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 bodiesparticularly very large
sumsshould 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
generallyas 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 clausesthough rarewere 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
connectionsometimes strong, sometimes slightbetween
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
34
Q59. Back
35
Letter from North Yorkshire Police Authority, 17 July 1998. Back
36
Letter from Sir John Lovill 9 July 1998. Back
37
Letters from Sir John Lovill 6 May and 9 July 1998. Back
38
Letter from Liability Manager of the Association of British Insurers
26 June 1998. Back
39
Letter of 11 February. Back
40
Letter from Secretary of the Association of Police Authorities
29 June 1998. Back
41
QQ33-52 and Q84f.; see also letter of 11 February from the Chief
Constable. As already noted, one of the reasons for involvement
of the Authority in this case was the doubt which existed as to
the level of insurance cover available, which meant that any decision
to take the case beyond the level of costs for which the insurer
accepted liability would have involved the possible commitment
of funds from elsewhere in the force's budget (Q52, Q111). Back
42
Letter from Secretary of the Association of Police Authorities
29 June 1998. Back
43
Q73 and Q76. Back
44
Letter from Secretary of the Association of Police Authorities
29 June 1998. Back
45
We sought to obtain Mr Taylor's views on the issue of confidentiality
as it applied to his case, but he has been unable-owing we understand
to illness-to submit any evidence to us. Back
46
See for example Report of the Commissioner of Police for the Metropolis
1996/97, Appendix 5; in the 1997/98 Report the information is
to be found on the Internet version of the report, but has been
omitted from the printed version. Back
47
See tables at Appendix 2 (d). Back
48
Q73. Back
49
Letter from Secretary of the Association of Police Authorities
29 June 1998. Back
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