OUTER HOUSE, COURT OF SESSION [2019] CSOH 9 A63/15 OPINION OF LORD BRAILSFORD In the cause MRS K Pursuer against SIR STEPHEN HOUSE, CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND Defender Pursuer: McBrearty QC, Campbell; BTO Solicitors Defender: Shand QC, Smart; Clyde & Co 31 January 2019 [1] This was an action of damages instituted by a former police officer against the Chief Constable for The Police Service of Scotland in which it was alleged that there was a failure to take reasonable care by Police Scotland in duties owed to their employees. The case for the pursuer as pled on record set forth a list of duties said to be incumbent upon the defender but as developed and presented at proof was ultimately limited to the following averments of duty: “It was the defender’s predecessor’s duty to take reasonable care for the safety of its employees, including the pursuer, and to avoid exposing them unnecessarily to the risk of injury.” (closed record 18B) 2 “It was their duty to afford her fair treatment in carrying out an investigation into her conduct and performance and to support her in her move to another department. It was their duty not to take disciplinary action against her or to move her permanently from her post without affording her fair treatment. The duties to afford the pursuer fair treatment as aforesaid required the defenders, amongst other things;… (ii) not to move her from her post, in particular, not to do so on the basis of preliminary findings which had not been the subject of proper investigations which she had not been made aware of and not had the opportunity to respond to; (iii) to advise her that her post had been re-advertised and provide her with an explanation therefor…”(closed record 18C-E) [2] Proof was restricted to liability and causation. The pursuer gave evidence on her own behalf and adduced the evidence of nine further witnesses. The defenders did not lead evidence. Pursuer’s evidence [3] The pursuer joined the then Grampian Police Force (“Grampian”) in 1990 as a probationary police officer serving in that rank until February 1992, at which time she was awarded the Baton of Honour as the most outstanding officer on basic probationer training. She then commenced uniform duties in Aberdeen serving in that capacity until October 1994 when she was moved to CID duties within the same city. Between March 1995 and November 1998 her service was with the Drug Squad in the city, during which period she was awarded a prize for the best student in detective training. In 1997 she undertook a test purchasing course, completion of which permitted her to undertake work making test purchases of illegal drugs in a covert capacity. In October 1998 she completed the appropriate training and became a qualified undercover officer. She was promoted to detective sergeant in 2000. Between 1998 and 2003 she was employed either within the Grampian Police Force Intelligence Section or as an undercover police officer working both within the UK and abroad. The pursuer’s evidence was that she spent the majority of her 3 working time on undercover duties. In July 2003, whilst deployed as an undercover officer, the pursuer became seriously ill, required hospital admission and operative treatment. As a result she was absent from work until November 2005. On her return to work she was assigned to Grampian Police Force Special Branch where she worked until September 2007 when she was seconded to the Special Operations Unit (“SOU”) of the Scottish Drug Enforcement Agency (“SCDEA”). Her unchallenged evidence was that all police officers working in SCDEA were seconded from other police forces and during their time in SCDEA remained formally officers of the parent force. [4] The pursuer gave evidence in relation to her health in the period from her joining the police until her secondment to the SCDEA in 2007. Following the death of her mother in 1997 she suffered a period of depression which continued till April 1999 and required the prescription of medication. This matter was discussed with Grampian Police Occupational Health Department in October 1997 and a note was made of contributing factors associated with the death of her mother and work related stresses.1 [5] As already recorded the pursuer developed a serious illness in 2003. As a consequence of this illness she suffered from symptoms of anxiety and again developed depression of sufficient severity to require medical intervention and the prescription of appropriate drugs. [6] The pursuer attended regular sessions at least once annually with a clinical psychologist, Mary Keenan Ross, from 1998 until 2013. These sessions were facilitated and paid for by her employer. 1 PDF371. All productions were provided in PDF format on disc. Each page of text being given a page number. These were reproduced in hard copy for the proof in five lever arch folders, each page having a number corresponding to the PDF numbering. For convenience the PDF numbering will be adopted herein. 4 [7] In September 2007 the pursuer was seconded to the SOU of SCDEA. The personal records of SCDEA relative to the pursuer, although a little difficult to follow, describe her position for dates between 2009-2011 as a “permanent posting”.2 [8] The pursuer’s role in SOU within SCDEA was initially of a Test Purchase Coordinator. This involved the coordination and supporting of test purchase operations throughout Scotland. It further involved the organisation of training for test purchasers and her involvement as an active member of the National Undercover Working Group. In the course of her work with SCDEA the pursuer worked with another police officer within the SOU, Detective Sergeant G (“DSG”) a secondee to the unit from Strathclyde Police Force. DSG had been employed in SOU as the Regional Operational Support Sergeant since about 2003, as such he was responsible for the majority of banking arrangements and financial reconciliation within the unit. SOU made use of covert premises, vehicles, bank accounts, mail boxes and companies in order to facilitate covert operations. Banking arrangements were required in order to facilitate and fund such operations. [9] When the pursuer commenced employment with SOU in 2007 it was based in Osprey House in Paisley. At this time the pursuer owned a residential property in Aberdeen. Her evidence was that prior to commencing work with SCDEA management within the agency offered her accommodation to use when she was working in Paisley within a covert flat in the Strathclyde region rented by SCDEA. The offer was accepted. At a later stage again with the knowledge and cooperation of SCDEA management she moved into another covert flat rented by SCDEA. Her position was that during her time in SCDEA she resided either in her own property in Aberdeen, covert flats rented by SCDEA in 2 PDF1223 5 Glasgow or in a property owned by members of her family in Glasgow. She also indicated that her work within SCDEA involved travel throughout the UK, and indeed abroad. In 2009 the office occupied by the pursuer and DSG in Osprey House was relocated to another location. After this the pursuer indicated that both herself and DSG would regularly work at an offsite covert premise ostensibly maintained as business premises. Occasionally she would “hot desk” at Osprey House. This working arrangement was known to the pursuer’s managers who regularly attended at the covert premises she was working from. [10] In relation to the period between 2007-10 the pursuer stated that she both enjoyed her work with SCDEA and performed at a high level. She maintained that this was reflected in appraisals by superior officers made in connection with an application for a competency based salary payment in 20083 and a staff appraisal in February 2010.4 [11] In or about April 2010 Detective Inspector Danny Rae (“DI Rae”) was seconded to SOU and assumed responsibility as the pursuer’s supervisor. Confirmation of the pursuer’s recollection of the date when DI Rae assumed responsibility as her supervisor is to be found in an SCDEA note for a special operations enquiry briefing dated 6 July 2011.5 DI Rae instituted a number of changes in the operation of SOU. One change involved the exchange of roles between the pursuer and DSG. The change required a transfer of information relating to banking arrangements and financial details pertaining to the funding of covert operations between the pursuer and DSG. The tenor of the pursuer’s evidence was that DSG was somewhat obstructive in cooperating with the exchange of roles with her. She did, 3 PDF pages 1120-25 4 PDF1237/1240 5 PDF1845 6 however, consider at the time that she had been informed by DSG of the full details of bank accounts and financial arrangements used to facilitate covert operations operated by SOU. [12] In August 2010 a covert flat often used as a residence by the pursuer was broken into. On being informed by uniformed police of the break in the pursuer reported that property owned by both her and SCDEA had been stolen. Approximately two weeks later the pursuer recalled that she had stored personal jewellery in the covert flat, it was missing and she thought it had been stolen in the break in. She made a further report of that theft. She placed a value on the jewellery stolen in excess of £5,000. She prepared a memo for SCDEA about the incident. After submission of this memo SCDEA made a proposal to reimburse her for lost property, primarily the jewellery, in the sum of £2,500.