A review of the reported legal decisions 2014 relating to policing demonstrates that many of the old risk areas for litigation continued to trouble chief police officers, and increasingly Police and Crime Commissioners (PCCs). While it is difficult for a force to protect itself from litigation following unpredictable major events, such as the London riots, there are particular aspects of policing where forces continue to face repeated litigation, or trends suggest that claims are likely to increase in the future.
The public scrutiny of police activity, and the rights of individual members of the public to bring action when their rights are infringed, are truly fundamental features of open democracy. A certain amount of civil litigation is probably an inevitable feature of modern policing. However, Chief Officers and PCCs ought to be examining carefully whether there are aspects of their police operations that are generating excessive civil claims. Reducing the incidence of such claims ought to improve the standards of policing as well as reducing the annual drain on policing budgets caused by legal claims and their associated costs.
Liability in negligence
In 2013, the case of Sarjantson v Chief Constable of Humberside  EWCA Civ 1252 represented a potentially significant narrowing of the scope of police immunity from suit in claims for negligence. 2014 saw two cases further erode significantly this protection that fifteen years ago covered almost all aspects of policing outside routine traffic collisions.
The first was that of DSD v Commissioner of Police of the Metropolis  EWHC 436 (QB). Two victims of the ‘black cab rapist’ (John Worboys) brought claims against the Metropolitan Police for damages under Article 3 of the ECHR (inhuman and degrading treatment). It was alleged that, as a result of both individual and widespread, ‘systemic’ failings, Worboys remained at liberty, continuing to drug and rape his passengers, at a time when he ought to have been apprehended. The state had therefore failed to prevent an individual causing inhuman or degrading treatment to another. In a detailed judgment, analysing both the facts of the Worboys investigation and Strasbourg case law on Article 3, Mr Justice Green decided that the Police were liable. He emphasised that series of exacting hurdles had to be overcome before liability could be imposed. However, the failings in the Worboys case were sufficiently serious to pass the liability test by a considerable margin.
In a more everyday scenario, the Court of Appeal confirmed in Robinson v Chief Constable of West Yorkshire  EWCA Civ 15 that the police continue to be immune from suit where it is alleged that a third party was inadvertently injured during the arrest of a suspect. Mrs Robinson was injured when she was knocked down in the street during the arrest of a suspected drug dealer. The Court of Appeal stated that there was no blanket immunity from negligence claims for the police. However, it was not fair, just and reasonable to impose a duty of care on the police to individuals during the detection and prevention of crime because the interests of the public will not be best served by imposing a duty to individuals.
Previous cases where the police have been held to be liable for failing to prevent crime (or for damage or loss caused in the detection and prevention of crime) have generally only been successful where the police were aware of a specific threat, and the Claimant in a relatively small class of identifiable potential victims. The well-known case of Hill v Chief Constable of West Yorkshire Police  1 AC 53 that confirmed the immunity that the police in relation to the general public was itself a claim by the family of one of the victims of Peter Sutcliff (‘the Yorkshire Ripper’). The basis for the claim in Hill has clear parallels with that DSD, yet 25 years later a very different decision has been reached.
The decision in DSD can be seen as the culmination of a clear trend over recent years to gradually erode the scope of the immunity that it was once believed the police enjoyed. The Commissioner of Police has appealed the DSD decision to the Court of Appeal. Whatever the decision by Court of Appeal in DSD, the scope of police immunity from negligence claims will only shrink rather than widen.
Search and seizure warrants
A series of cases in 2014 has emphasised the need for the police to be absolutely scrupulous in ensuring that full and frank disclosure is provided to the Court when seeking a warrant for entry to private premises.
In March in R (Golfrate Property Management Ltd) v Southwark Crown Court  EWHC 840 (Admin) the High Court set aside search and seizure warrants granted under s.352(1) and s.352(6)(b) of the Proceeds of Crime Act 2002 because there had not been full and frank disclosure by the police the Court. The Administrative Court gave the following clear warning, which needs no further explanation:
“…a judge faced with such an application requires the presentation of a full and clear picture of what lies behind it and to be told of matters that might tell against it. The target of the application is entitled to expect such candour. This obligation is well understood by experienced legal practitioners in the commercial and civil fields. If and to the extent that it is not well known and understood by police officers seeking orders such as those sought in this case, it is time that the message was brought home clearly.”
If the obligation to give full and frank disclosure needed any more emphasis, it was provided in June in the judgment in R (CPW) v Harrow Crown Court  EWHC 2061 (Admin). The Administrative Court awarded costs against the Metropolitan Police on an indemnity basis following material non-disclosure in obtaining a search warrant. While the Judge did not find any bad faith on the part of the officers, she did identify an “appalling disregard” for the rules.
Great care must be taken over the wording of the warrant, particularly where it is anticipated that there is a large quantity of material that may be seized, which may include legally privileged and/or special procedure material. In R (F, J and K) v Blackfriars Crown Court  EWHC 1541 (Admin) the search warrant obtained was agreed to be unlawfully issued because the Administrative Court agreed that the wording of a search warrant went further than was permissible as it allowed the seizure of items that may have contained no relevant material at all. The High Court refused to apply a ‘blue pencil’ to the warrant, to remove the offending parts so as to allow it to authorise the seizure of those items that could have been the subject of a lawful warrant. The Court stated that it saw no basis for saying that the warrant could be lawful with respect to some items, but unlawful with respect to others. The ‘very authority to go onto the premises’ was invalidated as a result of the defect in the warrant.
Data processing and disclosure
June saw the much anticipated decision of the Supreme Court in R (T) v Chief Constable of Greater Manchester  UKSC 35. The Supreme Court upheld the Court of Appeal’s decision that the disclosure provisions within s.113A and s.113B of the Police Act 1997, prior to their amendment, had been incompatible with Article 8 of the ECHR. However, it reversed the finding that orders made under the Act were ultra vires, therefore automatically unlawful. Although the legislation had already been amended, the case nevertheless sets a rigorous relevance test for the disclosure of old and/or minor convictions or cautions in Enhance Criminal Record Certificates, particularly for those applicants who were under 18 at the time.
The case of T, and the large number of specific cases brought challenging police disclosures of prior convictions and warnings, require careful and specific attention for those working in this field. However, there are two recent cases in the area of disclosure that are a little a little out of the ordinary.
In R (A) v Chief Constable of C  EWHC 216 (Admin) a Chief Constable’s decision that the applicant be refused security clearance to continue to act as a contractor was upheld. The Court confirmed that a two stage test was appropriate: (1) to consider whether there were reasonable grounds for suspecting that the applicant was or had been involved in criminal activity, and if so (2) it was necessary to consider whether it was appropriate, in all the circumstances, to refuse him security clearance. In the applicant’s case the wrong test had been applied, but the Court found that if the correct test had been applied, the decision would have been the same.
In reaching its decision, the Court emphasised that a decision-maker had to be very careful before reaching a conclusion adverse to an applicant based only on intelligence, rather than evidence. However, there could be no doubt that such intelligence, on its own, could be sufficient to amount to reasonable grounds for suspicion.
The case of AB v A Chief Constable  EWHC 1965 (QB) was dealt with in detail in December’s article. The case confirmed that a Chief Constable is under a duty to provide a candid reference for a former officer, particularly where officers leave under the cloud of potential or pending disciplinary proceedings. This case is of relevance to the next area of ongoing legal risk, the often controversial area of police discipline.
Can the Appropriate Authority (AA) in disciplinary proceedings rescind its decision to accept the resignation of an officer, and suspend him pending a second enquiry by the IPCC? In R (Birks) v Commissioner of Police of the Metropolis the Court found that the AA did have power to do so, under Regulation 4 of the Police (Conduct) Regulations 2012, but only provided the public interest left no alternative course.
PC Birks was one of a number of officers who were involved in the events leading to the death of Sean Rigg in police custody in August 2008. The original IPCC investigation had concluded that no officer had a case to answer for misconduct. The inquest into Mr Rigg’s death concluded in August 2012, and the verdict was critical of the officers involved with Mr Rigg. PC Birks was told he would not be prevented from resigning, and his intended future employer was told that there were no disciplinary proceedings anticipated. The decision was then taken by the IPCC to commence a fresh investigation. PC Birks later gave notice of resignation. However, before he left the police, the second IPCC investigation concluded that PC Birks should be served with a notice of investigation.
The Court found that PC Birks had been given a clear, unambiguous representation that he would not be prevented from resigning, sufficient to give him a legitimate expectation that he would be allowed to do so. However, this legitimate interest was trumped by the public interest in ensuring that he remain subject to the jurisdiction of the police disciplinary process relating to a death in police custody.
The role of the IPCC was subject to scrutiny by the Court of Appeal in a different context in R (Chief Constable of West Yorkshire) v Independent Police Complaints Commission  EWCA Civ 136. The Court of Appeal upheld the decision of the lower court that a report that it had issued following an investigation into a complaint about the conduct of a police officer had strayed beyond its limits and should be quashed. The Court of Appeal agreed that the IPCC’s report had included clear findings that the conduct of the officer had been unlawful, and that in making such findings the investigators had also assumed the role of judge and jury. The function of the investigators was to investigate and determine whether there was a case to answer in respect of misconduct or gross misconduct. The Court of Appeal emphasised that whether or not an officer had acted as alleged, and whether this was misconduct or gross misconduct, would be a matter for the tribunal hearing any disciplinary case.
These cases demonstrate the importance of maintaining clear, regular communications between the relevant police force and the IPCC, in order to prevent the kinds of misunderstanding that arose in both Birks and the West Yorkshire case.
While the above categories of case cover the spectrum of unrelated policing activities, there are two themes that do emerge.
The first is that, while the contraction in the public sector budget nationally has made it more difficult for some groups of litigants to fund claims against the police, the scope for challenging all policing activities continues to widen. This is a feature both of the common law and the evolving jurisprudence of the European Court of Human Rights. The challenge to control the costs of civil litigation is therefore increasing.
The second theme arises as question: how can forces reduce the risk (or number) of court cases that they face? There is no easy or straightforward answer to this problem. However, there are changes in behaviour that forces can encourage that, if acted upon, will have some effect in reducing the risk of a subsequent legal challenge. The following may appear to be obvious points, but a failure to follow one or more of them is frequently seen in legal challenges that may have been avoidable:
- It is particularly important that, where supervisory officers are working in areas of high legal risk, they are properly trained and confident that they understand the key legal principles underpinning the powers they are using.
- Supervising officers must appreciate the heightened need to supervise closely more junior officers’ decision making in areas of significant legal risk, such as those identified above.
- Officers and staff should be encouraged to access legal advice at an early stage if they have any doubts about the correct way to proceed. In the long-term, this ought to reduce the overall expenditure on legal fees. The problems surrounding search warrants and misconduct investigations are particularly clear examples of this.
- A proper, contemporaneous record must be kept of controversial decisions that are taken, including the alternative options that were considered, and the reason for their exclusion.
Finally, flexible, discretionary decision making must be encouraged. It is often the inappropriately rigid adherence to a system at the early stage in a dispute that diverts the parties towards the courts. In cases where ECHR rights are engaged, the principle of proportionality ought to mean that there is almost always scope for consideration of individual circumstances. Historically, the fear has been that this will lead to inconsistent decision making. However, provided officers and staff consistently apply the same framework within which decisions are made, different outcomes will merely reflect the discretion that is appropriately left to the individual officer or member of staff. This discretion ought to provide the public with a better service, whilst also giving the police a sound basis for defending claims that will – inevitably – continue to be brought in significant numbers.
This article was first published in Police Professional.