England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON
CIVIL JUSTICE CENTRE
His Honour Judge Collins CBE
5CL18252

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2007

Lord Justice Jacob (giving the first judgment at the invitation of Arden LJ):
 


1. This second appeal, with the permission of Laws LJ, is by the Commissioner of Police from a decision of HHJ Collins CBE given on February 8^th 2007 in the Central London County Court on appeal from DJ Avent. Although some aspects of the claim against the Commissioner were struck out, others were permitted to go to trial. The Commissioner says the whole claim should have been struck out.
2. It is common ground that we should consider the case on the basis of the Amended Particulars of Claim with some minor modifications as formulated in this Court. So far as relevant, the parts of the claim that were allowed to survive by HHJ Collins read as follows:

1. By virtue of Section 88 of the Police Act 1996 the Defendant is liable for the torts of the police officers acting under his direction and control as set out below.

2. In or around 1993 police officers from the Metropolitan Police Force commenced an investigation into allegations of indecent assault and cruelty made by the Claimant and her sisters Valentina and Florencia against their step-father Phelim O'Neill.

3. On 22^nd April 1993 Mr O'Neill was arrested and interviewed.

4. On or around 20^th May 1993 the police officers investigating the case decided not to proceed against Mr O'Neill. One of the investigating officers (who is believed to be PC George) informed Mr O'Neill's solicitor on the telephone that no further action would be taken.

5. ……

6.

7.

8. The police officers who were conducting the investigations in 1993 … assumed responsibility to the Claimant and her siblings in such a manner as to impose a duty of care to the Claimant upon them in their conduct of the investigation and in taking decisions as to whether the Defendant should be prosecuted.

PARTICULARS

The police officers took the decision not to prosecute Mr O'Neill in 1993 … on the basis that such a prosecution would not be in the best interests of the Claimant and her siblings. The police officers informed the Claimant and her siblings that they had taken the decision for this reason.

9. The manner in which the police officers of the defendant approached the decision not to prosecute Mr O'Neil in 1993 was negligent.

PARTICULARS OF NEGLIGENCE

(i) ….

(ii) ….

(iii) Failing to consult the Claimant and her siblings adequately or at all about whether to pursue the case and/or to give sufficient weight to their views;

(iv) Failing to refer the papers to the Crown Prosecution Service to advise on or to decide whether the case should be pursued;

(v) Wrongly deciding that it was not in the children's best interests to pursue the case."

What we have to decide is whether there is a realistic prospect of success if these allegations are proved.

3. I should mention some further matters. Following a further investigation by the police in 2000 Mr. O'Neill was charged with 2 counts of indecent assault and 1 count of child cruelty in relation to the claimant. But on 3^rd September 2002 the prosecution was stayed as an abuse of process by HHJ Pollock.
4. HHJ Pollock said this about the 1993 decision (taken by the Officers named) not to prosecute or even pass the papers to the Crown Prosecution Service:

"As regards the reasons for the decision taken, Sergeant George told me in evidence that those were mainly to do with the welfare of the children and how a court case could affect them, and also that there was insufficient evidence for a successful prosecution. She told me that the decision not to prosecute was carefully thought out, weighing up all interests. Sergeant Barrell told me that he now has a very vague recollection about the decision not to prosecute. He told me that he only learnt of this case coming back to court on the day that he gave evidence to me. But he said that the decision would have been whether it was in the children's best interests to put the case before a court, taking it as a whole, and at that time they decided it was not. He told me he thought the crime report was wrongly worded and that it should have referred to a prosecution not being in the interests of the witnesses. He told me that he thought there always was a prima facie case."

So there was a difference of recollection about how strong the case was in any event. What was clear is that the perceived probable effect of a court case on the children was at least a major factor in the decision not to go on.

5. Finally I should mention the medical evidence in support of the claim. It is from a Dr Nayani. The doctor says:

"I conclude that had there been a successful prosecution of Mr O'Neill in 1993 (with condign punishment) then this fact alone would have had a material and ameliorating effect on the psychological condition of Ms Vicario now."

The doctor does not opine on what the effect of an unsuccessful prosecution, or less than "condign punishment" would have been.

6. The pleading does not assert that a prosecution would have been successful or that if so condign punishment would have been imposed. It seems to me that at least something like that would be needed, given the medical report. And, to be balanced, the medical evidence ought to have considered what the effect on the claimant of an unsuccessful prosecution would have been.
7. However I put these points on one side to turn to the real question before us. Mr Patrick Roche for the claimant accepts that there could be no claim simply for a negligent failure in 1993 to investigate the allegations properly and that the courts below were right to strike out those aspects of the claim. This is because the police owe no general duty of care in tort to victims of crime to investigate their allegations. So much is established by Hill v Chief Constable of South Yorkshire Police [1989] AC 53, Elguzouli-Daf v Commissioner of Police [1995] QB 335 and Brooks v Commissioner of Police [2005] UKHL 24, [2005] 1 WLR 1495.
8. Mr Roche submits that this case is different because, in deciding not to prosecute, the police took into account the interests of the children. The police thereby, it is submitted, assumed responsibility for the children: this additional factor he submits takes the case outside the general rule.
9. By reason of the concession about the general rule, rightly and properly made, I can take things relatively shortly. Before I do so, however, the general rule and the reasons for it call for consideration. They are most conveniently summarised by Lord Keith in Hill at p.63:

".. there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case [a claim by a father concerning the murder of his daughter, the claim being that the police had negligently failed to investigate and apprehend the murderer earlier], and that is public policy.

..

Potential existence of such liability [i.e. in negligence] may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted."

10. Summarising: the policy reasons are:

a) The supposed liability would not create a higher standard of care;

b) Police investigations might be carried out defensively;

c) Potentially elaborate investigations of fact, policy, discretion and allocation of resources would be involved with the consequent "significant diversion of police manpower and attention from their most important function, that of the suppression of crime";

d) Closed investigations would require to be re-opened.

11. In Elguzouli-Daf the allegations were that but for the negligent failure to proceed with investigations sooner, the plaintiffs would have been released from custody sooner. The Court held that the Crown Prosecution Service owes no duty of care to those whom it prosecutes. Steyn LJ said:

"The need for, or desirability of, a duty of care owed by the C.P.S. to those it is prosecuting must be considered in the context of other protections and remedies offered by the principles on which our democracy is founded."

He went to identify other "protections and remedies", namely the fact that the Attorney-General is answerable to Parliament, the possible though limited scope for judicial review, the tort of malicious prosecution and possible development of the Frankovich principle. Other possible remedies not mentioned by Steyn LJ would be a complaint to the Police Complaints Authority, a private prosecution and, in the case of a victim of crime, a claim to the Criminal Injuries Compensation Authority.

12. Steyn LJ then rejected the proposed duty of care saying at p.349:

"That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the C.P.S. to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The C.P.S. would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the C.P.S. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of C.P.S. lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the C.P.S. is sued in negligence by aggrieved defendants. The C.P.S. would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the C.P.S. and the quality of our criminal justice system."

13. In Brooks the House of Lords held that the police generally owed no duty of care to victims or witnesses in respect of their activities when investigating suspected crimes. Lord Steyn, giving the leading speech, noted that "nowadays a more sceptical approach to the carrying of all public functions is necessary" so that Lord Keith's first reason in Hill should not be regarded as strong now. He then put aside "assumption of responsibility" cases and went on to say:

"[30] But the core principle of Hill's case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill's case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence: see section 29 of the Police Act 1996, read with Schedule 4 as substituted by section 83 of the Police Reform Act 2002; section 17 of the Police (Scotland) Act 1967; Halsbury's Laws of England, 4^th ed reissue (1999), vol 36(1), para 524; The Laws of Scotland, Stair Memorial Encyclopaedia, vol 16, (1995), para 1784; Moylan, Scotland Yard and the Metropolitan Police, (1929), P 34. A retreat from the principle in Hill's case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combating crime.

[31] It is true, of course, that the application of the principle in Hill's case will sometimes leave citizens, who are entitled to feel aggrieved by negligent conduct of the police, without a private law remedy for psychiatric harm. But domestic legal policy, and the Human Rights Act 1998, sometimes compel this result. In Brown v Stott [2003] 1 AC 681, Lord Bingham of Cornhill observed, at p703:

"The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from 'The heart-ache and the thousand natural shocks That flesh is heir to'"."

14. The most important policy reason identified in all the cases are the defensive attitude and the diversion of resources which would stem from imposition of a duty. A key question here is whether that policy reason applies to negate a duty of care.
15. Before I proceed to answer that, I should record parts of the current CPS Code for Prosecutors about the institution of a prosecution.

"1.1 The decision to prosecute an individual is a serious step. Fair and effective prosecution is essential to the maintenance of law and order. Even in a small case a prosecution has serious implications for all involved – victims, witnesses and defendants. The Crown Prosecution Service applies the Code for Crown Prosecutors so that it can make fair and consistent decisions about prosecutions.

5.7 The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution (see section 8 below).

5.8 Crown Prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.

Some common public interest factors against prosecution

5.10 A prosecution is less likely to be needed if:

(f) a prosecution is likely to have a bad effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence;

5.11 Deciding on the public interest is not simply a matter of adding up the number of factors on each side. Crown Prosecutors must decide how important each factor is in the circumstances of each case and go on to make an overall assessment."

16. Now although this Code was not in force in 1993, Mr Roche accepted that its general principles would have applied. Under the Code the effect on a victim of a prosecution is something to be taken into account, once the threshold of a "realistic prospect of conviction" is passed.
17. If that be right, I confess I fail to see how these Particulars of Claim actually disclose a cause of action, even supposing there is a duty of care in play. It is not enough to plead the matters identified in paragraph 8. What would have to be pleaded is that no reasonable prosecutor (whether police or CPS) would have failed to prosecute. I do not see how that could responsibly be pleaded.
18. But suppose it were, would the claimant still find herself defeated by the absence of a duty of care? I think so for the simplest of reasons, that identified by Lord Steyn as "the core principle" of Hill's case. If there is such a duty as that proposed, then the police and CPS would be forced into a defensive position. Any decision not to prosecute on the grounds that to do so would not be in the victim's interest would have to be justifiable. In every potential such case it seems to me that medical advice would have to be obtained. Doctors would have to be asked "what would the effect of non-prosecution be?" That would not be enough, for the further question "what would the effect of a failed prosecution be?" would then arise. Resources would be diverted, decisions would be delayed. The public interest identified by Lords Keith and Stein stands in the way.
19. I do not overlook the fact that one way the claim is put is that the claimant should have been consulted about the decision. But if that is right it is not because a duty of care is owed which gives rise to that alleged duty. It is because proper prosecutorial practice, which operates in the public interest, requires it. The objections to that being an aspect of a duty of care sounding in damages are the same as those excluding a duty of care in relation to other aspects of the prosecution process. Furthermore, there are two additional answers to the point. First the attitude of the claimant cannot be determinative – victims of crime may indeed want a prosecution without really understanding what the process involves and what the risks of failure might be. The second is confined to this case. Although the claimant was 19 at the time, her siblings were younger. The effect on each of them had to be considered. The younger the victim is, the more difficult it would be for him or her to decide rationally whether he or she wanted the prosecution to go ahead.
20. It is also the case that other remedies, probably not as good, are or were available. I do not consider that an overwhelming factor, but they do support the absence of a duty of care. For instance here we were told that the claimant has a claim with the CICA – one that is awaiting the result of this appeal. She may get some financial compensation from that, albeit not as large as this claim might bring in. She had the remedies of judicial review of the decision not to prosecute and a private prosecution (none of the offences required the consent of the DPP). She did not know of them at the time, but I do not see how that can make any difference to the policy question: duty of care or not?
21. Similarly the "re-open closed cases" point supports the absence of a duty of care. For if the trial went ahead, Mr O'Neill, whether he attended or not, would have his innocence or guilt tested in a civil court. That is a factor, not conclusive in itself, pointing away from a duty of care.
22. I accept Mr Roche's submission about both of these latter points – that they are not conclusive and that there are cases where the existence of alternative remedies or the re-opening of closed matters would not preclude a duty of care. The points do, however, support the conclusion which I have reached above. That conclusion is that public interest is a complete answer to the claim.
23. I should however go on to consider the alternative way it is put, namely on assumption of responsibility. The suggestion is that the police assumed a responsibility to Ms Vicario when they took her interests into account. This, submitted Mr Roche, gave rise to a duty of care (or arguably did so).
24. Clearly there can be cases where the police assume responsibility to a party. Two examples of this were cited, Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692 and Swinney v Chief Constable of Northumbria Police [1997] QB 464.
25. In Welsh the plaintiff had been arrested pursuant to a magistrates' court warrant and held in custody He had failed to appear when due to appear on charges of theft. Unknown to that court, at an earlier Crown Court hearing relating to other offences, he had pleaded guilty and asked the Crown Court, when sentencing, to take into account other offences. These included the one with which he was charged before the magistrates' court. It had been agreed by the CPS with his lawyers that the CPS would inform the magistrates' court of this and that the plaintiff need not appear. This did not happen by reason of the negligence of the CPS solicitor. The plaintiff succeeded because there was an assumption of responsibility to him and reliance by him on that. Tudor-Evans J said at p.702:

"Apart from Mr Goff's other submissions on proximity, the question of proximity is raised by the plaintiff as arising from fact (vii), that is that the 'solicitor for Ormskirk' approved of the offences being taken into consideration and, by reasonable inference, he agreed to note the file. The plaintiff relies in this context on Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 at 250, [1990] 2 QB 283 at 289, where Lloyd LJ said:

'The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility.'

In my view the solicitor for Ormskirk assumed responsibility towards the plaintiff on the basis of fact (vii) or at least it is highly arguable that he did. Moreover, the assumed facts show that the plaintiff was relying on that responsibility. He did not expect to have to answer to his bail."

26. In Swinney informers' names and addresses were alleged to have been negligently left in a police car from which they were stolen. A strike-out of the informers' claim in negligence was refused because the informers had relied upon the police to protect their identity. The informers had particularly requested confidentiality. Hirst LJ said (p.478):

"However, in my judgment, Mr. Powell is right in his ably presented submissions that at least arguably this case falls into the Dorset Yacht category rather than the Hill category on proximity. I have in mind all the relevant paragraphs of the statement of claim, but particularly the references in paragraph 6 to confidentiality, and the facts cited in paragraph 8 to show that the plaintiffs were particularly at risk. It seems to me that these aspects are vividly and perhaps compellingly demonstrated by the texts of the two messages, with their repeated references to the need for confidence. This seems to me to show that it is at least arguable that a special relationship did exist, which renders the plaintiffs distinguishable from the general public as being particularly at risk."

Peter Gibson LJ said (p.485):

"… it seems to me properly arguable that an informant, giving in confidence sensitive information to the police, is in a special relationship to the police, that relationship being based on an assumption of responsibility towards the informant by the police, such that when through the negligence of the police that information is disclosed to criminals, it can result in a valid claim by the informant in respect of consequent damage to the informant."

Ward LJ was to the same effect at p.486. The Court also rejected reliance on public interest – and did so in fairly short order.

27. The particular problem which Mr Roche faces is that there are two elements to a case based on an assumption of responsibility. The first is the assumption itself. The second is reliance by the claimant on that assumption. That second element is a key part. That it is a vital part is apparent from the passages from Hedley Byrne v Heller [1964] AC 465 set out in the speech of Lord Goff of Chieveley in Henderson v Merrett Syndicates [1995] 2 AC 145 at 178-179. No such reliance is pleaded in the present case; nor would it seem to be pleadable.
28. Because there is no claim of reliance in the present case, Mr Roche was driven to submit that Tudor-Evans J in Welsh and Lloyd LJ in Kirkham unnecessarily referred to reliance upon the assumption of responsibility. And his argument implicitly also involves that each member of the Court of Appeal in Swinney unnecessarily referred to the duty of confidence owed to the informer. The passages from Hedley Byrne v Heller make it clear that that submission is wrong.
29. Mr Roche's argument also runs into Capital & Counties v Hampshire County Council [1997] QB 1004. This was a claim by various property owners against fire brigades claiming that the brigades concerned had negligently failed to protect their property. It was held that the fire brigades owed no duty of care to ensure that a property owner's premises were not affected by fire. One way the case for the property owners was put was that it was sufficient to create a proximity for the purposes of the tort of negligence where (per Stuart-Smith LJ giving the judgment of the court):

"someone of special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, and there is direct and substantial reliance by the plaintiffs on the defendant's skill."

30. The submission was rejected. Stuart-Smith LJ said at p.1034:

"We turn now to consider the second submission made on behalf of all the plaintiffs that the requisite proximity exists. It involves the concept of assumption of responsibility by the fire brigade and particular reliance by the owner. As a general rule a sufficient relationship of proximity will exist when someone possessed of special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by the plaintiff on the defendant's skill: see Hedley Byrne v. Heller [1964] AC 465 and Henderson v. Merrett Syndicates [1995] 2 AC 145."

31. The Court went on to examine examples of cases where there had been reliance, including Welsh with obvious approval. It rejected the notion that there was:

"a sufficiently close relationship of proximity to give rise to a duty of care."

in the cases concerned. It went on to say:

"In our judgment a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending a the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the fire fighting operation."

In all the cases considered in Capital and Counties where there it was held that there was a duty of care, it arose by reason of assumption of responsibility and reliance by the plaintiff on that. This case again demonstrates why Mr Roche's submission fails.

32. Mr Roche's best authority to support a duty of care was L v Reading Borough Council [2001] 1 WLR 1575. A mother (falsely as it turned out) alleged that the father had sexually abused their child. The father was arrested but not prosecuted. However the police passed the purported results of interviews to the local authority which led to extensive private law proceedings. The father and child sued the local authority and the police in negligence. This court held that there was arguably a duty of care to both child and father.
33. As regards the child, Otton LJ said:

"I accept the claimant's argument and that there is an arguable case that there was an assumption of responsibility and a special relationship such as to take it out of the usual situation of interviewing a potential victim of crime, and that the police were not solely performing a function for the benefit of the public. Part of their responsibility included making inquiries to protect her from future harm which might ensue from the manner in which the investigation was carried out and by progressing the matter so that there was a real risk of interference with family life."

34. As regards the father he said:

"It is not necessary for this court to decide that there was, in fact, proximity but merely whether it can be argued with a reasonable prospect of success that a situation of proximity did arise. It is true that the father was a suspect in a potential crime. He was interviewed as such. I would accept that at that stage there was no assumption of responsibility towards him as a suspect and that in that respect the relationship between WPC Grey and the father was one of conflict or potential conflict. However the matter did not end there. Although there was no evidence to support criminal proceedings WPC Grey nevertheless came to the conclusion that the complaint by L's mother was of sufficient substance that L was at risk of further abuse from her father. It is arguable, in my judgment, that from then on there was a legal assumption of responsibility and a special relationship between WPC Grey and the social worker on the one hand and the father on the other, and that a duty of care arose to take reasonable steps not to damage the father by their subsequent conduct."

35. In the case of neither child nor father was there any particular act demonstrating reliance on the supposed assumption of responsibility. So, submitted Mr Roche, such reliance was not necessary.
36. Mr Beer submitted that L was, in the light of Brooks, a broken reed and was in any event distinguishable. He pointed out that it was decided shortly after the Strasbourg decision in Osman v UK 23452/94 [1998] ECHR 101 [1999] 1 FLR 1, and clearly was influenced by it (see the reference to Art. 8). As is well-known, the further Strasbourg decision in Z v UK 29392/95 [2001] ECHR 333 has made it clear that Osman does not alter the substantive law of negligence. Mr Beer told us that when L was cited to the House of Lords in argument in Brooks it was brushed aside (he was there as counsel) and indeed the report does not mention its citation at all.
37. I do not think these matters entitle us to say L was wrongly decided. But they do mean that we should not extend its reasoning beyond the narrow confines of its facts and facts closely resembling those. What makes L different markedly from this case is that the police officers there themselves caused damage to the plaintiff by the way they conducted the interviews – there was damaging, incompetent and misleading conduct of these - and by their subsequent misrepresentation of the results which led to the damaging civil proceedings. Moreover there was a duty to prevent future harm to the child – an allegation not made here by the claimant who, in 1993, was beyond that possibility.
38. Accordingly I think the decision in L does not require us to hold that the general rule for a duty of care in assumption of responsibility cases - that there should be reliance upon that assumption by the supposed victim of the tort – is inapplicable here.
39. I also think that the approach indicated in Caparo v Dickman [1990] 2 AC 605 leads to the same conclusion I have reached on both the public policy and assumption of responsibility points. Lord Bridge articulated the well-known general test at p.617:

"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 a body 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 to the benefit of the other."

40. The duty must be "reasonable" I do not think that a duty which requires prosecutors, who have to have regard to the wider public interest and the interests of victims (which may not coincide with the public interest or the interests of other victims) and all other relevant circumstances, could be fairly called "reasonable" if, when they try to take into account the interests of the victim, they can be sued in negligence. They would or might find themselves weighing the private interests of the victim with their general public duties. And the conflict could be the other way round. Take a case where a victim positively does not want a prosecution but the authorities decide to prosecute nonetheless. Could the victim complain? The answer is obviously no.
41. There is another aspect of Caparo which is relevant here. Approval was given to the "incremental" approach of Brennan J in Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1 at 43-44. That is to the effect that "novel categories of negligence should only be recognised incrementally and by analogy with established categories." The same must apply the other way round: it will be particularly difficult to establish a duty of care in a situation closely analogous to one where the law has already denied the existence of such a duty. The duty of care propounded here is only incrementally different from those denied in Hill, Elguzouli-Daf and Brooks. Far from there being a compelling reason to come to a different answer here, there is every reason to come to the same – the same essential public policy underlying those decisions applies here too.
42. Mr Roche naturally prayed in aid the well-known warnings sometimes given against striking out claims where there is a developing area of law. He pointed by way of example (there are similar passages in other cases) to what Lord Browne-Wilkinson said in Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557:

"Striking Out

In my speech in the Bedfordshire case [1995] 2 AC 633, 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."

43. Mr Roche submitted that at least until there had been disclosure and possibly until there had been cross-examination at trial it would be wrong to decide there was no duty of care. In the course of argument Arden LJ asked him what he would put on a wish list of things to help establish such a duty, things which might turn up on the way to or at trial. He suggested a discussion between the police and social services the effect of which was to show that he police regarded themselves as unofficial welfare officers for the victims. I do not see that, supposing it had been so, would add anything. As prosecutors (or providers of information to prosecutors) the police were, it is accepted, entitled to take into account the interests of the victims. Such a scenario would amount to no more than that. It would not change the public policy reason for denying a duty of care in the circumstances of this case. So I think the answer is, in Lord Brown-Wilkinson's word "certain."
44. I would only add that the history of the tort of negligence shows that Lord Brown-Wilkinson's words of caution should not be regarded as too prescriptive. After all many important authorities on the topic, and especially about whether or not there was a duty of care, have been decided in strike out or preliminary point circumstances. Mr Beer provided a list, obviously not comprehensive (it is an in interesting game to think of others), of House of Lords cases so decided:

Donoghue v Stevenson [1932] AC 562

Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465

Dorset Yacht Company v Home Office [1970] AC 1004

Anns v Merton London Borough Council [1978] AC 728

Hill v Chief Constable of West Yorkshire Police [1989] AC 53

Calveley v Chief Constable of Mersey [1989] AC 1228

Caparo Industries v Dickman [1990] 2 AC 605

X v Bedfordshire County Council [1995] 2 AC 633

Marc Rich & Co AG v Bishop Rock Marine Co [1995] AC 211

Arthur JS Hall & Co v Simons [2002] 1 AC 615

D v East Berkshire Community NHS Trust [2005] 2 AC 373

Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495

45. One cannot imagine what our current law of negligence would look like without these cases, all decided without a trial. Standing above all is Donoghue v Stevenson. Not only was it decided on the Scottish equivalent of what the English used to call a demurrer, but no one knows whether there ever was a snail in the bottle (see (1955) 71 LQR at pp. 167 and 472). It is perhaps noteworthy that the learned editor (Professor Goodhart – I assume it was him, the note is unattributed) said in the first of the notes:

"The fact that there was no trial is of some importance as the popular understanding that there was no snail in the bottle has tended to bring the procedure concerning the hearing of a preliminary point of law into comparative dispute. It may be emphasised that that procedure is a highly desirable one if a point of law will prove decisive, especially in a case which might give rise to a lengthy trial concerning disputed questions of fact."

46. The Judge's reason for allowing the claim to go on was that "a further examination of the facts and the reasoning behind the 1993 decision might lead to a conclusion that the circumstances of the taking of the 1993 decision gave rise to a limited duty of care." With respect I disagree. Quite what he meant by a "limited duty of care" I am not sure. I am sure that even a "limited" duty of care would or could affect how decisions to investigate or prosecute crime were made and that there would be a real risk of a defensive attitude detrimentally influencing the main job of the police – preventing and detecting crime.
47. So I would allow this appeal and strike out the claim altogether. That would make the Commissioner's appeal about costs redundant.

Mr Justice Mann:

48. I agree.

Lady Justice Arden:

49. I also agree.