The public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and … very potent counter-considerations are required to override that policy.
(Lord Browne-Wilkinson in X (Minors) v
Bedfordshire County Council : )
It is ordinarily – and often rightly – difficult to establish a duty of care in negligence between a public body and a private citizen. However, the chequered history of cases where the police have been negligent in the conduct of their investigations and similar activities – particularly when harm results from an omission and/or the related actions of a third party – shows that the police’s protection by the courts in this respect amounts to a de facto immunity from suit. Though such immunity would seem to be contrary to common law principles and perhaps even in violation of a claimant’s Article 6 of the European Convention on Human Rights right to a fair hearing, the broad and unquestioned application of public policy reasons used to justify judicial denials of duty of care show that it clearly exists in practice. Despite doubts about the continued validity of this reasoning expressed by some senior judges, the UK judiciary has been complicit in protecting the police and consequently in failing to protect vulnerable groups within society.
In relation to ‘operational’ matters, similarly to other public bodies and private individuals, negligent actions by the police result relatively easily in private law duties.1 Duty may also arise where it can be said that despite the harm being caused by omission and/or the act of a third party there has been some responsibility assumed on the part of the police towards the eventual claimant.2 However, instances of often heinous negligence or incompetence in the police’s primary function of investigating and suppressing crime typically leave claimants with no avenue for tortious redress: the police owe them no duty of care. Faced with largely unsubstantiated public policy arguments, claimants (who often have been subjected to the gravest of harms) and their needs are deemed inferior to the perceived ‘greater good’ for society as a whole – that is, letting the police continue their work unhindered (Lord Hope in Smith v Chief Constable of Sussex Police : ). These policy reasons derive from Hill v Chief Constable of West Yorkshire , the (in)-famous case which, according to Lord Steyn in Brooks v Commissioner of Police for the Metropolis , established the so-called ‘core principle’ in this area of negligence (Brooks v Commissioner of Police for the Metropolis : ). In Hill, Lord Keith relied, inter alia, on the twin pillars of defensive practice and resource diversion to find that the police owe no duty of care to individuals in relation to ongoing criminal investigations or their wider public duty of crime suppression. He found that:
[t]he general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime … In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind … A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime.
(Lord Keith in Hill : )
It might be said that private law is not the place for such matters and that the behaviour of public bodies, including the police, is better controlled using public-functioning bodies such as ombudsmen, or independent investigations, such as those conducted by the Independent Police Complaints Commission (IPCC), or even by internal complaints and discipline procedures (Lord Hoffmann 1999: 162). While this argument may persuade in relation to what may be called ‘day-to-day’ negligence, it is wholly unpersuasive in relation to the systemic negligence that gives rise to the exceptional cases in this area. Indeed, one reason that claimants in the most notorious police negligence cases bring civil claims in the first place is perhaps because of their dissatisfaction with other avenues, coupled with the desire for the type of justice that private law supposedly brings. In Hill, for example, the claimant acknowledged that her motivation for bringing a civil action was not the possibility of gaining compensation (she had in fact pledged to give any compensation to charity). Instead, her desire was to instigate an enquiry into the conduct of the police force during the investigation with the dual aims of finding out why the investigation had failed her daughter and to prevent similar occurrences in the future (see Lord Templeman in Hill : ; Burton 2009: 294).
This chapter seeks to add to the growing critique of the judicially-created public policy justifications used to deny police duties of care to individuals harmed by their negligence (see, for example, Burton 2009; McIvor 2010; Wilberg 2010), by countering those arguments with other ‘societal’ public policy considerations. It will argue that the wholesale application of unsubstantiated public policy reasons to questions of duty does more than simply fail individual claimants – it has negative practical implications on society as a whole as well as for already vulnerable or disadvantaged individuals or groups.3 Joanne Conaghan mooted a similar point in her discussion of Waters v Metropolitan Police Commissioner , where she identified how a ‘woman-centred’ (rather than defendant-centred) approach may have led rather more quickly to a finding of duty (2002: 335). In Lord Hutton’s opinion in Waters we can identify elements of wider competing policy arguments beginning to be considered (such as the ‘serious state of affairs in the Metropolitan police’ that would be revealed and the ‘public interest’ in ensuring this did not continue (Waters : ). However, as Conaghan asked: what about policy arguments relating specifically to vulnerable groups such as rape victims (2002: 333 and 337), or even female police officers in a predominantly male environment ‘where bullying is rampant, management is ineffectual and sexism is entrenched’ (2002: 337)? This chapter develops Conaghan’s insights. Using case examples from England and Wales, Canada and Australia, it considers the extent to which to the ubiquitous Hill policy justifications can be countered by reference to their regressive effect on vulnerable individuals or groups within society. While policy considerations are important, these should be closely scrutinised from both sides and none should be automatically presumed to outweigh others. Should judges be doing more to highlight counter-policy concerns? And, if they do not, is justice in these cases really being done?
Why should we trust in the police?
There have been numerous recent highly publicised stories of serious police failures and incompetence in the UK, bringing police negligence squarely into the public consciousness. This inevitably has a bearing on public perceptions of and confidence in the police. In 2010–11, the Independent Police Complaints Commission (IPCC), a body established in 2002 to maintain public confidence in policing and to independently investigate complaints, released several reports into serious police failings. Among these are its reports of the investigations conducted into Operations Danzey, Anflora and Minstead (relating to the criminal investigations undertaken by the Metropolitan Police Service (MPS) into John Worboys, Kirk Reid and Delroy Grant, respectively) (IPCC 2010c; 2011a; 2011b). All three IPCC enquiries highlighted egregious ‘failings by the Metropolitan Police Service regarding sexual offences investigation’ (IPCC 2010c: 22), including mistakes, miscommunications and gaps in information sharing. More recently, the IPCC was called to investigate an incident in which a mother and her two-year-old daughter were shot dead, following concerns expressed by the woman’s neighbours and others that the police could and should have prevented the murders, having been aware of the ongoing problems faced by the woman for at least two years (BBC News 2011a).
IPCC press releases and subsequent news reports tell us of the eventual convictions of criminals who, due to police incompetence, were able to continue committing offences. Worboys (the so-called ‘Black Cab Rapist’) drugged, sexually assaulted and/or raped women in his taxi. Following a public appeal conducted after his arrest, over 80 of his victims contacted the police. He was eventually convicted in March 2009 on 19 charges, including one of rape. It subsequently transpired that Worboys had previously been arrested for the same crimes and released without charge. Disturbingly, the MPS’s own findings showed ‘poor compliance with the Standard Operating Procedures for investigation of rape and serious sexual assaults by front line officers and their supervisors’ (IPCC 2010a: 5). The investigation focused mainly on complaints against the police from two of Worboys’ victims. The first concerned insensitive treatment by police officers. The woman had been falsely informed that a file had been passed to the Crown Prosecution Service, that there was no trace of drugs in her system after her attack and that the suspect did not live near her. While her complaints were not substantiated (though the IPCC report noted that it was disturbing that the woman concerned should have perceived she was treated badly; 2010a: 8–10), others relating to the way the investigation into her assault was conducted, including a complaint relating to the police officers’ favouring of the suspect’s over the victim’s evidence, were upheld. Regarding the latter, the report says:
A Detective Constable became the officer in charge of this case on 29 July 2007. His first entry on the crime report made on 30 July 2007 includes the following statement: ‘The victim cannot remember anything past getting in the cab, it would seem unlikely that a cab driver would have alcohol in his vehicle let alone drug substances’. This appears to be indicative of a mindset that had already been formed – that a black cab driver would not commit such an offence. This mindset would have meant that the cab driver, rather than the victim, had been believed, and would inevitably have damaged the victim’s confidence in the police handling of her allegation.
(IPCC 2010a: 10)
A second woman alleged that ‘[t]he Detective Constable who was the investigating officer in the case failed to investigate her allegation appropriately, coached her not to show emotion ahead of her interview, did not believe her and lost the case papers’ (IPCC 2010a: 12).
All of this is truly disturbing. In its final report, the IPCC concluded that the ‘overwhelming themes in these cases are of an actual or perceived sceptical or insensitive police response to victims of sexual violence, investigations that lack rigour and during which the victims feel they are not being kept informed’ (2010a: 15) and that despite some internal improvement being made by the MPS, ‘more needs to be done if public confidence in the police’s response to reports of rape and sexual offences is to improve’, acknowledging that this is ‘widely regarded’ as ‘a long neglected area of policing’ (IPCC 2010b). However, its formal recommendations were only that leaflets should be provided, outlining the kind of treatment victims of sexual offences should expect from the police, alongside a statement that ‘the Met needs to work more closely with the voluntary sector, who have a crucial role working with victims to promote public confidence in the police’ (IPCC 2010b).
In a similar case, Grant (known as ‘the Night Stalker’) was a serial sex attacker who preyed, primarily, on old women living alone in London, for almost 20 years. His eventual conviction was followed by an apology from the MPS about mistakes made during the investigation, which led to a 10-year delay in his arrest, and therefore a number of attacks that could have been prevented. Similar failings surfaced in relation to the negligent handling of the prolonged investigation into the crimes of Reid, another serial sex attacker, first identified as a potential suspect in 2004 but only asked to give a DNA sample (which linked him to three earlier assaults) in 2008 when another police unit took over the investigation (IPCC 2011a). In a statement, the IPCC Commissioner for London, Deborah Glass, said:
The fact that Reid was identified as a suspect in 2004 and yet went on to sexually assault more women before he was eventually arrested in 2008 is a real cause for concern. The public will understandably ask if some of these attacks could have been prevented and indeed, if the police took the victims as seriously as they should.
Taken together, these cases (and there are more) highlight systematic failures among police to carry out their investigative functions – particularly into sex crimes – diligently and with care. In relation to Worboys, the five officers concerned were internally disciplined (one Detective Constable and one Detective Inspector received written warnings, and the others received ‘formal words of advice’ (IPCC 2011b)). In the Grant and Reid investigations, the IPCC found that three officers and one Superintendent and two Detective Inspectors (respectively) had a case to answer as a result of their incompetence during the investigation. Additionally, in the Reid investigation, a Chief Superintendent and a Detective Sergeant received formal words of advice.
While this evidences that something does happen when complaints are made, it does not have the same effect as a judicial finding that police owe duties of care in their investigations would have, particularly in any deterrent sense. In the Minstead Report the IPCC states that one of its reasons for conducting the investigation was to enable it to report on any ‘organisational learning for the police service, including whether any change in police policy or practice would help to prevent a recurrence of the incident investigated’ (IPCC 2010c: 4). However, the threat of civil liability may be more of a deterrent and have more impact on changing police practice and challenging their perceptions and assumptions in future cases. Thus it may be suggested that in terms of both redress for victims and in encouraging changed practices, tort law would better fill the void. IPCC findings could be used as indicators of potential liability, rather than an end in themselves.4
Further exploring the numerous IPCC reports there are seemingly endless and less well-known cases where police indifference to victims’ calls for help have contributed to the subsequent serious bodily harm or the death of that individual.5 In many of the cases the IPCC’s conclusion is that the police simply could have done their job better and that there was an obvious failure to protect. This means, then, that the IPCC is highlighting – at an alarmingly frequent rate – that there are serious problems in the execution of police duties. This in turn suggests that the courts are being irresponsible (to disadvantaged groups in particular) in ignoring this reality and hiding behind unproven policy justifications. In short, they are letting the police ‘get away with negligence’.
A 2011 Home Office report shows that ‘only half of the [UK] public trust our criminal justice system to protect them from criminals’ and a widespread belief that the police have ‘become disconnected from the public they serve’ (Home Office 2011: 3). Blaming this on rises in bureaucracy and ‘red tape’, the report suggests that greater collaboration between the police and the public must be developed in order to generate co-operation (Home Office 2011: 5, 7). The report is introduced on the Home Office website as being designed to give ‘[t]he police and their partners … far greater freedom to do their jobs and use their discretion’ and the public ‘more power to hold the police and community safety partnerships to account and feel empowered to reclaim their communities’. Home Secretary Teresa May, in her introduction to the report, calls this ‘giving power to the people’ (Home Office 2011: 1). The report does not, however, address the police’s lack of legal accountability (even in a section on ‘prevention as well as cure’, though it is acknowledged that misconduct cases can be referred to the IPCC). More importantly, it fails to recognise the effects this may have on public perception and confidence, particularly among already vulnerable or disadvantaged societal groups. In the light of the immunity already afforded to the police in negligence, the report’s proposed removal of ‘red tape’ which purportedly hinders and ‘obstructs’ police work, alongside an increase in police discretion (Home Office 2011: 3) is distressing, as the expansion of their already wide powers is clearly not being met by equally stringent measures to ensure that these powers are reasonably deployed. Additionally, nowhere is there any consideration of the fact that despite the perceived (yet not proven) advantages to society in terms of costs and efficiency of policing that these proposals are supposed to bring about, that disadvantaged groups may be more diversely and disproportionately affected by ‘red tape’ removal and increased police discretion.6
Police negligence and duties of care
The undesirable effects of immunity
Writing extra-judicially after his retirement, Lord Bingham described the primary function of the law of tort as ‘securing compensation’, with a secondary role of discouraging negligent behaviour (2010: 3–4). This ought to mean that a ‘broad brush’ approach (McIvor 2010: 134) to a denial of duty in the context of crime investigation and suppression is untenable – yet this is exactly what happens, as seen in Smith, the most recent decision in the chain of police negligence cases extending over 20 years back to Hill. In Smith, four of the UK’s most senior judges can be seen clinging inexorably to Hill’s core principle, which they see as stretching almost unquestionably through preceding cases and into the one before them. The facts of Smith are stark. Smith, a gay man, was attacked by his ex-partner Gareth Jeffrey with a claw hammer, suffering serious and permanent injuries. The police were aware of a previous assault on Smith by Jeffrey two years earlier and in fact had detained Jeffrey overnight on that occasion. For some time before the eventual attack in March 2003:
Jeffrey sent Mr Smith a stream of violent, abusive and threatening telephone, text and internet messages, including death threats. There were sometimes ten to fifteen text messages in a single day. During February 2003 alone there were some 130 text messages. Some of these messages were very explicit: ‘U are dead’; ‘look out for yourself psycho is coming’; ‘I am looking to kill you and no compromises’; ‘I was in the Bulldog last night with a carving knife. It’s a shame I missed you’.
(Lord Bingham in Smith : )
Smith reported these threats and more to the police, giving details of the history of violence and providing Jeffrey’s home address. However, ‘[t]he officers declined to look at the messages … made no entry in their notebooks, took no statement from Mr Smith and completed no crime form’ (Smith : ). This first contact with the police was not the only time he was ignored or passed on.7 Despite this, the lower court and the majority of the Law Lords hearing the case agreed that Smith’s claims against the police in negligence should be struck out on the grounds that he had no prospect of succeeding, as the police owed him no duty of care in relation to the conduct of their investigation. Lord Bingham, in his words, ‘had the misfortune to disagree with the other four members of the appellate committee’ (2010: 4). He agreed with the Court of Appeal, which had unanimously found a duty of care on the facts assumed. He wrote: ‘I considered, and continue to consider, that on the majority ruling the law of tort or delict in this area failed to perform the basic function for which it exists’ (2010: 4).
As has been identified elsewhere (see, for example, McIvor 2008; 2010), Hill’s core principle is being stretched to do more than it was ever intended to do, and to cover factual scenarios to which it neither directly applies nor should even have been considered (see, for example, Brooks v Commissioner of Police for the Metropolis ). Even in a relevant type of case, such as Smith, it is so heavily and unquestioningly relied on that it amounts to a kind of judicial crutch – or a get-out clause. What should be happening in these cases, bearing in mind both the fundamental principles that underpin tort law and the negative social effects that the application of blanket policy reasoning to vulnerable people or groups may produce,8 is a balanced consideration of the reasons (public policy or otherwise) that exist in favour of both denial of duty and of finding duty (see Conaghan 2002: 338). This approach has been judicially indicated in many public body liability cases not involving the police (eg X v Bedfordshire ), as well as by the European Court of Human Rights (ECtHR) (Z v UK ) and in the seminal House of Lords’ decision (notably handed down on the same day and by the same court as Brooks) of D v East Berkshire Community NHS Trust . It even featured in a major similar case (Home Office v Dorset Yacht Co Ltd ), long before Hill was decided.9
That this feature of private law reasoning is being ignored is concerning – particularly as some of the claimants in police negligence cases can be identified as coming from groups already at some kind of legal or social disadvantage, and who might be using private law – and tort law in particular – as a vehicle to factors other than financial recompense, such as (as for the claimant in Hill) answers, deterrence, the raising of public awareness about certain vulnerable groups and/or of police incompetence, or even apology. Denying duties of care by relying solely on the Hill principle fails to do justice for these claimants – and the societal groups they belong to. This is particularly true when considering the 21st-century police force and its too frequent failings.10 Wider ramifications of such heavy reliance on Hill can be identified in relation to vulnerable claimants, such as (but not limited to) rape victims, via continued poor rape reporting and conviction rates, as well as the maintenance of a ‘traditional gender bias’ in the criminal justice system in relation to rape (Larcombe 2011: 28).11 Similarly, we could include police attitudes to victims of domestic violence,12 race relations between police and citizens13 and diversity within the police force itself.14
There should be proper judicial consideration of the policy reasons why wholesale denial of a duty of care from police to individuals may not be desirable. Most importantly, attention should be paid to ideas relating to public confidence in policing (especially for women, in conjunction with rape, domestic violence etc) and community trust in the police as fulfilling their public functions. It is terrible to state that individuals cannot be owed a duty of care because the primary function/duty of the police is a public one, which involves detailed consideration of the effects on this function (and therefore the wider public) of potentially imposing liability, while at the same time failing to acknowledge – or even consider – that a finding of no duty possibly helps to result in exactly the kind of police behaviour and attitude that leaves the public with little faith in them.15
When are the vulnerable owed a duty?
It is not impossible for the police to owe a duty of care in negligence, even in matters that might be considered to exist outside or on the borderline of the ‘operational’ sphere. Case law shows that a clear duty (though narrowly defined) is owed to those in police custody where there is any knowledge or suspicion of mental vulnerability to take reasonable measures to ensure that prisoners can bring no harm to themselves (Reeves v Commissioner of Police for the Metropolis ; Orange v Chief Constable of West Yorkshire Police ). This is predicated on the notion – one which weaves through all problematic duty areas in negligence – of there being an assumption of responsibility towards the party concerned, coupled with the foreseeability of harm. It has also been acknowledged that one officer owes another a duty to intervene to protect them from harm when circumstances are such as to render this reasonable. In Costello, finding this duty in the context of a female police officer being attacked in a custody cell while a male officer stood by and watched, the Court of Appeal considered the ‘public interest’ in establishing a duty of care in the circumstances. May LJ believed that ‘the public would be greatly disturbed if the law held that there was no duty of care in this case’, adding: ‘The particular circumstances of this case should not be left solely to internal police discipline’ (Costello v Chief Constable of Northumbria Police : ). It is to be hoped that what was being considered here, at least in part, was the effect that not finding a duty would have on the recruitment and retention of female officers and on women’s perception of the police, particularly their response to women in situations of danger.
It is also clearly not impossible to ask courts to consider countervailing policy arguments even in cases related to the police’s public duty of investigation and suppression of crime. Perhaps the closest example of this is found in Swinney. Here it was highlighted that in order to help the police perform this most primary of public functions, a duty should be owed to police informants in relation to the protection of their identity, precisely because of their vulnerability: the fact that they are likely to suffer harm should their identity become known to those they have given information about, if those who assume the responsibility to protect them from such harm should fail.16 Hirst LJ stated that:
other considerations of public policy … also have weight, namely the need to preserve the springs of information, to protect informers, and to encourage them to come forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates … [P]ublic policy in this field must be assessed in the round, which in this case means assessing the applicable considerations advanced in Hill’s case … together with the considerations just mentioned in relation to informers, in order to reach a fair and just decision on public policy.
(Hirst LJ in Swinney v Chief Constable of Northumbria Police : )
The underlying policy consideration was that the public must feel safe in the knowledge that, should they do their civic duty in this way, the police will protect them. If this was not the case, the court surmised, fewer people would give information to the police, resulting in an overall negative effect for society.
Similarly, in Waters, a duty was – eventually – found to be owed to a trainee female police officer who reported that she had been vaginally and anally raped by a fellow trainee officer in police quarters. Her complaint in negligence related not to the rape itself, but to the conduct of her colleagues after the rape (for which the Police Commissioner would be vicariously liable) and also to the way her superiors handled the bullying and victimisation she faced having reported it (in this respect she alleged the Commissioner was personally liable). Her claims were struck out by both the High Court and the almost derisive Court of Appeal (Conaghan describes parts of the leading judgment as ‘cursory’ and states that Swinton-Thomas LJ’s judgment in particular ‘drips with disdain’ (2002: 327–8)). The Court of Appeal relied partly on Hill