“Hello Mrs Robinson.” A Blog on Robinson v Chief Constable of West Yorkshire Police [2018] 2WLR595

John Collins

1. Mrs Elizabeth Robinson, then 76 years old, was shopping in Kirkgate, Huddersfield, when four Police Officers, attempting to arrest a drug dealer, in the course of the struggle when the dealer attempted to escape, collided with her (strictly it was the dealer’s body which first collided), with the effect that she was at the bottom of the struggling group and suffered serious injuries.  The question then arose whether the police were negligent in causing those injuries, and if they were negligent, were they liable? Mr Recorder Pimm determined that the Police Officers were negligent but that they were exempt from liability.  The Court of Appeal determined that he was right that they were not in any event liable and wrong to hold them negligent.  The Supreme Court concluded that he was right to hold them negligent and that the police are liable, like anyone else, in tort.   
2. The source of that was Lord Keith, delivering the leading speech in my* case of Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59 said: “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.”
3. The judgments of the Supreme Court cover many important issues in relation to the duty of the police in particular, though they are not irrelevant to the general duties in negligence of public authorities.  I propose to deal principally with one aspect of the judgments, mainly the arguments which arose as to whether the police are liable for omissions.  
4. It will be observed that Lord Keith in Hill expressly holds the police liable in damages for omissions as well as acts. No distinction is made between them in relation to negligence. The House of Lords in Hill made their decision on the basis that it could not be said that there was a duty of care owed to individual members of the public which were in that case virtually unlimited, save for the fact that the victims were all young and female.  It is true that their Lordships were intent on limiting the wide words which had been used in Anns v Merton LBC [1978] AC 728, and indeed said that it was a matter of public policy that the police should not be liable for their failures in investigating a crime.  It may be argued whether this part of Lord Keith’s speech should be regarded as part of the ratio of Hill rather than an obiter dictum, since he commences the passage by referring to his previous consideration as “sufficient for the disposal of the appeal.”  
5. So far as what at least can be said to be the “main ground” of the decision to dismiss the appeal in Hill is concerned, I remain in serious doubt as to its correctness.   There was no doubt at all that the activities of Sutcliffe, involving as they did terror to in particular the women of West Yorkshire and indeed nearby areas, were such that it was foreseeable that, if not stopped, further young women in that area would be killed or at least attacked.  I remain of the view that if someone released a dangerous dog in a city and some person was attacked by that dog, no question of any “special distinctive risk” could be argued.  The fact is that the whole city would be at risk.  Similarly, if from some industrial process, a lethal or dangerous gas was released, one could not say that a particular person affected by that was not within the reasonable contemplation of the owner of the industrial activity.  A mass killer such as Sutcliffe seems to me analogous. 
6. However, among the many issues which were considered in the case of Mrs Robinson, Lord Keith’s observations seem to me of importance in relation to the issues raised there concerning the possible differences between the effects of acts and omissions. 
7. Lord Reed at 72-3 asked whether this was a case concerned with an omission or with a positive act.  It seems to me that Lord Keith in Hill made it clear that this is not a legitimate distinction.  Lord Reed made the point that the police were not simply guilty of a pure omission in the case of Mrs Robinson.  It could not be said that they played no active part in the critical events.  As he pointed out, Lord Reid in Dorset Yacht Co. Ltd v Home Office [1970] AC1004 had said that the ground of liability was liability for damage caused by the carelessness of the officers “in the knowledge that their carelessness would probably result in the trainees causing damage of this kind.” (It will be recollected that the “trainees” were in fact Borstal boys who were allowed to run riot and damage certain yachts.)  Lord Reed pointed out that in tort a pure omission, for instance somebody who watches and does nothing as a blind man approaches the edge of a cliff or a child drowns in a shallow pool, does not give rise to liability, but he then goes on to refer to the actions of the police authority in Hill’s case.  The whole point of Hill’s case, over which their Lordships glided, was that the police were at an early stage in their investigations in possession of a detailed picture of the murderer and had him in their control and indeed questioned him on no less than nine occasions before the murder of Miss Hill. They had the information on the basis of which, had they not been grossly careless, they would have arrested him. In one sense of course, one could say their failure to arrest him was an act of omission, but in another sense the fact that they let Sutcliffe go following their questioning of him without referring to the evidence that they already had, was a positive act.  Of course, it may rightly be said that they had not at any stage detained Sutcliffe: he was there voluntarily to answer their questions, but this does strike me as in common sense, not a good answer. 
8. That, however, is not the point I am seeking to make. It is that even with reference to a situation which Lord Reed gives as a classic example of a case of omission rather than a positive act, it is strongly arguable that indeed this is a case of a positive act.  An attempt for him to try to make a distinction in the category of acts seems to me entirely unjustifiable and fails to give effect to the need to look at the consequences of acts and omissions.  Indeed, Lord Mance, concurring in the result, emphasizes that in the succession of cases which followed Hill, as well as Hill itself, no distinction was drawn between acts and omissions, either generally or in the specific context of the discussion in those cases.  Lord Mance finally concludes, in my respectful opinion correctly, that “It is not possible to state absolutely that policy considerations may not shape police or CPS liability in a context where the conduct of the police may perfectly well be analysed as positive, rather than simply as involving some form of omission.” 
9. It seems to me that in relation to claims against the police, one can now say that, first, it cannot be disputed that a police officer – or in practice the police authority which employs him – is liable for his tortious acts and omissions just like any other person.  Secondly, it cannot be said that he is exempt from liability.  It is to be noted that the authority upon which the subsidiary argument of Lord Keith was based was in fact the case of Rondel v Worsley [1969] AC 191, where the barrister’s immunity from action was retained, albeit in a limited form, by the House of Lords.  However, in Arthur J. S. Hall & Co v Simons [2002] 1AC 615, that authority was in effect swept aside and the immunity removed.   Thirdly, it can be seen in Robinson’s case that the judges are perfectly willing to carry out a detailed examination of the actions and plans of action of the police in carrying out their work.  Fourthly, I would submit that it can no longer be said that to find the police guilty of negligence in the course of carrying out their work of providing security for the public and indeed in arresting criminals is something into which the courts will not look and look in detail. 
10. I would only add that whilst again and again their Lordships when the Supreme Court was the House of Lords, or indeed since, have expressed fears that the police will be inhibited in carrying out their duties by the court finding that they were negligent and investigating exactly what steps they took in particular circumstances, and this might create very serious problems, the fact is any police officer knows that if he makes a serious error, he may well find himself prosecuted, as has happened in relation to the Hillsborough Stadium tragedy – and one can hardly think that the risk that he or she might be involved in civil proceedings would play an even remotely comparable cause of distress or anxiety to an experienced police officer. In the case of Mrs Robinson, I can hardly think that the four police officers will have been caused to change their conduct in the future by the litigation rather than by the shock of realising they had caused injury to a harmless old lady who was just going about her normal shopping, simply because they had failed to take her presence into account in attempting to carry out the arrest of Williams, the drug dealer. One may be sure that they then and there resolved to exercise much more care in the future and the subsequent litigation would have been no more than a reminder of the matter and possibly the cause of a degree of irritation. 
11. Perhaps it may be said that this is academic following the further Supreme Court decision in D v Commissioner of Police of the Metropolis [2018] 2 WLR 895 (the Worboys case) that persons injured as a result of the failures of the Police to carry out their duties inherent in article 3 of the Human Rights Act to investigate complaints of crimes of violence committed against them gave rise to rights to compensation.  But Mrs Robinson’s case might well not have been successful if she had relied solely on the Human Rights Act.  It surely can be said, however, that Hill, which bears close resemblance to that case on its facts, would probably have been decided differently today.

* It may seem unduly proprietorial to refer to it as “my case”, particularly as I was led by Richard Clegg QC, but the thinking and research behind the claim was mine.