Joanne Conaghan, Head of School: Inaugural Lecture – University of Bristol Law School

this is Johanna Michael Johanna lived in Cardiff a mum to two young children aged seven and ten months in August 2009 she was murdered stabbed multiple times by her ex-boyfriend on that terrible night Joanna dialed 999 twice to call for police assistance but for a number of reasons which the Independent Police Complaints Commission described as serious individual and organizational failures help arrived too late in her last 999 call she is heard to scream just as the line goes dead the nearest police station was only a few minutes away this is a London black cab not any black cab but the cab used by John war boys to sexually assault an unknown number of women during the first decade of this century remarkably although well over 100 women filed police reports claiming to being drugged and sexually abused by a London cabbie their allegations were generally met with complacency disbelief and a good deal of sheer incompetence that multiple allegations were producing a strong pattern of offence and prefer a Fender profile did not even register on the police radar until it was picked up by around the computer check according to justice green giving judgment in the High Court last year the police handling of the case was marred by a series of systemic feelings which went to the heart of the failure of the police to apprehend war boys and cut short is five to six years spree of violent attacks in other words had the police acted more effectively war boys one-man campaign of terror against women might have ended much earlier this is a claw hammer this is what Gareth Jeffery used to batter his ex-partner Stephen Smith leaving him with three skull fractures brain damage and ongoing physical and psychological harm in the weeks leading up to that horrific assault Stephen had been besieged by Jeffery with telephones calls texts and Internet messages containing frighteningly explicit threats such as you are dead look out for yourself psycho is coming I am looking to kill you and no compromises Stephens efforts to get the police to take seriously his concerns that his life was in danger fell on deaf ears they wouldn’t even read the texts notwithstanding a previous history of domestic abuse the facts again reveal a police stance of procrastination and complacency they simply did not consider the matter a priority and took virtually no steps to ensure Stephen safety I could list innumerable instances such as these in which the police handling of rape and domestic violence cases has been marred by incomprehensible inexcusable failures similar problems also feature in cases of organized sexual grooming of young girls the Oxford case is a particularly egregious example of police failure here while media reports of ongoing investigation into historic cases of child sexual abuse Westminster Rotherham again highlight serious and repeated police failings in most but not all of these cases as Steven Smith’s example shows the victims are women and children this is because as the statistics clearly and consistently indicate women and children are disproportionately likely to be victims of crimes sexual abuse and domestic violence why do the police appear to Fairley’s victims systematically and repeatedly what can be done about it are the police themselves doing enough

and if not how might they be persuaded compelled empowered to act the issue I want to consider tonight is whither and in what circumstances the victims of serious crimes of violence should be able to sue the police for failing to protect them or to investigate their claims properly I want to look at this general question of civil liability through the specific lens of domestic violence and sexual abuse as pressing urgent social problems a particular question which drives my inquiry is whether we can use civil liability the ability to sue the police for investigative failures in the context of rape and domestic abuse to change institutional behavior around the policing of gender-based violence effectively to compel the police to truly bird the various policies and recommendations which a stream of damning reports into these matters has produced in addition to this question of effectiveness is one of accountability how do we ensure that public bodies such as the police are held to some account the police after all are vested with enormous power the power of state force however important their role is and of course it is hugely important to us all that our police force operate effectively and well the performance of that role must come with accountability in our society the central check upon state power the core underpinning of public accountability is the rule of law it’s fashionable in some circumstances to dismiss the rule of law as at best and aspirational myth with no real substance or foundation and at worst an ideological tool which facilitates rather than thwarts state oppression depending on the circumstances I have no doubt it can be any or both of these things but I have a sense that we are more than usually in need of the rule of law right now the late Lord Bingham among others was a great expander of the virtues of the rule of law he argued that the core of the existing principle is that all persons of authorities within the state whether public or private should be bound by and entitled to the benefit of laws publicly made taking effect and publicly administered in the courts implicit in this mandate is the principle of legal equality the principle that the laws of the land should apply equally to all saved the extent that objective differences justify differentiation in this regard I would pose the following question if the police systematically fail effectively to effectively enforce certain laws enacted for the protection of all and if the consequences of this failure are borne disproportionately by women and children can it truly be said that the laws of the land are applying equally to all or that all persons within the state are entitled to the benefit of laws or that the laws against domestic violence and sexual assault are taking effect can we be confident in other words that the rule of law is being upheld we all know that rape is a serious reprehensible crime but are we fully aware of just how prevalent it is in our society take a look at these most recent figures in the 12 months preceding September 2014 over 24,000 rapes and almost 50,000 other sexual offences were recorded by the police this is the highest number reported since 2002 three part of the reason for this rise is thought to be agreed or willing on the part of victims to report their assault in one sense then these figures are a measure of success that victims do feel more confident about reporting their salt to the police and that the police are properly recording such assaults and less inclined to inappropriately designate them as no crimes they are nevertheless quite shocking figures that

is a lot of assaults bear in mind too that an unknown but statistically significant number of victims do not report assaults to the police it’s difficult to put an accurate number on how many that might be a government study in 2013 drawing together all the available evidence estimated that on average around 473 thousand adults each year were victims sexual offences the same study confirmed that women were far more likely to be victims of sexual assault than men and of course the vast majority of perpetrators of sexual offences around 99 percent are men it’s worth pausing just for a minute on these last two sets of figures namely that women make up 85% of those who claim to be the victims of sexual offenses and men make up 99% of those currently in prison for sexual offences this shows that the figures relating to sexual offenses are patterned along gender lines it shows that men are overwhelming disproportionately likely to commit sexual offences and that women are overwhelmingly disproportionately likely to be victims of sexual offenses let’s look now at the relevant data relating to domestic violence and abuse ahead GMIC report published in 2014 entitled everyone’s business improving the police response to domestic abuse begins with the following stark assertion the extent and nature of domestic abuse remains shocking the statistics more than support this alarming pronouncement in 2013 14 1.4 million women and 700,000 men reported experiencing domestic abuse of these 1.1 million women and 500,000 men experienced partner or ex-partner abuse while both men and women can be victims of domestic abuse women as the figures show are more likely to be victims than men moreover women are much more likely to be high risk victims 96 percent of referrals to maroc that is the multi-agency risk assessment conference which is an initiative introduced to coordinate agency responses to domestic violence locally 96 % of those referrals relate to women 183 female homicides in 2013-14 46 percent were killed by their partners or ex partners by contrast 7 percent of male homicide victims died at their partners or ex-partners Hounds men of course are far more likely to be victims of homicide 343 men died of homicide in 2013-14 but the patterns of risk between men and women are very different men are far more at risk of harm from their friends and acquaintances about 40 percent male homicides in 1314 were committed by friends and acquaintances and therefore less at risk of homicide from their partners or ex partners yet again what we see is that domestic abuse and particularly part partner abuse is an extremely gendered phenomenon in which both men and women are at risk but the extent and level of risk to women is far greater ever since the police aired a fly-on-the-wall documentary in 1983 showing thames valley police officers conducting an intimidating interview of a rape victim the question of police attitudes and conduct to place to rape complaints has been in the British public eye likewise the way the police deal with domestic violence has been the focus of public scrutiny at least since the emergence of the refugee movement in the 1970s but to what extent are the problems than problems now let’s take a look in everybody’s business the headline conclusions and I quote directly or as follows the overall police response to domestic abuse is not good enough in too many forces there are weaknesses in the services provided to victims some of these are serious and mean that victims are put at unnecessary

risk many forces need to take action no domestic abuse is a priority on paper but not in practice the stated intent is not translated into operational reality that’s a 2014 report the report went on to identify key factors factors contributing to this general failure they were a lack of visible leadership and clear direction by senior police officers alarming and unacceptable weaknesses in some core policing activities in particular the collection of evidence poor management and supervision failing to reinforce the right behaviors attitudes and actions of officers and a failure to prioritize action to tackle sec domestic abuse when setting the priorities for day-to-day activities so that’s the record current position of the police handling of domestic abuse let’s move on to rape now and sexual assault the criminal justice approach to sexual assault has been a subject of a damning studies over the last 30 years these studies both academic and state initiated have generated a mountain of data about the handling of such claims within the criminal justice system from initial reporting through to the final disposition of a case together they evidence deep structural institutional and cultural problems that go to the heart of the effectiveness of the criminal justice system within this extensive literature the role of the police features prominently particularly to explain the high rate of attrition in rape cases that is the rate at which complaints drop out of the system of various stages after reporting this concern is sometimes framed particularly in the media in terms of the conviction rate the conviction rate for rape it is often alleged is worryingly loads it is true that as the number of rapes being reported has rapidly risen the number of convictions has remained relatively stable some people conjecture that that’s not a particular problem that only rare rapes are making it through the system the implication is that the vast majority of rape allegations are fabricated or at the very least they’re a result of sexual miscommunications theoretically this might be the case although it is difficult to get one’s head around the idea that 19 out of 20 women who report rape are either lying or confused the real point here is this clear and consistent evidence shows that the reason why rape allegations fall away in such great numbers after initial reporting is in significant part to do with failings in the way these kinds of claims are handled by the criminal justice system including but not limited to the police the same body of evidence also shows that police practices in relation to rape claims too often fall far short of their own standard some guidelines prominent concerns include a sustained culture of suspicion directed at rape complainants poor record-keeping by police officers the widespread misuse of no crimen sloppy witness follow-up an evidence gathering and lack of adequate senior officer supervision all of these were highlighted highlighted as significant problems in the war boys investigation at the same time it would be wrong to suggest that no progress whatsoever has been made in how the police handle rape investigations a joint report carried out in 2012 acknowledged signs of improvement particularly in how rape complainants are initially being treated by the place the report nevertheless concluded there was no room for complacency and went on to highlight a number of ongoing problems including wide variations of practice across forces and inadequacy of police intelligence gathering the same report also also emphasized that police performance targets clear up rates and so forth were shaping police priorities in ways which were detrimental to the development of a better strategic response to rape offending now I know one could deny that rape and sexual assault presents a highly complex placing problem it requiring requires considerable sophistication in terms of

strategic response this strategic emphasis is very much the focus of the HMS eye report in 2012 the difficulty is that high-level strategy is not translating into operational changes on the ground as the stern review in 2010 concluded the policies are right but the implementation is patchy I don’t entirely agree with this conclusion I think there’s still a lot of hard thinking to be done about policies indeed one of the things we have to think hardest about is why if the police know what to do they don’t nevertheless seem to be doing it why is embedding change so hard why is the grip of the institutional culture so hard to dislodge this is where several suits against the police could I would argue play a positive role change must come from within the police its peace force itself the question is can civil suits promote this process of internal transformation let’s return again to the three stories with which we started all of which have been the subject of litigation how well have the litigants fared in Michael to legal arguments were advanced one based on negligence the other on human rights the Supreme Court allied the striking out of the negligence claim that is they decided that Joanne and Michael’s family could not sue the police in negligence even if the police had in fact been negligent on the other hand they left the human rights claim proceed it doesn’t mean the Michael’s family has won or that their claim has been upheld only that they can now go to court and argue it for the Michael’s family then the legal battle is far from over indees d NB v to victims of the black cab rapist sued the police relying on the Human Rights Act they did not make a negligence claim at all which in the light of Michaels was probably just as well the High Court upheld their claims and ordered the Metropolitan place to pay the victim’s compensation totaling around 41 thousand Pines DSD is the fast decision of its kind here in the UK and incidentally people might be interested to know that the barrister representing the two claimants was an alumna of the University of Bristol Law School Philippa Kaufmann however BSD is only a high court decision and therefore vulnerable to appeal in fact it’s due to go before the Court of Appeal in May while the judgment itself is a legal tour de force the sheer novelty of the claim and lack of established legal pedigree means that it is yet to find its legs in English law the claim in Smith versus Chief Constable of Sussex place was based in negligence in some ways the police treatment of Stephen Smith is the most shocking dereliction of duty in the face of unambiguous evidence of a serious threat to life that we have yet encountered and yet the majority of the House of Lords firmly closed the door on negligence recovery denying the police owed any duty of care to Stephen from these three cases we can see that there is currently slim prospect of a successful suit against the police by victims of rape under domestic violence that I’m afraid is the harsh reality so how did this state of affairs come about why is it so difficult to pursue these claims let’s take a closer look at how the legal framework has evolved focusing first on the tort of negligence so what is negligence essentially it is the legal duty to take reasonable care not to injure other people if we breach that Duty we are liable to pay the injured party compensation the police can be sued and negligence in some kinds of situation for example if a police officer drives carelessly and run someone over in the course of their duties the traffic victim will be able to sue just as they would any other driver since similarly if the police damage your property negligently a claim

for compensation may arise the courts have no problem in these kinds of claims then holding the police to the same standard of care as everyone else the difficulty arises when the alleged negligence relates to how the police deliver their core functions not how they drive or how they treat your property but the care that they take or that they don’t take when they go about the business of investigating and suppressing crime this issue faster illegal attention in the late 1980s Heller versus Chief Constable of West Yorkshire was a suit brought against the police by the family of the last victim of the Yorkshire Ripper Peter Sutcliffe Sutcliffe as some of you will remember was a notorious serial killer convicted of murdering 13 women and attempting to murder seven others Jacqueline Hill’s family sued the police arguing that had the piece not be negligent in the conduct of their investigations Sutcliffe would have been caught a lot sooner and their daughter would not have died the police were widely criticized for their handling of the Ripper investigation at the time and stops that when the information appears to support this view that this was a very poorly executed investigation nevertheless the House of Lords rejected the hills claim holding the police old jackeline no duty of care Lord Keith who delivered the main judgment placed particular emphasis on the fact that the police could have no way of knowing that Jacqueline was a particular risk she was no morte risk than any other woman in West Yorkshire and the police could not or duty of care to them all in legal terms the police could not Oh a general duty appear to unidentified members of the public to apprehend unknown criminals who posed a receivable risk of harm this left open the question of whether the police could owe a duty to a member of the public at particular risk of which the police were aware for example if the police knew a specific individual was at serious risk of harm from another specific individual as is often the case in the context of domestic abuse and if the police failed to act carelessly I failed to act or acted carelessly could the injured person sue then the logic of the reasoning and Hill might suggest yes history in the form of Smith and Michaels proves otherwise we’ll come back to this point lord Keith made another kind of argument against liability what we call in law a policy argument an argument that it is against public policy wherever that means to allow a particular type of claim to succeed according to Lord Keith we should not impose liability on the police because it might lead them to exercise their functions in a detrimental a defensive frame of mind it might draw the court into questioning issues it was not appropriate for them to question for example how the police use the resources how they exercise the discretion how they formulate policy and so on a great deal of peacetime trouble and expense might be expected to have to be put into the preparation of the defense Lord Keith worried this would result in a significant diversion of police manpower and attention from their most important function the suppression of crime for these reasons Lord Keith concluded the police should be immune from liability so far as concerns their function in the investigation and suppression of crime after Hill a number of cases tried to test the extent to which the judgment still left room for a claim where a close relationship could be established between the police and the claimant in Osmond versus Ferguson a family was subject to prolonged campaign of harassment by a school teacher whose behavior became increasingly violent and threatening eventually he attacked the father he attacked and killed the father and seriously injured the son in the family the police were well aware of the threats and they had actually interviewed the school teacher prior to the attack the family argued the police had not done enough to protect them that they had in fact been negligent despite

a much closer relationship between the police and the victim who were clearly identified as at-risk and despite the fact that the perpetrator too was known to the police as a specific risk to this family the claim was rejected the court relying predominantly upon the policy reasons articulated by Lord Keith inhale to deny liability a similar kind of reasoning was used in Brooks versus Commission of the police for the metropolis in 2005 Dewayne Brooks was with Stephen Lawrence the young black teenager from Lewisham who was murdered by a gang of racist youths in 1993 the claimant Brooks is slightly different from hell and from Osman Dewayne didn’t argue that the policed had failed to protect him from a racist attack what he claimed was that the way the police treated him after the attack amounted among other things to negligent conduct specifically the way it maintains that the police had not taken reasonable steps to assess whether he was a victim of a crime or to offer him appropriate protection support and assistance the police had not treated Dewayne in the way that they usually treated an i key eyewitness to a serious crime of violence and they had not afforded reasonable wait to his the kind of events or acted upon it accordingly the racist treatment to which Dewayne Brooks was subjected in the course of what the House of Lords acknowledged was quote a badly conducted investigation that’s to put it mildly is not unlike the kind of sexist treatment the police have to often meted out to victims of rape and domestic abuse could this kind of discriminatory treatment be sufficient to find an action in negligence their Lordships in Brooks held not and the main reason again was public policy as a matter of public policy the police generally own OGT of two victims or witnesses witnesses in respect of their activities when investigating suspected crime interestingly their Lordships recognized in Brooks that the reasoning behind the wide berth conferred on the police in Hill could not no holy be defended in Hill Lord Keith had confidently stated from time to time the peace make mistakes in the exercise of their function but it’s not to be indicted that they apply their best endeavors to the performance of it after the Stephen Lawrence investigation such unabashed confidence in the police looked horribly misplaced as Lord Steyne and Brooks acknowledged observing nowadays a more skeptical approach to the carrying out of all public functions is necessary nevertheless Lord Steyn went on to deny dewayne’s clean this is what he said a retreat from the principal in Hills case would have detrimental effects for law enforcement whilst focusing on investigating crimes and the rest of suspects police officers wouldn’t practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid causing the risk of harm or offence such legal duties would inhibit a robust approach in assessing a person as a proper suspect witness or victim by placing general duties of care on the police in relation to victims and witnesses the police’s ability to perform their public functions in the interest of the community fearlessly and with dispatch would be impeded it would as was recognized in his case be bound to lead to an unduly defensive approach in combating crime at this point we come to the case of Steven Smith which also went to the House of Lords is quite remarkable how many of these cases ended up the highest court of land telling me something about the fact that there is significant disagreement about how they should be resolved as we know Stevens claims failed the majority of the heights relying on the core principle of public policy and he’ll as reinterpreted by Lord Steyne and Brooks to support the denial of a general duty of care in the police in relation to their function in the investigation and suppression of crime it’s interesting to reflect on what began almost as a judicial

afterthought in Hell has since become interpreted as its core principle recall that in Hell itself recovery was primarily denied because Jacqueline Hill was an unidentified member of a large class of people at potential risk in legal terms the relationship between Jacqueline and the police was held to be in sufficiently close or proximate to generate a duty of care a lawyer could argue with some conviction that Lord Keith’s comments on public policy and health were obiter dicta effectively they were made in passing and were not part of the ratio decidendi that if you like the binding reason given for deciding the case in jurisdictions outside the UK this League of subtlety has been given greater account in Jane Doe vs. metropolitan Toronto commissioners of police in 1990 a rape victim the fourth victim of a serial rapist in Toronto sued the police alleging that their failure to warn women living in the particular vicinity in which the rapist was offering operating was a breach of their duty of care towards her the Toronto Police applied for the claim to be struck out on the grounds that it disclosed no recognisable cause of action simply put there was no legal basis for ms-dos claim the court however disagreed and elided to proceed they held that unlike Hill misto fell within a class identifiable victims they are identifiable by the particular location they lived in but also by the rapists modus operandi he basically targeted young white women living alone in second and third floor apartments with balconies to whom the police older duty of care none of these are potential targets had any idea that a serial rapist was operating in the neighborhood as a judge said the harm was foreseeable and a special relationship of proximity existed miss doe went on to secure substantial damages from the Toronto Police in a full hearing of her claim in which the court held that the police decision not to warn women based on assumption that women would become hysterical if they knew a serial rapist was operating in their neighborhood that this decision not to warn women was a breach of the duty of care and therefore negligent the same court also held that missed those rights under the Canadian Charter of Rights specifically her right to security of person and her right to equal protection an equal benefit of the law had been violated in South Africa – the law has been developed in ways which give greater which the importance of ensuring the police respond effectively to gender-based violence in car Michelle vs. the ministers of safety security justice and constitutional development a woman brought a claim against the police and prosecutor prosecutorial authorities after she was brutally attacked by a man already on bail for a serious sexual assault the South African Constitutional Court allied the claim to proceed and they were critical of what they called the immunity approach of the English courts expressing skepticism about the way in which public policy arguments were being used to cut off virtually all avenues of redress they observed fears expressed about the chilling effect negligence liability might have on the proper exercise of duties by public servants can be sufficiently met by a proportionality exercise which must be carried out and also by the requirements of foreseeability and of proximity in other words general concerns about imposing too heavy a burden of liability upon the police could be addressed by confining the duty of care to carefully circumscribed situations certain additional features of the car Michell decision bear further mention of particular significance is the constitutional court emphasis on the obligation of the courts to develop the common law in ways which reflect the spirit purport and objects of the South African Bill of Rights in post-apartheid South African law human rights and common law development are expected to go hand-in-hand to develop harmoniously and in ways which are mutually reinforcing

by contrast the English judiciary take a rather different approach if we return for a moment to the case of Stephen Smith one of the most striking aspects of that case is the judicial discussion of the relationship between negligence in the wrong hand and human rights claims on the other while Lord Bingham who incidentally dissented from the majority decision to deny Stephen Smith a remedy while Lord Bingham took the view that the common law of negligence should be evolved to take a kind of human rights obligations that they should develop in harmony Lord hope speaking for the majority was adamant that the human rights and the common law should remain quite distinct in my opinion he observed the common law should be allowed to stand on its own two feet side by side with the alternative human rights remedy this judicial institutionalization of a Leigha divide between human rights claims on the one hand and negligence claims and the other can produce invidious results for treatments for example if Stephen stood Smith’s claim if Stephen Smith had been able to bring a claim under the Human Rights Act on the facts he might well have succeeded that he could not as a result of the technical application of limitation periods while for negligence the claimant has three years generally to bring a claim under the Human Rights Act the claim expires after one year just as for Stephen then turned on the technicalities associated with bringing the right claim at the right time at this point we confront directly the issue of whether and how human rights can help claimants here when Stephen lodged his claim in the early 2000s very little was yet known about the potential impact of the Human Rights Act on English law the act after all had been enforced for only a short amount of time by the time DSD and NB v went to law of few years later the legal landscape in which they fought their claim had been significantly transformed no doubt in part as a result of the failed claims negligence in the past DST an MB V avoided this route and based their claims solely on human rights law specifically they argued that by failing to conduct an effective investigation into the activities of the black cab rapist the police had violated an on an obligation under the Human Rights Act not to act in ways which are incompatible with the European Convention of Human Rights basically it comes down to this we are all entitled to the benefit of Rights under the European Convention including the right not to be subject to torture or inhuman or degrading treatment that’s article 3 in the length least cases the European Court of Human Rights has held that article 3 imposes a positive obligation on States to take steps to ensure that people’s rights under article 3 and indeed under article 2 the right to life are protected by a signed and effective system of law on law enforcement this has been held to include in certain carefully prescribed circumstances a duty upon the police to take preventive operational measures protect individuals a particular risk the prescribed circumstances are as follows it must be established that the authorities knew or ought if known of the existence of a real and immediate risks the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their cars which judged reasonably might have been expected to avoid that risk within the context of this carefully prescribed duty articulated in Othman the European Court of Human Rights has held that the Duty encompasses some minimum requirement of effective investigation it is this procedural obligation to effectively investigate which formed the basis of the claim DSD and nbv made against the police as we know justice green upheld the claim after engaging in a careful synthesis of the relevant Strasbourg case law in finding that a duty under human rights arose and had been breached

justice Green was Julie attentive to the kind of policy considerations that it also featured in the negligence cases the law he said must not impose an excessive burden on the police however he went on to argue that the test proposed which is basically expressed in the Osman test does not open a Pandora’s box of liability from the police and when applied rigorously by the domestic courts should not be such asked to create a disproportionate burden in other words this is no liability free-for-all it creates a limited right to sue and carefully prescribed circumstances it recognizes the need to balance concerns about placing with the respect for human rights and it is firmly grounded in a lengthy pedigree of judgments in which these issues have been thoroughly thrashed out well DSD survived appeal in May I think so because the legal basis is very strong however I can’t be wholly confident particularly given the generally protective stamps there pellit courts have taken in relation to actions against the police in the past the authority of DSD will be further undermined if indeed conservative proposals to repeal the Human Rights Act and redefine our relationship between Strasbourg jurisprudence and English law go ahead after the next election DSD is unashamedly a Strasbourg product that is why it has managed to [ __ ] the armor the English courts have placed around at the police we finally arrive at the case of Johanna Michels the young Cardiff mum this calls to the police were not answered in time with fatal tragic results two weeks ago the Supreme Court denied her family had a right to sue in negligence upholding the legal position as it had developed from Hill through to Smith we need to be clear exactly what that means it means that the police oh no duty to Joanna or her family not to be negligent the family cannot call the police to account if negligence is established nor could Steven Smith nor could Dwayne Brooks nor could the hill or the Osmond family the leading judgment in Michaels is given by Lord Tilton with whom four other judges agree to judges however lady Hale our esteemed Chancellor and Lord Kerr disagree with the majority judgment interestingly the very fact that there were seven judges on the panel rather than five is itself an indication of just how important the court considered this decision to be in a sense it is unfortunate at least for those who wish to see this matter settled that the decision was not unanimous that two leading judges continue to advocate recognition of a duty in some circumstances if you add to that the dissenting judge of the late Lord the dissenting judgment of the late Lord Bingham in Smith you have three leading judges who are deeply uncomfortable with the notion that the police are for all practical purposes immune from liability for negligence in the exercise of their four-course functions perusing the judgments and Michael’s I have to say I am particularly enthused by Lord cares carefully constructed argument in favor of imposing liability and that’s not just because he’s a fellow countryman he argues for imposing liability where a proximate relationship between the police and the claimant can be established a position with which lady Hale concurs and which also fits very well with some of the overseas decisions on the other hand I am NOT hugely swayed by the judgment of majority indeed I would go so far as to say that in legal terms this is not Lord Tulsans finest hour the judgment itself is long it strives to cover a wide range of converging legal authorities Lord Tolson does try to take some account of context of the prevalence and seriousness of plastic violence and of our multiple international obligations to address gender-based violence however none of

this makes the slightest dent in his core argument which runs something along the following lines English law does not generally impose liability on a defendant for injury to a person or property of a collect claimant which is actually caused by another party a third party the reason for this Lord Tolson says rests on the long-established but but I have to say in my view incoherent distinction between acts and admissions we are liable and negligence for acts but not generally for emissions applying this this situation Michaels the police failure to come to Joanna’s rescue was an omission not an act therefore the default presumption is no liability let’s leave to one side for just a moment that unlike the world at large it’s actually the job of the police to come to the rescue of people like Joanna just as it is the job of doctors to come to the rescue the sick and help them if they can do so leave that to one side Laura Tolson goes on to acknowledge two established exceptions to the roote rule the first is where the defendant is some control of a third party committing the criminal act and the second is were the defendant assumes responsibility towards claimant one could argue that additional exceptions exist in compassing situations were the status of the defendant creates a duty to act for example the police or were a close relationship of proximity exists between the defendant and the claimant however Lord Tolson appears to collapse these additional exceptions into the narrow question of whether an assumption of responsibility can be established he concludes that Joanna Michaels claim does not fit into any of the established exceptions and therefore must fail note that he argues the case primarily on legal principle avoiding too much reliance on the public policy arguments of the past this is a wise move given that the public policy arguments are rightly out coming under increasing critical scrutiny Lord care for example contends that general assertions about the likely impact of imposing liability on the police should be better supported based on tangible grounds rather than mere generalities Lord care also argues that the burden of producing evidence to support such arguments should lie with those who seek to benefit from them in other words if the police are concerned that liability will impact detriment Leon their operations they should substantiate that claim with hard evidence one of the major difficulties I have with Lord tolson’s judgment is that he blends a broad question of whether and what circumstances the police there were duty of care in relation to the carrying out of their core duties into the much narrower question of whether the police should be liable for their missions as opposed to their acts one can see how this frame fits the facts in Michael the failure of the police to respond to Joanna’s cry for help can indeed be construed as an omission on the other hand the Perley conducted investigation and he’ll the highly regrettable operational failures in Smith the shamefully racist treatment of a witness and Brooks are these reducible to mere emissions I’m also troubled by the assumption that these kinds of claim seek to hold the police responsible for harm caused by someone else the rapists the batterer and so forth in some cases the argument takes that form but not in all in Brooks for example the claim was not that the police failed to protect Wayne from being attacked but that they treated him appallingly afterwards likewise in DSD the nature of the complaint is that the defendants the police have directly harmed the claimant in the way that they treated them after they reported their rape so hi then does Lord Tolson gap from a specific concern with police liability permissions to a general position which denies a private law duty of care to put it another way how far does the majority judgment in Michael’s actually extend does it really put the issue of police liability in these kind of circumstances firmly to rest I think not I think this issue will continue to rear its trouble as troublesome head again again until a fairer and more proportionate solution is reached so to conclude for the Michael’s family

negligence is no longer an option they are left with the hope that a future court will look sympathetically upon a claim based on article 2 I wish them luck with it but I want to conclude by returning to the broader question of whether we should be supporting these kinds of claims in the first place and why we have seen disturbing evidence of the extent to which gender-based violence continues to occur at a troublingly high rate in our society we’ve seen too that police efforts to respond to such violence or mixed at best and at worst continue to reproduce the values and beliefs which contribute to the problem of gender-based violence in the first place victims of rape sexual and domestic abuse do not I would argue enjoy equal benefit of protection of law as the rule of law requires when we consider that the vast majority of these victims are women and children that these crimes are deeply unremittingly patterned along gender lines we confront directly the extent to which a failure to address them contributes to the persistence of gender inequality so how can imposing liability improve things what the threat of liability does is create what American scholar Charles Epps calls a system of legalized accountability F argues that civil litigation has real advantages over other forms of accountability particularly in relation to state bureaucracies such as the place he points to the persistent problem which reformers face when trying to change bureaucracies from the outside policies are adopted but never implemented lip service is paid to externally mandated directions but the result is what F describes as bureaucratic window dressing remember the conclusions of the recent hm I see report on domestic abuse they said domestic abuse is a priority on paper but not in practice the stated intent is not to translate it into the operational reality for app the institutional fear of liability is precisely the driver needed to bring about a change from within you will call that many of the judges expressed concern that the fear of liability will adversely affect the way in which the police go about their business EPS comes at it from a different angle yes it will affect the way in which the police go about their business but not necessarily adversely isn’t this precisely what we want to achieve surely we want to change placing priorities we want to incentivize the police to Cordy issues the attention and the concern they require for me one of EPs most powerful points is that the fear of liability empowers those within the bureaucracy who are trying to bring about reform we need to challenge the legal narrative which construes our police force as a monolith an undifferentiated mass rather than a community of difference in contestation just like any other there are many within the police who desperately won’t change the car opening the door to liability suits just a little bit no one I repeat no one is advocating a liability free-for-all empowers those reformers from within and it disempowers those who continue to draw on a traditional culture of police indifference a lot of senior judges the best in the field I would say have given time and thought to how to devise a liability rule which would be sufficiently circumscribed to strike a fair balance between police operational needs and victim justice Lord Bingham proposes just such a principle in his dissent in Smith Lord Kerr formulates his own version in Michael’s lots of academics to feel that the time has come in Lord carrots words to recognize the legal duty of the police force to take action to protect a particular individual whose life or safety is to the knowledge of the place threatened by someone else whose actions the place are able to restrain I am among their number thank you and good night