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Brooks (FC) (Respondent) v. Commissioner of Police for the Metropolis (Appellant) and others
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Brooks (FC) (Respondent)
Commissioner of Police for the Metropolis (Appellant) and others
THURSDAY 21 APRIL 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Brooks (FC) (Respondent) v. Commissioner of Police for the Metropolis (Appellant) and others
 UKHL 24
LORD BINGHAM OF CORNHILL
1. Duwayne Brooks, the respondent, was present when his friend Stephen Lawrence was abused and murdered in the most notorious racist killing which our country has ever known. He also was abused and attacked. However well this crime had been investigated by the police and however sensitively he had himself been treated by the police, the respondent would inevitably have been deeply traumatised by his experience on the night of the murder and in the days and weeks which followed. But unfortunately, as established by the public inquiry into the killing (The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny (1999) Cm 4262-I), the investigation was very badly conducted and the respondent himself was not treated as he should have been. He issued proceedings against the Commissioner of Metropolitan Police and a number of other parties, all but one of whom were police officers.
2. I am indebted to my noble and learned friend Lord Steyn for his detailed summary of the history of these proceedings, the pleadings and the issues, which I gratefully adopt and need not repeat. As he makes clear in paras 12 and 14 of his opinion, the only issue before the House is whether, assuming the facts pleaded by the respondent to be true, the Commissioner and the officers for whom he is responsible arguably owed the respondent a common law duty sounding in damages to
(1) take reasonable steps to assess whether [the respondent] was a victim of crime and then to accord him reasonably appropriate protection, support, assistance and treatment if he was so assessed;
(2) take reasonable steps to afford [the respondent] the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence;
(3) afford reasonable weight to the account that [the respondent] gave and to act upon it accordingly.
3. For reasons elaborated at some length in my dissenting opinion in JD v East Berkshire Community NHS Trust and others  UKHL 23, I would be very reluctant to dismiss without any exploration of the facts a claim raised in a contentious and developing area of the law where fuller factual enquiry might enable a claimant to establish that a duty of care had been owed to him and had been broken. I would also be reluctant to endorse the full breadth of what Hill v Chief Constable of West Yorkshire  AC 53 has been thought to lay down, while readily accepting the correctness of that decision on its own facts. Two considerations, however, persuade me that this appeal should be allowed and the respondent's claims in common law negligence struck out.
4. The first is that the facts of this case have been exhaustively investigated. While theoretically the facts are only to be assumed, and have not been proved, it seems most unlikely that there are factual discoveries to be made or that there will be any substantial challenge to the facts as pleaded. If the case went to trial, the judge would base his decision on essentially the same facts as are now before the House. The second consideration is that the three duties pleaded are not, in my opinion, duties which could even arguably be imposed on police officers charged in the public interest with the investigation of a very serious crime and the apprehension of those responsible. Even if it were to be thought, for reasons such as those touched on by Lord Steyn in paras 27-29 of his opinion, that the ratio of Hill called for some modification, I cannot conceive that any modification would be such as would accommodate the three pleaded duties. This conclusion imports no criticism at all of the respondent's expert advisers, who have plainly pleaded the strongest duties available on the facts. But these are not duties which could be imposed on police officers without potentially undermining the officers' performance of their functions, effective performance of which serves an important public interest. That is, in my opinion, a conclusive argument in the Commissioner's favour. Fortunately, the respondent has other causes of action which he is free to pursue.LORD NICHOLLS OF BIRKENHEAD
5. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn. I too would allow this appeal. I can see no basis for sensibly imposing on the police any of the three legal duties asserted by Mr Brooks on this appeal. These duties would cut across the freedom of action the police ought to have when investigating serious crime.
6. Like Lord Bingham and Lord Steyn, in reaching this conclusion I am not to be taken as endorsing the full width of all the observations in Hill v Chief Constable of West Yorkshire  AC 53. There may be exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law. Then the decision in Hill's case should not stand in the way of granting an appropriate remedy.
I. The Racial Attack
7. The background to this appeal is the tragic event of the evening of 22 April 1993 when a gang of young white thugs attacked Stephen Lawrence and Duwayne Brooks, two eighteen year old youths, for no other reason than that they were black. Stephen Lawrence died from stab wounds less than an hour later. Duwayne Brooks was a key witness to the attack on Stephen Lawrence and was the surviving victim of the attack.II. The Macpherson Report
8. On 31 July 1997 the Home Secretary appointed Sir William Macpherson of Cluny, aided by three experienced advisers, to inquire into the matters arising from the death of Stephen Lawrence in order particularly to identify the lessons to be learned from the investigation and prosecution of racially motivated crimes. It was an exhaustive inquiry: the oral hearings took 59 days. The unanimous Macpherson report was delivered on 15 February 1998. It exposed a litany of derelictions of duty and failures in the police investigation. Although there were large numbers of police officers early on the scene, the Inquiry was astonished at the total lack of direction and organisation during the vital first hours after the murder: [46.6]. For present purposes only brief references to the conduct of police towards Mr Brooks are necessary. The report described Mr Brooks as someone who: " saw his friend murdered, dying on the pavement, and dead as he was carried into the hospital. And he has had to endure that night, and the whole course of the failed investigation. He was a primary victim of the racist attack. He is also the victim of all that has followed, including the conduct of the case and the treatment of himself as a witness and not as a victim": [5.7]. The criticisms of the police conduct towards Mr Brooks included the following passages:
III. The Criminal Proceedings
9. A public prosecution of two youths for the murder of Stephen Lawrence was commenced. On 9 July 1993 it was discontinued. The family of Stephen Lawrence started a private prosecution against five youths for murder. Three of them stood trial at the Central Criminal Court. Mr Brooks gave evidence during a "voire dire" on 18th, 19th and 22nd April 1996. The trial judge directed that Mr Brooks' evidence should be excluded. In the light of this decision the prosecution offered no evidence and the defendants were acquitted on the judge's direction. No successful prosecution has ever been brought against the assailants.IV. The Civil Proceedings
10. In April 1999 Mr Brooks issued civil proceedings in the Central London County Court against the Commissioner of Police of the Metropolis, 15 named police officers and the Crown Prosecution Service. He sought to recover damages
(1) From the first defendant, the Metropolitan Police Commissioner, on the grounds of negligence, false imprisonment, and misfeasance in public office.
(2) From the second to sixteenth defendants, who were all at the material time serving police officers, for breach of statutory duty, namely breaches of section 20 of the Race Relations Act 1976.
The thrust of the claim was that as a result of the attack on 22 April 1993 Mr Brooks suffered from a very severe post-traumatic stress disorder until the Spring of 1998 and thereafter continued to suffer from some of the symptoms of that disorder. It was alleged that the disorder was substantially exacerbated or aggravated by the failure of the Police to treat Mr Brooks lawfully.
11. In his pleading Mr Brooks set out several causes of action. The first was based on section 20 of the Race Relations Act 1976. The heart of the case was that Mr Brooks had been stereotyped as a black person and treated unfairly as such. Secondly, claims in negligence against the police were put forward to which I will turn in more detail later. Thirdly, there was a specific claim of the false imprisonment of Mr Brooks by the police in a police car at the hospital. Fourthly, Mr Brooks relied on the tort of misfeasance in public office, against the police. In respect of all these causes of action the claims were directed both against the named police officers and against the Commissioner.
V. The Procedural History
12. The pleadings are lengthy and the subsequent procedural history is complex and confusing. Part of the problem is that particulars drafted in support of the cause of action based on the Race Relations Act have been used by cross-referencing for the different purpose of claims in negligence. The House must, however, deal with the matter as it stands. The Agreed Statement of Facts and Issues before the House provides a summary. It records that Mr Brooks discontinued his claims against the Crown Prosecution Service (the 17th Defendant) and two named officers (the 9th and the 10th Defendants). The remaining part of the story is as follows:
The focus of the appeal to the House is, therefore, on the sustainability of the first, second and third duties of care as set out in paragraph 5 quoted in this paragraph.
VI. The Appendix
13. The pleading before the House is the Re-Amended Particulars of Claim. This document was redrafted after the Court of Appeal judgment. It would be difficult to summarise the allegations in it. But the full pleaded case must be placed on record. In these circumstances I attach to my opinion a self-explanatory appendix containing all the relevant allegations. The appendix is an agreed document.
VII. The Agreed Issues
14. The agreed issues before the House are as follows:
(1) Whether, on the pleaded facts, there are no reasonable grounds for the claim that there was sufficient proximity between the Commissioner and/or those for whom he is vicariously responsible, on the one hand, and Mr Brooks, on the other, to give rise to the following duties of care:
(a) to take reasonable steps to assess whether Mr Brooks was a victim of crime and then to accord him reasonably appropriate protection, support, assistance and treatment if he was so assessed (the first surviving duty);
(b) to take reasonable steps to afford Mr Brooks the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence (the second surviving duty);
(c) to afford reasonable weight to the account given by Mr Brooks and to act upon that account accordingly (the third surviving duty).
(2) whether there are no reasonable grounds for the claim that it is fair, just and reasonable to hold that the Commissioner and/or those for whom he is vicariously responsible owed to Mr Brooks the duties of care set out above.
VIII. The Court of Appeal Judgment
15. The Court of Appeal reviewed the authorities in some detail. It took into account the principle that wrongs should be remedied. It proceeded on the basis that claims should only be struck out in absolutely clear cases. The Court of Appeal was satisfied that the fourth and fifth alleged duties (including a duty to take reasonable steps to investigate the crime with reasonable diligence) were bound to fail and had to be struck out. However, on the issues of law engaged on this appeal - that is, the sustainability of the alleged first, second and third duties of care - the Court of Appeal gave no reasons for ruling that these particular causes of action are sustainable in law. How these rulings are to be reconciled with the decision to strike out the fourth and fifth duties of care is not explained. It may well be that the multiplicity of causes of action and particulars, presented in a rather unstructured way, did not make the task of the Court of Appeal easy.IX. The Starting Point
16. First, I accept that in these proceedings it must be assumed without equivocation that each and every one of the allegations of fact in the pleading under consideration could conceivably be established at trial. In particular the matter must be considered on the basis that Mr Brooks has suffered personal injury (in the form of an exacerbation of or aggravation of the PTSD that was induced by the racist attack itself) in consequence of the negligence of the officers and that injury of this type was reasonably foreseeable. Secondly, counsel for Mr Brooks cautioned the House about the danger of trying to resolve complex questions of law on an application to strike out a pleading. He emphasised particularly the undesirability of embarking on a strike out application in the face of a developing state of a particular branch of law. He referred to what Lord Slynn of Hadley said in Waters v Metropolitan Police Commissioner  1 WLR 1607, 1613-1614:
These observations are important and will have to be carefully considered.
X. The Rival Submissions
17. Both counsel accepted that the issues must be resolved in the framework of the principles stated in Caparo Industries plc v Dickman  2 AC 605. In that case Lord Bridge of Harwich stated (at 617H-618A:
Here the agreement between counsel came to an end. Their competing submissions can now be stated in outline. Counsel for the Commissioner submitted that the primary function of the Police is to preserve the Queen's peace. He contended that in the course of performing their function of investigating crime, the police owe no legal duties to take care that either a victim or a witness as such does not suffer psychiatric harm as a result of police actions or omissions. For this submission he relied strongly on the decision of the House of Lords in Hill v Chief Constable of West Yorkshire  AC 53 and other authorities at House of Lords and Court of Appeal level.
18. Counsel for Mr Brooks did not in any way challenge the decision in Hill but submitted that it does not stand in the way of his arguments. His central submission was that the Police owe a duty of care not to cause by positive acts or omissions harm to victims of serious crime, or witnesses to serious crime, with whom they have contact. He said that the first, second and third pleaded duties of care were concrete manifestations of this general duty.
XI. The Case Law
19. Hill v Chief Constable is an important decision. The claim in that case was that the Police had been negligent by failing properly to investigate the crimes committed by the Yorkshire Ripper before the murder of his last victim. The mother of the victim brought the claim. With the express agreement of three Law Lords, and the support of a concurring speech by another, Lord Keith of Kinkel observed [at 59B-59I]:
Lord Keith made reference to the well known decision of the House of Lords in Dorset Yacht Co Ltd v Home Office  AC 1004. He continued [at 62G-64A]:
The second paragraph of the last quotation constitutes the alternative ground of the decision in Hill. It is part of the ratio decidendi of the case. It will be necessary to take stock of the present status of Hill later in this opinion.