In Tindall v Chief Constable of Thames Valley Police [2020] EWHC 837 (QB) — available on Westlaw but not yet Bailii or the ICLR, the courts have again demonstrated a reluctance to strike-out a police negligence claim. This shows the difficulty of trying to show whether the police have positively created a danger/made it worse or merely refrained from protecting someone. A claim against the police for negligence will usually arise in the first instance but not, subject to exceptions, the second.
In Chief Constable of Essex Police v Transport Arendonk Bvba [2020] EWHC 212 (QB), the High Court (Laing J) refused to strike out a claim in negligence, against the police, where the driver of a lorry carrying cargo had been arrested for drink-driving, and the cargo had been stolen during the driver’s detention at the police station. It demonstrates the continued difficulty to identify what is a police “act” or “omission” – and what amounts to the police causing a state of danger, giving rise to liability.
In Griffiths v (1) Chief Constable of Suffolk (2) Suffolk NHS Foundation Trust [2018] EWHC 2538 (QB), the High Court dismissed claims that the Chief Constable and the NHS Trust were negligent in breaching their duties of care or had breached human rights. The case is interesting for reaffirming three points:
i. the law will generally not impose liability on a defendant for failing to prevent harm caused by someone else;
ii. obligations under Article 2 (right to life) or Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR) will not arise where the institution does not know of a real risk that those rights would be breached; and
iii. where there is a protective duty in respect of ECHR, Articles 2 or 3, a breach of Article 8 (respect for private and family life) cannot succeed where Articles 2 or 3 are not themselves breached.
The Supreme Court has held in James-Bowen & Ors v Commissioner of Police of the Metropolis [2018] UKSC 40 that the Commissioner owed no duty to protect the economic and reputational interests of officers whose alleged misconduct formed the subject of a civil claim, which the Commissioner had settled.
The officers had been involved in executing the arrest of BA at BA’s home in December 2003. BA accused the officers of having assaulted and abused him, allegations which received widespread media coverage. He brought a civil claim against the Commissioner, who was vicariously liable for the officers’ actions and who settled the claim with an admission of liability (relating to the officers’ alleged wrongdoing) and payment of compensation. The officers were not parties to the civil claim and had declined to give evidence at the trial due to fears for their own safety following the release of their identities into the public domain by the Independent Police Complaints Commission, now the Independent Office for Police Conduct. After the civil claim was settled, the officers were prosecuted in the Crown Court: a jury speedily acquitted them following disclosure of a probe in BA’s home which undermined his version of events.
The officers brought claims against the Commissioner, as their quasi-employer, for having failed to protect their interests in the conduct of the civil litigation including the settlement of the claim.
The hits for the police keep on coming. The decision in Commissioner of the Metropolis v (1) DSD (2) NBV [2018] UKSC 11 confirms that the police can be liable in proceedings for a breach of Article 3’s prohibition on inhuman and degrading treatment (and possibly Article 4’s prohibition on slavery) where they fail to perform an adequate criminal investigation into alleged serious ill-treatment.
This decision was less of a surprise than Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 – given the strength of the earlier judgments both at first instance and in the Court of Appeal. That said, it is hard to say anything other than that the courts are slowly but surely eroding out of existence the police’s ‘immunity’ from claims arising out of the performance of its core duties.