HILL (ADMINISTRATRIX OF THE ESTATE OF JACQUELINE HILL
DECEASED)
(A.P.) (APPELLANT)
v.
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
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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.”
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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
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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
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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
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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
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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.
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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.
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