Are we facing a new wave of new police ‘protection’ claims?
The Woodcock judgment is one of the most significant developments in common law for public bodies in decades when it comes to the assumed ‘duty of care’ on law enforcement, write Andrew Steel and Emelia Bezant-Gahan.
A recent judgment in the case of Woodcock v Chief Constable of Northamptonshire (Woodcock) could potentially open the floodgates to more claims against public authorities and could also mean a re-think of policing tactics. Here’s why.
Police and purpose – a duty of care?
The central issue in the Woodcock judgement was whether there are circumstances in which the police have a duty to protect or warn, and under what circumstances this duty arises. The case centered on an individual who was attacked and stabbed leaving her home by R, her ex-partner. R was convicted of attempted murder and imprisoned for life. Prior to the attack, there was long history of domestic abuse by R, and police were aware that R had recently made violent threats, trespassed and caused criminal damage.
Part of a plan, developed by the police, to keep R safe relied on asking neighbours to help keep an eye out for R. On the day of the assault, a neighbour had made an emergency call and informed the police that R had been loitering outside the appellant's house at 07:32, just 12-13 minutes before the assault.
This was not passed on to the appellant. She claimed that because of this, the police had failed in a duty to protect her.
Exceptions to the rule
As the judge noted, the police have a general and statutory purpose to prevent harm. However, in general, they owe no civil liability duty of care to protect the public at large, and therefore are not liable for injury or damage stemming from criminal actions, although they are subject to the general common law principles that would impose a duty of care on anyone.
In his ruling, the judge set out his analysis of case law and his summary of the two points that would generate exceptions to the rule that police are not liable and owe no duty of care for failing to act or failing to prevent harm:
a) the police have assumed a specific responsibility to protect a member of the public
b) exceptional or special circumstances exist that create a duty to act to protect, or where it would be an ‘affront to justice’ if they were not ‘held to account’ to the victim.
The judge found that, in Woodcock, the police had assumed responsibility for the appellant by advising her to form a ‘protective ring’ around her property with neighbours as a safety precaution.
And special circumstances did exist – in this case the police were given the knowledge of an ‘imminent and risk laden event’, had ‘advised the claimant to set up an early warning system specifically to provide…advance warning’ and that this was ‘specifically for the claimant’s protection from attack’.
As such, they were bound by a positive common law duty to warn the appellant of a dangerous potential threat to her when reported by one of those neighbours, even though there was no civil law duty to subsequently protect her.
Changing the landscape
This has significant implications for policing.
Although it should be stressed that this judgment hinged on specifics, it is clear that as more and more cases are heard, the threshold could be lowered as to what will be considered ‘exceptional’, and that we could see a wave of future claims of this nature against public authorities.
These could be similar to those currently pursued under Article 2 and 3 of the Human Rights Act 1998 (HRA). However, if pursued under the tort of negligence, they would benefit from a longer limitation period.
It could also have an impact on operational policing tactics. Officers may be more cautious about the circumstances or manner in which safety plans are given to potential victims of crime. ‘Defensive’ policing could now be a risk that forces have to consider.
This case could still be appealed. In the meantime, however, there is no doubt that public bodies will be watching this evolving area very closely. In an already difficult job, this introduces new risk that will be a heavy load to bear.
Andrew Steel is a partner and Emelia Bezant-Gahan is an associate at Weightmans.