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In Whose Interest are You Acting?

  • The impact of the High Court decision in James-Bowen v The Commissioner of Police of the Metropolis on the relationship between a Chief Officer and those accused of wrongdoing in civil proceedings.
  • The High Court confirmed that, where a Chief Officer is defending civil proceedings brought solely against him/her, there is no duty owed to individual officers whose conduct is the subject matter of the claim.
  • While this decision is perhaps unsurprising, the action highlights the uncomfortable position a constabulary will often find itself in where it is uncertain about the truth of an allegation made against an officer.

The case also demonstrates the need to deal sensitively and diplomatically with officers whose conduct is challenged in civil proceedings. If officers lose faith in the organisation, there is a very substantial negative not only for those officers: such a collapse in morale can spread to other serving officers or staff. The tendency for these cases to cause wider damage to morale is increased because the true basis of settlement is often confidential. This makes it difficult for the Force to correct inaccurate rumours that may spread concerning the nature of, and reason for, the settlement.

While the underlying facts in James-Bowen v Commissioner of Police may be a little unusual, some of the issues the case raises are very common, and are likely to be encountered frequently by every national police force. There are important lessons to be learned for all UK police forces.

The facts in James–Bowen 

On 2nd December 2003 a terror suspect, Babar Ahmad, was arrested by Metropolitan Police officers. He subsequently made an accusation that he had been seriously assaulted during his arrest, which resulted in disciplinary proceedings being brought against the officers involved. The disciplinary charges were dismissed. In 2007 Mr Ahmad commenced a civil claim against the Metropolitan Police Commissioner. The individual officers alleged to have assaulted him were not named Defendants.

In 2008 a case conference was held with the legal team acting for the Commissioner. The officers attended in their capacity as witnesses. It was alleged that during this conference the officers were assured that (1) the claim would be ‘vigorously defended’; (2) that the legal team was also acting in the officers’ interests; and (3) that the Commissioner would seek to have special measures in place at trial to protect the officers’ identity, and they would not have to give evidence if these measures were refused.

The Commissioner’s subsequent application for special measures to protect witnesses at trial was refused. Shortly before the trial was due to take place in March 2009, the officers learned that the Commissioner (through his legal team) was proposing to settle the claim. There followed a second case conference, at which the officers alleged they were told that the Commissioner’s legal team was no longer instructed to represent their interests.

The trial commenced and on the second day of trial one of the officers informed the Commissioner’s barrister that if special measures were not provided, the officers would not testify. The claim was then settled, with the Commissioner making an apology for the “gratuitous violence” which Mr Ahmad was said to have endured.

After the conclusion of the trial, the Commissioner issued a press statement that was critical of the officers’ refusal to give evidence. The CPS subsequently prosecuted the officers for a number of criminal offences relating to Mr Ahmad’s arrest. The officers were all acquitted by a jury at the subsequent criminal trial. Evidence relied upon by the officers as crucial to their defence was a covert “probe” recording of part of Mr Ahmad’s arrest.

The claim against the Commissioner

The officers brought a claim against the Commissioner for damages, including damages for loss of reputation and personal injury (psychiatric damage). The causes of action relied upon were breach of the client/solicitor retainer (breach of contract), negligence and misfeasance in public office.

The specific allegations made were that the Commissioner had failed to (i) conduct and prepare a competent defence to Mr Ahmad’s civil claim, (ii) keep the officers informed of the progress of the investigation, and to protect their interests, (iii) advise and/or warn the officers that he was minded to settle BA’s claim, and (iv) to explain why his legal team could no longer represent the officers’ interests. For the purposes of the application, the Court had to assume that the factual allegations made were true.

The application to strike out 

The Commissioner applied to strike the claim out as disclosing no reasonable cause of action, and sought summary judgment in his favour.

The Court had little hesitation in striking out the claim for breach of the client/solicitor retainer. As the officers were not named Defendants, they were not parties to the claim but were merely witnesses. The Court accepted that an officer whose conduct is directly challenged in a civil claim may face considerable reputational damage if the case against the chief officer is either proved or settled. However, unless the officer is personally a party to the action, there would have to be an express contract of retainer with the chief officer’s legal representative for the solicitor/client relationship to arise.

Having decided that there was no solicitor/ client relationship, the Court was also clear that no duty of care to the police officers arose. There were three principal reasons why there could be no such duty. The first is that a party must be entitled to settle a legal claim having regard to its perception of its own interests, regardless of anyone else’s interests. Therefore the Commissioner’s lawyers, instructed to advise and represent him in the litigation, owed a duty to him and to no one else. The third limb of the well-recognised test in Caparo Industries plc v Dickman [1990] 2 AC 605 was not satisfied as it could not be fair, just or reasonable to impose a duty which cut across this duty owed to the Commissioner by his legal representatives. The judge regarded this as an “insuperable difficulty” in the officers’ claim.

The second reason was because the injuries alleged (psychiatric injury) were not to be regarded in law as a reasonably foreseeable consequence of settling the claim brought by Mr Ahmad. The Court considered the cases of French v Chief Constable of Sussex Police [2008] EWCA Civ 312 and Yapp v FCO [2014] EWCA Civ 1512. In both of these previous cases the Court of Appeal had found that psychiatric injury was not a foreseeable consequence either of the stresses involved in the legal aftermath of a police shooting (French), or removing a diplomat from his post (Yapp). Importantly, the Commissioner was not on notice that any particular officer was suffering from workplace stress in the traditional sense, where it is well-established that a failure to take corrective action can potentially lead to liability.

The third reason was that the Court found the Commissioner had not voluntarily assumed a responsibility to safeguard the officers’ interests. This was because the only solicitor/client duty that arose was between the Commissioner and his legal team. As the officers were not parties to the litigation, they had no direct interest that the Commissioner could have safeguarded on their behalf.

The misfeasance claim related to late disclosure of the covert probe evidence which was said to have played a crucial part in the officers’ acquittal at the criminal trial. This claim was struck out as several of the essential elements of that tort, in particular bad faith, had not been alleged.

The claim was struck out in its entirety.

Lessons for the future

It is clear from the judgment in James-Bowen that the main reason no duty was owed to the officers was because they were witnesses, rather than parties in the civil litigation. The situation would have been very different if one or more police officers had been a named defendant. Nevertheless, it appears that one or more of the accused officers in James-Bowen may have been left with the unfortunate misunderstanding that the Commissioner’s lawyers were, in effect, also ‘their lawyers’.

The most important lesson to learn is how essential it is to explain clearly to police officers who are the subject of allegations (or potential allegations) in civil courts their status in the proceedings, and the role of the legal team. It is also vital that the potential for any conflict of interest between the individual police officer and the chief officer is considered early. Thereafter it must be re-considered regularly, particularly when there is any significant development in the case.

In civil proceedings, the following ought to be clear:

1. Unless a named Defendant, the officer is a witness in the proceedings, not a party. He or she could be summonsed to attend court, like any witness.

2. Officers can be asked (and, if lawful, ordered) to provide a witness statement. However, they cannot be required to give evidence that might tend to incriminate themselves – either with respect to criminal or conduct matters.

3. While there may be exceptions for personal information, in many cases, the confidentiality attaching to the information that a police officer provides to the chief officer (or the legal team) cannot be enforced by that officer.

4. If a police officer has any concerns about their status, or the evidence they may be asked to give, they should not be discouraged from seeking their own legal advice (perhaps via the Federation).

5. Where an officer is a named Defendant, it is often entirely appropriate – and will often be in everyone’s interests – for that officer to be jointly represented by the same legal team as the chief officer. However, the officer has the option at all times of deciding to instruct their own lawyer. The costs of an officer doing so must be considered and, if it becomes relevant, discussed.

6. If the chief officer and the individual are jointly represented, the lawyers must bear in mind that they are acting for both parties equally. In practice, this feature is sometimes overlooked.

For inquests, the position is slightly different, but is potentially more complicated and more hazardous:

1. Any person “who may by any act or omission have caused or contributed to the death of the deceased” is an ‘interested person’ for the purposes of an inquest.

2. All interested persons are entitled to separate legal representation at an inquest. For deaths in custody or following police contact, this may cover a large number of police officers and staff.

3. It is therefore essential that the process is undertaken of identifying and explaining to each individual, their status in the inquest, whether mere witness or interested party; identifying any potential conflict; and confirming whether or not they wish the chief officer’s legal representatives to act for them. Unlike in civil litigation, it is often desirable for the officers most closely associated with the actions that led to a controversial death to have their own representation. However, this is not always necessary.

All police forces should consider drafting a formal policy setting out the protocol for supporting and, where appropriate, representing police officers in civil litigation and inquests. This should include the circumstances – if any – in which the chief officer might contribute to the legal costs of an officer being separately represented.

Where civil or coronial proceedings are under way or anticipated, it would be advisable for relevant officers and staff to be provided with a letter confirming:

  • their status in the proceedings,
  • their right (if any) to separate representation, and
  • the extent to which the chief officer is undertaking to act in their interests.

Where the chief officer’s lawyers are also acting on behalf of an officer/staff member who is a party in such proceedings, the agreement must be in writing, and follow the usual formal requirements for a retainer.

If these procedures are followed, it is hoped that the kinds of legal, practical and human problems that arose in the James-Bowen case can be avoided.

This article was first published in Police Professional.