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GETTING DEFENSIVE ABOUT POLICE NEGLIGENCE: THE HILL PRINCIPLE, THE HUMAN RIGHTS ACT 1998 AND THE HOUSE OF LORDS

  • Claire McIvor (a1)
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1 [1989] A.C. 53.

2 See especially text accompanying note 28 below (MacPherson Inquiry).

3 Note the recognition of this point by Lord Steyn in Brooks v Commissioner of Police: “[n]owadays a more sceptical approach to the carrying out of all public functions is necessary” [2005] 1 W.L.R. 1495 at [28].

4 [2008] UKHL 50.

5 [2008] NSWCA 107. It should be noted that Campbell J.A.'s judgment was a minority one in the sense that the majority (Mason P. and Giles J.A.), while arriving at the same outcome, based its reasoning on breach issues rather than on the duty of care. Nevertheless, Campbell J.A.'s judgment was by far the most lengthy (with Mason P. in fact merely agreeing with the short judgment delivered by Giles J.A.) and, more importantly, the one most frequently cited with approval by subsequent courts. See, for example, Cumming v. State of NSW [2008] NSWSC 690 at [57] and [58] per Harrison As.J. and State of NSW v. Spearpoint [2009] NSWCA 233 at [10] per Ipp J.A. and at [27] per Allsop A.C.J. I am grateful to Harold Luntz for bringing the latter case to my attention.

6 Indeed, as pointed out by Burton, in the context of the policing of domestic violence cases at least, the available empirical evidence would tend to undermine, rather than lend support to, the idea that the police will provide better victim protection if they are protected from civil liability. See M Burton, “Failing to Protect: Victims' Rights and Police Liability” (2009) 72 M.L.R. 283.

7 [1989] A.C. 53 at 63.

8 (1998) 29 E.H.R.R. 245.

9 [2001] 1 W.L.R. 1249. Often referred to as the “Widgery Soldiers” case, the Court of Appeal in Newdigate held that the Bloody Sunday Inquiry Tribunal had a positive duty under Article 2 to take reasonable steps to protect the lives of its soldier witnesses from real and immediate dissident republican threat. In the circumstances, this involved allowing the soldiers to provide their evidence via a video link from a venue on the British mainland, rather than in person in Northern Ireland.

10 [2007] UKHL 36. This case involved an application for anonymity by police officers called to give evidence before the Robert Hamill Inquiry in Northern Ireland. The House of Lords held that the correct test for determining an entitlement to anonymity in this case was whether the pre-existing risk of death would be increased if the officers were required to give evidence without anonymity. On the basis that there was no evidence of an increased risk in this case, the Article 2 obligations of the tribunal did not require a granting of anonymity.

11 Section 7(6).

12 [2005] 1 W.L.R. 1495. This decision is discussed in more detail on pp. 141–142.

13 [2008] EWCA Civ 39 at [12].

14 [1997] Q.B. 464.

15 [2008] EWCA Civ 39 at [29] per Sedley LJ.

16 [2008] UKHL 50 at [76] and [78] per Lord Hope, at [97] per Lord Phillips, at [108] per Lord Carswell and at [132] per Lord Brown. Lord Phillips also mentions the diversion of resources issue (at [89]), but fails to develop it any further.

17 Ibid at [75] per Lord Hope, at [106] per Lord Carswell and at [139] per Lord Brown. Lord Phillips expressed himself to be in agreement with Lord Hope's speech.

18 Ibid at [80]. While confirming the general applicability of the Hill immunity principle in the police context, Lord Steyn in Brooks left open the possibility of it being disapplied in exceptional cases of “outrageous” police negligence. Unfortunately he declined to provide any examples of such outrageous scenarios.

19 Ibid at [101].

20 Ibid at [102]

21 Ibid at [107].

22 Ibid at [127].

23 Ibid at [125].

24 Ibid at [124].

25 Ibid at [44].

26 Ibid at [49] and [52].

27 See C. McIvor, “Police Immunity and the Legacy of Hill v Chief Constable of West Yorkshire” (2005) 21 Professional Negligence 201 and C. McIvor, “The negligence liability of child welfare authorities and policy-based immunities: A critique of recent English developments” (2006) 14 Torts Law Journal 205.

28 The Stephen Lawrence Inquiry: Report of An Inquiry by Sir Macpherson of Cluny (1999; Cm. 4262-I).

29 [1970] A.C. 1004.

30 [2008] UKHL 50 at [47].

31 Ibid at [48].

32 See, for example, Cran v. State of New South Wales (2004) 62 NSWLR 95 (CA).

33 See P Marshall, “Police liability in negligence: The application of the Hill immunity in Australia” (2007) 15 Torts Law Journal 3.

34 For instance, the “inconsistent duties doctrine” set out by the High Court in Sullivan v. Moody (2001) 207 C.L.R. 562 may be regarded as a more sophisticated version of the “fair, just and reasonable” test applied by the English courts. Although the High Court in Sullivan v. Moody appeared to approve of the Hill principle, it must be made clear that it approved only of the practice of using policy arguments to confer limited immunity. As such it relied partly on Hill to deny the existence of a duty on child welfare professionals towards persons accused of committing child abuse. It did not approve specifically of the defensive practice argument and it did not endorse the use of the Hill principle to confer a blanket immunity on the police.

35 [2008] NSWCA 107 at [121].

36 Ibid at [123].

37 Ibid at [153].

38 [1982] 1 W.L.R. 349.

39 [1985] 1 W.L.R. 1242.

40 [1990] 2 Q.B. 283.

41 [2000] 1 A.C. 360.

42 [2002] Q.B. 347.

43 (2002) 191 A.L.R. 449.

44 See J. Morgan, “Policy reasoning in tort law: the courts, the Law Commission and the critics” (2009) 125 L.Q.R. 215.

45 See R (Middleton) v. West Somerset Coroner and Another [2004] 2 A.C. 182 on the form that an inquest must take in order to comply with the Article 2 procedural obligation.

46 See, for example, Keenan v. UK (2001) 33 E.H.R.R. 913 and Edwards v. UK (2002) 35 E.H.R.R. 487.

47 (1998) 29 E.H.R.R. 245 at [116].

48 [2009] 2 W.L.R. 115. See further N Allen, “Saving Life and Respecting death: A Savage Dilemma” (2009) Medical Law Review 262.

49 [2009] 2 W.L.R. 481.

50 Other recent Article 2 cases have involved judicial review applications, as opposed to actions for damages. See, for example, R (A) v. Lord Saville of Newdigate, Ex p A [2002] 1 W.L.R. 1249 and In re Officer L and others [2007] UKHL 36.

51 (2001) 33 E.H.R.R. 913. The application in this case was brought by the mother of a mentally-ill man who committed suicide while in prison. While the European Court of Human Rights held that the prison authority in question had a positive duty under Article 2 to protect the life of the deceased, it found that the conduct of the authority had been reasonable in the circumstances and that therefore the duty had not been breached.

52 Eye-witnesses had previously informed the authority on various occasions that the tenant in question had been aggressive towards the victim, and had even issued him with death threats.

53 See further, J. Steele's very thought-provoking discussion of some of wider unresolved issues raised by the interaction of the two causes of action: “Damages in tort and under the Human Rights Act: remedial or functional separation?” [2008] C.L.J. 606.

54 [2004] Q.B. 558, [2005] 2 A.C. 373 (HL).

55 [1995] 2 A.C. 633.

56 [2002] 3E E.H.R.R. 3. In Z, the European Court of Human Rights denied that the UK courts had applied a blanket immunity in dismissing the claims in X v. Bedfordshire. The decision has been interpreted both as a retreat from Osman and as a consistent application of Osman: see, for example, C. Gearty, “Osman Unravels” (2002) 65 M.L.R 87 and C. McIvor, Third Party Liability in Tort (Oxford, 2006) at pp. 115–118.

I would like to thank Ken Oliphant, Hanna Wilberg and John Bell for their very helpful comments on an earlier draft of this article.

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