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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Rathband v Northumbria Constabulary  EWHC 181 (QB) (05 February 2016)
Cite as:  EWHC 181 (QB)
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QUEEN'S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
| DARREN RATHBAND and DEBBIE ESSERY
[appointed under CPR 19.8(1)(b) to represent the Estate of DAVID RATHBAND Deceased]
|- and -
|THE CHIEF CONSTABLE OF THE NORTHUMBRIA CONSTABULARY
Mr John Beggs QC and Mr Aaron Rathmell (instructed by Northumbria Police Legal Department) for the Defendant
Hearing dates: 12th – 15th, 18th – 20th & 22nd January 2016
Crown Copyright ©
Mr Justice Males :
The shooting at Birtley
Moat's belief that Mr Brown was a police officer
The role of Superintendent Farrell
PC Rathband's shift
Moat's 999 call
"What I'm phoning about is to tell you exactly why I've done what I've done, right. Now, my girlfriend has been having an affair behind my back with one of your officers, this gentleman that I shot last night the karate instructor, right – now you, you bastards have been on to me right for years, you's have hassled Iz hassled Iz, you's just won't leave Iz alone, I went straight six years ago when I met her and I've tried me best to have a normal life and you just won't let up right you's won't leave Iz alone for five minutes. I can't drive down the street without the blue flashing lights you know, you's have stitched Iz up for years you've been caught stitching Iz up so the fact of the matter is right she's had an affair with one of your officers, if he hadn't have been a police officer I wouldn't have shot him."
"I can't, I can't – to be honest I'm quite surprised she is critical you know but I didn't mean that but the fact of the matter is I'm not coming in alive, you's have hassled me for so many years if you come anywhere near me and I'll kill you's, I've got two hostages at the minute, right, come anywhere near me and I'll kill them as well, I'm coming to get you's I'm not on the run I am coming to get you. You, you's have made me unwell, you's have made me do this cos you's just won't leave me out – you know you's just wont leave Iz alone."
"Aye you's you's wanted me to kill myself but I'm gonna do give you's a chance cos I'm hunting for officers now right."
"No. Please don't do that. We don't want any more killings, all right."
Eastings and Northings
Cell site analysis
The information provided to Superintendent Farrell
"Oh hang on, I've just been told that he's making specific threats in this call that he will shoot a police officer".
Superintendent Farrell's response
"Basically saying I know you want to kill us and I'm hunting for cops and you're going to get the chance to kill us … I know you want to kill me and I'm out looking for cops and I'm going to give you the chance."
"So from that he seems to be indicating that he's in the possession of a weapon and he's going to force the situation … That's my interpretation I haven't listened to the call."
The shooting of PC Rathband
The instruction to return to police stations
The subsequent location and death of Moat
Visits to PC Rathband
"Is something going to go out? Do you think we need to put something out, to all, all, over the air?"
Chief Superintendent Milward's review
"It was not possible to develop a response to Moat`s threats and communicate it concisely in the time between the call and the assault on PC Rathband ... ."
"Information obtained in this review describes a very fast moving sequence of events, with two key priorities running in parallel; officer safety and detaining Moat. There was an immediate need to respond to the former, proportionately and in a measured way, and to retain a policing service in some form. It was not possible to develop an all encompassing, fully risk-assessed response to Moat`s threats and communicate it concisely in the time between the call and the assault on PC Rathband, however a more immediate, interim warning could have been given by the CIM whilst the full response was being devised in conjunction with the TFC.
The CIM and supervisors acknowledged the need to expedite a broadcast of some kind to warn officers of Moat`s threats however, in interview as part of this review, none could articulate what the message should have been and accept that the preparation and broadcast of a fully meaningful and manageable message would not have been possible within the timescales.
One solution would have been to direct all patrolling staff to keep mobile i.e. not to remain static in any place until such times as further specific direction was given."
Amendments to the Safe Patrolling Procedures
"Where information is received of a specific threat to harm police officers or police staff and the assessment of that information indicates a verifiable or potential risk, then the following actions must be considered:
1. The duty Critical Incident Manager (CIM) will ensure that information concerning the threat is broadcast at the earliest opportunity to frontline staff.
2. The broadcast will consider procedures for Safe Patrolling and in the first instance include guidance to staff as follows:
- Officers and staff must remain vigilant according to the nature and type of threat;
- Uniformed resources will be double-crewed at all times;
- Staff will avoid static positions when on patrol and must remain mobile or return to police premises; and
- No foot patrols will be deployed.
3. The CIM will, as far as is practicable, confirm that frontline supervisors are aware of the threat and the broadcast, and that they have put in place measures to ensure their staff are aware of the threat and are accounted for.
4. Having completed the above, the CIM will refer the matter to a Silver Commander who will review the information and intelligence and, if appropriate, develop a broader Patrol Strategy."
Duty of care
The three stage test
"… 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 the party 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 for the benefit of the other."
"The general principle is that most claims against the police in negligence for their acts or omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test. It will not be fair just and reasonable to impose a duty. This is because the courts have concluded that the interests of the public will not be best served by imposing a duty to individuals. I shall not repeat the justification so eloquently expressed by others, in particular Lord Steyn [in Brooks: see below], save for these two sentences: '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'."
The Hill principle of public policy
"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 … A retreat from the principle in Hill 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, be bound to lead to an unduly defensive approach in combating crime."
"… the principle had been enunciated in the interests of the whole community. Replacing it with a legal principle which focuses on the facts of each case would amount, in Lord Steyn's words [in Brooks], to a retreat from the core principle. We must be careful not to allow ourselves to be persuaded by the shortcomings of the police in individual cases to undermine that principle. That was the very thing that he was warning against, because of the risks that this would give rise to. As Ward LJ said in Swinney v Chief Constable of Northumbria Police Force  QB 464, 487, the greater public good outweighs any individual hardship. A principle of public policy that applies generally may be seen to operate harshly in some cases, when they are judged by ordinary delictual principles. Those are indeed the cases where, as Lord Steyn put it, the interests of the wider community must prevail over those of the individual."
"The first is the danger that the existence of a duty of care would alter, detrimentally, the manner in which the police performed their duties in as much as they would act defensively out of apprehension of the risk of legal proceedings. The second is that time and resources would have to be devoted to meeting claims brought against the police which could better be devoted to their primary duties."
Claims by police officers
"The first was that one or more individual officers owed the claimant a duty of care of which he or they was or were in breach, which caused the claimant injury for which the defendant is vicariously liable. The second was that there was an employment or quasi-employment relationship between the claimant and the defendant, that the defendant owed the claimant the same duty as every employer owes to his employees, namely to take reasonable care for their safety in all the circumstances of the case so as not to expose them to unnecessary risk, that the duty is non-delegable, that there was a breach of that duty and that the claimant suffered loss as a result. It is appropriate to consider these two different ways of formulating the duty separately because they have been treated separately in the authorities."
"In my judgment, having considered Hill v Chief Constable of West Yorkshire  AC 53 on the one hand and Knightley v Johns  1 WLR 389 and Rigby v Chief Constable of Northamptonshire  1 WLR 1242 on the other, as a matter of public policy, if senior police officers charged with the task of deploying what may or may not be an adequate force of officers to control serious public disorder are to be potentially liable to individual officers under their command if those individuals are injured by attacks from rioters, that would, in my judgment, be significantly detrimental to the control of public order.
It will no doubt often happen that in such circumstances critical decisions have to be made with little or no time for considered thought and where many individual officers may be in some danger of physical injury of one kind or another. It is not, I consider, in the public interest that those decisions should generally be the potential target of a negligence claim if rioters do injure an individual officer, since the fear of such a claim would be likely to affect the decisions to the prejudice of the very task which the decisions are intended to advance. Accordingly, in my judgment, public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. That, in my judgment, should be the general rule in cases of policing serious public disorders. There may be exceptions where the plaintiff's injuries arise, as in Knightley v Johns, from specifically identified antecedent negligence or specific breach of identified regulations, orders or instructions by a particular senior officer. There is no such specific allegation in the statement of claim in this case and none has been suggested in argument. It follows that the plaintiff's claim against the third defendant taken at its pleaded highest is bound to fail and that the claim should be struck out. I therefore allow this appeal."
"For public policy reasons, a senior police officer is not generally to be held liable to a subordinate for operational decisions taken in the heat of the moment and when resources may be inadequate to cover all possibilities (Hughes's case)."
"52. In all these circumstances, it is, in my judgment, now clear that the chief constable should be treated as owing to his officers the same duties as an employer owes to his employees, subject to such considerations of public policy as arise on the facts of a particular case. That proposition seems to me to be consistent, not only with the authorities to which I have just referred, but also with principle. The relationship between a chief constable and his officers is so closely analogous to that between an employer and his employees as to make it just in principle to hold that he owes the same duties to his officers as an employer does to his employees.
55. It follows that, subject to any relevant considerations of public policy, the defendant owed the claimant a non-delegable duty of care both to devise and to operate a safe system of work. Thus, whether or not the system of work devised for the claimant was safe, the defendant is liable to the claimant for breach of duty if care was not exercised to operate the system safely and the claimant suffered injury as a result."
Summary of legal principles
(1) The starting point is that a Chief Constable owes to officers within his force a non-delegable duty to take reasonable care for their safety by ensuring both the provision and operation of a safe system of work. That is a different starting point from that which applies in cases by members of the public, where the general rule in the absence of any assumption of responsibility is the exclusion of a duty to protect against harm caused by criminals pursuant to the Hill principle.
(2) The duty as a quasi employer may, however, be excluded as a matter of public policy (or because it would not be fair, just and reasonable for such a duty to exist) by reference to the Hill principle.
(3) The duty will be excluded, or at least is more likely to be excluded, in cases involving operational decisions concerning the investigation or prevention of crime which are taken under pressure, whether of time or due to other circumstances. That will be a particularly important consideration in circumstances where there is a risk that imposition of a duty would give rise to "defensive policing". These are the kind of circumstances which have been described as falling within "the core principle of Hill" (e.g. Robinson at ) or which involve the performance of the "core functions" of the police (Robinson at  and ). In such cases the important public policy represented by the Hill principle is likely to outweigh the public interest in the performance of the Chief Constable's duty as a quasi employer.
(4) What matters, therefore, is the nature of the decision that falls to be made. Save perhaps in wholly exceptional circumstances which it is unnecessary to consider in the present case, that will be so regardless of whether the circumstances alleged to amount to a breach of any duty are particularly egregious (Robinson at ).
Application of the principles
Breach of duty
(1) Superintendent Farrell should have considered the threat posed to unarmed police officers and issued an initial interim warning following:
i. her first conversation with Inspector Dwyer (from 00:33:52 to 00:36:26); and/or
ii. her second conversation with Inspector Dwyer (from 00:38:46 to 00:40:13).
(2) An appropriate warning would have included the following:
i. that Moat, who was wanted for murder, had called the police;
ii. that he was making threats to shoot police officers and was hunting for police officers;
iii. that the call from Moat was believed to have been made from Charlie 6;
iv. that officers were to be vigilant at all times; and
v. that officers should await further instruction and keep the communications channels free.
(3) The warning should have been issued using the defendant's all talk groups simultaneous transmission facility.
The terms of any warning
(1) The claimants' pleaded case was that an appropriate and immediate instruction would have been "that police vehicles should avoid static positions when out on patrol, must remain mobile or return to police premises." This suggestion, which was clearly tailored with the benefit of hindsight to the circumstances in which PC Rathband was shot and did not deal with the position of officers on foot at all, was abandoned at trial. Not only that, it was accepted that an instruction in these terms would have been a bad idea.
(2) In his expert report Mr Power said that a warning should have said that credible information had been received that Moat, who was wanted for murder, had just made threats to shoot police officers, that his whereabouts were currently unknown, that all officers (sc. those on foot as well as in vehicles) should be vigilant and remain mobile unless on emergency calls, that there were no further details at this time, and that all units should stand by for further information.
(3) In the claimants' written opening it was said that a warning "could have been as simple as stating that Moat had made threats to kill police officers in a telephone call to the police and that police officers should exercise extreme caution whatever their location may be" or, alternatively, "could have been slightly more specific that police officers should avoid presenting themselves as possible targets by not parking in public view or keeping mobile". Thus neither these formulations nor Mr Power's expert report said anything to prohibit requests for further information.
(4) In cross examination Mr Power struggled to formulate the terms of the warning which, in his view, it was essential to issue within at most a few minutes of first learning of the threats made by Moat. It is true that he was put under some pressure to do so by Mr John Beggs QC for the defendant, but I regarded that as completely fair. It was always obvious that this question would be asked, and Mr Power had plenty of time in advance to think about his answer. Moreover, the pressure of cross examination was much less than that under which Superintendent Farrell had to operate at the time. This cross examination demonstrated vividly that the immediate formulation of an appropriate warning was not straightforward. In the event Mr Power's evidence was that a warning needed to comprise four elements: (i) a statement that Moat who was armed and dangerous had made credible threats to kill police officers, (ii) a brief description of Moat, (iii) instructions to be vigilant (but not necessarily to remain mobile) and (iv) a statement that further information would be given shortly. The requirement of a description was new. Again, there was no prohibition of requests for further information.
Conclusion on breach of duty
"It could have been any of us. My pride tells me that I stopped one of my mates getting shot and who knows how many members of the public. He could have gone into the city centre, pretending to ask for directions and blown any cop's face off when they wound down the window. Or turned up at the police station and done the same. Imagine that happening to a female colleague of yours in her twenties and having to explain it to her parents or young baby. I have to believe that I took one for my colleagues."