Hill immunity revisited: The beginning of the end?

In this welcome judgment, the Supreme Court has delimited the general applicability of the immunity principle in Hill v Chief Constable of West Yorkshire Police [1988] 1 AC 53 , which is that the police cannot be liable in negligence for acts or omissions connected with the investigation and suppression of crime.

Whilst an important judgment in the field of police actions, this is not the death blow to Hill immunity that many anticipated.

Hill immunity

As is well known, Hill concerned an action against the police brought by the mother of the last victim of Peter Sutcliffe, the “Yorkshire Ripper”. She claimed that the police had negligently failed to prevent her daughter’s death, in failing to ‘exercise all reasonable care to catch the criminal’. The claim was struck out by the High Court on the basis that the police owed no duty of care to a member of the public, in respect of acts by a third party. This was upheld by the Court of Appeal and the House of Lords. Lord Keith, providing the leading judgment, rationalised police immunity on two fronts. Firstly, the general duty of the police to suppress crime did not carry with it a private law duty to protect individual members of the public. Secondly, as a matter of public policy, police must not be made liable for their negligence arising from the “investigation and suppression” of crime.

In Michael and ors v The Chief Constable of South Wales Police and anor [2015] UKSC 2 , the Supreme Court endorsed the Hill principle, holding that, in a case of “pure omissions”, there can be no private law duty on police to safeguard potential victims of crime. However, the future of such core operational immunity was left unclear. In their compelling dissenting judgments, both Lord Kerr and Lady Hale argued this was not in fact a case of “pure omissions”, and that, in any event, the incidence of liability cannot be confined to the express assumption of responsibility.

Facts of the instant case

The Claimant, an elderly pedestrian, was knocked over on a street by two police officers and a suspected drug dealer, whom they were attempting to arrest. As the officers struggled with the suspect, all three backed into, and fell on top of, the Claimant who was standing nearby. She sustained serious injuries as a result. Whilst the officers had anticipated that the suspect would attempt to escape, they had failed to notice the proximity of the Claimant.

The decisions under appeal

At first instance, whilst it was accepted the officers had been negligent, it was held that the police remained immune from suit as per Hill. The Court of Appeal considered that such claims, arising in the context of core police functions, would inevitably fall at the third hurdle of Caparo (i.e. countervailing policy reasons). Further, that no duty of care arose in the circumstances, and that, in any event, it would not have upheld the trial judge’s finding of negligence.

The Supreme Court

The Supreme Court unanimously found the police liable for the injuries caused to the Claimant. Like all other public bodies, the police are subject to a duty of care to avoid causing personal injury, in accordance with the ordinary principles of negligence. This includes a duty to protect an individual from danger which they themselves have created. Whilst Hill and the relevant line of authorities concerned operational omissions, this case concerned the positive act of arrest. The officers should have been, and in fact were, aware of the risk that the suspect would attempt to escape and the reasonably foreseeable risk of injury to nearby pedestrians. This was sufficient to impose a duty on the officers a duty of care to the Claimant, who was in the immediate vicinity when the arrest was attempted.

Lord Reed also robustly rejected the conception that Caparo established a tripartite test which must be applied in all cases of negligence. Rather, public policy concerns should only be considered in novel cases, where the familiar principles fail to assist. This was simply a recapitulation, rather than revision, of Caparo, advising for an incremental, case-specific approach to negligence liability.

Commentary

Understandably a great deal of the commentary on Robinson will focus on its implications for the Hill immunity principle. The police’s persistent failure to protect women from violent offenders is striking – 30 years on from Peter Sutcliffe’s arrest and trial, the furore over John Worboys’ Parole Board decision has reminded us all of the Metropolitan Police’s serious investigative failures. Whatever the outcome of the judicial review of that decision, the understandable and profound distress of his victims is a stark and harrowing reminder of the consequences that police failures can have on those that they are meant to be protect. The Supreme Court’s decision in DSD & NBV is eagerly anticipated.

Focusing on Hill, however, is, in our view, a mistake. The judgment of the Supreme Court repeatedly cites and affirms Lord Toulson’s judgment in Michael – the last attempt to challenge and overturn Hill. The Supreme Court is very careful to make clear that it has no intention of undermining Hill and any legal representatives should be careful in relying on Robinson if they seek to challenge Hill immunity in the future. Indeed, if the Supreme Court had intended to make any such inroads, they would presumably have listed the case for a 7 or 9 judge bench.

The real importance of Robinson is in its affirmation of the fundamental principle that this area of law is based on: the police are subject to the same duties and obligations as any other ordinary citizen. They have no special status which places them above or outside of the law, but have to justify their actions and pay compensation to those that they have wrongfully injured.

The bold submission by the Chief Constable of West Yorkshire Police that Hill (and other cases) gave rise to an absolute general immunity for the police against negligence actions was rightly dismissed by Lord Reed. The Hill exception is now (primarily at least) based on the principle that the general duty of the police to enforce the law did not create a specific and individual duty of care to each and every member of the public. That is an orthodox application of the general law of negligence and not the conferring of a special status on the police. If the Chief Constable had been right, why shouldn’t medical staff have an immunity from suit? Or the ambulance services? Or the fire service? There would be no sustainable limiting principle and, if argued to its logical conclusion, should apply to every public body.

The certainty this judgment brings in clarifying the boundaries of the Hill immunity is very welcome. It will (hopefully) discourage Defendant police authorities from needless satellite litigation about immunity and instead focus them on engaging with the real issues being raised.

Post Script

This, however, is not the first time a court has come to a similar decision. In Alleyne v The Commissioner of Police of the Metropolis [2012] EWHC 3955 (QB), the Claimant had been injured as he was being arrested on the floor of his home, by officers passing by in the course of effecting a rapid entry. The High Court held that the police were liable in negligence and the decision was never appealed. Notably, however, the Hill principle was not relied upon by the police in that case. It is something of a surprise that the case was not mentioned at all in Robinson.