UK: Police – Here's To You, Mrs Robinson

The Supreme Court has allowed the appeal of a Claimant who was injured by police officers during the arrest of a drug dealer.

The Supreme Court found the positive action by the police had resulted in a duty of care between the parties and that the police had breached this duty, thus overturning the decision of the Court of Appeal.

The facts

DS Willan had spotted Mr Williams dealing drugs in a park in Huddersfield. He chose not to make an arrest, instead waiting for backup. Three other plain clothes officers arrived. It was agreed that Willan and another officer would approach and arrest Williams outside a shop. Having identified the risk of escape, the other two officers were positioned in the opposite direction to prevent escape and then assist in the arrest.

The evidence of Willan at the initial Trial was that he was aware of the potential harm to members of the public should Williams attempt to escape, and, as in any situation, he considered the risk to those nearby. However, there was a need for urgency in effecting the arrest, in order to ensure that Williams had possession of the drugs.

During the attempted arrest, Willian and the officers tussled with Williams, moving up the street and colliding with the Claimant. The other two officers arrived "three seconds later" to conclude the arrest.

Previous decisions

The trial judge found that the officers had acted negligently, but dismissed the claim on the basis that the decision of Hill v Chief Constable of West Yorkshire [1989] A.C. 53 conferred immunity on the officers against claims in negligence.

The Court of Appeal did not share the view of the Trial judge regarding "blanket immunity", but found that the test for negligence established in Caparo v Dickman [1990] 2 A.C. 605, did not impose a duty as it was not fair, just and reasonable to do so. The wider public interest outweighed the interests of Mrs Robinson in this instance.

Furthermore, the appeal court judge stated that, had it been necessary, she would have felt obliged to overturn the Trial judge's finding that the officers had been negligent.

Supreme Court decision

Lord Reed delivered the leading judgment, in which it was reiterated that there is no general rule that the police are not under any duty of care – the aforementioned "blanket immunity" - when discharging their function of preventing and investigating crime.

It was found that establishing the existence of a duty of care, does not depend on an application of the Caparo test, instead relying upon the application of established principles in negligence.

The example was given that a duty of care might arise was where the police had created the danger themselves.

Lord Reed further emphasised that barring exceptional circumstances, "the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created, including injury caused by conduct of third parties... [para 70]"

In this instance, the positive actions of the officers had created a duty of care, their actions the actions of the police had directly resulted in her injury rather than a failure to protect her against being injured.

It was specifically foreseen by the officers that Williams may attempt to flee the scene. This had led to calls for assistance by Willan, and the placing of the officers in the opposite direction. The arrest was to take place was a street in a town centre, where it was reasonably foreseeable that vulnerable pedestrians might be knocked into and injured. Taking this into account, this reasonably foreseeable risk of injury was sufficient to impose a duty of care on the officers.

The Supreme Court disagreed with the Court of Appeal as to whether their actions breached the duty of care.

Lord Reed commented that the finding of the trial judge did not impose an unnecessarily high standard of care on the officers, and that the Court of Appeal was incorrect to state that there was no negligence. Willan himself had accepted he was required to consider the safety of members of the public when executing the arrest yet had failed to notice Mrs Robinson. This failure was a negligent breach of the duty owed to Mrs Robinson.

The final issue was whether the officers' breach of that duty of care caused the injury to Mrs Robinson. It was the tussle between the officers and Mr Williams that resulted in Mrs Robinson's injury. The actions of Mr Williams in trying to escape were not a break in the chain of causation as it would have been inherently absurd to have allowed this.

The appeal was granted, and an assessment of damages will now be undertaken.

What can we learn?

• The operational conduct of the police has never been protected by a wholesale "immunity".The decision in Robinson does not change this, and reiterates that the police are subject to a duty of care where they have carried out a positive act directly resulting in harm to a third party.
• The juxtaposition of the finding of the Supreme Court with the circumstances of this claim is most intriguing and will likely lead to additional satellite litigation, particularly in circumstances where injuries are caused to third parties during an arrest.
• Lord Mance stated, obiter, the law should recognise that injury caused to a passer-by during the course of an arrest falls "within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury on the public."
• Robinson does not signify that all positive police actions cause injury may result in liability. It will still need to be established by claimants that the police owe a duty of care, breached that duty, alongside the requirement that such injury was reasonably foreseeable. As with any claim, it will turn on the facts, and Lord Reed emphasised that "a duty to take reasonable care can in some circumstances be consistent with exposing individuals to a significant degree of risk... Equally, there may be circumstances which justify the taking of risks to the safety of members of the public which would not otherwise be justified."
• Lord Hughes, also obiter, further highlighted the delicate balance of police work, noting examples of "Crowd control, hostage situations, violent outbreaks of crime and the allocation of scarce resources."
• He stated that in these circumstances, "The question is always not whether, with hindsight, the decision was wrong, but whether in all the circumstances it was reasonable."
• Whilst this commentary from Lord Hughes is likely to be given the relevant consideration in future cases, nonetheless, in Robinson, the Supreme Court were allowed the opportunity of considering the planning and execution of the arrest in detail, likely expending much more time in discussing it than the officers themselves were granted at the time. It could be argued that this presents an artificial assessment of the circumstances of the incident, but the Supreme Court did not agree.
• It will be interesting to see whether this claim will affect how police officers make split-second decisions, and how the courts interpret those decisions, which may include declining to wait for backup and attempting an arrest in a particular location.
• Whilst this decision can be applied to other third party injury claims arising out of negligent arrests in particular, it would not be unexpected if there are further questions and application of the judgment to come.
• As a hypothetical example, a stinger is deployed to halt a speeding vehicle containing a wanted offender.Another vehicle hits the stinger causing a collision and injuring the third party occupants.In such a circumstance, the police have arguably undertaken a positive act in a negligent manner, which may be considered to have foreseeably caused the third party's injury. The deployment of the stinger will be subject to the appropriate risk assessments and consideration, in a similar manner to those which Willan was required to do so.
• Would any potential judgment be affected by the specific circumstances of the deployment?
• What if the offending vehicle was known to be speeding into an area where a school was located at the end of the school day?
• Would this be one of the instances which Lord Reed stated " justify the taking of risks to the safety of members of the public which would not otherwise be justified."

It is clear that the outcomes of Robinson may not be limited to discrete incidents, and further case law will be awaited with interest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.