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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Osman v Ferguson [1992] EWCA Civ 8 (07 October 1992) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1992/8.html Cite as: [1992] EWCA Civ 8, [1993] 4 All ER 344 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR PETER PAIN)
(Sitting as a Judge of the High Court)
B e f o r e :
LORD JUSTICE BELDAM
and
LORD JUSTICE SIMON BROWN
____________________
| MULKIYE YOSUF OSMAN |
(First Plaintiff) Respondent |
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| and |
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| AHMED OSMAN |
(Second Plaintiff) Respondent |
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| -v- |
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| DR. HUGH CAMERON FERGUSON |
(First Defendant) |
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| and |
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| THE COMMISSIONER OF POLICE FOR THE METROPOLIS |
(Second Defendant)Appellant |
____________________
MR. J. HENDY QC and MR. T. KERR (instructed by Messrs. Christian Fisher & Co., London, WC1) appeared on behalf of the Respondents/Plaintiffs.
____________________
Crown Copyright ©
".... by 4th May 1987 at the latest, and from about 4th May 1987 until 8th March 1988 the Hackney police were in possession of sufficient evidence - and would have had yet stronger evidence, including admissions, had they interviewed Paget-Lewis and/or searched his home -
to arrest Paget-Lewis and charge him with criminal damage in relation to the graffiti (referred to in paragraph 7.10 above)
to arrest Paget-Lewis and to charge him with theft and/or burglary in relation to the missing files concerning the Second Plaintiff and Leslie Green (referred to in 7.12 above)
and had Paget-Lewis been so arrested and charged the Hackney police were in possession of sufficient evidence by 4th May 1987 at the latest successfully to oppose bail by reason of all the factors pleaded herein above; and from 4th May 1987 onwards the occurrence of the various incidents pleaded above occurring after 4th May 1987 would have enhanced yet further the likelihood of bail being successfully opposed."
For that purpose it is necessary to consider Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004. This was a decision on a preliminary point of law. The short facts were that a group of Borstal boys were encamped on Brownsea Island under the supervision of prison officers. A number of yachts, including one owned by the plaintiff company, were moored nearby. The boys escaped in the night, boarded a yacht with the object of reaching the mainland and, while trying to do so, collided with and damaged the plaintiffs' yacht. The plaintiffs sued the Home Office alleging that the damage to their yacht was caused by the negligence of the prison officers. The preliminary issue was whether the Home Office or the officers owed any duty of care in tort to the plaintiffs. The House of Lords held that in the particular circumstances a duty of care could arise.
Lord Diplock said in a passage to be found at page 1070 at letter H:
"I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture."
It is necessary to consider next the House of Lords' decision in Hill v. Chief Constable of West Yorkshire [1989] AC 53. The facts were these. A man called Peter Sutcliffe embarked on a terrifying career of violent crime in West Yorkshire. All his victims were young women. Between 1975 and 1980 he committed 13 murders and 8 attempted murders upon such women. His last victim was a 20-year old student called Hill whom he murdered in Leeds. Miss Hill's mother and sole personal representative sued the Chief Constable of West Yorkshire claiming on behalf of Miss Hill's estate damages on the ground of negligence. The pleadings alleged that it was the duty of the defendant and all officers in his police force to use their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members of the public who might otherwise be his future victims.
Lord Keith in his speech in that case considered the earlier decision of the House of Lords in Anns v. Merton London Borough Council [1978] AC 728 and said (at page 60B):
"It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present. The nature of the ingredient will be found to vary in a number of different categories of decided cases. In the Anns case there was held to be sufficient proximity of relationship between the borough and future owners and occupiers of a particular building the foundations of which it was decided to inspect, and there was a close relationship between the borough and the builder who had constructed the foundations."
"The alleged negligence of police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up a deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police."
The claim succeeded before the trial judge who said:
"There is clearly a special relationship created between the police and the owners of intruder alarm systems which is of a different and closer nature than that between the police and members of the public in general."
".... in my view if there is a duty of care it is owed to a wider group than those to whom the Judge referred. It is owed to all members of the public who give information of a suspected crime against themselves or their property. It follows, therefore, that on the facts of this case it is my opinion that there was no such special relationship between the plaintiff and the police as was present in Dorset Yacht."
"That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. In Yuen Run Yeu v. Attorney-General of Hong Kong [1988] AC 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in Anns v. Merton London Borough Council [1978] AC 728, 751-752 might fall to be applied was a limited one, one example of that category being Rondel v. Worsley [1969] 1 AC 191. Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell LJ, in his judgment in the Court of Appeal [1988] QB 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v. Worsley .... were held to render a barrister immune from actions for negligence in his conduct of proceedings in court."
In his speech Lord Templeman said (at page 64, beginning at letter D):
"Mrs. Hill therefore brings these proceedings with the object of obtaining an investigation into the conduct of the West Yorkshire police force so that lives shall not be lost in the future by avoidable delay in the identification and arrest of a murderer.
The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force. The present action will be confined to narrow albeit perplexing questions, for example, whether, discounting hindsight, it should have been obvious to a senior police officer that Sutcliffe was a prime suspect, whether a senior police officer should not have been deceived by an evil hoaxer, whether an officer interviewing Sutcliffe should have been better briefed, and whether a report on Sutcliffe should have been given greater attention. The court would have to consider the conduct of each police officer, to decide whether the policeman failed to attain the standard of care of a hypothetical average policeman. The court would have to decide whether an inspector is to be condemned for failing to display the acumen of Sherlock Holmes and whether a constable is to be condemned for being as obtuse as Dr. Watson. The plaintiff will presumably seek evidence, for what it is worth, from retired police inspectors, who would be asked whether they would have been misled by the hoaxer, and whether they would have identified Sutcliffe at an earlier stage. At the end of the day the court might or might not find that there had been negligence by one or more members of the police force. But that finding would not help anybody or punish anybody ....
Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties.
This action is in my opinion misconceived and will do more harm than good."
".... it seems to me that the existence of a general duty in the police to suppress crime does not necessarily carry with it a liability to individuals for damage caused to them by criminals whom the police have failed to apprehend in circumstances when it was possible to do so."
The other passage is in the judgment of Glidewell LJ (at page 75 letter G):
"If the police were liable to be sued for negligence in the investigation of crime which has allowed the criminal to commit further crimes, it must be expected that actions in this field would not be uncommon. Investigative police work is a matter of judgment, often no doubt dictated by experience or instinct. The threat that a decision which, in the end, proved to be wrong might result in an action for damages would be likely to have an inhibiting effect on the exercise of that judgment."
"In my view the observations of Lords Keith and Templeman in Hill in relation to the effect on the police of their being potentially liable in negligence were general, not limited to the facts of that case. They are equally applicable to the present case."
I respectfully agree with him.
"Now my view is that the plaintiffs are going to have a distinctly uphill task .... But I do not think that there is so obviously no case that it would be right to strike the action out on those grounds."
"A claim should only be struck out in a plain and obvious case. The difficulty arises where, as in the present case, a claim to strike out depends upon the decision of one or more difficult points of law. In such a case, the judge should normally refuse to entertain such a claim to strike out. But, if in a particular case the judge is satisfied that the decision of the point of law at that stage will either avoid the necessity for trial altogether or render the trial substantially easier and cheaper, he can properly determine such difficult point of law on the striking-out application."
(Appeal allowed with costs. Application for leave to appeal to the House of Lords refused.)
