Claims Against the Police–

Recent views of the Supreme Court

David McNaughtan

Compass Chambers

23 March 2018

Robinson v Chief Constable of West Yorkshire

[2018] UKSC 4; [2018] 2 WLR 595

Negligence

Commissioner of Police of Metropolis v DSD

[2018] UKSC 11

Art. 3 ECHR

Robinson v Chief Constable

“the simple facts of this case

have given rise to proceedings

raising issues of general

importance. Most of those

issues can be decided by

applying long-established

principles of the law of

negligence. The fact that the

issues have reached this court

reflects the extent to which

those principles have been

eroded in recent times by

uncertainty and confusion.”

Robinson v Chief Constable

• A duty of care??

• A frail lady

• Wrong place; wrong

time

• Kirkgate, Huddersfield

• Injured in the course of

the attempted arrest of

a suspected drug dealer

Robinson v Chief Constable

Robinson v Chief Constable

Robinson v Chief Constable

• Proximity?

• Foreseeability?

• Mrs. Robinson in their

line of sight.

Robinson: lower courts

“[18] … considered that

there was no proximity

between Mrs Robinson

and the police officers,

notwithstanding that she

had been injured when

they fell on top of her.”

Robinson: Supreme Court

• Caparo

• a general rule that the

police are not under any

duty of care when

discharging their function

of investigating and

preventing crime?

• Did the police officers owe

a duty of care to Mrs.

Robinson?

Robinson & Caparo

“[21] The proposition that there is a Caparo test which

applies to all claims in the modern law of negligence,

and that in consequence the court will only impose a

duty of care where it considers it fair, just and

reasonable to do so on the particular facts, is

mistaken.”

See: Michael v Chief Constable of South Wales Police

[2015] UKSC 2; [2015] AC 1732

Per Lord Toulson, [106]

A Duty of Care: Public Authorities

• At common law, public authorities are under the

same liabilities in tort as private individuals

• Public authorities are under a duty of care to avoid

causing actionable harm in situations where a duty

of care would arise under the law of negligence

• Public authorities (like individuals) are under no

duty to prevent the occurrence of harm

• Or to prevent harm caused by a third party see e.g.

Mitchell v Glasgow City Council [2009] UKHL 11

Circumstances in which public authorities

(like individuals) can come under a duty of

care to prevent the occurrence of harm

• Where the public authority

has created the danger of

harm

• Dorset Yacht Co. Ltd. v

Home Office [1970] AC

1004

Circumstances in which public authorities

(like individuals) can come under a duty of

care to prevent the occurrence of harm

• Where the public authority

has assumed a

responsibility for an

individual‟s safety

• An Informer v A Chief

Constable [2013] QB 579

A Duty of Care: the Police

• Hill v Chief Constable of

West Yorkshire [1989]

1AC 53

Hill v CC West Yorkshire

Lord Keith of Kinkell

“There is no question that a

police officer, like anyone

else, may be liable in tort to a

person who is injured as a

direct result of his acts or

omissions. So he may be

liable in damages for assault,

unlawful arrest, wrongful

imprisonment and malicious

prosecution, and also for

negligence.”

Hill v CC West Yorkshire

“But if there is no general

duty of care owed to

individual members of the

public by the responsible

authorities to prevent the

escape of a known criminal or

to recapture him, there

cannot reasonably be imposed

upon any police force a duty

of care similarly owed to

identify and apprehend an

unknown one.”

Robinson v CC West Yorkshire

Lord Reed at [70]

“there is no general rule that

the police are not under any

duty of care when discharging

their function of preventing

and investigating crime.”

Robinson v CC West Yorkshire

“[73] Her complaint is not

that the police officers failed

to protect her against the risk

of being injured, but that

their actions resulted in her

being injured. In short, this

case is concerned with a

positive act, not an omission.”

Robinson v CC West Yorkshire

Common Law of Negligence

No liability for failure to

prevent crimes

Commissioner of Police of

Metropolis v DSD

• DSD attacked in 2003

• NBV attacked in 2007

• Many others attacked by

him between 2003 and

2007

• More attacked after NBV

• Worboys arrested early

2008

• Compelling evidence

within 8 days

Commissioner of Police v DSD

• Reception staff failed to record relevant names,

addresses and vehicle registration details.

• Failure to interview promptly a witness (Kevin)

who could have identified Worboys

• Failure to collect CCTV evidence. Worboys had

driven his taxi to a police station.

• The failure to make the link between complaints

due not only to a lack of training and also to a failure

to adhere to procedures

• Failure to conduct searches.

Article 3 ECHR

• "No one shall be subjected to torture or

to inhuman or degrading treatment or

punishment.”

• Starting point: torture or degrading

treatment meted out by the State

Judicial Gloss 1 • Assenov v Bulgaria (1998)

28 EHRR 652

• where an individual raises a

claim that he has been

seriously ill-treated by the

police, ECHR requires that

there should be an

effective official

investigation

• Otherwise art. 3

ineffective

Judicial Gloss 2

• MC v Bulgaria (2005) 40

EHRR 20

• ill-treatment not by the

state but by an individual

• The State's responsibility

may be engaged if, but

only if, the State fails to

take steps to afford its

protection to B against A's

misbehaviour.

• “The threshold of

behaviour”

• Van Colle v CC Hertfordshire

• Late 1999: Van Colle employed

Daniel Brougham at his optical

practice

• February 2000: police search

• April 2000: Brougham charged &

bailed

• Sept. 2000: Giles Van Colle‟s car

was set on fire

• Oct. 2000: phone threats

• 27.11.2000: trial date

• 22.11.2000: Van Colle murdered

Van Colle: the law

• Osman v UK (1998)

• “… a real and

immediate risk to the

life of an identified

individual or

individuals from the

criminal acts of a third

party…”

Smith v CC Sussex

• “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”.

• Jan. 2003: threatening

telephone, text messages,

including death threats

• Feb. 2003: Mr Smith

contacted Brighton police

& reported threats to kill

• Officers attended; did

nothing

• 10 March 2003: Jeffrey

attacked Mr Smith at his

home address with a claw

hammer

Smith: the law

• “absent special

circumstances such as an

assumption of

responsibility, the police

owed no duty of care to

individuals affected by the

police of their public duty

to investigate offences and

prevent their commission”

• ? Claim under art. 2

Van Colle & Smith

Per Lord Brown at [138]:

“…Convention claims have very different objectives

from civil actions. Where civil actions are designed

essentially to compensate claimants for their losses,

Convention claims are intended rather to uphold

minimum human rights standards and to vindicate

those rights. That is why time limits are markedly

shorter…It is also why section 8(3) of the Act

provides that no damages are to be awarded unless

necessary for just satisfaction.”

DSD: when is art. 3 duty

„triggered‟?

• Majority view: Lord Kerr

• MC v Bulgaria

• Systemic failings

• Operational failings

• Purely operational failures

enough to trigger art. 3

• If “egregious and

significant”

DSD Minority View

• Lord Hughes & Lord

Mance

• Second gloss has gone too

far

• Breach of art. 3 can only

be triggered by „structural‟

or „systemic‟ errors

• And that such errors were

made in the Worboys

investigation

Structural v Operational • “…in many cases it may be hard to

decide whether a particular failure

is operational or systemic, or

whether the operational failures in

an investigation or a set of

investigations entitle the court to

infer a systemic failure. And what

happens if …there are some

operational failures which are

purely operational and some which

are attributable to structural

failures?”

Contact

.

Gavin Herd

Practice Manager

Phone: 0131 260 5648

Fax: 0131 225 3642

gavin.herd@compasschambers.com

Compass Chambers

Parliament House

Edinburgh

EH1 1RF

DX 549302, Edinburgh 36

LP 3, Edinburgh 10

www.compasschambers.com