House of Lords
Published August 4, 2008
Smith v Chief Constable of Sussex Police
Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of
Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches July 30, 2008
Considerations of public policy precluded the imposition of a common law duty
of care on police who, in discharging their public duty of combating and
investigating crime, had not protected a member of the public from a violent
attack, the risk of which and the identity and whereabouts of the likely
attacker he had reported to them.
The House of Lords so held, Lord Bingham dissenting, when allowing an appeal
by the Chief Constable of Sussex Police from the Court of Appeal (Lord
Justice Pill, Lord Justice Sedley and Lord Justice Rimer) (The Times
March 17, 2008) which had allowed an appeal by Stephen Smith from Judge
Simpkiss, at Brighton County Court who, on January 31, 2007, struck out his
negligence claim as disclosing no cause of action.
Mr Smith reported to his local police that he had received messages from
Gareth Jeffrey, his former partner, making persistent explicit death threats
and provided details of the partner’s previous violent history, his home
address and the messages. The officers declined to look at or record the
messages, took no statement and completed no crime form. They did take steps
to trace the messages but Mr Smith was violently attacked by the partner and
suffered severe and continuing injuries.
Mr Edward Faulks, QC and Mr Edward Bishop for the chief
constable; Ms Heather Williams, QC and Mr Guy Vassall-Adams
for Mr Smith; Mr Nigel Giffin, QC and Ms Joanne Clement for
the Secretary of State for the Home Department, intervening; Ms Dinah
Rose, QC, Mr Paul Bowen, Mr Richard Hermer, Ms Alison Gerry and Ms
Anna Edmundson for Inquest, Justice, Liberty and Mind, intervening; Mr
Tim Owen, QC and Ms Jessica Simor for the Equality and Human
Rights Commission, intervening.
LORD BINGHAM, dissenting, said that if the pleaded facts were established the
chief constable owed Mr Smith a duty of care. Whether there was a breach of
that duty could not be established until the defence was heard.
His Lordship would hold that if a member of the public, A, furnished a police
officer, B, with apparently credible evidence that a third party whose
identity and whereabouts were known presented a specific and imminent threat
to his life and safety, B owed A a duty to take reasonable steps to assess
such threat and, if appropriate, take reasonable steps to prevent it being
executed: that was the liability principle.
That principle was in no way inconsistent with the ratio ofHill v Chief
Constable of West Yorkshire Police ([1989] AC 53) or Brooks v
Commissioner of Police of the Metropolis (The Times April 26,
2005; [2005] 1 WLR 1495).
The core principle derived from those cases was that, in the absence of
special circumstances, the police owed no common law duty of care to protect
individuals against harm caused by criminals since such a duty would
encourage defensive policing and would divert manpower and resources from
their primary function of suppressing crime and apprehending criminals in
the general public interest.
Those decisions were correct on their facts, but not in conflict with the
liability principle which would not distract the police from that primary
function but called for its reasonable performance.
His Lordship referred to Osman v Ferguson ([1993] 4 All ER 344) and OLL
Ltd v Secretary of State for Transport ([1997] 3 All ER 897). In the
first case, the domestic predecessor of Osman v United Kingdom (Application
No 23452/94) ((1998) 29 EHRR 245), a schoolmaster, infatuated by the Osmans’
son killed Mr Osman and seriously wounded the son, after many incidents of
harassment and intimidation reported to the police.
A negligence claim against the police was struck out by the Court of Appeal
which found, by a majority, a sufficient relationship of proximity but held,
unanimously, that the public policy considerations in Hill precluded
any duty of care. That was an unsatisfactory result.
It was strange that public policy should be thought to preclude redress in
such circumstances since in his opinion, accepted by the House in X
(Minors) v Bedfordshire County Council ([1995] 2 AC 633, 749), the
public policy consideration which had first claim on the loyalty of the law
was that wrongs should be remedied and very potent considerations were
required to override that policy.
In the second case, a negligence claim was struck out in respect of the
coastguards’failure to launch a search and rescue operation.
His Lordship felt bound to say that a law of delict which denied a remedy, in
the absence of any statutory inhibition, failed to perform the basic
function for which such a law existed.
On the assumed facts here, his Lordship was satisfied that the police owed Mr
Smith a duty of care. Proximity was established; if it were necessary to
find a special relationship or an assumption of responsibility, that was
satisfied.
Public policy pointed strongly towards the imposition of a duty of care: Mr
Smith had approached a professional force with special skill in assessing
criminal risk and investigating crime, whose main public function was to
maintain the Queen’s peace, prevent crime and apprehend criminals.
He was entitled to entitled to look to them for protection and they owed him a
duty to take reasonable steps to assess the threat to him and, if
appropriate, take reasonable steps to prevent it.
LORD HOPE referred to Brooks, where Lord Steyn (at paragraph 30) warned
against a retreat from the core principle in Hill which would have
detrimental effects for law enforcement.
His Lordship said that Lord Steyn was laying down a principle of public policy
to be applied generally. The point he made was that the principle had been
enunciated in the interests of the whole community. Replacing it with a
legal principle focusing on the facts of individual cases would mount to a
retreat from the core principle.
One should be careful not to be persuaded by police shortcomings in individual
cases to undermine that principle. A principle of public policy that applied
generally might be seen to operate harshly in some cases, when judged by
ordinary delictual principles.
The risk that the application of those ordinary principles would tend to
inhibit a robust approach in assessing a person as a possible suspect or
victim was directly relevant to so-called domestic cases such as Mr Smith’s.
Given the nature of such cases, the judgment as to whether more immediate
action was required in one such rather than another had to be left to the
police.
If the liability principle were adopted it would lead to uncertainty in its
application and the detrimental effects that Lord Steyn warned against.
Who was to judge whether the evidence were credible and the threat imminent?
Those were questions the police had to deal with on the spot. A robust
approach would leave the matter to the officer’s judgment.
The liability principle said that if that judgment were challenged a judge had
to decide on an objective test. Subjecting the officer’s judgment to such a
test would tend to lead to defensive policing, focused on preventing, or
minimising the risk of civil negligence claims. It could deny the police the
freedom needed to act as the occasion required in the public interest.
The balance of advantage lay in preserving the Hill principle. The
present case did not fall within the category mentioned by Lord Nicholls of
Birkenhead in Brooks (at paragraph 6) of exceptional cases where
circumstances compelled the conclusion that the absence of a remedy sounding
in damages would be an affront to the principles which underlay the common
law.
Applying the ratio of Brooks, his Lordship did not see how Mr Smith’s
case could succeed if it were to go to trial.
Lord Phillips, Lord Carswell and Lord Brown delivered concurring opinions.
Solicitors: Weightmans LLP; Griffiths Smith Farrington Webb, Brighton; Treasury
Solicitor; Bhatt Murphy, Hoxton; Mr John Wadham.
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