Tort law essay on police liability PDF

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Introduction Lord Toulson believes the general law of tort applies equally to the police and under negligence this seems to be the truth though this was not always the case. Generally, to be liable under negligence the defendant must owe a duty of care, breach said duty thus resulting in damage. Hence, it is visible that without a duty of care the whole claim fails. The test for duty of care has been developed through a series of case law 1 and is now known as the Caparo2 test3 consolidating already held views on the establishment of duty of care. The test holds that the damage must be foreseeable, that there must be proximity of relationship between the parties and it must be fair, just and reasonable for the duty to exist. The last limb can be described as a matter of public and social policy. Policy first reared its head in Donoghue4 and continues to be an important factor in the law of negligence.5 When it comes to liability of the police under negligence policy is often considered – albeit discriminately – to prevent a duty of care from arising, now policy can be said to be limited and liability follows general tort law principles. This essay would look at the state of police liability in negligence tracking the development of case law in this primarily focusing on Hill and it core principles, providing that these principles are unsubstantiated and resulted in a sort of ‘immunity’ from suit for the police. The essay would also look at an approach which at the time if used could have provided claimants and still provide claimants in such

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Donoughue v Stevenson [1932] AC 562; Anns v Merton LBC [1978] AC 728. Caparo v Dickman [1990] 2 AC 605. 3 For novel situations. 4 Donoghue (n 5). 5 Andrew Robertson, ‘On the Function of the Law Negligence’ (2013) 33 OJLS 31 2

scenarios effective redress. After the landmark decision of Robinson v Chief Constable of West Yorkshire Police 6 the face of police liability has been changed. In understanding the current face of police liability, the significance and the impacts of this decision will be discussed.

Hill: leading the way It is clear that the police owe a duty to protect the public7. Nevertheless, translating this to the tort of negligence is a contentious matter.8 It is important to distinguish between ‘operational’ negligence where the police can be held liable and police policy i.e. decisions on resource allocation prioritisation of cases etc. where they are generally not liable. Operational negligence refers to the way in which the police do their job and ‘like anyone else [the police] is liable to a person injured as a direct result of his acts or omissions’9. Hence in Knightley v John10 where an operational decision by a police officer to drive in the opposite direction in a tunnel, resulted in injury of the constable a duty was found. And again, in Rigby11 the police were liable for carelessly causing damage to a gunsmith’s shop in pursuit of an intruder. Quite rightly this ensures in daily actively the police are careful not to harm individuals but in police policy no duty arises to protect victims of the most extreme negligence12. It is here that Hill made its bed making an already impossible mountain higher to climb. This case concerned the ‘Yorkshire Ripper’ and his final murder victim. The victim’s mother sued the police under negligence for failing to catch him earlier than they had. In the House

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[2018] UKSC 4 See generally Hill v Chief Constable of West Yorkshire [1989] AC 53 [59] 8 Mandy Shircore, ‘Police Liability for Negligent Investigations: When Will a Duty of Care Arise?’ (2006) 11 DLR 33 9 Hill (n 7) 10 [1981] EWCA Civ 6 11 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 12 Kirsty Horsley and Ericka Rackley, Tort Law (6th edn OUP 2019) 7

of Lords, Lord Keith in his speech detailed policy reasons as to why a duty of care on the police would not be attractive and in his own words made the police ‘immune from actions of this kind’. These reasons can be simplified to be that firstly the imposition of liability would not reinforce the police’s general sense of public duty and that potential liability could lead to policing with a ‘detrimentally defensive frame of mind’. Moreover, he expressed sentiments that negligence actions would effectively reopen formerly closed cases and defending negligence actions would effectively divert money, manpower, and time from the police performing their main function13. While some of these arguments are plausible e.g the diversion of resources others like defensive policing simply are not. This is simply because it is ‘objectively verifiable’ that it costs time and money in defending claims, and with a public body like the police this leads to the reduction of already tight funds.14This argument however is one that bears little weight in the grand scheme of things, while heavily relied on in Brooks15 and formed part of the ‘core principle’ called upon again in Smith16 it is clear that the main argument is defensive policing.17 This is the notion that the police would take extra care and resources to eliminate all potential risks – even the most remote to ensure that they would not be liable for a negligence action. As such this would ‘impact detrimentally’ on the police service .18 So for the ‘greater good’19 the police should continue their work unhindered.20 However it is simple to say the opposite may occur – it could make the police better at their job and in the case of certain type of claimant

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Hill (n 7). Claire McIvor, ‘Getting defensive about police negligence: the Hill principle, the Human Rights Act 1998 and the House of Lords’ (2010) 69 CLJ 133 15 Brooks v Commissioner of the Police of the Metropolis [2005] UKHL 24 16 Smith v Chief Constable of Sussex Police [2008] UKHL 50 17 McIvor (n 14) 18 ibid 19 Kirsty Horsey, ‘Trust in the Police? Police Negligence, Invisible Immunity and Disadvantaged Claimants’ in Janice Richardson and Erika Rackley (eds) Feminist Perspectives on Tort Law, Feminist Perspectives (Rutledge 2012) 20 Smith (n 16) at 78 14

lead to effective policing.21 Lord Keith realising this said additional liability wouldn’t push the police to operate any better. It is worth mentioning that not all judges are swayed by this with Lord Reed famously saying, ‘Her Majesty’s servants are made of sterner of stuff’.22 Despite all this the ‘core principles’ were afforded God like supremacy under the law of negligence with many arguing the police had immunity from suit.23 And with the subsequent case law it is easy to see why. In Brooks24, after witnessing the horrendously violent, racially motivated killing of his friend Stephen Lawrence , Brooks was poorly treated which aggravated already developing post-traumatic stress. He alleged the police owed him a duty to ascertain he was a victim of a heinous crime and treat him accordingly and provide him the appropriate support25. An inquiry into the murder found that the case had been grossly mishandled due to institutional racism in the police and the racial stereotyping perpetuated against him.26 Regardless they found no duty of care arose on the facts reiterating Hill27 principles that the primary duty of the police is to investigate and supress crime and owing a private duty to Brooks and any other victim would take up valuable police time and money. Furthermore, imposing such a duty would be ‘bound to lead to an unduly defensive approach in combatting crime’ 28. Yet, this application of Hill 29 is too ‘broad brush’ in that the courts have started applying Hill30 to cases where it was never intended to apply.31 When boiled down these are two very different

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Horsey (n 19.) Home Office v Dorset Yatch Co [1970] UKHL 2. 23 Horsey, McIvor, Shircore 24 Brooks (n 15) 25 ibid 26 Sir William Macpherson of Cluny, Report on the Stephen Lawrence Inquiry (Cm 4262-I, 1999) 27 Hill (n 7) 28 Brooks (n 15) Lord Steyn at 1509 29 Hill (n 7) 30 ibid 31 Claire McIvor, ‘Police Immunity and the legacy of Hill v Chief Constable of West Yorkshire’ (2005) 21 PN 207 22

cases Hill32 was struck out on the grounds of proximity and public policy according to the specific case before them – the principles relate to an omission and a failure to control a third parties actions. As there was no proximity this case was destined to fail.33 Brooks34 conversely concerned the positive, direct infliction of harm thus making it entirely different, while recognised by the Court of Appeal hence their application of Caparo35 this was completely ignored by the law lords36. Lord Steyn described this distinction between an act and omission ‘unmeritorious’37. Put simply in Brooks we see the court clutch on to the Hill38 principles despite not being applicable in this case and denying Duwayne Brooks a victim of extreme negligence no redress. Still, the courts left a tiny door open – after Brooks39 the principle was ‘outrageous’ cases would lead to a private duty of care, that can be said of the next case however redress was also denied. In Smith40 the police were sued under negligence for serious injuries sustained by his ex-boyfriend Gareth after Smith had informed them of violent, abusive threatening telephone, text and internet messages. Despite their severity the police took no steps to protect Smith and declined to view them on two occasions. The Court of Appeal felt his claim was arguable, but the House of Lords rejected this. Lords Hope, Phillips, Caswell and Brown still decided to uphold the ‘core principles’ of defensive policing and resource diversion focusing more intently on defensive policing. As this was such an ‘outrageous’ case it seems almost that the law lords stood by the principle their own reservations in applying it. Lord Phillips expressed reluctance, citing it was close 32

Hill (n 7) McIvor (n 14) 34 Brooks (n 15) 35 Caparo Industries plc v Dickman [1990] UKHL 2 36 McIvor (n 14) 37 Brooks (n 15) (Lord Steyn) 38 Hill (n 7) 39 Brooks (n 15) 40 Smith (n 16) 33

to the ‘outrageous negligence’ outside the Hill principles.41 Lord Brown confessed this decision was ‘not without hesitation’ and the facts in Smith were ‘vastly different from those either in Hill or Brooks’.42 And Lord Carswell felt Smith ‘tested the principle severely’.43 Moreover, Lord Bingham dissenting introduced ‘the liability principle’ which on the facts in Smith would have provided an avenue to impose a duty without conflicting with the Hill principles was unanimously rejected by the others.44 However, this principle would apply in very limited scenarios, where a police officer had credible evidence of imminent attack and knew the location and person of the attacker.45 It is clear that there was an undeniable, unsubstantiated need to cling to Hill surprisingly more so when the law allowed for only ‘potent counter considerations… to override’ the central policy of wrongs being remedied.46 Not to say that Hill held its clutch in all cases. In Swiney47 a duty was found to be owed to police informants and in Costello 48 a duty was found to be owed by officers to protect each other from harm in reasonable circumstances. These were decided with policy considerations found to outweigh the significance of Hill. Many academics conclude that this is how all cases should have been argued with policy from both sides of the argument 49. However, recent developments suggest Hill fading to the background.

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ibid at [101] ibid at [127] 43 ibid at [107] 44 ibid at [44-52] 45 McIvor (n 14) 46 X Minors v Bedforshire County Council [1995] UKHL [749] (Lord Browne-Wilkinson) 47 Swinney v Chief Constable of Northumbria [1996] EWCA Civ 1322 48 Costello v Chief Constable of Northumbria [1998] EWCA Civ 1898 49 Joanne Conaghan, ‘Law, Harm and Redress: A Feminist Perspective’ (2002) , Legal Studies, 22: 319 42

Robinson: a return to ‘traditional principles’? In Robinson v Chief Constable of West Yorkshire Police 50 Lord Reed clarified the law regarding police liability and duty of care. In a quite radical reversal from the policy developments made across the Hill jurisprudence, he neatly wrapped the thorny question of police liability in traditional common law principles.51 The case concerned 76-year-old Mrs. Robinson who was caught in a police scuffle in their pursuit of a suspected drug dealer. As a result, she sustained injuries and sued under negligence. The courts held she had a duty of care not on a matter of policy but on the ‘general principle[s] of the law of negligence.52 In doing this he furthered Lord Toulson’s arguments that the police is no different from any other claimant and broke the unbreakable wall of ‘immunity’ under police liability. It follows now that the police owe a duty of care when their positive actions cause damage in personal injury53 or to property54 but the police in accordance with the general ‘omissions principle55’ are not liable for omission or criminal acts of third parties56. It seems that Lord Reed has just renamed ‘operational liability’ as acts and ‘public policy liability’ as omissions, but he argues that it was the application of the Anns57 test at the time that gave rise to this distinction and Lord Keith has been misunderstood in Hill, reminding Keith held the police is liable ‘as anyone else’58 and the case was struck not necessarily on the policy reasons but on the lack of proximity any mentions of immunity refer to a lack of duty of care similar to an omission. Hence in reading this re-interpretation of Hill it would

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Robinson (n 6) Sarah Arnell, ‘Robinson v Chief Constable of West Yorkshire Police: a reinterpretation by the Supreme Court’ (2018) 2 JurRev 128 52 Robinson (n 6) 53 Ibid, see Knightley 54 See Rigby 55 Robinson (n 6) Lord Reed quoting Lord Toulson in Michael v Chief Constable of South Wales [34] 56 Ibid 57 Anns v Merton LBC [1977] UKHL 4. 58 Hill (n 7). 51

seem Smith – albeit unfortunately – was decided rightly. Lord Reed views the same of Brooks: ‘behaviour which is merely insensitive is not normally actionable’59 While this is true this dismisses the severity of the carelessness faced by Brooks and still doesn’t correctly tie these two cases. It is important to remember that in Brooks Lord Steyn described the distinction between an act and omission as ‘unmeritorious’ here it is paramount to Lord Reed’s decision. As Lord Reed’s aim was to limit the role of policy to only novel cases by presenting a view that the case law is unified this distinction is unseemly. And while this orthodox view of omissions is welcome even with that there are some problems with the operation of the omission principle as regards public bodies. A public body is fundamentally different from a private individual and this should be taken into account.60 Furthermore as challenged by Lord Hughes and Lord Mance, there cannot be a total ‘a return to orthodoxy’ following the staunch body of case law in which policy has been the deciding factor in the law and it can even be argued that the general principles are general principles because of policy. It still follows that despite this restriction of policy it would apply in novel cases. It is therefore submitted that in these cases the courts as argued above should employ a balancing act between standard policy justifications and their counter arguments. 61 Notwithstanding, the above Lord Reed ’s judgment has been readily welcomed by academic voices and is being readily applied in case law , it effectively removes blanket immunity from the law of negligence and imposes more on the police than was held before – in respect to third party liability of direct police actions.

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Robinson (n 6) Stelios Tofaris and Sandy Steel ‘Negligence Liability for Omissions and the Police’ (2016) 75 Cambridge Law Journal 128. 61 Erika Chamberlain, ‘Negligent Investigation: A New Remedy for the Wrongly Accused: Hill v Hamilton-Wentworth Regional Police Services Board, (2008) 45 ALR 1089 60

Conclusion Negligence liability is a threefold test, the most important of these being the duty of care, previously a general striking out principle was prevalent among cases concerning negligence of public bodies, now where more likely than the police. Pre Robinson police liability was entrenched under the Hill principle where a claimant was likely not to be offered redress on the basis of policy reasoning. This seemed to confer ‘immunity’ on public bodies in direct contravention of human rights provisions. However, with the introduction of Robinson it is now firmly understood, building upon Lord Toulson in Michael that liability is not based upon policy but on the general principles of the tort of negligence. Following this reasoning: immunity under Hill has been shattered, victims of police negligence may obtain redress where positive police acts give rise to a duty of care – in the context of omissions this is still not the case, and probably never will be thought it has been argued that the principle shouldn’t extend to public bodies in the same way it does private individuals. 62This reasoning can be seen as having brought coherence to the law of negligence. Lord Toulson was right the general law of tort applies equally to the police.

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Stelios Tofaris and Sandy Steel (n 60).

Bibliography Primary Sources Cases Donoughue v Stevenson [1932] AC 562 Anns v Merton LBC [1978] AC 728. Caparo v Dickman [1990] 2 AC 605. Hill v Chief Constable of West Yorkshire [1989] AC 53 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 X Minors v Bedforshire County Council [1995] UKHL [749] (Lord Browne-Wilkinson) Swinney v Chief Constable of Northumbria [1996] EWCA Civ 1322 Costello v Chief Constable of Northumbria [1998] EWCA Civ 1898 Secondary Sources Books Horsley K and Rackley E, Tort Law (6th edn OUP 2019) Contributions to Edited Books Horsey K, ‘Trust in the Police? Police Negligence, Invisible Immunity and Disadvantaged Claimants’ in Janice Richardson and Erika Rackley (eds) Feminist Perspectives on Tort Law, Feminist Perspectives (Rutledge 2012)

Articles Bailey S, ‘Public Authority Liability in Negligence: the Continued Search for Coherence’ (2006) 26 LS 155 Burton M, ‘Failing to Protect: Victims' Rights and Police Liability’ (2009) 72 MLR 283 Cameron G, ‘Negligence and the duty of care; the demise of the Caparo test; and police immunity revisited: Robinson v Chief Constable of West Yorkshie Police (2019) 23 ELR 82 Gladwin-Geoghegan R and Foster S, ‘Police liability in negligence: immunity or incremental liability?’ (2018) 23 Cov LJ 43 Robertson A, ‘On the Function of the Law Negligence’ (2013) 33 OJLS 31 Shircore M, ‘Police Liability for Negligent Investigations: When Will a Duty of Care Arise?’ (2006) 11 DLR 33 McIvor C, ‘Getting defensive about police negligence: The Hill principle, the Human Rights Act 1998 and the House of Lords’ (2010) 69 CLJ 133 McIvor C, ‘Police Immunity and the legacy of Hill v Chief Constable of West Yorkshire’ (2005) 21 PN 20 Conaghan J, ‘Law, Harm and Redress: A Feminist Perspective’ (2002) , Legal Studies, 22: 319 Arnell S, ‘Robinson v Chief Constable of West Yorkshire Police : a reinterpretation by the Supreme Court’ (2018) 2 JurRev 128 Tofaris S and Steel S, ‘Negligence Liability for Omissions and the Police’ (2016) 75 Cambridge Law Journal 128. Tofaris S, ‘Duty of care in negligence: a return to orthodoxy?’ (2018) 77 CLJ 454 Chamberlain E, ‘Negligent Investigation: A New Remedy for the Wrongly Accused: Hill v Hamilton-Wentworth Regional Police Services Board, (2008) 45 ALR 1089

Hoyano, L ‘Policing Flawed Police Investigations: Unravelling the Blanket’ (1999) 26 MLR 917...