French and Others v Chief Constable of Sussex
| Jurisdiction | England & Wales |
| Judgment Date | 28 March 2006 |
| Neutral Citation | [2006] EWCA Civ 312 |
| Docket Number | Case No: B3/2005/0059; 0167; 0168; 0169; & 0170 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 2006 |
[2006] EWCA Civ 312
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
THE HON MR JUSTICE WILKIE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Tuckey and
Lord Justice Laws
Case No: B3/2005/0059; 0167; 0168; 0169; & 0170
HQ04X00085, 86, 87, 88, & 89
Robert Glancy QC (instructed by Messrs Pattinson & Brewer) for the Appellants
Mr Edward Faulks QC & Paul Stagg (instructed by Messrs Wynne Baxter) for the Respondent
Lord Phillips CJ:
This is the judgment of the court
Each of the appellants claims to have been caused psychiatric injury as a result of breaches of the duty of care owed to him by the respondent, or those for whom the respondent is responsible. On 20 December 2004 Wilkie J struck out parts of the appellants' claims pursuant to CPR 3.4 on the ground that they had no real prospects of success. The appellants appeal against part only of Wilkie J's order. They do so with permission granted by Tuckey LJ.
Background facts
The appellants were five police officers who in January 1998 were part of Sussex Police Force. We shall refer to them by the rank that they then held. They were involved in events leading up to an armed raid which led to the fatal shooting of James Ashley in his bedroom in St Leonards-on-Sea on 15 January 1998. None of the officers witnessed that shooting itself, which was carried out by PC Sherwood.
In connection with the raid, Superintendent Burton was Scene Commander, ADCI Kevin French was Incident Commander for firearms operations, DI Christopher Siggs was the Intelligence Manager, PC Steven Crocker was a Tactical Advisor for armed operations and PC Robert Shoesmith was an intelligence officer.
The shooting was immediately referred to the Police Complaints Authority (PCA) and an investigation commenced by ACC Wilding of Kent Police.
The appellants were all served with disciplinary notices and all were suspended, four in May 1998 and PC Shoesmith in March 1999.
On 31 March 1999 all but PC Crocker were charged with the criminal offence of misfeasance in public office. PC Sherwood was charged with murder. PC Crocker's suspension was lifted in June 1999.
On 2 April 2001 PC Shoesmith was acquitted after the Crown offered no evidence at his trial. The other defendants were similarly acquitted on 22 May 2001. The prosecution of PC Sherwood had been dismissed by the trial judge, Rafferty J, on 2 May 2001.
The suspensions of the officers were lifted following the trial. ADCI French and DI Siggs were confirmed in their promotion to the rank of Chief Inspector.
Notwithstanding the acquittals, on the recommendation of the PCA disciplinary charges were brought against all the appellants, save PCs Shoesmith and Crocker who were given 'words of advice'. DCI French had served notice of retirement in August 2001 but was now suspended to prevent that retirement, pending the completion of the disciplinary process.
The disciplinary charges against Superintendent Burton were dropped in April 2002, six of the eight charges against DI Siggs in May 2002 were dropped (following a hearing before Elias J in judicial review proceedings) and the balance of the charges against DI Siggs and DCI French were dropped in January 2003.
11. Thereafter DCI French was permitted to retire from the force. DI Siggs and Superintendent Burton were medically retired in April 2003.
The appellants commenced proceedings for psychiatric injury caused by the negligence of the Chief Constable of Sussex as their employer.
Three heads of claim were advanced. The first was common to all the claimants, the other two were not. The first, described as the 'corporate failure', alleged a negligent failure to 'formulate, maintain, review, operate and properly train staff in a safe and effective (i) system for the collection, receipt, collation, management and utilisation of criminal intelligence and (ii) firearms operational capability to respond to dangerous criminals, including all necessary operating protocols for the same'. It was alleged that these systemic failures foreseeably led to the shooting of Mr Ashley, the various disciplinary and criminal proceedings brought, without justification, against the claimants, the attendant stresses on the claimants and the resultant psychiatric injuries.
Medical reports have been served for each appellant. Each confirms that the appellants had no pre-existing psychiatric disorder and their symptoms began in the aftermath of the shooting, related solely to the disciplinary and criminal investigations and their consequences.
The judge struck out the allegations of corporate failure. The issue before us is whether, contrary to the judge's view, these allegations have a real prospect of success.
We should mention, for completeness, the other two heads of claim. The first alleged a failure to manage the claimants' return to work once they had been cleared of charges against them, resulting in additional stress. The respondent has accepted that this head of claim is arguable, and no issue arises in relation to it at this stage. The other head of claim alleged a failure properly to manage the disciplinary process against the claimants. The judge struck out these allegations on the ground that they were unsustainable in law. Although permission to appeal was given in respect of the judge's decision on this head of claim, no appeal is pursued against it.
The Claims
It is the appellants' case that there were serious and systemic shortcomings on the part of the Sussex Police Force in failing to ensure that the appellants and others were properly trained in relation to the conduct of operations of the type that ended with the shooting of Mr Ashley. This contention appears abundantly supported by the evidence before us. The manner in which the appellants seek to found a claim on these failings was clearly set out in their skeleton argument in the court below:
"Where an employer (and the Chief Constable is analogous to an employer…) sets up an unsafe system of work and requires his employees to operate it when they are insufficiently or inadequately trained or experienced and when the result of that unsafe system of work as operated by those employees foreseeably results in disaster leading to the investigation and prosecution of senior police officers, it is submitted on behalf of the Claimants that, as "employees" of the Defendant, they are primary victims of that negligence and incompetence and it is also submitted that it is clearly foreseeable that such a chain of events will lead to the officers suffering extreme and severe stress … ."
The judgment below
The judge summarised the relevant part of the appellants' case as follows:
"The corporate failures meant that the catastrophe of 15 January 1998 was an accident waiting to happen. These five claimants, in their various ways having responsibility for organising the raid, were so hampered in so doing by the corporate failings that it happened despite their best endeavours and that any individual failings that there might have been were minor compared with the flawed system within which they had to work. It was, it is said, foreseeable (a) that there would be an investigation into the catastrophe; (b) that they would be blamed both professionally and publicly beyond their true level of culpability; (c) that they would be charged and subject to the stresses of the criminal process; and (d) that they would be disciplined and subject to the stresses associated with that and therefore the psychiatric injuries from which each of them has suffered were foreseeably suffered in the course of these foreseeable developments."
Mr Glancy QC for the appellants confirmed that this was a fair summary of their case.
The judge held that the appellants' claims fell within the principles laid down by the House of Lords in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. Liability for negligently causing a catastrophe would extend to secondary victims who suffered psychiatric injury only if they did so as a consequence of witnessing the death or injury of loved ones. This principle applied even where the claimants were employed by the defendant. In the present case the appellants were not even secondary victims, so their claims were even more remote. It followed that they were unsustainable in law.
Insofar as the appellants sought to base their claim on being subjected to stress at work, they had to surmount the hurdle of showing that their employers were on notice that they were vulnerable to stress. This they were in no position to do – see Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613 as approved by the House of Lords in Barber v Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089.
Submissions made to us
Mr Glancy submitted that the judge had erred in holding that the appellants' claims were doomed to failure by virtue of the decisions in Frost and Hatton. The facts of the present case did not fall within either of the factual situations covered by those decisions. The novel basis of claim in this case should not be peremptorily dismissed without a full hearing on the facts. This was a developing area of the law. Mr Glancy cited the observation of Lord Slynn in Waters v Commissioner of Police of the Metropolis [2000] 1 WLR 1607 at p. 1613:
"It has been said many times that the law of negligence develops incrementally so that the fact that...
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