Police immunity from negligence persists, despite the murder of Joanna Michael

Should the police be immune from legal action for negligence? Jon Candy, CC BY-SA

The UK Supreme Court has ruled in favour of the police in a case that questioned whether they should be liable for negligence after failing to prevent the murder of a woman in Wales in 2009.

The court confirmed that the police do not owe a common law duty of care to the public when investigating and preventing crimes. That means members of the public who suffer injury or loss as a result of police carelessness in carrying out their public functions cannot seek compensation.

This is the first time in seven years the court has reconsidered police immunity. By a majority of five to two, the judges opted to retain the status quo. Although the police can still be sued for “operational” negligence, they remain immune from claims arising from failings occurring in the course of the investigation or prevention of crime. This means the police may be liable for carelessly causing a road traffic collision or starting a fire, but not for failing to apprehend a suspect or prevent a third party from harming a victim.

Landmark case

The case before the court arose from the tragic death of Joanna Michael in August 2009. Michael rang the police in the early hours of the morning after her ex-boyfriend had found her with another man and threatened to assault her.

Using her mobile phone, she dialled 999 but her call was picked up by Gwent Police in the neighbouring county and not South Wales Police, her local police force. Michael told the Gwent Police operator that her ex-boyfriend had threatened to hit her and may also have said that he was going to kill her. The Gwent Police operator referred the incident to South Wales Police and told Michael they would call her back.

The operator made no reference to a threat to Michael’s life when referring the call and, apparently as a result, South Wales Police informed its officers on patrol that the incident did not require an immediate response.

Approximately 20 minutes later, Gwent Police received another emergency call from Michael in which the operator heard screaming before the call was cut off. The operator upgraded the urgency of the incident but when officers arrived at Michael’s address they found her dead. Her ex-boyfriend was convicted of murder and her family sued the police for negligence.

The court held that Michael’s case was no exception to the rule that the police cannot be liable in negligence for failing to prevent a suspect causing injury to a third party.

The dilemma

The rationale for police immunity is that the prospect of legal action would transform the operational priorities of the police. Instead of focusing on their primary public function, the argument goes that fears about being sued might lead police officers to perform their duties with an unduly “defensive” frame of mind. They might, for example, waste time and resources in an effort to cover their backs rather than serve the public.

There is also a question of the fair allocation of resources. As a member of the court pointed out, it does not follow that taxpayers should fund a police force and then also foot the bill when something goes wrong because of the behaviour of a third party. If it did, the taxpayer would have to compensate the victim’s family for a situation ultimately caused by her ex-boyfriend.

Yet there are strong arguments for abandoning police immunity. Other public servants, such as doctors, teachers, and paramedics, can be sued for negligence and the services they provide are not crippled by litigation costs. It is also difficult to separate “defensive” practices from simply doing a good job. Bringing the police’s crime prevention and investigation functions within the law of negligence might even raise standards and would go some way towards harmonising the rules governing public-service defendants.

In some ways, Michael’s case bucks a recent trend. During the past decade, the court has restricted the scope of the combat immunity enjoyed by the armed forces and abolished immunity for expert witnesses and barristers in negligence claims.

The court’s reasoning on these issues may have raised doubts about the future of similar immunities enjoyed by the likes of the police and fire brigade. If expert witnesses, soldiers and barristers can function while subject to the law of negligence then surely the police and fire brigade could too?

But Michael’s case dispels any hopes of a new trend. There can be no doubt that we live in an era in which the conduct of the police is coming under closer scrutiny. High-profile examples of police failings, such as the Hillsborough disaster, the controversy surrounding the police investigation into the murder of Stephen Lawrence, and the death of Ian Tomlinson, make the case for maximising police accountability.

The Home Secretary’s infamous takedown of the Police Federation last year shows that improving the operational standards of the police is also a political priority. Against this backdrop, the dismantling of police immunity from negligence liability may have seemed a logical step. That the Supreme Court has chosen to keep it suggests that police exceptionalism will survive for some time yet.