The imposition of a duty of care on the police for operational activity

It is important to clarify what this case was about. It has never been in dispute that the police can be liable in tort to those injured as a direct result of acts or omissions by the police: see, for example Hill v Chief Constable of West Yorkshire Police [1989] AC 53, [59B-C]. The police have always been liable for assault, battery, false imprisonment, malicious prosecution, misfeasance in public office, negligent driving and such like. To that extent, there has never been a blanket “immunity” from suit enjoyed by the police for all operational conduct.

However, the courts have tended to not impose duties of care on the police for harm caused by others. A classic example is the failure to protect a victim from the harm threatened by a third party. The courts have been careful to protect operational decision making in those circumstances. It has been stressed that the question of whether the harm from a third party resulted from a positive act or from an omission by the police should not justify a different outcome and that the distinction was unmeritorious: Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 at [32] and repeated in Michael v Chief Constable of South Wales Police [2015] 1 AC 1732 at [51].

In Robinson the Court considered that there was a key difference between positive acts (a duty will be imposed) and omissions (no duty imposed). The act of arresting someone was a positive act. Where an arrest is negligently performed, the police are liable not only for any injury caused to the person being arrested, but also for any injury that the person who is being arrested causes to another person, so long as that injury is a foreseeable consequence of the police’s positive actions.

Given the particular context of police work, this potentially exposes the police to a wide liability for their positive acts. Liability is still unlikely to arise (at common law at least, although it may arise under the Human Right Act 1998) where the police do not act in accordance with their core duties – for instance where the police do not identify or arrest a suspect before that suspect is able to commit a further offence.

The Supreme Court reviewed the various authorities on the civil liability of public authorities and gave a useful summary and explanation of the development of the law from [31] onwards:

public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise” [33];

“[P]ublic authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm: as Lord Toulson stated in Michael, ‘the common law does not generally impose liability for pure omissions'” [34];

“That is so, notwithstanding that a public authority may have statutory powers or duties enabling or requiring it to prevent the harm in question.” [36];

public authorities, like private individuals and bodies, generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party” [37];

A duty can be owed for the harm caused by a third party:

“[W]here the public authority has created a danger of harm which would not otherwise have existed, or has assumed a responsibility for an individual’s safety on which the individual has relied” [37].

From [43] onwards the Supreme Court considered the line of authorities that started with Hill and were relied on by the Court of Appeal in demonstrating that no duty of care would be imposed in the circumstances of this case. The Court determined that there was nothing in those previous authorities that was inconsistent with the imposition of a duty of care. Central to that analysis was the Court’s approach to the circumstances of Robinson, namely that the act of arresting W was a positive act rather than an omission to act which had characterised the previous cases where it had been held that no duty of care should be imposed on the police.

Defendant police lawyers may, notwithstanding the differences between acts and omissions, find the Supreme Court’s approach difficult to reconcile with the repeated statements of public policy in the previous authorities. They might find some consolation in Lord Hughes (from [102] onwards), who did not think that the distinction between positive acts and omissions was the sole explanation for the previous decisions protective of the police. Public policy was, he said, the “ultimate reason” for the previous decisions against the imposition of a duty [118].

However, it follows that those previous cases must now be treated with great caution. For example, the Court gave the following description of the Court of Appeal’s summary of the law in Desmond v Nottinghamshire Police [2011] EWCA Civ 3 – which was previously thought to be entirely accurate:

That summary of the law appears to treat the police as being generally under no duty of care when undertaking and performing their operational duties, other than in special circumstances… In short, while it is not suggested in the present case that the decision in Desmond was wrong, the particular passage relied on is not an accurate summary of the law.” [67].

Please see Part One here.
Please see Part Three here.

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