APPENDIX 6
Letter to the Clerk of the Committee from
the Association of Police Authorities
CONFIDENTIALITY OF POLICE SETTLEMENTS OF
CIVIL CLAIMS
Thank you for your letter of 9 June inviting
the Association's comments on the question of confidentiality
in settlements of civil claims against the police. I am sorry
that we have not been able to respond sooner but I hope that you
will still find it useful to have the Association's views on what
is a difficult and complex issue.
The Association fully supports openness and
transparency on the part of all public bodies and as a matter
of principle considers that the presumption should always be in
favour of placing information in the public domain unless there
are strong grounds to justify otherwise.
Where civil claims against the police, which
are predominantly in the areas of wrongful arrest, false imprisonment
and assault, come to court for trial, the evidence and award of
damages will inevitably normally be made public. Occasionally
even in these cases, there will be issues of public interest immunity
which demand, with the consent of the Judge, a degree of confidentiality.
This can be important to protect such things as the identity of
informers and the nature of certain sensitive police operations.
But the level of any award is still likely to be published.
The issue of confidentiality arises mainly in
those civil cases which do not reach trial. Many are in the hands
of police insurers who have subrogated rights to settle cases
as they see fit. In other cases, where the Police Authority carries
a large excess on their policy, the insurers may still have discretion
to settle a case. It is helpful that in many areas, such as wrongful
arrest and false imprisonment, there is case law which helps the
calculation of damages. The Association sees no need for such
settlements to be kept secret.
More difficult are cases where settlement is
sought and achieved, not merely on grounds of economics, but for
reasons such as protecting informants from public scrutiny or
protecting information about police operations where that is in
the public interest. In some such cases, settlements reflect the
need to settle for good reason which may be out of proportion
to the basic level of damages which the case is worth. The Association
considers that there may be a case for confidentiality clauses
in such circumstances.
It should also be recognised that often the
person seeking the settlement may insist upon confidentiality.
Indeed, confidentiality may be so fundamental that the settlement
would not be agreed at all if the amount were to be subject to
debate. In many cases, it is in the public interest for settlements
to be arrived at and a good deal of public money is saved in this
way. If automatic publicity were to result then the achievement
of such settlements could be rendered much more difficult.
The Association also has misgivings about statistical
information relating to damages being used, either as a measure
of performance or as a means of learning lessons: the levels of
damages can be fixed by many factors which negate effective comparisons.
In the Association's view, accountability does
not always imply total freedom of access to information at all
times by all people. Accountability can be achieved in a variety
of ways and in a manner which preserves not only public but also
private rights. Indeed, the Association notes that even the Government's
recently published consultation document on Freedom of Information
contained proposals for substantial exemptions where the public
interest would not be safeguarded by publicity.
In the police arena, accountability is achieved
through police authorities. The Police and Magistrates' Courts
Act 1994 (now consolidated in the Police Act 1996), which reconstituted
police authorities in April 1995, was designed to enhance local
accountability for policing by clarifying and strengthening the
police authority role. Chief Constables are, of course, accountable
to their police authority for their actions. Moreover, along with
the normal oversight and monitoring of the force, police authorities
can, subject to certain caveats, call for a report at any time
from the chief constable on any matter connected with the policing
of the area.
In the Association's view, confidentiality would
not be appropriate and should not be sought in the vast majority
of cases but there will be exceptions where, for good public interest
reasons, confidentiality must be paramount.
Catherine Crawford
Secretary
29 June 1998
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