England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1993] 4 All ER 344, [1992] EWCA Civ 8

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		Neutral Citation Number: [1992] EWCA Civ 8
		Case No: QBENI 92/0095/E

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR PETER PAIN)
(Sitting as a Judge of the High Court)

Royal Courts of Justice,

7th October 1992.

B e f o r e :

LORD JUSTICE McCOWAN
LORD JUSTICE BELDAM
and
LORD JUSTICE SIMON BROWN
____________________

	MULKIYE YOSUF OSMAN	(First Plaintiff) Respondent
	and
	AHMED OSMAN	(Second Plaintiff) Respondent
	-v-
	DR. HUGH CAMERON FERGUSON	(First Defendant)
	and
	THE COMMISSIONER OF POLICE FOR THE METROPOLIS	(Second Defendant)Appellant

____________________

(Computer-aided Transcript of the Stenograph Notes of The Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)

____________________

MR. S.D.M. FREELAND (instructed by The Solicitors' Department, New Scotland Yard, London, SW1) appeared on behalf of the Appellant/Second Defendant.
MR. J. HENDY QC and MR. T. KERR (instructed by Messrs. Christian Fisher & Co., London, WC1) appeared on behalf of the Respondents/Plaintiffs.
____________________

HTML VERSION OF JUDGMENT
____________________

(As approved by Judge)

LORD JUSTICE McCOWAN: This is an appeal from the judgment of Sir Peter Pain (sitting as a judge of the High Court) dismissing an application by the second defendant under 0.18, r.19 of the Rules of the Supreme Court to strike out the statement of claim as disclosing no reasonable cause of action. The appeal is brought with the leave of the judge. For purposes of such an application it must of course be assumed in the plaintiffs' favour that all facts pleaded in the statement of claim are true.

The first plaintiff is the widow and administratrix of the estate of Mr. Ali Osman, and she brings the action for the benefit of the deceased's dependants under the Fatal Accidents Act 1976 and for the benefit of the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934.

The second plaintiff is the son of the first plaintiff and of the deceased, and he sues in respect of personal injuries suffered by him. The first defendant is a consultant psychiatrist and the second the Commissioner of Police for the Metropolis responsible for policing operations in the Metropolitan Division of London. Both are sued in negligence, the first defendant in his professional capacity and the second on the basis that the facts set out in the statement of claim brought into being a special relationship between the second defendant, on the one hand, and the deceased and his family, including the plaintiffs, on the other, which special relationship gave rise to a duty of care. This appeal in no way concerns the first defendant.

The facts relied on in support of the existence of a duty of care I summarize from the statement of claim as follows.

The second plaintiff was at the material time aged about 15 years and a pupil at school. He had a classmate called Leslie Green. A man called Paget-Lewis was a master at the school in question. He began to harass Leslie Green, falsely accusing him of deviant sexual practices. What had happened was that Paget-Lewis had formed a strong and unhealthy attachment to the second plaintiff and he attempted to dissuade the second plaintiff from being friends with Leslie Green. He followed the second plaintiff and Leslie Green to their homes. He was responsible for graffiti, alleging a sexual relationship between the two boys.

In April 1987 it was discovered that an office at the school had been broken into and the files relating to the second plaintiff and Leslie Green taken. In early May 1987 Paget-Lewis changed his name by deed poll to Osman. All these matters were made known to the Hackney police.

Paget-Lewis then began to damage property. On about 21st May 1987 he threw a brick through the front window of the plaintiffs' home. The deceased contacted the Hackney police and told them about it. In about June 1987 Paget-Lewis attended at the plaintiffs' home and slashed the tyres of the deceased's car. He did it again in the following month. On each occasion the deceased complained to the Hackney police.

By now Paget-Lewis had been suspended from duty at the school. In about August or September 1987 he attended at the plaintiffs' home during the night and poured a mixture of engine oil and paraffin on to the area outside the front door of the house. The deceased immediately contacted the Hackney police.

On about 18th October 1987 Paget-Lewis broke the windscreen of the deceased's car probably with a hammer. The deceased went to Hackney police station and told a police officer about it. In about late October or early November 1987 Paget-Lewis introduced superglue into the lock of the front door of the plaintiffs' home, with the result that on their return home the plaintiffs and the deceased were unable to get into the flat.

In about November 1987 the deceased and others were returning home in the deceased's car in the evening when Paget-Lewis suddenly overtook them in another car, cutting in front of them.

In the latter part of 1987 Paget-Lewis was in contact with a police officer called PC Adams, concerning the acts of vandalism at the plaintiffs' home which I have described. He told PC Adams that losing his job was so distressing to him that there was a danger that he might do something criminally insane unless steps were taken to improve the situation. PC Adams was aware, at the latest, by November 1987 that Paget-Lewis was responsible for these acts of vandalism.

Again in November 1987 Paget-Lewis smeared dog excrement on the plaintiffs' front door on at least one occasion and on the deceased's car on at least one occasion and on more than one occasion stole the light bulb above the plaintiffs' front door.

On 7th December 1987 Paget-Lewis drove the wrong way up a one-way street in Hackney and deliberately rammed a van in which Leslie Green was a passenger. The Hackney police were aware by the next day, at the latest, that Paget-Lewis was responsible and that his action had been deliberate.

Thus, by 8th December 1987, at the latest, the Hackney police were aware of all the acts of vandalism which I have described and that they had been committed by Paget-Lewis. Shortly after that, the police told the deceased that they were aware that Paget-Lewis was the perpetrator of those acts and that he (the deceased) should not worry for his own safety or that of his family.

On 15th December 1987 Paget-Lewis was interviewed at his own request by a divisional inspector of ILEA. He said that he resented being taken away from the school and that he blamed the deputy head teacher for it; that he knew where he lived and that he was going to do something which would be a sort of "Hungerford", but that it would not occur at the school.

An official of ILEA telephoned Detective Sergeant Boardman on 15th December and left a detailed message for him about that conversation.

On 17th December DS Boardman briefed officers under his command on the Paget-Lewis case and on the objective of effecting his immediate arrest on a charge of criminal damage. On 22nd December the sergeant took a statement from the driver of the van which had been rammed by Paget-Lewis. The driver told DS Boardman that Paget-Lewis had said to him at the scene of the incident, "I am not worried about all this because in a few months I will be doing life".

In early January 1988, the Hackney police put in motion the process for the laying of an information before the magistrates with a view to prosecuting Paget-Lewis for driving without due care and attention arising out of the ramming incident.

Between January and March 1988 Paget-Lewis was at various locations, all within England, including his home address where on occasion he received mail. He hired and drove various cars in his adopted name of Osman. On 17th January 1988 he broke into cars at a clay pigeon shoot near Leeds in Yorkshire and from one of the cars stole a shotgun. This incident was reported to the local police, but it is not suggested that it came to the knowledge of the Metropolitan Police.

By reason of these matters, the statement of claim alleges (reading from paragraph 7.63 of the statement of claim):

".... by 4th May 1987 at the latest, and from about 4th May 1987 until 8th March 1988 the Hackney police were in possession of sufficient evidence - and would have had yet stronger evidence, including admissions, had they interviewed Paget-Lewis and/or searched his home -

to arrest Paget-Lewis and charge him with criminal damage in relation to the graffiti (referred to in paragraph 7.10 above)

to arrest Paget-Lewis and to charge him with theft and/or burglary in relation to the missing files concerning the Second Plaintiff and Leslie Green (referred to in 7.12 above)

and had Paget-Lewis been so arrested and charged the Hackney police were in possession of sufficient evidence by 4th May 1987 at the latest successfully to oppose bail by reason of all the factors pleaded herein above; and from 4th May 1987 onwards the occurrence of the various incidents pleaded above occurring after 4th May 1987 would have enhanced yet further the likelihood of bail being successfully opposed."

What then happened was that on 7th March 1988 Paget-Lewis followed the deceased and his family into their flat at 11.00pm and shot the deceased and the second plaintiff through the chest, killing the deceased and severely wounding the second plaintiff. About 70 minutes later Paget-Lewis was arrested on the Mil motorway.

The principal particulars of negligence alleged against the second defendant in the statement of claim are as follows: failing to apprehend Paget-Lewis prior to the shootings on 7th March 1988; failing to interview Paget-Lewis (other than in relation to minor road traffic offences) prior to the shootings on 7th March 1988; failing to search Paget-Lewis's home prior to the shootings on 7th March 1988; failing prior to the shootings on 7th March 1988 to charge Paget-Lewis with any offence more serious than not possessing an MOT certificate and/or driving without due care and attention; failing to trace Paget-Lewis through car hire company records, and failing, as a direct consequence of that failure, to link the theft of the shotgun on 17th January 1988 with Paget-Lewis.

The first question that arises is whether, on the basis that all the factual material pleaded in the statement of claim is true, it is capable of establishing a duty of care owed towards the deceased and the second plaintiff by the Metropolitan Police.

For that purpose it is necessary to consider Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004. This was a decision on a preliminary point of law. The short facts were that a group of Borstal boys were encamped on Brownsea Island under the supervision of prison officers. A number of yachts, including one owned by the plaintiff company, were moored nearby. The boys escaped in the night, boarded a yacht with the object of reaching the mainland and, while trying to do so, collided with and damaged the plaintiffs' yacht. The plaintiffs sued the Home Office alleging that the damage to their yacht was caused by the negligence of the prison officers. The preliminary issue was whether the Home Office or the officers owed any duty of care in tort to the plaintiffs. The House of Lords held that in the particular circumstances a duty of care could arise.

Lord Diplock said in a passage to be found at page 1070 at letter H:

"I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture."

This means that the group of persons to whom the duty was owed was limited to the owners of boats moored in the vicinity.

It is necessary to consider next the House of Lords' decision in Hill v. Chief Constable of West Yorkshire [1989] AC 53. The facts were these. A man called Peter Sutcliffe embarked on a terrifying career of violent crime in West Yorkshire. All his victims were young women. Between 1975 and 1980 he committed 13 murders and 8 attempted murders upon such women. His last victim was a 20-year old student called Hill whom he murdered in Leeds. Miss Hill's mother and sole personal representative sued the Chief Constable of West Yorkshire claiming on behalf of Miss Hill's estate damages on the ground of negligence. The pleadings alleged that it was the duty of the defendant and all officers in his police force to use their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members of the public who might otherwise be his future victims.

A number of matters were relied upon, indicating that the West Yorkshire police force had failed in that duty. They amounted broadly to allegations of failure to collate properly information in possession of the force, pointing to Sutcliffe as a likely suspect.

Lord Keith in his speech in that case considered the earlier decision of the House of Lords in Anns v. Merton London Borough Council [1978] AC 728 and said (at page 60B):

"It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present. The nature of the ingredient will be found to vary in a number of different categories of decided cases. In the Anns case there was held to be sufficient proximity of relationship between the borough and future owners and occupiers of a particular building the foundations of which it was decided to inspect, and there was a close relationship between the borough and the builder who had constructed the foundations."

Lord Keith then dealt with the Dorset Yacht case and quoted a passage from the speech of Lord Diplock in that case, including the passage which I have cited. He then turned to the case before him and said (at page 62E):

"The alleged negligence of police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. 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 a 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."

We were shown a transcript of an unreported decision of the Court of Appeal in Alexandrou v. Oxford made on 16th February 1990. The facts of that case were that the plaintiff occupied a retail clothing store at which shop he had installed a burglar alarm system which, when activated, raised the alarm at a police station in Birkenhead. The chief allegations of negligence were that the defendant, his servants or agents were negligent in that they failed once the burglar alarm system was activated at the police station to attend with a reasonable expedition thereafter at the shop and assumed, without any proper enquiry, that the activation of the alarm was a false alarm.

The claim succeeded before the trial judge who said:

"There is clearly a special relationship created between the police and the owners of intruder alarm systems which is of a different and closer nature than that between the police and members of the public in general."

In his judgment Glidewell LJ in a passage with which Slade LJ and Parker LJ agreed quoted those words of the trial judge but went on to say:

".... in my view if there is a duty of care it is owed to a wider group than those to whom the Judge referred. It is owed to all members of the public who give information of a suspected crime against themselves or their property. It follows, therefore, that on the facts of this case it is my opinion that there was no such special relationship between the plaintiff and the police as was present in Dorset Yacht."

Returning to the facts of the present case and again on the assumption that they are proved, it seems to me that it can well be said on behalf of the plaintiffs that the second plaintiff and his family were exposed to a risk from Paget-Lewis over and above that of the public at large. In my judgment the plaintiffs have therefore an arguable case that as between the second plaintiff and his family, on the one hand, and the investigating officers, on the other, there existed a very close degree of proximity amounting to a special relationship. I am against Mr. Freeland for the appellant therefore on what he described as his subsidiary point. His main point concerned public policy. For this point he relied on a later passage in the speech of Lord Keith in the Hill case with which speech Lords Brandon, Oliver and Goff agreed. I read from where I previously left off, that is to say, at the top of page 63:

"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 Run 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 pursuing 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 .... were held to render a barrister immune from actions for negligence in his conduct of proceedings in court."

In his speech Lord Templeman said (at page 64, beginning at letter D):

"Mrs. Hill therefore brings these proceedings with the object of obtaining an investigation into the conduct of the West Yorkshire police force so that lives shall not be lost in the future by avoidable delay in the identification and arrest of a murderer.

The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force. The present action will be confined to narrow albeit perplexing questions, for example, whether, discounting hindsight, it should have been obvious to a senior police officer that Sutcliffe was a prime suspect, whether a senior police officer should not have been deceived by an evil hoaxer, whether an officer interviewing Sutcliffe should have been better briefed, and whether a report on Sutcliffe should have been given greater attention. The court would have to consider the conduct of each police officer, to decide whether the policeman failed to attain the standard of care of a hypothetical average policeman. The court would have to decide whether an inspector is to be condemned for failing to display the acumen of Sherlock Holmes and whether a constable is to be condemned for being as obtuse as Dr. Watson. The plaintiff will presumably seek evidence, for what it is worth, from retired police inspectors, who would be asked whether they would have been misled by the hoaxer, and whether they would have identified Sutcliffe at an earlier stage. At the end of the day the court might or might not find that there had been negligence by one or more members of the police force. But that finding would not help anybody or punish anybody ....

Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties.

This action is in my opinion misconceived and will do more harm than good."

It is also worth citing two short passages from the judgments in the Court of Appeal in that case. Their decision is reported at [1988] QB 60. Fox LJ said (at page 69 letter H):

".... it seems to me that the existence of a general duty in the police to suppress crime does not necessarily carry with it a liability to individuals for damage caused to them by criminals whom the police have failed to apprehend in circumstances when it was possible to do so."

The other passage is in the judgment of Glidewell LJ (at page 75 letter G):

"If the police were liable to be sued for negligence in the investigation of crime which has allowed the criminal to commit further crimes, it must be expected that actions in this field would not be uncommon. Investigative police work is a matter of judgment, often no doubt dictated by experience or instinct. The threat that a decision which, in the end, proved to be wrong might result in an action for damages would be likely to have an inhibiting effect on the exercise of that judgment."

In the following case of Alexandrou v. Oxford to which I have already referred Glidewell LJ said (at page 20 of the transcript):

"In my view the observations of Lords Keith and Templeman in Hill in relation to the effect on the police of their being potentially liable in negligence were general, not limited to the facts of that case. They are equally applicable to the present case."

I respectfully agree with him.

Mr. Freeland submits that the facts in the present case are indistinguishable from those in Hill so far as public policy is concerned. Mr. Hendy, however, argues that there are the following distinctions. First, he says that in the Hill case the culprit had at the relevant time not yet been identified, while here he had. I do not find that a satisfactory distinction. It is one thing for the police to say, "We believe that a particular man has committed or has threatened to a commit a crime", but it is another matter for them to bring it home to him. Here the police were still in the process of gathering evidence against Paget-Lewis which would include evidence of what he said when found and interviewed. Searching for him for that purpose was all part of the investigation.

When one looks at the particulars of negligence one sees, among others things, failure to apprehend him, failure to interview him, failure to search his home, failure to trace him through cars he hired and failure to link the theft of the shotgun with him. These all appear to me to be properly described as failures in investigation. Mr. Hendy argues, however, that no further investigation was needed. All the police had to do was arrest him and keep him in custody and thereby suppress the crime that he in fact went on to commit. In fact Lord Keith speaks of the police function "in the investigation and suppression of crime". Mr. Hendy says, however, that it is significant that Lord Keith does not refer to "investigation or suppression" and that Lord Templeman does not use the word "suppression" at all. I am afraid I am quite unable to accept that any of that is significant. In particular Lord Templeman is plainly thinking in terms of suppression of crime when he says: "If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes." In my judgment investigation of crime is not meant to be narrowly interpreted and suppression includes the prevention of crime.

Secondly, Mr. Hendy submits that the ratio of the Hill case is that policy decisions are protected by public policy immunity but operational decisions are not and that, whereas the failures in the Hill case were of a policy nature, those in the present case were of an operational nature. In my judgment such a distinction is not to be supported by the speeches in the Hill case. Indeed I consider such a dividing line to be utterly artificial and impossible to draw in the present case. I should add that Mr. Hendy placed reliance on the judgment of Henry J in the Canadian case of Doe v. Board of Commissioners of Police 58 DLR 396. This does contain material supporting Mr. Hendy's argument, but I do not find it helpful, first, because it seems to me to be directly contrary to the reasoning in the Hill case which is of course binding on us and, secondly, because the principle of public policy has not yet been introduced into the law of Canada.

Mr. Hendy's final point is that, if the class of victim is sufficiently proximate (as he says the victims here were) and sufficiently small, the public policy argument may not apply. I cannot accept this submission. Lord Keith plainly treats public policy as a separate point which is not reached at all unless there is a duty of care. If Mr. Hendy were right, public policy would not be a separate argument at all because if a plaintiff were proved to be sufficiently proximate and a member of a sufficiently small class, public policy would not arise.

In giving judgment in the present case, Sir Peter Pain said (on page 5 at letter E of the transcript):

"Now my view is that the plaintiffs are going to have a distinctly uphill task .... But I do not think that there is so obviously no case that it would be right to strike the action out on those grounds."

I do not take that view. In my judgment the House of Lords' decision on public policy in Hill dooms this action to failure as against the second defendant.

As a last resort, Mr. Hendy sought to place reliance on the words of Sir Nicholas Browne-Wilkinson V-C in Lonrho v. Tebbit [1991] 4 All ER 973 at page 979 letter F:

"A claim should only be struck out in a plain and obvious case. The difficulty arises where, as in the present case, a claim to strike out depends upon the decision of one or more difficult points of law. In such a case, the judge should normally refuse to entertain such a claim to strike out. But, if in a particular case the judge is satisfied that the decision of the point of law at that stage will either avoid the necessity for trial altogether or render the trial substantially easier and cheaper, he can properly determine such difficult point of law on the striking-out application."

Mr. Hendy submitted that the present was a case depending on the decision of one or more difficult points of law and that we should therefore refuse to entertain the claim to strike out. I cannot agree. I consider this a plain and obvious case falling squarely within a House of Lords' decision. I would therefore allow the appeal.

LORD JUSTICE BELDAM: I agree that on grounds of public policy the plaintiffs' claims are not maintainable against the second defendant. For my part I would prefer not to express in an interlocutory appeal an opinion whether the facts set out in the statement of claim are, if proved, sufficient to establish a relationship sufficiently proximate to found a duty of care owed to the plaintiffs by the officers of the second defendant's force. Therefore for the reasons given by my Lord, accordingly, I agree that this appeal should be allowed.

LORD JUSTICE SIMON BROWN: I too agree that this appeal should be allowed for reasons indicated by McCowan LJ.

(Appeal allowed with costs. Application for leave to appeal to the House of Lords refused.)