Policing Flawed Police Investigations: Unravelling the Blanket

Publication Date01 November 1999
AuthorLaura H. C. Hoyano
Policing Flawed Police Investigations: Unravelling the
Laura C.H. Hoyano*
In 1988, the House of Lords in Hill vChief Constable of West Yorkshire1struck out
a claim by the mother of the twenty-first victim of the ‘Yorkshire Ripper’, alleging
that the West Yorkshire police had negligently failed to collate information they
possessed pointing to Peter Sutcliffe as a likely suspect, and so did not arrest him
before he could strike again. The plaintiff failed to clear the ‘proximity’ hurdle to
establishing a duty of care on the basis that Ms Hill was ‘one of a vast number of
the female general public’ at risk from Sutcliffe, but ‘at no special distinctive
risk’.2Lord Keith however wished to block the way of future plaintiffs and so
enumerated the public policy grounds against the existence of potential liability in
principle. While acknowledging the salutary effect of potential tort liability on the
standards with which many activities are conducted, this could not be said of police
The general sense of public duty which motivates police forces is unlikely to be appreciably
reinforced by the imposition of such liability so far as concerns their function in the
investigation and suppression of crime. From time to time they make mistakes in the
exercise of that function, but it is not to be doubted that they apply their best endeavours to
the performance of it.3
The imposition of liability could lead to the investigative operations of the police
being carried out in a ‘detrimentally defensive frame of mind’. The floodgates
spectre was raised, as well as the harmful diversion of police resources from
suppressing crime to defending policy and discretionary decisions in the elaborate
post-mortems of closed investigations which litigation would entail.4Hill thus
recast tort law as the enemy, not the instrument, of public policy.
This trenchant list of policy grounds militating against any role for negligence
law in the sphere of criminal justice has prompted the lower English courts to
refuse even to countenance the possibility of an actionable duty of care arising
from the conduct of a police investigation.5The only exception thus far has been
ßThe Modern Law Review Limited 1999 (MLR 62:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Wadham College, Oxford. I am indebted to Alison Young (Balliol College, Oxford), Roger Brownsword
(Sheffield University) and to Allan Hoyano for their comments on previous drafts.
1 [1989] 1 AC 53, [1988] 2 All ER 238 (all citations hereafter to All ER).
2ibid 243.
4ibid 243–244.
5Alexandrou vOxford [1993] 4 All ER 382 (CA); Osman vFerguson [1993] 4 All ER 344 (CA);
Ancell vMcDermott [1993] 4 All ER 355 (CA). See also Calveley vChief Constable of Merseyside
[1989] 1 AC 1228 (HL) (no duty of care owed by investigators to police officers suspected of
disciplinary offences to conduct the investigation expeditiously) and Hughes vNational Union of
Mineworkers et al [1991] 4 All ER 278 (QB) (no duty of care owed by senior police officers to
subordinates respecting the deployment of police forces to control serious public disorder).
Swinney vChief Constable of the Northumbria Police,6where a police officer gave
an express undertaking to an informer to keep her involvement in a murder
investigation confidential, which the Court of Appeal viewed as arguably giving
rise to a special relationship to take reasonable care to honour the undertaking.
On a wider front, Hill signalled a return to the ‘category’ approach to duty of
care eschewed by Lord Atkin in Donoghue vStevenson,7whereby negligence law
once again resembles a patchwork quilt, with certain classes of decision-makers
enjoying immunity, usually on policy grounds.8Thus the English species of
incrementalism has embraced certainty at the expense, some would say, of both
flexibility and over-arching coherence.9
Two recent decisions from the European Court of Human Rights and from
Canada concerning flawed police investigations have uncovered constitutional
facets to negligence principles. While these Courts take somewhat different
approaches to the human rights arguments, their willingness to pierce the rhetoric
of the implications of judicial scrutiny of police investigations suggests that the
current English approach is misconceived.
Osman vThe United Kingdom
The evidence before the European Court of Human Rights
Osman10 is a tragic tale of obsession. Several crucial aspects of the events leading
up to that tragedy remain in dispute between the parties because the evidence was
never presented to a trier of fact, as is typical of the landmark cases on duty of care.
To place the reasoning of the European Court of Human Rights in its proper
context it is necessary to review in some detail the evidence considered by that
Court which would have been tendered at trial had the plaintiffs been permitted to
proceed with their action.
The undisputed evidence told the following story. A schoolteacher, Paul Paget-
Lewis, developed a fixation with his 14 year-old pupil, Ahmet Osman. This came
to the attention of the headmaster, John Prince, in 1986; Paget-Lewis offered to
resign but was dissuaded from doing so by a deputy head teacher, Kenneth Perkins.
In January 1987 Mrs Green, the mother of Leslie Green, another pupil at the school
and the Osmans’ neighbour, complained to the school that Paget-Lewis had been
following her son home after school and harassing him. She alleged that Paget-
Lewis had been spreading rumours that her son had engaged in deviant sexual
practices and that he objected to her son’s friendship with Ahmet. It was not until
early March, after Mrs Green made a formal complaint, that the school further
6 [1996] 3 All ER 449 (CA). For the latest permutation of the ‘assumption of responsibility’ doctrine,
see Costello vChief Constable of the Northumbria Police [1999] 1 All ER 550 (CA) (police inspector
assumed a duty of care in operational circumstances to a junior officer when he failed to intervene
when she was assaulted by a prisoner).
8 eg builders to subsequent purchasers for dangerous defects: Murphy vBrentwood LBC [1991] 1 AC
398 (HL); ship surveyors to cargo owners: Marc Rich & Co vBishop Rock Marine Co Ltd [1996] AC
211, [1995] 3 All ER 307 (HL) (all citations hereafter to All ER); social workers to children at risk: X
(Minors) vBedfordshire County Council [1995] 2 AC 633, [1995] 3 All ER 353 (HL) (all citations
hereafter to All ER); educational psychologists employed by local education authorities to pupils:
Phelps vHillingdon London Borough Council [1999] 1 All ER 421 (CA).
9 See the sharp criticism by Lord Lloyd in dissent in Marc Rich vBishop Rock Marine , n 8 above, 322.
10 Case 87/1997/871/1083; available at (all
citations hereafter refer to paragraph numbers of the judgment).
November 1999] Osman and Jane Doe
ßThe Modern Law Review Limited 1999 913

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