Cowan v Chief Constable of Avon and Somerset Constabulary
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,LORD JUSTICE ROBERT WALKER,SIR CHRISTOPHER SLADE |
| Judgment Date | 14 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1699 |
| Docket Number | Case No: CCRTF/2000/3591/B2 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2001 |
[2001] EWCA Civ 1699
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
His Honour Judge Jack
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Robert Walker
Lord Justice Keene
Sir Christopher Slade
Case No: CCRTF/2000/3591/B2
Mr Benet Hytner QC and Mr Stephen Cottle (instructed by Messrs Bobbetts Mackan of Clifton for the Appellant)
Mr Simon Freeland and Mr Andrew Waters (instructed by The Clerk to the Avon and Somerset Police Authority of Portishead for the Respondent)
INTRODUCTION
The issue in this case concerns the liability of a police force in negligence when police officers fail to prevent an offence being committed against an individual member of the public. The liability of the Chief Constable in the present case is alleged to arise either vicariously because of a breach of duty by the police officers concerned or directly because of a failure by the Chief Constable to provide adequate training for his officers. The main emphasis of the case for the appellant, who was the claimant in the court below, has been on the former of the two sources of liability. We are told by leading counsel for the appellant that the Legal Services Commission regards the issue raised as being of importance.
THE FACTS
During 1997 and early 1998 Mr Raymond Cowan, the appellant, enjoyed a tenancy of a room, plus the shared use of some other rooms, at 23 Dartmoor Street, Bedminster, Bristol at a rent of £42 per week from Mr Alan West, the owner. This was an oral tenancy, but it was an assured one under the Housing Act 1988, so that it could only be lawfully brought to an end by the landlord obtaining an order of the court under that Act. Before Christmas 1997 Mr Cowan received a letter from Mr West saying that he wanted him to leave. Mr Cowan did not leave. On 23 February 1998 a Mr Lumber and another man called on Mr Cowan at the property and told him that he had to be out by 6p.m. Mr Lumber threatened him with violence, specifically to break his legs, if he was not out by then. This incident seems to have taken place at sometime in the late afternoon, because at 4.41p.m. Mr Cowan telephoned the police.
As a result two officers came to see Mr Cowan. They were P.C. Smith and P.C. Henley. Mr Cowan told them what had happened. They told him to telephone again if the men returned. At about 6p.m. Mr Cowan was in his mother's house opposite No.23 when he saw that four men were taking his belongings from No.23 into the street. Mr Cowan telephoned the police and the same two officers returned. They found a number of Mr Cowan's possessions in the street and various residents watching what was happening. There was an excited atmosphere. Mr Cowan was angry and upset and was saying that the men could not do what they were doing and he had his rights. The County Court Judge found that on the arrival of the officers, the four men probably stopped and waited, at least for a short time. P.C. Smith was concerned that the police were outnumbered and he called for assistance, though saying that it was not urgent. P.C. Henley went to talk with Mr Lumber. Mr Lumber said that he had purchased the house and had given Mr Cowan notice to leave by means of solicitor's letters and verbal requests. Mr Lumber gave P.C. Henley the telephone number of Mr West. He spoke to Mr West who confirmed that the house had been sold and that notice had been given to Mr Cowan to leave. Mr Cowan was asked by the officers to see if he could find any documents and he went into the house with P.C. Smith. He could not find his rent book, probably because it had already been moved.
A police sergeant and another constable arrived. Mr Cowan said to them that his eviction was unlawful. The sergeant was given by Mr Lumber the same information that P.C. Henley had been given. The sergeant was not sure who had the legal right to the property. He thought that if he tried to force the issue by reinstating Mr Cowan, it might lead to violence. He advised both Mr Cowan and Mr Lumber to seek legal advice. P.C. Smith, according to his witness statement, suggested the same thing to them and said that they, the officers, would remain to prevent any breach of the peace. It seems that Mr Lumber had entered the house with a key. Eventually, after P.C. Henley had gone round the house with Mr Cowan to see that all his property was out, the officers left.
Neither P.C. Smith nor P.C. Henley had previously had to deal with an eviction. Both, according to the trial judge, regarded their task at the scene as being to prevent a breach of the peace. Neither had any knowledge of the Protection from Eviction Act 1977 ("the 1977 Act"), or of the offences created by section 1 of that Act.
The sergeant had been in the police force since 1972. He had received no training relating to evictions. He had on occasions been called to disputes between landlords and tenants but he had never had to deal with a situation like that at Dartmoor Street. His understanding of the law was that, if the tenancy was subject to a written contract, a Court Order was needed. That was why he wanted to see any rent book. It did not appear from his evidence that he was aware of offences arising under the 1977 Act. No evidence was called on behalf of the Chief Constable as to the training of officers or as to whether those who attended at Dartmoor Street should have been aware that it was an offence under the 1977 Act to evict Mr Cowan in the circumstances which occurred. Apparently, as a result of this incident and these proceedings, the officers in the Avon and Somerset force now carry a plastic laminated sheet telling them what to do in similar circumstances.
On 7 March 2000 Mr Lumber pleaded guilty to an offence contrary to section 1(3A) of the 1977 Act. He was conditionally discharged for one year and ordered to pay costs. Section 1(3A) makes the landlord of a residential occupier, or his agent, guilty of an offence if he does an act likely to interfere with the peace or comfort of the residential occupier, knowing or having reasonable cause to believe that the conduct is likely to cause the occupier to give up his occupation. The offence carries a fine or a term of up to two years imprisonment. It is not, therefore, an arrestable offence under section 24 of the Police and Criminal Evidence Act 1984. Section 1(2) of the 1977 Act creates a further non-arrestable offence. It provides:
"If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises."
Section 6 of the 1977 Act provides that proceedings for an offence under the Act may be instituted by specified authorities, in particular district councils. The specified authorities do not include the police.
Proceedings were brought by Mr Cowan against Mr West and the Chief Constable. On 22 February 1999 judgment was obtained against Mr West for damages to be assessed. The claim against the Chief Constable was brought in negligence, principally on the basis that his officers who went to Dartmoor Street owed a duty of care to Mr Cowan to take steps to prevent the crime under the 1977 Act being committed, primarily by pointing out that Mr Lumber's conduct was an offence. The Chief Constable denied that any such duty of care was owed to Mr Cowan and denied also that any duty owed was broken.
THE JUDGMENT BELOW
The trial took place before His Honour Judge Raymond Jack, QC, at Bristol County Court. In a detailed and careful reserved judgment he concluded that the officers attending at Dartmoor Street owed no duty of care to Mr Cowan; that, if he was wrong as to that, the duty was not broken; but, if there was both a duty and a breach of it, the appropriate award of damages would be £5,000.
The judge analysed the leading authorities applicable to the issue of when a duty of care will arise in such situations. He made reference to the decision of the European Court of Human Rights in Osman v United Kingdom [1998] 5 BHRC 293 as well as to the criticism of that decision by Lord Browne-Wilkinson in Barrett v Enfield London Borough Council [1999] 3 WLR 79. However, the later decision of the European Court of Human Rights in Z v United Kingdom [2001] 10 BHRC 384 emerged after the judgment had been given in the present case and so is not reflected in it. Although the judge quoted extensively from both Hill v Chief Constable for West Yorkshire [1989] 1 AC 53 and Costello v Chief Constable of Northumbria Police [1999] 1 All E.R. 550, he concluded that the decision in Osman prevented him from simply deciding that public policy considerations ruled out Mr Cowan's claim. He therefore examined the facts of the present case on the familiar basis of the three tests for the imposition of a duty of care in negligence as summarised in Caparo v Dickman [1990] 2 AC 605, that is to say foreseeability of damage, the existence of a sufficiently proximate relationship between Mr Cowan and the officers, and the justice and reasonableness of imposing such a duty. He identified the important aspects of the factual situation as follows:
"The police attended at Dartmoor Street in answer to an emergency call. Their interest and aim when they arrived was to prevent any breach of the peace. It was Mr Cowan's hope that they would prevent him from being evicted. There...
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