Recent Cases Concerning Police Liability For Negligence
"The golden age of Police Immunity"
There is no doubt that in the early to mid-1990's most practitioners in this area of law considered that the Police were effectively immune from all actions based upon harm indirectly caused to Claimants where the police had, at the relevant time, been engaged in detecting and suppressing crime. The importance which society attached to the efficient functioning of the Police was such that imposing civil liability for their acts when they were so engaged was contrary to the public interest. Of course striking out such a claim is highly attractive since claims against the police are almost invariably brought by legally aided plaintiffs, and one of the principal policy considerations identified by the Courts was the need to prevent police resources (time and money) being diverted from the fight against crime.
So that where a criminal had been allowed to remain at large (Hill), a property improperly checked following an alarm call (Alexandrou), or a road hazzard left to await the unwitting motorist (Ancell and Clough) the Chief Constables advisers did not concern themselves with the merits of any particular claim - secure in the knowledge that they were effectively bomb-proof. This lecture address the question : to what extent have the decisions in Swinney, Costello and Osman altered the extent of the immunity.
For reasons I shall explain I would suggest that none of the three recent decisions would alter the outcome of the particular cases set out above since all of them involved claims brought by persons who were part of a large class of potential claimants, in no particular special relationship with the Police. These cases can therefore be viewed as coming within the "proximity" ratio of Hill.
However, as indicated, many of us believed that the immunity extended far wider than those cases which involve claims by members of such a class of individuals. We believed that what may be termed the "policy" ratio of Hill effectively provided an almost complete shield against actions based upon indirect harm arising out of police actions or omissions occurring in the course of their duty to detect and suppress crime. That Lord Keith in Hill intended the "policy" ratio to be separate and independent of any "proximity" point between the Police and claimant cannot sensibly be doubted. 3 of their Lordships concurred with his Judgement. Lord Templeman appears to have gone even further basing his judgment solely on grounds of public policy.
Before considering the recent decisions it is worth considering, by way of background, the nature of an "immunity" afforded by the courts to a defendant.
Any immunity effectively acts as a "control mechanism" limiting liability usually where the Courts feel that affording a class of claimants a remedy is not in the public interest, would open the floodgates or would expose a Defendant to indefinite liability to an indeterminate class of Plaintiff for an unlimited amount. All control mechanisms create a tension when they are felt to operate in such a way as to exclude from justice deserving claimants. Thus over time appellate decisions will modify and limit the scope of the control mechanism and often you will find the judges in such cases expressing their decisions in terms of the publics perception of justice. A classic example from a different series of negligence cases is Lord Goffs judgment in White v Jones (the solicitors negligence case). The control mechanism in this case was the principle that a solicitors duty of care was owed to his client, not third parties who might be adversely effected by negligent advice given to that client. Lord Goff having described (at some length) the "impulse to do practical justice" and having explained why the prospect of a negligent solicitor effectively "getting away with it" - simply because he owed no duty to the one person who suffered a loss - would to him be an "extraordinary fact" and went on to hold :
"...it seems to me open to your Lordships to fashion a remedy to fill a lacuna in the law so as to prevent injustice which would otherwise occur on the facts of cases such as the present..."
The fact that the "lacuna" in question arose because of the application of well established principle was no impediment to judicial creativity. Such pronouncements do not sit easy with wide ranging immunities, and eventually such immunities are eroded by judicial creativity aimed at preventing a deserving claimant being excluded from justice.
And so just as the last two decades have seen the absolute bar to the recovery of purely economic loss gradually chipped away to the point where it now a far less effective control upon recovery, so it was perhaps inevitable that the immunity in Hill could not remain the all encompassing shield that some of us imagined it to be.
2. The practical effect of the three recent decisions : Swinney, Osman and Costello.
I suggest that it is no co-incidence that each of these three cases involve what may be termed "attractive" claims - that is claims where the general public may well regard it is as unjust for a claimant to be denied a remedy. In considering each of these cases I shall set out as precisely as possible the nature of duty of care as defined by the courts and suggest how this will be applied in practice, with some examples. You may also detect that I consider two of these decisions to have been wrongly decided.
2.1 Swinney v The Chief Constable of Northumbria Police  Q.B. 464 and Swinney v The Chief Constable of Northumbria Police (No 2) the Times May 25th 1999.
A licencee had provided information to the Police which purported to identify suspects in a murder enquiry. When she had done so she had expressly stipulated that the information was to be treated "in confidence" as she feared reprisals. The information was stored on a Data management system and subsequently a written instruction to an officer to carry out further investigation into the information was printed and issued. The print out identified the licencee and specified the information she had supplied. The print out was stolen from a locked police patrol car and shortly after the theft the licencee and her husband were subjected to threats purportedly made on behalf of those named by her.
When I was first instructed on behalf of the police in about 1993 it seemed to me that there was a strong case for striking the claim out. The Police were actively engaged in a murder enquiry. They had created a document in accordance with standard procedures laid down by the Home Office - using the "HOLMES" data management system. The Claimant was seeking to interfere with Police methods and procedures - and indeed the Statement of Claim contained a number of suggested alternative methods for controlling the data (it alleged the data should have been stored in an officers pocket notebook or maned police station). The harm had been caused by the deliberate actions of criminals not under the control of the Police. Indeed the Police themselves had been victims of the theft. If such a claim were allowed there would a large number of potential claimants with little prospect of limiting such claims. Hundreds of thousands of people provide information to the police "in confidence" annually. Witness intimidation and reprisals by criminals is a growing problem. If the Police were to be prevented from leaving sensitive documents in locked patrol cars for short periods then they would be hindered in their task of suppressing crime. The implications of liability seemed to me to be far reaching, requiring on the one hand officers to go about their duty with one eye on potential civil liability : (do I take this document with me now or should I leave it at the station; do I go and apprehend that suspect knowing that in doing so I am creating a risk that my car will be broken into and the document stolen) and on the other hand involving the Courts in just the sort of ex post facto investigation of the reasonableness of the officers methods which Hill seemed to prohibit (ought this officer to have carried out this investigation in this way, and so on). In short whilst the police for their own practical reasons would no doubt wish to keep such information confidential, at the end of the day, their prime duty was to get on with the task of detecting and suppressing crime, and they were, to paraphrase Lord Keith, to be presumed to be using their best endeavours.
However the courts were faced with a highly attractive claim. The Claimant could say - I agreed to help the police at significant personal risk to myself. I did so on express terms that the fact that I had given this information was to be kept confidential. All that I asked in return was that the police would take reasonable care to prevent the confidence being broken. The polices own standing orders and Home Office guidance alerted them to the need to take care of such items and required them to do so. Statute (the Data Protection Act) made the police liable for unauthorised disclosure unless they could demonstrate that they had taken reasonable steps to prevent such disclosure. The individual officers would no doubt acknowledge that they would have felt it incumbent upon them to take care of such information. Indeed there is not slightest doubt officers would, if asked, have said : "of course we regarded it as an important part of our duty to do our best to honour Mrs Swinneys confidence".
In retrospect the Plaintiffs arguments were almost bound to carry the day. I now have no hesitation in saying that in my opinion not only were the Court of Appeal right to hold that the existence of the duty of care was arguable but that Mr Justice Jackson was right to hold that it actually arose in this case. Mr Justice Jackson held :
"In my judgment, the duty of care owed by the defendant to Mrs Swinney should be formulated as follows :
"A duty to take reasonable care to avoid unnecessary disclosure to the general public of the information which Mrs Swinney had given to the police."
One matter does perhaps warrant further consideration. As indicated no doubt the individual officers would have acknowledged, if asked, a "duty" to preserve Mrs Swinneys confidence. However where that actually takes the case is perhaps less clear. A barrister no doubt would acknowledge a "duty" to his client but that does not make him liable to him for things said or done in Court. As we shall see in Costello considerable significance was attached to the acknowledgement by the officer of a duty. However had the senior detective in charge of the Yorkshire Ripper investigation been asked no doubt he would have acknowledged a duty, on behalf of his force, to the young women of Yorkshire to arrest the perpetrator as soon as possible. However such an acknowledgement of a duty would not have altered the outcome in Hills case, and nor, it is submitted should it be seen as more than a relatively minor consideration in other cases.
2.3 When will such a duty arise?
Clearly the case is authority that where an "informant" expressly provides information in confidence the duty will arise except where the information cannot sensibly be regarded as "confidential". However whether or not the request for confidentiality is expressly made I would anticipate that a duty would be found where a member of the public supplies information which, if the same became known by the subject of that information, would expose that member of the public to a significant and foreseeable risk or reprisals. It is, in my view, bound to extend beyond that narrow group.
"Informers" (that is associates of criminals who supply information in return for money or in order to mitigate their sentence) are almost bound to be held to be owed the duty since they are normally in a far more vulnerable position than the general public and are in a relationship with the police which is analogous to contract, and in some cases may even be contractual.
Persons who allow their premises to be used as observation posts will almost certainly be owed an analogous duty. I represented the police in an action tried by HHJ Norman Jones QC, sitting as a Deputy High Court Judge, and conceded the existence of such a duty. The police had asked a man if they could use his home to spy on neighbours who were known to be violent criminals. He had asked for and received assurances that the operation would not be revealed. Although I had pleaded no duty of care and the immunity (pre-Swinney) it seemed to me to be untenable to argue that the Police owed such a man no duty of care. In fact the Police won on causation, but the Judge found there was a duty of care.
I would think a duty would be owed to people recruited to entrap criminals or to spy on them (eg by means of a secreted listening device on their person).
Whether you say the basis of such a duty is because there is the sort of proximity between the Police and claimant that a special relationship can be said to exist (Caparo v Dickman) or because there has been an assumption of responsibility and reliance (Hedley Byrne v Heller) is of no practical significance - the result is the same. When analalysed in this way Swinney can be regarded as coming within the line of cases where there has been held to have been an assumption of responsibility to an individual by the police, such as Kirkham, and Reeves (the suicide cases), and Rigby (the gas cannister case) and so is not really an extension of the law at all.
What remains unaffected by Swinney, it is submitted, are cases brought by victims where the Police fail to catch a criminal who goes on to commit further crimes. Support for this is contained in Swinney itself - see for example Hirst LJ at 483 H where he states :
"The Hill case is, of course, one of cardinal importance. As was held in the Alexandrou case and in the Osman case it lays down a principle of general application which was not specifically limited to the actual facts of that particular case, and nothing I say should be interpreted as in any shape or form seeking to undermine that principle. However, in my judgment, that principle
cannot be completely divorced from the circumstances highlighted by Lord Keith of Kinkel in his judgment, which recurred mutatis mutandis in the Osman case and in the Elguzouli-Daf case...
"I also consider that it is at least arguable in the present case that, on the facts pleaded on the Statement of Claim ...the police did, in fact, assume a responsibility of confidentiality to ... the first plaintiff. If that view should prevail it would bring in to play the exception identified by this court in Elguzouli-Daf..."
L.J. Peter Gibson emphasised the special relationship between the first plaintiff and the police as distinguishing the case from Hill and all three Judges were of the view that specific public interest arguments, which they were able to identify, arose and which were at least capable of balancing those arguments in favour of an immunity.
There was no proximity/assumption of responsibility nor countervailing public policy arguments in the Hill, Alexandrou or Ancell cases and therefore those cases remain unaffected. Indeed their Lordships in Swinney were at pains to emphasise that they were not casting doubt on the correctness of those decisions.
2.4 Scope and Breach of the Duty
When one looks at the whole of Mr Justice Jacksons decision in Swinney No 2 (not the skeletal report in the Times) one sees that many of the potential concerns which have been voiced on behalf of the police are mitigated in their effect.
At page 21 B of the transcript Mr Justice Powell said :
"Thus, the public policy considerations referred to in the authorities previously mentioned do not have the effect of excluding a duty of care. However, they are relevant in determining both the scope of the duty and the question of breach...
22 C "...Fifthly, the phrase "reasonable care" properly limits the extent of the duty. The Police may have many functions to perform, only one of which is the protection of their sources. There is a wide margin within which the courts will not interfere with policing decisions...
22 F "...Breach of duty. Mr Hytner QC submits that this Court is not entitled to evaluate the policies adopted and operational decisions made by Northumbria Police in determining whether reasonable care was exercised by the police force in this case. These are areas into which the Court should not venture.
"In support of this submission Mr Hytner relies in particular on Rigby and Hughes.
"Clearly there is a boundary over which this court should not step, but for the purposes of this case it is not necessary to decide precisely where that boundary lies. On the facts as I have found them, and as are set out in this judgment, I am quite satisfied that the police have complied with the duty of care as formulated in part 2 of the Judgment."
Thus although the public policy considerations may not win the day on the question of the existence of a duty of care they come back into play when the questions of the scope, standard and breach of the duty of care come to be considered. It seems to me that the effect of this decision is that cases where this duty will be held to have been reached will be very rare indeed. The Courts will not "second guess" operational decisions made by officers engaged in detecting and suppressing crime. In my view the test for breach will be similar to the "Bolam" test in clinical negligence cases : "would a responsible body of police officers have so acted or omitted to act in these circumstances" or perhaps the Wednesbury test : "was the act or omission so unreasonable that no reasonable officer would have acted or failed to act in these circumstances." In practice they amount to the same test.
In particular it seems that where what is fundamentally challenged is a decision relating to the allocation of resources then Courts will be very unlikely to find a breach of duty.
But equally there is no room for complacency on the part of the police. Plainly a practice whereby confidential documents were left in vulnerable locations without good reason would be impossible to defend. Careless disclosure of the location of an observation post would again be hard to defend.
2.5 Costello v The Chief Constable of Northumbria Police  1 All ER 550.
This case is fascinating, and it is a great pity that leave to appeal to the House of Lords was refused. An Inspector was found to have failed to go to the aid of a colleague engaged in searching a prisoner, when she had cried out in pain following an attack by the prisoner. I would imagine that considerable alarm must have been felt in all force solicitors offices up and down the country when this decision became known - indeed it is hard to imagine anything more calculated to undermine force morale than the prospect of police officers suing each other on the basis that they failed to help each other deal with violent detainees.
However I suggest that a careful reading of the decision demonstrates that this was a highly exceptional case, dependent largely on its own very special facts and that in practice it will again be very rare for a force to be held liable in these circumstances.
The critical finding of fact, described by Lord Justice May as leading to the "quite startling result" (553 g) was that the Inspector stood outside the cell for the express purpose of going to his colleagues assistance, and when that colleague cried out for help, he stood by and did nothing help, in breach of his self-admitted duty to go to her aid. Indeed I would suggest that this case is limited to those wholly exceptional facts, and in practice again successful cases in these circumstances will be very rare. However striking out such claims will be far harder than before.
The arguments for immunity in these circumstances :
A police officer shouldnt be under a positive duty to act where to do so would put himself at risk. Generally the law does not impose a positive duty to act to prevent harm by the deliberate wrong of third parties (Smith v Littlewoods). The Court should not place itself in a position where it will have to judge whether a police officer acted appropriately "in the heat of the moment". Actions such as these should not be countenanced given the potential effect on force morale. Any alleged breach of duty should be determined in accordance with force disciplinary procedures. Other remedies were available to the Claimant. Such a duty would be far reaching and would apply to firemen, prison staff, rescue workers and others. It was significant, given the potential scope for such claims, that no such claim had ever previously been recognised in the courts.
The arguments against immunity :
Counsel analysed the Defendants position in terms of an employers duty to provide a safe system of work. He used the analogy of an officer carelessly failing to clean up an oil spillage. He relied on, inter alia, Frost v The Chief Constable of South Yorkshire Police , in which the Chief Constable had conceded a duty to take reasonable care to avoid exposing his officers to unnecessary risk of physical or psychiatric harm.
L.J. May indicated that the difficult decision for the court was whether, in this novel situation, it was fair, just and reasonable to impose the duty, or whether considerations of public policy required its rejection. Given the importance of the case, its potential scope and the fact that the public interest was expressly recognised as in the balance it is disappointing that the House of Lords refused leave to appeal. For what it is worth I think this case was wrongly decided and I set out below why I suggest that.
LJ May starts by citing Lord Keith in Hill :
"There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions..."
And says :
"This passage is instructive because it shows both that police officers may be liable in tort to a person who is injured as a direct result of his omissions, and that Knightley v Johns ... was regarded as rightly decided..."
I suggest LJ May ought to have emphasised the word "direct" as opposed to "omissions". No-one would suggest that the police cannot be liable for omissions which directly cause harm and this is well illustrated by the example of the failure to clear up an oil spillage given by the Claimants counsel. However in Knightley the motorist who collided with the on-coming police motorcyclist was held not to have been negligent, and therefore it is right to regard this as a case of the negligence of the Police Officer causing direct physical harm to his subordinate.
LJ May indicates that the case should be regarded as concerning an allegation of negligence against an officer in operational circumstances and thus distinguishes the case of Walters v Commr of Police of the Metropolis.
He observes when considering Knightley that :
"Two features of this decision are that the police inspectors own negligence had directly caused the Plaintiffs injury and the Plaintiffs injury was attributable in part at least to positive negligent intervention by the police inspector which created the danger [ie by giving the order to drive the wrong way down a tunnel]. The omission to close the tunnel was also held to be a breach of duty."
He considered Swinney and in particular those passages in which the Court of Appeal had observed that it was arguable that the Police had assumed a responsibility towards Mrs Swinney.
He then considered Capital and Counties Plc, summarising the same by saying that the rescue services should have immunity except where by their own positive action they had created or increased the danger. [Again an important case re-affirming the principle that there is in general no liability for omissions which cause indirect harm].
At 563 f LJ May summarises the various strands of authority as follows :
For public policy reasons the police are under no duty of care to members of the general public for their activities in the investigation or suppression of crime. Not a "blanket" immunity in that there may be exceptions where the police assume a responsibility to a particular individual, or other public policy considerations may outweigh those giving rise to the immunity. The police are not under a duty to respond to emergency calls, nor, if they do respond, are they liable for want of care in any attempt to prevent crime or effect a rescue unless their own negligent positive intervention directly causes harm which would otherwise not have occurred.
Again for policy reasons a senior officer is not liable for operational decisions taken in the heat of the moment - but such an officer may be liable for positive negligent intervention which causes (directly) injury to the subordinate and for particular failure or particular instructions given in breach of specific regulations which result (directly) in injury. [I have added the words in brackets so as to fully set out what was decided in Knightly].
A police officer may assume a responsibility to another officer - this being the only increment to the decided cases.
So far so good but then LJ May goes on to say this at 564 g :
"If a police officer tries to protect a member of the public from attack but fails to prevent injury to the member of the public, there should in my view generally be no liability in tort on the police officer for public policy reasons... If a police officer tries to protect a fellow officer from attack but fails to prevent injury to the fellow officer, there should in my view generally be no liability in tort. The relationship between the two police officers is arguably closer than the relationship between the police officer and the member of the public, but the public policy considerations are essentially the same and are compelling. One such consideration is that in the circumstances liability should not turn on, and the Court should not have to inquire into, shades of personal judgment and courage in the heat of the potentially dangerous moment.
"But in this case, Inspector Bell acknowledged his police duty to help the plaintiff. Yet he did not, on the extraordinary facts found by the judge, even try to do so. In my judgment his acknowledged breach of police duty should also incrementally be seen as a legal breach of duty of care. The duty is to comply with a specific or acknowledged police duty where failure to do so will expose a fellow officer to unnecessary risk of injury. Although I have expressed the duty so formulated as in increment, it is the same as or very close to the duty which founded liability in Knightly v Johns. There is also a sense in which Inspector Bell assumed a responsibility, not absolute, for the plaintiffs safety. There is in my view in this case a strong public policy consideration to balance with those identified in Hills case, that is the law should accord with common sense and public perception. I am sure Astill J was correct to say that the public would be greatly disturbed if the law held there was no duty of care in this case..."
This shows that the case is very limited in scope - it only applies where an officer fails to do anything to help a colleague at a time when he acknowledges a specific duty to do so. I have already explained above why the fact that the individual officer acknowledges a "duty" to act should not be determinative of the issue whether a duty arises. I would also suggest that this result is anomalous in that it imposes liability for an omission to act in circumstances where liability for a careless positive act will not even be countenanced, which is the reverse of the normal position in negligence, see for example Capital and Counties Plc. As explained I suggest that LJ Mays reliance on Knightley was ill-founded in that Knightley involved at least partly positive intervention and the infliction of direct physical harm, and even more importantly none of the public policy implications which - in relation to positive intervention by a rescuing officer - LJ May found to be "compelling" arose. In practice the decision means that the officer who is "rooted to the spot" in fear will be liable, but the officer who panics and intervenes carelessly will not. Would the public regard that distinction as a just one to make and would their concerns be allayed?
Hirst LJ (565 c) held that his "considerable anxiety" about the case was over-come by May LJs judgment that in the quite exceptional circumstances of this case a duty of care did arise. He took the opportunity to emphasise that "our decision in Swinney should not be interpreted in any shape or form as undermining the general principle laid down in Hills case."
In summary, although Costello must now be taken to represent the law, in practice it is likely to be confined to wholly exceptional circumstances and in some significant regards it is actually very restrictive of the scope of any duty of care owed by the police when going to the aid of the public and colleagues in that it supports the proposition that merely by going to the aid of a member of the public (and thereby arguably assuming a duty of responsibility towards that individual) a police officer does not take on a duty of care towards that individual. One example of this might arise in a public order situations - for example where the police deploy mounted officers at a football match to disperse hooligans so as to prevent injury to other spectators - if spectators injured as a result of the deployment - no duty of care would be owed to them.
2.6 Osman v The United Kingdom (ECHR).
I confess at the outset that I do not find this an easy decision to follow at all since it seems to me to fail to take account our system of pleading and the basis upon which a claim is struck out by our Courts. It is again perhaps of significance that it is a claim which was highly "attractive". The claimants husband has been killed, her son shot and wounded by a mentally deranged individual fixated upon the son. The perpetrator had waged a bizarre campaign of harassment against the family over a considerable period of time and the allegation was, in essence, that the police had negligently failed to respond appropriately to clear evidence of a threat to the lives of members of the family. No doubt it can be seen as "unjust" and a denial for such a claim to never even be investigated by the Courts. No one called upon to consider the case could have anything but the utmost sympathy for the Osmans. The issue for the European Court however was whether their right to have their claim heard by the Courts of United Kingdom had been infringed.
The ECHR unanimously held that striking out this claim without a trial on the merits was a breach of Article 6 of the Convention in that it infringed the Osmans right of access to a court. However the Court expressly held that the exclusionary rule in Hills case (which they did not limit to the "proximity" ratio) was acceptable in terms of the convention (as being necessary to maintain the effectiveness of the police force and hence prevent crime and disorder), but that its application to this case was disproportionate in that the exclusionary rule was not an absolute bar where competing public interests arose - eg the proximity test was satisfied and the allegation was that the police had been gravely negligent in protecting the life of a child and further there was the argument that the police had assumed a responsibility towards the applicants. Further the harm suffered was of a most serious nature and such considerations required an examination on the merits and not dismissal by way of application.
My understanding of para 146 of the decision is that, whilst it may be permissible to exclude claims involving trivial consequences, this is not acceptable in a case where the result of the negligence was catastrophic. Whilst I can think of no comparable doctrine in UK law that, in itself, is not my difficulty with this decision. What I find hard to follow is the Courts failure to distinguish between the two ratios of Hill and to indicate when, if at all, the "policy" ratio can validly exclude a claim, notwithstanding the presence of a sufficient degree of proximity.
The suggestion that the fact that allegations of gross negligence on the part of the police and the failure to afford protection to a child raises conflicting issues of public policy which need to be weighed following a trial on the merits does seem to me to be particularly hard to sustain. Our system of pleadings requires a claimant to plead all relevant facts and matters relied on in support of the existence of a duty of care. In considering the application to strike out, the Court of Appeal in Osman were bound to assume in the Plaintiffs failure, (and did), that all allegations contained in the Statement of Claim were true and proved. How then could a trial on the merits advance the Osmans claim claim? The Court of Appeal had to (and did) address the issue whether in all the circumstances set out in the Statement of Claim it was fair just and reasonable to impose a duty of care, and in doing so weighed the relevant conflicting public interests. In those circumstances what purpose would a trial on the merits have served? What public interest considerations would emerge in a trial which would not be evident on the pleadings. It is significant that the conflicting public interests in Swinney were spelt out by the Court. None were identified in Osman.
Nowhere does the ECHR indicate that Hill was wrongly decided, indeed the the Court expressly held that it was legitimate in terms of Convention. Yet that was a case where the alleged consequences of gross police negligence were catastrophic. It was of course a case where all the facts were not determined following a trial, but rather the weighing of conflicting public interests was carried out by the Judges assuming the allegation in the Statement of Claim to be true.
It is hard to know what the practical effect of Osman will be. Clearly the courts will take even greater persuading that claims should be struck out. Where there is an arguable case that the Police assumed a responsibility to the claimant it seems to me that Osman is clear authority that such a claim must be tried. Indeed on one reading it is hard to see how any claim involving death or serious personal injury can be validly struck out if a procedure whereby every allegation a party choses to make is assumed to be true and proved is nonetheless to be regarded as unfair if that party is deprived of the opportunity of proving those facts. The Courts repeated emphasis on the fact that no Court proceedings (the perpetrator pleaded guilty at the Corwn Court and the Coroners Inquest was purely formal) had established the facts means that Osman can be read as holding that it is a human right to bring a claim all the way to trial on the merits, notwithstanding that the claim is bound to fail, if no other fact finding procedure is available.
So far as the individual judgments are concerned having accepted the aim of Hills case as legitimate Sir John Freelands judgment included the following passages :
"The difficulty for me arises primarily from the fact that in the present case [Hills case] appears to have been applied as if conferring on the police a blanket exemption from liability in negligence so far as concerns their function in the suppression of crime, to the exclusion of any examination by the court of considerations which might pull in another direction.
"In this latter respect the present case stands in marked contrast to the later Court of Appeal case of Swinney where the Court had regard to the possible existence of other, and countervailing, considerations of public policy - in particular, as relevant in the circumstances of that case, the need to preserve the springs of information, to protect informers, and to encourage them to come forward. The court also considered it arguable, on the facts pleaded in that case, that there had been a voluntary assumption of responsibility by the police (a similar argument had been advanced by the applicants in this case)..."
He noted that the Plaintiff in Hill lost her claim both on the proximity point and on grounds of public policy, whereas LJ McGowan expressed the view in Osman that the Plaintiff had an arguable case on proximity.
"For me the exception, operating in this way, is an inappropriately blunt instrument for the disposal of claims raising human rights issues such as those of the present case."
However what Sir John Freeland did not do was identify the allegedly conflicting public policy considerations which needed to be weighed in the balance, explain why such an exercise could only be undertaken following a trial on the merits or explain why when McCowan LJ said "I consider this a plain and obvious case falling squarely within a House of Lords decision [ie Hill]" he was wrong.
For the reasons given it does seem that in the light of Sir John Freelands judgment striking out claims on the basis of the "policy" ratio of Hill alone is no longer permissible under the Convention.
3 Actions for breach of confidence
One of the interesting aspects of Swinney was the Plaintiffs claim based on breach of confidence. This is of purely academic interest only however, and is unlikely to be of any practical significance whatsoever. If a duty of care arises in relation to the use and storage of confidential duty the standard of that duty of care is certainly no higher under the duty of confidentiality. Indeed there is still considerable controversy as to whether a non-deliberate breach of confidence is actionable unless the is a separate duty of care.
I suppose there is the possibility that a claim might be made where the breach caused purely economic loss and so arguably recovery in negligence was not permitted but was possible for breach of confidence.
Deliberate disclosure - such as an officer selling a mug shot of a celebrity for personal gain - might also give rise to liability.
4 Liability under the Data Protection Acts
I shall here only deal with non-deliberate disclosure and so will not consider matters such as disclosure required by law or made in connection with legal proceedings.
What I intend to discuss is situations such as arose in the Swinneys case, namely non-authorised disclosure of data.
Until the Plaintiffs amended their claim in Swinney I was unaware of the remedy afforded by the Data Protection Act. Although the claim was under the 1984 Act, however I shall here deal with liability under the 1998 Act.
Section 13 provides:
(1) "An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage;
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from that controller for that distress if-
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes; (journalism, artistic and literary purposes - see section 3)
(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirements concerned.
These provisions replace the repealed section 22 and 23 of the 1984 Act. (The Swinneys claim was under section 23 of the 1984 Act).
Data Protection Principle Number 7 provides :
"Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."
Paras 9 - 12 of Part II of Schedule 1 of the Act gives some guidance as to the interpretation of principle 7 in essence saying that you take into account the availability and cost of technology and also the harm likely to result from unauthorised disclosure in determining the appropriate level of security. Appropriate steps must be taken to ensure reliability of any employees and or sub-contractors who have access to the data.
Clear that the burden of proof rests on the Data Controller to show that they took such care as was reasonable in the circumstances to avoid the contravention. It is submitted that this will be the same test for negligence with the burden reversed and certainly this was the view of Mr Justice Jackson in Swinney No 2, see at page 25 d :
"Since the Defendant has proved that he, the Chief Constable, by his officers, exercised reasonable care in all the circumstances to prevent the loss of the documents, he has a defence under section 23 (2) to the claim which is advanced under the Data Protection Act 1984."
There is no doubt that the cause of action under the Data Protection Act (which was only added after the Court of Appeal) rendered any argument that no duty of care was owed in negligence completely otiose. There was a plain statutory duty to take reasonable care and had it been included from the outset we would never have attempted to strike out the claim.
4.2 Some practical suggestions
Your force should be able to demonstrate that you have understood and acted upon the requirements of the Act. Your standing orders should require care to be taken to avoid unauthorised disclosure of data. Such orders should be brought to the specific attention of officers.
It might be worth circulating periodic reminders to all officers explaining the effect of the Act.
Consideration can be given to including on certain printed documents a specific and relevant warning : for example all print-outs of individuals previous convictions could contain a warning along the lines :
NOTE THIS DOCUMENT CONTAINS
SENSITIVE AND CONFIDENTIAL INFORMATION
Care to avoid its unauthorised disclosure must be taken
at all times. Do not leave in unattended motor vehicles
or other insecure locations. Once the document is no longer
required, care should be taken to ensure that it is appropriately
stored or destroyed.
Obvious candidates for such warnings are CIS and PNC printouts, actions printed by DATA management systems (such as HOLMES) etc.
Generally ensure that as part of the training of your forces officers they are made aware that they and their Chief Constable will be held to account should unauthorised disclosure occur. It is worth noting than none of the usual control mechanisms for the recovery of damages appear to apply to such claims. The aggrieved individual is entitled to damage and distress caused by the contravention of the requirements of the Act - and the act says nothing about that damage being foreseeable or indeed even the natural and probable consequence of the contravention. It merely says "by reason of..." and we shall have to see how that is interpreted by the Courts. (I cant find any time limit for brining such claims so presumably it is 6 years).
As the burden of proof is on the data controller a good reporting regime should be instituted. We would have lost Swinney had we been unable to satisfy the Court as to the circumstances of the loss of the documents. Where any data is lost it should be a requirement that the Officer concerned file a full report as to the circumstances of the loss and the steps taken to try and retrieve the same.
Consideration should be given to investigation the question of insurance cover for such claims.
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