England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
His Honour Judge Jack

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 14 November 2001

LORD JUSTICE KEENE:

INTRODUCTION

1. The issue in this case concerns the liability of a police force in negligence when police officers fail to prevent an offence being committed against an individual member of the public. The liability of the Chief Constable in the present case is alleged to arise either vicariously because of a breach of duty by the police officers concerned or directly because of a failure by the Chief Constable to provide adequate training for his officers. The main emphasis of the case for the appellant, who was the claimant in the court below, has been on the former of the two sources of liability. We are told by leading counsel for the appellant that the Legal Services Commission regards the issue raised as being of importance.

THE FACTS

2. During 1997 and early 1998 Mr Raymond Cowan, the appellant, enjoyed a tenancy of a room, plus the shared use of some other rooms, at 23 Dartmoor Street, Bedminster, Bristol at a rent of £42 per week from Mr Alan West, the owner. This was an oral tenancy, but it was an assured one under the Housing Act 1988, so that it could only be lawfully brought to an end by the landlord obtaining an order of the court under that Act. Before Christmas 1997 Mr Cowan received a letter from Mr West saying that he wanted him to leave. Mr Cowan did not leave. On 23 February 1998 a Mr Lumber and another man called on Mr Cowan at the property and told him that he had to be out by 6p.m. Mr Lumber threatened him with violence, specifically to break his legs, if he was not out by then. This incident seems to have taken place at sometime in the late afternoon, because at 4.41p.m. Mr Cowan telephoned the police.
3. As a result two officers came to see Mr Cowan. They were P.C. Smith and P.C. Henley. Mr Cowan told them what had happened. They told him to telephone again if the men returned. At about 6p.m. Mr Cowan was in his mother's house opposite No.23 when he saw that four men were taking his belongings from No.23 into the street. Mr Cowan telephoned the police and the same two officers returned. They found a number of Mr Cowan's possessions in the street and various residents watching what was happening. There was an excited atmosphere. Mr Cowan was angry and upset and was saying that the men could not do what they were doing and he had his rights. The County Court Judge found that on the arrival of the officers, the four men probably stopped and waited, at least for a short time. P.C. Smith was concerned that the police were outnumbered and he called for assistance, though saying that it was not urgent. P.C. Henley went to talk with Mr Lumber. Mr Lumber said that he had purchased the house and had given Mr Cowan notice to leave by means of solicitor's letters and verbal requests. Mr Lumber gave P.C. Henley the telephone number of Mr West. He spoke to Mr West who confirmed that the house had been sold and that notice had been given to Mr Cowan to leave. Mr Cowan was asked by the officers to see if he could find any documents and he went into the house with P.C. Smith. He could not find his rent book, probably because it had already been moved.
4. A police sergeant and another constable arrived. Mr Cowan said to them that his eviction was unlawful. The sergeant was given by Mr Lumber the same information that P.C. Henley had been given. The sergeant was not sure who had the legal right to the property. He thought that if he tried to force the issue by reinstating Mr Cowan, it might lead to violence. He advised both Mr Cowan and Mr Lumber to seek legal advice. P.C. Smith, according to his witness statement, suggested the same thing to them and said that they, the officers, would remain to prevent any breach of the peace. It seems that Mr Lumber had entered the house with a key. Eventually, after P.C. Henley had gone round the house with Mr Cowan to see that all his property was out, the officers left.
5. Neither P.C. Smith nor P.C. Henley had previously had to deal with an eviction. Both, according to the trial judge, regarded their task at the scene as being to prevent a breach of the peace. Neither had any knowledge of the Protection from Eviction Act 1977 ("the 1977 Act"), or of the offences created by section 1 of that Act.
6. The sergeant had been in the police force since 1972. He had received no training relating to evictions. He had on occasions been called to disputes between landlords and tenants but he had never had to deal with a situation like that at Dartmoor Street. His understanding of the law was that, if the tenancy was subject to a written contract, a Court Order was needed. That was why he wanted to see any rent book. It did not appear from his evidence that he was aware of offences arising under the 1977 Act. No evidence was called on behalf of the Chief Constable as to the training of officers or as to whether those who attended at Dartmoor Street should have been aware that it was an offence under the 1977 Act to evict Mr Cowan in the circumstances which occurred. Apparently, as a result of this incident and these proceedings, the officers in the Avon and Somerset force now carry a plastic laminated sheet telling them what to do in similar circumstances.
7. On 7 March 2000 Mr Lumber pleaded guilty to an offence contrary to section 1(3A) of the 1977 Act. He was conditionally discharged for one year and ordered to pay costs. Section 1(3A) makes the landlord of a residential occupier, or his agent, guilty of an offence if he does an act likely to interfere with the peace or comfort of the residential occupier, knowing or having reasonable cause to believe that the conduct is likely to cause the occupier to give up his occupation. The offence carries a fine or a term of up to two years imprisonment. It is not, therefore, an arrestable offence under section 24 of the Police and Criminal Evidence Act 1984. Section 1(2) of the 1977 Act creates a further non-arrestable offence. It provides:

"If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises."

8. Section 6 of the 1977 Act provides that proceedings for an offence under the Act may be instituted by specified authorities, in particular district councils. The specified authorities do not include the police.
9. Proceedings were brought by Mr Cowan against Mr West and the Chief Constable. On 22 February 1999 judgment was obtained against Mr West for damages to be assessed. The claim against the Chief Constable was brought in negligence, principally on the basis that his officers who went to Dartmoor Street owed a duty of care to Mr Cowan to take steps to prevent the crime under the 1977 Act being committed, primarily by pointing out that Mr Lumber's conduct was an offence. The Chief Constable denied that any such duty of care was owed to Mr Cowan and denied also that any duty owed was broken.

THE JUDGMENT BELOW

10. The trial took place before His Honour Judge Raymond Jack, QC, at Bristol County Court. In a detailed and careful reserved judgment he concluded that the officers attending at Dartmoor Street owed no duty of care to Mr Cowan; that, if he was wrong as to that, the duty was not broken; but, if there was both a duty and a breach of it, the appropriate award of damages would be £5,000.
11. The judge analysed the leading authorities applicable to the issue of when a duty of care will arise in such situations. He made reference to the decision of the European Court of Human Rights in Osman v United Kingdom [1998] 5 BHRC 293 as well as to the criticism of that decision by Lord Browne-Wilkinson in Barrett v Enfield London Borough Council [1999] 3 WLR 79. However, the later decision of the European Court of Human Rights in Z v United Kingdom [2001] 10 BHRC 384 emerged after the judgment had been given in the present case and so is not reflected in it. Although the judge quoted extensively from both Hill v Chief Constable for West Yorkshire [1989] 1 AC 53 and Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550, he concluded that the decision in Osman prevented him from simply deciding that public policy considerations ruled out Mr Cowan's claim. He therefore examined the facts of the present case on the familiar basis of the three tests for the imposition of a duty of care in negligence as summarised in Caparo v Dickman [1990] 2 AC 605, that is to say foreseeability of damage, the existence of a sufficiently proximate relationship between Mr Cowan and the officers, and the justice and reasonableness of imposing such a duty. He identified the important aspects of the factual situation as follows:

"The police attended at Dartmoor Street in answer to an emergency call. Their interest and aim when they arrived was to prevent any breach of the peace. It was Mr Cowan's hope that they would prevent him from being evicted. There was no injury to Mr Cowan himself. I have found that there was no damage to his property. There was no breach of the peace. Mr Cowan was evicted. The police took no action to prevent it. An offence under the Protection from Eviction Act was committed. This was not known to the police because they did not know the Act. The compensation which Mr Cowan is entitled to claim, if any, is for the consequences of his wrongful eviction, that is, his being made homeless."

12. The judge found that it was plainly foreseeable that if the police attending at Dartmoor Street failed to take reasonable care to prevent a crime under the 1977 Act, Mr Cowan might suffer damage in that he might be evicted. Relying on the classic judgment of Lord Diplock in Dorset Yacht Company Ltd. v Home Office [1970] AC 1004, he took the view that, once the police were in attendance, if Mr Cowan had been subjected to a physical attack, or had his property been wilfully damaged, he would have held that there was a sufficiently proximate relationship. Since he could see no reason why it should make any difference that the damage suffered was the loss of a home, the judge held that there was here a sufficiently proximate relationship between Mr Cowan and the officers attending at Dartmoor Street for them to owe him a duty of care.
13. However, he took into account matters of public policy in considering whether it was fair, just and reasonable to impose such a duty. He referred to the policy considerations in Hill, and then asked himself whether there were countervailing policy factors.

On this aspect of the case, the judge said this:

"I do not think that it will encourage the police in the performance of their duty in volatile street situations that they may come under a duty of care towards a potential victim. I do not feel any strong sense of injustice on the facts of the case, nor do I think that a well-informed member of the public would expect the police to be liable here. The primary wrongdoer in the matter was Mr Lumber. I see no reason why Mr Cowan could not have very quickly obtained a court order requiring Mr Lumber to re-admit him to 23 Dartmoor Street and restraining Mr Lumber from further interfering with his tenancy other than through the process of the court. Mr Cowan could also have claimed compensation from Mr Lumber. This will generally be the situation on the apparently rare occasions when the police become involved with wrongful evictions. I do not think that there are here other public interest considerations which mean that the general rule stated in Hill should not apply."

14. Thus he concluded that it was not just and reasonable to impose a duty in the circumstances of this case and that it would be contrary to public policy to do so. That dealt with the case in so far as it rested on the duty owed by the officers at the scene. The judge then dealt briefly with the case based on alleged negligence in the training of officers. He pointed out that any duty in training was one owed to the public at large, who are all potential victims if the training is inadequate. He noted that Hill makes it clear that there can be no such duty in law to individuals because of lack of proximity.
15. On breach of duty, the judge found that the officers who went to Dartmoor Street did not fall below the standard of knowledge to be expected of them in failing to know of the 1977 Act. The evidence indicated to him that eviction problems rarely arose in police work, such matters being more the business of local authority tenancy officers. He noted that it is district councils who have the power to prosecute under the Act and not the police.

THE PARTIES' SUBMISSIONS

16. The appellant now challenges the judge's conclusion that it was not fair, just and reasonable to impose a duty of care in these circumstances, as well as his finding that there was no breach of any such duty. The respondent not only resists those arguments but also contends that the judge should have found that there was not a sufficiently proximate relationship for a duty of care to arise.
17. Both parties are agreed on the basic principles of law to be applied when considering whether a duty of care situation exists, drawing those principles from Lord Bridge's speech in Caparo. Moreover, both parties take the view that questions of public policy and the balance of public interest can properly be dealt with by asking whether it is fair, just and reasonable to impose a duty of care in the situation under consideration . On behalf of the Chief Constable, Mr Freeland does not contend for any blanket immunity for police forces from actions in negligence. He accepts that there can be circumstances where a duty of care may be owed by a police officer or officers to an individual, but it is contended that those circumstances are exceptional.
18. On the issue of whether there was a sufficiently proximate relationship between Mr Cowan and the police officers, Mr Hytner, QC, for the appellant accepts that the crucial factor is whether the officers assumed a responsibility towards Mr Cowan. Assumption of responsibility is, he contends, at the kernel of the concept of proximity. Reliance is placed on a passage from the judgment of Lord Woolf, MR in Kent v. Griffiths [2000] 2 WLR 1158 at 1166, when dealing with the decision in Alexandrou v. Oxford [1993] 4 All ER 328:

"26. The obligations of the police are rooted in the common law and not statute: they evolve to meet the current needs of society. I emphasise in my quotation from the judgment of Glidewell L.J. that he was careful to refer to the facts of the appeal which the court was considering. I consider he was right to limit his remarks in this way. The reasoning of the judgment in that case cannot be applied sensibly to the police officer helping pedestrians across the road. If the policeman assumes this task there is no reason of policy or proximity why he should be in any different position from a school teacher who performs this task and, if this is appropriate on the facts, is liable for negligence."

19. Mr Hytner submits that, while the police were under no duty to respond to either the first or second telephone call, when they came to Dartmoor Street on the second occasion there was then a sufficiently proximate relationship between them and Mr Cowan, because they had assumed a responsibility towards him. That responsibility embraced a duty to ascertain whether, if the men carried out their threat to evict, a crime would be committed, and, if so, a further duty to prevent that crime from being committed. The appellant seeks to distinguish the decision in Alexandrou v. Oxford on the basis that the issue in that case was whether the police owed a special duty to a particular class of 999 caller. Although the officers had on the facts in that case visited the premises, those visits were not alleged to have given rise to an assumption of responsibility. The allegation was that the alarm installation in the police station itself gave rise to the duty of care, not the attendance of the police at the scene.
20. In the present case it is contended that, if any officers were sent in response to the second telephone call, they should have been ones informed as to eviction law. There had been an opportunity after their first attendance at Dartmoor Street to inform themselves of the provisions of the 1977 Act, if necessary by contacting the Local Authority Housing Department, and that opportunity should have been taken. On whether it would be just and reasonable to impose a duty of care, Mr Hytner draws attention to the judge's finding that, if the officers had warned Mr Lumber that he was committing an offence by evicting Mr Cowan, Mr Lumber would have stopped. Therefore this is not a case, it is said, where there would be significant resource implications in imposing a duty of care. The appellant submits that it would not be difficult to ensure that police officers know basic eviction law and in any event it would probably have been sufficient to warn Mr Lumber that he might be committing an offence. As for the public interest the prevention of eviction offences would be likely to lead to fewer County Court cases, less work for local housing authorities and a reduced need to re-house evicted tenants.
21. On behalf of the Chief Constable, Mr Freeland argues that sufficient proximity for a duty of care in cases involving omissions by the police to prevent injury caused by a third party only arises when a special relationship is established between the parties. That explains the decisions reached in Costello and in Swinney v. Chief Constable of Northumbria Police Force [1997] QB 465. No such special relationship arose here. The police attended on the second occasion to prevent a breach of the peace, and their presence by itself at the scene cannot suffice to give rise to such a relationship, or such a relationship would regularly arise in police work. Mr Freeland relies on a passage in the judgment of May LJ in Costello at page 563h, where it was said that if the police do respond to emergency calls they are not to be held liable for want of care in any attempt to prevent crime. The police officers in the present case never assumed any responsibility towards Mr Cowan to prevent his eviction and they were unsure that any offence was being committed. That is not surprising: the police have no power to arrest for such an offence nor are they one of the specified authorities able under section 6 of the 1977 Act to institute proceedings in respect of an offence under section 1. This indicates that Parliament has not contemplated the police becoming involved in such situations.
22. As for whether a duty of care in such situations would be fair, just and reasonable, it is submitted that the primary duty which the police are under is to the public at large to prevent crime. To impose a liability on the police for the benefit of an individual in respect of the prevention of crime may in many cases interfere with that primary duty: see Hill and Kent v. Griffiths. That is illustrated by the present case. Were the police officers to delay responding to a call while they tried to find out what legal advice they should give participants in a situation such as this? It would be unreasonable to expect police officers to take on the mantle of legal advisers on matters of landlord and tenant law, especially when the judge's findings indicate that such eviction problems rarely arise in police work. No public interest considerations arise to out weigh the factors which led to the decision in Hill, which on this aspect has recently been endorsed in Costello.

ANALYSIS

23. It is convenient to deal at the outset with the subsidiary issue in this appeal. The submission to be found in the appellant's skeleton argument that the respondent owed a duty of care to Mr Cowan in respect of the training of his officers was scarcely touched on in oral argument. In my view, this reticence was well-founded. Any duty owed by a Chief Constable to arrange adequate training for his officers must be a duty owed to the public as a whole. It is they who are potential victims if the training proves to be inadequate. No special relationship normally exists in this respect between the Chief Constable and an individual member of the public, because no special risk of injury or damage to such an individual derives from any such inadequacy. The situation is analogous to that which arose in Hill.
24. I turn therefore to the real issue in this case, which concerns the vicarious liability of the Chief Constable for the acts and omissions of his officers. As the trial judge recognised, the situations where the law recognises the existence of a duty of care are capable of being identified by applying the criteria spelt out by Lord Bridge in Carparo at page 617, after his analysis of a number of cases:

"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".

25. Sometimes a further test of whether as a matter of public policy there should be a duty of care has been added, deriving from the decision in Anns v. Merton London Borough Council [1978] AC 728, but for my part I would regard this as being covered by the third of the Caparo criteria, namely whether it is fair, just and reasonable to impose such a duty. May LJ took the same view in Costello at page 558a, as clearly did Lord Browne-Wilkinson in Barrett v. Enfield London Borough Council where at page 85 he said this:

"In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant's primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered."

26. It is, however, to be emphasised that, while it is no doubt helpful to seek to identify the factors which have influenced the courts in their decisions as to whether or not a duty of care exists, the three Caparo criteria cannot be treated as if they were always separate and distinct requirements. Lord Bridge in that very case went on to say immediately after the passage already quoted:

"But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of difference specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope."

27. In the speech of Lord Oliver in Caparo, p. 618, one finds the same point being made:

"It is difficult to resist the conclusion that what had been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone the requisite proximity can be deduced, whilst in others the absence of the central relationship can most rationally be attributed simply to the court's view that it would not be fair and reasonable to hold the defendant responsible.

28. The three criteria will often overlap. As Steyn LJ said in Elguzouli-Daf v. Commissioner of Metropolitan Police [1995] QB 335, 349: "These considerations … inevitably … shade into each other." This is bound to be so, since the court in determining whether a duty of care exists where one has not previously been established is not engaged upon some mechanistic exercise. The Caparo criteria are an attempt by the courts to analyse the approach adopted in the case-law, but they are not to be seen as laying down some prescribed rigid formula. They are simply one way, albeit a very useful way, of approaching the problem of when a duty of care in a new situation can be held to exist. As May LJ said in Costello, page 557g:

"Duties of care are also analysed by asking whether the (defendant) assumed responsibility to the (plaintiff) to guard against the particular damage."

29. In the present case, the trial judge held that the foreseeability of damage criterion was met, and no challenge to that conclusion has been mounted. That, however, is patently insufficient for the claimant to succeed.
30. A duty of care is, of course, most commonly found to exist where a person has himself caused direct physical injury or damage to another person or to his property. The situation is less straightforward where the injury or damage has been caused by a third party but where it is claimed that the defendant was under a duty to prevent such injury or damage. It is in such situations that the approach described in the passage just cited from Costello may provide the greatest assistance.
31. A starting point for any consideration of liability for failure to prevent others causing injury or damage to the claimant can be found in the decision of the House of Lords in the Dorset Yacht Company case. In that case detainees in the custody of prison officers had been allow to escape and subsequently caused damage to the plaintiff's yachts. The House of Lords held that the Home Office owed a duty of care to the owners of the yachts. The prison officers had brought the detainees, Borstal boys, into the locality where the yachts were moored and so had created a situation of potential danger for the owners of those yachts. As a result a special relationship was found to have been created between the prison officers and those owners. Lord Keith of Kinkel in Yuen Kun Yen v. Attorney General of Hong Kong [1988] AC 175 at 192 emphasised that in the Dorset Yacht case:

"A close and direct relationship of proximity existed between the officers and the owners of the yachts, sufficient to require the former, as a matter of law, to take reasonable care to prevent the boys from interfering with the yachts and damaging them."

32. In Ancell v. McDermott [1993] 4 ALL ER 355, 365e-f, Beldam LJ said this about cases where liability derives from a failure to prevent others causing loss or damage:

"It is exceptional to find in the law a duty to control another's actions to prevent harm to strangers and where they are found they arise from special relationships. When it is contended that such special relationship arises out of duties carried out in the performance of a public office, the court must have regard to the purpose and scope of the public duties, whether they are intended to benefit a particular section of the public, e.g. investors or depositors, and whether such persons could reasonably place reliance on the fulfilment of the duties."

33. Without such a special relationship, the courts will be most unlikely to recognise a duty of care in such situations for omitting to act. One is reminded of the words of Lord Diplock in the Dorset Yacht case itself (p. 1060 F):

"The very parable of the good Samaritan (Luke 10:30) which was evoked by Lord Atkin in Donoghue v. Stevenson illustrates, in the conduct of the priest and of the Levite who passed by on the other side, an omission which was likely to have as its reasonable and probable consequence damage to the health of the victim of the thieves, but for which the priest and Levite would have incurred no civil liability in English law. Examples could be multiplied."

34. When the House of Lords came subsequently to decide Hill, the speeches recognised the "special characteristics or ingredients" which had been present in the Dorset Yacht Dorset case: see [1989] AC at page 62B. The absence of such factors in Hill led the House to conclude that no duty of care was owed by the police to individual members of the public for their activities in the investigation and suppression of crime. This approach was followed by the Court of Appeal in Alexandrou v. Oxford, where police officers attended a shop in response to a burglar alarm but were alleged to have dealt with the matter incompetently with the result that the burglars were able to carry off a large quantity of valuable property. The Court of Appeal held that the police owed no duty of care to a person who had a direct alarm to the police station nor to any member of the public making a 999 call. Glidewell LJ said at page 338:

"It is possible to envisage an agreement between an occupier of a property protected by a burglar alarm and the police which would impose a contractual liability on the police. That is not, however, the situation in this case. The communication with the police in this case was by a 999 telephone call followed by a recorded message. If as a result of that communication the police came under a duty of care to the plaintiff, it must follow that they would be under a similar duty to any person who informs them, whether by a 999 call or in some other way, that a burglary, or indeed any crime, against himself or his property is being committed or is about to be committed. So 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 the Dorset Yacht case."

35. It is clear from Hill itself (page 59) that the police do not enjoy a blanket immunity for all police operations, nor is such an immunity contended for in the present appeal. Indeed such an immunity, were it to exist, could still create difficulties in the light of the judgment of the European Court of Human Rights in Osman, despite the subsequent decision of that court in Z v. United Kingdom. In some cases a breach of duty by a police officer has been found to exist. Thus in Knightley v. Johns [1982] 1 WLR 349 a police inspector was found to have been negligent. There had been a traffic accident in an underpass carrying one-way traffic. The inspector forgot to close the underpass, as standing orders required, and directed two police officers on motor cycles to ride back against the flow of the traffic. A collision ensued with an oncoming vehicle as a result of which one of the police motor cyclists, the plaintiff, was injured. It is clear that there was a sufficiently close relationship between the inspector and his subordinate to give rise to a duty of care to the latter, particularly in circumstances where the inspector was taking positive but negligent action, described by Hirst LJ in Costello (page 565(d)) as:

"A positive act of giving a negligent order to a subordinate officer."

36. Two other decided cases call for further consideration. Swinney v. Chief Constable of Northumbria Police was a case where the plaintiff, a member of the public, had given information to the police about the identity of a person implicated in the unlawful killing of a police officer. The information was, however, recorded in writing by the police in a document naming the informant, a document which was left in an unattended police car which was then broken into and the document stolen. The document found its way into the hands of the person implicated, who proceeded to threaten the plaintiff and her husband with violence. In strike-out proceedings the Court of Appeal held that it was arguable that a special relationship existed between the informant and the police, because the police had assumed a responsibility of confidentiality to her. For that reason the court saw the facts as arguably giving rise to an exception to the principle of general application laid down in Hill and endorsed in Alexandrou v. Oxford. It is of interest to note that when Swinney eventually went to trial, it was conceded on behalf of the Chief Constable that a duty of care did exist towards the informant, that duty being to take reasonable care to avoid unnecessary disclosure to the general public of the information which Mrs Swinney had given to the police.
37. The other authority of significance is Costello. The plaintiff in that case was a woman police constable serving in the Northumbria Police. She was attacked and injured by a female prisoner in a cell at a police station. At the time a police inspector was standing near to the door of the cell but he did not come to the assistance of the plaintiff when she was attacked. The trial judge found that the inspector had owed a duty of care to the plaintiff and this was upheld by the Court of Appeal. May LJ commented (p. 553 g) that:

"These findings of fact, against which there is no challenge, led to the quite startling result that Inspector Bell, who was present for the acknowledged purpose of helping the plaintiff if she needed it, stood by and did nothing when the plaintiff was attacked and when he himself acknowledged that, on the facts found by the judge, it was his police duty to help."

38. It was emphasised that there was an obvious close relationship between the plaintiff and Inspector Bell, who might readily be said to have assumed a responsibility to help the plaintiff if she needed help. The court concluded that there was a duty of care owed, a duty which had been broken. May LJ stated:

"An ingredient of my conclusion is the close relationship between Inspector Bell and the plaintiff. They were police colleagues and he was in close attendance for the specific purpose of coming to her help if she needed help. It would not therefore follow from this analysis that I would also have found a duty of care owed by a police officer to a member of the public in otherwise similar circumstances. The balance of public policy could, depending on the circumstances, then be different."

39. Hirst LJ expressly stated that "our decision should not be interpreted in any shape or form as undermining the general principle laid down in Hill's case."
40. Once again, as in Swinney, the existence of a duty of care owed by the police force to the individual was founded upon the assumption of responsibility by a police officer and the consequent close or special relationship between the police officer and the plaintiff. That approach accords with the other authorities already cited. Indeed, in the course of his judgment in Costello, May LJ analysed the earlier authorities and distilled from them a number of propositions. Amongst them were (page 563f-h):

"For public policy reasons, the police are under no general duty of care to members of the public for their activities in the investigation and suppression of crime (Hill's case). But this is not an absolute blanket immunity and circumstances may exceptionally arise when the police assume a responsibility, giving rise to a duty of care to a particular member of the public (Hill's case and Swinney's case). The public policy considerations which prevailed in Hill's case may not always be the only relevant public policy considerations (Swinney's case).

Neither the police nor other public rescue services are under any general obligation, giving rise to a duty of care, to respond to emergency calls (Alexandrou's case), nor, if they do respond, are they to be held liable for want of care in any attempt to prevent crime of effect a rescue. But if their own positive negligent intervention directly causes injury which would not otherwise have occurred or if it exacerbates injury or damage, there may be liability (the Capital Counties PLC case)."([1997] QB 1004).

41. I agree with those propositions. It is only if a particular responsibility towards an individual arises, establishing a sufficiently close relationship, that a duty of care may be owed to that individual.
42. The issue which therefore arises in the present appeal is whether the police officers who attended Dartmoor Street on the second occasion assumed a responsibility towards Mr Cowan, a member of the public, to prevent his eviction and thereby created a special relationship between themselves on the one hand and him on the other. If there was a duty of care owed by them to Mr Cowan, it might in the circumstances of this case have been performed, as Mr Hytner argues, by the giving of a warning to Mr Lumber that he would be committing an offence by evicting Mr Cowan. But the fact that such performance might not have been difficult does not of itself indicate that the officers had assumed the responsibility contended for.
43. I do not accept that the mere presence of the officers at the scene was in the circumstances of this case sufficient to give rise to the necessary special relationship. That factor alone would not suffice to create a duty of care on the part of the police, any more than it did on the part of the fire brigade attending the scene of a fire in Capital Counties plc v. Hampshire County Council (see the judgment of the court at page 1038E-F). Something more is required.
44. Some assistance on this issue of responsibility may be obtained in the present case by considering the purpose behind the attendance of the police on the second occasion. What, if anything, were they assuming responsibility for? The trial judge found that the police officers attended in order to prevent a breach of the peace. That was a finding which he was undoubtedly entitled to make: there had been threats of violence by Mr Lumber earlier in the day and the evidence of the officers was that they saw their role as being to prevent a breach of the peace. While the issue of whether there was a special relationship is to be determined objectively, nothing said or done by the officers indicated that they were assuming a responsibility to prevent Mr Cowan being evicted. It might be arguable that they had assumed a responsibility towards him for his personal safety, although that is not a matter which this court needs to determine. But I cannot see that on these facts they assumed any responsibility to prevent his eviction as such. Even if there was a sufficiently proximate relationship to give rise to a duty of care to prevent a physical attack on Mr Cowan, as the trial judge suggested, it does not follow that that relationship was such as to give rise to a duty of care to prevent his eviction. Unlike Costello, the purpose for which the officers were present at the scene was one which they fulfilled. If this aspect of the case is to be analysed in terms of the Caparo criteria, then it follows that I differ from the trial judge in the conclusion which I have reached on the criterion of proximity.
45. In so far as matters of public policy come into consideration, particularly under the concept of what is just and reasonable, there is the well-established public interest in not fettering or influencing the police in operational matters by the "spectre of litigation": see Ward LJ in Swinney, page 486H-487A. Their duties are difficult enough without that added complication which would arise from imposing a duty of care towards individual citizens to prevent crime. The argument that, by imposing such a duty, one would avoid subsequent civil litigation in the civil courts between landlord and tenant and avoid burdens on the local authority is not persuasive: most offences, if not prevented, have the potential to give rise to civil litigation and in many cases to burdens on other public bodies such as health authorities, and the argument therefore becomes one for imposing a general duty of care on the police to prevent crime. That is contrary to the decision in Hill. I find it impossible to discern any sufficiently weighty countervailing public interest which would make a duty of care appropriate in the present case or render it just or reasonable to impose such a duty.
46. It is said that what the police should have done was to inform themselves about eviction law before attending on the second occasion, so that they could advise Mr Lumber that he was committing an offence. But that only illustrates how the balance of public interest comes down against the existence of a duty of care here. The primary duty of the police is one owed to the public at large to prevent crime. That may often require prompt action on their part, and it would not be in the public interest that they should delay any response to an emergency call while seeking information about landlord and tenant law or indeed any other branch of the law. Their primary role is not to give legal advice but to prevent crime. In my judgment the trial judge was right to take the view that it was not just and reasonable to impose a duty of care in the circumstances of this case.

CONCLUSION

47. For these reasons I conclude that no duty of care existed in the present case on the part of the police officers at the scene to Mr Cowan to prevent his eviction. In those circumstances it is unnecessary to go on to consider whether any duty was broken. I would dismiss this appeal.

SIR CHRISTOPHER SLADE:

48. I agree that this appeal should be dismissed for the reasons given in the judgment of Keene LJ with which I am in full agreement. I add only one observation.
49. His Honour Judge Jack found as facts that at the material time neither P.C. Smith nor P.C. Henley had any knowledge of the Protection from Eviction Act 1977 or of the offences created by section 1 of that Act and that it did not appear from his evidence that the police sergeant concerned was aware of offences under that Act. In this appeal we have not had to consider the legal position which would have arisen if any of these police officers had been shown to have had such knowledge. I would for my part prefer to leave open the question whether such an officer, having actual knowledge of the relevant law, might possibly have been under a duty to warn Mr Lumber that he was committing an offence by evicting Mr Cowan.

LORD JUSTICE ROBERT WALKER:

50. I also agree.
Order: Appeal dismissed; permission to appeal to the House of Lords refused; rest of order in form of counsel's draft minute of order. (Order does not form part of the approved judgment)