This is the second of a two-part blog post by my colleague and fellow solicitor John Hagan. Read part one here.
This week, in the concluding part of my blog post addressing the remedies for Police failure to disclose documentary evidence in civil claims, I will explain how the rules governing ‘Specific Disclosure’ have been brought to bear against a Police Force which failed to conduct a thorough search of its records, apparently so that it could advance a defence based on the absence of sufficient evidence…
Where a party feels that the other has not provided full disclosure of documents after Court proceedings have been commenced, a mechanism exists in the Court rules to compel that disclosure, as set out in Civil Procedure Rule 31.12–
Specific disclosure or inspection
31.12
(1) The court may make an order for specific disclosure or specific inspection.
(2) An order for specific disclosure is an order that a party must do one or more of the following things –
(a) disclose documents or classes of documents specified in the order;
(b) carry out a search to the extent stated in the order;
(c) disclose any documents located as a result of that search.
The most serious breach of disclosure obligations with which I am presently dealing, is one which has been committed by a Police Force in regards to a claim brought by a woman who, whilst she was a suspect under investigation for a fraud offence, was groomed and impregnated by the very Officer who had arrested her.
As the events in question took place in 2004, the initial Police response to the claim was that they were ‘prejudiced’ in defending it because of the passage of time and hence, they claimed, an inability to determine the proper facts.
However, although my client’s legal claim was only brought in recent years, the fact is that she did bring a complaint about what had happened almost 20 years ago, and the matter had, at the time, been the subject of an investigation by the Force’s Professional Standards Department. It being a different era then, although my client’s complaint was upheld, the Officer – who in the present day would probably face a criminal prosecution for misconduct in public office for his sexual exploitation of my vulnerable client – in fact faced no criminal or disciplinary sanction other than a “Don’t do it again, lad” type of formal warning.
My client’s present claim against the Police for misfeasance in public office is at this stage disputed by them on a number of grounds – including an argument about how many times the Officer had sexual relations with my client (he claimed it was only once) and whether or not he was on duty at the time.
The fact that he is the father of the child she subsequently gave birth to, is not in dispute however – this was confirmed by a DNA test.
Nevertheless, a legal battleground remains to be fought over, and it is therefore crucial that the parties both provide full and frank disclosure of all relevant documents – all the more so because of the passage of time since these events took place.
My client had done her best to assemble as much evidence as she could prior to commencing Court proceedings, through making a Subject Access Request (SAR) under the Data Protection Act to the Police Force in question, and also a Subject Access Request to the Independent Office for Police Conduct (IOPC).
In their Defence to the claim, the Police argued that they were “prejudiced in their ability to establish the facts” because of the passage of time and the fact that they only had “limited documents” about what had occurred. When this case recently reached disclosure stage, the Police produced a List of Documents (i.e a formal statement of all relevant evidence in their possession or control) which only contained four items – limited indeed one might think – but I knew that there was more than met the eye to that list.
The Police had included as a single item in their list the ‘bundle’ of documents which they had earlier provided to the Claimant in response to her Subject Access Request under the Data Protection Act. However, no attempt was made to separately identify/ itemise those documents or to offer unredacted copies of them.
Documents obtained by people making Applications to institutions under the Data Protection Act, are often significantly redacted because such a request only entitles the person to see information that is specifically about them and references to other people will be heavily edited – effectively rendering the document unusable in Court proceedings because the context of the data about Subject Access Applicant cannot be fully understood, and key evidence about other people involved in the case is hidden behind the redactions.
By way of a practical example of this – included in my client’s Subject Access Request bundle was a copy of the Complaint Reinvestigation Report relating to the material events, which had taken place following an appeal by my client to the IOPC (which in those days was known as the IPCC). Huge swathes of that report were redacted in the copy that had been provided, although it was self-evident that for the purposes of a Court claim which overlaps entirely with the subject of the complaint (i.e. the Police Officer’s sexual exploitation of my client) the entirety of the report was relevant and not just those sentences which contain my client’s name. As matters stood, however, the copy of the report provided was predominantly ‘blanked out’ because, of course, its subject was not really my client – it was the conduct of the Police Officer she had complained about. For the Police to impose such redactions on the document in response to Subject Access Request was one thing – but it was completely unacceptable in the context of the duty of open disclosure in civil Court proceedings.
The Chief Constable and his legal team appeared to have given no thought to the difference between the disclosure obligation which was owed as a party to civil proceedings and the much more limited duty which was owed to data subjects who pursue a Subject Access Request.
Yet further, it was quite clear from the documents which had been provided to my client (albeit, also in redacted form) by the IOPC in response to her separate SAR to that organisation, that not only had the Police provided incomplete civil disclosure in the form of their seeking to hide behind the heavily redacted versions of the documents released by their own SAR team (as described above), they had also failed to include in either their List of Documents or their SAR bundle, numerous other documents of relevance, the existence of which was revealed by the IOPC response.
These documents, which would manifestly be in the possession/ control of the Police if they were in the possession of the IOPC, included such obviously relevant evidence as –
- The statement of the Officer who exploited my client, made in relation to her arrest (which is when she says his grooming of her began);
- An “Information from member of the public” memo regarding my client’s complaint;
- An “Allegation involving PC” memo also produced by the Police Force regarding my client’s complaint;
- Handwritten notes taken by the Detective Sergeant who first interviewed my client in regards to her complaint;
- Correspondence from the Professional Standards Department to the Officer involved, regarding the complaint;
- A detailed written record of the Officer’s interview by the Professional Standards Department in regards to the complaint;
- Correspondence between the Police and the IPCC;
- The original Complaint Investigation Report itself.
These documents, as received from the IOPC, were inadequate for the purposes of the claim because they contain the standard SAR redactions – but the original, unredacted documents which must be in the possession/ control of the Police Force and should, therefore, have been included in their disclosure list, but were not.
And all of this brings us back to the central importance of disclosure in civil proceedings – and, specifically, the Defence advanced by the Police in this particular case: that the Claimant should not be allowed to succeed in her claim because owing to the passage of time and the ‘limited’ amount of documents available, the Police are prevented from mounting a proper Defence and a fair trial cannot take place.
In my opinion, the Police’s prejudice argument can be characterised as akin to that of a fighter claiming prejudice because he has chosen to tie one of his hands behind his back, or has blindfolded himself; I think it is clear that the Police have, in this case, wilfully failed to search for material evidence in its possession, because the ‘less’ documentary evidence there is, the more that suits their defence.
I consider this to be a cynical exploitation of the rules governing ‘time limitation’ defences and have now commenced an application for Specific Disclosure against the Police to force them to properly search, catalogue and account for all of the relevant evidence. I am as confident of success in that application as I was in the other matters discussed in Part 1 of this blog.
These then, are some of the ways, in which Defendant Police Forces can delay, hamper and obstruct claims by failing to comply with disclosure rules; by seeking to keep their cards close to their chest (…or even up their sleeve…) – but experienced actions against the Police lawyers such as myself know how to read those cards, call their bluff and win the game.
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