Police Liability in Negligence: Should the Police Have a Duty to Protect Victims from Foreseeable Harm?

Transcription

1 Police Liability in Negligence: Should the Police Have a Duty to Protect Victims from Foreseeable Harm? It is unacceptable in modern Britain that a doctor can kill a patient through a negligent omission and be liable to pay compensation, but where the police fail and someone dies, they are immune in negligence". - Angela Michael, mother of Joanna Michael. 1 Abstract This piece considers whether the presumption against police liability in negligence for the failure to take reasonable steps to protect a particular victim against foreseeable harm is justified within tort law. This issue was recently discussed in Michael v Chief Constable of South Wales Police where the Supreme Court held that the police had no duty in tort to prevent foreseeable third party harm, subject to narrow exceptions, because of the omissions principle. This essay examines the policy reasons and common law principles concerning police liability in negligence and attempts to expose the weaknesses within the reasoning of the majority in Michael. It is submitted that a limited duty of care should be imposed on the basis of proximity that would allow the particular relationships and policy factors relevant to each case to be assessed and thus provide an appropriate remedy for victims of police wrongdoing. Keywords: Police Liability; Foreseeable Harm; Negligence; Tort 1 BBC News, Joanna Michael murder: Family cannot sue police (2014) < Accessed 28/02/15. 1

2 Introduction The Police Reform Act 2002, s86 requires every police officer to declare, I will to the best of my power prevent all offences against all people and property. Thus, the lay person may be surprised to learn that the police in England and Wales currently have no legal duty to take reasonable steps to prevent foreseeable harm caused by third parties, with no duty to intervene where a school teacher, known to be stalking a pupil, went on to seriously injure the boy and murder his father, 2 or where an exboyfriend who, after having been repeated reported to the police without response, finally attacked his ex-partner with a claw hammer. 3 While the police may be liable in negligence for acts of misfeasance, involving the creation of a particular source of danger, the police are not liable for nonfeasance, with no duty to prevent a person who represents a specific, well-defined risk from causing harm to another person. This was emphasised in the recent case of Michael v Chief Constable of South Wales Police, where a young mother told the police that her ex-boyfriend had attacked her and was going to return to fucking kill her. 4 Although the police station was only a 5-minute drive away, because of police carelessness, officers did not arrive at Michael s home until after 24 minutes had passed, by which time Joanna Michael had been stabbed 72 times. 5 Despite the police misconduct, the majority of the Supreme Court held that there could be no successful claim in negligence because of the common law principle against police liability for omissions. Faced with unconvincing justifications for the extraordinary rule that the police, as a public rescue service, currently have no duty to rescue anyone, 6 this essay will argue that a limited police duty regarding nonfeasance should be recognised in negligence to provide greater access to justice for wronged claimants. 2 Osman v Ferguson [1992] EWCA Civ 8. 3 Smith v Chief Constable of Sussex Police [2008] UKHL [2015] UKSC 2. 5 BBC (n1). 6 David Howarth, 'Public Authority Non-Liability: Spinning Out of Control' (2004) 63 Cambridge Law Journal 546,

3 1. Policy Reasons Against Liability i) Defensive Policing The defensive policing policy reason suggests that a duty to take reasonable steps to prevent foreseeable harm created by third parties would cause the police to be less willing to intervene to prevent crime. Accordingly, Lord Keith concluded that a duty of care should not be upheld since the increased risk of negligence claims in the event of harm would inhibit the police s ability to reduce crime to the detriment of the general public. 7 However, it is submitted that the available evidence suggests that a police duty of care regarding third party danger would not lead to defensive policing. In contrast to Lord Brown s statement that defensive policing would be an inevitable consequence of upholding this duty, 8 there is no indication of defensive policing in other common law jurisdictions that have recognised a police duty in negligence regarding the investigation or suppression of third party crime. 9 Analogously, there is no evidence, for example, that the duty of care owed by domestic ambulance services following Kent v Griffiths 10 to respond to emergency calls without unreasonable delay has resulted in defensive practice. 11 Furthermore, since no individual officer is liable for negligence costs while on duty with all negligence compensation paid from police funds, 12 it is suggested that the financial impact of a negligence claim for foreseeable third party harm would not bear heavily on individual police officers. Also, considering that the police officers involved in Kingham s Independent Review strongly opposed the idea that the preexisting police liability under the Riot (Damages) Act 1886 for third party riot damage 7 Hill v Chief Constable of West Yorkshire [1987] UKHL Ibid E.g., Doe v Metropolitan Police of Toronto (1998) 160 DLR (4 th ) 697; Carmichele v Minister of Safety and Security 2004 (3) SA [2000] EWCA Civ Dermot Walsh, Police Liability for a Negligent Failure to Prevent Crime: Enhancing Accountability by Clearing the Public Policy Fog (2011) King s Law Journal 22(27). 12 Police Act 1996, s88(2). 3

4 had led to defensive practice, with officers stating that the priority of the police was to protect the public, not to save money, 13 it is submitted that concerns over defensive policing are unwarranted. Moreover, it is suggested that the current system of no action, no tort duty regarding police liability may be more likely to cause defensive policing than if a limited duty in negligence were imposed on the police concerning foreseeable third party danger. Currently, it seems riskier for police to attend an emergency situation, where they might act to worsen the situation and attract negligence liability, 14 than deciding not to attend for which there is no legal duty to do so. 15 While it is unreasonable to conclude that the police are motivated primarily by a desire to avoid negligence liability, it is suggested that where the likelihood of a conviction may be low, such as in domestic abuse situations, 16 the risk of negligence if police officers do intervene might dissuade a police response. Remarkably, in Van Colle Lord Carswell appeared to support police hesitancy to intervene in domestic abuse situations, asserting that the probability of hysteria or exaggeration meant that police officers may quite properly be slow to engage themselves. 17 It is submitted that this encouragement of police scepticism appears divorced from reality given the under-reporting of domestic abuse, 18 as well as the 2014 HMIC report which concluded that for the majority of police forces, domestic abuse is a priority on paper but not in practice, with the police putting victims at unnecessary risk. 19 Thus it is suggested that the current state of affairs, whereby the police have no tortious duty to take reasonable steps to protect someone against foreseeable third party harm, appears to fail the vulnerable, to the detriment of the general public in contrast to defensive policing concerns. 13 Neil Kinghan, Independent Review of the Riot (Damages) Act 1886: Report of the Review 12 (Home Office 2013). 14 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR Michael (n4). 16 Everyone s Business: Improving the Police Response to Domestic Abuse (HMIC 2014). 17 Hertfordshire Police v Van Colle [2008] UKHL 50 [107]. 18 Kate Paradine and Jo Wilkinson, Protection and Accountability: The Reporting, Investigation and Prosecution of Domestic Violence (HMIC 2004). 19 HMIC (n16) 11, 6. 4

5 ii) Diversion of Police Resources Another public policy reason said to militate against police liability in negligence regarding third party harm is the diversion of police resources due to increased litigation. 20 In contrast to the baseless claims of defensive policing, litigation costs money and thus, at first glance, an increased susceptibility to litigation would seem likely to use more of both police and public funds. However, it is submitted that this outcome appears uncertain given the possibility that imposing liability may actually increase police efficiency and reduce the overall cost of crime. 21 It is suggested that negligence liability may provide a financial incentive towards improving policing standards, especially regarding crimes such as domestic abuse that have been associated with a traditional culture of police indifference. 22 Just as a study of US police forces found that some forces were employing more effective policing techniques than others, with Kansas City police officers spending 25% of their patrol time engaged in unofficial activities including personal errands, 23 it is conceivable that British police forces may be forced to increase policing standards if resources were liable to be diverted to compensate police negligence regarding third parties 24 ; as Lord Kerr stated, the risk of litigation may improve professional standards even where the professionals act in response to third party acts. 25 Furthermore, it is suggested that imposing a duty of care might encourage the police to act with more care and prevent more crime, meaning that there are fewer victims 20 Van Colle (n17) [133]. 21 Harvard Law Review, Police Liability for Negligent Failure to Prevent Crime (1981) Harvard Law Review 94(4). 22 Joanne Conaghan, Civil Liability: Addressing Police Failures in the Context of Rape, Domestic and Sexual Abuse (2015) 23 < c236-41bf-bd3b-74e4aabb8f4c> Accessed 21/02/ George Kelling, Tony Pate, Duane Dickman and Charles Brown, The Kansas City Preventative Patrol Experiment (Police Foundation 1974); George Kelling and Tony Pate, Response To The Critique of the Kansas City Preventive Patrol Experiment (1975) Police Chief 42(22). 24 Clearly there is a limit to the application of this principle, beyond which the diversion of resources would decrease the crime reduction effect of policing. 25 Michael (n4) [179]. 5

6 who require costly NHS medical treatment and state welfare benefits. 26 Thus, while the police may have to spend more defending a greater range of negligence claims, it is submitted that this internalisation of the costs of negligence by the police may reduce the overall public costs associated with crime. iii) Existence of Alternative Remedies While the recent High Court ruling in DSD v Commissioner of Police for the Metropolis suggested that a successful Human Rights Act 1998 (HRA) claim could be brought against the police regarding the duty to investigate crime under article 3, 27 the presence of an alternative means of redress does not preclude an action in negligence. 28 Furthermore, it is submitted that HRA claims have significant disadvantages for victims compared to negligence claims. Evidence for this assertion exists in that HRA claims have a shorter limitation period, have no right to compensation, require a higher threshold of careless conduct than mere negligence, 29 and will be unavailable if the relevant conduct occurred before the HRA came into force. 30 This may especially disadvantage child abuse victims who may be prevented from suing for earlier abuse, whereas in tort the limitation period does not start until the claimant reaches adulthood following s28 and s38(2) of the Limitation Act In this sense, it is suggested that the HRA is an inadequate means of holding the police accountable for negligent conduct since justice may be significantly limited by the procedural requirements of HRA claims to the extent that invidious results can be produced for claimants Stelios Tofaris and Sandy Steel, Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink University of Cambridge Faculty of Law Research Paper 39 (2014) [2014] EWHC Phelps v London Borough of Hillingdon [2001] 2 AC 619, Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB) [80]. 30 Donal Nolan. Negligence and Human Rights Law: The Case for Separate Development (2013) Modern Law Review 76(2), Ibid. 32 Conaghan (n22) 17. 6

7 2. Policy Reasons For Liability Faced with the unconvincing public policy reasons against the imposition of a duty of care, it is submitted that the overriding policy consideration should be to provide a wronged claimant with an appropriate remedy. This principle should apply to the police; as Phillimore LJ remarked, How can it be public policy that Government servants should be free from liability if they exercise their duties negligently? It is public policy that they should exercise them with proper care. 33 Proceeding on the proposition that the principle that wrongs should be remedied is a cornerstone of justice, 34 it is submitted that the practice of denying a remedy to a victim merely on the basis of judicial intuitions 35 without an evidential basis is unjustified. Moreover, it is suggested that the status of police non-liability on the grounds of policy appears cruelly ironic: victims exposed to ineffective police conduct may be denied a remedy on the assumption that granting a remedy might cause police to respond ineffectively to future risks. 36 i) The Special Status of the Police Considering the special position of the police as the part of the state empowered to use force, 37 it is suggested that citizens are encouraged to rely upon the protection provided by the police since the law prohibits citizens from protecting themselves beyond reasonable self-defence. 38 This relationship is important, allowing citizens to pursue interests other than their personal protection. However, it is submitted that this power imbalance creates a relationship of dependency regarding serious threats that may justify a duty of care if the police are careless regarding their protection role arising from their special position. 39 This is posited on the basis of the tort principle 33 Dorset Yacht v Home Office [1969] 2 QB 412, James v Kaney [2011] UKSC 13, [108]. 35 Jonathan Morgan, Policy Reasoning in Tort Law: the Courts, the Law Commission (2009) Law Quarterly Review 125, Walsh (n11) Robert Reiner, The Politics of the Police (4 th Ed. OUP 2010). 38 Smith (n3) [63]. 39 Michael (n4) [181]. 7

8 that if A interferes with B s ability to protect herself from harm, then A will owe B a duty of care to take reasonable action to prevent B from suffering harm. 40 McBride objected to this argument in relation to Michael, contending that the removal of legal limitations on citizens from defending themselves would not necessarily mean that they would defend themselves, stating that even if Joanna Michael had been legally permitted to own a gun, there is no reason to think that she would have armed herself to protect against her assailant 41. This suggests that a relationship of dependency is not necessarily created by the legal limitations on individual protection. However, it submitted that this objection wrongly focuses on the particular example of gun ownership: in contrast, the underlying point is that if Joanna Michael had no expectation of the police coming to her rescue if a serious threat of violence arose, then it would seem unreasonable for anyone, especially a young single mother, not to take steps to protect themselves as a means of insurance against the chance of serious violence that the police are normally expected to protect against. ii) Police Accountability Although there are other means of investigating police conduct, a police duty of care regarding foreseeable third party harm appears to have significant advantages for victims. For example, a civil action is more likely to return a favourable decision for claimants compared to a complaint to the IPCC, 42 where 75% of substantiated complaints are concluded without the officers involved being subjected to criminal or disciplinary actions. 43 Additionally, it is suggested that the tort process may involve a more thorough investigation; as Hoyano stated: in house post-mortems lack the zeal of the adversarial trial process Nicholas McBride and Roderick Bagshaw, Tort Law (4 th Ed. Pearson 2013), Nicholas McBride, Michael v Chief Constable of South Wales Police (2015) 10 < Accessed 28/02/ Walsh (n11) Graham Smith Actions for Damages Against the Police and the Attitudes of Claimants (2003) 13(4) Policing and Society Laura Hoyano, Policing Flawed Police Investigations: Unravelling the Blanket (1999) MLR 62,

9 However, it is submitted that the current system of police non-liability regarding omissions may prevent claimants from holding the police accountable for unacceptable conduct. This may be seen in Brooks v Commissioner of Police for the Metropolis where, despite the racist police treatment of a claimant who had just witnessed his friend s murder, Lord Steyn stated that a legal duty on the police to treat victims with respect would be going too far since treating the public with care would supposedly inhibit a robust approach needed by the police to fight crime. 45 Yet, Lord Steyn s discussion of police liability appears to offer a false dichotomy: a stark choice is presented between a police force overburdened by legal restrictions and a force empowered to perform their public role fearlessly and with dispatch because of their freedom from legal duties. 46 However, all that is proposed is that there should be a legal duty on the police to act as they should in accordance with the professional standards that they are obliged to comply with. 47 Provided that the police comply with these standards then the Bolam test will prevent a breach of a duty of care from being found. 48 Thus, it is submitted that the extension of police liability in negligence regarding foreseeable third party harm contains no danger of the police having to walk on eggshells when responding to crime, 49 yet may provide victims with an appropriate remedy and hold the police accountable for careless conduct, perhaps to the effect that similar carelessness in the future might be avoided, or at least reduced in frequency. 45 [2005] UKHL 24, [30]. 46 Ibid. 47 E.g., Metropolitan Police: Professional Behaviour [1.20] < 4.pdf> Accessed 10/03/ Bolam v Friern Hospital Management Committee [1957] 1 WLR Walsh (n11)

10 3. Omissions i) Distinguishing between Acts and Omissions While policy reasons continue to affect judicial opinion regarding police negligence, 50 it is submitted that the decision in Michael demonstrates a shift in judicial reasoning from a focus upon policy reasoning, as seen in Van Colle 51, towards reasoning based on legal principle and the distinction between acts and omissions. 52 Evidence for this suggestion appears in Lord Toulson s statement that the central question is now not whether the police should have a special immunity on the basis of public policy, but whether an exception should be made to the ordinary common law principles opposed to negligence liability for omissions. 53 However, it is submitted that this distinction between acts, which may attract liability, and omissions, which do not, is tenuous. Where a person ought to have been aware of a danger created by a third party but unreasonably failed to prevent it, it is suggested that categorising this failure to act as an omission undeserving of legal liability is an artificial approach to the conduct involved. Acting to create a danger or failing to act reasonably to prevent a known danger may result in the same outcome for the victim, and thus there may be no moral distinction between either behaviour as Lord Mustill suggested. 54 In both courses of action the person may have behaved negligently to allow the harm to pass to the victim, yet only one course of conduct attracts liability. Moreover, in contrast to the clearly defined division between acts and omissions that Lord Toulson implies, 55 it is suggested that a person who had an opportunity to prevent danger appears as a but for cause of the injury suffered, with the omission to act amounting to misfeasance masquerading as nonfeasance Michael (n4). 51 Smith (n3). 52 Conaghan (n22) Michael (n4) [116]. 54 Airedale NHS Trust v Bland [1993] AC 789, Michael (n4) [97]. 56 Ernest Weinrib, The Case for a Duty to Rescue (1980) Yale Law Journal 90(2)

11 ii) Distinguishing between Private Individuals and Public Authorities Despite this tenuous distinction between acts and omissions, is suggested that the omissions principle should apply to private individuals to prevent them from having a positive duty to protect others from foreseeable harm since such a duty would substantially restrict individual freedom 57 ; as Fitzgerald stated, prohibiting an act may leave a person free to do other actions, yet prohibiting an omission leaves a person only free to do the one act that must not be omitted. 58 In contrast to the Diceyan approach expressed in Michael that the police should be subject to the same law regarding omissions as private individuals, 59 it is submitted that the normative differences between individuals and the police warrant differential treatment. It is suggested that the increased restriction on freedom imposed by an omissions duty is justified regarding the police because of the different type of freedom held by the police compared to private individuals. Although individual freedom may have intrinsic value, the freedom held by the police may only have value in acting towards the aims of the institution. 60 Thus, a police duty in tort regarding omissions would not detrimentally affect police freedom if in concordance with their instrumental aims, such as the investigation and suppression of crime. Likewise, it is submitted that the other prominent objections to a police duty of care regarding omissions, such as why a particular defendant should be liable for compensating losses caused by a third party, known as the why pick on me? argument, 61 do not apply to the police: the public role of reducing crime and protecting people distinguishes the police from the position of private citizens and means that the Diceyan equality principle should not apply. As Du Bois suggested, the 57 Stovin v Wise [1996] AC PJ Fitzgerald, Acting and Refraining 27 Analysis Albert Dicey, Lectures Introductory to the Study of the Constitution (Macmillan 1885). 60 Tofaris (n26) Stovin (n57). 11

12 exclusion of police from negligence liability for omissions may let public authorities off too easily. 62 Despite the difference in position between individuals and the police, McBride suggests that the omissions principle should still apply to prevent police liability for nonfeasance because the law should not impose liability for the failure to confer a benefit. 63 Yet, this moral objection appears flawed in its portrayal of the police as mere good samaritans. Liability for omissions might be corrupting 64 as a disincentive towards people doing good things for others if the people were unpaid volunteers, yet the police are employees of the state who are paid from public funds to perform an essential role for the benefit of the public; they are not simple altruists 65 working merely to do good. Moreover, it is submitted that the normative differences between the positions of the police and private citizens justify differential treatment in negligence, in contrast to Lord Toulson s Diceyan view that the police should have no special treatment Francois DuBois, Human Rights and the Tort Liability of Public Authorities (2011) Law Quarterly Review 127, McBride (n41) Ibid. 65 Kevin Williams, Emergency services to the rescue? (2008) Journal of Personal Injury Law, Michael (n4) [115]. 12

13 4. Proximity While proximity is normally one of the three factors used to determine whether a duty of care exists, 67 it is suggested that the approach adopted in Michael means that there is a presumption of non-liability regarding police omissions, owing to the omissions principle, which may only be rebutted if certain factual circumstances said to involve proximity exist. 68 Furthermore, it is submitted that the two factual exceptions outlined in Michael to the common law rule against omissions liability are unduly narrow. Firstly, applying Home Office v Dorset Yacht, 69 Lord Toulson stated that the police (D) may be liable in negligence for the actions of a third party (T) when D was in a position of control over T and should have foreseen the likelihood of T causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that control. 70 However, it is submitted that this emphasis on control as the limiting factor of proximity conflicts with the wider notion of proximity originally suggested in Dorset Yacht. Considering the extent of proximity, Lord Pearson stated, a difficult problem may arise as to how widely the neighbourhood [that constitutes proximity] extends. 71 Thus, Lord Pearson implied that proximity should not be limited to a simple consideration of control, in contrast to Lord Toulson s interpretation. Similarly, the claim in Hill was dismissed because of what Lord Keith described as the lack of a further ingredient needed by proximity, 72 rather than a specific requirement for control as the determinant of proximity. The second exception to the rule against liability for omissions was said to require an assumption of responsibility where D assumes a positive responsibility to safeguard C in accordance with the Hedley Byrne principle, as expanded by Spring v Guardian Assurance. 73 It is submitted that the majority again adopted an unduly narrow 67 Caparo v Dickman [1990] UKHL Michael (n4) [98]. 69 [1970] UKHL Michael (n4) [99] Emphasis added. 71 Dorset (n69), 25. Bracketed words added. 72 Hill (n7) Michael (n4) [100]. 13

14 approach, given that an assumption of responsibility essentially involves the broader question of whether a sufficient relationship of proximity existed, as Giliker notes, 74 yet the court held that an assumption of responsibility required an explicit assurance of responsibility. 75 This idea that an assumption of responsibility can only arise when an explicit assurance is made appears to neglect practical reality as Lord Kerr commented. 76 A person, such as Joanna Michael, may be in a vulnerable and distressed state whereby she has no choice but to rely on the police for protection, regardless of the presence of an explicit undertaking. Moreover, it is suggested that a broader consideration of proximity is more appropriate than the current approach of the courts in holding certain factual details, such as control or an explicit assurance, to be the limits of a discussion of proximity: a broader consideration of proximity may allow the particular relationship between the claimant and defendant to be assessed, 77 in conjunction with important irretrievably entwined policy issues. 78 While there are more factual scenarios which have been held to constitute exceptions to the rule against negligence for omissions than the two stated in Michael, 79 it is suggested that all of these exceptions are based upon rigid factual scenarios which appear largely arbitrary: for example, why should the police be liable when their careless behaviour causes a criminal in their control to harm another, yet not be liable when their careless behaviour results in a third party causing foreseeable harm to a known victim? Thus, rather than adhering to rigid factual circumstances, it is suggested that the courts should retain significant discretion when judging the proximity element within 74 Paula Giliker, Tort (5 th Ed. Sweet and Maxwell, 2014) Michael (n4) [138]. 76 Ibid. [167]. 77 Keith Stanton Professional Negligence in Tort: The Search for a Theory in Wrongs and Remedies in the 21 st Century (Clarendon 1996) Paula Giliker, Osman and police immunity in the English law of torts Legal Studies 20(3), E.g., creating a danger which a third party sparks off Haynes v Harwood [1935] 1 KB 146; failing to take reasonable action to remove a danger on private land Clark Fixing v Dudley [2001] EWCA Civ

15 a duty of care in order to arrive at the most appropriate decision. This may involve considering appropriate policy factors, as well as balancing the victim s moral claim to compensation for avoidable harm against the defendant s moral claim to be protected from the undue burden of legal responsibility. 80 It is submitted that the decision-making process should not rely upon a set of narrow factual exceptions to the general rule against police liability since these factual exceptions may produce unsatisfactory outcomes when applied to slightly different situations. 81 Considering the desirable expectation that the public may rely upon the police for their protection, 82 it is suggested that the matter would be better assessed on an objective basis. As suggested in Phelps, 83 responsibility could be imposed upon the police by law where a sufficient relationship of proximity was deemed to exist, regardless of whether an assumption of responsibility was intended. This might be held where a claimant reasonably relies upon the police for his or her protection in response to a specific threat. 84 Accordingly, it is submitted that the expansive test of proximity proposed by Lord Kerr and supported by Lady Hale should be applied to allow police liability to be assessed based on the particular facts and surrounding policy considerations, with proximity held to exist if the police know or ought to know of an imminent threat of death or personal injury to a particular individual 85. In accordance with the true ratio of Hill, 86 it is submitted that the police should be liable in negligence for the failure to prevent foreseeable harm created by a third party if a relationship of sufficient proximity is present and it is fair, just, and reasonable for a duty of care to exist, rather than only imposing liability if an arbitrary set of facts are present. 80 South Pacific v New Zealand Security [1992] 2 NZLR Michael (n4) [165]. 82 Smith (n3) [60]. 83 Phelps v Mayor of Hillingdon LB [2000] UKHL Michael (n4) [173]. 85 Ibid. [197]. 86 Ibid. [157]. 15

16 Concluding Remarks Given the role of the police as arguably the most vital public service that protects the liberties enjoyed by the public, 87 it is important that the police service should not be hampered by an excessive legal burden that would inhibit its public role. At the same time, the police service is responsible for the protection of the public and there should be an appropriate remedy available for wronged individuals if this responsibility is neglected. Given the IPCC findings that the call handler appeared not to be listening during parts of Joanna Michael s emergency call, 88 it is clear that the police do not always apply their best endeavours 89 in the discharge of their duties, in contrast to Lord Keith s statement in Hill. While the judiciary no longer justifies police non-liability for nonfeasance primarily on speculative policy grounds, it is submitted that the new use of the omissions principle to justify police non-liability in Michael equates to the substitution of one blanket ban for another. The omissions principle appears equally unsatisfactory, permitting police liability only if arbitrary factual circumstances are present, and thus failing to assess the particular relationships and policy factors involved. For reasons of justice, and given that there are no persuasive arguments that liability would grossly diminish the police service s effectiveness or efficiency, it is submitted that wronged citizens should have an appropriate remedy in tort if the police service performs its public role negligently and a sufficient relationship of proximity exists, determined in accordance with a understanding of proximity beyond the constricted exceptions which are currently permissible. As stated in Heavens v Pender, 90 the categories of negligence are never closed ; accordingly, it is submitted that a duty of care on the police to take reasonable steps to prevent foreseeable third party harm could and should be established to recognise the special role of the police in the modern state in relation to the needs of the citizen. Unfortunately, the judgment in Michael seems likely to prevent the recognition of this 87 Walsh (n11) IPCC, Independent Investigation into Police Contact with Joanna Micheal prior to her Death (2010). 89 Hill (n7). 90 Heaven v Pender (1883) 11 QBD

17 duty of care for the time being, if not for a generation as McBride suggests. 91 In the meantime, victims of unacceptable police behaviour are left only with a remedy under the HRA, and may continue to suffer injustice owing to its procedural limitations. 91 McBride (n41). 17