Breach of duty

The bad news for Chief Constables does not stop with the characterisation of an arrest as a positive act that is causally connected to the various events that may follow, including injuries caused to third parties. The Supreme Court endorsed the approach of the trial judge who had undertaken a detailed analysis of the planning and performance of the arrest and made a finding of negligence [75] – [78]. This does not sit comfortably with apparent reassurance given by the Court that the breach of duty will have to be assessed in the proper context of pressured decision making [75] and [121].

The Supreme Court’s willingness to take a different view from that firmly expressed by the Court of Appeal in this case will also interest police lawyers. In this case, the police had made a series of operational decisions. They had intentionally waited for the arrival of officers to make the arrest. There were at least four officers present at the time, to arrest one man. Whilst the second two officers arrived after the first two had taken hold of W, this was a delay of a couple of seconds only. Further, that was done deliberately and for a proper operational reason, to avoid frustrating the arrest. The officers had made an operational assessment that the arrest needed to be made at that point in time.

The officers had, at trial, accepted that there was a risk W may seek to escape and also that they generally try to minimise the risk to the wider public when performing arrests. The Supreme Court found this was sufficient to base a finding on negligence.

Conclusions – what does this mean in practice?

This case does not change the law so far as it applies to positive acts done by the police that directly result in harm. The police have always been subject to duties of care in such circumstances. However, this decision does amount to a substantial erosion of the previously understood limits on that liability. It directly addresses arrests but there is no reason for why it does not extend to other forms of ‘positive act’ done by the police in the operational sphere resulting in harm by a third party – for instance a high speed pursuit where the car being pursued injures a pedestrian or another driver.

In both Brooks and Michael, the point was made with force by the court that whether a situation is characterized as a positive act or omissions can merely depend on how it is described and that the distinction is not meritorious. It is now clear that where a positive act can be identified, the fact that it relates to a core function of policing will not prevent a duty being imposed.

This decision also demonstrates how closely a courts will examine operational planning and performance. It is suggested that in many circumstances it may not be too difficult to demonstrate some failing by the police when the facts of a fast moving police operation are subjected to precise, slow-time analysis by lawyers in court. Where someone has been injured (as is necessarily the case for a claim to be considered at all) that will be all the easier.

Foreseeability of harm will also prevent no difficulty for claimants – the submissions will be that it is surely foreseeable that a person may resist arrest and put themselves and others in danger.

Robinson certainly amounts to a potentially significant area of liability on police forces that will be an unwelcome development for forces already dealing with the ramifications of budget cuts. But what of police officers? Only time will tell if this decision actually results in a more defensive approach to arrests, but it can perhaps be seen how it might. Police officers will now have to ask themselves, when they are considering making an arrest, whether they should wait for back up before arresting someone in case the offender resists and injures a member of the public. This leads to many other questions – how long should the officer wait for back up, how many additional officers are needed, what if no back up is available, what if the offender is in the middle of committing an offence, or starts making off. These questions, which an officer is expected to answer for themselves in a split second – will all to be subjected to intense scrutiny in negligence cases from now on.

A new line of authority in the common law lies ahead to be discovered.

Please see Part One here.
Please see Part Two here.

This article was originally posted on the UK Police Law Blog, here.