Undercover police officers: how far does their legal liability go?
8 December 2017
TBS v Metropolitan Police Commissioner  EWHC 3094 – read judgment
The High Court has refused an application to strike out a claim in negligence and misfeasance in public office taken by someone born as a result of a liaison between an activist in the animal liberation movement and a man who subsequently turned out to be an undercover police officer.
Although this is not a full trial of the merits, the ruling from Nicol J triangulates on very interesting questions relating to “wrongful life” claims, legal duties owed by people in public office, and the predictability of harm as well as the identity of potential victims. It also touches on the character of psychiatric harm, and how difficult it is to identify the point at which it can legitimately be said to arise. Whatever the results of the ultimate litigation, the arguments here raise sharp questions of public policy as to who, and what, should be compensated from the public purse. There is also a deep philosophical question underlying the whole argument which is known as the “non-identity problem”. Can you harm somebody by bringing them into existence?
The claimant’s mother was a political activist (referred to as ‘Jacqui’). His father, Bob Lambert (“BL”), was an undercover police officer who pretended to share Jacqui’s political views. A liaison between Jacqui and BL led to the claimant’s birth in 1985. BL fulfilled a father’s role until he left in late 1988. In 2012 his role as a police officer was revealed.
In these proceedings the son sought compensation for, amongst other things, his Adjustment Disorder with Depressed Mood which he said he has suffered as a result of finding out that his father was not a political activist but a police officer. He also claimed that he had suffered psychiatric injury from BL purporting to assume a father’s role under a false identity and from BL abandoning his parental role.
The claim was brought for misfeasance in public office and in negligence.
Issues before the Court
1. Misfeasance in public office
To establish this, a claimant must establish that the defendant was exercising his power as a pubic officer. The conduct complained of must also be either specifically intended to injure the claimant (targeted malice) or undertaken in the knowledge that the officer has no power to do the act complained of, or reckless as to whether that is the case (untargeted malice). In this case untargeted malice was the element in play.
The Metropolitan Police contended that the claimant had no standing to sue for misfeasance as he was initially not in existence at all, and then only a foetus at the operative time. A foetus has no legal status in English law. The claimant contended on the other hand that the victim of misfeasance need not be identifiable at the time of the wrongful act. There may then be some delay between the wrongful act and the completion of the cause of action by the suffering of damage, but that is not an unusual scenario. This argument was based on a case concerning a convicted terrorist who killed several people after he had been released from prison. His victims’ identity could not have been known when the decision was taken to release him (Akenzua v Secretary of State for the Home Department  1 WLR 741 ).
Untargeted malice was the relevant element for this claim in misfeasance. The House of Lords described this state of mind in the leading authority on misfeasance, Three Rivers DC v Bank of England  2 AC 1
Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is … sufficient in law
Nicol J held that it was sufficient for the claimant to resist this strike out application by establishing that BL knew that the he had been “likely to suffer psychiatric injury or was recklessly indifferent to this consequence.” Lord Steyn in Three Rivers had used the expression ‘likely to cause damage to an individual or individuals’ as a test of liability, and that was enough.
The defendant also submitted that, as the claimant was only three years old when BL left, his psychiatric disorder could not be pinned to the revelation twenty seven years later of his father’s true identity. The claimant could not have remembered events that took place when he was that young. Furthermore, there was no private duty sounding in damages on parents to be good parents:
the negligence claim must fail so far as it relates to the way in which Lambert performed his role as a father or the circumstances of his departure because, according to Dr Warren, the claimant has no memory of Lambert from his childhood
Again, the judge did not accept that this was sufficient reason to strike out the claim. The deception ran through the entire operation and it was “artificial” to divide it into different periods, pre-conception, conception to birth, and birth to BL’s abandonment of the family.
The claim against the MPC in negligence was based on various grounds, the salient one being that, as employer of BL, it should have predicted that there were “obvious risks” that a child would be conceived in the course of fraudulent sexual relationships entered into by BL whilst undercover. A related and more contestable claim was that a child conceived in these circumstances would suffer harm.
The defendant argued that the claim regarding the claimant’s conception could not succeed because, if he had not been conceived, he would not be alive. In effect, this was a ‘wrongful life’ claim and such claims are contrary to public policy (McKay v Essex Area Health Authority  1 QB 1166 CA). The claimant contended that this was a false analogy. The son of this liaison was not saying that he should never have been born. Rather he was seeking compensation for the psychiatric injury which he had suffered as a result of the deception practised on his mother and on him about his father’s circumstances. Such a claim did not offend the principle of the sanctity of life.
The judge accepted the principle of the claimant’s argument in this respect. Apart from one element of the pleading, he dismissed the defendant’s application to strike out all causes of action.
It will be interesting to see how these arguments fare in the full glare of a trial. It could be that public policy so militates against police undercover operations that the claimant succeeds under misfeasance or negligence or both. But it is equally possible that there will be some critical focus on the gravamen of the son’s complaint, the deception practised on his mother. In causation terms this may not in the end be enough to carry the weight of the injuries said to be incurred.