A duty of care to issue an Osman warning?

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Conor Monighan casts a critical eye over a recent case concerning police negligence

‘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.’ Per Lord Nicholls in Brooks v The Commissioner of Police [2005] UKHL 24.

What such an exceptional case might look like has remained a matter of speculation. Until now. On 9 May Ritchie J handed down judgment in Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB), which, if it remains good law, is likely to have a significant impact upon the law concerning the liability of the police in the tort of negligence.

In Woodcock, the High Court found that the police were under a positive common law duty to warn the Claimant of a potential danger. It found the police had assumed responsibility towards the Claimant by advising her to set up a ‘protective ring’ around her property and, in the alternative, that this was a rare ‘special / exceptional’ case in which there was a positive duty to warn. The court also overturned the trial judge’s decision on causation, saying that although the learned judge’s findings on this point were not ‘wrong’ they were ‘unjust’.

Given the nature of the court’s conclusions, it is likely the case will be appealed to the Court of Appeal.

Facts

The Claimant had been in an abusive and coercive relationship with RG [61]. The trial judge found that, due to an increase in the number and seriousness of threats, the Chief Constable agreed officers would stay in a police car outside the Claimant’s home during the night of 19 March 2015 (albeit for an indefinite period depending on other policing needs) [79].

Officers also agreed a safety plan with the Claimant which included advice that the Claimant should call the police if RG attended her property and that she should make neighbours aware of the issue [80]. The Defendant also unsuccessfully ‘deployed a substantial group of officers to locate and arrest RG’ [82].

At 7:32am on 19 March 2015 a neighbour called 999 and said RG was outside the Claimant’s property, the Claimant would be leaving in a few minutes and RG was probably planning an attack [84]. Officers were dispatched to the Claimant’s address. However, neither the neighbour nor the call handler rang the Claimant to warn her of the danger.

The Claimant subsequently left her house. RG stabbed her with a large knife 7 times and was subsequently convicted of attempted murder [89; 5].

First Instance Decision

Following a 5-day trial the claim was dismissed. The trial judge concluded:

1. The police did not owe a duty of care to the Claimant.
2. In the alternative, there had been no breach of duty.
3. The causation test was not met. The amended Particulars of Claim did not plead that the Claimant would have remained inside the property had she been warned about RG’s presence by the police [117]. Nor was there any evidence on causation, despite the Claimant’s representatives having been given an opportunity to recall the Claimant to give evidence on the point [117].

The High Court’s Decision on appeal

Duty of Care Owed

The High Court concluded the police did owe the Claimant a duty to pass on information that the alleged abuser was loitering outside her property. It said:

“The exceptions to the general rule that the police are not liable and owe no duty of care for failing to act or failing to prevent harm caused by criminals are limited to cases where: (1) the police have assumed a specific responsibility to protect a specific member of the public from attack by a specific persons or persons; (2) exceptional or special circumstances exist which create a duty to act to protect the victim and/or it would be an affront to justice if they were not held to account to the victim. To engage a duty of care on the police to act to protect a member of the public the Courts will carry out a close analysis of the evidence relating to:

(a) the foreseeability of harm and the seriousness of the foreseeable harm to the specific member of the public (the suggested victim); and

(b) the reported or known actions and words of the specific alleged protagonist in relation to the feared or threatened harm; and

(c) the course of dealing between the potential victim, the police and the alleged protagonist focussing on proximity; and

(d) the express or implied words or actions of the police in relation to protecting the victim from attack by the protagonist and the reliance of the victim (if any) on the police for protection as a result; and

(e) whether the public policy reasons for refusing to impose a duty of care outweigh the public policy in providing compensation for tortiously caused damage or injury.

50. In my judgment, only if factors (a) to (c) and (e) [and in some cases also (d)] are proven, on the balance of probabilities by the Claimant, with sufficient weight and severity and immediacy, will the common law combined with public policy exceptionally permit the Courts to rule that a civil law duty of care was owed by the police to the specific potential victim to protect him or her from the actions of the specific third party criminal in the circumstances or to warn him or her of danger” [49 – 50] (emphasis added)

The court considered each of the factors outlined in (a) – (e) above and felt they were fulfilled. Harm was reasonably foreseeable and the ‘detailed safety plan’ agreed by officers created:

“a very close tripartite nexus in which the Claimant was relying on the Defendant officers’ advice and the safety plan. In my judgment there would be little point in advising the Claimant to ask neighbours to keep watch for RG and to tell the Claimant or the police, if the police were then going to keep any such report secret from the Claimant” [108].

The judge decided that public policy meant abused women should be protected and that the effort involved in passing on the vital information would have been ‘infinitesimal’ [109]. Public confidence in reporting matters to the police would be undermined if courts supported the police’s omission in this case [109].

In light of the foregoing, the court concluded that there were ‘exceptional or special circumstances’ which created a duty to warn and that police had assumed responsibility.

Breach of Duty and Causation

The court concluded the police had breached the duty to warn [115].

The High Court felt it could not describe the trial judge’s decision on causation as ‘wrong’. However, that decision was ‘unjust’ within the meaning of CPR 52.21(2)(b) and the case should be remitted.

Comments

On any view, this case is extremely interesting and will attract attention:

1. This is (probably) the first time that a higher court has found that ‘exceptional/ special circumstances’ justified the imposition of a positive, common law, duty on the police to warn. If the decision is left unchallenged, it may open the door for future claims and lead to a gradual widening of the ‘exceptional circumstances’ in which public authorities can be liable in negligence.
2. The decision arguably runs contrary to Supreme Court authority that negligence by public authorities should be treated in the same way as negligence committed by private parties (see Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, Poole Borough Council v GN [2019] UKSC 25 etc). In Woodcock the High Court concluded that an assumption of responsibility was created by the police’s provision of a safety plan and the Claimant’s reliance on the unstated implications of that plan. It is questionable whether the High Court would have come to an identical conclusion had similar advice been given by a friendly neighbour, for example.
3. The decision comes close to developing a common law duty akin to that imposed by Article 2/ 3 ECHR (as explained in Osman v UK and other case law). Indeed, the High Court even referred to an ‘operational duty’ at [101]. It is arguably difficult to reconcile this approach with Lord Toulson’s comment in Michael v Chief Constable of South Wales [2015] UKSC 2 that the common law should not develop in conjunction with the HRA. Perhaps the decision reflects a desire to strengthen the common law given the possibility that the UK may leave the ECHR.
4. The High Court’s criticism of the Defendant’s operational decision-making is, with respect, open to question. The High Court questioned why officers would ask neighbours to call 999 if any information provided would be kept ‘secret’ from the Claimant [108]. There are numerous possible responses to this. One reason for the police wanting to know about any sightings of a wanted suspect was, presumably, so that officers could be dispatched to arrest RG – as occurred in this case. Although it would have been much better to pass on the information to the Claimant, there might have been reasons for not doing so. There was disputed evidence that the Claimant herself had been aggressive and a concern that she / her estranged husband might attack RG [91]. Courts have traditionally been reluctant to intervene in such issues. It is surprising that the Claimant was found to have relied on an assurance which was not explicitly provided and when the trial judge found the plan was flexible depending on other policing needs.
5. The judgment arguably risks defensive policing. Officers may be concerned that agreeing even a broad safety plan, which does not contain a promise to call the victim with information, may imply greater assurances than had been intended and create a duty of care.

Conor Monighan is a specialist public authority and human rights barrister.

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Authors

Conor Monighan

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Related areas

Police Law

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