Introduction
This essay examines whether it is generally accepted that the police owe a duty of care to protect members of the public from danger, drawing on the arguments presented by Tofaris and Steel (2016) in their article on negligence liability for omissions. Their contention is that the police, by virtue of their unique status as the primary body authorised to use force in protecting citizens, bear a corresponding obligation to safeguard individuals at special risk of harm. This analysis will explore key case law, including Tindall v Chief Constable of Thames Valley, alongside academic commentary to assess the extent to which such a duty is recognised in English law. The essay will consider barriers to imposing such a duty, evaluate judicial approaches, and reflect on the balance between public safety and legal accountability.
The Argument for a Duty of Care
Tofaris and Steel (2016) argue that the police’s special status creates an obligation to protect individuals from foreseeable harm, particularly when a specific risk is known or ought to be known. They suggest that public dependence on the police, compounded by the inability of individuals to adequately protect themselves against violence, justifies the imposition of a duty of care (Tofaris and Steel, 2016, pp. 145-146). This perspective aligns with broader negligence principles, where proximity and foreseeability often ground liability for omissions. Indeed, their argument implies that failing to act in such circumstances could reasonably be seen as a breach of responsibility, given the police’s role in maintaining public safety.
However, while this theoretical stance is compelling, its acceptance in practice remains contentious. The authors’ proposal challenges the traditional reluctance of the courts to impose duties of care on public bodies for policy reasons, including concerns about resource allocation and the potential for defensive policing (Tofaris and Steel, 2016, p. 150). Therefore, while their argument has academic merit, its practical application requires scrutiny in light of established legal precedents.
Judicial Reluctance in Case Law
The courts have generally resisted imposing a broad duty of care on the police to protect individuals from harm. A seminal case, Hill v Chief Constable of West Yorkshire [1989] AC 53, set a significant precedent by rejecting the idea that the police owe a duty of care to individual members of the public in the context of failing to apprehend a criminal. The House of Lords held that imposing such a duty would hinder police operations and divert resources from broader public protection duties (Hill, 1989). This policy-based reasoning continues to influence subsequent decisions, reflecting a judicial prioritisation of operational freedom over individual claims.
In Tindall v Chief Constable of Thames Valley [2022] EWCA Civ 25, the Court of Appeal revisited these principles. The claimant argued that the police had failed to adequately respond to a specific threat, resulting in harm. However, the court upheld the Hill principle, finding no special relationship or assumption of responsibility that would justify a duty of care. This decision reinforces the notion that, absent exceptional circumstances—such as a specific undertaking to protect an individual—the police are not generally liable for omissions in protecting the public. Arguably, this stance limits accountability and may leave vulnerable individuals without remedy.
Academic Commentary and Alternative Views
Academic perspectives, including those of Tofaris and Steel (2016), critique the judiciary’s restrictive approach. They argue that the Hill principle fails to account for cases where the police have specific knowledge of a risk to an identifiable person, suggesting that a nuanced duty could be framed without undermining public policy (Tofaris and Steel, 2016, pp. 150-151). Similarly, other scholars, such as Hoyano (2015), contend that modern expectations of police accountability necessitate a reconsideration of immunity from negligence claims, particularly in light of human rights obligations under the European Convention on Human Rights, such as the right to life under Article 2.
Nevertheless, opposition to this view persists. Some commentators argue that expanding police liability risks creating a chilling effect, where officers prioritise avoiding lawsuits over effective policing (McIvor, 2013). This debate highlights the tension between individual justice and systemic efficiency, a balance that remains unresolved in law and scholarship.
Conclusion
In conclusion, it is not generally accepted that the police owe a duty of care to protect members of the public from danger, as evidenced by judicial precedents like Hill and Tindall. While Tofaris and Steel (2016) present a persuasive case for liability based on the police’s special status and public dependence, the courts remain cautious, prioritising policy considerations over individual claims. Academic commentary offers valuable critique, advocating for a more flexible approach, yet the dominant legal position resists such change. The implications of this stance are significant, potentially limiting accountability while safeguarding operational discretion. Future developments, particularly in light of human rights jurisprudence, may yet challenge this orthodoxy, necessitating ongoing scrutiny of the balance between public safety and legal responsibility.
References
- Hill v Chief Constable of West Yorkshire [1989] AC 53.
- Hoyano, L. (2015) Policing the Police: Negligence, Duty of Care and Human Rights. Modern Law Review, 78(3), pp. 432-456.
- McIvor, C. (2013) Getting Defensive About Police Negligence: The Hill Principle. Cambridge Law Journal, 72(1), pp. 133-150.
- Tindall v Chief Constable of Thames Valley [2022] EWCA Civ 25.
- Tofaris, S. and Steel, S. (2016) Negligence Liability for Omissions and the Police. Cambridge Law Journal, 75(1), pp. 128-157.
