The story of PC David Rathband, shot and blinded by Raoul Moat on 4th July 2010, and his subsequent suicide in February 2012, is one of the most traumatic for the police service in recent years. Prior to his death he had commenced legal proceedings against the Chief Constable of Northumbria Constabulary arising out of the shooting. The claim was carried on after his death by his brother and sister, on behalf of his dependants and estate.
Two weeks ago the High Court gave its judgment in Rathband v Chief Constable of Northumbria [2016] EWHC 181 (QB). It dismissed the claim in negligence brought against the Chief Constable of Northumbria Police. In doing so the Court had to determine where the balance lay between the competing principles that (1) a Chief Constable owes a duty of care to serving officers, and (2) the immunity from suit in negligence that a Chief Constable generally enjoys in relation to operational decisions.
The facts
The trial focussed on the precise events in the minutes leading up to PC Rathband’s shooting. In the early hours of 3rd July 2010 Moat had shot and seriously injured his ex-partner, and killed her new partner in the mistaken belief that he was a police officer. At 00.29 on 4th July he rang 999 to explain his actions. In this call, Moat made repeated threats against police officers, saying “I’m coming to get you’s I’m not on the run I am coming to get you… I’m hunting for officers now right.”
Having been notified of the call, the superintendent who had assumed the role of Silver Commander for the operation decided not to issue an immediate warning to all police officers. She decided to wait for cell-site analysis and for the 999 call to be properly analysed before issuing any warning. These steps were commenced, but there was a period of only about seven-and-a-half minutes between Silver being told of the call and Moat shooting PC Rathband.
Put simply, the claim at trial asserted that there was a foreseeable risk of harm to PC Rathband as he was one of the officers on duty during the shift when Moat had said he was hunting for officers. A breach of this duty was alleged to arise via two different routes:
- Vicarious liability for the negligence of officers acting under the Chief Constable’s direction and control; and
- The non-delegable duty every employer owes to his employees to take reasonable care for their safety so as not to expose them to an unnecessary risk of harm.
It was alleged that Silver breached this duty of care in failing to issue a warning via officers of the risk Moat posed.
No claim was brought under Article 2 of the ECHR for failing to protect PC Rathband’s right to life.
Analysis of the ‘core immunity’
The Judge considered the authorities on the duties of care owed by Chief Constables, before summarising the relevant principles as follows:
1. A Chief Constable owes to officers within his force a non-delegable duty to take reasonable care for their safety by ensuring both the provision and operation of a safe system of work. This is different from the duty owed to members of the public, where (in the absence of any assumption of responsibility) a duty to protect against harm caused by criminals is excluded by the principle in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53.
2. The duty as a “quasi-employer” may, however, also be excluded as a matter of public policy – or because it would not be fair, just and reasonable to impose such a duty – by reference to the same Hill principle.
3. The duty will be (or is more likely to be) be excluded in cases involving operational decisions taken under pressure, whether of time or due to other circumstances. This is particularly important where there is a risk that imposition of a duty would give rise to “defensive policing”. In such cases the public policy enshrined in the Hill principle is likely to outweigh the public interest in the performance of the Chief Constable’s duty as a quasi-employer.
4. What matters, therefore, is the nature of the decision made, not the seriousness of the underlying risk or severity of the breach.
The issue for Silver at the time was not simply whether to give a warning, but what any such warning should say. She did not have time to analyse in any detail the pros and cons of issuing an immediate warning or to think through the implications of such a course. There was no manual or guidance to assist. Silver’s decision was described by the judge as, “a reaction to an unexpected and unforeseeable 999 call in the course of a complex and challenging police manhunt for a highly dangerous criminal wanted for murder.”
The Judge concluded that the decision fell clearly within the core Hill principle. He concluded that to impose a duty of care “would plainly give rise to a risk of defensive policing and would inhibit rapid decision making.” The claim would therefore be dismissed as no duty of care could be imposed.
Was there a breach of duty?
The judge went on to determine the issues of breach of duty and causation
A striking feature of the case was that, with hindsight, Silver had only a very limited time in which to give a warning before the shooting occurred. The Chief Constable admitted that a warning needed to be issued, but that Silver’s decision to await further (imminent) detail before issuing the warning was both rational and reasonable.
In what must have been a fairly memorable few minutes of cross-examination, during the trial the Claimant’s expert was unable to formulate the precise wording of any warning that he asserted ought to have been given by Silver. The judge made the poignant comparison that “the pressure of cross examination was much less than that under which Superintendent Farrell had to operate at the time.”
The Judge concluded that Silver’s decision to await the imminent arrival of cell site analysis and to have the 999 call listened to properly before issuing any warning to police officers was reasonable, even if other commanders might have taken a different course.
Causation
On the question of causation, the issue of the lack of time available to formulate a warning, broadcast the warning and for PC Rathband to have acted upon it, was crucial. The Judge identified that Silver had only 3½ minutes to avert the shooting of PC Rathband.
Close analysis of the timing of events led the Judge to conclude that, even if a warning had been given, “…if PC Rathband was going to avoid the shooting, he would have had to react almost instantaneously by moving away from the position where he was parked. I cannot find that it is more likely than not that he would have done so.”
Conclusion
Every day police officers knowingly place themselves in dangerous situations in order to serve the public. Operational commanders deploy their officers in situations where there is a clear risk that the officers might come to harm. In doing so, mistakes may sometimes be made which result in officers being exposed to an unnecessary risk of harm.
The Court’s decision in this tragic case recognises the significant public interest in operational commanders not exposing their officers to unnecessary risk. However it confirmed that there is a countervailing public interest in protecting senior commanders from negligence claims where they are taking difficult decisions in the heat of an uncertain, rapidly unfolding scenario. In such cases there is often risk arising whatever operational decision is taken. Even where mistakes are made, it is unlikely in these circumstances that a claim will succeed.
This decision should not be regarded as providing a ‘blanket immunity’ from negligence claims, even in the operational context. For example:
- The relatives of a person (including a police officer) who dies following an alleged failure to prevent on obvious, identifiable risk to life may have a claim under Article 2 of the ECHR;
- Where police officers create a hazard they may be liable for the consequences of failing to contain it or to protect the public or police officers from it;
- There will be numerous cases where the police are deemed to have assumed responsibility to take action, and may be liable where they fail to act appropriately.