Robinson & Worboys: Supreme Court extends police liability for negligence and human rights breaches

Elizabeth Robinson, a Yorkshire woman now in her eighties, has absolutely nothing in common with the ‘Black Cab rapist’ John Worboys – other than the fact that both of them are at the heart of two important Supreme Court decisions this month concerning the legal liability of police forces for harm to members of the public. Both decisions look to have extended forces’ liability, albeit in quite different areas.

Mrs Robinson had been pushed to the ground and injured by two officers pursuing a suspected drug dealer. She made a negligence claim against West Yorkshire Police. Two of Worboys’ victims – under the anonymised names DSD and NBV – brought claims against the Met Police arguing that its failures in investigating his crimes meant that the State had exposed them to inhuman and degrading treatment (i.e. the assaults he committed against them) in breach of Article 3 of the European Convention on Human Rights (ECHR).

Mrs Robinson and DSD & NBV both succeeded in the Supreme Court. Mrs Robinson’s claim had failed both at first instance and appeal, in contrast to those of DSD & NBV which were successful at both lower levels. The cases are examined separately at the foot of this article.

The immediate impact of both cases is that the potential liabilities of the police (and possibly other law enforcement agencies of the State) have been expanded to new areas. The control mechanism for the new Robinson liability may be that a duty of care does not exist generally, but only where the police themselves have created the risk of injury or damage.  Although the extent of the ECHR liability now recognised in DSD may prove more difficult to define in practice because of the nuanced and different approaches in the Supreme Court, it seems fairly clear that a degree of serious / significant failure is likely to feature as a threshold requirement in any future similar claims.

The claims arose in distinct areas of law – Robinson in the tort of negligence and DSD in public law – so it is perhaps not surprising that neither decision refers to the other (despite Justices Hale, Mance and Hughes featuring in both). That they extend police liabilities is a common feature of both and Lord Mance in DSD seemed to suggest that the legal debate on this wider point might have real practical consequences, as:

“[the debate] has not in the present context really focused at any stage on the implications for policing of the general duty which it has suggested. These have been discussed domestically in a number of common law cases, and include the risks of defensive policing and of police priorities being affected by the perceived risk of being sued, as well as the significant financial implications of exposing the police to all those potentially affected by any failure in police investigative work: see eg Michael v Chief Constable of South Wales Police [2015] UKSC 2.”

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

The Robinson case extends liability in negligence for operational matters. Inevitably, it turns not only whether a duty of care should exist on the facts of the case but also on whether any such duty was breached.

The first instance judge found as a matter of fact that injury to Mrs Robinson was foreseeable and that the actions of the officers were negligent (meaning there would be breach if a duty of care arose). However, he went on to hold that no duty existed because of the so-called Hill immunity. He followed a conventional view was that Hill, as a matter of public policy, meant that police are generally immune to negligence claims arising from investigating and preventing crimes. The Court of Appeal upheld the application of Hill to defeat the claim.

In the Supreme Court, Hill and related cases were considered at length. Lord Reed gave the leading opinion that there was no such general rule that police are not under any duty of care when investigating and preventing crime. In fact, in his view, the correct proposition was that the police “generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise.” In particular, a duty of care to protect an individual from a risk of injury would arise when the police themselves had created that risk (as they had done here). The application of this analysis to the facts meant that:

“It would be absurd to say that the officers owed Mrs Robinson a duty of care not to arrest [the suspect] when she was in the immediate vicinity, because of the danger that she might be injured if he attempted to escape, and then to hold that his attempted escape broke the chain of causation between their negligently arresting him when she was next to him, and her being injured when he attempted to escape. In short, Mrs Robinson was injured as a result of being exposed to the very danger from which the officers had a duty of care to protect her.”

Commissioner of Police of the Metropolis v DSD & NBV [2018] UKSC 11

The ECHR claim pursued by two of Worboys’ victims is very different in background and nature to Mrs Robinson’s negligence claim. It is nevertheless worth nothing that these claimants had failed in an earlier negligence claim (against Worboys and the motor insurer of the taxi: AXN v Worboys & Inceptum Insurance [2012] EWHC 1730 QB) and subsequently commenced the action against the Met under the ECHR (as incorporated into English law by the Human Rights Act 1998).

The precise nature of the State’s article 3 obligation not to expose citizens to inhuman or degrading treatment was the main feature in this case. Lord Kerr said that “the kernel” of the claim was whether the significant failures by the Met (and hence the State) breached the claimants’ article 3 rights. He also pointed out that the Met “accepts that there were significant errors by the police in each of the investigations”.

The Supreme Court unanimously dismissed the Met’s appeal and found for the claimants. The characterisation of the errors by the police as significant (highlighted above in bold) proved a critical element.

Lords Kerr and Neuberger (with Lady Hale agreeing) accepted that “serious failures which are purely operational in nature” (such as in investigating crimes) will ground a claim for breach of article 3. As has been already noted, the operational failures or errors in this case were significant. It was “unnecessary to list all the operational failings” as they were “set out in admirable and clear detail by the trial judge in his judgment.” [That failures in systemic matters would ground a claim was not, it appears, in dispute and Lord Kerr also explained that “simple errors or isolated omissions will not give rise to a violation of article 3”.]

Lord Hughes and Lord Mance also found for the claimants, but for slightly different reasons.

Lord Hughes was also concerned about uncertainties as to the extent of the State’s article 3 obligation. In his view, article 3 imposed a positive obligation on the State to have appropriate legal and policing structures (for the investigation of violent crime) administered in good faith and with proper regard for the gravity of the behaviour under consideration. That had been breached in this case by what he regarded as structural failings in the systems and it was those breaches which gave rise to the liability. He said that “What went wrong involved plain structural errors … The various detailed failings in the conduct of the inquiry were largely attributable to this flawed structural approach.”

He favoured an overall analysis of the State’s article 3 obligation and of the structural approaches put in place to meet it. It was not a question of examining detailed elements of an investigation after the event. His approach therefore [did] not point towards a test of ex post facto assessment of whether the investigation was careless or made mistakes which ought not to have been made, nor to a finding that there has been a breach of the right not to suffer torture, or inhuman or degrading treatment, when the complaint is that an investigation could and should have been done better.”

Lord Mance pointed out the “significant difference” between his judicial colleagues regarding the approach to be taken, although he emphasised that all the members of the Court found for the claimant. He argued that breach of the State’s article 3 obligation should arise only in relation to serious failings rather than simple or isolated omissions; a distinction which in his view should replace that between operational and systemic failures.

ak Scanlan_O-11_web

Written by Alistair Kinley, director of policy and government affairs and BLM and Orla Scanlan, partner.

Leave a Reply