Duty of Care Owed by Police Clarified by Supreme Court – With a Sting in the Tail?

Published 14 February 2018

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. The Supreme Court judgment is of general interest to the public sector and their insurers.

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:-

"…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".

What does this mean in practical terms? 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 analysed 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.

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 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.

In summary, Police Officers and lawyers will welcome the clear clarification of the law by the Supreme Court. Furthermore, 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 should be welcomed by the Police Service.