The Council's risk register

Alec Samuels considers some of the issues that can be thrown up by a council maintaining its risk register.

The Council maintains a risk or violence register. From time to time a citizen becomes "stroppy" or abusive or threatening or indeed violent towards a member of the staff. This usually happens in housing, and benefits, and sometimes leisure. The relevant officer then enters the name and address of the citizen on the register, with a short description of the unacceptable conduct.

Usually the register advises officers to act cautiously, and not to approach the citizen concerned, or not unless accompanied by a colleague or other appropriate person. The register is then made accessible or available, usually by periodic electronic communication. Hopefully the relevant officer has carefully checked the information for accuracy, and the entry is as discreet as possible.

In Clift v Slough Borough Council [2010] EWCA Civ 1171, [2011] 1 WLR 1774, a citizen was very dissatisfied by an officer's response to a complaint, and used rather intemperate language and behaviour, which could be construed as threatening. The citizen was entered on the register, and the information was circulated to some 66 members of staff and a variety of public and private organisations such as the health authority and community and business organisations, involving some 150 persons, not on the staff of the council, "supernumeraries".

The citizen sued for damages for defamation and breach of her human rights. The council pleaded qualified privilege, namely a legal, moral or social duty to communicate the information to the recipients, the recipients having a duty or genuine interest in receiving the information; and the absence of malice or bad faith or carelessness on the part of the council. The citizen claimed a breach of her human right to respect for her private and family life, namely her reputation (article 8 European Convention of Human Rights). To this claim the council pleaded that its action was in accordance with the law, necessary in a democratic society and for the protection of the recipients.

The Court of Appeal decided that subject to the jury finding the facts the law to be given to the jury by the judge requires the reputation of the citizen to be respected, and the information on the register must be communicated only to those with a real need to know, only the "customer-facing" officers, and their managers, likely to be approached and reasonably to be at risk. The private interest of the citizen in her reputation outweighed unfettered communication of the information. Communication to the supernumeraries was ill considered, indiscriminate, disproportionate, and accordingly legitimate and unlawful. Substantial damages were awarded.

Clearly the council must be extremely cautious in these matters. Verification of the information should be carried out. Only a limited number of directly affected staff should be provided with the information. "Outsiders" should be excluded. The council staff must be protected from violence; at the same time the reputation of the citizens must be protected.

Incidentally, whereas at common law truth has always been a complete defence to defamation this is no longer the case under article 8.

The council sometimes has a tendency to "keep everything". Thus there may be an "incident" between two neighbouring tenants, both alleging violence against the other. The matter may simply be registered without investigation. Or it may be investigated, but no firm conclusion reached as to who was really responsible. Or there may be a prosecution, but an acquittal.

If all this information is retained, indiscriminately, under a blanket policy, then there is a real risk of an article 8 infringement S and Marpur v UK (2009) 48 EHRR 50. The privacy of the citizen must be expected. The scope of any release of the information must be strictly limited.

The council must always have regard to its statutory powers, and their limitations. The Regulation of Investigatory Powers Act 2000 RIPA confers powers, limited powers, of surveillance. The Data Protection Act 1998 is self-explanatory. The Safeguarding of Vulnerable Groups Act 2006 does what the title suggests. The Freedom of Information Act 2000 confers a general right of access to information held by public authorities (s. 1), and an electronic response, though part II ss 21-44 lists a large number of exemptions. The Protection of Freedoms Act 2012 c 9 makes numerous small amendments to previous legislation and should always be checked.

The net result is that the citizen about whom there is information recorded on the risk register has the right of access unless a legal objection can be found. The council should ensure that any such information is accurate, supported by evidence, and no more in volume and detail than is necessary; and good reasons for retention should be given if challenged. Any unresolved disputes must be resolved by the Information Commissioner, and ultimately the judge.  

Alec Samuels is a barrister and formerly Reader in Law in the University of Southampton. He has also been very active in local government, retiring as leader of Southampton City Council in 2011. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..