(back to preceding text)

75.  The phrase “the interests of the whole community” was echoed in the last sentence of the passage which I have quoted from Lord Steyn’s opinion in Brooks. There is an echo too in Brooks of the warning against yielding to arguments based on civil liberties: see the first sentence of that quotation where he warns against a retreat from the core principle. The point that he was making in Brooks, in support of the core principle in Hill, was that the principle had been enunciated in the interests of the whole community. Replacing it with a legal principle which focuses on the facts of each case would amount, in Lord Steyn’s words, to a retreat from the core principle. We must be careful not to allow ourselves to be persuaded by the shortcomings of the police in individual cases to undermine that principle. That was the very thing that he was warning against, because of the risks that this would give rise to. As Ward LJ said in Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, 487, the greater public good outweighs any individual hardship. A principle of public policy that applies generally may be seen to operate harshly in some cases, when they are judged by ordinary delictual principles. Those are indeed the cases where, as Lord Steyn put it, the interests of the wider community must prevail over those of the individual.

76.  The risk that the application of ordinary delictual principles would tend to inhibit a robust approach in assessing a person as a possible suspect or victim, which Lord Steyn mentioned in the last sentence of the passage that I have quoted from his opinion in Brooks, is directly relevant to cases of the kind of which Smith’s case is an example. It is an unfortunate feature of the human experience that the breakdown of a close relationship leads to bitterness, and that this in its turn may lead to threats and acts of violence. So-called domestic cases that are brought to the attention of the police all too frequently are a product of that phenomenon. One party tells the police that he or she is being threatened. The other party may say, when challenged, that his or her actions have been wrongly reported or misinterpreted. The police have a public function to perform on receiving such information. A robust approach is needed, bearing in mind the interests of both parties and of the whole community. Not every complaint of this kind is genuine, and those that are genuine must be sorted out from those that are not. Police work elsewhere may be impeded if the police were required to treat every report from a member of the public that he or she is being threatened with violence as giving rise to a duty of care to take reasonable steps to prevent the alleged threat from being executed. Some cases will require more immediate action than others. The judgment as to whether any given case is of that character must be left to the police.

77.  I appreciate, of course, that Lord Bingham’s liability principle is confined to cases where a member of the public has furnished apparently credible evidence to the police that a third party represents a specific and imminent threat to his life or physical safety. It matches the facts of this case. But, if adopted, it would lead to the uncertainty in its application and to the detrimental effects that Lord Steyn warned against. Who is to judge whether the evidence is apparently credible? Who is to judge whether the threat is imminent? These are questions that the police must deal with on the spot. A robust approach would leave the matter to the judgment of the police officer. The decision in Brooks adopts this approach, leaving the police free to form their own judgment. The liability principle says that, if that judgment is challenged, a judge must decide.

78.  As in the case of the Osman test, the test for the judge must be an objective one. How then is the police officer to deal with evidence which, for one reason or another, he or she does not find convincing but about which there is a risk that, after the event, a judge might take a different view? Subjecting the officer’s judgment to an objective test would tend to lead to what my noble and learned friend Lord Carswell describes as defensive policing, focussed on preventing, or at least minimising, the risk of civil claims in negligence. It could deny the police the freedom they need to act as the occasion requires in the public interest. In my opinion the balance of advantage in this difficult area lies in preserving the Hill principle. In Brooks Lord Nicholls of Birkenhead said, in para 6, that there might be exceptional cases where the circumstances compelled the conclusion that the absence of a remedy sounding in damages would be an affront to the principles that underlie the common law. I respect his approach, which is to guard against the dangers of never saying never. But in my opinion the present case does not fall into that category. That is why, if a civil remedy is to be provided, there needs to be a more fundamental departure from the core principle. I would resist this, in the interests of the wider community.

79.  There are, of course, cases in which actions of the police give rise to civil claims in negligence in accordance with ordinary delictual principles. These cases were reviewed by Lord Hamilton in the Outer House in Gibson v Orr 1999 SC 420. His opinion in that case, which was cited but not referred to in Brooks, deserves to be read carefully. The action had been brought by the passenger in a car which was driven onto a bridge which had collapsed as a result of flooding after an exceptionally heavy rainfall. The police were aware of the danger and had been on the scene to warn approaching traffic earlier. But they had left it without leaving any cones or barriers or other signs there, and when the car went onto the bridge it fell into the river causing the death of two of its occupants and injury to the surviving passenger. Lord Hamilton said at p 436 that he saw no close analogy as regards the policy issue described in Hill between the exercise by the police of their function of investigating and suppressing crime and the exercise by them of their civil function of performing civil operational tasks concerned with human safety on the public roads. There was, in his view, no immunity in respect of the manner in which road safety civil operational tasks are carried out by police officers where there was no inherent problem of conflict with instructions issued by superior officers or with duties owed to other persons. Knightley v Johns [1982] 1 WLR 349, where a police motor-cyclist was injured when he drove the wrong way down a tunnel on the instructions of another police officer, and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242, where the police fired a gas canister into the plaintiff’s premises without having fire fighting equipment on hand to deal with the fire that resulted from this, both of which were referred to by Lord Keith in Hill, provide examples of cases where operational decisions taken by the police can give rise to civil liability without compromising the public interest in the investigation and suppression of crime.

80.  Lord Hamilton said at p 437C that he was not convinced by the reasoning in Alexandrou v Oxford [1993] 4 All ER 328, which the Court of Appeal in Kent v Griffiths [2001] QB 36 was later to hold should be confined to its own facts, or Ancell v McDermott [1993] 4 All ER 355. He saw those cases as indications of a tide towards a wide interpretation of Hill which he thought was running less strongly in the light of the decisions in Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 and Capital & Counties plc v Hampshire County Council [1997] QB 1004. In Swinney, where information that had been supplied to the police in confidence was stolen from a police vehicle, Ward LJ said at p 486 that there was no overwhelming dictate of public policy to exclude the prosecution of the claim. But, as Lord Hamilton recognised at p 437B, these cases fall outside the area of application of the core principle, which protects the police function of investigating and suppressing crime in the public interest. All these cases were, of course, before the House in Brooks, where the core principle was re-affirmed. The present case falls within its area of application, as the reports that Mr Smith made to the police were that he was being subjected to threats that were in themselves criminal and with criminal violence if those threats were carried out. Applying the ratio of Brooks, I do not see how Mr Smith’s case could succeed if it were to go to trial.

81.  This leads me to the question to which Lord Hamilton referred in Gibson at p 437, whether the policy of the common law should be reconsidered in the light of the decision of the Strasbourg court in Osman. It is tempting to do this in a case in which article 2 of the Convention was not founded on directly but has been heard together with a case where it was. Indeed Lord Bingham’s liability principle owes much to the way the threshold for the positive obligation has been described by the court in Strasbourg, although it goes further as it extends to imminent threats to physical safety as well as imminent threats to life. But there is another side to this argument. Lord Hoffmann has expressed the opinion, extra-judicially, that the maintenance of police efficiency is better secured by other methods than having the question of whether they have acted reasonably in a given case expensively investigated in civil proceedings at the instance of a private litigant: Human Rights and the House of Lords (1999) 62 MLR 159, 162. As he put it, the prospect of such an investigation and the payment of compensation might in fact be detrimental to good policing, since it might make the police defensively unwilling to take risks.

82.  In cases brought under sections 6 and 7 of the Human Rights Act 1998 where the article 2 positive obligation is said to have been breached by a public authority, the relevant principle is that described by the Strasbourg court in Osman. But in my opinion the common law, with its own system of limitation periods and remedies, should be allowed to stand on its own feet side by side with the alternative remedy. Indeed the case for preserving it may be thought to be supported by the fact that any perceived shortfall in the way that it deals with cases that fall within the threshold for the application of the Osman principle can now be dealt with in domestic law under the 1998 Act. Like Lord Bingham I express no opinion on whether, if he had chosen to do so in time, Mr Smith would have succeeded in establishing that the positive obligation was breached in his case.

83.  I would allow the appeal, set aside the order of the Court of Appeal and restore the order made by the judge by which the proceedings were struck out.

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

84.  I have had the advantage of reading in draft the opinions of each of your Lordships. So far as the Van Colle case is concerned, I agree that the appeal should be allowed for the reasons in which your Lordships all concur.

85.  My noble and learned friend Lord Bingham of Cornhill has set out, at paragraph 29 of his opinion, the very precise definition given by the Strasbourg Court in Osman v United Kingdom (1998) 29 EHRR 245 at paragraph 116 of the circumstances that give rise to a positive obligation under article 2 of the Convention to take action to protect an individual whose life is threatened. The only matter that is left unclear by that definition is the test to be applied when deciding whether the relevant authority, in this case the police, ‘ought to have known’ of the risk to the individual’s life.

86.  There are at least two possibilities. The first is that ‘ought to have known’ means ‘ought to have appreciated on the information available to them'. The alternative meaning is ‘ought, had they carried out their duties with due diligence, to have acquired information that would have made them aware of the risk'. The reasoning of the Court leads me to believe that the former was the meaning intended. But, whichever is the right meaning, there was, for the reasons given by Lord Bingham, no valid basis for concluding that the police ought to have known that there was a real and immediate risk to the life of Giles.

87.  I agree with your Lordships that the fact that Giles was to be a witness in a criminal prosecution did not place him in a category to which the test in Osman did not apply.

88.  I have found the appeal in Smith less easy to resolve. It raises the vexed question of whether, where the law imposes a public duty for the benefit of individuals, a common law duty is owed to exercise reasonable care in carrying out that duty. The public duty, as stated in the declaration made by every police constable, is to “cause the peace to be kept and preserved and [to] prevent all offences against people and property". Whether, there is a cause of action in negligence for breach of that duty has given rise to a substantial body of litigation, some of which has received consideration by your Lordships’ House.

89.  As so often in this field, public policy has been at the heart of the consideration of whether a duty of care exists. In Hill v Chief Constable of West Yorkshire [1989] AC 53, the facts of which Lord Bingham has summarised, this House held that there was insufficient proximity between the victim and the police to give rise to a duty of care. However, both Lord Keith of Kinkel, with whom three of the other members of the Committee agreed, and Lord Templeman identified four objections of principle to the existence of a duty of care on the facts of that case. Again these have been summarised by Lord Bingham. Two are relevant in the context of the present case. The first is the danger that the existence of a duty of care would alter, detrimentally, the manner in which the police performed their duties in as much as they would act defensively out of apprehension of the risk of legal proceedings. The second is that time and resources would have to be devoted to meeting claims brought against the police which could better be directed to their primary duties.

90.  In Osman v Ferguson [1993] 4 All ER 344 the assumed facts were very different from Hill. The police were aware that a schoolteacher was committing serious acts of harassment against a male pupil and his family. They did nothing to apprehend the culprit, who then broke into the family home, shot and severely injured the boy and killed his father. The Court of Appeal held that it was arguable that there was sufficient proximity between the police and the family to give rise to a duty of care, but that they were precluded from finding such a duty because of the considerations of public policy that had been identified in Hill. The action was struck out.

91.  The sequel to this action was the claim brought by the Osman family against the United Kingdom at Strasbourg (1998) 29 EHRR 245. Although the Court found, perhaps as a result of a limited appreciation of the basis of the strike-out procedure, that there had been a breach of article 6, it held that there had been no breach of article 2. This was because the facts did not satisfy the stringent test that had to be satisfied if a duty to act was to be established. In propounding that test the court had regard to “the difficulties involved in policing modern societies, the unpredictability of human conduct, the operational choices which must be made in terms of priorities and resources” and the need not to “impose an impossible or disproportionate burden on the authorities". Those factors could be said to reflect, to a degree, some of the policy considerations identified in Hill. In the result the test propounded by the Court was much more stringent than that under the common law duty of care in the law of negligence.

92.  In Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495 the issue of whether the police owed a duty of care arose in a very different context. The plaintiff was a friend of Stephen Lawrence, who had been present when he was murdered. He claimed to have suffered severe post-traumatic stress disorder. He brought proceedings against the police on the grounds, among others, that they had been in breach of duties of care owed to him at common law in the manner in which they treated him in the course of their enquiries into the murder. His claim was struck out at first instance on the ground that it disclosed no reasonable cause of action. His appeal was allowed by the Court of Appeal on the ground, among others, that it was arguable that the police had owed him three duties of care:

i)  To take reasonable steps to assess whether he was a victim of crime and then to accord him reasonably appropriate protection or support, assistance and treatment;

ii)  To take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence;

iii)  To afford reasonable weight to the account that he gave and to act upon it.

93.  On appeal this House unanimously reversed the decision of the Court of Appeal Lord Bingham held that he would be reluctant to endorse the full breadth of what was thought to be the reasoning in Hill. He held, however, that the three duties pleaded could not arguably be imposed on police officers investigating a very serious crime because they could not be imposed “without potentially undermining the officers’ performance of their functions, effective performance of which” served an important public interest (paragraph 4).

94.  Lord Nicholls of Birkenhead agreed, observing that the three duties asserted “would cut across the freedom of action that the police ought to have when investigating serious crime” (paragraph 5). He also observed that he would not endorse the full width of all the observations in Hill.

95.  Lord Steyn, in a lengthy speech with which Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood agreed, cited at length from Hill’s case and observed that the ‘core principle’ had remained unchallenged (paragraph 30) What he meant by the ‘core principle’ can be deduced from what followed. Lord Bingham has set out the relevant passage in paragraph 51 of his opinion.

96.  Lord Steyn went on to hold that the three duties relied on were inextricably bound up with the police function of investigating crime, which was covered by the principle in Hill’s case. It followed that those duties could not stand. Lord Steyn went on to observe:

“It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the principle in Hill’s case. It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise. But such exceptional cases on the margins of the principle in Hill’s case will have to be considered and determined if and when they occur.”

97.  Lord Bingham concludes at paragraph 52 of his opinion that in Hill and Brooks the statements of respectively Lord Keith and Lord Steyn were directed at the particular facts of those cases. He suggests that those statements can be reconciled with the ‘liability principle’ that he has formulated in paragraph 44 of his opinion. I do not find it possible to approach Hill and Brooks as cases that turned on their own facts. The fact that Lord Steyn applied the decision in Hill to the facts of Brooks, which were so very different, underlines the fact that Lord Steyn was indeed applying a ‘core principle’ that had been ‘unchallenged…for many years’. That principle is, so it seems to me, that in the absence of special circumstances the police owe no common law duty of care to protect individuals against harm caused by criminals. The two relevant justifications advanced for the principle are (i) that a private law duty of care in relation to individuals would be calculated to distort, by encouraging defensive action, the manner in which the police would otherwise deploy their limited resources; (ii) resources would be diverted from the performance of the public duties of the police in order to deal with claims advanced for alleged breaches of private law duties owed to individuals.

98.  My Lords, it is no easy question whether these considerations in fact justify restricting the common law duty of care in the manner required by the reasoning in Hill and Brooks. No general attack has been made in the present case on those decisions, but the respondents have submitted that the considerations of policy underlying the decisions in Hill and Brooks have ceased to be compelling as a result of the decision of the Strasbourg Court in Osman. As the police are already at risk of being held to account for a breach of the duty owed under article 2, it is suggested that the imposition of a common law duty of care will have little further effect on the manner in which the police carry out their duties. Reliance is placed on the approach of the Court of Appeal in D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151; [2004] QB 558.

99.  I am not persuaded that this case provides, as the respondents suggest, “a very close analogy". This is because the Strasbourg Court has so restricted the circumstances where a positive duty arises under article 2 that it is far from coextensive with the duty that the police would be under if the common law duty of care were applicable. The existence of a positive duty under article 2 has not destroyed the reasoning that underlies the principle in Hill.

100.  I turn to consider whether the ‘core principle’ in Hill can stand with, or accommodate by way of exception, the ‘liability principle’ formulated by Lord Bingham. I have not found it easy to identify the essential parameters of the principle in question. Will the principle apply when the evidence emanates, not from the member of the public under threat, but from some other source? What if the whereabouts but not the identity of the third party is known? What if the threat is specific, but not imminent, or imminent but not specific? And why is the principle restricted to a threat to life or physical safety, but not to a threat to property? - a question that Lord Bingham himself raises at paragraph 55 of his opinion. It seems to me that the elements in Lord Bingham’s ‘liability principle’ are facts which would render particularly egregious a breach of a duty of care that can be more simply stated: ‘where the police have reason to believe that an individual is threatened with criminal violence they owe a duty to that person to take such action as is in all the circumstances reasonable to protect that person'. Such a duty of care is in direct conflict with the principle in Hill.

101.  For these reasons I find myself reluctantly unable to accept the ‘liability principle’ formulated by Lord Bingham. I say reluctantly, because lack of action in the face of the individual facts that he postulates, and indeed the lack of action on the assumed facts of this case, comes close to constituting the ‘outrageous negligence’ that Lord Steyn contemplated as being potentially outside the reach of the principle in Hill’s case. I have not, however, found any principled basis for placing this case outside the reach of that principle.

102.  The issues of policy raised by this appeal are not readily resolved by a court of law. It is not easy to evaluate the extent to which the existence of a common law duty of care in relation to protecting members of the public against criminal injury would in fact impact adversely on the performance by the police of their duties. I am inclined to think that this is an area where the law can better be determined by Parliament than by the courts. For this reason I have been pleased to observe that the Law Commission has just published a Consultation Paper No 187 on ‘Administrative Redress: Public Bodies and the Citizen’ that directly addresses the issues raised by this appeal.

103.  For these reasons, together with those given by the majority of your Lordships, I would allow the Chief Constable’s appeal, set aside the Court of Appeal’s order and restore the order of the judge below striking out the respondent’s claim.

LORD CARSWELL

My Lords,

104.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Hope of Craighead. I entirely agree with it and wish to add only a few observations, largely because your Lordships are not all of the same mind on some of the issues in these appeals.

105.  In Van Colle’s case, I agree with the reasons and conclusion of Lord Hope and my noble and learned friend Lord Bingham of Cornhill and do not wish to add anything to them. The appeal of the Chief Constable in Smith’s case has caused your Lordships greater difficulty, a difficulty which I share, but after careful reflection I remain of the view that the appeal should be allowed.