POLICE:FROM NEGLIGENCE TO IMMUNITY

Generally, any claim where the cause of action is anchored on negligence will succeed if there is a finding that there exists a duty of care, owed to the claimant by the defendant. And as developed in Donoghue v Stevenson 1932, duty of care will necessarily be based on the principles of foreseeability and proximity. Where these two cannot be established, it is likely that the court will be justifiably reluctant to hold that there is a duty of care. The importance of duty of care in negligence cases is relevant in all claims whether against a private person or a public body.

A case in point which underlines how the court hinges the success of negligence claims, even against public body, in this case the police, on the existence of duty of care is Hill v Chief Constable of West Yorkshire 1989. The fact bordered on an action filed against the police for being negligent in detecting and detaining Sutcliffe, a serial killer, who eventually killed Jacqueline Hill, the daughter of the claimant in this case. Relying on the two-pronged test raised in Ann v Merton LBC 1978, the House of Lord held that the police owe no duty of care to Ms Hill, even though the death, a type of damage, was foreseeable but there was not a sufficient proximity between the police and Miss Hill. The court did say that the victim was no more identifiable as a potential victim than any other young woman in that geographical area. By virtue of this decision, a cloak of immunity had been placed on the police in respect of action for negligence where the cause of action arose from act or omissions made by the police in regard to crime control.

If one is surprised at the decision in Hill case in regard to lack of proximity between the police and the victim, one is even blown away by the absurdity that manifested in Michael v Chief Constable of South Wales 2015. The facts were that Ms Michael put a call through, when her life was in danger, to the police, but the call was intercepted by Gwent Police rather than South Wales Police. The operator, who appeared not to have heard that the ex-partner had threatened to kill Ms Michael, informed her that the message will be relayed to South Wales Police. The call was not prioritised, until she called back and they heard a scream. By the time they arrived, Ms Michael had been murdered. When the Supreme Court was seized of the matter, it considered whether the police owed Ms Michael a duty of care when it received her 999 call? The claimant argued that a duty of care will arise where the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, and where a member of public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his or her life or personal safety. The court rejected these arguments and dismissed the claim, inter alia, on policy grounds. The court made heavy weather about the fact that the decision as to what compensation that should be proper to victims in such cases should be left to the parliament, and that it will not be in the public interest that the police should determine their priorities according to the risk of being sued. It also raised concerns about the financial burden which the police would bear should they be compelled to compensate all the victims for not preventing the crimes in relation to which the claims have arisen.

However, the dissenting opinions of Lord Kerr and Lady Hale shook the absurdity a little and reinvigorated the plea for the establishment of duty of care in cases involving police and the victim of such crimes. Lord Kerr formed the view that there will be a sufficient proximity of relationship where certain elements exist, so as to impose a duty of care on police in negligence. Such duty should arise where there is (I) closeness of association between the claimant and defendant which for instance came into existence when information was given to the defendant ( police), and (ii) the information is to convey to the defendant that serious harm will come on the victim if no protection is accorded him or her, and (iii) that the defendant is the right person or agency to provide the protection, and (iv) finally that the defendant should be able to provide the protection without putting himself or herself in harm’s way.

Apparently from these decisions, it is clear that the police enjoy certain kind of immunity in regard to ( claims for compensation relating to ) negligence which arose in their crime control function. The ensuing question then would be, is this law on police negligence, that is the existence of immunity, fair? The word fair generally connotes treating people equally without favouritism or discrimination. The idea of fairness as to existence of this police immunity, had also been considered in the decision of Caparo v Dickman 1990. The court did state that the duty of care will only arise in connection with police where the damage is foreseeable; there is proximity of relationship between the defendant and the victim; and where it is fair, just and reasonable for such duty to exist. It meant that the court in Caparo intended a policy control mechanism which can only be dislodged where claimants can show that it is just and fair to establish the existence of duty of care.

The policy ideas that are determinant of whether it will be ‘fair and just’ to hold that there is a duty of care appeared to include those which had been highlighted by the court in Michael case. Namely, the financial impact such burden of compensation will have on the police, the fact that it will not be in the public interest that the police should prioritise their work on the risk of being sued, and that the issue as to propriety of the compensation for victims of such cases should be left in the hands of the parliament( and not the courts). It seemed that the court in Michael case doubted the fairness of holding that the police owed a duty of care to the victim for failing to prevent the crime that resulted in the damage.

But there is the other side to ‘fairness’. It is also not fair for the police to be treated differently from other public agencies, bearing in mind that the immunity of other public bodies had either been limited or removed. The police should also be made subject to the same rules of negligence in respect of their decisions (crime control) as to protect a caller in danger as it is applicable to negligence arising from direct operation, let's say police brutality or recklessness, as established in Rigby v Chief Constable of Northamptonshire 1985. It is also unfair to allow the police a blanket immunity as this will result in denying victims and families access to court. This point constituted the kernel of the decision by the European Court of Human Right in Osman v UK 1997.

It is also not fair, for the police not to be held accountable where a victim had intimated them of the imminent danger that awaited him or her, and the police failed to protect the victim . After all at common law, the police owe the public a duty of protection. While it is true that the court in Michael case hinted that the issue of compensation to such victims should be left to the parliament to decide, yet it is unfair for such victims to go uncompensated for their loss while waiting for the parliament to legislate on the issue ( Or has ubi jus ibi remedium gone with the wind? ). So on balance, while the police should be given freedom to make their crime control decisions without fear of litigation, they should also be made responsible where they have erred and should not be allowed to hide under the shade of immunity even when they are clearly negligent- that too is fairness.

In recognition of the trauma and injustice the claimants in the cases of Hill and Michael had endured, there is now an urgent need to reform the law on police negligence. While acknowledging that the policy issues of ‘throwing open the floodgate’ and the others which the court highlighted in Michael case hold sway, yet it will be reasonable for some of the principles to be revisited and improved in order to accommodate cases where proximity had been entrenched, for instance in Ms Michael case , by virtue of the distress call she made to the Gwent police. There is need for reform to take care of the policy issues which the court highlighted in Michael case, for a laid down statutory strategy would have taken care of the challenges such highlighted issues portend. Therefore the extent of the reform needed in this area would entail taking off that unqualified blanket of immunity, on the pretext of policy reasons, and limiting the protection to circumstances similar to Hill case. But where it appeared that the police had been informed of an imminent danger, for instance in Michael case, and had been in position of proximity with the victim, it seemed rationale to hold that a duty of care had arisen and therefore police should not plead immunity or lack of duty of care in such circumstances. This is exactly what Lord Kerr and Lady Hale appeared to have been canvassing in Michael v Chief Constable of South Wales 2015.