House of Lords - Brooks (FC) (Respondent) v. Commissioner of Police for the Metropolis (Appellant) and others

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Judgments - Brooks (FC) (Respondent) v. Commissioner of Police for the Metropolis (Appellant) and others

HOUSE OF LORDS

SESSION 2004-05
[2005] UKHL 24
on appeal from: [2002] EWCA Civ 407

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Brooks (FC) (Respondent)

v.

Commissioner of Police for the Metropolis (Appellant) and others

ON

THURSDAY 21 APRIL 2005

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Steyn

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

[2005] UKHL 24

LORD BINGHAM OF CORNHILL

My Lords,

    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 [2005] 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 [1989] 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
My Lords,

    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 [1989] 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.

LORD STEYN

My Lords,
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:

"5.10  We have to conclude that no officer dealt properly at the scene with Mr Brooks. His first contact was probably with Police Constable Linda Bethel. She described Mr Brooks as being "very agitated". Police Constable Joanne Smith said that he was "jumping up and down and being very aggressive". Police Constable Anthony Gleason said that Mr Brooks was "Highly excitable. Virtually uncontrollable". Considering what Mr Brooks had seen and been involved in none of that should have been surprising. Furthermore Mr Brooks was justifiably frustrated and angry, because he saw the arrival of the police as no substitute for the non-arrival of the ambulance, and to his mind the police seemed more interested in questioning him than in tending Stephen.

5.11  Yet there is no evidence that any officer tried properly to understand that this was so, and that Mr Brooks needed close, careful and sensitive treatment. Furthermore even if it was difficult at first to gain a coherent story from him the officers failed to concentrate upon Mr Brooks and to follow up energetically the information which he gave them. Nobody suggested that he should be used in searches of the area, although he knew where the assailants had last been seen. Nobody appears properly to have tried to calm him, or to accept that what he said was true. To that must be added the failure of Inspector Steven Groves, the only senior officer present before the ambulance came, to try to find out from Mr Brooks what had happened. He, and others, appear to have assumed that there had been a fight. Only later did they take some steps to follow up the sparse information which they had gleaned. Who can tell whether proper concern and respect for Mr Brooks' condition and status as a victim might not have helped to lead to evidence should he have been used in a properly co-ordinated search of the estate?

5.12  We are driven to the conclusion that Mr Brooks was stereotyped as a young black man exhibiting unpleasant hostility and agitation, who could not be expected to help, and whose condition and status simply did not need further examination or understanding. We believe that Mr Brooks' colour and such stereotyping played their part in the collective failure of those involved to treat him properly and according to his needs."
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:

"5.  In relation to the [Commissioner] [Mr Brooks] seeks damages for false imprisonment, negligence and misfeasance in public office. The claim in negligence alleged that the [Commissioner] and/or those for whom he is vicariously responsible owed [Mr Brooks] five duties of care, namely to:

(1)  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 duty");

(2)  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 duty");

(3)  afford reasonable weight to the account that [Mr Brooks] gave and to act upon it accordingly ("the third duty");

(4)  take reasonable steps to investigate the crime with all reasonable diligence ("the fourth duty"); and

(5)  take reasonable steps to ensure that officers do not behave in a racist manner towards members of the public, including [Mr Brooks] ("the fifth duty").

6.  In relation to the named police officers Mr Brooks sought damages for breach of the Race Relations Act 1976.

. . .

8.  The named officers applied for summary judgment or to have the proceedings against them struck out on the grounds that:

(1)  The proceedings were brought outside the limitation period provided for by Section 68 of the Race Relations Act 1976; and

(2)  [Mr Brooks] did not seek to obtain services from the named officers within the meaning of Section 20 of the Race Relations Act 1976.

9.  HHJ Butter QC determined the applications on 29th March 2000. He found against the named officers in relation to the limitation argument. He found for some of the officers in relation to the Section 20 argument. The effect of his decision was that the claims against the 6th, 7th, 8th, 10th and 16th Defendants were struck out.

10.  Meanwhile, on 13th September 1999 the Commissioner applied to strike the claim out on the grounds that it disclosed no reasonable grounds for bringing a claim.

11.  HHJ Butter QC heard the [Commissioner's] application on 18th and 19th December 2000. On 12th February 2001 HHJ Butter QC gave judgment. He acceded to the [Commissioner's] application and struck the entire claim out.

12.  [Mr Brooks] appealed against HHJ Butter QC's decisions of 29th March 2000 and 12th February 2001.

13.  The named officers cross-appealed in relation to HHJ Butter QC's decision as to limitation.

14.  The Court of Appeal heard the [Commissioner's] appeals, and the named officers' cross-appeal, on 22nd, 23rd, 24th and 25th March 2000. The Court of Appeal handed its reserved judgment down on 26th March 2002.

15.  As to the appeal and cross-appeal concerning the named officers, the Court of Appeal:

(1)  allowed [Mr Brooks'] appeal; and

(2)  dismissed the named officers' cross-appeal in relation to the limitation issue.

The named officers have not sought to appeal these decisions.

16.  As to the appeal concerning the claim against the [Commissioner], the Court of Appeal:

(1)  allowed [Mr Brooks'] appeal in relation to the claim in false imprisonment. There is no appeal by the [Commissioner] against that decision.

(2)  dismissed [Mr Brooks'] appeal in relation to the claim in misfeasance in public office. There is no appeal by [Mr Brooks] against that decision.

(3)  dismissed [Mr Brooks'] appeal in relation to the negligence claim in respect of the fourth and fifth duties of care.

(4)  in respect of the fourth duty of care the Court of Appeal held that it was not, even arguably, fair, just and reasonable for this duty of care to be imposed.

(5)  in respect of the fifth duty of care the Court of Appeal held that there did not exist between the [Commissioner] and [Mr Brooks] a relationship of sufficient proximity to justify the imposition of a duty of care. These duties of care remain struck out. There is no appeal by [Mr Brooks] against the decisions regarding the fourth or fifth duties of care.

(6)  the Court of Appeal allowed [Mr Brooks'] appeal in relation to the negligence claim in respect of the first, second and third duties of care. It is against this decision that the [Commissioner] appeals."

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 [2000] 1 WLR 1607, 1613-1614:

"It is very important to bear in mind what was said in X (Minors) v Bedfordshire County Council [1995] 2 AC 633; in Barrett v Enfield London Borough Council [1999] 3 WLR 79 and in W v Essex County Council [2000] 2 WLR 601 as to the need for caution in striking out on the basis of assumed fact in an area where the law is developing as it is in negligence in relation to public authorities if not specifically in relation to the police."

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 [1990] 2 AC 605. In that case Lord Bridge of Harwich stated (at 617H-618A:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

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 [1989] 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]:

"There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see R v Dytham [1979] QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.

By common law police officers owe to the general public a duty to enforce the criminal law: see R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public."

Lord Keith made reference to the well known decision of the House of Lords in Dorset Yacht Co Ltd v Home Office [1970] AC 1004. He continued [at 62G-64A]:

"The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire police.

That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. In Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in Anns v Merton London Borough Council [1978] AC 728, 751-752 might fall to be applied was a limited one, one example of that category being Rondel v Worsley [1969] 1 AC 191. Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell LJ, in his judgment in the Court of Appeal [1988] QB 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 AC 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court."

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.

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