Sultan Mughal

Tort Law – 11/10/2019

The statutory function of Police authorities is to protect and serve the society by investigating into
crimes with an aim to prevent the same. However tort law does not recognize a general duty of care
to be owed by such authorities to the public to ensure the prevention of crime. Discuss.

A comparatively straightforward arrest by a Police Officer has prompted an important review of the law
affecting Police Officers in the course of their duties. Specifically, the Supreme Court in the case
of Robinson v West Yorkshire Police [2018] has considered whether Police Officers have "immunity from
suit" (to use an old-fashioned phrase) and therefore cannot be sued when performing their operational
duties.

A West Yorkshire Police Officer spotted an individual apparently dealing drugs in a park. Backup was
called for, whilst this was awaited the alleged drug dealer went into a bookmakers shop. The Officer
formed the view that an arrest inside the shop could endanger the Officer, customers and staff. As a
consequence, a plan was formed to arrest the individual outside the bookmakers. This was done but, in
the ensuing struggle, Officers and the alleged drug dealer collided with the Claimant (who was a mature
lady of 76) and individuals fell on top of her such that she suffered personal injury. She subsequently
issued proceedings for damages for her personal injuries.

The Claimant successfully argued at trial before the Recorder that the Officers had acted negligently.
However, following the decision in Hill v Chief Constable of West Yorkshire, the Recorder dismissed the
claim. Hill was a claim brought by the mother of the last victim of the Yorkshire Ripper. She alleged the
Police had failed to protect her daughter. Her claim was struck out by the House of Lords on the basis
that no duty of care was owed by the Police. It was from that decision that the Police "immunity from
suit" concept was derived.

The Recorder's decision was upheld by the Court of Appeal who also overturned the Recorder's finding
of negligence. The Claimant then obtained permission to appeal to the Supreme Court.

The Supreme Court noted that the law relating to the duty of care owed by Police Officers was not
entirely clear and often misunderstood. Lord Reed in the majority Judgment explained how the
confusion about the law had arisen, with specific reference to landmark cases in the law of tort
including Anns v London Borough of Merton, Caparo, Barrett v London Borough of Enfield, Stovin v
Wise and Gorringe v Calderdale Metropolitan Borough Council. The judgment of Lord Reed should be
read by anyone interested in how the law of tort affecting public authorities has developed over the
past 40 years since the Anns Judgment in 1978.

Applying the law through those authorities, Lord Reed held that the Police 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 that principle, the Police are usually under a duty of care to
protect an individual from a danger which the Police themselves have created (as, for example, in this
case where the decision to arrest in a public space was made).

Crucially however, Lord Reed stated:-

"… 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
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Tort Law – 11/10/2019

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.".

Lord Reed stated that the Police generally do not owe a duty of care to individual members of the public
in the performance of their investigative function, to protect them from harm caused by criminals. In
other words, there is no "duty to protect" members of the public.

Lord Reed noted and agreed the recent authority of Michael v Chief Constable of South Wales Police. In
that case it was stated that there is no liability in "cases of pure omission by the Police to perform their
duty for the prevention of violence".

Lord Reed confirmed that Hill was correctly decided, not because the Police were "immune from suit"
but, rather, because they were under no duty to protect in the particular circumstances of that case (i.e.
there was no assumption of responsibility to the victim or other special circumstances arising).

Lord Reed then analyzed the facts of this particular case. Here, the Police Officers had themselves
created the risk of harm by deciding to arrest the alleged drug dealer in the street and a duty therefore
arose. The Recorder had considered the Officers' assessment of the risk to be negligent. The Supreme
Court would not disturb that finding of the Recorder.

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.

Accordingly, the Claimant's appeal was allowed with damages to be assessed.

Whilst the analysis of the law by the Supreme Court is impeccable, there is a potentially adverse
consequence of the decision. Police Officers may be less willing to effect arrests in public areas. In this
case, the argument of the Police Officers was that they wished to arrest the individual promptly in order
to secure the evidence of his drug dealing (which was assumed to be still about his person). Might Police
Officers now be less willing to take proactive steps to arrest drug dealers who, as the Officers stated in
this case, rarely submit quietly to arrest?

In particular, it is interesting to note the approach of the Court of Appeal where Judgment was given by
Hallett LJ, one of the foremost experts in criminal law in the country. She had overturned the Recorder's
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Tort Law – 11/10/2019

finding of negligence because, in her view, the Police could not afford to wait. They were bound to
attempt the arrest or risk losing the suspect and the evidence. However, the Supreme Court overturned
her decision.

Whilst the decision on negligence appears to be one that could have been decided differently by
another Judge, ultimately the confirmation by the Supreme Court that there is no general duty, except
in special circumstances, upon Police Officers to protect third parties.