Savage v Chief Constable Of Hampshire [1997] EWCA Civ 943 (6th February, 1997)

LORD JUSTICE JUDGE: On 17 August 1994 the plaintiff began the present proceedings in Portsmouth County Court. He was acting in person. His pleading was inadequate and defective. A draft amended particulars of claim was prepared by counsel. Leave to amend was sought. The defendant opposed the application on the ground that, even in its proposed amended form, the action was frivolous, vexatious and an abuse of the process of the Court.

On 25 April 1996 His Honour Judge Martin Tucker QC sitting as a Deputy Judge of the High Court, concluded that the amended claim was properly stigmatised as frivolous and vexatious. He therefore refused the application for leave to amend and struck out the claim. Leave to appeal against his decision has been granted by this Court.

The plaintiff's claim in its amended form asserted that the defendant, as Chief Constable of Hampshire, was liable to pay him on a contractually agreed basis for his work as a police informer. For the purposes of this appeal it must be assumed that the plaintiff did indeed work as a police informer who, following his arrest in 1990 for unlawful possession of drugs, was invited to assist the police and agreed to do so after discussions which culminated in an oral agreement with a Chief Inspector of the Hampshire Constabulary that he would be paid for information leading to the arrest and conviction of persons involved in serious crime, or the prevention of serious crime, or the recovery of property. Payment would be calculated on the basis of 10 per cent of the value of any property concerned, less any insurance reward. Alternatively, if payment could not be calculated in this way, then a reasonable sum would be payable. The plaintiff claims that the Chief Inspector was acting within the scope of his actual or apparent authority as agent for the Chief Constable.

Subsequently, in performance of this agreement, the plaintiff provided appropriate assistance and information, and has not received the agreed or any reasonable payment. If the case proceeds to a hearing, an alternative view of these crucial facts is likely to be pursued, but as the appeal is not concerned with the factual merits or otherwise of the plaintiff's claim but with the single question whether or not it is legally tenable, nothing more need be said about the facts.

In essence the question for decision is whether a police informer is precluded from taking proceedings to recover monies promised to him by a police officer in exchange for information. The claim is not concerned with rewards offered or paid by, for example, insurance companies to those who assist police to solve a crime, nor with witnesses who come forward to offer information and eventually give evidence at any subsequent trial.

Ignoring for the moment the unsuccessful arguments deployed on behalf of the defendant, the successful submission was concisely summarised by the judge. The claim was not admissible as it involved an assertion by the plaintiff in open Court that he was a police informer. He was not permitted to allege or give evidence to establish any such case. The plaintiff argues that this conclusion was wrong in law.

It is well understood that on occasion the public interest requires that evidence which would otherwise be relevant and admissible in litigation should nevertheless not be disclosed or adduced in Court. The need to conceal the identity of informers is justified, "not only for their own safety but to ensure that the supply of informers about criminal activities does not dry up" (per Lawton LJ in R v. Hennessy (1978) 68 Crim App R 49; see also D v. NSPCC [1978] AC 171).

"The rule clearly established and acted on is this, that, in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for 50 years ... We think the principle of the rule applies to the case where the witness is asked if he himself is the informer." ( Attorney General v. Briant (1846) 15 M&W 169).

As the language demonstrates, this case was not concerned with civil proceedings but with a criminal prosecution. In Marks v. Beyfus (1890) 25 QB D 494, the plaintiff issued civil proceedings for damages for malicious prosecution. He called the Director of Public Prosecutions as a witness. He refused to identify the name of the person who had given him the information on which he had acted against the plaintiff. The Court of Appeal upheld the judge's decision that he should not do so. Lord Esher explained that:

"... this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches ... I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion..."

The principle firmly established and constantly repeated thereafter was that immunity from disclosure was not a privilege to be waived by one or other party to the proceedings. (See also R v. Lewes Justices Ex parte Secretary of State for the Home Department [1973] AC 388; and D v. NSPCC ). Secondly, non-disclosure was not limited to criminal prosecutions but extended in some circumstances to civil proceedings as well. However, Lord Esher did not use language to suggest that the principle applied to every civil action in whatever form the proceedings might take. In Conway v. Rimmer Lord Reid explained:

Although there are numerous authorities which deal with the application and indeed the continuing development of the essential principles, one question not yet decided is whether the public interest requires that the principle should be applied when the informer himself positively wishes his activities to be identified. In such circumstances, and assuming that the informer is adult and of reasonable intelligence, it is difficult to see why the Court should prevent disclosure of his activities on the basis that his personal safety would be in danger. Disclosure at his insistence could not serve to undermine one of the essential features of arrangements between the police and their informers that the informers and their identity will normally be protected from disclosure.

This approach is consistent with the authorities. In R v. Rankine [1986] QB 861, the Court had to consider the problem of police surveillance from observation posts. It was decided that the reasons which protected the informer from being identified applied "with equal force to the identification of the owner or occupier of premises used for surveillance and to the identification of the premises themselves. The cases are indistinguishable, and the same rule must apply to each."

In R v. Johnson (1989) 88 Crim App R 131, general guidance was given about the information to be placed before the trial Judge when the prosecution sought to exclude evidence which would identify places of observation and occupiers of such premises. The "minimum" requirements included that a police officer of the appropriate rank should ascertain the attitude of occupiers of premises to possible disclosure, not only before the observation began but "what the attitude of those occupiers is to the possible disclosure of the use previously made of the premises and of facts which could lead at the trial to identification..."

If the views of the individuals whose safety was most in need of protection could be considered in relation to an observation post case, in my judgment, the wish of an informer that his identify should be disclosed could not without more be ignored on the basis of the immunity principle, certainly in relation to civil proceedings taken by him after the conclusion of any relevant criminal prosecutions.

The developing law in relation to observation posts coincided with a separate line of authorities relating to complaints against police officers. A series of decisions in the Court of Appeal beginning with Neilson v. Laugharne [1981] 1 QB 736, followed and adopted in Hehir v. Commissioner of Police of the Metropolis [1982] 1 WLR 715, Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 All E R 617, and Halford v. Sharples [1992] 1 WLR 736 was over-ruled in R v. Chief Constable of the West Midlands Police, Ex parte Wiley & Ors [1995] AC 274. It was held that documents which came into existence as a result of an investigation against the police under the Police and Criminal Evidence Act 1984, were not entitled to public interest immunity from disclosure as a "class", although it might be appropriate to extend immunity to a particular document. Interestingly, Makanjuola involved civil proceedings for assault in which the plaintiff was prevented from seeing her own statement to the Complaints Authority and those of witnesses who had consented to the disclosure of their statements. Not only was this decision over-ruled in Ex parte Wiley , but Lord Woolf indicated his express agreement with the observations of Brightman LJ in Hehir to the effect that, when the maker of a statement for the purposes of a complaint against the police wish the statement to be disclosed, it was "at least arguable that public interest would not continue to attach immunity to the statement."

"This, he indicated, is perhaps 'not strictly a question of waiver, but of public interest immunity ceasing to attach to a statement if particular circumstances exist.' With this approach I would agree. If the purpose of the immunity is to obtain the co-operation of an individual to the giving of a statement, I find it difficult to see how that purpose will be undermined if the maker of the statement consents to it being disclosed."

In my judgment, it follows from both these lines of authority that, if a police informer wishes personally to sacrifice his own anonymity, he is not precluded from doing so by the automatic application of the principle of public interest immunity at the behest of the relevant police authority. This follows, not from waiver of privilege attaching personally to the informer, but from the disappearance of the primary justification for the claim for public interest immunity.

That, of course, is not an end of the matter. It is possible that, notwithstanding the wishes of the informer, there remains a significant public interest, extraneous to him and his safety and not already in the public domain, which would be damaged if he were allowed to disclose his role. However, I am unable to understand why the Court should infer, for example, that disclosure might assist others involved in criminal activities, or reveal police methods of investigation on hamper their operations, or indicate the state of their enquiries into any particular crime, or even that the police are in possession of information which suggests extreme and urgent danger to the informer if he were to proceed. Considerations such as these might, in an appropriate case, ultimately tip the balance in favour of preserving the informer's anonymity against his wishes in the public interest. There is no evidence that any such consideration applies to the present case.

While I recognise that there may be unusual difficulties in the interlocutory stages of this litigation, particularly in relation to discovery, an order that a seriously arguable case should be struck out because of potential procedural difficulties would involve a dramatic and inappropriate extension of the powers of the Court under RSC Ord.18,r.10 or CCR Ord.16,r.5. Therefore, leave to amend the pleadings should have been granted.

It is unnecessary to say anything about whether in this particular case it would be appropriate for the parties to proceed to a trial of preliminary issues or how the question of discovery should be handled and, indeed, whether any applications should be made to the judge to make rulings relating to discovery in camera. We have no evidence on those topics.

The judge considered three further grounds advanced by the defendant in support of the application to strike out and renewed before us by a respondent's notice. In summary they derive, first, from argument about the circumstances in which a chief inspector of police may create contractual liability in his chief constable; secondly, the alternative claim based on negligent misstatement or deceit; and third, the absence of an intention to create legal relations. The judge concluded that in relation to each of these "three aspects the defendant has a strong case and the plaintiff has a hard row to hoe. This does not mean that the plaintiff is bound to fail and these points require to be dealt with with more deliberation and upon consideration of the evidence of trial." Save to note that a trial of a preliminary issue may be appropriate in this case, I agree with the conclusion of the learned judge: no further analysis of the relevant legal principles in relation to these three grounds is necessary.

LORD JUSTICE POTTER: I agree that the appeal should be allowed for the reasons given by Lord Justice Judge. I would only add that to extend the reasoning in Marks v. Beyfus to this case would not merely apply the protection normally accorded to informers in a situation where the informer consents (and indeed wishes) that his identity should be revealed, but would apply it in a manner positively prejudicial to the informer by denying him access to a civil court to enforce what he asserts as his contractual right.

Further, it is clear that the judge based his decision in large measure upon his anticipation of the likely outcome of the plaintiff's applications for discovery and interrogatories later in the action. The judge said he could think of nothing more damaging to the police effort than to make material of the sort which would be sought available from police files. He said:

"This may be new law but I must grasp the nettle and rule upon it. A new type of action needs new principles of law or a greater application of old principles. I have not the slightest doubt that it would be very much contrary to the public interest to allow any part of such material into the public domain or into the possession of a police informer and then from him to the criminal fraternity."

There are two points to be made in that respect. First, the fact that difficulties may be encountered on discovery does not itself render an action vexatious or an abuse of process. Secondly, and particularly in a position where "new law" may have to be made, it seems to me quite wrong to consider issues of possible privilege in advance and in vacuo rather than on the basis of the particular facts and consequent claims for privilege which are asserted in the light of the issues as crystallised at the discovery stage. I too would allow the appeal.

England and Wales Court of Appeal (Civil Division) Decisions

DAVID JAMES SAVAGE v. HODDINOT (CHIEF CONSTABLE OF HAMPSHIRE) [1997] EWCA Civ 943 (6th February, 1997)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Savage v Chief Constable Of Hampshire [1997] EWCA Civ 943 (6th February, 1997) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/943.html Cite as: [1997] 1 WLR 1061, [1997] EWCA Civ 943, [1997] WLR 1061