Court of Appeal combined judgment confirms no assumption of responsibility by police forces

The Court of Appeal has recently handed down a combined judgment in two separate cases against Police Chief Constables in Northamptonshire and Wiltshire.

Woodcock v Chief Constable of Northamptonshire

In a significant decision following the first instance decision in Woodcock, in which it was held by Ritchie J that the police owed a duty of care to warn the claimant that a report had been received regarding her former partner (who had threatened her with violence and went on to stab her prior to the arrival of the police) being outside her home, the Court of Appeal allowed the Chief Constable’s appeal.

The Court of Appeal referred to the recent decision of the Supreme Court in Tindall v Chief Constable of the Thames Valley [2024] UKSC 33 (in which the Supreme Court had held that “a transient and ineffectual response by officers in the exercise of a power…did not involve any assumption of responsibility…for the prevention of harm caused by a danger for the existence of which the police were not responsible”), and concluded that the claim was for an omission or a failure to confer a benefit, as opposed to a positive assumption of a duty of care over the claimant. An assumption of responsibility would, typically, require some representation or promise by the police to take a particular action, followed by reliance by the claimant or some other person. This had not been established on the facts and, accordingly, no duty of care arose.

CJ and others v Chief Constable of Wiltshire

In the case of CJ & Others, the Court of Appeal dismissed the claimants’ appeal. At first instance, Spencer J had held that the police did not owe a duty of care when investigating offences involving the downloading of indecent images by a perpetrator who went on to sexually abuse the claimants.

Once again, the Court of Appeal took the view that the claim was one of a failure to confer a benefit / omission to act, and that there had been no assumption of responsibility by the police. In addition, Spencer J had dismissed the claimants’ claims for breach of the Article 3 investigatory duty on the basis that the index offences that were the subject of the police investigation (indecent images of unidentifiable children) was not of a sufficient level of severity to engage Article 3.

The Court of Appeal also agreed with Spencer J that a “generalised future risk would not suffice to engage the article 3 investigative duty, because it would not satisfy the requirement of a real and immediate risk of ill-treatment in breach of [Article 3]”. Whilst it was accepted that there is an obligation to carry out an effective investigation into arguable claims of the infliction of ill-treatment falling within the scope of Article 3, and that “egregious and significant” operational failures may be sufficient to establish a breach of that duty, that can only arise when such an allegation is made and, significantly, such an allegation would not operate to retrospectively impose an operational duty on the preceding police investigation. It was recognised that this would lead to a perverse finding and would be an impossible duty to uphold.

Summary

The facts of neither of the above cases were sufficient to engage the “interference principle” which had been recognised by the Supreme Court in Tindall – that, if the police knew or ought to have known that a person was in need of assistance and, by doing something, they had put off or prevented another from helping that person, then they will owe a duty to take reasonable steps to help that person. There was no evidence that the police action in Woodcock or CJ had prevented another person from acting to help the claimants (or resulted in them not helping the claimants when they otherwise would have).

Whilst both cases are fact specific, they largely follow the rationale of the Supreme Court in Tindall and serve to highlight the difficulties that claimants will have in establishing a duty of care in omissions cases absent a finding of an assumption of responsibility and reliance. The conclusions in CJ & Others in relation to the Article 3 claim are unsurprising – a general risk of harm in the future does not trigger the investigative duty and a duty to investigate does not exist until allegations are raised.

Clyde & Co are specialists in dealing with civil actions against the police, including appeals, and we constantly monitor relevant developments in this area. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Laurie Swain.