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M v Commissioner of Police for the Metropolis, Court of Appeal, 21 December 2007

11 January 2008
The issues

Police – whether police have any general duty of care in tort to victims of crime to investigate their allegations – assumption of responsibility.

The facts

It was alleged that in 1993 officers from the Metropolitan Police commenced an investigation into allegations of indecent assault and cruelty made by the Claimant and her sisters V and f, against their step-father N. On 22nd April 1993 N was arrested and interviewed. In May 1993 the officers investigating decided not to proceed against N. It was alleged, on the part of the Claimant, that the officers conducting the investigation had assumed a responsibility to the Claimant and to her sisters in such a way as to impose a duty of care to the Claimant upon them in the conduct of the investigation and in taking decisions as to whether N should have been prosecuted. The Commissioner applied to strike out. On Appeal the Judge allowed certain allegations to proceed. The Commissioner appealed again, arguing that all the allegations should be struck out as there was no duty of care. The Commissioner relied on Hill v Chief Constable of South Yorkshire Police [1989] AC53; Elguzouli-Daf v Commissioner of Police [1995] and Brooks v Commissioner of Police [2005]. The Claimant alleged that this case was different because, in deciding not to prosecute, the police took into account the interests of the children and thereby assumed a responsibility for them.

The decision

Hill v Chief Constable of South Yorkshire Police established that there were policy reasons behind the general rule that the police owed no duty of care to victims of crime in respect of investigation of their allegations. The policy reasons were that any such liability would not create a higher standard of care, the police investigation might be carried out defensively, that potentially labourite investigations of fact, policy, discretion and allocation of resources would be involved with a consequence significant diversion of police man power and attention from their most important function, that of the suppression of crime, and that closed investigations would require to be re-opened. 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, whilst taking the view that a more sceptical approach was necessary to the carrying out of all public functions than had been the case at the time that Hill had been decided, nonetheless took the view that to convert an ethical value (that a police officer should treat victims and witnesses properly and with respect) into a general legal duty of care, would be going too far. The Claimant’s case had substantial difficulties. If there was a duty of care it would be necessary, on the facts of this case, to plead that no reasonable prosecutor would have failed to prosecute. The Court did not see how that could responsibly be pleaded. In any event, the Claimant would still find herself defeated by the absence of a duty of care for the reasons identified by Lord Steyn in Hill’s case. The public interest stood in the way.

The Claimant had an alternative basis for the claim, namely that the police had assumed a responsibility to her when taking her interests into account. There were cases where the police had assumed responsibility. Two examples were Welsh v Chief Constable of The Merseyside Police [1993] and Swinney v Chief Constable of Northumbria Police [1997].

The particular problem faced by the Claimant in this case was that there were two elements to a case based on assumption of responsibility. The first was the assumption itself. The second was reliance by the Claimant on the assumption. In this case no such reliance was pleaded, nor would it seem to be pleadable. The Claimant sought to argue that reliance was not necessary. This argument ran contrary to the Court of Appeal’s decision in Capital & Counties v Hampshire County Council and cases decided subsequently. In Capital & Counties the Court said clearly that a fire brigade did not enter into a sufficiently proximate relationship with an owner or occupier of premises to come under a duty of care merely by attending the fire ground and fighting the fire. Where there was a duty of care it arose by assumption of responsibility and reliance by the Claimant on that assumption.

The Claimant relied on L v Reading Borough Council. In that case a mother falsely accused that the father had sexually abused their child. The father was arrested but not prosecuted. The police however had passed the results of the interviews to the Local Authority which lead to private law proceedings. The father and the child sued the Local Authority and the police in negligence. The Court held that there was arguable a duty of care to both child and father. In the case of neither child nor father was there any particular act demonstrating reliance on the supposed assumption of responsibility. The Defendant had said that L was, in the light of Brooks, “a broken reed” and was distinguishable. It was decided, in the light of Osman, and was clearly influenced by it. The Court was not willing to say that L was wrongly decided. However, its reasoning should not be extended beyond the narrow confines of its facts and facts closely resembling them. What made L markedly different from this case was that the police officers themselves caused damage to the Claimant by the way they conducted the interviews by damaging, incompetent and misleading conduct and by their subsequent misrepresentation of the results which lead to the civil proceedings.

There was no prospect of the Claimant’s claim succeeding and it would be struck out.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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