The Court of Appeal has given judgment in two cases regarding the circumstances in which the police may be held liable for failing to protect someone from harm caused by the criminal actions of a third party. In both cases, the court found for the police.
Facts
For about two years until February 2015, the claimant had been in an on-off relationship with Riza Guzelyurt. During this time, Guzelyurt had been convicted of assaulting the claimant’s ex-husband and had been given harassment warnings in relation to the claimant. Matters escalated further after the claimant ended the relationship. On 6 February, Guzelyurt was arrested in relation to a complaint from the claimant that he had harassed her and damaged her car. Over the following weeks, the claimant complained on several occasions that he had approached her in breach of his bail conditions. On 18 March, she reported that he had threatened to kill her. Returning home, she found evidence of an attempted entry and CCTV showed him jumping over her fence. Later that day, police attended her home to take a statement; shortly after they left, she reported that Guzelyurt had kicked her front door and threatened to kill her. The police returned and gave the claimant safety advice. At the claimant’s request, an officer was present for much of the time until about 3 am. Meanwhile, police tried – without success – to trace and arrest Guzelyurt. At just shortly after 7:30 am the following morning a neighbour of the claimant rang 999 to say Guzelyurt was outside the claimant’s house. The neighbour said she thought he was going to attack the claimant when she left for work at 7:45 am. The neighbour had unsuccessfully tried to contact the claimant by phone but did not wish to go over in person. The neighbour was told that officers would be “straight round”. An officer was sent to arrest Guzelyurt and a Sgt Randall was also sent to the claimant’s house. However, the police did not contact the claimant to tell her of the neighbour’s call or that they were about to attend. Less than 15 minutes after the call with the neighbour (and before the police arrived) the claimant left her house at which point Guzelyurt brutally attacked her. He was later convicted of attempted murder and given a life sentence.
The proceedings
The claimant brought a claim against the police on the grounds that they had been negligent in not informing her about Guzelyurt’s presence. The trial judge dismissed the claim. However, in the High Court, Andrew Ritchie J held that police owed the claimant a duty of care and they had breached this duty by failing to warn the claimant of the danger. After noting the general rule that the police are not liable for failing to catch criminals or to prevent crime, he identified exceptions as being (1) cases in which the police had assumed a specific responsibility to protect a specific member of the public from attack by a specific person or persons, and (2) cases in which exceptional or special circumstances existed which created a duty to act to protect the victim and/or it would be an affront to justice if they were not held to account to the victim. Ritchie J determined that both of these exceptions applied. In relation to (1) there was an assumption of responsibility because the police’s words and actions in the run-up gave rise to the claimant having a reasonable expectation that they would inform her that her ex-partner was outside her house when she was likely to leave soon and there would be 5–10 minute gap before the arrival of the police to arrest him. In relation to (2) exceptional or special circumstances existed because the necessary factors were satisfied. Summing them up, Richie J noted that the police were given knowledge “of an imminent and risk-laden event with pretty precise timing, a specific victim, a specific address, a perpetrator who was already the subject of a large manhunt and a vulnerable victim who was going to walk into a dangerous trap”. The police “had advised the claimant to set up an early warning system specifically to provide the police and the claimant with advance warning of the ex-partner approaching her house.” This “was specifically for the claimant’s protection from attack (and for her children) ”. Further, “there was going to be a time lag between the dispatching of police officers and their arrival at the scene.” These circumstances gave rise to a common law duty on the police to call the claimant. The police appealed this.
The Appeal
The Court of Appeal found for the police, setting aside Ritchie J’s judgment.
First, the court found that there had been no assumption of responsibility. At the outset, it noted that for a claimant to establish one, it will usually be necessary to show that:
While the question of whether there has been an assumption is highly fact-specific, the test is not elastic: the court is not free “to stretch the concept of an assumption of responsibility beyond its proper limits”. Here there was no assumption of responsibility. The police had not promised the claimant “that they would warn her of any sighting of Guzelyurt near her home, and had not promised to pass on to her any information they received alerting them to a danger”. Further, the person handling the neighbour’s call “said nothing which could be construed as an assurance that the police would pass on the neighbour’s information to (the claimant) or would otherwise prevent any attack upon her”.
Second, the court rejected Richie J’s finding that there were “exceptional circumstances” such as to justify imposing a duty. The case law to which he was bound made it impossible to find that the police were under a narrow and specific duty to warn the claimant.
Finally, the court rejected other potential routes for finding the police liable. For instance, it considered in some detail “the interference principle”, which had recently been invoked by the Supreme Court in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33. According to this principle, “If A [here the police] knows or ought to have known that B [here, the claimant] is in need of help to avoid some harm, and A knows or ought to have known that he has done something to put off or prevent someone else [here the claimant’s neighbour] helping B, then A will owe B a duty to take reasonable steps to give B the help she needs.” The court rejected the notion that this applied to this case. Firstly, there was no direct evidence as to what, if anything, the neighbour would have done if the call handler had said something different to her. Indeed, if anything, the neighbour had given the impression that she did not wish or intend to take any further action herself, telling the caller “I’ve tried contacting her but she’s changed her mobile number so there’s no way of me, unless I go over, I don’t really want to get involved.” Secondly, and in any event, there was no evidence “that the police could reasonably have foreseen that the call handler’s words would cause the neighbour to refrain from taking action which she otherwise would have taken”.
Facts
This case arises from sexual abuse by an individual anonymised to MP. MP’s father BP had previously been convicted of sexual offences against his daughter, DJ. After being released from prison, BP gave his old laptop to another of his daughters, CP. The laptop was used by various members of the family. In December 2012, CP discovered a folder on the laptop containing indecent images of children. Her mother questioned the male members of the household about this, including her son MP. No one admitted responsibility. CP and her mother went to the police. Given his history, suspicion fell on the father BP. A police officer seized the laptop. He looked at the relevant files and established that they had been created earlier in December 2012. He did not question any members of the family. Instead, he submitted a request to the Hi-Tech Crime Unit to examine the laptop. The examination was not carried out until April 2014. By this point, the police officer had already closed the case on the information management system. He later explained that cases that remained open without being updated attracted internal criticism. In May 2014, the Hi-Tech Crime Unit provided a report. The report indicated that the son MP had downloaded the images. The police officer was also provided with a police laptop on which the contents of the seized laptop were present so that these could be used in interviews and was told that this would be valid for six weeks. However, the police officer took no further action: indeed he did not even seek any advice on what further he should do. Subsequently, it emerged that after the seizure of the laptop in December 2012, MP had sexually abused five children. Three of these were children he encountered through his work as a childminder, while the other two were his niece and nephew. In November 2015, MP pleaded guilty to the 40 offences and was sentenced to 10 years’ imprisonment.
The proceedings
MP’s five victims brought claims against the police. All five brought a claim under the Human Rights Act 1998 (HRA) for breach of their rights under article 3 of the Convention (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”). Moreover, two of the claimants brought claims in negligence. At the heart of both sets of claims was the contention that the police officer’s failures regarding the laptop had enabled MP to avoid detection and so go on to abuse the claimants.
In the High Court, Martin Spencer J dismissed all of the claims. The claimants failed in common law negligence because no duty of care arose. At the outset he noted that “failing to confer a benefit will not generally bring a person, or a public authority, within the sphere of tortious liability in negligence, even where the public authority has a duty to act but fails to do so”. While “making matters worse by one’s actions does give rise to a duty of care”, this was not the case here. On a proper analysis, the police officer had acted ineffectually, but he had not made matters worse. Spencer J also dismissed the HRA claims. While the sexual abuse of the claimants amounted to inhuman treatment for the purposes of article 3, the investigation into the indecent images did not engage article 3. As such, the police’s article 3 duty was not animated until May 2015, when the investigation into the sexual abuse got underway. Consequently, the claimants appealed.
The Appeal
The Court of Appeal found in favour of the police both in relation to the common law and the HRA.
At common law, the court agreed with Spencer J that the claims were for a failure to confer a benefit/omission. The police officer’s failings were serious, but they amounted to omissions rather than making matters worse. The court accepted the police’s submission that “if [the police officer] had not taken any action at all, none of the appellants would have been in any better position: MP’s sexual interest in children would have remained undetected, and the abuse of his victims would have occurred”. The court also rejected the contention that the interference principle was engaged, partly because [the police officer’s] failings amounted to omissions rather than positive acts, and partly also because it rests on speculation as to what MP’s family would otherwise have done.
As to the HRA, the court agreed with Spencer J that the images on the laptop “were not of a level to trigger article 3”. Further, even if they had been, “the article 3 rights initially engaged were those of the children depicted in the images, and there is no suggestion that they could be identified.” Moreover, a generalised future risk of harm bound up with C’s interest in children would not suffice to engage article 3 “because it would not satisfy the requirement of a real and immediate risk of ill-treatment in breach of that article”. Article 3 was only engaged in April 2015 and this cannot retrospectively transform the earlier investigation into the indecent images into one of that type.
Comment
These judgments confirm that at common law the circumstances in which the police will be held liable for failing to protect someone from harm caused by the criminal actions of a third party are limited. While there can be liability under “the interference principle” it did not arise in either case just as it did not arise in the Tindall case. Moreover, the Wiltshire case underlines challenges claimants face under the HRA: a general future risk of harm is not sufficient to trigger the article 3 investigative duty. As ever, though, much rests on the specific facts.
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