On 8 February 2018, the Supreme Court handed down judgment in a case involving the question of whether the police could be liable for injuries caused to innocent third parties during the course of an arrest.
Officers attempted to arrest a suspected drug dealer on a moderately busy high street. The Claimant, a 78 year old bystander, was within a yard of the suspect, when two police officers attempted the arrest. A struggle followed with both the officers and the suspect falling to the ground, colliding with the Claimant and in doing so causing injury.
Importantly, the officer had made an initial operational assessment that he could not immediately make an arrest. He called for support. The suspect had moved locations and was standing outside a shop in the town centre. Other officers arrived. The officers considered that if they did not arrest at that point the opportunity would be lost and also that there would a risk of a loss of important evidence. The decision was made that two officers would approach from one side and two from the other. The latter two officers were to arrive momentarily after the first two. Given this, there had clearly been a significant dynamic risk assessment that had been carried out by the officers at the time, which involved waiting for other officers to attend before an attempt to arrest was made.
Trial at First Instance
A claim followed in negligence for personal injury against the Chief Constable. The Judge at first instance found that that the officers had acted negligently as one had not noticed the Claimant’s close proximity to the suspect. However, he held that the police did not owe a duty of care to the Claimant, due to the decision in Hill v Chief Constable of West Yorkshire Police, which he deemed to confer a blanket “immunity” on the police against claims in negligence.
At the Court of Appeal
The Claimant appealed the decision that the police did not owe a duty of care to her in the circumstances. The Chief Constable cross-appealed the finding of negligence against the officers.
The Claimants appeal was dismissed. The Court agreed with the view that there was no duty of care imposed in these circumstances. Additionally, it indicated that if it had been required to consider the cross-appeal, it would not have upheld the finding of negligence by the Trial Judge.
Appeal to the Supreme Court
The Supreme Court firstly reviewed the law on duty of care.
They reiterated the principle that public authorities are generally under no duty of care to prevent the occurrence of harm. Public authorities generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party.
The Supreme Court then considered whether there is an imposition of a duty of care on the police for operational activity, and whether there is such a blanket “immunity”.
It was clarified that there has never been a blanket “immunity” enjoyed by the police for all operational conduct. The stance in Hill v Chief Constable of West Yorkshire Police, that the police can be liable in tort to those injured as a direct result of acts or omissions by the police, which includes actions or omissions during operational conduct, is the correct interpretation.
The Supreme Court has now taken this approach a step further: If a third party, such as a pedestrian, is injured because of a negligent arrest on the street by a police officer, the police are liable in negligence if the act of the third party, causing the subsequent injury, was a reasonably foreseeable consequence of the police officer’s actions.
Act or Omission?
One important point to note is that the Court has emphasised the distinction between a positive act and an omission. In Robinson, the act of arresting the suspected drug dealer was a positive act, rather than an omission. This distinguished the case from previous decisions, such as Hill, which involved omissions, where no duty of care was imposed on the police.
The police officers were found to owe the Claimant a duty of care as they had foreseen the likelihood that the suspect would try to resist arrest. It was reasonably foreseeable that there was a risk of injury to anyone in close proximity and this was sufficient to impose a duty of care on the officers.
The officers had, at the initial trial, accepted that there was a risk the suspect may seek to escape and also that they generally try to minimise the risk to the wider public when performing arrests. The Supreme Court found this was sufficient to base a finding on negligence.
The Supreme Court supported the Trial Judge’s approach of undertaking a detailed analysis of the operational planning and performance of the arrest in order to determine the question of negligence.
Additionally, the Court held that the Claimant’s injuries were caused by the officers’ breach of their duty of care, as they had exposed her to a danger, which they had a duty of care to protect her from.
The appeal was allowed and the Chief Constable was liable.
Impact on Future Police Liability
It is likely that the Courts may now be more willing to scrutinise the operational decision-making of police forces. In this case, the officers had clearly undertaken a risk assessment before attempting the arrest. Unfortunately, given that it was foreseeable that injury could be caused to a passer-by in the immediate vicinity when the decision to arrest was made, this was sufficient to find that there had been a breach of the duty of care.
In light of this judgment, it is possible that there may be a significant widening of the police’s liability in cases where the police take positive action in the context of operational activities if these actions result in harm caused by a third party. What of the officer who is confronted with the decision as to whether to attempt an arrest on a busy street? Do they wait for colleagues to arrive so as to reduce the possibility of the arrest resulting in injury to a bystander, or do they attempt to arrest and thus avoid the suspect making off? Does this judgment herald the beginning of more defensive policing to avoid later criticism in the civil courts? How is an officer meant to make a split second decision on foreseeability of injury to a bystander which may be caused by a positive act of attempting to arrest?
It is clear that a Court will conduct a forensic analysis of the officers’ decision making process at Trial. If that process, as in this case, reveals that a risk assessment was undertaken, but that the decision taken by the officers still left injury to a bystander as a foreseeable consequence of their failure to appreciate that the Claimant was in the immediate vicinity, then liability will attach.
Only time will tell but what is clear is that there will be many more cases on this issue being taken to the higher courts in the near future.
If you would like to find out more about this case, please speak to your usual Partner at Plexus or:
Andrew Steel, Partner
T: 0161 2457 965
M: 07557 232 419