Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886

Published date01 May 2014
Date01 May 2014
Strict Liability for Police Nonfeasance? The Kinghan
Jonathan Morgan*
The Riot (Damages) Act 1886 imposes a no-fault obligation on police forces to compensate
owners of property damaged in rioting. Following the riots across England in 2011 an independ-
ent Home Office review, the Kinghan Report, concluded that the fundamental principle of the
Act should be retained, while the machinery should be modernised. The Report conceives of the
Act as a useful, if highly unusual, compensation scheme that may ease socio-economic problems
in riot-prone areas. This article questions that position. Strict liability offers potential advantages
in contentious claims against public authorities, providing an incentive for the police to perform
their duty to keep the peace while averting the questioning of police decision-making that claims
in negligence would inevitably require. The best alternative to negligence liability might not be
‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as the
Law Commission proposed in 2008), but liability without fault.
The Riot (Damages) Act 1886 (the Act) obliges police authorities to compensate
those whose property is damaged by a ‘riotous or tumultuous assembly’ in their
area. There is no need to allege or prove fault. Such strict liability for public
authorities may or may not be ‘unique’,1but it is certainly unusual. With the
possible exception of provisions adopted at the height of terrorist attacks in
Northern Ireland, there is nothing like it in UK law – nor it seems internation-
ally.2The contrast between the Act and the absence of liability of the police at
common law is particularly striking. It has been consistently held, at the highest
level, that the police owe no duty of care to prevent crimes.3If the Act did not
exist, an action in negligence against the police for failing to control rioting
would (contrary to suggestions made in a Government paper) be a complete
non-starter, even if the police could be shown clearly at fault.4
The Act could fairly be described as obscure as well as exceptional. In a recent
case, a Lloyd’s insurance syndicate (having written a policy to indemnify a police
*Corpus Christi College, University of Cambridge.
1 Home Office, Independent Review of the Riot (Damages) Act 1886: Report of the Review (September
2013) (the Report, or the Kinghan Report) para 2.2.
2ibid para 2.5–2.9.
3egHill vChief Constable of West Yorkshire [1989] AC 53, Brooks vCommissioner of Police of the
Metropolis [2005] UKHL 24; [2005] 1 WLR 1495, Van Colle vChief Constable of Hertfordshire Police
4 cf Home Office, Riot (Damages) Act 1886: Consultation on options for review (July 2003) 23.
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(3) MLR 434–459
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
authority against its public liability in damages) felt able to argue – albeit
unavailingly – that a hypothetical commercial person construing the insurance
policy ‘could not reasonably be contemplated as having any more knowledge of
the 1886 Act than its existence’ (ie would know nothing of its juridical basis and
legal effect).5In fact, partly as a result of the litigation arising out of the underlying
incident in that case,6the Act has become much better known. Although nothing
came of an earlier consultation on its future,7the riots across England in 2011 (and
the claims under the Act that followed) brought renewed political scrutiny of its
operation. The Government commissioned former civil servant Neil Kinghan CB
to review the Act. His report was published in September 2013 (the Report).8
This article analyses that Report and its proposals for reforming the Riot
(Damages) Act 1886. But a substantial prologue on the theoretical foundations of
strict liability is a necessary preliminary. First, to determine the basis of the Act.
Is its primary rationale to hold the police financially accountable for signally
failing to preserve public order on the outbreak of rioting? Or is the Act simply
concerned to ensure compensation for the victims of riots? These questions
have been considered in two recent cases. The courts have, after considering its
history, interpreted the Act as making the police responsible for failing to quell
riots. To explore this justification further, arguments in favour of strict liability
from the economic analysis of law are considered. In particular, it is argued that
strict liability may have a valuable deterrent effect, inducing optimal levels of
precautions against the harm in question (here, riot damage). While this eco-
nomic analysis is not in itself particularly novel,9it has not received much
consideration in recent debates on the scope of tort law in England – especially
not those concerning public authority liability. In its lengthy although ultimately
fruitless inquiry into that subject, the Law Commission failed to consider the
merits of strict liability at all (apart from a brief section in the first of its four
papers).10 The Law Commission also decided that economic analysis was not an
appropriate theoretical basis for public authority liability,11 apparently on the
basis of a single article that the Commission elsewhere accepted to be ‘forcefully
contested’.12 So if the economic arguments reviewed here are not absolutely
novel, they are unfamiliar enough to warrant examination.
5Bedfordshire Police Authority vConstable [2009] EWCA Civ 64; [2009] 2 All ER (Comm) 200 at
6 See further Yarl’s Wood Immigration Ltd vBedfordshire Police Authority [2009] EWCA Civ 1110;
7 n 4 above.
8 n 1 above.
9 eg G. Calabresi, The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University
Press, 1970).
10 Law Commission, Monetary Remedies in Public Law: A Discussion Paper (London: Law Commission,
2004) at 5.56–5.59. cf Law Commission, Remedies Against Public Bodies: A Scoping Report (London:
Law Commission, 2006); Law Commission, Consultation Paper No 187, Administrative Redress:
Public Bodies and the Citizen (London: Law Commission, 2008); Law Commission, Report No 322,
Administrative Redress: Public Bodies and the Citizen (London: The Stationery Office, 2010).
11 Law Commission, Consultation Paper No 187, Administrative Redress: Public Bodies and the Citizen
ibid, Appendix A.
12 ibid at B.31. cf D. Levinson, ‘Making Government Pay: Markets, Politics and the Allocation of
Constitutional Costs’ (2000) 67 University of Chicago Law Review 345.
Jonathan Morgan
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 435(2014) 77(3) MLR 434–459

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