Operational risk, omissions and liability in policing
| Published date | 01 June 2019 |
| DOI | 10.1177/0032258X18777915 |
| Date | 01 June 2019 |
| Author | Robert Heaton,Stephen Tong,Robin Bryant |
| Subject Matter | Articles |
Article
Operational risk, omissions
and liability in policing
Robert Heaton , Robin Bryant and Stephen Tong
School of Law, Criminal Justice and Computing, Canterbury Christ
Church University, Canterbury, Kent, UK
Abstract
Recent decades have seen the sensitisation of UK society towards harm and policing
‘failures’ become increasingly significant. This paper is intended to stimulate thought and
debate by analysing some consequences of these developments. It reviews literature in
relation to risk-taking in UK operational policing, identifying increased criminal and
disciplinary liability, particularly in respect of alleged omissions. Hindsight is found to be a
potentially powerful influence. The article concludes that it is unlikely that public culture
will be changed readily. However, police and other bodies should be able to reach a
common approach towards operational risk, omissions and hindsight.
Keywords
Risk, omissions, liability, hindsight
Introduction
In 2014, Professor Jerome Hoffman and practising emergency physician Hemal Kan-
zaria revealed in the British Medical Journal that the US medical liability system was
estimated to cost 55.6 billion US dollars annually. An equally remarkable revelation was
that of this sum, only 18%comprised the direct costs of legal action and insurance. The
remaining 82%was accounted for by the costs of defensive medicine, in which low-
probability diagnostic tests were commissioned, together with excessive onward refer-
rals and prescriptions for drugs. These attempts to mitigate risk and avoid legal action
met with little success. The probability during a career of facing a lawsuit was estimated
at 99%in the highest risk, and 75%in the lowest risk specialities.
Corresponding author:
Robert Heaton, School of Law, Criminal Justice and Computing, Canterbury Christ Church University, North
Holmes Road, Canterbury, Kent CT1 1QU, UK.
Email: robert.heaton@talktalk.net
The Police Journal:
Theory, Practice and Principles
2019, Vol. 92(2) 150–166
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0032258X18777915
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Apparent sins of omission in the form of missed diagnoses were punished far more
frequently than any other type of error. Physicians were expected to take personal
responsibility for any ‘mistake’, which had been effectively redefined as ‘the outcome
was less than ideal’. This fed a ‘quixotic quest for certainty’ and the pretension that
medicine was based upon perfected science. The authors suggested that culture change
was required of the medical profession and of the public, including the establishment of
acceptable miss rates (Hoffman and Kanzaria, 2014).
This article contends that the UK police service is being drawn into a broadly similar
position, with minimal public or professional debate. It aims to foster such debate by
identifying an unplanned yet profound realignment of the policing mission, together with
some of the consequences which have become apparent. The suggestion is made that in
the last decade, there has been an important shift in policing priorities from crime-
fighting to public protection of ever-widening scope. Fuelled by legislation and public
intolerance, omissions to act in order to prevent harm have become more significant,
highlighted in the findings of a succession of critical public inquiry reports (e.g. Bichard,
2004; Home Office, 2003). Individual officers have seen a rise in the number of ‘neglect
of duty’ discipline cases brought against them (IPCC, 2005, 2016a). Moreover, the
common law offence of ‘misconduct in public office’, after lying dormant for 200 years,
has been ‘rediscovered’ and is being applied with increasing frequency.
In common with the US medical world, the police service in England and Wales deals
with large volumes of low-probability, high-impact risk on a daily basis (College of
Policing, 2015). The psychology of hindsight means that negative outcomes appear to be
far more foreseeable after an event than they were beforehand (Kahneman, 2012: 203–
204). In respect of perceived omissions, officers are increasingly liable to the threat of
‘catch-all’ sanctions (Law Commission, 2016: 5) and police forces to significant reputa-
tional damage. The potential consequences are increased risk aversion and opportunity
losses, as resources are diverted into unattainable attempts to eliminate the possibility of
high-profile ‘failures’ (Heaton, 2010).
After a discussion on risk and uncertainty in policing, this article considers a brief
case study of firearms licensing, to highlight a practical example of the inherent diffi-
culties when the police service attempts to manage risk. Next, the way in which risk is
viewed by the College of Policing, the Crown Prosecution Service (CPS), Her Majesty’s
Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) and the Indepen-
dent Police Complaints Commission (IPCC) is discussed. Policies are found to be
unhelpful to the making of consistent decisions and provide no guidance to mitigate the
effects of hindsight. A significant discrepancy is identified in the ways in which the
police and the CPS interpret the consequences and potential culpability of risk-based
decisions. The conclusion is drawn that although public expectations will remain
unchanged in the short term, it should be possible for police, policymakers and scrutiny
bodies to reach an informed consensual view of risk-based decisions in policing, and
how alleged omissions should be viewed.
Heaton et al. 151
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