LIABILITY OF PUBLIC BODIES: POLICE LIABILITY

Dr Carol Brennan

Mini Lecture Video Transcript

Liability of Public Bodies: Police Liability.
Learning objectives:
• to appreciate the duty of care of the police as an example of public body duty of care
issues. Secondly
• to learn the evolution of case law on police duty of care in negligence
Hill v the Chief Constable of West Yorkshire, in 1989, is a very important House of Lords
case, which lays down the principles, which are still adhered to today, concerning the duty
of care which police owe to members of the public in their function of investigating and
prosecuting crime.
In the late 1970s and early 1980s, there was a serial killer at large in the north of England,
in the Yorkshire area, who was ultimately convicted of 13 murders of women as well as at
least eight other attempted murders. Jacqueline Hill was a young student who was the last
victim of this serial killer, whose name was Peter Sutcliffe. Her mother brought a case
against the constabulary of West Yorkshire, claiming that, had they not been negligent in
their function of investigation of crime, that her daughter would not have been killed.
Now, the police themselves admitted negligence, and two public inquiries in the 1980s
supported the finding that they had been negligent in a number of different ways in seeking
to find and convict this serial killer. They gave undue weight to an audio tape, which was
supposedly sent by the killer, which, in fact, hadn't been. They didn't follow up alibis
carefully enough. They had actually interviewed Peter Sutcliffe as a suspect on a number
of occasions, and then let him go again, and there were other failings as well.
This is a negligence case, and it's a case in which the defendants contested liability on the
basis that they had not owed a duty of care to this particular victim of the so-called
Yorkshire Ripper. The House of Lords upheld this claim by the defendants and held that
there was no duty of care. The main reason for the finding was that it was felt that there
was insufficient proximity between the police and Jacqueline Hill.
There were hundreds and thousands of young women who were in the area, who were at
risk from attack by Peter Sutcliffe, that she was not identified as a particularly suspected
victim, so insufficient proximity. There was no reason to foresee that she, specifically,
would be a victim. Additionally, however, there were a number of policy reasons behind
the House of Lords' decision.
Firstly, it was felt that when you're looking at investigation of crime, the police owe a duty
of care to the public at large, but not to specific individuals. Also, another policy reason
was that the police are operating under constraints, so they have resource constraints.

Page 1 of 3
They may not have enough money or facilities direct to the investigation, and also, they
are restrained, to some extent, by their statutory powers and duties.
Lastly, and this is another of the policy reasons behind the House of Lords' decision, it was
felt that there are other remedies that are more appropriate than an action in negligence,
so police behaviour can be reviewed as it was in this particular case, by public inquiries,
but individual actions for compensation deter some police behaviour, some poli-- It ties up
police time and resources in contesting such claims, and it's not the most appropriate way
to call the police to account.
Now it's time to look at the way case law developed in this area, over 25 years subsequent
to the Hill decision. We can look first at the case of Osman v Ferguson, in 1993, in which
there was actually quite a high degree of proximity between the ultimate victims of the
crime and the police. However, the Hill policy reasons were still applied in order to
determine that there had been no duty of care owed in negligence by the police.
Swinney v Chief Constable of Northumbria, in 1997, is an exceptional case, and the
reason it's exceptional is because there was held to be a duty of care here. It concerned
the police negligently leaving files with details of an informant unguarded in a police car,
which was then stolen and used against the informant. You've obviously got a very high
degree of proximity and foreseeability.
Also, on the policy side of things, the court held that the interest of justice that is protecting
the relationship between the police and informants was so strong that it overcame the Hill
policy reasons, policy justifications, and in fact, there was actually a duty of care in this
case. Interestingly, when the case came to trial, it was found that although there had been
a duty of care, it had not technically been breached, and so, ultimately, there was no
liability.
Brooks v Commissioner of Police of the Metropolis, in 2005, is a very worthwhile case to
read, because in it, the House of Lords summarizes the state of the law following Hill, and
in the years subsequent to Hill. It concerned a young man called Duwayne Brooks, who
was the friend and companion of Stephen Lawrence, who was notoriously murdered by
racist criminals in London, in 1993. Now, Duwayne Brooks brought the action against the
police, because he claimed that on the night in question, he was badly treated by the
police.
He was not treated as a victim, but he was treated more as a potential criminal. He had a
very strong grievance about police behaviour on the night, and in subsequent days and
weeks. In Brooks, the House of Lords, again, applied Hill, and held that there had been no
duty of care to him. It's interesting to see what Lord Steyn actually said in his speech. "The
core principle of Hill has remained unchallenged in our domestic jurisprudence, and in
European jurisprudence, for many years. If a case such as the Yorkshire Ripper case,
which was before the House, in Hill, arose for decision today, I have no doubt that it would
be decided in the same way. It is, of course, desirable that police officers should treat
victims and witnesses properly and with respect, but to convert that ethical value into
general legal duties of care on the police towards victims and witnesses would be going
too far. The prime function of police is the preservation of the Queen's peace. The police
must concentrate on preventing the commission of crime, protecting life and property,
apprehending criminals, and preserving evidence. A retreat from the principle in Hill would
have detrimental effects for law enforcement, while focusing on investigating crime and the

Page 2 of 3
arrest of suspects, police officers would in practice be required to ensure that in every
contact with a potential witness or a potential victim, time and resources were deployed to
avoid the risk of causing harm or offense. Such legal duties would tend to inhibit a robust
approach in assessing a person as a possible suspect, witness, or victim. By placing
general duties of care on the police to victims and witnesses, the police's ability to perform
their public functions in the interest of the community, fearlessly and with dispatch, would
be impeded. It would, as was recognised in Hill, be bound to lead to an unduly defensive
approach in combating crime."
Micheal v Chief Constable of South Wales, in 2015, is a very sad case concerning a
woman, a victim of domestic violence, who was killed by her estranged partner. As in
Brooks, in fact, there was a high degree of proximity between the victim and the police.
She was known to them, she had been in contact with them. Due to a mishandling of her
phone call on the night of her murder by a police call handler, the police didn't attend to
her house quickly enough, and she was, in fact, murdered, as I said, by her ex-partner.
Again, in Michael, the Hill principles were applied, and there was held to have been no
specific duty of care owed by the police to her. This is, obviously, quite a controversial
decision. It's important to note that in all the Hill cases, and the ones that followed Hill, we
are looking at what are known as policy decisions by the police. How do we conduct our
inquiries? How much resources do we devote to this particular inquiry? There is, and
consistently has been held to be, a duty of care owed by the police in what's known as
operational functions.
Rigby v Chief Constable of Northamptonshire, in 1985, is a good example. Here, the police
were trying to flush a criminal out of a building. In order to do so, they used tear gas, and
it's common practice in such situations for the police to lay on fire equipment, fire services,
in case of a fire. They neglected to do so in this case, and there was a fire, which caused
damage to the claimant's property. Now, this was held to be an operational duty, a little bit
like the way a police officer might drive a police car.
In such circumstances, if the police conduct themselves negligently, there will be a duty of
care. This is a different situation from the investigation and prosecution of crime, and this
same principle was applied in the important Court of Appeal case, of Robinson v Chief
Constable of West Yorkshire, where the claimant was injured due to the conduct of police
in an arrest of a criminal on the street, putting the public at risk. That, again, was held to
have been operational, and therefore, it was permissible to concede a duty of care by the
police.

Page 3 of 3