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The Supreme Court granted permission to appeal in Robinson v Chief Constable of West Yorkshire [2014] EWCA Civ 15 in order to re-examine the Hill immunity and liability for the police in negligence.

This is the latest development in the battle over the meaning of the general rule that the police cannot be sued in negligence. On 3 Aug 2016 the Supreme Court (Hale, Toulson & Reed JSCs) granted permission to appeal to Mrs Robinson; she was an innocent bystander in her late seventies who was knocked over and severely injured when two policeman fell on top of her whilst “negligently” effecting the arrest of a suspected drug dealer. The execution of the arrest was found to be negligent at first instance but the claim failed because the police were held to be immune. She appealed but the Court of Appeal, again on the basis that the general rule applied, dismissed her appeal and allowed the police cross appeal against the findings that the arresting officers were negligent. The appeal will involve a reconsideration of the court’s judgment in Michael v South Wales Police [2012] UKSC 2 where by a majority the court declined to abolish the immunity, preferring instead to provide an alternative explanation (the omissions principle) for its continuing validity.

There are four important issues which have not been settled by the Michael case:

  1.   Did Michael decide that the Hill immunity only stops a case based on a pure omission by the police to prevent damage caused by a  failure to control a third party criminal?
  2.   What is a pure omission and how is the law to differentiate it from a case like Mrs Robinson’s where the damage is caused directly by the police and the cause of action is based either on a careless positive act or a case consisting of careless acts and omissions?
  3.   How in light of Michaelshould the lower courts apply the general rule to a positive act case, particularly as the majority did not rely upon the traditional public policy arguments to justify the immunity?
  4.   What are the parameters of the control exception to the omissions principle (see para 99 of Lord Toulson’s judgment in Michael)?

This is a welcome but unexpected development given that the Michael judgment was only delivered in Feb 2015, it shows that the law is still seen as unsatisfactory in this area.  If the logic of the Michael judgment is confirmed it is difficult to see why local authorities remain liable for omissions in the field of child protection.  The court will examine again the scope of the immunity / general rule that the police cannot be sued in negligence for omissions / acts connected with the investigation and suppression of crime.

This article was originally posted here.