It’s a fair cop: Supreme Court clarifies scope of duties of care owed by police

12 February 2018 by Isabel McArdle

Robinson (Appellant) v Chief Constable of the West Yorkshire Police (Respondent) [2018] UKSC 4

Update – Isabel McArdle talks to Rosalind English about this case in the latest episode from Law Pod UK, available for free download from iTunes and Audioboom (episode 23).

The Supreme Court has made a significant decision on the question of the scope of the common law duty of care owed by police when their activities lead to injuries being sustained by members of the public. It has long been the case that a claim cannot be brought in negligence against the police, where the danger is created by someone else, except in certain unusual circumstances such as where there has been an assumption of responsibility.

This case, however, was focussed on the question of injuries resulting from activities of the police, where the danger was created by their own conduct. The answer is that the police did owe a duty of care to avoid causing an injury to a member of the public in those circumstances.

Facts

On a Tuesday afternoon in July 2008 the Appellant, a woman of 76 years of age, was knocked down by three men as she walked through the centre of Huddersfield. The three men were two police officers and a suspected drug dealer (Mr Williams), which the police were attempting to arrest. As the police officers struggled with Mr Williams the men fell into the Appellant who was pushed to the ground. She suffered injuries as a result. The police officers had been unaware of the Appellant’s presence at the time of the incident.

The Appellant issued proceedings for damages for personal injury, on the basis of negligent conduct on the part of the officers.

At first instance the judge determined that the officers had been negligent but nevertheless were immune from negligence claims against them under Hill v Chief Constable of West Yorkshire [1989] AC 53 and more recently in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3 where this immunity was extended to omissions.

The Court of Appeal considered the Caparo test (Caparo Industries plc v Dickman [1990] 2 AC 605) and found that most claims against the police, when the police were engaged in their “core function”, would fail the third stage of the test. This is that it will not be fair, just and reasonable to impose a duty of care. The Court also found that Mr Williams had caused the harm to the Appellant and the case concerned an omission by the police rather than a positive act. Finally, the Court of Appeal determined that even if the police owed the Appellant a duty of care, they were not in breach of it.

The Supreme Court appeal focussed on the questions of whether police owe a duty of care to avoid causing injury while they exercise their core functions, and whether it makes a difference if the case concerns an act or an omission.

The decision

The Supreme Court allowed the appeal and concluded that a duty of care existed in this case. All five Justices agreed on the outcome, but split in relation to the reason why a duty of care existed here.

The lead judgment was given by Lord Reed. He noted first the significant public law duties owed by police. In relation to private law duties, he commented:

[70] … it follows that there is no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime. They generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise. Applying those principles, they may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency, as in Dorset Yacht and Attorney General of the British Virgin Islands v Hartwell. Applying the same principles, however, the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created, including injury caused by the conduct of third parties, in the absence of special circumstances such as an assumption of responsibility. (Emphasis added)

In other words, where the police take actions which create a reasonably foreseeable danger to an innocent bystander, they owe a duty of care. The majority found that this flows from the ordinary applications of the principles of negligence i.e. this is an established situation where a duty of care arises, and consequently there is no need to ask the third Caparo question, whether imposition of a duty of care would be fair, just and reasonable. The conduct complained of here was an act, not an omission.

Lord Mance and Lord Hughes agreed with the majority that the finding of negligence at first instance should be restored. However, Lord Mance disagreed that when recognising and developing an established category of negligence, the Court would not be affected by policy considerations. He explained:

[94] What I think emerges from this examination of past authority is that it is not possible to state absolutely that policy considerations may not shape police or CPS liability in a context where the conduct of the police may perfectly well be analysed as positive, rather than simply as involving some form of omission.

He considered that the Court should now exercise, as a policy choice, its power to find “the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by or bystander at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury on the public” [97].

Lord Hughes considered that there are vital policy considerations when limiting the police’s duty of care, particularly any duty which the police owe individuals during the investigation of crime:

[121]… policing may sometimes involve unavoidable risk to individuals. It may very often involve extremely delicate balancing of choices. Crowd control, hostage situations, violent outbreaks of crime and the allocation of scarce resources where there are large numbers of persons with the potential to offend, even at the terrorist level, are simply examples. Sometimes decisions may have to be made under extreme pressure; at other times they may remain very difficult notwithstanding time for analysis, and there may be a high level of risk that they turn out to be wrong. The question is always not whether, with hindsight, the decision was wrong, but whether in all the circumstances it was reasonable.

Analysis

At first blush, a reader of this decision may find it relatively unsurprising. Why should public servants, when engaging in activities in a public place where injury to a bystander was reasonably foreseeable from arresting an individual, not be subject to a duty of care requiring them to take reasonable care to avoid injuring bystanders?

Actions against the police however have a complex history, and the public interest in the police being immune from certain types of private law claim has long influenced this area of law.

In Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049, a decision of the House of Lords (previously the most senior court, now replaced by the Supreme Court), the mother of a serial killer’s victim sued the police in negligence for failing to catch the murderer at an earlier point in time. Had they done so, her daughter would not have been killed. Her claim was struck out.

Lord Keith noted: “There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.” (Page 59). This statement, especially the first sentence, is consistent with the decision in this case but leaves open the circumstances in which a claim may be brought for direct results of police acts and omissions.

However, the House firmly rejected the imposition of a duty of care owed to a member of the public to apprehend an unidentified criminal, as was sought by the claimant in that case. Not only was there no assumption of responsibility for the criminal’s particular victims, but public policy, with the imposition of a duty of care owed in these circumstances could potentially lead to “a detrimentally defensive frame of mind” and “significant diversion of police manpower and attention from their most important function, that of the suppression of crime” (Lord Keith, page 64).

It is the scope of this immunity from a negligence claim that has led to much argument. The decision in Robinson brings welcome clarification, and builds on the position in cases like Hill. Where the danger is created by someone else, police conduct which does not prevent injury resulting will not normally found a claim (although it can in some circumstances, like where an assumption of responsibility has been taken on by the police for a particular individual).  But where the danger is created by the police’s own conduct, there will be a duty of care, provided injury was reasonably foreseeable.

Isabel McArdle is a barrister at One Crown Office Row.

Hannah Wilce (co-author of this post) is currently a pupil at One Crown Office Row, seconded from HMRC.