Provide reasoned arguments for why you agree or disagree with the above statement, illustrating your answer by reference to specific policy factors.

 

In the case of Hill the police were sued in negligence by the family of a victim of the Yorkshire Ripper.  The claim was struck out on the grounds that there was a lack of proximity.  The victims of the Yorkshire Ripper were simply females in the Yorkshire area and there was no specific risk to the particular claimant that could have indicated an assumed responsibility by the police.   It was also held that it would not be fair, just and reasonable to impose a duty because liability would divert manpower into avoiding and defending claims and would result in a ‘detrimentally defensive frame of mind’ among the police.

In this case, I do not feel that the police were negligent, based on the test of proximity.  With the information the police had at the relevant time, they were not in a position to protect all possible victims of the Yorkshire Ripper, nor did they have any reason to believe the claimant was at any higher risk than any other woman.  However, I do not agree with the policy consideration of ‘defensive policing’ as this can be compared to other professions where no immunity is enjoyed, such as medicine.

A Canadian case Jane Doe v Board of Commissioners of Police for Metropolitan Toronto sparked a lot of interest regarding police immunity.  The case involved a woman who was attacked by a serial rapist.  All the victims lived in second storey apartments close to Church and Wellsley Streets in Toronto.  When questioned why there had been no warnings, the police stated that it wasn’t practice to issue warnings as women became hysterical and the rapist may flee causing the investigation to be jeopardised.    Three levels of courts in Ontario refused to strike out the claim in negligence.  The claim was two-fold in that negligence was alleged in relation to the police not apprehending the criminal sooner and secondly that they had been negligent in not warning the women in the area so that precautions could be taken.  In the actual trial in 1998, the court held that there were grounds for distinguishing Hill as Doe was pleading “a proximity existed between the police and a very limited group of foreseeable victims with similar distinguishing characteristics living within a narrowly defined geographic area”.  The courts held that a duty of care could be found but there was debate as to the scope of the duty.  On issues of policy, the allegation of negligence for not apprehending the criminal sooner was not upheld as it was argued that this would introduce 'limitless litigation seeking to make the police guarantors of public safety’, similar to the ‘floodgates’ argument.  However on the second issue of being negligent by not warning the women of the risk so that they could protect their own safety, the claim was upheld.   The defendants argued that as telling the women would compromise the investigation, it was a policy decision and should not therefore be reviewed by the courts.  Interestingly, the court in Osman dismissed the relevance of this case, stating that ‘policy issues’ do not form part of Canadian Law.   In my opinion, this case is very relevant.  If policy issues are not a part of Canadian Law and the police have no set immunity in negligence, it can only serve as an indication that policy issues are not as important as the English courts make out.  If other jurisdictions do not need to use policy as an excuse for limiting liability, then surely we do not either.

In Osman, a schoolteacher had been harassing a pupil and had told the police that there was ‘a danger he would do something criminally insane’.  The teacher shot and killed the boy’s father and seriously injured the boy.  The claim in negligence was immediately struck out with McCowan LJ stating that although “there existed a very close degree of proximity amounting to a special relationship [the] House of Lords decision on public policy in Hill’s case dooms this action to failure”.  He had followed the view that the police should not be liable for negligence in the investigation and suppression of crime.  

The case was taken to the European Court of Human Rights on the basis of a violation of Article 2, 6 and 8 of the Convention.  The Court found a violation of Art.6(1) on the grounds that the claim had been struck out because of what appeared to be a ‘blanket immunity’.  They stated that although the test of fair, just and reasonable was a substantive element of negligence, the court must allow the claimant to put forward competing policy issues such as the seriousness of harm and the degree of negligence.  As this had not been done in this case there was a breach of Art.6(1).  

I do not agree with the decision in Osman v Ferguson.  The police had a full knowledge of the risk to the particular claimant and as such, had an ‘assumed responsibility’ toward the victims.  The incidents had occurred over a number of months and the police were aware of the danger to the family.  I can see no benefit to the public of withholding a duty of care in this case.

Since Osman v UK, the courts have steered away from any sort of ‘blanket immunity.’  In the case of Swinney, an informant in a murder enquiry was exposed when police left her statement in a locked police car.  The informant and her family were subjected to threats.  In this case, the court held that the police had assumed responsibility for the claimant and as such were deemed sufficiently proximate for a duty of care to be established.  However, no breach was found.  I agree with the outcome of this case as the police had followed full procedure and the documents were left in a locked patrol car whilst the officers attended an emergency call.  It was not reasonably foreseeable that the information would be stolen.  This is one place where public policy should go in favour of the claimant, as informants would be deterred from helping the police if they could not be held negligent for letting the informant become known.

Similarly, in the case of Costello, the court refused to strike out the claim on policy grounds. May LJ indicated that public opinion was also a policy factor that would be included in the consideration when he stated that “the public would be greatly disturbed if the law held that there was no duty of care in this case”. The High Court held that a duty of care was owed even though there would generally be no legal obligation to act, as the officer had assumed responsibility by being present for the express purpose of assisting his colleague.  The officer was held to be liable in negligence.  This case is however limited to very specific facts and will be easily distinguished.

In the recent cases of TP and Z involving local authorities, the ECHR has stated that their decision in Osman was based on a misunderstanding of English Law.  The effect of this has not yet been seen but it is thought to be unlikely that the courts will return to a pre-Osman way of thinking. 

If the judges are to be believed, policy factors are difficult to avoid when imposing liability for negligence.  Lord Denning in Dorset Yacht Co. stated: “At bottom [is] a matter of public policy which we, as judges, must resolve.  This talk of ‘duty’ or ‘no duty’ is simply a way of limiting the liability for negligence”.  Similarly, Lord Pearce in Hedley Byrne. stated: “How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts’ assessment of the demands of society for protection from the carelessness of others.”

However, the test of whether it would be fair, just and reasonable to impose a duty offers the police a much easier way to avoid liability than an ordinary plaintiff.  The test of reasonableness acts as a barrier to claimants in claims against public bodies but not against private individuals.  This double standard is not really acceptable as it goes against the constitutional principle of the rule of law.

Proving negligence against a public body is difficult enough without having to pass the reasonableness test.  Proximity is a big enough barrier to claims against the police as can be seen in Hill.  Even if the claimant is able to prove proximity, there is still the issue of causation.  As the issue of police immunity only arises where the police are being sued as secondary tortfeasors, it is difficult to show that their actions actually caused the damage.  An omission will not generally result in liability.  Therefore, it is only when the actions of the police increase the risk of the existing hazard that their negligence would be treated as having ‘caused’ the damage at law.  

One suggestion that has been put to avoid policy issues is to look beyond whether a duty of care is owed and decide whether there is a breach.  If a test such as the ‘Bolam test’ or ‘Wednesbury test’ was applied to police it could show that their decisions did or did not fall below the requisite standard of care.  It seems that the concern of ‘defensive practice’ can be mirrored in medicine, yet doctors enjoy no such immunity from medical negligence.  

Overall there has been a large move away from an automatic immunity to a more favourable system in which both parties can argue contrasting policies to enable an impartial outcome.  However, in my opinion there needs to be a move away from the use of policy at all as a decisive factor in negligence claims. The police and other public bodies need to be brought level with the individual, as they currently enjoy a much higher protection against negligence from the courts by hiding behind policy.  I would argue that policy can and should be avoided in court.  Policy decisions should be left to the government and the imposition of any immunity should be left to the legislature.  

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