Introduction
This essay examines the statement by Lord Steyn in Brooks v Commissioner of Police for the Metropolis and Others [2005] UKHL 24, where he argued that imposing a duty of care on the police could result in an ‘unduly defensive approach in combating crime’ (at 1509). The discussion is framed within the broader context of the duty of care under the tort of negligence, a cornerstone of English law that determines when a defendant owes a legal obligation to prevent harm to others. The essay will explore the implications of Lord Steyn’s assertion, the judicial reasoning behind the decision in Brooks, and the wider policy considerations that shape the application of the duty of care to public authorities like the police. Furthermore, it will critically engage with the threshold concept that ‘law is not neutral, not objective, and not universal,’ highlighting how societal values and policy priorities influence legal principles. Supported by relevant case law and academic commentary, this essay aims to evaluate whether the reluctance to impose a duty of care on the police strikes an appropriate balance between individual rights and public interest.
The Doctrine of Duty of Care in Negligence: Foundational Principles
The duty of care is a fundamental element of the tort of negligence, requiring courts to establish whether a defendant owes a legal obligation to avoid causing foreseeable harm to the claimant. The modern approach to determining a duty of care was solidified in Caparo Industries plc v Dickman [1990] 2 AC 605, which introduced a three-stage test: foreseeability of harm, proximity between the parties, and whether imposing a duty is fair, just, and reasonable (Caparo, at 617-618). This framework provides a structured yet flexible approach to assessing liability, allowing courts to consider policy implications alongside factual circumstances.
However, the application of this test is not uniform, particularly when public authorities are involved. Courts have often been cautious about imposing duties on bodies like the police, as seen in Hill v Chief Constable of West Yorkshire [1989] AC 53. In Hill, the House of Lords held that the police did not owe a duty of care to individual members of the public to prevent harm by third parties, primarily due to policy concerns such as the potential for defensive policing and resource diversion (Hill, at 63). This precedent underscores a broader judicial trend to prioritise public interest over individual claims, reflecting the view that law is not neutral but shaped by societal and institutional priorities.
Brooks v Commissioner of Police: Context and Reasoning
In Brooks v Commissioner of Police for the Metropolis and Others [2005] UKHL 24, the claimant, a friend of Stephen Lawrence, sought damages for psychological harm caused by alleged negligence in the police investigation following Lawrence’s racially motivated murder. Brooks argued that the police owed him a duty of care as a witness and victim of trauma, particularly in their handling of the investigation and interactions with him. The House of Lords, however, unanimously rejected the claim, reinforcing the principle established in Hill.
Lord Steyn’s statement that imposing a duty of care would lead to an ‘unduly defensive approach in combating crime’ (Brooks, at 1509) encapsulates the core policy concern. He argued that holding the police liable for negligence in such contexts could hinder their primary function of maintaining public safety by forcing them to prioritise avoiding litigation over effective crime prevention. This reasoning aligns with the third limb of the Caparo test, questioning whether it is fair, just, and reasonable to impose a duty. Indeed, the court’s emphasis on protecting police discretion highlights how legal principles are not universal but contingent on balancing competing interests—here, individual redress versus collective security.
Policy Considerations and Defensive Policing: A Critical Analysis
The fear of ‘defensive policing’—where police officers adopt overly cautious practices to avoid liability—has been a recurring theme in judicial decisions. In Hill, Lord Keith explicitly noted that imposing a duty could lead to police resources being diverted from crime prevention to defending lawsuits (Hill, at 63). Similarly, in Brooks, Lord Steyn reiterated this concern, suggesting that liability could stifle police effectiveness (Brooks, at 1509). These arguments reflect a pragmatic approach, prioritising the broader societal benefit of uninhibited policing over individual claims for compensation.
However, this perspective is not without critique. Some academics argue that the judiciary’s reluctance to impose duties on public authorities may undermine accountability. For instance, McIvor (2005) contends that shielding the police from liability risks perpetuating systemic failings, as seen in the Macpherson Report (1999), which heavily criticised the Metropolitan Police’s handling of the Stephen Lawrence case. This critique ties into the concept that law is not objective; rather, it often reflects dominant societal values, such as prioritising state authority over individual rights. The decision in Brooks can thus be seen as reinforcing a hierarchical structure where public interest, as defined by the judiciary, trumps personal grievances.
The Non-Neutral Nature of Law: Balancing Rights and Policy
Engaging with the threshold concept that ‘law is not neutral, not objective, and not universal,’ it becomes evident that the duty of care doctrine is shaped by contextual and cultural factors. In the context of Brooks, the House of Lords’ decision arguably prioritises a state-centric view of public safety over the individual trauma experienced by Brooks. This raises questions about whose interests the law serves. As Lunney and Oliphant (2013) note, judicial reluctance to impose duties on the police often reflects a deference to executive power, potentially at the expense of marginalised individuals who suffer from institutional failures.
Furthermore, the law’s lack of universality is evident in comparative perspectives. For example, in some jurisdictions, such as Canada, courts have shown greater willingness to hold police accountable under negligence principles, as seen in Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129. This contrast suggests that legal doctrines like the duty of care are neither fixed nor inevitable but are products of specific socio-political environments. In the UK context, the emphasis on avoiding defensive policing may reflect a historically entrenched view of police autonomy, which critics argue fails to address systemic issues like racial bias—an issue central to the Brooks case.
Conclusion
In conclusion, Lord Steyn’s assertion in Brooks v Commissioner of Police for the Metropolis and Others [2005] UKHL 24 that imposing a duty of care on the police would lead to an ‘unduly defensive approach in combating crime’ reflects a long-standing judicial concern prioritising public interest over individual claims. Through the lens of the duty of care doctrine, as shaped by cases like Hill and Caparo, this essay has explored how policy considerations—particularly the fear of defensive policing—have influenced legal outcomes. However, engaging with the threshold concept that law is not neutral, objective, or universal reveals the inherent biases in this approach, where state interests often overshadow individual rights, as arguably occurred in Brooks. The critical commentary from academics like McIvor (2005) underscores the need for greater accountability, challenging the judiciary to reconsider whether the current balance adequately addresses systemic issues. Ultimately, while the decision in Brooks may protect police discretion, it raises broader questions about fairness and the role of law in society, suggesting that the duty of care is not merely a legal test but a reflection of deeper societal values.
References
- Hill v Chief Constable of West Yorkshire [1989] AC 53.
- Brooks v Commissioner of Police for the Metropolis and Others [2005] UKHL 24.
- Caparo Industries plc v Dickman [1990] 2 AC 605.
- Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129.
- Lunney, M. and Oliphant, K. (2013) Tort Law: Text and Materials. 5th edn. Oxford University Press.
- McIvor, C. (2005) ‘Getting Defensive About Police Negligence: The Hill Principle, the Human Rights Act 1998 and the House of Lords’, Cambridge Law Journal, 64(1), pp. 133-150.
- Macpherson, W. (1999) The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny. Cm 4262-I. London: The Stationery Office.
