Robinson v Chief Constable of West Yorkshire Police

This landmark judgment has been called “the most important police law case in this generation”. For years, the police have been afforded an immunity that severely limits the circumstances in which a duty of care will be imposed on them for the performance of their core functions of investigating and preventing crime. Robinson significantly shifts the position.

In Robinson, the Supreme Court determined that, like all other bodies (private or public), the police are subject to a duty of care to avoid causing injury in accordance with the ordinary principles of the law of negligence.

The Facts

On the day in question, four police officers had coordinated the arrest of a suspected drug dealer on a busy street in Huddersfield. During the struggle, the suspect and two police officers had knocked into 76-year-old Mrs Robinson; she fell to the ground and they fell on top of her.

A Recorder who heard the case five years later found the officers were negligent, as they had foreseen that (i) the suspect would try to resist and that (ii) there was a potential risk of personal injury to innocent passers, yet the officers proceeded without noticing Mrs Robinson’s nearby presence.

Despite reaching this conclusion, the Recorder determined that the case of Hill v Chief Constable of West Yorkshire [1989] imposed an immunity on officers from negligence claims when acting in the course of their operational duties.

Mrs Robinson then appealed the judgment to the Court of Appeal who went further in favour of the police and reversed the liability decision, holding that the police owed no duty of care in this case and that in any event, the court would not have upheld the Recorder’s finding of negligence.

Hallet LJ who heard the appeal applied Lord Bridge’s test in Caparo Industries Plc v Dickman [1990] and stated “[t]he court will only impose a duty where it considers it right to do so on the facts”, a test that Lord Bridge said “applies to all claims in the modern law of negligence” (para 40).

She concluded that “most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test” (para 46) and Mrs Robinson’s case was no exception. It was not “fair, just or reasonable” to impose a duty on the police to an individual. Where the police may owe a wider duty to the public to investigate and prevent crime, there is no such narrower duty to prevent harm to members of the public in individual cases.

Mrs Robinson appealed the Court of Appeal’s decision to the Supreme Court.

The Supreme Court Judgment

Lord Reed provided the leading judgment (with Lady Hale and Lord Hodge agreeing). In his judgment he found that “the proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken.” (Para 21).

Lord Reed said the correct approach when determining whether a duty of care exists is to instead look to the established authorities and, in novel situations, develop the law “incrementally and by analogy” with those authorities. He also conferred that it would be “unnecessary and inappropriate” to reconsider whether the existence of the duty is fair, just and reasonable when that very consideration had formed part of the basis on which the law had arrived at the relevant principles in the first place. “Such an approach,” he said, “would be a recipe for inconsistency and uncertainty” (para 26).

Furthermore, referring to Hill, Lord Reed said that the judgment of Lord Keith, in that case, was not authority “for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime” (para. 55). On a true reading of Lord Keith’s judgment in Hill, Lord Reed said, Lord Keith, spoke of an “immunity”, meaning the absence of a duty of care, only in relation to the protection of the public from harm through the performance by the police of their function of investigating a crime.

Further, whereas Hill concerned a police omission, the present case regarded a positive act by the officers and under the law of negligence, it was sufficient to place the police under a duty of care to protect Mrs Robinson from a danger which the police themselves had created. Public authorities, like private individuals and bodies, generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party, however, a duty of care was established in this case because it was as a result of the police’s actions that Mrs Robinson was injured.

As Lord Reed summarised in paragraph 73;

“[Mrs Robinson’s] complaint is not that the police officers failed to protect her against the risk of being injured, but that their actions resulted in her being injured. In short, this case is concerned with a positive act, not an omission.”

The Appeal was therefore allowed.

Both Lord Mance and Lord Hughes agreed with the majority that the present case concerned a positive act, not an omission and that the finding of the trial judge on negligence should be restored, however they both expressed reservations about minimizing the relevance of policy considerations in relation to courts recognising the existence of a duty of care on the police towards private individuals in the exercise of their public law powers.

In regards to the main issues raised. These can be answered as follows:

Did the police officers owe a duty of care to Mrs Robinson?

The answer was yes, the potential for injury to members of the public was not only reasonably foreseeable but was actually foreseen by the officers in this case. The officers specifically coordinated their arrest to deal with the likelihood that the suspect would resist arrest and attempt to escape. In those circumstances, it was reasonably foreseeable that if the arrest was attempted when pedestrians were in close proximity, they might knock into and injure them during a struggle. That reasonably foreseeable risk was sufficient to impose on the officers a duty towards Mrs Robinson when the arrest was attempted.

If so, was the Court of Appeal entitled to overturn the Recorder’s finding that the officers failed in that duty?

Whilst the Supreme Court highlighted that the Court of Appeal was correct to emphasise the importance of not imposing “unrealistically demanding” standards of care on police officers acting in the course of their operational duties, they made clear that Mrs Robinson’s case was not one where the standards placed on the police were unrealistically high. In Mrs Robinson’s case, the officers were aware that there was a significant possibility that the suspect would attempt to escape and that if he did there would be a risk of harm to members of the public. DS Willan when giving evidence confirmed that if it had appeared to him that someone was in harm’s way at that time, he would not have carried out the arrest. This was not a case where the arrest had to be made at that specific moment. He also said that he simply failed to notice Mrs Robinson, despite her being in close proximity to the suspect and in full view of the officers. The Supreme Court confirmed that the Recorder was entitled to find negligence on that basis alone.

Were Mrs Robinson’s injuries caused by the officers’ breach of their duty of care?

If it was established that the officers breached their duty of care, it would be impossible to argue that the police were not also responsible for Mrs Robinson injuries.

Commentary

This judgment comes as a welcome relief to human rights and civil liberties lawyers, but there remains a long way to go to ensure that the police can properly be held to account in common law.

Despite the overall finding, the court made abundantly clear that it was not their intention to undermine the rule in Hill. Therefore, any future claim that is seen to place a standard on police officers that is “unrealistically demanding”, and that focuses on an omission rather than an act will likely fail at the first hurdle.

Robinson is a move in the right direction for claimants, but the furthest it goes is to establish that the police have the same duty of care as other members of the public in limited situations. The fact that the police cannot be sued in negligence for omissions, even where they have (unlike members of the public) a legal duty to do precisely the act or acts they have failed to do, remains deeply concerning. The Supreme Court had the opportunity to address this in Michael but chose not to, finding that while the police can be sued for a failure to protect a woman from death (by failing to respond appropriately to a 999 call) under the Human Rights Act 1998, they cannot be sued for the same failures in negligence.

It is extremely concerning that even with failures as glaring as those in Michael and, more recently DSD & NBV (concerning gross failures to investigate the rapes and sexual assaults committed by John Worboys and to protect subsequent victims), our common law still provides no avenue for redress.