Suing Detectives
| Date | 01 March 2010 |
| DOI | 10.1350/pojo.2010.83.1.488 |
| Author | David Carson |
| Published date | 01 March 2010 |
| Subject Matter | Article |
DAVID CARSON
University of Portsmouth
SUING DETECTIVES
In Australia, New Zealand, the United States of America and
the United Kingdom you can sue a negligent doctor, but not a
negligent detective. You can sue both doctors and detectives in
Canada and South Africa. Why the difference? Would making
detectives liable for negligent police investigations improve
their decision making or, as many judges assert, increase risk
aversion and divert significant resources from tackling crime?
This article explains the civil law of negligence but criticises
its judicial application in cases of alleged negligent investiga-
tion. It argues that the current position is no longer sustainable.
As increasingly recognised by senior judges, legislative inter-
vention is inevitable and overdue. Police forces should not be
opposing change but preparing to manage the consequences by
seizing the opportunities available to ensure that a learning
paradigm is embedded within a new scheme which limits costs
and prevents many of the problems which the judges, albeit
exaggeratedly, predict.
Keywords: accountability; duty and standard of care;
negligent investigations; suing
Introduction: The Setting
Peter Sutcliffe, ‘the Yorkshire Ripper’, killed 13 women. A
subsequent review of the police investigation, which covered
three police force areas, identified a catalogue of errors (Byford,
1981). One victim’s family claimed that the police investigation
had been negligent, and they sought compensation in the civil
courts. The House of Lords (HoL), the highest appeal court in
the United Kingdom (UK) (until the introduction of the UK
Supreme Court in late 2009, by the Constitutional Reform Act
2005), rejected the claim. It decided that police investigators do
not owe a duty of care to potential victims of their incompetence
European Court of Human Rights (ECHR) accepted that decision
provided it did not involve a blanket ban on individuals arguing
that their case deserved to be treated differently (Osman vUnited
Kingdom, (2000) 29 EHRR 245). So, even if police investigators
do not have immunity, the HoL has decided that only truly
The Police Journal, Volume 83 (2010) 11
DOI: 10.1358/pojo.2010.83.1.488
exceptional cases of alleged investigatory negligence could pos-
sibly succeed (Brooks vCommissioner of Police for the Metrop-
olis, [2005] 2 All ER 489), and it has allowed none to do so. This
approach has, broadly, been adopted by courts in Australia
(Sullivan vMoody, [2002] CLR 251; Rush vCommissioner of
Police, [2006] FCA 12; see also, Shircore, 2006; Yule, 2008), in
the United States of America, although there are special constitu-
tional provisions there (e.g., Blum vYaretsky, (1982) 457 US
1004; Warren vDistrict of Columbia (DC App 1981) 444 A 2d
1), and in New Zealand (Gregory vGollan, [2006] NZHC
426).
In 2008, the HoL had a golden opportunity to reverse its
previous decisions and allow the victims of negligent police
investigations to sue for compensation. It knew that the Supreme
Court of Canada (Hill vHamilton-Wentworth Regional Police
Services Board, (2007) SCC 41) and the South African Constitu-
tional Court (Carmichele vThe Minister of Safety and Security,
[2001] ZACC 22) had done so. It must also have noticed that the
lower courts, in England, Wales and Northern Ireland, were
demonstrating disagreement by allowing people to initiate pro-
ceedings, contrary to its clear and consistent rulings. For
example, Mr Smith alleged he had told several police officers
that he had been threatened by, and was in fear of, his former
partner. He evidenced this with phone text messages. But the
officers did nothing and Mr Smith was subsequently seriously
injured by this former partner. The Court of Appeal gave Mr
Smith permission to bring a claim for negligent investigation
In a further three such cases: (1) Ms Reilly alleged she had
told Ilford police that she was being harassed by a named man,
but they did nothing and she subsequently suffered trauma. Mr
Justice MacDuff noted the HoL’s decisions but thought this
claim for negligence should proceed to trial (Commissioner of
Court of Appeal in Northern Ireland allowed a claim of negli-
gence against the Chief Constable of the then Royal Ulster
Constabulary to proceed. One of his constables, known to be
‘deranged’, shot people in a political centre (O’Dwyer vChief
Constable of the Royal Ulster Constabulary, [1997] NI 403).
(3) Mr Van Colle was murdered by a former employee before he
could give evidence against him. An internal police inquiry
acknowledged, in effect, that a detective had been negligent in
undertaking witness protection. However, rather than risk being
12 The Police Journal, Volume 83 (2010)
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