RECORD CHECK

Desmond v The Chief Constable of Nottinghamshire Police

In order to succeed in a claim of negligence, claimants have to be able to show that the respondent has a duty of care to them. The Court of Appeal has decided in Desmond v The Chief Constable of Nottinghamshire Police that the police did not owe a duty of care when providing information to an employer for the purposes of an enhanced Criminal Records Bureau check.

Basic facts

In May 2001, Mr Desmond was arrested on suspicion of having sexually assaulted a woman. He denied the allegation and no further action was taken against him as the woman could not state for certain if Mr Desmond was responsible. The police closed the file, in which an officer noted that Mr Desmond was “not responsible for the crime”.

In July 2005 Mr Desmond applied for an Enhanced Criminal Record Certificate when applying for a teaching job. The police revealed that he had been arrested in 2001 on suspicion of indecent assault but had not been charged due to insufficient evidence. They did not provide any more detail about why there was insufficient evidence to charge, except to say that the relevant officer had retired and it was not clear why Mr Desmond had not been charged.

Mr Desmond subsequently sued the police for the negligent disclosure of information to the Criminal Records Bureau which meant he could not get work as a teacher. He claimed damages for the loss, stress and anxiety he had suffered as a result.

County court and High Court decisions

The county court struck out his negligence claim, saying that he had no reasonable ground for bringing the claim, but allowed him to appeal.

The High Court allowed Mr Desmond’s appeal in part in relation to the claim in negligence. Mr Desmond appealed to the Court of Appeal and the police cross appealed contending that they did not owe Mr Desmond a duty of care when providing information to the Criminal Records Bureau under section 115(7) of the Police Act 1997 and so his negligence claim should fail.

Court of Appeal decision

The Court of Appeal said that if the Nottinghamshire Police owed Mr Desmond a duty of care, they had arguably breached it when they disclosed the information without knowing why there had been “insufficient evidence to charge”, nor where “on the spectrum of possibility this case lay.”

However, it dismissed Mr Desmond’s argument that this situation was analogous to the case of Spring v Guardian Assurance, in which an employer had a duty of care for a former employee when giving a reference. Specifically, it said employers had a duty to take reasonable care when writing the reference and would be liable in negligence if they failed to do so and the employee suffered economic damage as a result.

However, it concluded that the police did not owe him a duty of care for a number of reasons. First it said that, in order to protect young people, the police have to carry out their statutory duty under section 115. They did not therefore have to “assume a responsibility which the statute has not obliged [them] to undertake”.

Secondly the statute does not provide nor does it envisage a remedy in compensation or damages for breach of the statutory duty. Thirdly, if the police did have a duty of care to Mr Desmond, this would conflict with the statutory purpose of protecting vulnerable young people.

Nor did the police owe Mr Desmond a common law (or non-statutory) duty of care as there was not a “sufficient relationship” between the officer who decided to make the disclosure of information and Mr Desmond.