Disclosing information where a Duty of confidence exists

Where an individual has given their clear and explicit consent to disclosure for a particular purpose, the common law duty of confidence is overcome. Crime Reduction is one area, where seeking the individual’s consent is not always appropriate, for example, the detection of crime.

Information held in confidence can still be disclosed without the individual’s consent, where it can be demonstrated that:

• disclosure is required by law (e.g. under an Act of Parliament creating a statutory duty to disclose).

• for the detection, prevention and prosecution of serious crime.

• there is a public interest.

• there is a risk of death or serious harm

• a public health interest.

• in the individual’s health.

• In the interest of the individual concerned.

It will need to be clearly established that these considerations are sufficient to override the duty of confidence and that the disclosure is strictly necessary for these purposes.

In the context of mainstream crime reduction activities, the majority of disclosures are normally considered to be in the public interest. This should be particularly true of the activities outlined in the Crime & Disorder Act 1998 (see Crime & Disorder Activities). The very wide range of crime reduction activities and the need to consider individual circumstances means that it is not possible to provide clear or authoritative advice in this guidance and legal advice must be sought, where there is any doubt. Case Law on the disclosure of information in this context should also be given full consideration and will highlight relevant considerations.

The police have a general common law power to disclose information for policing purposes, usually for one or more of the following reasons, the:

• prevention and detection crime

• apprehension and prosecution of offenders

• protection of life and property

• licensing and vetting

• assisting the public

Disclosures for any of these reasons are normally detailed in guidance within force policies and procedures.

Section 115 of the Crime & Disorder Act provides this power, where it is necessary for a purpose defined by and compliant with the Act (see Crime & Disorder Activities).

Having established that there are legal grounds for disclosure in common law, compliance with relevant statute law (i.e. Data Protection Act 1998, Crime & Disorder Act 1998, Human Rights Act 1998 and other relevant legislation) will need to be established.

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