness immunity would not have applied.
On appeal, the leading judgment was delivered by Moore-Bick LJ. On the question of negligence, Moore-Bick LJ was not prepared to go behind the trial judge’s decision that the police had been careless. However, after a careful review of the authorities, beginning with Hill v West Yorkshire Police  AC 53, he agreed that no duty existed. In particular, he found that the appellant could not overcome the well-established principle that police forces owe no duty of care to members of the public in respect of the carrying out of their core functions. Moore-Bick LJ accepted, however, that this principle could be overcome where there had been an assumption of responsibility; although he found that there had been no such assumption in the instant case.
Moore-Bick LJ then went further, holding that, even if he were wrong, contrary to what had been held in the court below, the police would nevertheless have been protected by witness immunity, which applied not only to things said on the witness stand, but also 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.’ Applying the dicta of Lord Hoffmann in Taylor v Director of the Serious Fraud Office  2 AC 177, he found that the transmission of the statement by the police to the CPS was part and parcel of preparing to give evidence and so fell ‘squarely within’ the exception.
The appellants did not appeal the trial judge’s finding that there had been no breach of Article 2, but did pursue the Article 8 challenge. Again, Moore-Bick LJ rejected the appellants’ arguments, pointing out that the protection afforded under Article 8 is not unlimited, and did not apply to isolated acts of carelessness.
In relation to the Data Protection Act 1998, Moore-Bick LJ held that any disclosure in breach of the Act was protected by section 29 of the Act, which provided an exception where the disclosure was for the purposes of ‘the apprehension or prosecution of offenders,’ and that appropriate measures to prevent unauthorised or unlawful processing of personal data were in place in any event.
Ultimately, the appeal was dismissed.
In line with recent authorities, most notably Michael v The Chief Constable of South Wales Police  UKSC 2, the Court of Appeal reaffirmed the generous extent of the immunity afforded to police in the careless investigation and handling of crimes. Claimant lawyers should take particular note of the case prior to embarking on such litigation considering that the extent of the immunity does not appear to be ripe for challenge any time soon.