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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Hill v Chief Constable of West Yorkshire [1987] UKHL 12 (28 April 1987) URL: http://www.bailii.org/uk/cases/UKHL/1987/12.html Cite as: [1989] AC 53, [1988] 2 All ER 238, [1988] 2 WLR 1049, [1987] UKHL 12 |
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Parliamentary
Archives,
HL/PO/JU/18/248
Hill (Administratrix of the
Estate of Jacqueline Hill
deceased) (A.P.) (Appellant) v.
Chief Constable of West
Yorkshire (Respondent)
JUDGMENT
Die Jovis 28° Aprilis 1988
Upon Report from the Appellate Committee to
whom was
referred the Cause Hi (Administratrix of the Estate
of
Jacqueline Hill deceased) (A.P.) against Chief Constable
of
West Yorkshire, That the Committee had heard Counsel on
Monday
the 8th, Tuesday the 9th and Wednesday the 10th days of
February
last, upon the Petition and Appeal of Doreen Violet
Hill, of 24
Lealholm Crescent, Ormesby, Middlesbrough TS3 ONA,
in the County
of Cleveland, praying that the matter of the
Order set forth in
the Schedule thereto, namely an Order of
Her Majesty's Court of
Appeal of the 19th day of February
1987, as amended, might be
reviewed before Her Majesty the
Queen in Her Court of Parliament
and that the said Order might
be reversed, varied or altered or
that the Petitioner might
have such other relief in the premises
as to Her Majesty the
Queen in Her Court of Parliament might seem
meet; as upon the
Case of the Chief Constable of West Yorkshire
lodged in answer
to the said Appeal; and due consideration had
this day of what
was offered on either side in this Cause:
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)
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 set
out 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
- 2 -
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."
- 3 -
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
- 4 -
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
- 5 -
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
- 6 -
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
- 7 -
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.
- 8 -
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.
- 9 -