Earlier this year the Court of Appeal gave further guidance as to the extent of the Police’s duty of care owed to informers.

The appellant (C) was a former police informer and a covert human intelligence source (CHIS), as authorised under the Regulation of Investigatory Powers Act 2000. It was C’s case that the respondent chief constable (R) via A’s handlers assured C at their first meeting, and repeatedly on subsequent occasions, that his and his family's personal safety, welfare and livelihood were their first priorities

As a result of an investigation in which C provided information, C was arrested and interviewed on suspicion of money laundering. The police obtained orders for the production of documents and restraining the disposal by him of assets.  

The officer that applied for the restraint order did not know that C was a CHIS, and thus did not disclose that information to the judge.

A brought a claim against R in contract and negligence against for failure to exercise reasonable care in the conduct of an investigation for which he had supplied information.

C claimed that R had breached contractual and tortious duties owed to him as a CHIS and that this had caused him significant financial loss and consequent depression.

Wyn Williams J held that:  

  • oral assurances amounting to contractual promises were given by C's handlers that R would treat his safety and that of his family as a priority. However, it was held that no term could be implied for safeguarding C's financial wellbeing, nor had R assumed responsibility for the same.
  • R had been negligent in relation to disclosure on the restraint order application, but that an officer engaged in activity related to investigation and suppression of crime was immune from a complaint of negligence as a matter of public policy under the principle in Hill v Chief Constable of West Yorkshire [1989] AC 53; and
  • psychiatric injury was not a reasonably foreseeable consequence.  

C appealed on the grounds that the Judge:

  • should have held that R owed him a duty to safeguard his economic interests; and
  • had been wrong to decide whether the acts complained of gave rise to a foreseeable risk of personal injury because the issue had been limited to breach of duty.

The Court of Appeal (Pill, Arden, Toulson, LJJ), dismissed C’s appeal. The Court held:

1. The starting point in approaching the question whether to recognise a duty of care: the test was not simply to be found in the expression "voluntary assumption of responsibility" but was to consider the purpose of the relationship between a CHIS and the police.

This relationship was confidential for the purposes of safety and peace of mind of the CHIS, as well as to encourage the supply of information to the police. The Act and the relevant code of practice showed that Parliament was concerned that those handling a CHIS should have regard to any foreseeable risks to his security and welfare arising from the relationship.

It would therefore be both consistent and reasonable to impose a duty of care on the police for the safety and welfare of a CHIS. However, the prospective harm against which the police might be held to owe a duty of care towards a CHIS had to be limited to the risks to his physical safety and wellbeing that were due to his conduct in assisting the police – they could not owe a duty that would conflict with their duty to the public (Hill and Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50 considered).

Further, it was doubtful that Parliament had intended "welfare" to be given a broader meaning so as to encompass economic loss. Nor was it fair, just and reasonable to extend the duty that far.

In the instant case, it would not be reasonable to place a duty on R to give priority to supporting C's financial welfare over the public interest in the detection of crime and recovery of proceeds. Whilst the failure to disclose C's role to the judge making the restraint order was a serious misleading of the court, but it did not amount to a breach of duty.

2. Consideration of foreseeability went to the issue of breach of duty. Any duty was necessarily limited to a duty not to cause foreseeable injury. Psychiatric injury was not a reasonably foreseeable consequence of the matters complained of. And in any case, the duty of care could not extend to protecting C from investigation of suspected criminal conduct on his part, and it was this conduct which caused his depression.

Lord Faulks QC appeared for the successful respondent.