#2366 - Smith V Chief Constable Sussex Police - Tort Law

Smith v Chief Constable Sussex Police

House of Lords

Facts

C reported to the police that he had received persistent and threatening telephone, text and internet messages from his former partner following the break up of their relationship, including threats to kill him. He provided the officers with details of his former partner's previous history of violence, his home address and the contents of the messages. The officers declined to look at or record the messages, took no statement from him and completed no crime form. However they took steps to trace the calls and informed him of the progress of that investigation. Shortly thereafter he was attacked at his home by his former partner and sustained severe and continuing injuries

Sedley LJ COA

• Sometimes when someone places life so much in hands of police, have a duty beyond that of the normal person to protect them.

Held Lord Bingham

• I would hold that if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed

• Much attention has rightly been directed to the public policy considerations which weighed heavily with the House in Hill , leading to the decision that no duty of care should be imposed

  • Lord Keith's second reason was that in some instances the imposition of liability might lead to the exercise of a function being carried on in a detrimentally defensive frame of mind, and the possibility of this happening in relation to the investigative operations of the police could not be excluded. This was, with respect, an entirely apt observation on the facts of Hill , where the plaintiff's complaint was directed to the investigative operations of the police. It is not, however, easy to see how acceptance of the liability principle could induce a detrimentally defensive frame of mind. All that would be called for in the first instance would be a reasonable assessment of the threat posed to an identified potential victim by an identified person

  • Lord Keith's fourth reason, closely linked with the third, was that if actions were allowed to be brought a great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence and the attendance of witnesses at the trial, which would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime

    • But acceptance of the liability principle does not distract the police from their primary function of suppressing crime and apprehending criminals but calls for reasonable performance of that function

      • the law attaches particular importance to the protection of life and physical safety, and I do not think it necessary for present purposes to analyse in detail the cases on property damage

• Public policy itself

  • the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and very potent considerations are required to override that policy. I can recognise no potent policy considerations which should have denied relief to Ahmet and his mother,

  • My noble and learned friends, Lord Hope of Craighead, Lord Carswell and Lord Brown of Eaton-under-Heywood, in paras 77, 109 and 129 of their respective opinions, criticise the liability principle I have formulated. Who, they ask, is to judge whether the evidence is apparently credible? Who is to judge whether the threat is imminent? The answer is that given in any case where it is said that a professional should have been alerted to and should have responded to a risk. In the first instance the judgment is made by the professional in question. If that judgment is challenged, a judge must decide. In the present case it may be said that the police dismissed the threats to Mr Smith as incredible. If that was a reasonable judgment, no duty to respond arose. But it must be doubted whether that was their judgment, given that they embarked on the time-consuming (and on the facts unnecessary) exercise of tracing the calls

• If, as some of the cases suggest, it is necessary to find a special relationship for a duty of care to arise, this relationship was in my view special as a result of Mr Smith's approach to the police and their response to it. If, as other cases suggest, it is necessary for responsibility to be assumed for a duty of care to arise, then in my opinion the police assumed responsibility by visiting Mr Smith, initiating what was regarded by them as an investigation, assuring him that the investigation was progressing well and inviting him to call 999 if he was concerned for his safety. Public policy points strongly towards imposition of a duty of care: Mr Smith approached a professional force having a special skill in the assessment of criminal risk and the investigation of crime, a professional force whose main public function is to maintain the Queen's peace, prevent crime and apprehend criminals. He was entitled to look to the police for protection and they, in my opinion, owed him a duty to take reasonable steps to assess the threat to him and, if appropriate, take reasonable steps to prevent it.

Lord Hope

• The phrase “the interests of the whole community” was echoed in the last sentence of the passage which I have quoted from Lord Steyn's opinion in Brooks . There is an echo too in Brooks of the warning against yielding to arguments based on civil liberties: see the first sentence of that quotation where he warns against a retreat from the core principle. The point that he was making in Brooks , in support of the core principle in Hill , was that the principle had been enunciated in the interests of the whole community. Replacing it with a legal principle which focuses on the facts of each case would amount, in Lord Steyn's words, to a retreat from the core principle. We must be careful not to allow ourselves to be persuaded by the shortcomings of the police in individual cases to undermine that principle

  • The police have a public function to perform on receiving such information. A robust approach is needed, bearing in mind the interests of both parties and of the whole community. Not every complaint of this kind is genuine, and those that are genuine must be sorted out from those that are not. Police work elsewhere may be impeded if the police were required to treat every report from a member of the public that he or she is being threatened with violence as giving rise to a duty of care to take reasonable steps to prevent the alleged threat from being executed. Some cases will require more immediate action than others. The judgment as to whether any given case is of that character must be left to the police

    • appreciate, of course, that Lord Bingham's liability principle is confined to cases where a member of the public has furnished apparently credible evidence to the police that a third party represents a specific and imminent threat to his life or physical safety. It matches the facts of this case. But, if adopted, it would lead to the uncertainty in its application and to the detrimental effects that Lord Steyn warned against. Who is to judge whether the evidence is apparently credible? Who is to judge whether the threat is imminent? These are questions that the police must deal with on the spot. A robust approach would leave the matter to the judgment of the police officer

      • As in the case of the Osman test, the test for the judge must be an objective one. How then is the police officer to deal with evidence which, for one reason or another, he or she does not find convincing but about which there...