Hill v Chief Constable of West Yorkshire [1987] UKHL 12

House of Lords
Between
HillAppellantChief Constable of West YorkshireRespondent
Before
Lord Keith of Kinkel
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 19th day of February 1987, as amended, complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the said Appellant in respect of the said Appeal be taxed in accordance with Schedule 2 to the Legal Aid Act 1974; And it is also further Ordered, That the Costs incurred by the said Respondent in respect of the said Appeal be paid out of the Legal Aid Fund pursuant to section 13 of the Legal Aid Act 1974, such Order to be suspended for four weeks to allow the Law Society to object if they wish.Cler: Asst. Parliamentor:

Judgment: 28.4.88

HOUSE OF LORDS

HILL (ADMINISTRATRIX OF THE ESTATE OF JACQUELINE HILL

DECEASED) (A.P.) (APPELLANT)

v.

CHIEF CONSTABLE OF WEST YORKSHIRE (RESPONDENT)

Lord Keith of Kinkel Lord Brandon of Oakbrook Lord Templeman Lord Oliver of Aylmerton Lord Goff of Chieveley

LORD KEITH OF KINKEL

My Lords,In 1975 a man named Peter Sutcliffe embarked upon a terrifying career of violent crime, centred in the metropolitan police area of West Yorkshire. All his victims were young or fairly young women. Between July 1975 and November 1980 he committed 13 murders and eight attempted murders upon such women, the modus operandi in each case being similar. Sutcliffe's last victim was a 20-year-old student called Jacqueline Hill, whom he murdered in Leeds on 17 November 1980. By chance, Sutcliffe was arrested in suspicious circumstances in Sheffield on 2 January 1981, and confessed to the series of murders and attempted murders following interrogation. On 22 May 1981, at the Central Criminal Court, Sutcliffe was convicted of inter alia the murder of Miss Hill.Miss Hill's mother and sole personal representative now sues the Chief Constable of West Yorkshire, claiming on behalf of Miss Hill's estate damages on the ground of negligence, for inter alia loss of expectation of life and pain and suffering. The defendant is sued under section 48(1) of the Police Act 1964, enacting that the chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions. The plaintiff in her statement of claim sets out the 20 offences committed by Sutcliffe before the death of Miss Hill and avers that the circumstances of each of these were such that it was reasonable to infer that all were committed by the same man, and further that it was foreseeable that, if not apprehended, he would commit further offences of the same nature. The pleadings go on to allege that it was accordingly the duty of the defendant and all officers in his police force to use their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members of the public who might otherwise be his future victims. A substantial number of matters are set out and relied upon as indicating that the West Yorkshire police force failed in that duty. It is unnecessary to setout these matters in detail. They amount broadly to allegations of failure to collate properly information in possession of the force pointing to Sutcliffe as a likely suspect, and of failing to give due weight to certain pieces of information while according excessive importance to others.The defendant, without delivering defences, applied under R.S.C., Ord. 18, r. 19 to have the statement of claim struck out as disclosing no reasonable cause of action. That application was granted by Sir Neil Lawson, sitting as a judge of the High court , on 19 December 1985. Upon appeal by the plaintiff the Court of Appeal [1988] Q.B. 60 (Fox and Glidewell L.JJ. and Sir Roualeyn Cumming-Bruce), on 19 February 1987, affirmed Sir Neil Lawson. The plaintiff now appeals, with leave given in the Court of Appeal, to your Lordship's House.In considering whether the statement of claim was rightly struck out it must be assumed that the averments of fact therein contained are true. In particular, it must be assumed that in the course of their investigations into the series of crimes committed by Sutcliffe the West Yorkshire police force made a number of mistakes which they would not have made if they had exercised a reasonable degree of care and skill such as would have been expected to be displayed in the circumstances by an ordinarily competent police force. It must also be assumed, though this is not specifically averred in the statement of claim, that had they exercised that degree of care and skill Sutcliffe would have been apprehended before the date upon which he murdered Miss Hill, with the result that that particular crime would not have been committed.The question of law which is opened up by the case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.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. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightly v. Johns [1982] 1 W.L.R. 349 and Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: Reg. v. Dytham [1979] Q.B. 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.By common law police officers owe to the general public a duty to enforce the criminal law: Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. That duty may be enforced by mandamus, at the instance of one having

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title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public.Counsel for the appellant, however, sought to equiparate the situation to that which resulted in liability on the ground of negligence in Anns v. Merton London Borough Council [1978] A.C. 728. There the borough were under a duty, imposed by legislation, to supervise compliance with building bye-laws, in particular as regards the construction of foundations. It was held that though the borough had a discretion whether or not to carry out an inspection of foundations in any particular case, in order to check compliance, once a decision had been made to carry out an inspection the borough owed to future owners and occupiers of the building in question a common law duty to exercise reasonable care in the inspection. In the present case, so it was maintained, the respondent, having decided to investigate the Sutcliffe murders, owed to his potential future victims a duty to do so with reasonable care.The foundation of the duty of care was said to be reasonable foreseeability of harm to potential future victims if Sutcliffe were not promptly apprehended. Lord Atkin's classic propositions in Donoghue v. Stevenson [1932] AC 562 , 580 were prayed in aid, as was Lord Wilberforce's well-known two stage test of liability in negligence in Anns [1978] AC 728 , 751, 752.It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present. The nature of the ingredient will be found to vary in a number of different categories of decided cases. In the Anns case there was held to be sufficient proximity of relationship between the borough and future owners and occupiers of a particular building the foundations of which it was decided to inspect, and there was also a close relationship between the borough and the builder who had constructed the foundations.In Dorset Yacht Co. Ltd, v. Home Office [1970] AC 1004 , Lord Diplock said of Lord Atkin's proposition:
"Used as a guide to characteristics which will be found to exist in conduct and relationships which give rise to a legal duty of care this aphorism marks a milestone in the modern development of the law of negligence. But misused as a universal it is manifestly false."

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Earlier at p. 1058, he had said:
". . . the judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the courts to give rise to a duty of care."
The Dorset Yacht case dealt with a situation where some Borstal boys, who, having record of previous escapes, were encamped on Brownsea Island under the supervision of prison officers and escaped in the night while their guardians slept, boarded a yacht moored nearby in order to make their way to the mainland and manoeuvred it so as to damage the plaintiffs' yacht. One of the features of the case was that the damage sustained by the plaintiffs was the direct consequence of a tortious act done with conscious volition by a third party responsible for his own acts, which was interposed between the allegedly negligent conduct of the prison officers and the damage suffered. The actual decision, which was on a preliminary point of law, was that a special relationship existed on the one hand between the prison officers and the Borstal boys who were in their custody, and on the other hand between the prison officers and the owners of yachts moored near the encampment. That the boys might seek to make use of a yacht in order to get away to the mainland and might damage it in the process was the very thing which the prison officers ought reasonably to have foreseen. The prison officers had brought the boys, of whose propensity to attempt escape they were aware, into the locality where the yachts were moored and so had created a potential situation of danger for the owners of those yachts. Accordingly liability was capable of being established on the facts.However, the class of persons to whom a duty of care might be owed to prevent the escape of detainees was held to be limited. Lord Diplock said at pp. 1070-1071:
"The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself. It would seem arbitrary and therefore unjust to single out for the special privilege of being able to recover compensation from the authorities responsible for the prevention of crime a person whose property was damaged by the tortious act of a criminal merely because the damage to him happened to be caused by a criminal who had escaped from custody before completion of his sentence instead of by one who had been lawfully released or who had been put on probation or given a suspended sentence or who had never been previously apprehended at all. To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee's sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that

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escape which is different in its incidence from the general risk of damage from criminal acts of others which he snares with all members of the public.What distinguishes a Borstal trainee who has escaped from one who has been duly released from custody is his liability to recapture, and the distinctive added risk which is a reasonably foreseeable consequence of a failure to exercise due care in preventing him from escaping is the likelihood that in order to elude pursuit immediately upon the discovery of his absence the escaping trainee may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped.So long as Parliament is content to leave the general risk of damage from criminal acts to lie where it falls without any remedy except against the criminal himself the courts would be exceeding their limited function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from penal custody owed to a wider category of members of the public than those whose property was exposed to an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken by those responsible for their custody.I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped."The Dorset Yacht case was concerned with the special characteristics or ingredients beyond reasonable foreseeability of likely harm which may result in civil liability for failure to control another man to prevent his doing harm to a third. The present case falls broadly into the same category. It is plain that vital characteristics which were present in the Dorset Yacht case and which led to the imposition of liability are here lacking. Sutcliffe was never in the custody of the police force. Miss Hill was one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys. It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case that in his view no liability would rest upon a prison authority, which carelessly allowed the escape of an habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or property of members of the

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general public. The same rule must apply as regards failure to recapture the criminal before he had time to resume his career. In the case of an escaped criminal his identity and description are known. In the instant case the identity of the wanted criminal was at the material time unknown and it is not averred that any full or clear description of him was ever available. The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police.That is sufficient for the disposal of the appeal. But in my opinion 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, and that is public policy. In Yuen Kun Yeu v. Attorney General of Hong Kong [1988] A.C. 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce’s two stage test in Anns v. Merton London Borough Council [1978] AC 728 , 752 might fall to be applied was a limited one, one example of that category being Rondel v. Worsley [1969] 1 AC 191 . Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability 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

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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. I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v. Worsley [1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court.My Lords,for these reasons I would dismiss the appeal.

LORD BRANDON OF OAKBROOK

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Keith of Kinkel. I agree with it, and for the reasons which he gives I would dismiss the appeal.

LORD TEMPLEMAN

My Lords,The appellant, Mrs. Hill, is tormented with the unshakeable belief that her daughter would be alive today if the respondent the West Yorkshire police force had been more efficient. That belief is entitled to respect and understanding. Damages cannot compensate for the brutal extinction of a young life and Mrs. Hill proposes that any damages awarded shall be devoted to an appropriate charity. Damages awarded by the court would not be paid by any policeman found wanting in the performance of his duty but would be paid by the public. Mrs. Hill therefore brings these proceedings with the object of obtaining an investigation into

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the conduct of the West Yorkshire police force so that lives shall not be lost in the future by avoidable delay in the identification and arrest of a murderer.The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force. The present action will be confined to narrow albeit perplexing questions, for example, whether, discounting hindsight, it should have been obvious to a senior police officer that Sutcliffe was a prime suspect, whether a senior police officer should not have been deceived by an evil hoaxer, whether an officer interviewing Sutcliffe should have been better briefed, and whether a report on Sutcliffe should have been given greater attention. The court would have to consider the conduct of each police officer, to decide whether the policeman failed to attain the standard of care of a hypothetical average policeman. The court would have to decide whether an inspector is to be condemned for failing to display the acumen of Sherlock Holmes and whether a constable is to be condemned for being as obtuse as Dr. Watson. The plaintiff will presumably seek evidence, for what it is worth, from retired police inspectors, who would be asked whether they would have been misled by the hoaxer, and whether they would have identified Sutcliffe at an earlier stage. At the end of the day the court might or might not find that there had been negligence by one or more members of the police force. But that finding would not help anybody or punish anybody.It may be, and we all hope that the lessons of the Yorkshire Ripper case have been learned, that the methods of handling information and handling the press have been improved, and that co-operation between different police forces is now more highly organised. The present action would not serve any useful purpose in that regard. The present action could not consider whether the training of the West Yorkshire police force is sufficiently thorough, whether the selection of candidates for appointment or promotion is defective, whether rates of pay are sufficient to attract recruits of the required calibre, whether financial restrictions prevent the provision of modern equipment and facilities, or whether the Yorkshire police force is clever enough and if not, what can and ought to be done about it. The present action could only investigate whether an individual member of the police force conscientiously carrying out his duty was negligent when he was bemused by contradictory information or overlooked significant information or failed to draw inferences which later appeared to be obvious. That kind of investigation would not achieve the object which Mrs. Hill desires. The efficiency of a police force can only be investigated by an enquiry instituted by the national or local authorities which are responsible to the electorate for that efficiency.Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties.

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This action is in my opinion misconceived and will do more harm than good. A policeman is a servant of the public and is liable to be dismissed for incompetence. A police force serves the public and the elected representatives of the public must ensure that the public get the police force they deserve. It may be that the West Yorkshire police force was in 1980 in some respects better and in some respects worse than the public deserve. An action for damages for alleged acts of negligence by individual police officers in 1980 could not determine whether and in what respects the West Yorkshire police force can be improved in 1988. I would dismiss the appeal.

LORD OLIVER OF AYLMERTON

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. I agree that the appeal should be dismissed for the reasons which he has given.

LORD GOFF OF CHIEVELEY

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend Lord Keith of Kinkel. I agree with it and for the reasons he gives I would dismiss the appeal.

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