B v Reading Borough Council & Ors

This is a renewed application for permission to appeal from Mackay J following refusal of permission on the papers by Sir Richard Buxton.

This is a further stage in the long-running and unhappy saga of a father, the claimant, who, between 1990 and 1995, stood falsely accused of the sexual abuse of his three-year-old daughter, L. He was never in fact charged, but nonetheless the child was put on the protection register.

There have been a considerable number of court proceedings over the years, but by the time the matter reached Mackay J earlier this year there were claims against the first two defendants, that is to say the two local authorities, only in misfeasance in public office and of conspiracy arising from the actions of a social worker, Mrs Sullivan.

The same torts were alleged against the third defendant, the Chief Constable of the Thames Valley Police, but the claim was also brought against him in negligence, in these cases because of the actions of a police officer, WPC Grey. The judge rejected both sets of claims and the claimant now seeks permission to appeal.

Dealing with misfeasance first of all, it was conceded at trial by the claimant that if he failed to prove misfeasance in public office he could not succeed under the conspiracy claim. The judge therefore concentrated on the misfeasance claim, as I shall at this particular stage in my judgment. Mackay J reminded himself of the leading House of Lords’ decision in Three Rivers District Council v Bank of England Number 3 [2003] 2 AC 167. The claim here was one of untargeted malice, as it usually called. It is accepted that the judge correctly spelt out the appropriate legal test as defined by Lord Steyn in the Three Rivers case. At paragraph 33 of his judgment Mackay J said this:

“The defendant must be a public officer exercising a power as such, and in the form of the tort relied on here, so-called untargeted malice, acting, knowing or being subjectively reckless as to the fact that she has no power to do the act complained of, and knowing that the act will probably injure the claimant. The tort therefore involves subjective bad faith in the exercise of public powers.”

There is a submission made this morning by Mr Whitfield on behalf of the applicant that that is only one of the formulations of the appropriate test and that one can find, in cases such as Hill in Lord Steyn’s speech and elsewhere, another formulation which presents a claimant with a somewhat lower bar to surmount, namely whether there is an absence of honest belief on the part of the public officer.

It is submitted that there is some inconsistency there, and for that reason alone it would be appropriate for this matter to be clarified by granting permission to appeal. Dealing, if I may, immediately with that submission, that does not seem to me to have any justification: the Court of Appeal has provided such clarification which is binding on me and will be binding on the full court in cases such as Stockwell v Society of Lloyds [2008] 1 WLR 2255; in particular in the judgment of Buxton LJ at paragraph 46. It seems to me to be quite clear, where there are references to an absence of honest belief, that that is simply a summary and shorthand way of seeking to express the subjective recklessnes test to which I have already referred.

That, of course, is not the end of the argument, however, under this heading. The contention, or one of the contentions, is that, having spelt out that test from Lord Steyn to which I have already referred, Mackay J failed properly to apply the test in the rest of his judgment.

At one point in the written argument, which was drafted by other counsel, it seemed to me that the claimant was seeking to argue that it was enough that the two public officers in question, Mrs Sullivan and WPC Grey, acted unlawfully in the sense of acting ultra vires, knowing or being subjectively reckless to the fact that their actions would probably injure the claimant; in other words, enough that their actions were unlawful. That cannot be right, and it is not an approach which has been advocated by Mr Whitfield QC, who appears on behalf of the claimant today. It is quite clear from Three Rivers and later cases, such as The London Borough of Southwark v Dennett [2007] EWCA Civ 1091, that the knowledge or subjective recklessness must be proved not only as to the consequences of the act or acts but also as to the unlawfulness of the act or acts. That is accurately summarised, in my view, in the current edition of Clarke and Lindsell at paragraph 14.58. It is not enough that the act was in fact unlawful in the sense I have described; the mental element on the part of the public officer is crucial.

But it is now said in respect of misfeasance that the judge attached too much significance to the motive of the public officers concerned. At this point I ought to refer briefly to the judge’s findings of fact, in particular in respect of the two interviews of the little girl in April 1990.

At the first one of those, which took place on 10 April in her home, an interview which was not videoed, the little girl spoke of and demonstrated things which would legitimately give rise to concern about possible sexual abuse of her by her father, particularly given the background of an allegation which by then had been made by the mother.

Mrs Sullivan and the police officer were genuinely concerned, the judge found, and so they arranged a video interview the very next day at the police station. That interview, however, was, said the judge, a deeply flawed and unsatisfactory process, failing to comply with proper practice, and with the two women asking leading questions of the child. However, the judge accepted the evidence of these two women that they did not believe that they were behaving improperly or not following best practice. They had, he found, only one purpose in mind: the protection of L’s interests and welfare. He rejected the submission that they were attempting to create evidence to implicate the claimant. At one point the judge does speak in terms of being motivated by a desire to protect L from the risk of further abuse. As a result, it is now argued that he was wrong to deal in terms of motivation. Mr Whitfield submits that that motive has nothing to do with the test to be applied in cases such as this; to do so blurs the distinction between targeted and untargeted malice. Consequently, here the judge, it is said, did not consider reckless disregard, but focussed on whether there was deliberate manipulation by the officers.

For my part, I cannot see any force in this argument. It is quite clear that the judge found that the two women believed that they were acting properly in the sense of exercising their powers for a lawful purpose. He actually uses the phrase “purpose” when he deals with this at the end of paragraph 59 when he says:

“They did what they did with only one purpose in mind, namely the protection of L’s interests and welfare”

They did not know that they were acting wrongfully, nor were they aware that they were probably acting wrongfully, but nonetheless took the risk. It seems to me that the judge’s findings are flatly against any recklessness basis, in the subjective sense, for a misfeasance claim; yet awareness of this is fundamental to subjective recklessness in the Cunningham sense, which is how this test is to be applied.

I can therefore see no real chance of an appeal on the misfeasance basis succeeding in this case. I acknowledge that the judge did deal with whether there was deliberate manipulation by the officers, but of course he had to do that because that was the assertion being put forward as part of the case for the claimant. It would be wrong to read more into that than the judge dealing with that particular issue.

I turn therefore to the claim based upon negligence in the investigation of suspected crime. It is of course well established, since Hill v Chief Constable of West Yorkshire [1989] AC 53, that in principle the investigation of suspected crime by a police officer does not give rise to a duty of care in negligence owed to individual members of the public. This decision in Hill was arrived at not only because of the absence of sufficient proximity but also, as is well recognised, on public policy grounds.

The claimant’s case at trial was that it had been recognised in cases such as Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 that there might be exceptional cases of outrageous negligence by the police which would fall outside the core principle in Hill, although the judge commented that no such exceptional case had been put before him. He found that the actions of WPC Grey were all concerned with the investigation of alleged crime and did not fall outside the boundaries of that core principle.

This morning Mr Whitfield puts forward a number of submissions. He suggests that, in terms of the assumption of responsibility, the judge did not look at the objective form of that assumption but confined himself only to a subjective form. For that proposition he relies upon paragraph 32 of the judgment. I do not read that paragraph in the same way. It seems to me to be entirely consistent with approaching questions of assumption and responsibility in an objective fashion, but in any event that still leaves the question of public policy.

It is also said that WPC Grey was here acting in a dual role, part investigating possible crime but part concern with the welfare of the child. That does not seem to be a submission which was put forward at trial; certainly the judge did not deal with it, but in any event it does seem to me quite clear that the principal concern of the police officer must have been the investigation of possible crime, which of course was why she would be present. There is an argument that, so far as the investigation of possible crime is concerned, after 19 April, when it was clear that no criminal charge was going to be brought, the policy reasons to be found in Hill for allowing the police immunity in such cases fall away. That does not seem to me to avail the claimant here; the basis of the claim lies in the events when WPC Grey was clearly investigating suspected crime.

The principal submission, as I understand it, that Mr Whitfield puts forward this morning, however, is that we have here a case of extreme facts where the question needs to be answered: ought the decision in Hill to apply in the present situation? A number of authorities are relied upon. I have already referred to the case of Brooks, but in addition reference is made to Swinney v The Chief Constable [1997] QB 464 and Waters v Metropolitan Police Commissioner [2000] 1 WLR 1607 and indeed other authorities. These are presented with a view to establishing that it has been recognised that the police do not always have a blanket immunity.

It needs to be borne in mind that Swinney was a strike out case and comment was made upon the situation that the strike out had been ordered, despite the fact that all the facts had not been established. That of course is not the situation here. But what one derives from Swinney, it seems to me, is that there can be situations where there are sound public policy reasons why the immunity in Hill, at least arguably, should not apply. That cannot be regarded as the situation in the present case. The risk of harm to an individual which is the situation facing the police officer in the present case is no different from normal negligence situations. In Swinney there was a clear public interest in preventing the drying up of information from potential informers, and so there was a balance to be struck in deciding where the public interest lay. That is a very different state of affairs.

The point being made in Brooks was that there might be cases, exceptional ones, which would fall outside the scope of the core principle in Hill. That would be because the acts in question of the police officers were not ones:

“…inextricably bound up with the police function of investigating crime which is covered by the principle in the Hill’s case”

I take that from the judgment of Lord Steyn in Brooks at paragraph 33.

Once the duty of care in a specific case is said to have arisen as part of that function, it cannot be accepted, according to Lord Steyn, in that same case. He said indeed in the same paragraph:

“If the core principle in Hill's case stands, as it must, these pleaded duties of care cannot survive.”

I cite Lord Steyn because the other members of the judicial committee agreed with him. That, I emphasise, is a recent decision of the House of Lords, as recent as 2005.

The fact is that there may be cases where the police actions complained of do not fall within the core principle because they do not fall within that function of investigating crime. In large part, that was the situation in Waters, relied on by Mr Whitfield, where the claimant was essentially seen as an employee suing her employer. Insofar as she was complaining of the failure by the police to investigate an alleged assault on her, it is clear that that was not seen as a viable cause of action: one gets that from looking at Lord Steyn at page 1613E and again Lord Jauncey at 1614G. But this is not such a case where the acts complained of have nothing to do with the investigation of suspected crime; the present case is quite the opposite. This is a case which falls foursquare within the Hill principle.

Some of these cases involve questions as to the duty to care owed to suspected victims. We are dealing here of course with whether there is a duty of care to the suspect himself. On that, there is some authority in the case of Calveley v Chief Constable of Merseyside [1989] AC 1228, which establishes that a police officer investigating a suspected crime does not owe a duty of care to the suspect. That seems to me to be far more appropriate in the situation that we have here.

In addition, as Sir Richard Buxton pointed out, there is only likely to be an exception recognised to the Hill principle where negligence is the only available remedy. Again, that is clear from Lord Steyn in the Brooks case at paragraph 34, where he referred to:

“…cases of outrageous negligence by the police unprotected by specific torts”. (emphasis added)

As police officers are public officers, there will, in appropriate cases, be a remedy available in misfeasance in public office, so long as the necessary ingredients for that tort are established. If they are not there is no justification, in my view, of sidestepping them by making inroads into the core principle in Hill’s case.

In other situations, of course, there may be actions available in assault if that is what is alleged against the police officer.

As a result of this analysis, and despite the very persuasive submissions put forward (as I understand it at relatively short notice by Mr Whitfield), I can see no prospect of a successful appeal on this aspect of the case either. However much sympathy one may have for the claimant, who obviously suffered an horrendous time, the appeal in this case in my judgment is doomed to failure and in those circumstances this application has to be dismissed.