England and Wales Court of Appeal (Civil Division) Decisions

Brooks v Commissioner of Police for the Metropolis & Ors [2002] EWCA Civ 407 (26th March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HH JUDGE BUTTER QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th March 2002

Lord Justice Kennedy :

This is the judgment of the Court
1. At about 10.30 pm on 22^nd April 1993 the claimant and Stephen Lawrence were attacked in Well Hall Road, London, SE9. They were both eighteen years of age and black, and their attackers were a gang of white youths. Stephen Lawrence sustained fatal injuries. The claimant telephoned for an ambulance and the police were notified. As is well known, there have been many complaints about the way in which the matter was handled by the Metropolitan Police, and in 1997 Sir William Macpherson was appointed by the Home Secretary to hold an inquiry, the report of which was published in February 1999. In April 1999 the claimant commenced these civil proceedings in the Central London County Court in which he seeks to recover damages –

“(1) From the first defendant, the Metropolitan Police Commissioner, on the grounds of negligence, false imprisonment, and misfeasance in public office.

(2) From the second to sixteenth defendants, who were all at the material time serving police officers, for breach of statutory duty, namely breaches of section 20 of the Race Relations Act 1976.”

2. There was also originally a seventeenth defendant, the Crown Prosecution Service. All of the police defendants sought summary judgment or to have the proceedings against them struck out, and in February 2000 the applications of the individual officers were considered by Judge Butter QC. By then the claimant had decided not to pursue his claim against the 9^th defendant, and on 29^th March 2000 the judge gave his decision in relation to the other individual defendants. The effect of that decision was that judgment was given in favour of five defendants, namely the 6^th, 7^th, 8^th, 10^th and 16^th defendants. The claims against the remaining individual defendants were allowed to continue.
3. The application of the first defendant, the Commissioner, was heard by Judge Butter in December 2000, and judgment in favour of the Commissioner was given on 12^th February 2001.
4. In this appeal Mr Andrew Nicol QC for the claimant seeks to restore the claim as it was prior to the decision of Judge Butter save for the claim against the 10^th defendant, and Mr Garnham QC, for the individual officers, invites us to find that no claim against any individual officer should proceed to trial.

A. The case against the officers.

The Officers

5. The 2nd to 6^th defendants and the 8^th defendant were officers who attended the scene of the crime on the night of 22^nd April 1993. The 7th defendant was appointed exhibits officer for the investigation. The 11^th to 13^th defendants acted at times as liaison officers in respect of the claimant. The 14^th defendant was a Detective Superintendent who was the senior investigating officer for the first four days of the inquiry, the 15^th defendant was a Detective Chief Superintendent who was the supervisory officer in respect of that inquiry, and the 16^th defendant was a Detective Sergeant who escorted the claimant to and from an identification parade on 3^rd June 1993.

Statutory Duty.

6. Section 1(1)(a) of the 1976 Act provides that a person discriminates against another in any circumstances relevant for the purposes of any provision of the Act if on racial grounds he treats that other less favourably than he treats or would treat other persons.
7. Section 20(1) provides –

“It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services –

(a) by refusing or deliberately omitting to provide him with any of them; or

(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person’s case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.”

8. Section 20(2) gives examples of the facilities and services mentioned in section 20(1), and one example is –

“(g) the services of any profession or trade, or any local or other public authority.”

9. Section 53(1) restricts the proceedings which can be taken for breach of the Act. It provides –

“Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the Act is unlawful by virtue of a provision of this Act.”

10. Section 57(1) then provides that a claim that another person has committed an act of discrimination may be made the subject of civil proceedings in like manner as any claim in tort and section 57(2) provides that such proceedings must be brought in a designated County Court.
11. Section 68(2) deals with time limits, and provides that a County Court shall not consider a claim under section 57 unless proceedings in respect of the claim are instituted before the end of –

“(a) the period of six months beginning when the act complained of was done.”

12. However section 68(6) states that a court may nevertheless consider a claim which is out of time “if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

The alleged breaches.

13. In paragraph 22 of the Particulars of Claim it is alleged that in their dealings with the claimant in his capacity as a key witness and a victim of the attack the officers sued were persons concerned with the provision of facilities and/or services to the public or a section of the public within section 20 of the 1976 Act, namely the services of protection, assistance and support afforded to victims and eye witnesses to serious violent crime. Before us Mr Nicol applied somewhat belatedly for leave to add to paragraph 22 the words “and/or the investigation of a crime which had been committed against himself and Mr Lawrence”.
14. It is important to recognise, and it was accepted by all counsel appearing before us, that at the material time there was no general obligation on a public authority such as the police not to discriminate, and a Chief Constable could not be held vicariously liable for discrimination by one or more of his officers. The position today is different as a result of the implementation of the Race Relations (Amendment) Act 2000.
15. With that in mind we return to the Particulars of Claim to see what is alleged against each individual officer defendant.
16. In paragraph 25 it is said against the 2^nd defendant that when she spoke to the claimant at the scene and received his brief account of what had occurred she did not note down or appear to take seriously the information he gave to her, or act on it, or cause it to be acted on. She questioned him more than once as to whether the assailants were known to him, and as to whether he was carrying a weapon, and seemed reluctant to accept his answers. She did not ask for descriptions of the assailants, or try to establish if the claimant had been attacked himself or offer him any support or check to see if he was alright. She did not, it is said, “appreciate that he was in a distraught and frightened condition as a result of the attack and the condition of his friend lying on the pavement, nor that he was frustrated by the apparent delay in the arrival of the ambulance that had been called.” Other officers at the scene who have been sued are said in paragraph 26 not to have acted to remedy any of the deficiencies in the second defendant’s handling of the claimant.
17. Pausing there, it is possible to discern in what is alleged in paragraphs 25 and 26 a distinction, although not always a sharp distinction, between two categories of allegation, namely (1) allegations of failing to protect, assist and support, and (2) allegations of failure to investigate crime with appropriate competence and vigour.
18. When the ambulance arrived Stephen Lawrence was taken to hospital, and the claimant was taken to the same hospital in a car driven by the 3^rd defendant. The principal allegation against that defendant is that in 1997 in a witness statement she falsely claimed that the claimant swore and demonstrated anti-police sentiments during the journey. That, to our minds, is clearly an allegation within category 1, but following the first decision made by Judge Butter it seems to have been treated as an allegation within category 2.
19. The 4^th defendant took a statement from the claimant at the hospital, and in paragraph 28 it is alleged that he failed to transmit the information which he obtained to officers responsible for investigating the murder, clearly on the face of it an allegation within category 2. In paragraph 29 it is said that none of the officers present at the hospital, including the 3^rd, 4^th and 5^th defendants, took steps to check the claimant’s welfare, to offer him comfort and support, or to arrange for the same to be given, an allegation within category 1.
20. The allegation against the 5^th defendant is somewhat different. In paragraph 30 it is said that at the hospital on the night of the murder he told the claimant that he had to go to the police station to make a statement. The claimant was not given the option of going home or of making the statement at some other time and place. He was simply told that he could wait in the hospital or in the officer’s car until the officer was ready to drive him to the police station. He chose the car, and waited for what “felt like up to 30 minutes” before being driven to the police station. “He felt that he had no option to simply leave the scene and go home, and felt that he would have been arrested had he done so.” That allegation would seem to be mainly, but perhaps not entirely, within category 1.
21. In paragraphs 31 and 32 it is said that at the police station whilst the statement was being made over a period of about 4 hours, apart from one enquiry made by the officer taking the statement, no one, including the 14^th defendant, asked the claimant about his welfare or about whether he would prefer to give the statement at home – a category 1 complaint. Officers expressed scepticism about various aspects of his account, in particular that the attack was wholly unprovoked, and that the words “what what nigger” had been used, and no officer asked if the white youths had attacked or touched the claimant. That would seem to be a complaint largely, but not exclusively, within category 2.
22. Reverting to the scene of the murder, it is said in paragraph 33 that the 6^th defendant initiated lines of enquiry without first ascertaining from the complainant directly or indirectly an account of the attack, assuming that Stephen Lawrence had been injured as a result of a fight, and that the claimant was a potential suspect. The 6^th defendant is also said to have failed to treat the attack as a racial attack, which would seem to be an allegation wholly within category 2.
23. The 11^th, 12^th and 13^th defendants were all liaison officers dealing with the claimant, and the complaints made against them in paragraphs 35 to 37 of the Particulars of Claim are that they and other officers failed to treat the claimant as a victim of the attack. He was not offered appropriate counselling or support, and was required by the 12^th defendant in May 1993 to produce a photograph of himself which re-inforced his fears that some officers regarded him as a suspect. Whilst the attackers remained at large the claimant was fearful for his own safety and did on occasions express his fears to the 12^th defendant but (it is alleged in paragraph 49) nothing was done to allay those fears save for the provision of a police escort during the trial which took place in April 1996. The claimant complains (in paragraph 50) that his escort on the night of 22^nd April 1996 was an officer who is not a defendant, but who was “a known associate of Clifford Norris who is a notorious criminal and father of one of the suspects, David Norris”. That was something which the claimant did not know at the time but learnt later. The 13^th defendant is said to have been particularly unsupportive, and to have breached the claimant’s trust by revealing to other officers the address of the claimant’s girlfriend which the claimant had given him in confidence. These allegations mostly fall within category 1, but in part (e.g. in relation to the provision of a photograph) they could overlap into category 2.
24. Paragraph 38 to 41 of the Particulars of Claim are simply narrative, but in paragraph 42 complaint is made that on 3^rd June 1993, when the claimant attended a third identification parade and picked out Luke Knight, the 16^th defendant falsely and inaccurately made a statement which cast doubt upon the value of the claimant’s identification, and thus undermined the case presented by the prosecution at the Central Criminal Court in April 1996 (paragraph 47). The allegations against the 16^th defendant would appear to be mainly, if not exclusively, within category 2.
25. The claimant is said to have learnt of the discontinuation of the April 1996 proceedings from the media, and that is said in paragraph 48 to be “the starkest example of a general difficulty that he faced that the police did not keep him informed of the state of their investigations/the prosecution.” That would seem to be an allegation within category 1.
26. In May 1994, when the claimant was being prosecuted for public order offences, police officers who had been involved with him were asked by the Crown Prosecution Service to complete questionnaires relating to his behaviour, and in paragraph 52 he complains that when completing the questionnaires the 2^nd, 3^rd and 4^th defendants wrongly characterised his behaviour at the scene and/or at the hospital on the night of the murder as “aggressive, unhelpful, anti-police and abusive.” The 7^th and 8^th defendants, it is said, in answer to the questionnaires “wrongly characterised the claimant in his dealings with the police as surly and uncooperative.” In 1997 in statements or interviews given in connection with an inquiry conducted by Kent Constabulary the 2^nd, 3^rd and 4^th defendants, it is said, wrongly characterised the claimant’s behaviour on the same occasions as hysterical, uncontrollable and very aggressive. If the allegations in paragraphs 52 and 53 can be categorised at all they would appear to fall within category 1.
27. Paragraphs 54 to 56 contain allegations relating to events at the time of the Lawrence Inquiry and subsequently which are no longer pursued. Paragraph 57 is narrative, and in paragraph 58 it is said that the sued officers –

“Refused or deliberately omitted to provide the (claimant) with the aforesaid facilities or services and/or refused or deliberately omitted to provide ones of like quality and/or in the like manner and/or on the like terms as are normal in relation to the provision of such services to members of the public from other racial groups, specifically white members of the public.”

28. Particulars are then set out which seem to do no more than gather together the preceding allegations, save that the 14^th and 15^th defendants are said to be liable not only for their own failings but also for those on the part of more junior sued officers “as they expressly or impliedly authorised the same”. In paragraph 59 the Particulars of Claim turn to the case against the 1^st defendant.

Applications by the Defendants

29. As we have said these civil proceedings did not commence until April 1999, and the sued officers were not served with the Particulars of Claim until August 1999. On 4^th October 1999 solicitors acting on their behalf applied –

“(1) Under Civil Procedure Rules Part 24 for summary judgment on the whole of the claim against them save for that contained in paragraph 24 and 56, and –

(2) For those paragraphs, together with paragraph 54 and 55, to be struck out pursuant to CPR Part 3.4 (ii)(a).”

30. The paragraphs sought to be struck out are no longer relied upon, so we can concentrate on the application for summary judgment which was made on the basis that the proceedings were well out of time, that it was not just and equitable to consider the claim out of time, and that the claimant therefore had no real prospects of success. The applications were supported by a witness statement made by Mr Sturzaker, the defendants’ solicitor, and by certain documents exhibited to that witness statement. In response there was a statement from Ms Guedalla, the claimant’s solicitor, dated 15^th February 2000, with documents exhibited thereto, and the applications were heard by Judge Butter later that month. He had before him two psychiatric reports on the claimant prepared by Dr Stuart Turner, one dated 16^th April 1999 which had been filed and served with the Particulars of Claim, and a second dated 11^th February 2000. They showed that after the murder the claimant developed post-traumatic stress disorder which persisted for several years. In about March 1998 the condition was in partial remission, and in the opinion of the doctor the claimant was fit to start work. Thereafter recovery continued and the doctor says that it would have been sometime between May 1998 and October 1999 when it would have been reasonable for the claimant to have contemplated litigation as a safe and realistic possibility from the medical point of view.
31. The judge examined the allegations in the Particulars of Claim and the statutory provisions, and at page 11 of the transcript he set out five main issues which he had to decide, namely –

“1. Did the claimant seek to obtain services within the meaning of section 20, and, if so, what were they?

2. What acts or omissions can the claimant rely upon in relation to each defendant separately?

3. When did the last act or omission involving the alleged discrimination occur in relation to each of the defendants?

4. Are any and, if so, which of the claims out of time?

5. If so, is it nevertheless just and equitable that the court should consider them?”

He referred to authorities indicating how the powers under the Rules should be exercised, and, having referred to Farrah v Commissioner of Police of the Metropolis [1998] QB 65, he said at 15A in relation to the first issue which he had identified –

“In the present case, it is far from clear on the material before me what the claimant requested by way of services. I think it is permissible for me to infer, however, that the court might reasonably consider in due course that directly or implicitly he sought services from police officers in respect of protection, assistance and support afforded to a victim and eye witness to a serious violent crime.

What I consider to be much more difficult .....is to what extent, upon a realistic interpretation of section 20, the errors in the investigation of crime, including the alleged belittling of the claimant, can be said to be acts or omissions in relation to a service sought by the claimant.

Of course it can be said that the claimant wanted the police to find the murderers, but the investigation was not made at his request, and it may be that the claimant’s case on this aspect is stretching the language of section 20 too far.”

32. So the judge regarded the “alleged belittling of the claimant” as an error in the investigation (a category 2 matter) and at 16 B he continued –

“In my judgment there is sufficient material before me to conclude that the claimant has a reasonable prospect of success against those defendants who dealt with him on the night of the murder and against those who were later responsible for providing him, whether as liaison officers or otherwise, with protection, assurance and support.”

33. As to the third issue which he had identified the judge said at 19F –

“In my judgment the last act or omissions by any defendant which might be adjudged to be discriminatory were in 1996 and in relation to some defendants were probably no later than 1993. On the face of it, therefore, the defendants succeed on this issue.”

34. He then turned to consider whether he should exercise his discretionary power under section 68(6). He referred to what he knew of the claimant’s motives for pursuing the claim, and expressed concern that even if the trial took place reasonably expeditiously those giving evidence on both sides would have difficulty in giving an accurate account of events which occurred so many years ago. Nevertheless, by reference to the medical reports and lack of funding he rejected the argument for the defendants that the claim should have been brought many years ago and concluded at 23 C –

“I recognise that the phrase ‘just and equitable’ means that I should take into account not only the interests of the claimant, but also have regard to those of the defendants themselves. I recognise too that I have to perform a balancing exercise in order to try to achieve justice. I have not dealt with every point made by counsel on both sides, but in the end in the exercise of my discretion I reach the conclusion that, despite the serious time delay, this is a case in which I should extend time within section 68(6) in relation to such parts of the claim as are maintainable in accordance with the conclusions expressed earlier in this judgment.”

The Claimant’s appeal

35. Mr Nicol contends that judge was wrong to categorise the allegations as he did, and to say that the errors in the investigation of crime, including the alleged belittling of the claimant, could not be said to be acts or omissions in relation to a service sought by the claimant. When the judge suggested that “the claimant’s case on this aspect is stretching the language of section 20 too far” he seems to be indicating, albeit tentatively, that section 20 does not extend to discrimination by a police officer when responding to a request for the investigation of crime. That, as Mr Nicol points out, was not the approach adopted by the defendants in their application for summary judgment, and in reality when someone in the position of this claimant seeks the services of a police officer there is no sharp distinction to be drawn between on the one hand services of protection, assistance and support afforded to a victim and eye witness, and, on the other hand, the investigation of crime. Certainly, Mr Nicol submits, if such a distinction is to be drawn it should not be drawn at an interlocutory stage, but only at the end of the case in the light of the evidence, and in the light of the arguments which have been advanced. If the response to a request to investigate crime can fall within the ambit of section 20 then, Mr Nicol submits, it would be open to the court at trial to infer that the claimant was seeking investigative services in this case. He answered questions at the scene and thereafter co-operated fully with the police, making statements, attending identification parades, and giving evidence when required to do so.
36. Mr Nicol invited us to adopt a broad purposive approach to section 20, as this court did in relation to another section of the 1976 Act in Jones v Tower Boot Co Ltd [1997] ICR 254. Mr Nicol then went on to submit that for the purposes of section 20 a person can seek services which the person from whom the services are sought is already under an obligation to provide. That was accepted by Mr Garnham QC for the sued officers, so I need not refer to the authorities on which Mr Nicol relied. Indeed Mr Garnham accepted that, as he put it, it would be “technically possible” for an individual police officer to be asked to provide investigatory services by a member of the public, and to respond in a way which would fall foul of section 20 (1)(a) or (b), but Mr Garnham submits that is not this case, even if it is accepted that everything alleged can be proved.
37. Those concessions by Mr Garnham make it, in our judgment, unnecessary to dwell on Mr Nicol’s submission that the Parliamentary purpose which inspired the Race Relations (Amendment) Act 2000 would assist us as to what public policy demands when interpreting the 1976 Act, and similarly there is no reason to consider whether if section 20 of the 1976 Act were to be interpreted so as to exclude any claim of discrimination arising in the course of a police investigation that would violate the European Convention on Human Rights.
38. We turn therefore to the way in which Mr Garnham puts his case, and it amounts to this – nowhere in the unamended Particulars of Claim does the claimant assert that he sought investigatory services from any police officer, and there is no reason why on the facts as pleaded his seeking of such services should be implied, therefore the judge was right to dismiss the case against those officers whose only contact with the claimant was as investigators. As Mr Garnham put it, the police sought the claimant’s assistance in their investigation, and he knew that they were investigating, but they were not doing so as a result of any request made by him, and there must be seeking of services before any liability can arise under section 20. Mr Garnham submits that the claimant’s difficulty cannot be overcome by the proposed amendment to paragraph 22 of the Particulars of Claim because it has never been part of the claimant’s case that he sought investigatory services, and as there are allegations of breach of statutory duty made against individual officers there would have to be requests for services addressed to or at least known to individual defendants before the provisions of section 20 could begin to operate. One cannot refuse to provide or deliberately omit to provide a service to a service-seeker whose request for services is unknown. Mr Garnham invited us to consider the strength of this submission in relation to individual defendants such as the 16^th defendant who escorted the claimant to an identification parade and then made a statement, possibly in response to a request from a senior officer, but not even allegedly in response to any request from the claimant.
39. In his reply in relation to this aspect of the case Mr Nicol submitted that for the purposes of section 20 a person seeking services need not have made his needs known to each person concerned with the provision of those services before they can be found to have contravened paragraph (a) or (b), and in our judgment that is correct. So it is open for the claimant to say that, at least by implication, he sought not only protection, assistance and support, but also investigatory services, and as the belated proposed amendment does not cause any particular prejudice to the defendants we would allow that amendment to be made. That makes it unnecessary to distinguish as the judge sought to distinguish between different types of allegation, but before any step is taken to restore the claim to its original form against all of the officers individually sued other than the 9^th and 10^th defendants we emphasise two things – first that nothing in this judgment should be taken to indicate that investigatory or any other services were in fact sought by the claimant, and, secondly, that the factual allegations as pleaded against many of the individual defendants seem unlikely, even if established, to give rise to a finding of breach of statutory duty. A finding that an individual defendant is in breach of statutory duty is a serious matter, and no court will make such a finding on the basis of, for example, some simple act of discourtesy, even if from the point of view of the victim the act did not stand alone. Serious thought therefore needs to be given as to which, if any, of the claims against individual officers should be pursued, and that is said without reference to the limitation issue to which we now turn.

The Officers’ appeal

40. Plainly the judge was right to hold that all of the claims against the individual officers were out of time, but Mr Garnham contends that he was wrong to exercise the discretion granted to him by section 68(6) of the Act to allow the claims to proceed. As Mr Garnham points out, the time allowed by section 68(2) for the bringing of claims is six months, and these claims, relating to events in 1993 and 1994, were not brought until April 1999, five or six years later. It is not a case where relevant information was unknown to the claimant, or where he did not have the benefit of legal advice at an early stage, and Mr Garnham reminded us that the defendants, like any other litigating party, are entitled under Article 6 of the European Convention to a fair trial, which includes the right to a hearing within a reasonable time. If in fact there is to be a trial it may well not take place until nearly a decade after many of the events to which it relates. That might not matter so much if the factual issues raised by the pleadings were well documented or dramatic, but for the most part they are not. On the night of the crime the focus was naturally on the deceased, but now officers are being required to recall the details of their conduct towards the claimant, - whether they were supportive, what was said, what information was passed on. Of course the ground has been gone over to some extent in the course of the Kent Police and Lawrence Inquiries, but none of that sort of information, we are told, is in any statement, and the officers did not even receive a letter before action. The problems of investigation now are detailed in the statement of Mr Sturzaker, and they serve to illustrate why Parliament considered it right to impose a short time limit for this type of litigation.
41. What then was it that persuaded the judge to exercise his discretion to allow some of these claims to proceed? There were two factors – the health of the claimant and his lack of funds. We have referred earlier in this judgment to the effect of the medical evidence which was before the judge (see paragraph 30 above). The judge said that in the light of that evidence he had to accept “that the claimant was at least partially incapacitated over a substantial period of time”. The judge also had regard to what he described as the realities of the claimant’s ability to sue which only arose with the advent of legal aid after the publication of the Lawrence Inquiry report. As Mr Garnham points out, many claimants are incapacitated, but litigation is conducted effectively by lawyers who act for them, and in justice to the defendants a claimant’s lack of funds cannot as a matter of course be regarded as a satisfactory reason to extend time.
42. But the difficulty which Mr Garnham faces is that the judge did have regard to all relevant factors and, as set out earlier in this judgment, he did recognise that in exercising his discretionary power under section 68(6) he had a balancing exercise to perform. The wording of the statute is such as to indicate that there is a broad discretion, and this court cannot interfere unless satisfied that the way in which the judge exercised his discretion was plainly wrong. In this case we cannot say that his conclusion was plainly wrong.

Effect of our conclusions : Officers.

43. Since the conclusion of the hearing of this appeal we have been helpfully provided with three versions of the Particulars of Claim amended on various hypotheses. Subject to further argument we believe that the effect of the above conclusions is to re-instate paragraphs 6, 7 and 8. Paragraphs 9,10 and 17 remain deleted because they relate to the 9^th, 10^th and 17^th defendants. Paragraph 16 is re-instated, as are paragraphs 21 and 22, subject to amendment to delete references to the 9^th and 10^th defendants. Paragraph 24 remains deleted, whereas paragraphs 25, 27, 28, 31, 33, 42, 43, 45, 47, 48, 51 to 53 and 57 are restored in full. So are the particulars of breach of statutory duty in paragraph 58, subject to deletion of references to the 9^th and 10^th defendants. Paragraph 44 remains partly deleted.

B. The Claim against the Commissioner

The nature of the case

44. The claim against the Commissioner alleges negligence, false imprisonment and misfeasance in public office. We deal first with the claim in negligence, which is set out in paragraphs 59 to 62 of the Particulars of Claim, having noted in passing that Mr Seabrook QC for the Commissioner does not take any limitation point.

The Claim in Negligence

45. In summary what is alleged is that the Commissioner and senior officers under his command owed to the claimant a duty of care which involved a proper non-racist assessment of the claimant as a victim and eye-witness, and an appropriate response. It is said to have been reasonably foreseeable that any breach of that duty would cause significant psychiatric damage, or exacerbate any such damage sustained as a result of the attack on Stephen Lawrence and the claimant himself. The particulars of breach of duty relied upon are the allegations in the earlier paragraphs of the Particulars of Claim made against individual officers, and in addition it is said in paragraphs 62(v) to (vii) that the first defendant failed to devise and implement an effective race awareness programme and to monitor properly its results.
46. In paragraph 62(viii) of the Particulars of Claim it is alleged that the first defendant and those for whom he was vicariously liable “failed to conduct the investigation into the murder of Stephen Lawrence with reasonable diligence, such that the perpetrators of the same remain at large.” Particulars are then given of 26 alleged shortcomings in the investigatory process.

The Judge’s approach

47. In paragraph 21 of his judgment of 12^th February 2001 Judge Butter considered the duty of care allegedly owed by the first defendant to the claimant by reference to the speech of Lord Bridge in Caparo Industries plc v Dickman [1990] 2 AC 605, and accepted, in paragraph 22, that there are three elements to be considered: foreseeability, proximity, and whether it is fair, just and reasonable that the law should impose a duty of care. He dealt first with proximity and, having reviewed the authorities in the arguments, he concluded in paragraph 32 that in this case the judge might reasonably decide that there was a relationship of proximity between the claimant and the police, as represented by the first defendant.
48. The judge, in paragraph 8 of his judgment, had accepted the first defendant’s analysis of the Particulars of Claim as seeking to establish duties in relation to (1) the claimant as victim (2) as a key witness (3) the weight to be afforded to his account (4) the investigation of crime, and (5) racial training. In paragraph 34 of his judgment the judge found the alleged duties to which he had given the numbers (3), (4) and (5) to be “virtually unarguable and with no prospect of success”. Having referred to Hill v Chief Constable of West Yorkshire [1989] AC 53 the judge said that subject to exceptions “the general rule is plain, namely that when investigating or suppressing crime the police are immune from suits of negligence.” The judge had previously considered the submission made on behalf of the claimant that it would not be appropriate to strike out or give summary judgment in an area where the law is developing, but at the end of paragraph 34 he said –

“I can see no factors in the present case, however, which would permit the claimant to contend that the first defendant may be liable to him because of alleged failure to afford sufficient weight to his account and to investigate crime. Similarly, in relation to the training of officers in respect of matters of race, I accept the argument on behalf of the first defendant that the remedy which a claimant may have is governed by the Race Relations Act 1976 and that there is no realistic possibility that a court would hold the Commissioner liable to the claimant in respect of this aspect of the claim.”

49. As to the alleged duties which he had numbered (1) and (2) the judge in paragraph 35 of his judgment found it arguable that “the immunity does not necessarily include every aspect of behaviour by police officers attending the scene of a crime.” It was, he found, “a question of fact and law, not just law, which can only be determined at trial.”
50. The judge then turned to the question of foreseeability and in paragraph 39 he found that the Particulars of Claim do not “reveal any material upon which, in my view, a judge could reasonably decide that the police officers had any awareness of a psychiatric condition.” Having referred to some authorities and the need to be fair to both sides, the judge stated in paragraph 43 –

“On the basis of the factual matters alleged, I do not consider that the claimant has any realistic prospect of establishing that the police officers for whom the first defendant is responsible ought reasonably to have foreseen that the claimant might or would suffer the type of harm alleged as a result of their alleged acts or omissions.”

The Claimant’s Appeal

51. In their submissions to us both Mr Nicol and Mr Seabrook QC for the Commissioner adopted the Caparo approach, but dealt with forseeability first, then proximity, and finally whether it is fair, just and reasonable that a duty should be imposed. We propose to deal with the matter in the same way, whilst recognising that the Caparo approach is not the only way in which to find out whether a duty of care may be owed.(see Parkinson v St James’ Hospital [2001] 3 All ER 97).

Foreseeability

52. The claimant’s case was that he suffered post traumatic stress disorder as a result of the attack on Stephen Lawrence and himself, and his condition was exacerbated by the conduct of the police. The reports of Dr Turner went some way to support that claim, and Mr Nicol, whilst reserving the right to adduce evidence to show that some police officers knew that the claimant was traumatised by the attack, submitted that the judge fell into error because he failed to recognise that it would be sufficient for the claimant to prove that the officers ought reasonably to have known, first that he was in that vulnerable condition, and secondly that inappropriate treatment would be liable to exacerbate it.
53. In our judgment that is the correct approach, and Mr Seabrook, in his oral and written submissions, did not really argue otherwise, but he contended that none of the alleged breaches are such as would give rise to a reasonable foreseeability of physical injury on the basis that, in the absence of evidence to the contrary, the claimant can be taken to be reasonably robust.
54. Two of the three authorities to which the judge referred, namely Glasgow Corporation v Muir [1943] AC 448 and White v Chief Constable of South Yorkshire [1999] 2 AC 455 do not seem to us to be of much assistance in relation to the area in dispute in the present case, but, as the judge recognised, in Waters v Commissioner of Police [2000] 1 WLR 1607 the claimant relied upon the cumulative effect of individual acts, and on the issue of foreseeability a similar approach enhances the claimant’s position in the present case.
55. To our minds foreseeability is not an issue which can be resolved at this stage either way, and certainly on the pleaded case it cannot be said that the claim is bound to fail.

Proximity

56. The judge having resolved the issue of proximity in favour of the claimant Mr Seabrook contends that in any given case proximity must be a matter of fact and degree, as demonstrated by the judge’s example in relation to a rape complainant. Mr Seabrook further submitted, and we would accept, that with a police officer it is only when the circumstances give rise to some particular responsibility that a legally enforceable duty of care can arise, and simple contact in the course of duty cannot be enough. Mr Seabrook went on to submit that the judge failed properly to analyse the five alleged duties which he had identified as pleaded, and that had he done so he would have come to a different conclusion, as this court did in Cowan v Chief Constable of Avon and Somerset [2001] EWCA Ex Civil 1699 where Keene LJ said at paragraph 23 –

“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.”

At paragraph 42 Keene LJ continued –

“I do not accept that the mere presence of 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 the fire in Capital Counties plc v Hampshire County Council. Something more is required.”

57. For the claimant Mr Nicol contended that an assumption of responsibility need not be deliberate, which we accept, and that not much turns on the judge’s five-fold analysis of the duties pleaded. He further contended that Cowan can be distinguished on the basis that it concerned training in relation to harm by others, not by the police.
58. In our judgment for the reason identified by Keene LJ at paragraph 23 in Cowan there is a distinction to be drawn between the alleged duty in relation to racial training and supervision (the judge’s category 5) and the other allegations of breach of duty, and in relation to category 5 there is nothing in the Particulars of Claim to suggest sufficient proximity to give rise to a duty of care. We therefore strike out paragraphs 60 and 62(v) (vi) and (vii) of the Particulars of Claim. Some of the evidence which would have been relevant under those heads may be relevant to prove other allegations against the defendants, but what evidence is relevant to allegations which remain extant will be a matter for the trial judge. We can defer dealing with the judge’s 4^th category of alleged duty (the investigation of crime) until we come to deal with the question of whether it is fair just and reasonable for a duty to be imposed, but as to the remaining categories it seems to us to be arguable that in the present case there was sufficient proximity. The claimant was not just a member of the public encountered by officers in the course of their duties. As the judge said at paragraph 30 of his judgment, adopting the submission made to him by counsel –

“Not only was the claimant a victim and a key witness to an attack and murder but the police were in close company with him for about seven hours. They met and spoke to him at the scene within minutes, they drove him to the hospital and police station and spoke to him at both places and drove him home. Thereafter they kept in regular contact with him. This was no ordinary case...and there was, at least arguably there was, a special relationship between the claimant and the police.”

Fair, Just and Reasonable

59. The conclusion which we have expressed under the heading of proximity in relation to the alleged duty to take steps to ensure that officers did not behave in a racist manner towards members of the public is in essence the same as that expressed by the judge in relation to that alleged duty under this later heading, and, as is well recognised, the Caparo categories do overlap.
60. As to the alleged failures in investigation, the judge founded his conclusion that it would not be fair, just and reasonable to impose a duty on the decision of the House of Lords in Hill where it was said in terms that public policy requires that, for reasons set out by Lord Keith at page 63, when conducting investigations into crime the police are immune from suit. Mr Nicol’s thesis is really that in 2002 the reasons may not all sound as persuasive as they did in 1988, and we should not therefore feel sufficiently confident that this part of the claim will fail to justify striking it out at this stage. He submits that the law is uncertain and developing, so the issue should be allowed to proceed to trial. Mr Seabrook submits that whatever may have happened at the edges, the core of what was said in Hill remains intact and binding, and should be applied now in this case. We were invited to consider a large number of authorities in relation to this aspect of the case, and it is helpful to approach them in chronological order. In Alexandrou v Oxford [1993] 4 All ER 328 it was alleged that the police, having been alerted by a burglar alarm, owed a duty of care to the shop owner and failed to discharge it. At 340j Glidewell LJ said that the observations 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 the case, and he declined to hold it fair or reasonable that the police be under “any such common law duty as is here proposed”.
61. In Ancell v McDermott [1993] 4 All ER 355 the police, knowing of diesel on a road, failed to warn a motorist who skidded. The Court of Appeal, following Hill, declined to find any duty of care. In Elguzouli-Daf v Commssioner of Police [1995] QB 335 the plaintiff complained against the police and the Crown Prosecution Service of tardiness in discontinuing criminal proceedings, and at 348A Steyn LJ said –

“Putting the decision in Hill’s case in perspective I would only add that it does not follow that the police may not be held liable in a case where there is some form of assumption of responsibility by the police.”

He went on to find no such assumption of responsibility in the instant case.

62. In Swinney v Chief Constable of Northumbria [1997] QB 464 the Court of Appeal found it arguable that a special relationship arose between the plaintiffs and the police to preserve the confidentiality of information supplied by an informer. For the Chief Constable it was submitted that the police are immune from liability for negligence in the investigation of crime “at least where the harm to the plaintiff is caused by a third party” and in the present case Mr Nicol draws attention to that qualification. Here the harm is alleged to have been done by the police themselves. In Swinney Hirst LJ at 483H referred to Hill as a decision of “cardinal importance” but declined to accept the concept of a blanket immunity. He pointed out that there is a public policy in encouraging informers and that public policy has to be balanced against the one advanced on behalf of the police. At 484B he said –

“In my judgment public policy in this field must be assessed in the round, which in this case means assessing the applicable considerations advanced in the Hill case which are, of course, of great importance, together with the considerations just mentioned in relation to informers, in order to reach a fair and just decision on public policy.”

Osman v UK [2000] 29 EHRR 245 was decided by the European Court in Strasbourg on 28^th October 1998. The complaint was that the police had failed to prevent Paget-Lewis from shooting dead Ali Osman and seriously wounding the second applicant. The applicants challenged the police immunity to actions in negligence, and at paragraph 138 the court accepted the United Kingdom Government’s contention that “the rule does not automatically doom to failure such a civil action from the outset but in principle allows a domestic court to make a considered assessment on the basis of the arguments before it as to whether a particular case is or is not suitable for the application of the rule.” That, as it seems to us, reflected the position articulated in Swinney. The European Court then went on to emphasise that the Hill rule must be applied in a way which is proportionate, and to reject the government’s argument that, in the instant case, the rule as interpreted by the domestic court did not provide an automatic immunity to the police.

63. The claimant in Costello v Chief Constable of Northumbria [1999] 1 All ER 550 was a woman police officer who was injured by a prisoner in a cell and who was critical of an Inspector who failed to assist her. May LJ at 564g found “a strong public policy consideration to balance those identified in Hill’s case, that is that the law should accord with common sense and public perception”. At 564j he continued –

“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 for 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 pubic in otherwise similar circumstances. The balance of public policy could, depending on the circumstances, then be different.”

It was that paragraph in particular which persuaded Hirst LJ and Sir Christopher Slade to agree that in the quite exceptional circumstances of the case a duty of care did arise.

64. In Barrett v Enfield LBC [1999] 3 WLR 79 the House of Lords was concerned with the liability of a local authority to a child in care, and at 83D Lord Browne-Wilkinson warned against premature decisions to strike out, saying –

“In my speech in the Bedfordshire case [1995] 2 AC 633 at 740-741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff’s claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”

Mr Nicol submits that in the present case we should heed that warning.

65. Arthur J S Hall & Co v Simons [2000] 3 WLR 543 is put before us as an example of an inroad being made into a different type of immunity, that of legal practitioners. At 553F Lord Steyn said –

“There would be benefits to be gained from the ending of the immunity. First, and most importantly, it will bring to an end an anomalous exception to the basic premise that there should be a remedy for a wrong. There is no reason to fear a flood of negligence suits against barristers. The mere doing of his duty to the court by the advocate to the detriment of his client could never be called negligent.”

Mr Nicol submits that here too there should be a remedy for a wrong, and we recognise the force of that, but it remains to be seen whether Lord Steyn’s confidence that there is no reason to fear a flood of negligence suits against barristers is misplaced. The experience of the medical profession does suggest that it may be, and, as Lord Keith recognised in Hill, dealing with unfounded claims is onerous and wasteful of resources.

66. Waters v Commissioner of Police [2000] 4 All ER 934 concerned a claim by a woman police constable that she had been raped and buggered in police residential accommodation when both she and her assailant were off duty. At 939b Lord Slynn said –

“The courts have accepted that the police may not be sued for negligence in respect of their activities in the investigation and suppression of crime.”

That proposition was not challenged, but at 940f Lord Slynn went on to say that neither Hill nor Calveley v Chief Constable of Merseyside [1989] AC 1228 was conclusive against the appellant –

“It is true that one of her complaints is of failure to investigate the assault on her and that if taken alone would not constitute a viable cause of action. But the complaints she makes go much wider than this and she is in any event not suing as a member of the public but as someone in an ‘employment’ relationship with the respondent. Even the failure to investigate is part of her complaint as to that. Entirely different factors to those considered in Hill’s case arise.”

At 940h Lord Slynn addressed the problem of resources saying –

“Here there is a need to investigate the detailed allegations of fact. It has to be accepted of course that this detailed investigation would take time and that police officers would be taken off other duties to prepare the case and give evidence. But this is so whenever proceedings are brought against the police or which involve the police. Sometimes that has to be accepted. Here the allegations of a systematic failure to protect her are complex (and some pruning may be possible, indeed advantageous) that in itself does not make the claims frivolous or vexatious or an abuse of the process of the court.”

At 941a he emphasised the importance of bearing in mind what was said in previous cases, including Barrett “as to the need for caution in striking out on the basis of assumed fact in an area where the law is developing as it is in negligence in relation to public authorities if not specifically in relation to police.” All of the other members of the House agreed with Lord Slynn, but Lord Jauncey at 941g re-affirmed Hill, saying of the instant case –

“The claim falls naturally in two parts, namely (1) that police officers negligently failed to deal with the appellant’s complaint of rape by a fellow officer; and (2) the subsequent treatment of the appellant by fellow officers consequent upon her making the above complaint. I have nothing to add what my noble and learned friend has said about (2). In relation to (1) I consider that the facts relating thereto may be relevant only as a narrative. In Hill v Chief Constable of West Yorkshire this House held that public policy precluded an action for damages in negligence against the police arising out of the manner in which they investigated crime, in that case the activities of a serial killer. I see no reason why this principle should not apply equally when the subject of the investigation is a police officer alleged to have committed, while off duty, an offence against a fellow officer.”

Lord Hutton at 945h said –

“In this case the plaintiff relies on the relationship of quasi-employee and employer which exists between her and the Commissioner as giving rise to his duty of care, and this was a factor absent in Calveley’s and Hill’s cases.”

At 946j Lord Hutton said that if a state of affairs existed as alleged it is in the public interest that it should be brought to light so that steps can be taken to ensure that it does not continue, to protect other police officers and potential recruits, and that is a consideration “which carries significant weight when placed in the scales against the argument that the continuance of the action will place unreasonable and disportionate burdens on the police and distract them from their primary task of combating crime.”

67. On the day that the House of Lords gave judgment in Waters it also gave judgment in Phelps v Hillingdon LBC [2000] 3WLR 776 as to whether local education authorities owed actionable duties of care to children with dyslexia and other special needs in their care. The House found in favour of the claimants, but in our judgment that decision is not of great assistance in relation to the present case.
68. L v Reading BC [2001] 1WLR 1575 concerns complaints made by a mother that the father had sexually abused their young child. It was alleged that inadequate investigation of those complaints by social services and the police led to damaging consequences for both father and child. The Chief Constable applied to strike out the claim against the police. We need not trouble with the question of proximity, which the Court of Appeal resolved in favour of both claimants. As to whether it was fair, just and reasonable to impose a duty of care Otton LJ was much influenced by the decision of the European Court in Osman and by the warning given by Lord Browne-Wilkinson in Barrett, saying that without those decisions he would have found the public policy arguments in favour of so-called immunity to be compelling. In the light of those decisions his conclusion was that “the determination of stage three of the Caparo test must await trial when the balancing exercise can best be carried out of the policy/public interest considerations against those which support the imposition of a duty of care.”
69. The decision in Osman received further consideration from the European Court in Z v UK [2001] 10 BHRC 384 where the applicants were four siblings whose plight had allegedly been brought to the attention of various agencies. They contended that the decision of the House of Lords finding that the local authority owed no duty of care “deprived them of access to court as it was effectively an exclusionary rule, or an immunity from liability, which prevented their claims being decided on the facts.” That was rejected by the European Court, which said at 407G in paragraph 96 of the judgment –

“As Lord Browne-Wilkinson explained in his leading speech, the House of Lords was concerned with the issue whether a novel category of negligence, that is a category of case in which a duty of care had not previously been held to exist, should be developed by the courts in their law-making role under the common law. The House of Lords, after weighing in the balance of the competing considerations of public policy, decided not to extend liability in negligence into a new area. In so doing, it circumscribed the range of liability under tort law.

That decision did end the case, without the actual facts being determined on the evidence. However, if as a matter of law, there was no basis for the claim, the hearing of evidence could have been an expensive and time-consuming process which would not have provided the applicants with any remedy at its conclusion. There is no reason to consider striking out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court. In such a procedure, the plaintiff is generally able to submit to the court the arguments supporting his or her claims on the law and the court will rule on those issues at the conclusion of an adversarial procedure.”

The court then dealt with the complaint of blanket immunity, saying in paragraph 98 –

“It is a principle of convention case law that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law, although other Articles such as those protecting the right to respect for family life (Article 8) and the right to property (Article 1 of the First Protocol to the Convention) may do so. It is not enough to bring Article 6(1) into play that the non-existence of a cause of action under domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm.

Furthermore, it cannot be said that the House of Lords came to its conclusion without a careful balancing of the policy reasons for and against the imposition of liability on the local authority in the circumstances of the applicant’s case. Lord Browne-Wilkinson in his leading judgment in the House of Lords acknowledged that the public policy principle that wrongs should be remedied required very potent counter considerations to be over ridden. He weighed that principle against the other public policy concerns in reaching the conclusion that it was not fair, just or reasonable to impose a duty of care on the local authority in the applicant’s case.”

In paragraph 100 the court returned to Osman saying –

“The court considers that its reasoning in Osman v UK was based on an understanding of the law of negligence which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably by the House of Lords. The court is satisfied that the law of negligence as developed in the domestic courts since the case of Caparo Industries v Dickman and as recently analysed in the case of Barrett v London Borough of Enfield includes the fair, just and reasonable criteria as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity.”

70. In her concurring judgment Arden LJ said at 418b –

“Founding themselves upon the erroneous principle as a matter of domestic law that they had some general right to sue in negligence where the defendant’s act had caused damage and there was sufficient proximity, the applicants sought to argue that the decision of the English courts amounted to a sweeping or blanket immunity. I agree with the conclusion in paragraph 98 of the judgment that the facts of this case do not support that argument. In my view when the courts in England, proceeding incrementally under the common law system of judicial law making hold that a hitherto unconsidered category of harm does not as a matter of law fall within the scope of the tort of negligence, they cannot properly be described as creating an ‘immunity’, whether blanket or limited (see the speech of Lord Browne-Wilkinson in Barrett quoted at paragraph 65 of the judgment in the present case).”

71. In Mullaney v Chief Constable of West Midlands [2001] EWCA Civ 700 it was alleged that fellow officers failed to come to the aid of a probationary police officer who was attempting to effect an arrest, with the result that he sustained injury. At paragraph 43 Clarke LJ said –

“If a police officer tries to protect a fellow police officer from attack but fails to prevent injury he should not generally be liable to that officer in tort, but, as I see it, all will depend upon what, if any, duty is assumed for the safety of the claimant.”

As to the position of the Chief Constable, Clarke LJ said at paragraph 52 that he owed to his officers “the same duties as an employer owes to his employees, subject to such considerations of public policy as arise from the facts of a particular case.” In the result it was held in paragraph 96 that the Chief Constable owed to the claimant “a personal or non-delegable duty to his quasi-employee to take reasonable care to devise and operate a safe system of work, that he was in breach of that duty and that the claimant suffered injury as a result.”

72. We do not derive much assistance from Brindle v Commissioner of Police at any level, so we pass to Cowan v Chief Constable for Avon and Somerset [2001] EWCA Civil 1699, where it was alleged that the Chief Constable failed to prevent an offence being committed, either vicariously because of breaches of duty by officers for whom he was responsible, or directly by failing to provide adequate training for his officers. The case concerned eviction and earlier in this judgment we have cited from it in relation to the allegation of inadequate training. At paragraph 39 Keene LJ cited from, and agreed with, what had been said by May LJ in Costello, and at paragraph 42 in a passage already cited in relation to proximity, Keene LJ rejected the idea that mere presence of officers at the scene could of itself give rise to a duty of care. At paragraph 44 he said –

“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. Their duties are difficult enough without that added complication which would arise when 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 burden 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.”

Robert Walker LJ and Sir Christopher Slade agreed, but Sir Christopher Slade preferred to leave open the question of whether a police officer with actual knowledge of the relevant law in relation to eviction might possibly have been under a duty to warn that it was an offence to evict a tenant.

73. That lengthy survey of the authorities leads us to the conclusion that the question whether it is fair, just and reasonable to hold that a duty of care exists in a particular case depends upon the circumstances of that particular case. All or almost all cases involve a balance between competing considerations. The public interest has many strands, which may often point in different directions. This can perhaps best be seen from the second part of the passage from paragraph 98 of the decision of the European Court of Human Rights in Z v United Kingdom which is quoted above. The considerations of public policy identified by Lord Keith in Hill remain substantially valid, although they must be weighed against other relevant public policy considerations. One of those considerations is the importance in a particular case of the principle that the public policy consideration which has first claim on the law is that wrongs should be remedied and that very potent considerations are required to override that policy (per Lord Browne-Wilkinson, agreeing with Sir Thomas Bingham MR in X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 745, in the passage referred to in paragraph 98 of Z v United Kingdom). In the light of the development of the principles in this area of the law by the House of Lords since Hill, we do not think that it is appropriate to describe the police as having in every case an “immunity from suit” in respect of allegations of negligent investigation of crime. However, in this case, if the claimant’s allegations are established he will not, even if the “immunity” is recognised, be without remedy. That is a factor which, together with the detailed nature of the particulars in paragraph 62(viii) of the Particulars of Claim helps us to decide that when the balance is struck between the considerations identified in Hill and the consideration that wrongs should be remedied it should be struck in favour of the defendant.

Effect of our conclusions: Commissioner.

74. In these circumstances, subject to further argument as to the effect of our decision on the detailed allegations, we delete paragraph 59(iv) and the parts of the particulars which refer to investigation of crime as identified in the third version of the Particulars of Claim referred to above. They are to be found in particulars i, ii and viii under paragraph 62. Particulars iii and iv are, however, restored to reflect the conclusions under section A above. Paragraphs 65 to 67 remain deleted because the claimant has discontinued against the CPS
75. We are willing to hear further argument as to the effect of the above conclusions on paragraph 68. We are inclined to permit the proposed amendments to paragraph 69, subject to further argument. We are also willing to hear further argument with regard to paragraph 71. Paragraphs 72 and 74 remain deleted. Paragraph 73 remains, subject to deletion of the reference to the 17^th defendant.
76. It seems to us to be possible that, in the light of our conclusions under A, some of the particulars pleaded under particular viii to paragraph 62 might properly be pleaded as particulars of allegations of negligence by the officers. We have in mind sub-paragraphs (a), (b), (h), (i), (m), (r) and (s). However, these matters are for further consideration by the parties in the light of the judgment in this appeal, and we very much hope that the fairly detailed decisions which we have indicated (albeit in certain instances on a provisional basis) will be sufficient to obviate the need for further argument.

False Imprisonment

77. The allegation of false imprisonment is founded on the alleged conduct of the 5^th Defendant (see paragraph 20 above). We accept that it is at least arguable that there can be false imprisonment without physical restraint, and that the tort may be established by even a short period of restraint, calling for only a modest award of damages. Mr Seabrook submitted that even the language of the pleading is not coercive and it is certainly not the sort of pleading which suggests that the allegation has much prospect of success, but we cannot share the judge’s conclusion that “the matters in paragraph 30, if established, would not as matter of law entitle the claimant to judgment.” We would therefore set aside the decision of the judge in relation to this limited aspect of the case.

Misfeasance

78. The allegation of misfeasance in public office is not well pleaded and, as Mr Nicol frankly conceded, it really adds nothing to the claimant’s case in negligence. If his claim in negligence cannot succeed, then he cannot succeed under this head either and it constitutes an unnecessary complication which the action would be better without. In accordance with the general principles now to be applied under the Civil Procedures Rules we would therefore strike out paragraph 64 of the Particulars of Claim.

Conclusion

79. We would therefore allow the claimant to proceed against both the 1^st defendant and the 2^nd to 16^th defendants (other than the 9^th and 10^th defendants) to the extent that we have indicated.
Order: Appeals of claimant allowed. Appeal of defendants dismissed. Minute of order to be lodged with court. Permission to appeal was refused. (Order does not form part of the approved judgment)