Woolgar v Sussex Police & Anor [1999] EWCA Civ 1497 (26 May 1999)

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Woolgar v Sussex Police & Anor [1999] EWCA Civ 1497 (26 May 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1497.html Cite as: (2000) 2 LGLR 340, [1999] 3 All ER 604, [2000] WLR 25, [1999] Lloyd's Rep Med 335, (1999) 50 BMLR 296, [1999] EWCA Civ 1497, [2000] 1 WLR 25

1. This is an appeal from a decision of Astill J who on 3rd September 1998 dismissed the appellant’s application for an order that the Chief Constable be restrained from disclosing to UKCC the contents of an interview between the appellant and the police which took place at Worthing Police Station on 6th December 1997.

The background facts are simple and not contentious. The appellant is a registered nurse, and in 1997 she was matron of a nursing home at Worthing. After the death on 23rd November 1997 of a patient in her care allegations were made which led to her being arrested and interviewed by the police on 6th December 1997. The officer concerned was Detective Sergeant Julie Buchan, and it is clear from her affidavit that the allegation with which she was particularly concerned was one of over-administration of diamorphine, but she was also aware of other allegations which were matters of concern to the Registration and Inspection Unit of the West Sussex Health Authority.

At the conclusion of her investigation Detective Sergeant Buchan notified the appellant and also the owner of the nursing home and the RIU that the evidence did not meet the evidential test required for criminal charges, and the matter was then referred by the RIU to UKCC which is the regulatory body for nursing, midwifery and health visiting. It is a disciplinary body, with power to remove nurses from the register if that is necessary to protect patients. The allegations which UKCC had to investigate were more wide-ranging than those which had been considered by the police. Other patients were involved, and in addition to allegations of misuse of drugs there were allegations of other forms of maltreatment. UKCC began to investigate in April 1998, and on 24th June 1998 the appellant was officially informed of what was afoot.

UKCC receives over one thousand complaints per annum, and where the police have been involved the practice is to contact the police for relevant information. That obviously can save re-interviewing, and may expand the area of enquiry. It is not the practice to interview the professional under investigation at the investigative stage.

The police practice was to seek authority from those who had given statements to the police, and if authority was given to disclose the statements. By early July authority had been obtained from most of the witnesses by Detective Sergeant Buchan, but the Royal College of Nursing, on behalf of the appellant, in a letter dated 3rd July 1998, indicated that her agreement to disclosure would not be forthcoming. On 13th August 1998 Detective Sergeant Buchan replied saying that on 25th August 1998 she proposed to break the seal on the master tape recording of the appellant’s interview of 6th December 1997, to copy it, and to re-seal it. The RCN representative was offered the opportunity to be present, and was told that after copying the police solicitor would listen to the tape and decide whether it should be disclosed to UKCC.

On 18th August 1998 the regional solicitor for the RCN replied, objecting to any disclosure to the nursing regulatory body, and questioning whether the proper authority had been obtained from the Chief Officer of police for breaking the seal. In a letter of 19th August 1998 to the Chief Constable the regional solicitor advised him of her intention to seek an injunction to prevent the course of action proposed by Detective Sergeant Buchan. Part of that letter reads -

“We place on record our concern that DS Buchan is pursuing this approach to a confidential conversation our client had with the police in connection with the death of a patient. She has been told that no action is being taken by the police against her, and at no time was she informed in her interview that the purpose of taping was anyhow connected with any investigation except by the police. The conversation our client had with your officers was undertaken on that basis, and we are really worried that you have officers who believe that such tapes can be sent to any other body, particularly after our client had expressly informed your officers that she would not consent voluntarily to such disclosure.”

The police advised the RCN solicitor that they intended to proceed as indicated by Detective Sergeant Buchan. The regional solicitor also approached UKCC as to why disclosure was being sought when the appellant’s consent had been refused. UKCC refused to be drawn, saying that it was a matter for the appellant and the police.

“The UKCC has not, so far as I am aware, made any representations to the Sussex police to the effect that there is any specific reason why the disclosure of the tape/transcript of the interview would be in the public interest. Further, the allegations contained in the letter from the UKCC to the plaintiff dated 24th June 1998 do not include any allegation in respect of the death of any patient and thus the interview does not appear relevant to any UKCC investigations. Moreover, the UKCC has its own means of carrying out investigations, which are described in Statutory Instruments 1993 number 893, the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993. There is no express statutory power permitting the UKCC to obtain transcripts of police interviews.”

Undoubtedly when someone is arrested and interviewed by the police what he or she says is confidential. Plainly it may be used in the course of a criminal trial if charges are brought arising out of that investigation, but if it is not so used the person interviewed is entitled to believe that, generally speaking, his or her confidence will be respected. If authority be required for that proposition, it can be found in Taylor v Serious Fraud Office (1998) 4 All E R 801 but, as all of the authorities cited to us indicate, there are exceptional circumstances which justify the disclosure by the police, otherwise than in the course of a criminal trial, of what has been said by a suspect during the course of an interview, in circumstances where the suspect, or former suspect, does not consent to such disclosure. The question which arises in this case is whether, if the regulatory body of the profession to which the suspect belongs is investigating serious allegations and makes a formal request to the police for disclosure of what was said in interview, the public interest in the proper working of the regulatory body is or may be such as to justify disclosure of the material sought. If the answer to that question is in the affirmative how, as a matter of procedure, should contentious issues in relation to disclosure be resolved?

Mr Wadsworth further submits that over the years and partly no doubt as a result of European influence, it is possible to see the public interest in maintaining that initial confidentiality being ever more closely guarded. Whether the police have obtained information from an informer, a witness, or a suspect who has not been charged, if the police do not themselves prefer charges what has been said to the police should, save in exceptional circumstances, not be passed on.

Article 8 of the European Convention of Human Rights indicates that to protect private and family life, where such information has been obtained in confidence there should be no disclosure “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Mr Horan, for the Chief Constable, and Lord Lester Q.C. for UKCC, invite us to note the reference in Article 8 to the protection of health, and the reference to the protection of the rights and freedoms of others.

In McVeigh v UK (1992) 25 DR 15 the European Court considered the official retention of photographs and fingerprints obtained during an anti-terrorist check in Liverpool. Its conclusion was that because terrorism posed such a threat to public safety, retention for the time being could be regarded as necessary. The inference, Mr Wadsworth submits, is that but for the exceptional threat, records would have had to be destroyed, as the Austrian Government conceded that photographs of demonstrators should be destroyed in Friedl v Austria (1995) A-305-B Com Rep. Under English law the position now is that records such as fingerprints and photographs obtained during the course of an investigation are destroyed unless the suspect is convicted or cautioned. A taped interview does not suffer a similar fate. One sealed copy is retained and paragraph 6.3 of Code E to the Police and Criminal Evidence Act 1984 provides that -

Obviously the rule contemplates the possibility that breaking of the seal may become necessary, but that possibility can arise in circumstances other than those with which we are concerned. In 1986 the Home Office issued a circular to police forces giving guidance on the disclosure of previous convictions and related information. This was recognised to be an area where the duty to maintain confidence could conflict with, for example, a public interest in safeguarding children, and paragraph 2 of the circular begins -

“The general principle governing disclosure remains that police information should not be disclosed unless there are important considerations of public interest to justify departure from the general rule of confidentiality. The three areas in which exceptions are made are the protection of vulnerable members of society; the need to ensure probity in the administration of law, and national security.”

“On occasions the police may have information outside the scope of this circular which gives cause for serious concern that a person subject to checking or reporting is unsuited to hold a position of trust. Such information may be passed on to the employer or professional body on the authority only of an officer of ACPO rank. Cases of doubt should be referred to the Home Office.”

The first of the English authorities we were invited to consider is Beloff v Prestdram Ltd (1973) 1 All E R 241, and Mr Wadsworth submits that it should now be read in the light of later authorities. It concerned a breach of copyright, and Ungoed Thomas J when dealing with the submission that public interest might justify disclosure, cited from Lord Denning M R’s judgment in Initial Services Ltd v Putterill (1968) 1 QB 396, where Lord Denning said at 405 that the exception which justified disclosure “should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always - and this is essential - that the disclosure is justified in the public interest.” Ungoed Thomas J then looked at later cases and continued at 260f -

“The defence of public interest clearly covers and, in the authorities does not extend beyond, disclosure, which as Lord Denning MR emphasised must be disclosure justified in the public interest, of matters carried out or contemplated, in breach of the country’s security or in breach of law including statutory duty, fraud, or otherwise destructive of the country or its people, including matters medically dangerous to the public; and doubtless other misdeeds of similar gravity.”

“The courts have ..... always refused to uphold the right of confidence when to do so would be to cover up wrongdoing. In Gartside v Outram (1857) 26 L.J. Ch 113, it was said that there could be no confidence in iniquity. This approach has been developed in the modern authorities to include cases in which it is in the public interest that the confidential information should be disclosed: see Initial Services Ltd v Putterill, Beloff v Presdam Ltd and Lion Laboratories Ltd v Evans. This involves the judge in balancing the public interest in upholding the right to confidence, which is based on the moral principles of loyalty and fair dealing, against some other public interest that would be served by the publication of the confidential material. Even if the balance comes down in favour of publication, it does not follow that publication should be to the world through the media. In certain circumstances the public interest may be better served by a limited form of publication perhaps to the police or to some other authority who can follow up a suspicion that wrong doing may lurk beneath the cloak of confidence. Those authorities will be under a duty not to abuse the confidential information and to use it only for the purpose of their inquiry. If it turns out that the suspicions are without foundation the confidence can then still be protected.”

“Although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply.... to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.”

“If this were a case in which there were any question or threat of general disclosure by the defendant of confidential information concerning the way in which the plaintiff carries on its business or concerning any details of the affairs of its clients, there could be no answer to the claim for an injunction; but it is not general disclosure that the defendant has in mind. He has in mind only disclosure to FIMBRA, the regulatory authority, and, in relation to a particular case that he has identified in his affidavit, the Inland Revenue. I ask myself whether an employee of a company carrying on the business of giving financial advice and of financial management to the members of the public under the regulatory umbrella provided by FIMBRA owes a duty of confidentiality which extends to barring disclosure of information to FIMBRA.”

“But if that is so, then I ask myself what harm will be done. FIMBRA may decide that the allegations are not worth investigating. In that case no harm will have been done. Or FIMBRA may decide that an investigation is necessary. In that case, if the allegations turn out to be baseless, nothing will follow the investigation. And if harm is caused by the investigation itself, it is harm which is implicit in the regulatory role of FIMBRA. It may be that what is put before FIMBRA includes some confidential information. But that information would, as it seems to me, be information which FIMBRA could at any time obtain by the spot checks that it is entitled to carry out.”

“It is for FIMBRA on receiving whatever information the defendant puts before it to decide whether there is a matter for investigation. If there is not then I cannot see that any harm has been done to the plaintiff. If there is then it is right for FIMBRA rather than the court to investigate.”

Obviously the respondents place considerable reliance upon the decision in Re a Company , but Mr Wadsworth submits that it is a very different type of case. There was no element of public interest immunity, only a conflict between the rights of the employer and the rights of the regulator. Mr Wadsworth submits that if UKCC want the information held by the Chief Constable and the appellant withholds consent UKCC should issue a witness summons, not at the investigatory stage, but when the matter goes before the Conduct Committee, if it reaches that stage. That is the moment at which the matter could be properly tested. That, he submits, is the course envisaged by this court in Marcel v Commissioner of Police (1992) 2 All E R 72 where the issue was whether the police were entitled to disclose seized documents to a third party for use in civil litigation. Voluntary disclosure was not approved. Dillon L.J. at 81 cited with approval what had been said by Sir Nicholas Browne-Wilkinson V-C at first instance, namely -

“In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner. ....... if communication to others is necessary for the purpose of police investigation and prosecution, it is authorised. It may also be (though I do not decide) that there are other public authorities to which the documents can properly be disclosed, for example to City and regulatory authorities or to the security services.”

Mr Wadsworth also placed some reliance on the decision if this court in Lonrho plc v Fayed (No.4) [1994] Q.B. 775 which concerned discovery of documents held by the defendant prepared with reference to tax liability, which were of the same kind as documents held by the Inland Revenue. Counsel argued that as the state must not, backed by compulsory powers, obtain information from the citizen for one purpose and use that information for another, the information in the hands of the taxpayer need not be produced. The argument failed, but Mr Wadsworth relies on the principle. His difficulty is that, as the authorities show, the principle cannot be regarded as absolute.

Lord Lester invited our attention to the ECHR decision in M.S. v Sweden (1997) 3 B.H.R.C. 248. The applicant in that case had sustained a back injury and objected to disclosure of medical records, which contained confidential information, to the Social Insurance Office for the purpose of assessing her compensation claim. The court recognised that the object of disclosure was a proper one - to enable the office to determine whether the conditions for granting compensation had been met. It also recognised the “fundamental importance” of protecting personal data, guaranteed by Article 8 of the Convention. What it then did was to “examine whether, in the light of the case as a whole, the reasons adduced to justify the interference were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued.” The court noted that the information was “communicated by one public institution to another in the context of an assessment of whether she satisfied the legal conditions for obtaining a benefit which she herself had requested.” Under the relevant law it was a condition of imparting the information that the office had requested it, and the office was under a duty to treat it as confidential, so paragraph 44 of the judgment reads:-

"The Court considers that there were relevant and sufficient reasons for the communication of the applicant’s medical records by the clinic to the office and that the measure was not disproportionate to the legitimate aim pursued. Accordingly, it concludes that there has been no violation of the applicant’s right to respect for her private life, as guaranteed by Article 8 of the convention."

In R. v Chief Constable of North Wales Police ex. Parte A.B. [1999] Q.B.396 convicted paedophiles sought declarations that the decision of the police to inform a caravan site owner of their convictions was unlawful. They failed. In the Divisional Court Lord Bingham C.J. said at 409H:-

"When in the course of performing its public duties a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to the member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty."

"It seems to me to follow that if the police, having obtained information about an individual which it would be damaging for that individual to disclose, and which should not be disclosed without some public justification, consider in the exercise of a careful and bona fide judgment that it is desirable or necessary in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure as is judged necessary to achieve that purpose."

"..... information acquired by the police in their capacity as such, and when performing the public law duties that Lord Bingham C.J. has set out, cannot be protected against disclosure in the proper performance of those public duties by any private law obligation of confidence. That is not because the use and publication of confidential information will not be enjoined when such use is necessary in the public interest, though that is undoubtedly the case. Rather, because of their overriding obligation to enforce the law and prevent crime the police in my view do not have the powers or vires to acquire information on terms that preclude their using that information in a case where their public duty demands such use."

"The issue here is not the same as it would be in private law. The fact that the convictions of the applicants had been in the public domain did not mean that the police as a public authority were free to publish information about their previous offending absent any public interest in this being done. As Lord Bingham C.J. stated, before this happens it must at least be a situation where in all the circumstances it is desirable to make disclosure. Both under the convention and as a matter of English administrative law, the police are entitled to use information when they reasonably conclude that this is what is required (after taking into account the interests of the applicants), in order to protect the public and in particular children."

Another recent example to which we were referred is Bunn v B.B.C. [1998] 3 All E.R. 552. A plaintiff who had faced trial for conspiracy to defraud tried to stop the defendants from including in a broadcast and in a book admissions he had made when interviewed by the police which had been referred to in open court. He failed because the material was already in the public domain, but Lightman J. at 557a recognised that:-

Mr Wadsworth submitted that in deciding how to reconcile conflicting public interests we might derive some assistance from the approach taken to cases in the Family Division. It is clear from In re A (a minor) 21 August 1998 that a court order is required before the General Medical Council can be given access to documents held on the court file, but that is hardly surprising having regard to the location of the material.

In re L [1999] 1 WLR 299 concerned the duty which section 17 and section 47 of the Children Act 1989 imposes on local authorities to inform other areas of those found guilty in care or other family proceedings of sexual abuse. The statutory duty was held not to apply “where the man has been neither cautioned or convicted of any sexual abuse, a fortiori where he has been acquitted of offences against the very children with which the family court was directly concerned”. That omission, it was suggested, cannot have been inadvertent: “it must reflect a conscious decision that disclosure of information should be regarded as exceptional in cases of this nature” (per Butler-Sloss L.J. at 305). Save for that last observation, which reinforces the general respect for confidentiality, I cannot derive any real assistance from the family cases. Re L , in particular, is a decision in relation to statutory construction of a statute with which we are not concerned, but it is worth noting that even in that case Butler Sloss L.J., at 303 F, pointed out that “there are no pending investigations, either by the police or any other agency in respect of which the information sought to be disclosed might assist.” As Lord Lester submitted, express allowance was being made for the situation which we have to consider.

Finally there is the decision of the House of Lords in Taylor v Serious Fraud Office . I have already cited from the judgment of Millett L.J. in the Court of Appeal. The case was concerned with whether those involved in investigating fraud, including witnesses, could be sued for defamation. In the House of Lords it was held that material disclosed by the prosecution to a defendant in criminal proceedings was subject to an implied undertaking that such material would not be used for any purpose other than the defence in the instant case. The House of Lords also held that witnesses, potential witnesses, and those who take part in a criminal investigation with a view to a prosecution or possible prosecution, are immune from suit. At 813j Lord Hoffman said:-

In the course of his submissions Lord Lester took us through the statutory powers and duties of U.K.C.C. as set out in the Nurses Midwives and Health Visitors Act 1997, which includes the duty to maintain a register of qualified nurses (section 7) and to determine circumstances in which a person may be removed from the register (section 10 (1)(a)). Paragraph 1(b) of schedule 2 gives power to require witnesses to attend for the purposes of proceedings under section 10 before the council or a committee, and the proceedings are further governed by the Nurses Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993 (S.I. 893). A practitioner may be removed from the register if she has been guilty of misconduct (rule 2(1)(a)), the question of misconduct having been investigated and referred to the Conduct Committee where misconduct has been proved to that committee’s satisfaction (rule2(2)). Before the matter reaches the Conduct Committee it is considered by a Preliminary Proceedings Committee which also considers any written response which the practitioner may offer to the allegations, and it is only if the P.P.C. so decides that disciplinary proceedings are formally commenced (rules 7, 8 & 9). The point to be noted is that this is a staged procedure, and the stage in the procedure with which this case is concerned is the initial investigatory stage.

Essentially Mr Wadsworth’s submission was and is that when the appellant answered questions when interviewed by the police she did so in the reasonable belief that what she said would go no further unless it was used by the police for the purposes of criminal proceedings. The caution administered to her so indicated, and in order to safeguard the free flow of information to the police it is essential that those who give information should be able to have confidence that what they say will not be used for some collateral purpose.

However, in my judgment, where a regulatory body such as U.K.C.C., operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an enquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that save in so far as it may be used by the regulatory body for the purposes of its own enquiry, the confidentiality which already attaches to the material will be maintained. As Mr Horan said in paragraph 14 of his skeleton argument:-

"A properly and efficiently regulated nursing profession is necessary in the interest of the medical welfare of the country, to keep the public safe, and to protect the rights and freedoms of those vulnerable individuals in need of nursing care. A necessary part of such regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate."

Putting the matter in Convention terms Lord Lester submitted, and I would accept, that disclosure is “necessary in a democratic society in the interests of ... public safety ... or ... for the protection of health or morals, or for the protection of the rights and freedoms of others."

Even if there is no request from the regulatory body, it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration.

Obviously in each case a balance has to be struck between competing public interests, and at least arguably in some cases the reasonableness of the police view may be open to challenge. If they refuse to disclose, the regulatory body can, if aware of the existence of the information, make an appropriate application to the court. In order to safeguard the interests of the individual, it is, in my judgment, desirable that where the police are minded to disclose, they should, as in this case, inform the person affected of what they propose to do in such time as to enable that person, if so advised, to seek assistance from the court. In some cases that may not be practicable or desirable, but in most cases that seems to me to be the course that should be followed. In any event, in my judgment, the primary decision as to disclosure should be made by the police who have the custody of the relevant material, and not by the court.

	WOOLGAR	Appellant
	- and -
	CHIEF CONSTABLE of SUSSEX POLICE & U.K.C.C.	1st Respondent 2nd Respondent

England and Wales Court of Appeal (Civil Division) Decisions