Public and civil law

Paul Jarvis
Paul Jarvis
14 February 2018

Caparo revisited: Supreme Court clarifies scope of police duty of care

Last week, in a landmark judgment, the Supreme Court held that the police do not have blanket immunity from suit in respect of their conduct in investigating or preventing crime, but owe a duty of care to avoid causing foreseeable personal injury to others in accordance with the ordinary principles of negligence.

In July 2008, a relatively frail lady then aged 76 was knocked to the ground and injured by a group of three men who were struggling with each other.  Two of those men were sturdily built police officers.  The third was a suspected drug dealer.  The lady sued the police in the tort of negligence.  The Recorder held that the police officers had owed the lady a duty of care to prevent injury and they had acted in breach of that duty but they were immune from suit (following Hill v Chief Constable of West Yorkshire [1989] AC 53) because at the time of the breach they had been engaged in the apprehension of a suspected criminal.  The lady appealed the Recorder’s determination.

In February 2014, the Court of Appeal dismissed her appeal (Robinson v Chief Constable of West Yorkshire Police [2015] EWCA Civ 15; [2014] PIQR P14).  Delivering the judgment of that court, Hallett LJ considered that the three-stage test in Caparo (Caparo Industries plc v Dickman [1990] 2 AC 605, 617 – 618) “applies to all claims in the modern law of negligence” (para.40).  That ‘test’ was formulated by Lord Bridge in Caparo and requires (a) that the harm caused to the claimant must be reasonably foreseeable as a result of the defendant’s conduct, (b) that the parties must be in a relationship of proximity, and (c) that it must be fair, just and reasonable to impose a duty upon the defendant.  In consequence, Hallett LJ held that “[t]he court will only impose a duty where it considers it right to do so on the facts” (para.40).  In her judgment “most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test” (para.46) and so it was in Mrs Robinson’s case.  It was not fair, just or reasonable to impose a duty on the police to an individual such as Mrs Robinson because the police owed a wider duty to the public to prevent and detect crime, and that wider duty was incompatible with the existence of a narrower duty to prevent harm to members of the public when acting in compliance with that wider duty.

Dissatisfied for a second time, Mrs Robinson appealed to the UK Supreme Court and for her it was a case of third time lucky (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4).  The hearing of that appeal took place in July 2017 and judgment was handed down on 8 February 2018.  Lord Reed held that the Court of Appeal’s conclusion that the three-stage test in Caparo applies to all claims in the modern law of negligence “mistakes the whole point of Caparo, which was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists” (para. 21).  Instead, the correct approach to determine whether a duty of care exists in any given case is to look to the established authorities and, in novel situations, to develop the law “incrementally and by analogy” with those authorities.

At common law, public authorities, like the police, are generally subject to the same liabilities in tort as private individuals and that means a police officer can be liable in tort to a person who is injured as a direct result of his acts or omissions.  Referring to Hill, Lord Reed said that the judgment of Lord Keith in the that case was not authority “for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the court of investigating or preventing crime” (para. 55).  On a true reading of Lord Keith’s judgment in Hill, as explained by Lord Toulson in the case of Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732 (para. 37), Lord Keith had simply meant that the general duty owed by the police to enforce the law does not automatically carry with it a private law duty to members of the public.  Whether the police are under a private law duty of care to protect members of the public from personal injury will depend upon the application of the ordinary principles of the law of tort (para. 68).  The sort of policy considerations that were considered by Lord Keith are “unnecessary when existing principles provide a clear basis for the decision, as in the present appeal” (para. 69(1)).

The application of the ordinary principles of the law of negligence was sufficient to place the police under a duty of care to protect an individual from a danger of injury which the police themselves had created, but such a duty was unlikely to exist where the danger of injury came from a third party and not the police, in the absence of special circumstances such as an assumption of responsibility by the police.  In Mrs Robinson’s case, it was reasonably foreseeable that the suspect would resist arrest and attempt to escape and that vulnerable pedestrians could be injured in the ensuing scuffle.  Accordingly, in the opinion of Lord Reed, the police had owed Mrs Robinson a duty of care which they had breached.  For those reasons he allowed the appeal. Lady Hale and Lord Hodge joined in his judgment. Lord Mance and Lord Hughes gave separate judgments concurring in the result of the appeal but expressing reservations about the ease by which the others had minimized the relevance of policy considerations to the issue of whether the courts should recognise the existence of a duty of care on the police towards private citizens in the exercise of their public law powers.

For some considerable time the decision in Hill had been interpreted as offering virtual immunity on public policy grounds to the police for harm caused to private individuals by the police in the course of fulfilling their wider duty to the public to detect and prevent crime.  The effect of Hill was often that under the third part of the Caparo test, the courts declined to find that the police owed a duty of care to private individuals in the position of Mrs Robinson.  Following Robinson, the position has shifted.  Whether the police owe a duty of care to a person in her position will depend not on the Caparo factors but on whether there is established authority that recognizes the existence of such a duty.  Where the facts are novel, the court should seek to draw an analogy with the existing case law where possible, and that may just enable public policy considerations to sneak back into the court’s decision-making process.  On the facts of Robinson, the recognition of a duty of care was straightforward enough but it is not hard to imagine other cases where the court’s task will not be so easy.  Hallett LJ in the Court of Appeal suggested that “the Hill principle” (para. 44) was designed to prevent defensive policing, that is to say the immunity that decision purported to confer on the police was meant to discourage the police from acting too cautiously by, for example, refraining from arresting suspected criminals in the streets in case that endangers the safety of pedestrians like Mrs Robinson.  Whether the erosion of the Hill principle in Robinson will result in a return to so-called defensive policing remains to be seen but as a re-statement of the orthodox principles underpinning the tort of negligence this judgment is welcome.

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6KBW
6KBW
17 January 2018

No smoke without fire: revisiting the Crown exemption rule

When is the Crown bound by a statute that does not expressly refer to it? This was the question that arose for consideration by the Supreme Court in R (on the application of Black) v Secretary of State for Justice [2017] UKSC 81 (see the judgment here). 

The judgment

The appellant, a serving prisoner, sought judicial review of the Secretary of State’s refusal to provide prisoners at HMP Wymott with access to the NHS’s Smoke-free Compliance Line. This freephone telephone line is designed to enable anyone to draw breaches of the ban on smoking in enclosed public places and workplaces in England and Wales to the attention of enforcement authorities. The refusal to provide the appellant with access to the Compliance Line was made on the basis that Part 1 of the Health Act 2006 (which brought the ban into force) did not bind the Crown. The claim succeeded at first instance (before Singh J), but the Court of Appeal (Lord Dyson, McCombe LJ and Richards LJ) allowed the Secretary of State’s appeal.

In a unanimous judgment, the Supreme Court dismissed the appeal. They refused to revisit the presumption, stated in Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 and Lord Advocate v Dumbarton District Council [1990] 2 AC 580, that a statutory provision does not bind the Crown, save by express words or “necessary implication” (the “Crown exemption rule”). The Court found that the presumption is so well established that many statutes will have been drafted and passed on the basis that the Crown is not bound.

The Court went on (at paragraph [36]), to set out several propositions that constitute the rule, before applying them to the case at hand. The Court found that, although there were indications that, before the 2006 Act was passed, the prison service expected to be subject to the smoking ban, there were powerful indicators in the language of the 2006 Act that the Crown was not bound. First, the statute did not say that the Crown was bound. Second, in legislation with comparable structures and enforcement powers, there are provisions dealing with how the Act is to apply to the Crown, such as the Health and Safety at Work etc Act 1974. Third, there is a provision in section 23 of the 2006 Act binding the Crown in relation to Part 3, which deals with the Supervision of Management and Use of Controlled Drugs, as well as a provision in section 10 of the Smoking, Health and Social Care (Scotland) Act 2005 binding the Crown for the Scottish equivalent to the smoking ban. Therefore the silence on the point in Part 1 of the 2006 Act implies that that Part does not bind the Crown.

Commentary

In Black the Supreme Court did not conclude that the Crown cannot be bound by the smoking ban, but rather that the 2006 Act does not provide for the Crown to be bound. One of the principles explained by the Court in its judgment is that the Crown exemption rule is one of statutory interpretation, rather than a strict immunity from liability.

It is a rule that, nonetheless, raises a number of questions for debate.

First, it may be argued that the Crown exemption rule renders the law less accessible: without legal training anyone reading the 2006 Act might reasonably assume it binds the government. In consequence, there may be a danger that the issue of whether a particular law should bind the Crown may not receive the prominence it deserves.

Second, the rule might be considered to make the law less certain. Without it, it would be unnecessary to ask a Court to determine whether there was a “necessary implication” that the Crown was bound (a task that would perhaps have been harder and less certain in Black, had there been no reference to the Crown in the equivalent Scottish provisions or other Parts of the 2006 Act).

Third, it may be considered surprising to some that, where there is no express provision, the starting point is a rule of statutory construction that has the effect that legislation does not apply to Crown servants. As the Supreme Court noted (see paragraph [33] of the judgment), Paul Craig has highlighted that the Crown exemption rule is not always in the mind of the parliamentary draughtsperson, such that where the rule is not contemplated, the Crown could be exempt from provisions that were intended to apply universally. For example, the Offences Against the Persons Act 1861 contains no provision relating to the Crown: strict application of the rule might be argued to have the result that Crown servants are not committing offences if, in the course of their duties, they commit one of the offences contained within that Act.

At present, there is no difficulty with Parliament adding a provision to any Act to make it bind the Crown (indeed this is given as a justification for upholding the rule), but it could equally easily add explicit exemptions where desirable. In the circumstances, and given the considerations noted above, it might be argued that the latter approach is preferable and more in keeping with democratic norms.

It is, of course, easy to see why certain laws should not bind the Crown. Soldiers need to be able to carry guns without obtaining a licence from their local constabulary, for example. In the case of the smoking ban, a key part of the statutory scheme is a regime of inspection and enforcement. It is plainly undesirable that local government officials should have a right to enter and inspect all government buildings – in the context of this case, for example, arriving at a high security prison and demanding to inspect the premises.

It is also sometimes unnecessary for laws to bind the Crown. The Government had already voluntarily introduced smoke-free offices, and there is no suggestion that breaches of the rules by civil servants were being tolerated. Even in the prison context, plans for entirely smoke-free prisons (including the residential areas or cells) are well underway.

However, it is open to question whether these justifications for Crown exemption bear on what should be assumed where a statute does not contain a provision on Crown application.

It is noteworthy that Lady Hale suggested (at paragraph [35]), that there is a strong case for Parliament to clarify the rule in primary legislation. Regardless of any view of the merits of the Crown being exempt from certain legal provisions, it might be considered a positive step for the clarity of UK law, to have a short provision simply stating: “Unless otherwise provided, all Acts bind the Crown.” The transitional provisions would be slightly more complicated: naturally it could only apply to subsequent statutes, not to previous legislation that was based on the opposite assumption. But what about later statutes amending earlier Acts, or later statutes which say they must be read with a prior statute since together they create a comprehensive code? Which rule of interpretation then applies? Should such a provision ever be introduced, the Office of Parliamentary Counsel would have an unenviable task.

This post was drafted by Alex Du Sautoy and Vincent Scully, both pupil barristers at 6KBW.

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Imprisonment for Public Protection (IPP)

On 14 August 2017, the Chair of the Parole Board, Nick Hardwick, gave an interview to BBC Radio 4’s ‘Today’ programme, in which he called for changes to the test to be met before prisoners serving sentences of Imprisonment for Public Protection (‘IPPs’) could be released by the Parole Board.  The sentences were controversial when brought into force in 2005 and remain so to this day.  Although the sentences were prospectively abolished in 2012, people sentenced to IPPs before that date remain subject to their provisions and more than three thousand people sentenced to IPPs are still in prison.  The call by the Chair of the Parole Board was set against the background of one High Court and two Court of Appeal decisions handed down in July 2017, in which those courts rejected a range of challenges to the regime.  This post considers the IPP scheme and the courts’ approach to the most recent challenges to the regime.

The Statutory Framework

IPPs came into force on 4 April 2005, by section 225 of the Criminal Justice Act 2003 (‘CJA 2003’), which provided that where a person over 18 was convicted of a ‘serious offence’ (as defined in the CJA 2003) and the court was of the opinion that there was a ‘significant risk to members of the public of serious harm’ caused by the offender committing further specified offences in the future, the court had to impose a sentence of imprisonment for public protection (unless the court was compelled to impose a sentence of life imprisonment).  The sentence had two aspects. First, it was for the court passing sentence on the offender to determine the minimum period required to be served before the offender became eligible for parole (‘the tariff’).  When the tariff period expired, it was for the Parole Board to consider whether the offender could be released.  An offender could only be released, however, if the Parole Board was satisfied that it was no longer necessary for the protection of the public that the offender be detained. The minimum term, therefore, represented the punishment for the offence, whilst the indeterminate period was for the protection of the public.

Repeal

The CJA 2003 was amended by the Criminal Justice and Immigration Act 2008 (‘CJIA’), which was brought into force on 14 July 2008.  The effect of one of the amendments was to remove IPPs from the sentences available to a judge where the notional determinate sentence was less than four years’ imprisonment.  IPPs were abolished in all other cases for anyone falling to be sentenced on or after 3 December 2012, the date on which the repeal provisions contained in section 123 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) came into force.  Section 123 of LASPO did not, however, apply retrospectively and so existing sentences of IPP continue to be lawful. LASPO also made provision, by section 128, for the Secretary of State for Justice to place a draft order before both Houses of Parliament with a view to varying the test to be applied by the Parole Board when deciding whether or not to direct the release of an IPP prisoner.  To date, the Secretary of State has not sought to exercise the power under section 128 to vary the release test.

The Challenges

Various features of the IPP scheme, as it continues to apply to those prisoners who received IPP sentences before its abolition in 2012,  have been the subject of recent challenges brought on behalf of two prisoners serving sentences of IPP: James Knights and Scott Henley-Smith. Those challenges have thus far been unsuccessful, though it is conceivable that they will be considered further on appeal.

James Knights

In respect of James Knights, the Court of Appeal heard two appeals:  (i) an appeal against an unsuccessful application for judicial review in which it had been argued that the prisoner’s continued detention failed to comply with the ECHR, heard by the Court of Appeal (Civil Division) (James Knights v Secretary of State for Justice [2017] EWCA Civ 1053); and (ii) an appeal against sentence, following a reference by the Criminal Cases Review Commission, heard by the Court of Appeal (Criminal Division) (James Knights v The Queen [2017] EWCA Crim 1052, [2017] 2 Cr App R (S) 33).  The appeals were heard jointly, though separate judgments were given.

Mr Knights was sentenced to an IPP with a determinate term of 8 months on 26 June 2008.  Less than three weeks later, the statutory provisions introduced by the CJIA came into force, which abolished IPPs for offenders where the notional determinate sentence was less than four years’ imprisonment.  Mr Knights’ tariff expired on 26 February 2009 but he was not released until July 2013 (though he was recalled on licence two months later, released again in March 2014, and recalled again in December 2014.  He remained in custody at the time of the appeals).

On the appeal against the refusal to grant judicial review, it was argued on Mr Knights’ behalf: (i) that  there had been a breach of Articles 3 and 5(1) of the ECHR (respectively, the prohibition of torture and inhuman or degrading treatment or punishment and the right to liberty and security), for which the Secretary of State was liable, as a consequence of the duration of Mr Knights’ detention and/or in light of the material legislative change; and (ii) that the appellant’s treatment was discriminatory by reference to those who had committed identical offences but were sentenced after 14 July 2008 (when the relevant revisions to the CJA 2003 came into force) and, therefore, in breach of Article 14 of the ECHR (prohibition of discrimination and the principle of lex mitior).  The Court of Appeal (Civil Division) rejected each of these arguments, holding that: (i) Article 14 ECHR was not engaged: the Court was bound by the decision of the House of Lords in R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54. Even if Article 14 was engaged and assuming the date of conviction could amount to sufficient status to trigger art.14, the difference in treatment was inherent in the change in the law and was objectively justified: R. v Docherty [2016] UKSC 62 (ii) the claim insofar as it alleged breaches of Mr. Knights’ rights pursuant to Articles 3 and 5 ECHR could properly be rejected on the basis that the length of imprisonment was not such as to engage the principles in Vinter v United Kingdom (66069/09) (2016) 63 E.H.R.R (Article 3) and the causal link between the original lawful conviction and sentence and Mr. Knights’ continued detention had not been broken (Article 5) and of particular pertinence was the fact that Mr. Knights had been released and recalled to prison.

An offender subject to an IPP who has served the minimum term is no longer detained as a punishment but because of the risk that he poses and then only for as long as the Parole Board consider him to be a risk to the public.

On the appeal against sentence, the appellant sought to argue that the sentencing regime which came into effect on 14 July 2008 (when sentences of IPP for tariff periods of less than four years’ imprisonment were abolished) was less severe than the one under which he had been sentenced.  To apply the earlier sentencing regime was, therefore, unlawful as contrary to the international principle of lex mitior .  This argument was rejected by the Court of Appeal (Criminal Division), which was bound by the decision of the Supreme Court in R v Docherty [2016] UKSC 62.  The appellant also sought to argue that even if the sentence was lawful when passed, it had become disproportionate to the crime committed, constituting a breach of Articles 3 and 5 of the ECHR.  The Court also rejected this argument, noting that: ‘The minimum term to be served represents the punishment for the offence whilst the indeterminate period is for the protection of the public – see James, Walker and Lee v Secretary of State for Justice [2010] 1 AC 553. An offender subject to an IPP who has served the minimum term is no longer detained as a punishment but because of the risk that he poses and then only for as long as the Parole Board consider him to be a risk to the public.’ (per Thirlwall LJ at paragraph 38) As a matter of principle, the Court did not accept the argument that a lawful sentence could become disproportionate and so lead to a breach of either Article 3 or Article 5 simply by reason of the passage of time, particularly where, in Mr. Knights’ case, he had not been imprisoned continuously but had been recalled to prison by reason of his own conduct.

Scott Henley-Smith

Scott Henley-Smith applied for judicial review of the Secretary of State for Justice’s failure to consult upon, and then exercise, the power within section 128 of LASPO with a view to amending the release test to facilitate the release of  prisoners serving sentences of IPP.  Lang J. refused the application, finding that the decision of the Secretary of State not to legislate, or consult with a view to legislating, was a political matter which should be resolved in the political, rather than legal sphere and any interference by the Courts to require the Secretary of State to consult with a view to legislating would be a breach of Parliamentary privilege and contrary to the principle of the separation of powers. In any event, Lang J concluded,  the Secretary of State for Justice had exercised his discretion lawfully – both rationally and proportionately – by considering whether or not to vary the test applied by the Parole Board when considering whether to release on licence offenders detained on IPPs, but deciding instead to improve the operation of IPP sentences, enabling more prisoners to meet the conditions for release.

Comment

The intervention of the Chair of the Parole Board appears designed to place pressure on the Secretary of State to give further consideration to whether the release scheme may be capable of being varied. During his Radio 4 interview, Nick Hardwick suggested that for people with tariffs under two years, the onus should be on the state to prove that they were likely to commit a further offence rather than the other way around.  Of the 3300 still in prison on IPPs, this would apply to around 550 of them.  Assuming the Secretary of State maintains his current position, as upheld by the High Court in Henley-Smith’s case, it seems the only way in which prisoners serving IPPs will be released is if they either manage to satisfy the current criteria for release, with the benefit of the enhanced resources and measures made available by the Ministry of Justice to enable prisoners to progress more speedily through the prison estate.

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