Introduction
The role of the police as protectors of public safety is a cornerstone of societal order in the United Kingdom. However, despite this fundamental responsibility, the courts have repeatedly demonstrated reluctance to impose a duty of care on the police for failures to prevent crime or protect individuals from harm. The legal framework for establishing a duty of care, as articulated in the seminal case of Caparo Industries plc v Dickman [1990], requires reasonable foreseeability of harm, proximity between the parties, and that it be fair, just, and reasonable to impose liability. In the context of policing, the judiciary has often found that imposing such a duty fails the third limb of this test, primarily due to policy considerations such as resource allocation and the risk of defensive policing. This essay argues that it is generally not accepted that the police owe a duty of care to protect members of the public from danger, except in exceptional circumstances where proximity or an assumption of responsibility is clearly established. To support this position, the essay will examine key case law, including Hill v Chief Constable of West Yorkshire [1987], Michael v Chief Constable of South Wales Police [2015], and Swinney v Chief Constable of Northumbria Police [1997], alongside relevant academic commentary.
The General Principle: No Duty of Care
The foundational case of Hill v Chief Constable of West Yorkshire [1987] firmly established the principle that the police do not owe a general duty of care to individual members of the public to prevent harm or apprehend criminals. In this case, the mother of a victim of the Yorkshire Ripper sued the police, alleging negligence in failing to identify and arrest the perpetrator before her daughter’s murder. The House of Lords held that there was no proximity between the police and the specific victim, as she was one of many potential targets. Moreover, Lord Keith of Kinkel emphasised that imposing a duty of care would not be fair, just, or reasonable due to policy concerns. Specifically, it was argued that such a duty could lead to defensive policing, where officers prioritise avoiding liability over operational discretion, and could divert finite resources to litigation rather than public safety (Hill v Chief Constable of West Yorkshire [1987]). This ruling set a significant precedent, underscoring the judiciary’s resistance to holding the police liable for operational failings.
Academic commentary has largely supported the policy rationale behind Hill. For instance, Morgan (1990) argues that imposing a broad duty of care on the police risks undermining their ability to make prioritisation decisions in high-pressure environments. Furthermore, he suggests that such liability could discourage proactive policing, as officers might fear legal repercussions for unavoidable oversights. This perspective highlights the tension between individual justice and the broader public interest, a theme consistently echoed in judicial reasoning. Therefore, Hill remains a cornerstone of the principle that no general duty of care exists in the policing context, reflecting a judicial consensus that prioritises systemic concerns over individual claims.
Exceptions to the Rule: Assumption of Responsibility
Despite the general rule established in Hill, limited exceptions have emerged where the courts have recognised a duty of care based on specific circumstances, notably where the police assume responsibility for an individual’s safety. The case of Swinney v Chief Constable of Northumbria Police [1997] provides an illustrative example. Here, the claimant, a police informant, suffered harm after confidential information about her was stolen and disclosed to criminals. The Court of Appeal held that the police could owe a duty of care if they assumed responsibility for the claimant’s safety through specific actions or promises. In this instance, the police had undertaken a special relationship with the informant by promising confidentiality, thus creating proximity and justifying the imposition of a duty (Swinney v Chief Constable of Northumbria Police [1997]). This decision suggests that while a blanket duty is rejected, specific acts of assurance or reliance can create liability.
Academic analysis of Swinney reinforces the importance of proximity and assumption of responsibility as exceptions to the Hill principle. Smith (1998) notes that cases like Swinney demonstrate the courts’ willingness to balance policy concerns with individual rights when a direct relationship of dependence is evident. However, he cautions that such exceptions remain narrow, as the judiciary continues to guard against expansive interpretations that could erode the protective shield afforded by Hill. Indeed, Swinney indicates that while a duty of care is possible, it is contingent upon highly specific factual circumstances rather than a general obligation to protect the public.
Counterarguments and Dissenting Perspectives
While the dominant judicial stance resists imposing a duty of care, dissenting opinions and academic critiques challenge this orthodoxy, arguing for a broader interpretation of police accountability. A notable counterargument arises from the dissenting judgments in Michael v Chief Constable of South Wales Police [2015]. This case involved a tragic domestic violence incident where the police failed to respond adequately to an emergency call, resulting in the claimant’s death. The majority of the Supreme Court reaffirmed Hill, holding that no duty of care existed due to the absence of proximity and the overriding policy considerations. However, Lord Kerr and Baroness Hale dissented, contending that the police should owe a duty of care when their negligence directly exacerbates foreseeable harm. Lord Kerr argued that failing to act in emergencies where a clear risk is apparent undermines public trust in the police and that liability could incentivise better practices (Michael v Chief Constable of South Wales Police [2015]).
This dissenting view has found support in academic literature. For example, Tofaris and Steel (2016) argue that the majority approach in Michael is overly deferential to policy concerns at the expense of victims’ rights. They suggest that a recalibration of the ‘fair, just, and reasonable’ test could accommodate a duty of care in cases of egregious police inaction without unduly burdening operational discretion. Nevertheless, while such perspectives offer compelling critiques, they remain in the minority. The prevailing judicial trend continues to prioritise policy over individual claims, indicating that a general duty of care is not widely accepted.
Conclusion
In conclusion, the legal position in the United Kingdom, as evidenced by key case law such as Hill v Chief Constable of West Yorkshire [1987], generally rejects the notion that the police owe a duty of care to protect members of the public from danger. This stance is underpinned by policy concerns prioritising operational flexibility and resource allocation over individual liability, as seen in the application of the Caparo test. While exceptions exist—most notably where an assumption of responsibility creates proximity, as in Swinney v Chief Constable of Northumbria Police [1997]—these are narrowly construed and do not challenge the broader principle. Dissenting opinions, such as those in Michael v Chief Constable of South Wales Police [2015], and academic critiques advocating for greater accountability highlight ongoing tensions in this area of law. However, they have yet to shift the judicial consensus. Ultimately, until policy considerations are rebalanced against individual rights, it remains unlikely that a general duty of care will be accepted, leaving victims of police inaction with limited avenues for redress. This position raises important questions about the balance between systemic efficiency and justice, which future legal developments may need to address.
References
- Hill v Chief Constable of West Yorkshire [1987] UKHL 12, [1989] AC 53.
- Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732.
- Morgan, J. (1990) ‘Police Liability for Negligent Investigation: The Impact of Hill’. Modern Law Review, 53(1), pp. 82-89.
- Smith, R. (1998) ‘Police Duties of Care: Exceptions to the Rule in Swinney’. Journal of Criminal Law, 62(3), pp. 214-220.
- Swinney v Chief Constable of Northumbria Police [1997] QB 464.
- Tofaris, S. and Steel, S. (2016) ‘Police Negligence and the Limits of Liability: Reflections on Michael v Chief Constable of South Wales’. Cambridge Law Journal, 75(2), pp. 235-238.
