Police Law Blog European Decisions Statutory Materials

Police duty of care to witnesses

  • The taking of witness statements by the police and the making of applications for witness summons’ falls within the core immunity in Hill;
  • Such actions do not demonstrate a voluntary assumption by the police of a particular duty of care to the maker of the statement;
  • Article 8 provides no greater protection than article 2 and it will be difficult for a Claimant to succeed only on the former.

The Claimants witnessed a shooting incident. They provided witness statements but received threats and had to move homes. On their refusing to attend the criminal trial to give evidence about the acts they had witnessed, a police officer applied for a warrant for their arrest. In a witness statement supporting the application, he stated the Claimants’ address. The CPS then later disclosed this to the defendants. In CLG and Others v Chief Constable of Merseyside Police [2015] EWCA Civ 836, the Claimants brought an action against the Chief Constable in, inter alia, negligence and breach of Article 8.

The negligence action failed, following Hill v Chief Constable of West Yorkshire [1989] AC 53. The Court of Appeal restated that the principle that police forces owe no duty of care to members of the public in carrying out their core functions was not doubted. However, two aspects of it were said to have provided fruit for debate: the precise boundaries of those core functions and whether the police may incur liability for negligence in cases in which there exists a more direct relationship between themselves and the claimant.

The Court held that the actions of the police in serving a witness summons, making a statement with a view to giving evidence of that fact and producing that statement to the prosecuting authority for the purposes of making an application for a warrant of arrest all formed part of their core function of obtaining and preserving evidence, in the discharge of which they owed no a duty of care to the public at large.

Nor did the police owe a duty of care to potential witnesses in general, although they might incur a duty of care towards a particular individual if they had dealings with him of a kind that involved an acceptance of responsibility for his safety. As to whether a duty was owed in this case, it was the Claimants who approached the police following the shooting and as the police took routine statements from them. The police knew where they were living. There was nothing to suggest that the appellants disclosed their address to the police on a confidential basis. The police had not, therefore, assumed responsibility.

As to the Article 8, the case was that the police had acted in breach of Articles 2 and 8 of the Convention: that they knew or ought to have known that there was a real and immediate risk to the appellants’ lives, but had failed to take such steps as were within their powers to avoid it. Alternatively, the police had failed to take sufficient steps to protect their right to personal autonomy and family life.

This, too, failed. The Court held that in principle, an isolated act of carelessness may be sufficient to constitute a breach of the negative obligation contained in Article 8, but the right to respect for private and family life was not unqualified. Here, the appellants’ address was properly included in the police officer’s statement because it was an essential part of the evidence needed to support an application for a warrant for their arrest. The disclosure of that information to the CPS was in accordance with the law and necessary in a democratic society in the interests of preventing crime. Therefore, the claim based on a breach of the appellants’ rights under Article 8 failed.

This Court, therefore, reaffirmed the principle of Hill and that the police’s performance of their core duties will not give rise to an assumed duty. Here, the police did nothing over and above their ordinary functions to demonstrate such an assumption – they took a witness statement from two individuals who did not ask that their contact details be kept confidential. There was nothing to show an acceptance of responsibility for the Claimants’ safety.

Further, the court doubted whether a claim could succeed in Article 8 where no claim could be established under Article 2. The Claimants had thought they could not succeed under Article 2 and abandoned the claim. The court was unimpressed and stated, obiter, that Article 8 provided no greater protection than Article 2 and that it would be difficult for a Claimant to succeed only on the former.