English Law has so far failed to reconcile the demands of the emerging European human rights jurisprudence with its instinctive tendency to create 'public interest immunities' in respect of the negligence liability of public bodies.

     subsection (3)(b) if the nature of the act is private.

(6)“An Act” includes a failure to act but does not include a failure to –

1. introduce in, or lay before, Parliament a proposal for legislation; or

(b)make any primary legislation or remedial order.

Journal article

The journal article I have read is that of Paula Gilker, in which she sets out to demonstrate that reform of the current law is needed.  The article questions whether the case of Osman v Ferguson dictates that maybe different approaches should be taken against negligence claims that are brought against Police Officers.  And also whether or not the immunities that can apply for the Police should still be enforced, be it qualified or blanket immunity.

What are the problems with the law?

As set out in Hill v Chief Constable of West Yorkshire, Lord Keith manages to distinguish the fine line between when it is appropriate to apply the blanket cover of immunity to the Police and when not to,

        “The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime.  The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is the most advantageous way to deploy the available resources.  The result of liability for negligence would be a significant diversion of Police manpower and attention from their most important function, that of the suppression of crime.”

A major problem with the law, is that it is consistent with the rules against liability for omissions that the emergency services have no duty to answer 999 calls.  And so I believe that upon answering them is where the problem lies.  As when the calls are answered they are prioritised in relation to their importance to the service that they require.  And if problems arise from the way they are prioritised, for example if one person dies from a fight that is happening, but the Police place priority on a football riot.  And so I believe a way around this problem would be to privatise the public services, so that if any citizens would like to take the services to court then the immunity would not apply, and so a fair and impartial hearing would be able to take place, meaning justice will be done.

Where immunity has been exercised by the courts

In the case of Osman v Ferguson the courts dismissed the applicants claim that the Police had negligently failed to arrest Paget-Lewis, who was Ahmet Osman’s former schoolteacher.  The Police had failed to arrest Paget-Lewis on any charge after interviewing him on the basis of complaints made to them from the Osman family.  Tragically for the Osman’s, Paget-Lewis went on to conduct the threats he had made, and on the 7th of March, Paget-Lewis seriously injured Ahmet Osman, and killing his father.

And so the courts found that this case satisfied the proximity requirements that were needed to show that the Police did infact owe the Osman’s a duty of care as their relationship was sufficiently proximate.  However the case was a failure, as the English court applied the immunity from Hill v Chief Constable of West Yorkshire.  Even though the case suggested that the Osman’s had actively sought to make the Police aware of the situation and requested that they take note of their complaints, so that this would differentiate the situation the family was in from other complaints that the Police receive on a daily basis.

This goes to show that even though the Osman’s followed a text book procedure to have their situation personalised in the sense that they made the Police aware of their circumstances, so that the Police then are involved as they owed the Osman’s a duty of care.

Where Immunity got struck out from the courts

In the case of Swinney v Chief Constable of Northumbria Police Force the court held, “A special relationship between the plaintiffs and the Police through the assumption by the Police of responsibility to preserve the confidentiality of information supplied by the first plaintiff, disclosure of which was likely to expose the plaintiffs to a risk greater than the ordinary risk to the general public; that the immunity generally conferred on police officers from actions in negligence in relation to the investigation or suppression of crime had weighed against the need to protect the confidentiality of informants without fear of disclosure of identity; that it was necessary to make a balanced assessment of all the public policy considerations in order determine the question of immunity, and that the appropriate time to make such an assessment was at the trial.”

And so when the court heard all of the facts, the court found that it was arguable that the Police were not infact immune from the claim brought against them.

My opinions / beliefs

Now that I have looked an assessed as well as criticised two cases that both have legal standing, I will portray my beliefs on the topic.  I believe that the Police should not have to Police defensively and think about court cases that may arise from them acting out their duties that their job requires them to do so.  As this in my opinion would make officer’s act differently in situations they make think are easy to handle or those that have a straight forward solution to them.

I do believe that there are some good principles to the currently system that is being enforced, like; the way Police do not posses an immunity against torts such as assault, battery, false imprisonment and malicious prosecution.  Where the Police conduct these acts as deliberate misconduct.

Another good principle in the logic of understanding immunity and the Police occurs when it is determined that immunity has been applied when the police have played an indirect role in the accident by failing to intervene to deal with harm caused by a third Party, natural event or the claimant.  The immunity will not be applied if the Police intervene in a positive and direct aspect.

Questions / statements left unanswered

The question that I believe needs answering before anybody can have a strong viewpoint on the topic is that of, we know that something needs to be achieved to change the current policy on Police immunity, however if the policy as it stands no was to be changed, what would it be changed to?  Who would it benefit more? Would the public / Police be getting a better deal?  And would changing any of the above mean that Police officers could not do their job properly because they are unable to work to serve the public to the best of their ability because they are too busy thinking if their actions will attract a court case.

Concluding statement

Furthermore on concluding this argument I believe that for the reasons set out in my arguments in the above section, “What are the problems with the law?”  There can be no straight answer as to whether or not the Police or any other public service for that matter should be entitled to immunity from the courts.  As there will always be tests that have to be satisfied before the courts, that go on to prove some matter of fact.  And then each case is individual in its own right, and so has to be examined and judged upon its own merit.  Having said that I do believe that the Police and other services should be able to do their job to the best of their ability without having to worry about the public taking them to court.  Also they do have to act in the interests of the public as a whole, and so are assessing situations before they act, as they will have to establish who is going to benefit from their action

Bibliography

Common Law (Law 103/220) 2002 – 2003 Statutory Materials Handbook

Legal Studies, Osman and Police Immunity in the English Law of Torts, Paula Gilker, Butterworths, Volume 20 2000, page 372

Hill v Chief Constable of West Yorkshire [1989] AC 53

Osman v Ferguson [1993] 4 All ER 344

Swinney v Chief Constable of Northumbria Police Force [1997] QB 464