The threshold to sue public bodies in the UK is exceptionally high with only a handful of cases being brought to trial and fewer still succeeding. The central reason for this is that outside of established “duties” owed to a victim, for example, a patient being treated in a hospital by their doctor, there have been limited duties made available. The Police and NHS are the two main public bodies which are the most difficult to sue however it is rare for the education authority, housing or child welfare to be sued and have the claimant succeed, but why? The following review will focus on police negligence and numerous hurdles to a successful claim.
As A.V. Dicey said, no man is above the law and all are equal in front of it. Why, then, do public bodies, even when found to have owed a duty of care and breached it, not face repercussions?
The leading argument against all cases is that it is a question of policy as to whether this case is worth public money, taking away from other public body duties or in the public interest. Often it is found to not be.
Through the Judiciary
Hill is a notorious case whereby the estate of Jacqueline Hill made a claim against the Chief Constable of the West Yorkshire Police for investigative failings to catch the Yorkshire ripper of whom their daughter was the final victim. The case infamously granted a blanket of immunity to police afterwards as Ms Hills family were dismissed on the grounds that no duty of care was owed to Ms Hill as she was one of many young females in the area, any of whom could have been the next victim. This is not however the issue in the judgement. Lord Keith of Kinkel states that to allow the appeal would be,
“… a diversion of police manpower and attention from their most important function, that of the suppression of crime…I therefore consider that Glidewell L.J… was right to take the view that the police were immune from an action of this kind.”
How then can we claim to be part of a society that believes nobody is above the law when the principle is not upheld in practice? Public policy also stretched to cover potential reluctance and added caution from officers out of fear that they may be found to have acted negligently, this was affirmed in Brooks. While it is not an invalid reason, should it be reason enough to not hold police liable for their negligent acts? It could easily be argued that granting such an immunity, results in officers acting carelessly resulting in more victims without justice. A double-edged sword.
Hill isn’t the only case where police were granted immunity due to public policy in Brooks Steven Lawrence was murdered in a racially motivated attack. During the police investigation, the Met treated Dwayne Brooks - a witness - as a suspect in his friend's murder, resulting in Brooks bringing a claim against them. Dwayne Brooks brought forward three duties he believed were owed to him by the police.
Take reasonable steps to assess whether [the respondent] was a victim of crime then accord to him reasonably appropriate protection, support, assistance, and treatment if he was so assessed.
Take reasonable steps to afford [the respondent] the protection, assistance, and support commonly afforded to a key eyewitness to a serious crime of violence
Afford reasonable weight to the account that [the respondent] gave and act upon it accordingly.
It was held that if such duties were imposed it would interfere with investigations of further crime and the Hill principle. It is my opinion that these duties are a bare minimum which should be imposed on police officers, especially in the delicate circumstance of Mr Brooks who not only witnessed a murder, but that which was the murder of a friend. If a key eyewitness to murder cannot be owed a duty of care, it speaks volumes of just how high the bar to be owed one is.
While these are two of the more extreme cases demonstrating the use of “policy” to excuse failures there have been limited circumstances established whereby the Police do owe a duty of care which can be breached. No duty of care was owed in Brooks.
Robinson affirmed that a duty of care is owed where the police “directly” and “negligently” inflict personal or property, injury or damage. Swinney established that there must be a “special relationship to the police” based on “an assumption of responsibility” to achieve a valid negligence claim. A limited and niche standard to reach has suggested that victims of alleged police negligence turn to alternative methods to source the justice they need. The question is are these alternatives really providing solutions to victims or do they provide further inadequate findings?
Independent Police Complaints Commission
It is suggested that instead of relying on courts holding police reliable that the public and victims should turn to the IPCC for outcomes. The IPCC held that victims of Worby known as “The Black Taxi Rapist” were let down by police failings who were reluctant to take victims' claims seriously. In one victim's account, police reportedly laughed upon her describing her injuries. However, the IPCC advised that 2 officers involved in the case receive written warnings and three should receive advice. It is not enough. There were 85 definite victims of Worboy; he was suspected of committing over 100 in total and the best advice given was a written warning.
Is history repeating itself as it did in Hill? Both cases had serious investigative failings, in Hill the offender had been interviewed several times but nothing further came of it because his licence plate didn’t match. Police released Worboy without charge in 2007, despite victims' claims, because they didn’t think it was something a cab driver would do.
This is not the first time the IPCC's findings and advice have been disappointing to the public. The IPCC report details that on 26 June 2016 two women were sexually assaulted by a registered sex offender, while the offences were separate they were captured on CCTV. The offender was spoken to by police but not arrested after the first report. After the second, two further officers arrived in an attempt to find and arrest the offender, but they failed to do so. Two weeks later the suspect committed a third sexual offence against a woman. The IPCC found there was “sufficient evidence to recommend a case of misconduct” however the result was a misconduct meeting and management advice to the officers. Had the first officer arrested the suspect the second and third victims would most likely not have resulted. Yet this officer faced no repercussions in his career and is still allowed to serve the public.
There are obvious failings of those expected to investigate police negligence, both in the courts and by the independent bodies expected to provide alternative solutions. Dableena Sagupta, a solicitor for rape victims said to the Guardian, “If the IPCC are going to let the police act like this, then victims have nowhere to turn.”
At present neither give reassurance to victims that those who added to their difficult circumstances will face any adequate repercussion in order to prevent it happening from further victims. Hopefully, the growing criticism both the courts and the IPCC receive will encourage and cause much-needed change.