House of Commons - Home Affairs

Select Committee on Home Affairs Second Report

CONFIDENTIALITY OF POLICE SETTLEMENTS OF CIVIL CLAIMS

Possible reasons for confidentiality

16. It is a fundamental tenet of public life that sums paid out by public bodies—particularly very large sums—should in principle be disclosable since they represent expenditure of public money. There must be a strong presumption towards openness in matters of this kind. The Association of Chief Police Officers acknowledged this, stating that "We support the drive towards greater openness in public affairs...".[22] The Association of Police Authorities stated that it "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".[23] The Association noted that the level of any award "is always likely to be published" in cases which lead to a completed trial, and also stated that in the general run of cases which do not reach trial they saw "no need for such settlements to be kept secret".

17. But, as the Taylor case has shown, it is clear that such openness is not always achieved, at least in the field of settlements of civil claims. Concern has been expressed from some sources that the Taylor settlement is not unusual in being made subject to confidentiality, even if it is unusual in size.[24] For example, a confidentiality clause was attached also to the settlement of an alleged sexual harassment case involving North Yorkshire Police in September 1996.[25] We see no general reason of principle by which the size of settlements made of civil claims against the police should be an exception to the general rule in favour of openness; unless there are valid reasons for treating such payments exceptionally, we consider that it is wrong for them to be made subject to requirements of confidentiality. We therefore examined the various arguments put forward as to why confidentiality might be appropriate in some cases. A number were put to us.

18. Payments made under insurance policies It is necessary first of all to deal with the proposition that where sums are paid out under an insurance policy rather than directly from police funds then issues of accountability do not come into play. It is clearly true that there is a lesser effect on public finances where the sum is paid by insurers. Nor can the proposition be fully dismissed by arguing that the level of payments will affect insurance premiums and that public accountability is therefore engaged to the same extent as if the payments were directly from public funds. As the Chief Constable observed, claims experience is only one of the criteria taken into account by insurers in fixing the level of premiums.[26] MMI confirmed this, stating that "if the insurer took the view that a particular case was so extraordinary in its nature and value then it might conclude that a similar event was unlikely when assessing future risk".[27]

19. However, we consider these points to affect the issue only in matters of degree rather than principle. Payments generally—as Mr Murphy, Chairman of the Greater Manchester Police Authority, recognised[28]—will have some effect on premiums, even if there is not a direct correlation. Furthermore, the size of any payment made (whether or not liability is admitted, which we consider below) is likely to say something about how the police force in question has behaved and is therefore a matter of legitimate public interest to the citizens on whose behalf they operate. For these reasons, we consider that the fact that a payment may have been made under an insurance policy rather than directly from public funds does not in itself justify the withholding of the information from the public.

20. The Association of British Insurers confirmed that it was not the practice to include any requirements for confidentiality in the insurance policies themselves.[29]

21. Non-admission of liability It might be argued that where there has been no admission of liability the publication of any payments made under a settlement could give misleading signals to the public about the culpability of the police force concerned. The President of the Association of Chief Police Officers, defending the proposition that confidentiality clauses—though rare—were sometimes justified, told us that "Confidentiality clauses can be a useful tool for securing an agreement between parties where no reasoned judgement has been given by a judge without the implication of uninformed views being expressed about the merits of each side's case or the level of the payment".[30] The Chief Constable and the Chairman of the Police Authority in the Taylor case explained very clearly to the Committee, at some length, the reasons why they had felt it would be inappropriate to spend further large sums of public money in the case, even though liability was denied.[31]

22. We do not challenge the proposition that there will be occasions when it is in the wider public interest for cases to be settled and payments made even where there is no admission of liability. But, even in such cases, there is likely to be some connection—sometimes strong, sometimes slight—between the amount of money paid out and the extent to which the police force fears that it might lose the case. Mr Murphy told us that he felt "there was some comfort" in having the confidentiality clause because it meant that, since the court had never come to a final view, no-one could claim to have won while, if the matter had been fully public, then it would have been difficult to prevent media reports and headlines which would have conveyed a different impression.[32] In such cases the public, in our opinion, have a right to know what has happened so that they can come to their own view as to how their police force has acted; accordingly, we do not think that the non-admission of liability is a sufficient reason for confidentiality. In any event, since such cases are assessed against the civil rather than criminal standard of proof, guilt is not at issue; even if a case is followed through to a judgment the public will still have to form their own impression independently of the court's view.

23. Effects on other claims We were told in oral evidence that one reason for confidentiality in the Taylor case was that any settlement in the case could have a bearing, once it became known, on two other related cases which were still pending. Councillor Murphy suggested that the insurers "did not want to have publication of the settlement because that may damage the cases that they were looking at and any settlements that they may have to make".[33] He also indicated that it was in the Police Authority's interest more generally not to be seen to be paying out large sums in compensation and risk giving the impression that they might be a "soft touch".[34] The North Yorkshire Police Authority made a similar point, noting that in their case "publication of the figures might be seen to encourage speculative claims against it and set a false benchmark for future claims".[35]

24. We accept that it is perfectly reasonable for a police force, or its insurers, to safeguard their position in respect of other cases. However, the Chairman of MMI told us that it was not an issue for them in the Taylor case, not least because it would have been very unlikely "that the imposition of confidentiality clauses would prevent discussion between the Plaintiffs of any proposed settlement terms".[36] He explained also that "To the best of my knowledge no similar clause of confidentiality has ever been incorporated in any other claim settlement involving a police authority insured by this Company" and any need for confidentiality in settlements was infrequent.[37] The Association of British Insurers told us that insurers might "occasionally" require a confidentiality agreement, to avoid publicity for a claim or for elements of it "to avoid opening the floodgates to copycat claims or spurious claims, or to protect business relationships", although "such clauses are very rarely used and are difficult to enforce".[38]

25. Two points strike us. The first is that in this case any need for confidentiality did not require it to be imposed indefinitely. It would have been possible for the confidentiality clause to be time restricted so as to be in force only for so long as specified other cases remained unsettled. Secondly, imposing confidentiality on the level of the settlement could only be effective in preventing an effect on the other cases so long as the confidentiality was preserved. It seems that in this case newspapers were reporting figures for the level of damages which were never seriously challenged right from the day of the settlement; this must be likely to happen in almost any high profile case. We conclude that any imposition of confidentiality for the purpose of avoiding prejudice to other cases would only be justified in narrow circumstances and should be time limited to expire when other specified cases have been settled.

26. Public bodies' exercise of discretion Clearly not every detail of the operations of a public body is appropriate for publication. As the Chief Constable put it in evidence to us "Even public bodies...are entitled to exercise some discretion in deciding what should properly be open to public scrutiny in one way or another".[39] We fully accept this and would add that it must be even more important for police forces than for most other public bodies. Of particular importance is the need to protect current and future operations, sources of information, matters of national security, and certain personal information or commercially confidential information. Nevertheless, it does not seem to us that the level of a settlement of a civil claim against the police will generally need protection for any of these reasons. The Association of Police Authorities noted that while there will often be a need for a degree of confidentiality in relation to police operations during the hearing of a case (with the consent of a judge) or in cases settled out of court this did not generally preclude the publication of the level of any award.[40]

27. Accountability through the Police Authority Mr Wilmot drew our attention to the fact that, even where information was not in the public domain, a Chief Constable remained accountable to his or her police authority. In the Taylor case, although the conduct of the case was out of the Authority's hands, a sub-group of the Authority comprising the Chairman and some of its leading members were party to some of the discussions, and were consulted by the Chief Constable and the insurers, though they were not made aware of the final settlement figure.[41] We were surprised that all the members of the Police Authority were not kept informed of the progress of the case and the outcome. The Association of Police Authorities quite properly emphasised the role of authorities in ensuring accountability on behalf of the public.[42]

28. A police authority has a major role to play in ensuring accountability of senior police officers for the conduct of their force and this will include, quite properly, discussion of information which may not be appropriate for release into the public domain. Again, however, we do not see that accountability through the police authority is a complete substitute for information being made available also to the public if this is appropriate on other grounds.

29. Request of the other party In some cases of course a request for confidentiality might be made by the plaintiff in the case, for personal reasons of his or her own. Mr Wilmot referred to one such case in his oral evidence.[43] The Association of Police Authorities suggested that confidentiality to the persons seeking the settlement might be "so fundamental that the settlement would not be agreed at all if the amount were to be subject to debate" and that in such cases it would be in the public interest to agree to confidentiality if this meant that the case could be settled more quickly and more cheaply.[44] It is difficult to be prescriptive about the circumstances which would justify such a request, but we can see in principle that there may be occasions when confidentiality is justified at the request of the plaintiff. In the Taylor case, although the confidentiality clause was accepted by Mr Taylor, we have no evidence[45] that he took any steps to ask for confidentiality on his own account.

Conclusions on confidentiality of settlements

30. We have already stated that in our view there must be a presumption that the way in which public funds are spent by a public body should be open to the public. We have examined the possible reasons brought to our attention why this might not always apply to the settlements made by police forces, or by insurers on their behalf, of civil claims made against them. We have concluded that the arguments for public disclosure outweigh those for secrecy. We accordingly recommend that whatever steps as are necessary be taken to ensure that disclosure becomes the standard practice.

31. We do not propose that this requirement should be automatically applicable without exception, since we accept that there may be a very few circumstances, difficult to specify in advance, where an exception might be made. For example, we accept that there might be limited exceptions where there is some personal justification for confidentiality on the part of the plaintiff, or where temporary confidentiality is necessary because of other current litigation.

32. As indicated at the beginning of this report, civil actions are one of the ways in which police forces are held to account for their conduct. But it is helpful in this respect not only for basic information on particular cases to be disclosed, but for the public to be informed of the overall position in relation to such claims. In the evidence received for our earlier report on Police disciplinary and complaints procedures we noted that the Metropolitan Police publish in their Annual Report a table giving information on the number of actions and threatened actions faced by them each year, together with the damages paid in settlement (broken down between threatened actions, settled actions, and court awards).[46] The Chief Constable of Greater Manchester was able on request to supply figures for his force also,[47] and indicated that he would be willing to consider putting the figures in his Annual Report.[48] We understand that HM Inspector of Constabulary has recently requested all forces to prepare this information, on a common basis.

33. We note the caveat expressed by the Association of Police Authorities that the overall level of payments made cannot be taken as a direct measure of the conduct and performance of a force,[49] but we believe that the practice of listing information in their annual report on the number of civil actions and amounts paid is a helpful one, and we recommend that it be done by all police forces.

22 Letter from President of ACPO 23 June 1998. Back

23 Letter from Secretary of the Association of Police Authorities 29 June 1998. Back

24 See for example article by Mr Duncan Campbell Guardian 26 June 1998. Back

25 Letter from North Yorkshire Police Authority, 17 July 1998, on the Libby Ashurst case. Back

26 Letter from Mr Wilmot 11 February 1998. Back

27 Letter from Sir John Lovill 11 February 1998. Back

28 Q 59. Back

29 Letter from Association of British Insurers 26 June 1998. Back

30 Letter from Mr David Blakey, CBE, QPM 23 June 1998. Back

31 Mr Wilmot indicated that the costs of the case were around £30,000 per day (to both sides) and that the case was, at the time it was settled, expected to take a further 9 months to conclude (Q6). Councillor Murphy stated that "we always stood by the argument that there was a case to be answered and that case should be fully tested out through the courts in whichever way possible. At the end of the day the decisions that were made were made on economic grounds" (Q28). In the North Yorkshire case referred to at paragraph 17 above, the police authority stated that the case was settled because it was accepted that "Ms Ashurst's health had suffered and that further damage might be caused by a public airing of the issues that had caused the suffering" (letter from North Yorkshire Police Authority, 17 July 1998). Back

32 QQ30-31. Back

33 Q41; see also QQ55-58. Back