(back to preceding text)

    20.  In Calveley and Others v Chief Constable of Merseyside Police [1989] AC 1228 police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings had been negligently conducted. The decision in Hill was cited to the House. Giving the opinion of a unanimous House, Lord Bridge of Harwich observed [at 1238D-H]:

"It is, I accept, foreseeable that in these situations the suspect may be put to expense, or may conceivably suffer some other economic loss, which might have been avoided had a more careful investigation established his innocence at some earlier stage. However, any suggestion that there should be liability in negligence in such circumstances runs up against the formidable obstacles in the way of liability in negligence for purely economic loss. Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.

If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect, it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position."

This was clearly an application of the second ground of the decision in Hill.

    21.  In addition, the principle enunciated in Hill has been applied in a number of Court of Appeal decisions: Alexandrou v Oxford [1993] 4 All ER 328, 340J; Ancell v McDermott [1993] 4 All ER 355, at 365G-H. Osman v Ferguson [1993] 4 All ER 344; Cowan v Chief Constable for Avon and Somerset Constabulary (2002) HLR 830, para 44.

    22.  Acknowledging that Elguzouli-Daf v Commissioner of Police [1995] QB 335 is a different case altogether, counsel for the Commissioner relied on it by analogy. The two appeals before the Court of Appeal in that case raised the question of law whether the Crown Prosecution Service owed a duty of care to those whom it was prosecuting. Relying in large measure on the reasoning in Hill the Court of Appeal held that there was no such duty. The court held that different considerations arise in cases where the police had by conduct assumed a responsibility. Although not expressly mentioned in the judgments this was clearly a reference to the principle in Hedley Byrne & Co. Ltd v Heller and Partners Limited [1964] AC 465. In my judgment I said [349C-350C]:

"That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the CPS 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 CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS 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 as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime functions of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the CPS is sued in negligence by aggrieved defendants. The CPS 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 CPS and the quality of our criminal justice system.

While Mr Richards, who appeared for the CPS, disputed that even the element of foreseeability of harm is established, I would be prepared to accept that the plaintiffs can satisfy this requirement. For my part the matter turns on a combination of the element of proximity and the question of whether it is fair, just and reasonable that the law should impose a duty of care. It does not seem to me that these considerations can sensibly be considered separately in this case: inevitably they shade into each other.

Recognising that individualised justice to private individuals, or trading companies, who are aggrieved by careless decisions of CPS lawyers, militates in favour of the recognition of a duty of care, I conclude that there are compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualised justice. I would rule that there is no duty of care owed by the CPS to those it prosecutes."

. . .

I have rested my judgment on the absence of a duty of care on the part of the CPS. If my conclusion is wrong, I would for the reasons I have given in dealing with the question whether a duty of care exists rule that the CPS is immune from liability in negligence."

Rose LJ agreed and Morritt LJ agreed in a short concurring judgment.

    23.  Shortly after the decision in Elguzouli-Daf the same issue came before a differently constituted Court of Appeal (Butler-Sloss and Millett LJJ and Sir Ralph Gibson): Kumar v Commissioner of Police of the Metropolis (unreported) 31 January 1995. Again, the case involved a strike out application. The thrust of the case was that in instituting and continuing a patently hopeless prosecution for rape, based only on the evidence of a woman who had made repeated false allegations of rape, the police acted in breach of a duty of care. Following Hill and Elguzouli-Daf, a unanimous Court of Appeal upheld the order of the deputy High Court judge to strike out the pleading. Giving the principal judgment Sir Ralph Gibson observed in a detailed review:

"In my judgment, for similar reasons [to those given in Elguzouli-Daf], the interests of the whole community are better served by not imposing a duty of care upon the police officers in their decisions whether or not to place sufficient reliance upon the account of a complainant to justify the making of a charge against an accused."

    24.  Counsel for Mr Brooks candidly accepted that he was arguing for a new development. In that context he pointed out that Hill has not been followed in Canada: Doe v Board of Commissioners of Police for Metropolitan Toronto (1989) 58 DLR (4th) 396; Jane Doe v Board of Commissioners of Police for Municipality of Metropolitan Toronto (1990) 72 DLR (4th) 580, 585; Jane Doe v Board of Commissioners of Police for Municipality of Metropolitan Toronto (1998) 160 DLR (4th) 697; Odhavji Estate v Woodhouse and others [2003] 3 SCR 263.

    25.  Similarly, in South Africa the Constitutional Court did not follow Hill: Carmichele v Minister of Safety and Security (2001) 12 BHRC 60; see also Hamilton v Minister of Safety and Security 2003 (7) BCLR 723 (C). On the other hand, the decision of the Australian High Court in Sullivan v Moody [2002] LRC 251 is generally speaking consistent with Hill: paras 57 and 60. That is so despite the fact that the three-stage approach in Caparo is not part of the law of Australia.

    26.  This tour d'horizon was interesting. But one must not lose sight of the fact that Hill has not been challenged in this appeal. In any event, ultimately the principle in Hill must be judged in the light of our legal policy and our bill of rights.

    27.  Since the decision in Hill there have been developments which affect the reasoning of that decision in part. In Hill the House relied on the barrister's immunity enunciated in Rondel v Worsley [1969] 1 AC 191. That immunity no longer exists: Arthur J S Hall & Co (A Firm) v Simons [2002] 1 AC 615. More fundamentally since the decision of the European Court of Human Rights in Z and others v United Kingdom 34 EHRR 97, para 100, it would be best for the principle in Hill to be reformulated in terms of the absence of a duty of care rather than a blanket immunity.

    28.  With hindsight not every observation in Hill can now be supported. Lord Keith of Kinkel observed that "From time to time [the police] 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": 63D. Nowadays, a more sceptical approach to the carrying out of all public functions is necessary.

    29.  Counsel for the Commissioner concedes that cases of assumption of responsibility under the extended Hedley Byrne doctrine fall outside the Hill principle. In such cases there is no need to embark on an enquiry whether it is "fair, just and reasonable" to impose liability for economic loss: Williams v Natural Life Health Foods Limited [1998] 1 WLR 830.

    30.  But the core principle of Hill 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, 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 (No. 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, Vol 36 (1), para 524; The Laws of Scotland, Stair Memorial Encyclopaedia, 1995, para 1784; Moylan, Scotland Yard and the Metropolitan Police, 1929, 34. A retreat from the principle in Hill 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, be bound to lead to an unduly defensive approach in combating crime.

    31.  It is true, of course, that the application of the Hill principle 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 703D]:

"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.'"

I added [at 707E-708A]:

"In the first real test of the Human Rights Act 1998 it is opportune to stand back and consider what the basic aims of the Convention are . . . The inspirers of the European Convention, among whom Winston Churchill played an important role, and the framers of the European Convention, ably assisted by English draftsmen, realised that from time to time the fundamental right of one individual may conflict with the human right of another … . They also realised only too well that a single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: the European Convention (1950) is the descendant of the Universal Declaration of Human Rights (1948) which in article 29 expressly recognised the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others."

Unfortunately, when other specific torts and the Race Relations Act 1976 (as amended) are inapplicable, an aggrieved citizen may in cases such as those under consideration have to be content with pursuing a complaint under the constantly improved police complaints procedure: see Police Reform Act 2002, the Police (Conduct) Regulations 2004 and Police (Complaints and Misconduct) Regulations 2004. For all these reasons, I am satisfied that the decision in Hill must stand.

    32.  While not challenging the decision of the House of Lords in Hill counsel submitted that it can be distinguished. The only suggested distinction ultimately pursued was that in Hill the police negligence was the indirect cause of the murder of the daughter whereas in the present case the police directly caused the harm to Mr Brooks. That hardly does justice to the essential reasoning in Hill. In any event, Calveley, Elguzouli-Daf, and Kumar were cases of alleged positive and direct negligence by the police. The distinction is unmeritorious.

    33.  That brings me to the three critical alleged duties of care before the House. It is realistic and fair to pose the question whether the three surviving duties of care can arguably be said to be untouched by the core principle in Hill. In my view the three alleged duties are undoubtedly inextricably bound up with the police function of investigating crime which is covered by the principle in Hill. For example, the second duty of care is to "take reasonable steps to afford [Mr Brooks] the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence." It is quite impossible to separate this alleged duty from the police function of investigating crime. The same is, however, true of the other two pleaded duties. If the core principle in Hill stands, as it must, these pleaded duties of care cannot survive.

    34.  It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the Hill principle. 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 Hill principle will have to be considered and determined if and when they occur.

    35.  Making full allowance for the fact that this is a strike out application, and that the law regarding the liability of the police in tort is not set in stone, I am satisfied that the three duties of care put forward in this case are conclusively ruled out by the principle in Hill, as restated, and must be struck out.

    36.  I would allow the appeal of the Commissioner.

    A.  FIRST DUTY - PARA 5(1) OF THE STATEMENT OF FACTS AND ISSUES

    (1)  Paragraph 5(1) of the Statement of Facts and Issues states the 'First Duty' as being to:

    "Take reasonable steps to assess whether the Respondent was a victim of crime and then to accord him reasonably appropriate protection, support, assistance and treatment if he was so assessed."

    (2)  References to the particulars of claim relating to the First Duty in the "Annexe to Order of Court of Appeal of 26th March 2002 - Re-Amended Particulars of Claim" are found in Para 54(i) - page 123:

    "Failing to assess whether the Plaintiff was a victim and to treat him as a victim thereafter. The Plaintiff repeats and relies upon the matters set out in paragraph 51(i) above. This failure comprised all police officers involved in witness liaison with the Plaintiff and is not limited to the sued officers;…"

    (3)  Paragraph 51(i) - page 118 relates back to paragraphs 21, 22, 27, 28, 29, and 31. The details of these paragraphs are set out in tabular form below:

    B.  SECOND DUTY - PARA 5(2) OF THE STATEMENT OF FACTS AND ISSUES

    (1)  Paragraph 5(2) of the Statement of Facts and Issues states the 'Second Duty' as being to:

    "take reasonable steps to afford the Respondent the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence."

    (2)  References to the particulars of claim relating to the Second Duty in the "Annexe to Order of Court of Appeal of 26th March 2002 - Re-Amended Particulars of Claim" are found in Para 54(ii) - pages 123 - 124:

    "failing to take reasonable steps to afford him the protection, support and assistance appropriate to a person in the Plaintiff's position as the key eye-witness to a very serious crime of violence. The Plaintiff repeats and relies upon the matters set out in paragraph 51(iii) above. This failure comprised all police officers involved in witness liaison with the Plaintiff and is not limited to the sued officers. In addition it specifically comprises the incident involving DS Coles referred to in paragraph 46 above;…"

    (3)  Paragraph 51(iii) - pages 119 - 120 relates back to paragraphs 21, 22, 25, 26, 27, 28, 31, 33, 44, 45, and 46. The details of these paragraphs are set out in tabular form below: