England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		22nd April 2008

1. MR JUSTICE MACDUFF: In 2007 the claimant, Caroline Reilly, commenced proceedings against the defendant. The claim form pleaded breaches of duty of care and negligence. There were in fact two Particulars of Claim, which His Honour Judge Collins named "Particulars of Claim A" and "Particulars of Claim B". Particulars of Claim A ran from paragraph 1 to 56 and Particulars of Claim B from 1 to 76. The defendant applied to strike out these claims and the strike-out application came before His Honour Judge Collins at the Central London County Court on 31^st August 2007. He struck out the whole of B and a substantial part of A, but he refused to strike out paragraphs 1 to 29 of Particulars of Claim A. I note in parentheses that these were home-made Particulars of Claim by Miss Reilly, then a litigant in person. She is, however, represented before me.
2. It is against that refusal to strike out paragraphs 1 to 29 that the appellant defendant, the Commissioner of Police for the Metropolis, appeals. It is the appellant's case that the claim is unsustainable in law and that it should have been struck out.
3. The judge summarised the claim and that part of the claim which he retained. The remaining non struck-out part of the claim can be summarised in this way.
4. The claimant had made many complaints to the police, principally at Ilford, about harassment by a man called Peter Webb, a man with a criminal record and a drug habit. She frequently had to wait for a long time before the police arrived, if they arrived at all. They did not take her complaints seriously. She was frequently told to stay at the premises until a police officer arrived, but on occasions no police officer did arrive. Nothing was done by the police either to arrest and prosecute Mr Webb, or to prevent his continued campaign of harassment against her, causing distress, anxiety and possible injury.
5. Judge Collins summarised it very briefly in his judgment thus:

"Miss Reilly, who has addressed me very courteously and sympathetically, was the victim for a significant period of time of harassment by a man named Webb. She gives details of his extremely unpleasant conduct over a period of time, particularly when he was a tenant in her accommodation. There is no doubt that on the basis of these allegations, which I accept for the purpose of this application, Mr Webb committed a number of criminal offences which made Miss Reilly's life particularly unpleasant and uncomfortable. She complained to the police about Mr Webb's conduct. Essentially her complaint in paragraphs 1 to 29 is that, for whatever reason, because they were incompetent, whether they were just not interested, whether they were overworked, whether they made mistakes or whatever, the police, in particular various named officers of the Commissioner, failed to exercise proper care and diligence in investigating her claim that she had been the victim of crime. She maintains that if it had been done properly Mr Webb could have been stopped and she could have been saved a great deal of trauma."

6. I interpolate that Judge Collins was absolutely right, for the purpose of the application, to make the assumption that the allegations made by the claimant respondent would be proved.
7. Having summarised that part of the claim Judge Collins looked at the other allegations and struck those out – the remainder of Particulars of Claim A and the whole of Particulars of Claim B. I need not consider those parts of his judgment which are not under appeal.
8. In the course of his judgment the judge reviewed the most relevant of the case law and it is clear that the two leading cases in this area of law are Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 and Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495. Those are both House of Lords' decisions and the thrust of those decisions is that there is generally no duty owed by the police to members of the general public in negligence to apprehend criminals or to detect crime. However incompetently they act, however unreasonable their behaviour, however their duties are performed in breach of those rules which could be described as "negligent", they are not actionable at the suit of members of the general public. However, there are exceptions to that general principle. Lord Steyn in Brooks¸ the more recent case, left open the possibility that there would be cases of outrageous negligence by the police which would fall beyond the reach of the Hill principle. He went on to say:

"It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise. But such exceptional cases on the margins of the principle in Hill's case will have to be considered and determined if and when they occur."

9. This had been also a part of the Hill decision itself. That, of course, was a notorious case where it had been alleged that the West Yorkshire Police had acted negligently in their failure to detect and arrest a man who, at the relevant time, was known as the Yorkshire Ripper and who had gone on an orgy of murder of young women. The headnote in Hill, so far as important, reads as follows:

"…nor did they [the police] owe a duty of care to individual members of the public who might suffer injury through the criminal's activities"

I emphasise the next words:

"save where their failure to apprehend him had created an exceptional added risk, different in incidence from the general risk to the public at large from criminal activities, so as to establish sufficient proximity of relationship between the police officers and the victims of the crime…

Note the use of the word "proximity", because in the case of Hill the claimant could not be said to meet the text of proximity which of course forms an important part of the ratio in the well-known case of Caparo. The claimant in Hill was the personal representative of a murder victim of the Yorkshire Ripper who had been a member of the general public. She was not a complainant to the police. She was not somebody who had placed herself in the hands of the police. She was not a witness. She was an ordinary member of the public who, because of the delay in detection and arrest, had the misfortune to be murdered. So proximity was an important factor, but it was recognised, both in Hill and Brooks, as I have been at pains to point out, that there were exceptions to what might be called a general immunity.

10. It is clear that Judge Collins had these principles in mind when he made his findings in paragraphs 13 and 14 of his judgment. Again I read from the judgment:

"Miss Reilly says that in relation to Mr Webb the police's failure to apprehend him had created an exceptional added risk different in incidence from the general risk to the public at large from criminal activities so as to establish sufficient proximity of relationship between the police officers and her."

He went on to hold that:

"She has an arguable case in law. Whether she succeeds on the facts being another matter entirely in relation to paragraphs 1 to 29 of Particulars of Claim A I could not assume that there are no reasonable grounds for bringing the claim. So I am going to strike out everything except paragraphs 1 to 29 of Particulars of Claim A."

11. A difference emerges from the Hill principle. Miss Reilly had not only created a degree of proximity by making a complaint to the police by asserting that criminal acts had been committed for which an arrest could be made and by asserting that the harassment and the criminal acts threatened to continue, but also by naming the person whom she wished to have arrested.
12. However, the appellant contends that His Honour Judge Collins was wrong to reach that conclusion. It is submitted that the overriding test, as set out in Hill and Brooks, is that public policy demands that in the sort of case of which this forms a part there is in effect a blanket immunity. The assertion made on behalf of the appellant, both here and below, is that there is no duty of care owed in these circumstances and that this is a virtual blanket immunity based upon policy grounds. Those policy grounds are set out very clearly in the House of Lords in the case of Brooks. Lord Steyn said this:

"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."

13. There is no doubt that that statement of the law creates a very substantial stumbling block for Miss Reilly's case. It has been conceded on her behalf that this is a case which is fraught with difficulty. The question is not whether it is fraught with difficulty but whether it is doomed to failure, and that is the difference between the parties on this appeal. Brooks was a case where the court had to have its mind very much on decisions which had come from the European Court of Human Rights – the well-known Osman case, but, perhaps more particularly, the case of Z v United Kingdom [2001] 2 FLR 642. In the light of those decisions the House in Brooks expressly held that not everything that had been said over a decade earlier in the case of Hill could stand. The principle remained intact, though it would need to be reformulated. It was put in this way by Lord Steyn at page 1509:

"More fundamentally since the decision of the European Court of Human Rights in  Z v United Kingdom, it would be best for the principle in  Hill's  case to be reformulated in terms of the absence of a duty of care rather than a blanket immunity."

But the core principle was to stand, and it was at that point that Lord Steyn said – I repeat that which I inserted into this judgment earlier – that it would be unwise to try to predict accurately what unusual cases might arise.

14. Lord Nicholls had recognised the same possible exception and put it in a different way:

"There may be exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law. Then the decision in Hill's case should not stand in the way of granting an appropriate remedy."

A case which, it seems to me, fell within that principle came before the courts more recently. That is the case of Van Colle v Chief Constable of the Hertfordshire Police. That case was not brought in negligence but was directly pleaded as a breach of Convention rights and principally article 2, the right to life, though also article 8. The case came before Cox J, whose decision was upheld in the Court of Appeal with a slight modification on damages. The learned judge not only held that there had been a violation of articles 2 and 8 but also, in the course of her judgment, she carried out a comparative analysis of the position under article 2 with that at common law negligence. She concluded that she was not persuaded "that the decisions in Hill and Brooks would have led inevitably to a claim brought by these Claimants in negligence being dismissed on the basis that there was no duty of care owed…by the police." Had Van Colle been brought against the Chief Constable of Hertfordshire in negligence, it would have been Cox J's view that that claim would have succeeded notwithstanding the cases of Hill and Brooks. It would not only have been her conclusion but it would have been my conclusion also, and one with which the Court of Appeal concurred. The judge was correct to hold that the police were under a duty to take preventive measures in relation to the victim and that they were in breach of duty and therefore acted incompatibly with his right to life under article 2 of the Convention.

15. That principle was carried forward into Smith v Chief Constable of Sussex, reported earlier this year. The Court of Appeal held that a claim in negligence against the police should not be struck out where they had allegedly been told of death threats but had not taken the necessary steps to avoid injury to the victim. Sedley LJ pointed out that Hill laid down the perimeter of public policy and that the European Court of Human Rights had concluded that, insofar as Hill purported to afford the police a comprehensive immunity of suit, that was not compatible with the Convention where the right to life was under threat.
16. It seems to me that potentially the Hill principle of lack of duty of care (as it has been reformulated in Brooks) is clearly subject to certain exceptions. It may be subject to exceptions where the police have assumed responsibility, bringing it within the Dorset Yacht v Home Office principles. Examples might be undertakings concerned with witness protection or undertakings and agreements with informants. Another exception (if Lord Steyn will forgive me for being so unwise as to try and imagine one) would be a sting which might be set up to catch a criminal in a blackmail or abduction case. Sufficient proximity can and may give rise to an arguable duty of care, i.e. to someone who enjoys greater proximity than an unidentified member of the general public. This will not necessarily defeat the public policy argument – see Osman v Ferguson – but it would justify possibly a trial of the issue. It should not be the role of a judge at first instance on a summary judgment application to decide where there is an arguable case on proximity that the public policy issue would necessarily defeat the argument re proximity. Of course, the Van Colle case and the Smith case involved threats of murder and engaged article 2. Miss Reilly's case does not engage article 2, and I am quite satisfied that the potential engagement of article 8 is not of great assistance to the court in this matter, article 8 not creating absolute obligations. And I have reached the conclusion that the very likely result of a trial in this case would be a judgment for the defendant. When one weighs the police arguments against the proximity arguments and the risk of harm that was being disclosed by the claimant, as well as the finding that a judge is likely to make that her complaints were so frequent and based upon, for example, her suggestion that she had extra-sensory perception, the public policy argument would outweigh any other argument.
17. Where Judge Collins was right was this. She had gone to the police. She had identified criminal acts. She had requested some protection, and there were relatively straightforward and easy ways in which that protection could have been afforded. This, of course, assumes that the facts are so found.
18. On the authorities, having regard to, in particular, Sedley LJ's comments and Cox J's comments, I have reached the conclusion that Judge Collins was right to allow this case to go to trial. I suspect he was also right in thinking that the likelihood is that there will be a very high hurdle for her to overcome, but the argument in relation to proximity on the one hand and public policy on the other hand requires mature consideration on the facts of the case at a trial. Having considered this carefully and confessing to having found it a difficult matter to determine, I have reached the conclusion that this appeal should fail and that this is a case which should properly go to trial.

Perfected as above on 19th September 2008

Alistair MacDuff