The claim arose from the decision by the respondent Chief Constable, pursuant to the duty under s.115(7) of the Police Act 1997, to disclose the fact of Mr. Desmond’s arrest to the Criminal Records Bureau. The Enhanced Criminal Records Certificate (ECRC) was requested by Mr. Desmond in connection with his prospective employment as a teacher. Following the issuance of the ECRC in 2005, Mr. Desmond made a fresh application for the ECRC in 2007 and on this occasion, the Assistant Chief Constable did not authorise the disclosure of information relating to the arrest. Nonetheless, Mr. Desmond brought a claim in negligence alleging that the Constabulary was in breach of its duty of care as there was no attempt to contact the investigating officer to establish why there was insufficient evidence to charge Mr. Desmond with a crime. The negligence claim was struck out by a county court judge, but the High Court allowed Mr. Desmond’s appeal on the ground that the police had assumed responsibility to take reasonable steps in collating the information disclosed within the ECRC. Mr. Desmond then took his case to the Court of Appeal in order to enlarge the ambit of his negligence claim, while the Chief Constable appealed on the basis that no duty of care arises at all in relation to s.115(7) of the Police Act 1997.

The Court of Appeal considered the approach to core operational police duties as set out in Hill v Chief Constable of West Yorkshire [1989] A.C. 53 as well as a number of cases where the existence of a duty of care was found to be arguable on the particular facts. Whilst the Court considered it arguable that provision of information to the Criminal Records Bureau was not part of the ‘core operational police activities’ to which Hill applied, it nonetheless concluded that the analysis could not be reduced to this issue alone. Rather, the statutory context of the proposed duty must be considered to determine if the Police Act 1997 can support a common law duty of care.

As part of the statutory analysis, the Court placed emphasis on Parliament’s purpose in implementing the ECRC system, namely the protection of young and vulnerable people. The Court of Appeal was of the view that the imposition of a duty of care towards persons who apply for an ECRC would give rise to a potential conflict with the statutory purpose of protecting vulnerable young people. It is important that the police should not be inhibited by the possibility of proceedings for breach of a conflicting statutory duty of care owed to those who apply for an ECRC.

In addition, the Court considered that the absence of a specific statutory protection for the police, mirroring the protections afforded to the Secretary of State pursuant to section 119 (5) of the 1997 Act, did not, when viewed in the context of the entire statutory framework, suggest that Parliament intended the police owed applicants a duty of care.

The court also applied the approach set out at paragraph 71 of Gorringe v Calderdale Metropolitan Borough Council [2004] namely that a statute that does not create a cause of action for breach of the statutory duty is unlikely to enable a common law claim for the breach of that statutory duty. As the Police Act 1997 creates no remedy for breach of the statutory duty, a common law duty of care would only arise if the Constabulary assumed an obligation toward the Claimant above and beyond its statutory duty.

The Court also rejected Mr. Desmond’s attempts to construct a duty of care via analogy to cases where a duty of care was established. The Court questioned Mr. Desmond’s reliance on Spring v Guardian Assurance [1995] 2 AC 296 (employer owed a duty of care to employee when providing a reference), as the arms-length, statutory relationship between Mr. Desmond and the chief officer was unlike the ‘special relationship’ between a former employee and employer.

The Court also distinguished Yetkin v London Borough of Newham [2010] EWCA Civ on the basis that the chief officer had not taken positive, dangerous steps beyond his statutory duties so as to amount to an assumption of responsibility.

It appears that in the normal course of an ECRC being issued by a police force, it is unlikely to exceed its statutory obligations to the extent necessary for responsibility to be assumed.

Mr. Desmond’s suggestion that striking out his claim for negligence would amount to the conferral of ‘blanket immunity’ within the meaning of Osman v United Kingdom [1999] 1 FLR 193 was roundly dismissed by the Court of Appeal. May L.J. also drew attention to the array of alternative possible remedies which have been open to Mr. Desmond, including judicial review proceedings, a claim under the Human Rights Act 1998 as well as under the Data Protection Act.

The Court of Appeal’s forceful rejection of a duty of care in ECRC cases is important not only in its limitation of forces’ liability, but also in conveying that the appellate courts will not readily convert statutory into common law duties where sensitive and nuanced police decisions are concerned.