“As regards the reasons for the decision taken, Sergeant George told me in evidence that those were mainly to do with the welfare of the children and how a court case could affect them, and also that there was insufficient evidence for a successful prosecution. She told me that the decision not to prosecute was carefully thought out, weighing up all interests. Sergeant Barrell told me that he now has a very vague recollection about the decision not to prosecute. He told me that he only learnt of this case coming back to court on the day that he gave evidence to me. But he said that the decision would have been whether it was in the children’s best interests to put the case before a court, taking it as a whole, and at that time they decided it was not. He told me he thought the crime report was wrongly worded and that it should have referred to a prosecution not being in the interests of the witnesses. He told me that he thought there always was a prima facie case.”
“I conclude that had there been a successful prosecution of Mr O’Neill in 1993 (with condign punishment) then this fact alone would have had a material and ameliorating effect on the psychological condition of Ms Vicario now.”
“.. 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 [a claim by a father concerning the murder of his daughter, the claim being that the police had negligently failed to investigate and apprehend the murderer earlier], and that is public policy. .. Potential existence of such liability [i.e. in negligence] 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.”
“The need for, or desirability of, a duty of care owed by the C.P.S. to those it is prosecuting must be considered in the context of other protections and remedies offered by the principles on which our democracy is founded.”
“That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the C.P.S. to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The C.P.S. would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the C.P.S. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of C.P.S. lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the C.P.S. is sued in negligence by aggrieved defendants. The C.P.S. would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the C.P.S. and the quality of our criminal justice system.”
“[30] But the core principle of Hill’s case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill’s case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare thePolice (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence: seesection 29 of the Police Act 1996 , read with Schedule 4 as substituted bysection 83 of the Police Reform Act 2002 ;section 17 of the Police (Scotland) Act 1967 ; Halsbury’s Laws of England, 4th ed reissue (1999), vol 36(1), para 524; The Laws of Scotland, Stair Memorial Encyclopaedia, vol 16, (1995), para 1784; Moylan, Scotland Yard and the Metropolitan Police, (1929), P 34. A retreat from the principle in Hill’s case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill’s case, be bound to lead to an unduly defensive approach in combating crime. [31] It is true, of course, that the application of the principle in Hill’s case will sometimes leave citizens, who are entitled to feel aggrieved by negligent conduct of the police, without a private law remedy for psychiatric harm. But domestic legal policy, and theHuman Rights Act 1998 , sometimes compel this result. In Brown v Stott[2003] 1 AC 681 , Lord Bingham of Cornhill observed, at p703: “The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heart-ache and the thousand natural shocks That flesh is heir to’”.” “The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heart-ache and the thousand natural shocks That flesh is heir to’”.”
“However, in my judgment, Mr. Powell is right in his ably presented submissions that at least arguably this case falls into the Dorset Yacht category rather than the Hill category on proximity. I have in mind all the relevant paragraphs of the statement of claim, but particularly the references in paragraph 6 to confidentiality, and the facts cited in paragraph 8 to show that the plaintiffs were particularly at risk. It seems to me that these aspects are vividly and perhaps compellingly demonstrated by the texts of the two messages, with their repeated references to the need for confidence. This seems to me to show that it is at least arguable that a special relationship did exist, which renders the plaintiffs distinguishable from the general public as being particularly at risk.”
“… it seems to me properly arguable that an informant, giving in confidence sensitive information to the police, is in a special relationship to the police, that relationship being based on an assumption of responsibility towards the informant by the police, such that when through the negligence of the police that information is disclosed to criminals, it can result in a valid claim by the informant in respect of consequent damage to the informant.”
“someone of special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, and there is direct and substantial reliance by the plaintiffs on the defendant’s skill.”
“We turn now to consider the second submission made on behalf of all the plaintiffs that the requisite proximity exists. It involves the concept of assumption of responsibility by the fire brigade and particular reliance by the owner. As a general rule a sufficient relationship of proximity will exist when someone possessed of special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by the plaintiff on the defendant’s skill: see Hedley Byrne v. Heller [1964] A.C. 465 and Henderson v. Merrett Syndicates [1995] 2 A.C. 145.”
“a sufficiently close relationship of proximity to give rise to a duty of care.” in the cases concerned. It went on to say: “In our judgment a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending a the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the fire fighting operation.”
“I accept the claimant’s argument and that there is an arguable case that there was an assumption of responsibility and a special relationship such as to take it out of the usual situation of interviewing a potential victim of crime, and that the police were not solely performing a function for the benefit of the public. Part of their responsibility included making inquiries to protect her from future harm which might ensue from the manner in which the investigation was carried out and by progressing the matter so that there was a real risk of interference with family life.”
“It is not necessary for this court to decide that there was, in fact, proximity but merely whether it can be argued with a reasonable prospect of success that a situation of proximity did arise. It is true that the father was a suspect in a potential crime. He was interviewed as such. I would accept that at that stage there was no assumption of responsibility towards him as a suspect and that in that respect the relationship between WPC Grey and the father was one of conflict or potential conflict. However the matter did not end there. Although there was no evidence to support criminal proceedings WPC Grey nevertheless came to the conclusion that the complaint by L’s mother was of sufficient substance that L was at risk of further abuse from her father. It is arguable, in my judgment, that from then on there was a legal assumption of responsibility and a special relationship between WPC Grey and the social worker on the one hand and the father on the other, and that a duty of care arose to take reasonable steps not to damage the father by their subsequent conduct.”
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and a body to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party to the benefit of the other.”
“Striking Out In my speech in the Bedfordshire case[1995] 2 AC 633 , 740-741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff’s claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”
“The fact that there was no trial is of some importance as the popular understanding that there was no snail in the bottle has tended to bring the procedure concerning the hearing of a preliminary point of law into comparative dispute. It may be emphasised that that procedure is a highly desirable one if a point of law will prove decisive, especially in a case which might give rise to a lengthy trial concerning disputed questions of fact.”