Cole v States of Jersey Police

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith,Jurats Le Brocq,King
• Judgment Date: 13 December 2007
• Neutral Citation: [2007] JRC 240
• Date: 13 December 2007

[2007] JRC 240

ROYAL COURT

(Samedi Division)

Before:

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Brocq and King.

Between

Harry Royston Cole

Plaintiff

and

The Chief Officer of the States of Jersey Police

Defendant

Mr Cole represented himself.

Advocate D. J. Benest for the Defendant.

Authorities

Data Protection (Jersey) Law 1987.

The Rehabilitation of Offenders Act 1974.

Cole v Postal and Police [2003] JRC 152.

Cole v Postal and Police [2004] JCA 087.

Cole v Police [2005] JCA 157.

Origin and Development of Jersey Law and Outline Guide.

Campbell v MGN [2004] 2 WLR 1232 (HL) at p.225.

Human Rights (Jersey) Law 2000.

Attorney General v Guardian Newspapers and Ors (No 2) [1988] 3 WLR 776 (HL).

Cornelius v de Taranto [2001] E.M.L.R. 12.

McGregor on Damages 17 ^th Edition.

Douglas v Hello! Ltd (No.3) [2003] 3 All E R 996.

Douglas v Hello! Ltd (No.6) [2004] E.M.L.R. 2.

Archer v Williams [2003] E.M.L.R. 38.

THE COMMISSIONER:

1 Harry Royston Cole, the Plaintiff, brings a claim for breach of confidence or misuse of private information against the Chief Officer of the States of Jersey Police, the Defendant, arising out of the disclosure in November 2001 by the Defendant to Jersey Post of the Plaintiff's record of past convictions. It is accepted by the Defendant that this information was confidential and that it was disclosed. Accordingly, the issue before the Court was whether the Plaintiff consented to that disclosure and, if not, whether its disclosure was justified in any event in the public interest.

2 The Plaintiff's path to this Court has not been an easy one. His original Order of Justice which brought claims under the Data Protection Jersey Law 1987, the Rehabilitation of Offenders Act 1974, The European Convention on Human Rights and in Negligence was struck out by the Master on the grounds that it was frivolous or vexatious and an abuse of process. The decision of the Master was upheld by the Royal Court on 4 ^th September, 2003, ( [2003] JRC 152). That decision was in turn upheld by the Court of Appeal on 14 ^th May, 2004, ( [2004] JCA 087) but it gave leave to the Plaintiff to amend his Order of Justice to formulate a claim for breach of confidence or misuse of private information. The Plaintiff reformulated his Order of Justice to include a claim for breach of confidence but still retained the various claims which were not admissible following the decision of the Royal Court and the Court of Appeal. His Order of Justice was again struck out by the Royal Court on 9 ^th November, 2005 ( [2005] JCA 157), on the ground, in relation to the breach of confidence claim, that it could see no possibility of success. The Plaintiff appealed again to the Court of Appeal which on 9 ^th November, 2005, ( [2005] JCA 157) allowed the appeal in relation to the claim for breach of confidence. In relation to the issue of damages, it considered the proper basis for such a claim was not for loss of reputation but for injury to feelings.

3 The hearing before this Court took place on 13 ^th, 14 ^th, and 15 ^th November 2007 when judgment was reserved. The Plaintiff, who is now 70 years of age, did not, as urged by the Court of Appeal, seek legal representation. We heard two witnesses of fact, namely the Plaintiff and Theresa Lamy, who had been the director of Human Resources at Jersey Post at the relevant time. There was also filed with the Court an affidavit of Allyson Edwards, who had been the manager of the Criminal Justice Unit at the States of Jersey Police force at the relevant time but who was not available to given evidence before us. The Plaintiff also subpoenaed Mrs Emma Martins, the Data Protection Commissioner, Mr John Pinel, the Chief Executive Officer of Jersey Post, Mr Graham Power, the Chief Officer of the States of Jersey Police (the Defendant) and Senator Wendy Kinnard, the Minister for Home Affairs. It would be fair to say that the Plaintiff saw these proceedings as an opportunity to address deficiencies he perceived in the current system in relation to spent records and his main purpose in calling these further witnesses was to explore those issues. The Court was not prepared to allow the hearing to turn into a public enquiry and this gave rise to some considerable frustration on the part of the Plaintiff, although he did in due course and with good grace accept that our task was limited to the disclosure in November 2001 of which he complained. To the extent that we fail to make reference to the evidence of these further witnesses, it is only because, through no fault on their part, it was not relevant to the issue before us.

The facts

4 Very few of the facts of this case are in contention and can be stated as follows:

• (i) Every year Jersey Post employs casual labour to cover the busy Christmas period. Because of the number of applications involved it had to have a quick means of processing them and one of the criteria set was that no one with a criminal record would be employed.

• (ii) Jennifer Callaghan was the member of the Human Resources Department at Jersey Post in charge of the project for 2001 and in accordance with standard practice she liaised with Allyson Edwards of the States of Jersey Police to ensure that all necessary steps were taken to fulfill the requirements of the Data Protection Law and the proper Police procedures for the security checks to be carried out.

• (iii) Allyson Edwards kept a note of the discussion points raised in her conversation with Jennifer Callaghan held in October 2001, the following parts of which are relevant to this case:-

  "(i) Applicants must be aware that the Rehabilitation of Offender Act does not apply in Jersey (Act to rehabilitate offenders who have not been re-convicted of any serious offence for periods of years).

  (ii) Applicant must provide consent for a check to be made with the police".

• (iv) The advertisement placed by Jersey Post in the Jersey Evening Post, which was headed "Christmas casual staff £6.65 per hour", sought staff to help ease the pressure over the period from 3 ^rd December 2001 to 22 ^nd December 2001 and invited applicants to pick up an application form from the Post Shop in the main Post Office in Broad Street. Accompanying each form was a letter which contained the following sentence " Please note that it is standard practice for all references to be checked and for all applicants to undergo a security check before commencing employment".

• (v) The Plaintiff described himself as a registered business consultant and licensing practitioner specialising in the protection, development and marketing of intellectual property on behalf of inventors and business entrepreneurs and a part-time lecturer at Highlands College teaching adults in the subject of business entrepreneurship and intellectual property. In 1992 he published a book on the subject and has been invited to officiate as a judge at a number of UK invention shows/conventions. However, when money was in short supply he was not too proud to seek any kind of part time or casual work to supplement his income, and he saw this advertisement as a good opportunity to earn extra income and to get him out of his office environment and get more exercise. Although the hourly rate was low, he calculated that with double/triple shifts he could earn £1,800 or more over the short period involved. He collected the application form from the Post Office, completed it and then delivered it to Jersey Post with a covering letter dated 30 ^th October 2001. In earlier proceedings he stated that he could not remember receiving the letter which accompanied the form but in cross-examination he accepted that it was a possibility that the letter was attached.

• (vi) In the form there was a question in relation to convictions as follows:

  "Convictions

  Have you ever been convicted or found guilty of any offence in a Court of Law (including Honorary Police enquiries, Juvenile Court or Court Martial) or is any case pending?"

  Mr Cole answered "no" to this question. We will deal below with his explanation as to why he answered this question in this way. The form also contained a declaration in the following terms:

  "Declaration

  "I declare that I have answered these questions truthfully and accurately and that I understand the conditions of employment. I understand that the particulars given by me might be checked and that if they are found to be false within my own knowledge I may be regarded as ineligible for recruitment or dismissed after appointment".

  The form did not address the two matters raised by Allyson Edwards in that it made no reference to the Rehabilitation of Offenders Act not applying in Jersey and did not provide for specific consent for a check to be made with the police.

• (vii) On 31 ^st October, 2001, Jennifer Callaghan wrote to the Plaintiff in the following terms:

  "Thank you for your application for Christmas casual employment. I confirm that you have provisionally been allocated a position with Jersey Post over the Christmas period, subject to satisfactory police checks.

  I will write to you again during the last two weeks of November 2001, to confirm your duties and your commencement date.

  If you have any queries or if your plans change in the meantime, please do not hesitate to contact me directly ....."

• (viii) In early November 2001 the completed application forms were forwarded by Jennifer Callaghan to Allyson Edwards who on the 5 ^th November 2001 contacted Jennifer Callaghan expressing her concern that the forms did not provide for the specific consent of the applicant for a police check to be conducted. According to her affidavit she did not raise with Jennifer Callaghan the absence in the application form of a warning in relation to the non—application of the Rehabilitation of Offenders Act in...