Joanne Conaghan, Professor of Law and Head of Law School
Last week the UK’s Supreme Court held that the police owed no duty of care to a victim of domestic violence whose murder could have arguably been prevented had the police not acted negligently in handling and responding to her 999 emergency call. Michael v CC of South Wales is just the latest of a growing line of cases in which the UK courts have denied such claims.
By contrast, a number of other countries whose legal systems are significantly based upon English common law principles have recognised the possibility of law suits against the police in similar circumstances. For example, in 1998, a Canadian court held the police liable in negligence for failings in relation to the investigation of a serial rapist. The claimant, Jane Doe (Doe v Metropolitan Toronto (Municipality) Commissioners of Police) successfully argued that had the police not been negligent in investigating similar earlier allegations, she might not have been raped. In South Africa in 2001, the victim of a brutal attack by a man on bail for attempted rape and with a known history of serious sexual violence successfully sued the police and the prosecution service (Carmichele v Minister of Safety and Security).
A glimmer of hope in the English context is offered by a High Court decision in 2014. Two victims of the serial rapist John Worboys – the notorious London Black Cab rapist who operated unchecked in the Metropolitan area for most of the 2000s and is thought to have raped or assaulted well over one hundred women – successfully sued the police. Their claim was founded not on common law negligence but in human rights. In DSD & NBV v Commissioner of Police for the Metropolis, the court held that the multiple systemic and operational failings which marred the investigation into Worboys’ criminal activities constituted a breach of the obligations imposed on the police under the Human Rights Act. 
However, this is a slender victory which is vulnerable to challenge on appeal. Moreover, because of the political contentiousness surrounding the Human Rights Act, including plans recently announced by the Conservative Party to scrap the Act should they return to power after the election, one cannot be confident that the small gain made by DSD will survive in the longer term.
Some may consider this to be no bad thing. Certainly a number – though not all – of the UK’s senior judges take the view that the victims of crimes should not be able to sue the police for negligence in the conduct of their core duties involving the investigation and suppression of crime. Public policy reasons are frequently invoked to support this view. If the police are vulnerable to civil suits, it is argued, this will affect their ability to operate effectively. It will inform resourcing decisions, shape policing priorities, encourage resort to ‘defensive’ practices and so on. These arguments are frequently trotted out but are rarely if ever supported by any evidence other than judicial ‘common sense’. One has therefore to ask whether they can seriously survive close, critical evidence-led scrutiny.
Let’s talk about evidence. Which evidence-based arguments might be raised in favour of liability in such situations? We might point to the fact that, for example, study after study over the last 20 years has highlighted serious failings in the way the police deal with cases of rape and domestic violence. These failings are said to contribute to the relatively low rate of convictions for these crimes. Prominent concerns emerging from the extensive literature include a sustained culture of police suspicion directed at rape complainants, poor record-keeping, the widespread misuse of ‘no-criming’, sloppy witness follow-up and evidence-gathering, and lack of adequate senior officer supervision. Time and time again, the public is reassured that lessons have been learned, mistakes corrected, policies put in place, training undertaken; only to have hopes dashed by yet another, statistic, study, or public outcry. One cannot help but despair at the seeming intractability of the problem. One cannot help but ask what would it take to bring about the kind of transformative change in police attitudes and practices that is plainly required?
It is in this context that civil liability begins to look like an attractive public policy option. Nor is it uncommon to use private law as a vehicle for policy reform. Social activists frequently turn to litigation in pursuit of political and environmental goals, particularly where the legislature has failed to act when it should. Moreover, if judges can take account of public policy to deny liability, why should public policy not be invoked to make the case in favour? There are strong legal and public policy arguments which support recognition of a police duty of care towards victims in certain limited and legally prescribed circumstances. No one is advocating a liability free-for-all here. The precise nature and scope of these circumstances remains an issue to be thrashed out in the courts. Indeed, in the Michael decision last week – notwithstanding the majority decision to deny a claim in negligence – two of the judges, Lady Hale and Lord Kerr, argued in favour of a duty of care in some circumstances. Nor is the argument anything other than that liability should lie only when negligence, that is, carelessness, has been demonstrably proven. Why after all should the police not be liable when they have acted without care? How else are we to call them to account? Most importantly, how do we ensure that, in the face of overwhelming evidence of systemic failings in the conduct and handling of crimes of violence against women, the police really, truly set about changing their ways? If nothing else, it’s worth a try when all other efforts to address this pressing problem have yielded such limited results.
Professor Joanne Conaghan will deliver an inaugural lecture Civil liability – Addressing police failures in the context of rape and sexual abuse on Thursday 19th February at 6 p.m. This is free to attend but booking is required.
You can follow Professor Conaghan on twitter: @JoanneConaghan