Assumption of responsibility and omissions — A new era for public authorities?

An analysis of the legal landscape following the recent decision in Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB)

Abstract

There have been a number of recent high-profile decisions concerning liability with regard to assumption of responsibility, acts and omissions. However, the judgment handed down in May in Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB) (“Woodcock”) threatens to disrupt a well-established series of precedents and potentially mark one of the most significant developments in common law for public bodies in decades. It is anticipated an appeal may follow in due course.

Background / preceding case law

In order to fully consider the impact of this decision, it is necessary to revisit a few of the most pertinent decisions in this area.

In Osman v United Kingdom (23452/94), O, a teenage boy, was seriously injured and his father, F, was killed after being shot by P, O's former teacher, who had become obsessed by O. Prior to the shooting, a number of disturbing incidents had occurred, including damage to O's home, in respect of which P had been interviewed by the school authorities and the police. P, who had also shot and injured a deputy headmaster and killed his son, was convicted of manslaughter. O and his mother, M, brought an action for negligence against the police in respect of their conduct of the investigation into P's activities. The Court of Appeal ordered the action to be struck out as disclosing no reasonable cause of action on the grounds that, following the ruling in Hill v Chief Constable of West Yorkshire [1989] A.C. 53 [1988] 4 WLUK 228, for reasons of public policy, no action in negligence could lie against the police in respect of the investigation and suppression of crime. O and M applied to the ECHR, contending that the state had failed to protect the lives of O and F and to protect the family from harassment contrary to the European Convention on Human Rights 1950 Art.2 and Art.8, and that O and M had been denied access to a court in respect of that failure, contrary to Art.6(1).

It was held that (1) there had been no violation of Art.2. The state was not in breach of its positive obligation to take preventative measures to protect an individual whose life was at risk from another, as the requirement that the police knew or ought to have known that there was a real and immediate threat to O and F's lives from P was not met, since none of the incidents prior to the shootings were life-threatening, there was no proof that P was responsible for those acts and there was no evidence that P was mentally ill or prone to violence. (2) For the same reasons, the state was not in breach of its positive obligations under Art.8, and (3) there had been a violation of Art.6(1).

This case led to the police adopting the terminology of “Osman warnings” or “Osman letters”. An Osman warning is utilised in circumstances where the police believe that there is a real and immediate risk to someone’s life or physical safety. The threat must be credible and the danger imminent and it informs the recipient of the nature of the risk identified and advises them to take precautions. This allows the potential victim to take steps to protect themselves.

Some similarities exist between the issues in Woodcock and those in Sherratt v The Chief Constable of Greater Manchester Police [2018] EWHC 1746. Here, a call was made to the emergency call centre from the deceased’s mother. She was concerned for her daughter's welfare. The call hander advised that officers would be despatched to check on her and, if needed, they would arrange for any other emergency services that were required. The officers who initially attended failed to gain access to the property and left. They attended again in the morning and gained entry, whereupon they discovered that the daughter had taken an overdose and died.

The matter proceeded to the Court of Appeal who were asked to determine the question of whether a duty of care existed. They found that it did. The key question related to the “assumption of responsibility”. The court found that through the actions of the call centre operative, the police had assumed responsibility for the care of the deceased. There was sufficiently close proximity of relationship between the police and the deceased to give rise to a duty of care. Based on the information provided by the operative, the police had agreed to perform the same function as the ambulance service in coming to the aid of an injured person and taking them to hospital for further treatment if required. Due to this, the mother was entitled to rely on this information and in view of that, did not take any further action herself.

Case synopsis

The Woodcock judgment was handed down in May of this year.

The appellant was leaving her home with her husband and children when she was viciously attacked by her ex-partner, (R), and stabbed at least seven times causing serious injuries. R was convicted of attempted murder and imprisoned for life. The appellant had suffered a long history involving domestic abuse by R. He had been arrested three times and there were many breaches of bail conditions preventing him from contacting her or going to her home. The police were aware that R had recently threatened to kill her and her family and to rape her children. On the evening before the attack R had trespassed on the appellant's property and caused criminal damage and tried to break down her front door.

Officers had decided to arrest R and knew that the appellant was in fear for her life. A safety plan had been constructed which rested on keeping R out of the house, the appellant telling neighbours of the risk and asking them to assist in spotting R, and the appellant keeping her mobile phone charged. The appellant's home was also flagged as requiring an immediate response. The appellant maintained that the police had failed to warn her that R was outside her house and to protect her as a neighbour had made an emergency call and informed the police that R had been loitering outside the appellant's house at 07.32, just 12-13 minutes before the attack.

The trial judge found that the police did not owe her a duty of care and did not breach any that might be found to have been owed. Regarding causation, it was held that they did not cause the injury in any event. The issue was whether the police had a duty to protect or warn the appellant that a neighbour had made an emergency call.

Judgment

An appeal was allowed with the following findings made:

• Duty of care - the exceptions to the general rule that the police were not liable and owed no duty of care for failing to act or failing to prevent harm caused by criminals were limited to cases where the police had assumed a specific responsibility to protect a specific member of the public from attack by a specific person or persons, and exceptional or specific circumstances existed which created a duty to act to protect the victim. To impose a duty of care on the police to act to protect or warn a member of the public, a close analysis was required of the evidence relating to:

(a) the foreseeability of harm and the seriousness of the foreseeable harm to the specific member of the public

(b) the reported or known actions and words of the specific alleged protagonist in relation to the feared or threatened harm

(c) the course of dealing between the potential victim, the police and the alleged protagonist focusing on proximity

(d) the express or implied words or actions of the police in relation to protecting the victim from attack by the protagonist, and the reliance of the victim (if any) on the police for protection as a result

(e) whether the public policy reasons for refusing to impose a duty of care outweighed the public policy in providing compensation for tortiously caused damage or injury.

• It was reasonably foreseeable to the police, after the emergency call from the neighbour and in the light of the history, that the appellant was at high risk of serious injury from R. The facts and circumstances identified a specific protagonist and set out clearly the undisputed threats, breaches of bail conditions, repeated criminal damage in his attempts to get into close contact with the appellant, and the police involvement in constructing safety plans for her against the obvious risk. When considering the proximity criteria, the key factors were R's repeated failure to comply with protective bail conditions and the substantially increased frequency of his attempts to get close to the appellant in the days leading to the attack, aligned with his threats to kill and rape. The danger to the appellant at 07.32 was immediate and obvious.
• The police had visited the appellant a number of times in the days preceding the attack. The appellant had asked for protection on the day before the attack and had been given comfort protection in a conversation and by the presence of a police officer in a car parked outside her house. She had also relied on the police advice and on the safety plan.
• The public policy reasons in Hill and the refusal of the common law to impose a general duty of care in civil law on the police to protect the public from crimes of third parties should not stand as a bar to a limited and precise duty to warn in the instant case, (see paras 49, 105-109 of judgement).
• Special/exceptional circumstances/assumption of responsibility
  Special or exceptional circumstances existed in a limited way. The circumstances gave rise to a common law duty on the police to call the appellant once they had been informed by a neighbour that R had been loitering outside her house. That duty arose immediately after the neighbour's phone call because of the facts of the case and the content of the phone call. The words and actions of the police gave rise to the appellant having a reasonable expectation that the police would inform her that R had been loitering outside her house and that there would be a 5-10 minute gap before their arrival to arrest him. The police had breached their duty to warn by failing to call the appellant after the neighbour's emergency call, (paras 112-115).

Analysis

Should this decision remain unchallenged, it will have a dramatic impact on operational policing decisions. To this point, the courts have been reluctant to find public authorities liable for omissions. Whilst it is emphasised that the findings were made in very fact-sensitive circumstances, Ritchie J essentially found that the police had assumed responsibility for the appellant by advising her to form a “protective ring” around her property with neighbours as a safety precaution and that, as such, they were bound by a positive common law duty to warn the appellant of a dangerous potential threat to her when reported by one of those neighbours. It was made clear this case contained a set of facts that gave rise to “exceptional” circumstances in which a positive duty to warn would be created. However, it is clear that as more and more cases are heard, the threshold could be lowered as to what will constitute “exceptional” and the ‘floodgates’ potentially open for future claims of this nature against public authorities similar to those currently pursued under Articles 2 and 3 of the Human Rights Act 1998 (“HRA”) but benefitting from a longer limitation period if pursued under the tort of negligence.

Interestingly, this case seems to depart somewhat from the established higher court authority set out in Robinson as well as Poole. In those cases, it was established that the public body in question had not assumed responsibility for the respective claimants and, as such, they did not owe a duty of care for their safety or welfare.

In Poole it was held that there was nothing in the manner in which the local authority behaved towards the children from which an assumption could be inferred despite them monitoring and investigating the claimants. In this case it was the police’s consideration and formation of a safety plan and the claimant’s subsequent reliance on that plan that was deemed to create the relevant assumption of responsibility. It is interesting to contrast the level of involvement of the public authorities in both these cases and yet the stark difference in the findings.

In Robinson it was held that it was important not to impose unrealistically demanding standards of care on police officers acting in the course of their operational duties and reaffirmed that the Hill case continued to be misunderstood. The general law of tort applied to police forces like anyone else. However, as noted in Michael, the general duty of the police to enforce the law did not carry with it a private law duty towards individuals. The common law did not normally impose liability for omissions, or, more particularly, for failure to prevent harm caused by third parties. Hill had therefore to be understood in the light of later authorities. It did not stand for the proposition that the police enjoyed general immunity from suit. Robinson was successful on the basis that the damage had flowed from a positive act undertaken by the officers involved, as opposed to them not doing something, (the omission).

There were criticisms of the operational steps and professional judgments made in Woodcock with particular reference to the neighbours being asked to dial emergency services, but this information then going unshared with the appellant. There are potential operational reasons why various decisions are taken in the course of a police investigation and/or response to a crime report and it is somewhat surprising that the court made such comments during the course of this case. It is further noted that there was a specific finding that the appellant relied on an assurance from the police despite one not being explicitly offered/provided. Whilst concluding that the police had breached their duty of care in failing to warn the appellant, the court held that the first instance decision on causation was “unjust” and under the powers available to them at CPR 52.21 (2) (b) the case was remitted. The outcome of this is as yet unknown.

A police officer’s job is first and foremost to protect the public. It is unclear whether guidance will now be given about the circumstances or manner in which safety plans will be given to potential victims of crime and whether defensive policing will be a risk forces now have to consider. All this of course depends on whether the case is appealed, and there is no doubt that public bodies and public sector practitioners will be watching this evolving area very closely in the coming months.