ContentsChanging pace?.............................................................................................................................................1ASBO update and the Respect Agenda.........................................................................................................2Prevention better than cure? - The HRA........................................................................................................4Vicarious liability revisited..............................................................................................................................6The police and harassment claims - an update..............................................................................................7Time for a change - CPR................................................................................................................................9The admissibility of similar fact evidence.....................................................................................................11Health and safety and absence from work...................................................................................................13Exemplary damages - why are they still with us?.........................................................................................14Immunity....................................................................................................................................................... 16POCA - Give us your cash!..........................................................................................................................17Road Traffic Act: are you covered?..............................................................................................................19Balancing budgets and civil claims...............................................................................................................21The Human Rights Act and failure to protect...............................................................................................22

Changing pace?

Reform of the police service gathers pace. The Home Office has established a fundamental review of PACE itself, aiming to help increase the efficiency and effectiveness of the police service 'in delivering the drive of the Police Reform Programme' by providing 21st Century policing powers. The new National Policing Improvement Agency was launched on 1 April. The Conservative Party has launched a year long review of the structure of policing promising a fundamental grass roots re-organisation which appears to reflect the present government's broad agenda.

Police officers will be pleased to hear that lawyers are also subject to radical changes. The House of Lords is currently scrutinising the Legal Services Bill, due to be enacted later this year, which will provide wholesale reform to the regulation of the profession. No doubt many police officers will consider this well overdue. There has been a traditional suspicion of lawyers, particularly criminal practitioners, amongst police officers, reflected in a recent robust exchange of views in Police Review.

But as the role of the police officer changes, the role of police lawyers also evolves. Our role is increasingly advisory, using our expertise of handling claims to manage risks before problems occur and avoiding disputes rather than picking up and arguing over the pieces. The Court of Appeal's decision in Van Colle v Chief Constable of Hertfordshire, reviewed for us by junior counsel instructed for the Chief Constable, illustrates the impact a legal decision may have for force policy makers.

This edition of Keeping PACE looks at a number of issues where recent legal developments justify review to avoid liabilities and expense. We consider the burgeoning problem of stress amongst police forces and how this should be addressed internally. We look at the most important recent developments in the courts and how they should affect policy decisions whether in public order or motor insurance. As ever, our writers welcome comment and discussion and our contributors' contact details appear throughout this edition.

Jim SherwoodPartner, BLM London

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Keeping PACE May 2007 – edition 8

ASBO update and the Respect Agenda

We are now one year on from the launch of the government's Respect Action Plan which aims to tackle anti-social behaviour and create a modern culture of respect.

On 22 January 2007 the government established 40 respect areas which have 'earned the right to be exemplars of the Respect programme by their strong track record, and a willingness and capacity to do more’ (http://www.respect.gov.uk/). The Department for Education and Skills has invested six million pounds towards parenting classes in the respect zones. All respect zones have signed up to:

1 Family Intervention Projects to tackle 'neighbours from hell'.2 Parenting classes.3 'Face the People' sessions between the police/local authorities and the public.4 Use the full range of tools and powers to tackle anti-social behaviour.5 Utilise the Respect Housing Standard.

However, a number of years on from the Crime and Disorder Act and the plethora of litigation in the civil and criminal courts which has followed, the anti-social behaviour legislation is often the focus of criticism from many who either question the effectiveness of the legislation (even the Home Office has acknowledged that some people believe ASBOs confer kudos on the recipients) or the way the legislation is used.

Applicants must address the following:

i Be careful to ensure that the correct procedure is followed,(R v W and F [2006] EWCA Crim 686, R (C) v SunderlandYouth Court [2003] EWCH 2385 (Admin).

ii Prohibitions must not be drafted too widely, (CPS v Michael T [2006] EWHC 728 (Admin).iii Each separate prohibition must be targeted at the individual and the specific form of anti-social

behaviour it is intended to prevent, (R v Boness [2005] EWCA). iv Care must be taken to ensure applications are handled with sensitivity.

A cautionary tale in relation to the final point was reported in the national press in 2006. This particular case involved a woman who had lived in Childers Street, Liverpool for more than six years, witnessing the growth of anti-social behaviour by her neighbours' children which was becoming increasingly distressing and alarming. Every night the children would congregate in the road, drinking alcohol, screaming, shouting and using foul language.

The woman felt like a prisoner in her own house. She saw one family in the street get petrol bombed, she watched children attack an ambulance and witnessed them surround a man with learning difficulties and beat him to the ground.

The woman spent five months recording daily life in her road which gave the local authorities the evidence they needed to apply for ASBOs against the five ring leaders of the gang of youths.

The council agreed to protect the woman's anonymity as she believed that if the perpetrators and their families discovered she had provided evidence to the council, her life would be in danger.

However, within half an hour of the ASBO documents dropping through the perpetrators' letter boxes, an angry mob had gathered outside the woman's home.

Whilst not naming the woman, the council had described her as 'Witness A, a resident of Childers street, 60 years of age, resident for six and a half years'.

As there are only 19 houses on Childers Street, the perpetrators quickly identified who was responsible for providing the evidence against them. The gang, in uproar, surrounded the woman's house carrying baseball bats and one even possessed a gun. Fortunately, the witness was out on this particular afternoon but she was not able to return to her home and had to be re-housed. The ASBO applications were all withdrawn and this is a cautionary tale to those involved in making such applications.

While this report illustrates the importance of protecting witnesses' anonymity, recent cases have shown a lack of understanding of the value and need for hearsay evidence in civil ASBO applications. In Moat Housing Group South Limited v Harris and Hartless, Brooke LJ held that applicants need to provide convincing direct evidence as to why it is not reasonable and practicable to produce the original maker of the statement as a witness. It was held that if the statement involves multiple hearsay, the route by which the original statement came to the attention of the person attesting to it should be identified as far as practicable.

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In the case of R (on the application of Cleary v Highbury Corner) Magistrates' Court & (1) Commissioner of Police of the Metropolis (2) Secretary of State for the Home Department (2006) Lord Justice May referred to Moat Housing and held that Brooke J was rightly critical of anonymous hearsay witnesses who state that they do not wish to identify themselves for fear of reprisals without, in many cases, being at all specific about the reasons for their fear. Lord Justice May agreed that the willingness of a civil court to admit hearsay evidence carries with it inherent dangers.

However, applicants can rely on the case of R v McCann v Manchester Crown Court where Lord Hope stressed that the use of hearsay evidence is necessary in many cases if the bench is to be properly informed about the scale and nature of the relevant anti-social behaviour and the prohibitions that are needed for the protection of the public.

The conclusion must be that applicants must explain why witnesses are fearful of giving evidence at court or being identified by their evidence. Each case must depend on its own facts and the court should assess the reliability of the hearsay evidence, paying attention to the factors set out in section 4 (2) of the Civil Evidence Act 1995 and any other relevant circumstances. It may be that a special measures direction is appropriate.

The failed ASBOs in Childers Street show the value of hearsay evidence, the risks members of the public have to take and how the courts should take a sensible approach to the same. No one has the right to behave anti-socially and therefore the rights of the victim must surely outweigh the rights of the perpetrator, when considering human rights and the admissibility of evidence.

Rose LinnaneSolicitor, BLM Liverpool

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Prevention better than cure? - The HRA

Laporte v Chief Constable of Gloucestershire (House of Lords 13 November 2006)

On 22 March 2003 a protest demonstration took place outside the gates of RAF Fairford, in Gloucestershire, from which USAF B52 bombers had been flying on operational sorties against Iraq. Ms Laporte, a peace protester opposed to the Iraq war, wished to join the demonstration and to this end she boarded, in London, one of a convoy of three coaches (containing in all some 120 people) bound for Fairford. Unbeknown to Ms Laporte, included among the 120 were a number of 'Wombles' - a group of protesters known to police to be bent on violence and disorder.

When the convoy reached Lechlade (about a mile from the base) it was stopped by police who searched the coaches and found a quantity of items inconsistent with peaceful protest (masks, crash helmets, shields etc) and some eight hardcore Wombles members. Rather than simply remove the Wombles, the chief superintendent in charge of the operation required the entire convoy to return to London. He later explained that he had done this because it was not possible to identify with confidence all those protesters intent on direct action, and because he considered that although a breach of the peace was not (at Lechlade) 'imminent', had he permitted the convoy to continue on its way, a breach of the peace would have occurred upon arrival at Fairford.

As a result, Ms Laporte was unable to attend the demonstration and in consequence she allegedly suffered infringement of her rights to freedom of expression (Article 10 of the European Convention of Human Rights) and freedom of assembly (Article 11). So she sued the police, claiming that the chief superintendent's actions in preventing her from travelling to Fairford and forcing her to leave the area (actions which of course fell short of arrest), were unlawful.

Rights under Articles 10 and 11 are 'qualified rights' - that is to say their exercise may be restricted if the restriction is both (1) prescribed by law and (2) necessary in a democratic society for (inter alia) the prevention or disorder of crime (and then only if 'reasonable and proportionate'). At first instance and in the Court of Appeal, Ms Laporte's claim failed because the courts held that, although to justify arrest a breach of the peace had to be 'imminent' (ie 'about to happen', following the well known case of Albert v Lavin), when it came to preventative measures falling short of arrest it was sufficient if such measures were taken 'reasonably' for the prevention of a breach of the peace further down the line (ie at Fairford). The courts also held that, given the confused situation on the ground and the potential for violent public disorder, the police response was 'necessary and proportionate' in human rights terms.

The House of Lords took a wholly different view. As to hurdle (1) their Lordships held that the police action was not 'prescribed by law' because no distinction was to be drawn between arrest and preventive measures short of arrest: in both instances, in order to render the actions lawful, a breach of the peace had to be temporally 'imminent' in the Albert v Lavin sense, regardless of how reasonable those actions might otherwise be. If the common law was reformulated by reference to a single 'reasonableness' test this 'would weaken the long-standing safeguard against unnecessary and inappropriate interventions by the police: the imminence or immediacy of the threat to the peace is an essential condition which should not be diluted'. Since, in the chief superintendent's own words, a breach of the peace was not 'imminent' at Lechlade the preventative action was not justified and thus the restriction on Ms Laporte's Article 10 and Article 11 rights was not 'prescribed by law'.

This finding meant that the defence to Ms Laporte's claim failed at the first hurdle and it was unnecessary for their Lordships to go on and consider issue (2). They nevertheless did so, holding that on the facts the police response was neither necessary nor proportionate, because there were alternative courses of action available (such as targeting and removing the eight known Wombles at Lechlade or allowing the convoy to proceed to Fairford and taking action there if necessary) which would not have infringed Ms Laporte's rights. (It is noteworthy that all of their Lordships denied in the strongest terms that they were acting with the benefit of hindsight. It is, none the less, the writer's experience that the more vehemently a judge disclaims using hindsight the more likely it is that he has done just that).

On one level the moral of this story is plain enough. Any officer faced with policing an event like that confronted by police at RAF Fairford, and who wants to prevent (rather than contain and suppress) violent disorder should be wary of putting his faith in the common law but should instead read and re-read the complex and interlocking provisions of the Public Order Act 1986 and the Criminal Justice and Public Order Act 1994.

Of greater interest, perhaps, is the striking reluctance of the Law Lords to entertain with any enthusiasm the very notion of anticipating and preventing crime (consistent, of course, with their adherence to the doctrine of temporal 'imminence'). As Lord Bingham observed:

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For the most part, the common law is concerned to punish those who have committed an offence and to deter them and others from doing so in the future. It does not step in beforehand to prevent people from committing offences.

It is at least arguable that this approach is beginning to look a little old-fashioned in the light of, for example, recent government proposals in the mental health field and pioneering work by the Metropolitan Police into prevention of domestic homicides. Of one thing we can be sure: the function and ambit of preventive policing will be the subject of growing debate in the years ahead.

Philip Vallance QCBarrister, BLM London

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Vicarious liability revisited

In N v The Chief Constable of Merseyside Police (29 November 2006), a probationary police constable (PC Tolmaer, 'T') sat in a private car near a nightclub outside his working area. His police uniform was visible underneath his own jacket and his warrant card and radio were also openly in view. When N was carried outside the nightclub in a severely intoxicated state by a first aider, T offered to take her to a police station. He then drove past three police stations on his way home where he raped and indecently assaulted her while she was unconscious, filming his actions.

T was subsequently convicted and dismissed from his post. N then brought civil proceedings against the Chief Constable of Merseyside Police, arguing that he was vicariously liable for the constable's actions.

On these facts the High Court was asked to decide whether the chief constable was vicariously liable for this assault. Although this case relates specifically to police, the High Court applied general common law vicarious liability principles which are relevant for all employment relationships, namely, was the employee's tort so closely connected with his employment that it would be fair and just to hold his employer vicariously liable (Lister v Hesley Hall Limited (2001) UK HL 22).

Nelson J helpfully considered vicarious liability cases post Lister, including recent police cases. In Weir v Bettison 2003 EWCA Civ 111 a constable used a police van without authority to help his girlfriend move house whilst on duty. He told a local youth that he was a policeman. He later forcibly ejected the youth from the building, assaulted him, threw him down the stairs of the flats and locked him in the police van. In holding the chief constable vicariously liable, the Court of Appeal said that as he had been apparently exercising his authority as a constable and had confirmed this to the claimant, vicarious liability attached.

Similarly in Bernard v the Attorney General of Jamaica (2004) UKPC 47, vicarious liability was established when an off duty constable, who purported to be on official business, shot the claimant and later arrested him. This compares with Attorney General v Hartwell (2004) UKPC 12, involving a policeman who left his post and travelled some 27 miles to a bar where he spotted his ex-partner with another man. He fired a number of shots using a police revolver, injuring the claimant who was an innocent bystander. It was held that he was on a 'frolic of his own' (an unfortunate and overused description given the seriousness of what happened); he had consciously abandoned his police duties and embarked on a personal vendetta. Further, he never evoked his official authority.

In the case of N, Nelson J found that T was merely using his uniform and position as a policeman as an opportunity to commit the assault on the claimant. He had no intention, despite what he said to the first aider, of taking care of the claimant by driving her to a police station. Further, a search of his computer revealed he had carried out internet searches of 'drugged women' and 'date rape drugs', the latter some three months before the assault took place. Nelson J was therefore satisfied that the officer was 'on the prowl' with the intention of finding a vulnerable woman near one of the clubs in the city. On the facts, Nelson J concluded that:

… the fair and just apportionment of financial responsibility and the facts of this case do not render the Chief Constable liable for PC Tolmaer's tortious and criminal acts.

Whilst the judgment is very helpful for defendants, it cannot be assumed that because a police officer purports to be acting in his official capacity, liability will necessarily flow and vice versa. This judgment is very case specific and whilst it is encouraging to defendants, in particular chief officers, future cases will continue to be determined on a case by case basis having regard to all the circumstances.

Orla ScanlanPartner, BLM London

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The police and harassment claims - an update

How does the decision in Majrowski effect the future of harassment type claims and how does the decision marry with harassment type claims at common law?

Protection from Harassment Act 1997

The House of Lords handed down judgment in Majrowski v Guy's & St Thomas' NHS Trust in July 2006 and found that an employer can be vicariously liable under this Act for harassment committed by one of its employees in the course of his or her employment - but only in limited circumstances.

Section 1 of the Act prohibits a person from pursuing a course of conduct which he knows or ought to know amounts to harassment of the other. Fortunately section 3 confirms that the Act does not apply to a course of conduct if the person who pursued it can show that it was pursued for the purpose of 'preventing or detecting crime’ or 'under a rule of law'. This offers a measure of protection to police forces and should safeguard them from harassment claims by members of the public unless they can argue that the course of conduct was not for this purpose. The decision in Majrowski will not alter this.

Majrowski, however confirms that a civilian employee or police officer can pursue a claim for harassment and seek a civil remedy under the Act.

There is still no definition of harassment under the Act albeit the leading judgment made it clear that conduct which is simply 'unattractive, unreasonable or regrettable' is not sufficient. The behaviour must be 'oppressive and unacceptable and the gravity of the misconduct must be of an order which would sustain criminal liability'. The impression has been given that the Act should apply to cases of serious misconduct only.

At common law claimants must prove they are suffering from a recognised psychiatric condition and that their condition was a foreseeable one. Under the Act a claimant does not have to prove either of these and limitation is six years. Arguably removing these two hurdles combined with a generous limitation period could encourage more claims. Let’s hope the high threshold of conduct which amounts to harassment will keep this in check.

Clark v Constable of Essex Police 2006 EWHC 2290

Whilst the House of Lords was handing down judgment in the case of Majrowski, the case of Clark was being decided in the High Court and judgment was handed down in September 2006.

This was a harassment claim being made at common law rather than in accordance with the Act and the applicability of Hatton v Sutherland 2000 EWCA, which was an 'overwork' stress claim rather than a claim for harassment, was considered. All of the leading cases that have followed Hatton have been 'overwork' type claims rather than harassment claims.

Here the claimant police officer claimed that from 1997 to 1999 he had been subjected to a campaign of bullying, harassment, humiliation, intimidation, oppression, and victimisation by fellow officers while he had been the officer in charge of a substantial investigation involving theft and the handling of stolen goods. He claimed that a number of officers deliberately acted to punish or take revenge on him for his role in the investigation and attempted to prevent him from pursuing what the claimant perceived to be the appropriate steps in the investigation.

The alleged bullying took the form of shouting, demanding unnecessary reports, refusing appropriate expenses claims, and questioning the claimant's conduct unreasonably. In addition, the claimant was made to understand he was being punished on the basis of what he claimed was a false report relating to his claims for certain expenses. He ultimately was dismissed as officer in charge and threatened with defamation proceedings by another officer.

The material issue in this case related to foreseeability. The defendant's decision to defend this case was presumably on the basis that the claimant could not pass the threshold test of foreseeability. The threshold test was set out by Hale LJ in Hatton where she stated:

foreseeability depends on what the employer knows (or ought reasonably to know) about the individual employee … An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

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The claimant submitted that this statement was made in the context of a number of appeals arising out of claims for overwork rather than bullying and argued that in overwork cases, stress, presumably, is not inflicted deliberately.

Hatton and case law that has followed has not provided any specific guidance on the proper approach in a case where bullying or victimisation is alleged. Following Hatton, foreseeability must depend on the facts of each case.

On the facts, the treatment that the claimant had been subjected to amounted to bullying and this conduct, particularly the report that was likely to lead to the claimant being disciplined unfairly, was so serious that it was foreseeable that the claimant was likely to suffer a mental injury.

This case confirms that you cannot defend serious allegations such as harassment, bullying and victimisation by submitting that any mental injury was not foreseeable. The worse the behaviour, the more likely there will be a finding of foreseeability, even when a claimant really does not exhibit any signs of stress. Clark could have pursued a civil remedy under the Act as well as at common law and may have succeeded under both.

The claimant in Daniels v Commissioner of Police for the Metropolis (2006) EWHC 1622 did pursue a harassment claim under the Act as well as at common law. The decision was handed down in July 2006.

Daniels, a police officer, was unable to convince the judge that any alleged acts of harassment amounted to more than trivial isolated acts and the conduct did not amount to harassment under the Act or at common law.

Majrowski has certainly opened up avenues for claimant's solicitors to explore but whether a claimant pursues a harassment claim under the Act, at common law or both; let’s hope that the current interpretation of harassment and what it amounts to will assist in discouraging too much litigation in this area.

Michelle PennPartner, BLM London

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Time for a change - CPR

The 44th update to the Civil Procedure Rules (CPR) came into force on 6 April 2007 and has introduced changes in a large number of areas. One of the most significant changes and one of great benefit to police forces and public authorities are the changes made to Part 36 of the CPR.

The December 2005 edition of Keeping PACE, discussed the NHS Trust's adopted practice of settling litigated matters without making a payment into court, then required under Part 36.3 CPR. This practice was based on a policy decision that the money, being public funds, could be better used for the provision of patient services pending the trial of an action or a claimant's decision to accept the offer in settlement.

In Trustees of Stokes Pension Fund v Western Power Distribution (Southwest Plc) [2005] EWCA Civ 854, the Court of Appeal (CA) considered the need to pay money into court in conjunction with making a payment in. In that case, the defendant (a large power distribution company) made a Part 36 offer by letter to the claimants of £35,000 in settlement of the claim. This offer was not accepted by the claimant who subsequently issued proceedings against the defendant. At that stage, the defendant did not pay the sum of £35,000 into court but later paid £20,000 into court.

At trial, the claimant was awarded £25,600 in damages and at first instance, the trial judge held that the defendant's offer of £35,000 did not afford the defendant any protection in relation to costs because it had not been followed by a payment in as contemplated by CPR Rule 36.10.

In the CA, it was held that the CPR provided that an offer was to have the same costs consequences as a Part 36 payment into court but that the CPR gave no guidance as to how the discretion to do so should be exercised. The CA held that the offer to settle a money claim should usually be treated as having the same effect as a payment into court if some or all of the following four conditions were met:

1 The offer was expressed in clear terms.2 The offer was open for acceptance for at least 21 days and otherwise accorded with the

substance of a Calderbank offer. 3 Was a genuine offer. 4 The defendant was ‘good for the money’ when the offer was made.

The CA went on to state that, to the extent that any of those conditions were not satisfied, the offer should be given less weight than a payment into court for the purpose of a decision as to the payment of costs.

The difficulty with Stokes was that it provided little assistance as to what was meant by 'to the extent that any of these conditions is not satisfied, the offer should be given less weight' such that a defendant was still unsure as to when it was safe to rely on an offer without making a payment into court.

This rather uncertain area of law has now been clarified by the amendments made to Part 36 by the Civil Procedure Rule Committee. Payments into court were abolished under Part 36 on 6 April 2007 with all Part 36 settlements now being made by way of a Part 36 offer, whether the party making the offer is the claimant or defendant. Thus, whereas following Stokes, payments into court were not necessary provided, the defendant was considered 'good for the money'; from April 2007 all uncertainty has been removed as payments in will be abolished all together.

The amended Part 36 sets out the defendant's obligations at Part 36.4 under the heading, 'Part 36 Offers - Defendants' offers'. It explains at 36.4 that:

36.41 Subject to Rule 36.5(3) and Rule 36.6(1), a Part 36 offer by defendant to pay a sum of money in

settlement of a claim must be an offer to pay a single sum of money.2 But, an offer that includes an offer to pay all or part of the sum, if accepted, at a date later than 14

days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.

Thus, in order to ensure that an offer of settlement attracts the costs protection afforded under Part 36, the defendant must pay the accepted sum to the claimant within 14 days or the claimant will be entitled to enter judgment for the unpaid sum and the defendant will lose the costs protection afforded by Part 36. This is the case unless the offer states that payment will be made later than 14 days from the date of acceptance and the claimant accepts the offer on those terms.

Thus, the amended Part 36 removes the uncertainty of what was meant by the defendant being 'good for the money' and indeed the uncertainty of how many of the conditions under Stokes had to be satisfied. It seems that provided the offer of settlement is made in accordance with the requirements at 36.2(2) namely that it:

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i is in writing.ii states on its face that it is intended to have the consequences of a Part 36 offer.iii specifies a period of not less than 21 days within which the defendant will be liable for the

claimant's costs if the offer is accepted.iv states whether it relates to the whole of the claim or part of it.v states whether it takes into account any counterclaim.

the offer will be effective and the costs protection afforded under Part 36 will attach.

This is a welcome amendment to Part 36 as not only does it simplify this element of litigation, it allows police resources to be more appropriately used for the provision of other services. The only caveat to this change is the added administrative burden on police forces to ensure cheques are raised and received within 14 days from the date of acceptance to ensure costs protection under Part 36. However, this seems a small burden when balanced against the clear benefits of this new provision.

Nicky SparkesSolicitor, BLM London

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The admissibility of similar fact evidence

It is not uncommon for claimants in civil claims against the police to have criminal convictions. Those convictions, even if they are spent, can usually be referred to and this is often a very fruitful line of cross-examination for the defendant. Convictions are certainly relevant to credit and quantum (Thomas v Commissioner of Police of the Metropolis [1997] 2 WLR 593), but many judges are reluctant to allow them to be used as evidence of propensity. Whether jurors are able to perform the necessary mental gymnastics in cases where they are directed that a conviction goes to credit but not propensity is a moot point.

Evidence of propensity can, however, be introduced by way of similar fact evidence as confirmed in the House of Lords judgment in O'Brien v Chief Constable of South Wales Police [2005] HL 26. In that case, Mr O'Brien sued for misfeasance and malicious prosecution. He alleged that in conducting the investigation that led to his trial and conviction for murder, named officers had used specific operational methods which were oppressive, dishonest and unprofessional. He sought to support his allegations by adducing evidence to show that the same officers had used the same or similar methods in two earlier cases.

Their Lordships held that the test of admissibility of similar fact evidence in a civil action was ‘relevance’. Was the evidence to be adduced potentially probative of an issue in the case? If that test was met the judge should then make a case management decision as to whether to admit the evidence having regard to the overriding objective, the potential significance of the evidence, the balance of its probative value as against any unfair prejudice and the potential of the similar fact evidence to increase disproportionately the length of the trial. Their Lordships went on to find that the judge and the Court of Appeal was right to rule that the test had been satisfied and the evidence should be admitted.

In Tomlinson v Commissioner of Police of the Metropolis [2006] EWHC 2810 (QB) the commissioner used similar fact evidence to prove that the claimant had a propensity for causing unjustified confrontation with police officers and acted in an aggressive and confrontational manner.

On 29 June 1999 Mr Tomlinson (T) was arrested in Brixton for breach of the peace after a police officer had spoken to him about the manner of his driving in a multi-storey car park. The arresting officers all remarked that they had never seen anyone behave in such an aggressive manner over such a minor incident.

During the arrest, T was forcibly taken to the floor and handcuffed. He was detained at the police station for about an hour before being released without charge. About a month before this arrest, T had accepted £100,000 plus costs in settlement (on a no admission of liability basis) of another claim against the commissioner arising from a number of incidents between 1994 and 1997. All of the incidents involved unconnected officers from a number of different stations, none of whom had any previous knowledge of T.

In June 2002, T brought a claim alleging false imprisonment, assault and racist abuse. In the intervening period there had been other incidents involving T and other unconnected officers. Some of those incidents had led to arrests and prosecutions but others had not.

Although the claim appeared to be without merit, the commissioner viewed that it was likely that the fact of the previous settlement would become known to the jury and there was a real risk that they would come to the conclusion that there was 'no smoke without fire' and that this incident was part of a campaign of harassment (as it turned out the case was heard by a judge sitting alone).

However, when one looked closely at all of the incidents, both before and after 29 June 1999, a clear pattern emerged. In almost every case T would unnecessarily draw police attention to himself and then be confrontational and aggressive when challenged. On a number of occasions T had been arrested for committing minor road traffic offences and then refused to give his name and/or his address.

The commissioner therefore applied to amend his defence to positively allege that the claimant had intentionally started the altercation and then been unnecessarily aggressive and confrontational immediately prior to his arrest. In support of that allegation, 15 separate incidents were pleaded, including some of those that had formed the basis of the settled claim, incidents that had occurred since June 1999, incidents that had not resulted in an arrest and incidents that had only resulted in a complaint from T. The master allowed the amendment whilst making it clear that admissibility would ultimately be a matter for the trial judge.

At the trial, T applied to have the similar fact evidence excluded. The judge acceded to the application in part but allowed the commissioner to rely on eight of the incidents. Following O'Brien the judge then gave case management directions limiting the amount of evidence to be deployed. The commissioner called one officer from each of the eight incidents and, unlike the witnesses in respect of the June 1999 incident,

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their statements stood as evidence in chief. None of the eight incidents took more than 2½ hours (including cross-examination) to deal with.

At the conclusion of the trial the commissioner succeeded on all issues. The judge indicated that he had drawn the following conclusions from the similar fact evidence:

1 A police officer may expect reciprocal civility in dealing with members of the public but is not entitled to expect deference.

2 There were occasions when T deliberately and needlessly created a confrontation and in doing so was abusive and threatening to police officers.

3 T was a persistent complainer against police officers where such complaints were not justified.

Whilst it is true that there will be relatively few opportunities for the police to use similar fact evidence, as Tomlinson shows, it can be very effective. With this in mind defence lawyers should not be shy in requesting background information about the claimant from their clients.

Mark Ley-MorganBarrister, 3 Serjeants' Inn

Mark is ranked as a top police lawyer in Chambers & Partners and the Legal 500 and specialises in police, employment and discipline work.

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Health and safety and absence from work

Some 40 million working days are lost each year in the UK as a result of occupational ill health and injury. This results in an estimated annual cost to British society of £35bn, which equates to 3.5% of GDP. Surveys show that approximately two million people suffer from an illness which they consider to be caused or aggravated by their work.

The government has appointed Professor Dame Carol Black as National Director for Health and Work. Her remit is to spearhead initiatives, promoting and improving health in the workplace, ensuring that people with health conditions and disabilities are supported to enter, return to and continue in work. Her role is part of a package of reforms introduced by the Department of Health, Department of Work and Pensions and the Health and Safety Executive (HSE).

The police service has since 2002 taken active steps to reduce its sickness absence which has led to a reduction of approximately 25%. This reduction has been achieved through improved management of absence and fast tracking those absent to get back to work.

The Strategy for Healthy Police 2006 -2010 is currently being drafted in England and Wales. If accepted, it is hoped that the strategy will enable the police service to continue the downward trend in sickness absence.

HSE's inspection of police forces - England and Wales

A team of Health and Safety Executive Inspectors has been formed to lead inspection of police forces across England and Wales. It is hoped that this will lead to improved health, safety and welfare including sickness absence.

Seven inspections have been scheduled to take place during 2006 - 2007. The inspections will access the effectiveness of health and safety management systems by targeting specific issues, interviewing personnel, site inspections and reviewing documents. The HSE will not be focusing on operational activities preferring to look at the supporting systems and procedures to ensure the safe delivery of those activities.

Custody suites and risk to solicitors

Following a complaint from a duty solicitor to the HSE concerning risks to his safety involving him in attendance at police custody suites, both the Law Society and the Criminal Law Solicitors' Association have carried out an extensive consultation in an endeavour to ascertain the scale of the problem. Following the receipt of information from professional bodies and solicitors direct, the HSE is now satisfied that there are widespread health and safety issues concerned with the attendance of legal representatives at police stations.

Solicitors are frequently asked to attend clients in police custody suites without being given sufficient information to enable an assessment to be made concerning the risk of violence from clients. Many detained persons suffer from mental health issues and station custody sergeants may often be unaware of the nature and extent of a detainee's illness, and therefore are unable to take effective steps to minimise risks to the health and safety not only of solicitors but also of custody suite personnel.

Another issue concerns the lack of panic alarm devices in interview rooms. Consultations between a detained person and his/her legal adviser take place in private, in an interview room which is often locked. The legal adviser will not have access to a panic alarm device thereby being exposed to an unacceptable risk of personal violence.

Following discussions between the Home Office, Law Society and the Criminal Law Solicitors' Association, it has been agreed that the Home Office will draft a protocol to be agreed between the relevant parties, addressing the issues and setting out standards of communication and co-operation between the parties so as to minimise the risks to the health and safety, not only of legal advisers but also of custody suite personnel, whom in many instances will be civilian employees. Custody suite staff often have little, if no, training in how to assess and deal with individuals who may be predisposed to violence or suffering from a mental illness.

Police forces have responsibilities under the Provisions of the Health and Safety at Work Act to employees and persons not in their employment. It can be argued that by exposing legal advisers and their own staff to risks from detained persons, they make themselves vulnerable to criminal prosecution under the Act.

Françoise SnapePartner, BLM Birmingham

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Exemplary damages - why are they still with us?

The Court of Appeal (CA) has recently considered this unusual type of damages in Susan Rowlands v Merseyside Police [2006] EWCA Civ 1773. The CA decided as a matter of policy that it was right that such damages designed to punish a defendant should continue to be awarded even in vicarious liability situations.

It is perhaps unusual that the CA should maintain such a head of damages on the basis of policy arguments even more so when arguments on policy were at no stage invited or rehearsed during the appeal.

The appeals followed successful claims for false arrest, unlawful imprisonment, assault and malicious prosecution. The claimant had complained about a noisy party at her neighbours and after some alleged abuse to the arresting officer found herself arrested. She persuaded the jury that this was unlawful, she had been manhandled by her handcuffs and was maliciously prosecuted for technical offences of assaulting the officer in the execution of his duty to cover up the wrongdoing. She recovered £6350 in the county court, which seems about right for a claim of that type.

The striking point here was that it was the chief constable who was sued not the officer who arrested and assaulted her and who maintained the prosecution. The chief constable was blamed vicariously under the Police Act for the actions of the rogue officer, who was a constable. In this case the chief constable was in no way blameworthy - there were no accusations that a lack of training had contributed to what went on or that the officer's previous bad behaviour had been apparent but suppressed. The question the force wanted answers to on appeal was why should the chief constable be condemned in 'punishment damages' when he had done nothing wrong at all. The claimant could have sued the officer himself and requested exemplary damages based on the officer's means alone but chose not to.

This point had previously arisen in the case Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, when Lord Scott in obiter terms put forward a powerful argument that it was contrary to principle to punish a person whose behaviour is not in any way blameworthy.

The CA sidestepped Lord Scott, noting that the Law Lords did not hear arguments on that point and no other Lordships expressed their views. Moore-Bick LJ in the leading judgment here appeared to contradict another CA decision of Manley v Commissioner of the Police for the Metropolis [2006] EWCA Civ 879, in which exemplary damages were not awarded. He said that exemplary damages may not have been awarded because the combined sum of basic and aggravated damages were sufficient though that is not implicit in the judgment in Manley. It is apparent that this tribunal would have awarded exemplary damages as well in that case, if they had dealt with that appeal!

The CA have also sidestepped the view of the House of Lords in Broome v Cassell and Co Ltd [1972] AC 1027, where it was said that awards for exemplary damages should reflect the lowest figure for which any individual defendant could be held liable, and Rookes v Barnard where Lord Devlin pointed out that care must be taken to avoid excessive punishment.

Where does this leave us?

The present state of the law appears to be that where a claimant successfully sues a public body alleging oppressive, arbitrary and unconstitutional behaviour and claims exemplary damages this constitution of the CA would have an award made in almost every case.

There appears to be a current CA trend to use policy or purposive interpretation of legislation as a tool for finding against defendants in circumstances where there has been no argument about this before the court. This is a trend to be deplored as it makes appeals far less predictable.

Last word

It is not particularly reassuring to read from Moore-Bick LJ that:

I think that in a matter of this kind this court should be slow to disturb an understanding of the law that has existed for over 40 years at the highest level and on the basis of which many decisions at the highest level have proceeded.

Surely, an analysis of why this had been done was called for but that did not appear to take place.

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It remains to be seen which public authority will take up the cudgel and pursue a suitable case to the House of Lords on this point. In the meantime, it is likely that many claimants will receive windfall damages in these cases. Some express the view that this type of decision will help ensure that public authority staff are properly trained to respect the law and the civil liberties of members of the public.

It is very apparent that public servants and police officers have a very difficult balancing act to carry out and this sort of decision does nothing to curtail the 'compensation culture' and encourages unmeritorious claimants to try their lot. Particularly in connection to claims against the police, where Legal Services Commission funding remains, they have little to lose.

This claimant received an award of £6350 in the county court yet the CA saw fit to increase this to a little short of £20,000. This sum is payable from public money to punish the chief constable for his officer's behaviour and such the sum appears very much over the top, particularly when that sum would go some way to paying the wages of a constable or PCSO.

This appears an example of the need for some judges to get out more!

David HillPartner, BLM Liverpool

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Immunity

Does the doctrine of absolute immunity from suit extend to dispensing with probationers under Regulation 13?

The doctrine of absolute immunity from suit is now clearly established as part of the common law. It applies to judicial proceedings and other proceedings which are closely akin to them.

Under Regulation 13 of the Police Regulations 2003:

during his period of probation in the force the services of a constable may be dispensed with at any time if the Chief Officer considers that he is not fit physically or mentally to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable.

In Hasan v Commissioner of Police of the Metropolis (2006) the question arose as to whether dispensing with the probationer's services under Regulation 13 attracted absolute immunity and therefore prevented a claim being brought against the commissioner for race and/or religious discrimination arising out of the decision to dispense with the services of Mr Hasan.

Facts

Mr Hasan was a probationary police constable. He was appointed in August 2003 but in March 2005, shortly before he was due to be confirmed in his post, internal proceedings were instituted against him pursuant to Regulation 13 of the Police Regulations 2003. This led to a decision to dispense with his services which was taken on the 4 August 2005.

On the 19 August 2005, Mr Hasan instituted proceedings for various acts of racial and religious harassment and discrimination. In particular, he alleged that the decision to institute Regulation 13 proceedings and the subsequent decision to dismiss him amounted to direct discrimination and victimisation contrary to the Race Relations Act and the Employment Equality (Religion or Belief) Regulations 2003.

At a pre-hearing review before the Employment Tribunal (ET), the chairman held that the ET had no jurisdiction to hear the claim insofar as it related to the decision to dismiss on the grounds that the Regulation 13 proceedings were sufficiently judicial to attract common law protection of absolute immunity. The effect of that doctrine was to preclude any civil proceedings being taken in relation to the decision to dispense with Mr Hasan's services. Mr Hasan appealed against this decision.

Held

The Employment Appeals Tribunal (EAT) held that the ET had made an error. The doctrine of absolute immunity did not apply to the decision made under the Regulation 13 proceedings because the procedure adopted was not sufficiently similar to those adopted in a court of law. In particular, the EAT were persuaded that the proceedings were not adversary, the commissioner was under no obligation to find any specific facts, there was no calling of any witnesses, there was no cross-examination, no legal representation and no duty to give reasons. There were none of the trappings that would normally be associated with a court of law.

Accordingly, the EAT held that Mr Hasan was entitled to pursue his claims as a matter of law. Whether or not he will be successful with those claims is an entirely separate matter and a decision in that respect is awaited with interest.

Andrew McDonaldPartner, BLM London

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POCA - Give us your cash!

The civil recovery sections of the Proceeds of Crime Act (POCA) were introduced on 24 February 2003, providing a figure of £10,000 as the minimum limit for seizure. Parliament's intention was to enable police forces to use civil recovery methods of detention and forfeiture to supplement the criminal powers of confiscation under POCA, Misuse of Drugs Act and allied legislation. The powers were modelled on those in Ireland and the aim was to change the nature of the fight against crime by attacking the criminals' 'working capital' and thereby harming their activities.

The minimum limit of £10,000 was reduced to £5000 on 16 March 2004 and some commentators thought this would be problematical though in practice this does not seem to have been the case. However, this limit was reduced still further to £1000 on 31 July 2006 and while some concern about this step was expressed, this reduction is perceived to have worked.

There have been a number of cases on the legislation and amendments to POCA since the civil part's inception in 2003. This has assisted an understanding over and above the pre-existing cases under the drug trafficking legislation. Some anomalies under the magistrates’ rules have been rectified. In particular, the amendments have ended the curious position under POCA that led to the police being unable to appeal the decision of the Magistrates’ Court except by case stated or judicial review. The Serious Organised Crime and Police Act (SOCPA - section 101) allows an appeal by either side. The Crown Court tribunal now make any order it thinks appropriate on appeal. This may assist the police where appeals are brought by the aggrieved party with little or no merit.

Again, one of the difficulties with the tight 48 hour time limit from seizure to detention hearing was that weekends or bank holidays made it essential that out of hours cover was available and this could become stretched. SOCPA section 100 has introduced some flexibility to this position as weekends and bank holidays no longer count for the purposes of time under the Act. Therefore, it is often an operational decision to hold the hearing out of normal hours.

The drug trafficking cases were relied upon in the early days under POCA to good effect and that continues. Cases concern a number of common scenarios encountered when monies are seized. Firstly 'smurfing' where the 'common source or destination' test was applied and magistrates were to look at the reality of the situation when there were arguments as to whether the minimum limit was triggered in the event that monies seized from more than one individual could be added together (Customs and Excise Commissioners v Duffy, Gunning and Attawia [2002] EWHC 425 (Admin).

The case of Bassick ((1993) 161 JP 377) continues to prove useful in that direct evidence of a link to crime is not necessary and inferences can be drawn from lies to assist in proving unlawful conduct. This case has been supplemented by Muneka v Customs and Excise [2005] EWHC 495 (Admin). This case made it clear that there was no reverse burden of proof in operation to the effect that the respondent had to prove that the monies were legitimate. Evidence that pointed to the unlawful conduct was not needed, rather, lies about the source of monies and their destination could allow a court on the balance of probability to conclude that an inference could be drawn that the source of the money was criminal activity. It has been argued that the more recent case of R (on the application of the Director of the Assets Recovery Agency) v Green [2005] EWHC 3168 Admin, alters that position in that it is necessary for the applicant to set out the particular kind of unlawful conduct and a case cannot be sustained solely on the basis that a respondent has no identifiable income to warrant his lifestyle. In fact, this case revolves around chapter 5 of POCA not chapter 3, which is relevant for a magistrates' application and different tests apply. The judgment also refers to proceedings brought by the Assets Recovery Agency not the police or customs. Also, the judgment itself suggests caution is needed when drawing parallels across the different sets of proceedings and the subject matter of magistrates' proceedings is cash, as widely defined, whereas the Agency application would include other assets as well.

A further recent case of importance is The Director of the Assets Recovery Agency v Olupitan and Makinde [2007] EWHC 162 (QB). Again, care must be taken as this case relates to an application for a recovery order under chapter 5 rather than 3. However, some helpful points are made by Langley J in his judgment that are capable of being used to good effect in arguments under chapter 3. In particular, his analysis of the burdens of proof and the respondent's lies, discussion over money laundering definitions and use of further width for the respondent's criminal conviction in connection to his making the recovery order are worthy of consideration in the wider context.

The case of The Director of The Assets Recovery v John and Lord [2007] EWHC 360 (QB) is the first reported final hearing on an application for a recovery order in the High Court. Mr Justice Tugendhat's judgment is a helpful further consideration of the law under chapter 5. It contains some material that provides clarification on the arguments over the definition of property obtained through unlawful conduct, namely section 242 and the 'but for test'. Time will tell how the law on this area of POCA evolves.

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Two Merseyside police cases have assisted the interpretation of the direction time limits under the Magistrate Courts' Rules and the effect of seizures and their time limits. The case of The Chief Constable of Merseyside Police v Reynolds ([2004] EWHC) decided that the directions under the Magistrates’ Rules where the word 'may' was employed were discretionary so late service where no prejudice was caused was not fatal to a further application. The Chief Constable of Merseyside Police v Hickman [2006] EWHC 451 (Admin) confirmed that the 48 hour time limit ran from seizure under POCA and it was possible to re-seize so long as the monies were above the requisite minimum limit. It therefore remains possible for the monies to be seized under the Police and Criminal Evidence Act and retained by the police lawfully whilst criminal matters are investigated and then seized under POCA and thereafter detained and forfeited under POCA.

The practical reality of this legislation is that a good deal of co-operation is needed from the legal advisors and magistrates to ensure the regime works smoothly. The police are reliant on assistance from other agencies such as Inland Revenue and Customs to obtain evidence.

POCA has been successful legislation in attempting to thwart criminal activity. Forces have benefited through hypothecation. Many drug dealers remain amazed to find out that not just their drugs are being seized but their money. Forfeiture and confiscation orders are very effective tools against criminal activity of all types.

David HillPartner, BLM Liverpool

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Road Traffic Act: are you covered?

Miller v Hales (1) Ensign Motor Policies at Lloyds(2) [2006] EWHC 1529

This case analyses the compulsory insurance provisions of the Road Traffic Act, and how they apply in circumstances where police authorities, exempted from the requirement to obtain motor insurance, nevertheless choose not to self insure.

Section 143(1) of the Road Traffic Act 1988 requires that a person:

a must not use a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act, and

b must not cause or permit any other person to use a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that other person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act.

The exceptions to these requirements are set out in section 144, and include at section 144(2)(b):

… a vehicle owned by a police authority or the Receiver for the Metropolitan Police district, at a time when it is being driven under the owner's control, or to a vehicle at a time when it is being driven for police purposes by or under the direction of a constable, or by a person employed by a police authority, or employed by the Receiver.

Accordingly, there is no obligation upon police authorities to insure their motor vehicles. However, many police authorities choose to have motor insurance.

The facts

The claimant, PC Miller, a constable holding office with Kent Police, was involved in a high speed chase with the first defendant, Ricky Hales, who was riding a stolen motorcycle. Hales eventually got off the motorcycle and attempted to escape by foot. The claimant got out of his police vehicle and pursued Hales, eventually catching up with him. Hales escaped once more and managed to gain entry to the police vehicle with the intention of driving off. Hales locked the doors, which prevented the claimant from gaining access. Hales then ran the claimant down, causing the claimant to sustain serious injuries.

The obligations upon the motor insurer

The claimant issued proceedings against Hales. The proceedings also named as a defendant the motor insurers of Kent Police, Ensign Motor Policies at Lloyds. The claimant argued that, whilst Ensign had no obligation to indemnify Hales under the policy because Hales was not an authorised driver, nevertheless, section 151 of the Road Traffic Act 1988 required Ensign to satisfy a judgment otherwise the claimant would be left with no right of redress in civil proceedings, and sought a declaration from the High Court on this issue.

The issues

Section 145(4)(a) of the Act provides that a motor policy shall not be required:

to cover liability in respect of the death, arising out of and in the course of his employment, of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment, or Section 145(4A) of the Act provides that:

In the case of a person:

a carried in or upon a vehicle, orb entering or getting on to, or alighting from, a vehicle,

the provisions of paragraph (a) of subsection (4) above do not apply unless cover in respect of the liability referred to in that paragraph is in fact provided pursuant to a requirement of the Employers' Liability (Compulsory Insurance) Act 1969.

On the basis of the claim presented, insurers argued that the claimant was an employee who was injured whilst acting in the course of his employment, and therefore his claim was not a liability for which insurers had to provide an indemnity. The claimant argued that the liability fell within the exception provided by

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section 145(4A), in that he sustained injuries in the course of his employment, but whilst entering or getting on to the police vehicle.

Some 20 days before trial, the claimant raised a secondary argument, namely that he was not an employee but a Crown officer, and consequently neither section 145(4)(a) or section 145(4A) applied. Insurers response was to argue that police constables should be treated as 'quasi-employees', since not to would leave a police authority, which chose to insure when it was not obliged to, in a worse position.

Judgment

Mr Justice Jack held that a police officer was an office holder rather than an employee, and therefore found in favour of the claimant. Mr Justice Jack further held that:

Mr Miller is entitled to a declaration that the second defendant insurers are obliged to pay whatever the first defendant, Ricky Hales, is bound to pay under the judgment entered against him.

However, in dealing with the issue of costs, Mr Justice Jacks made an adverse costs order against the claimant for the late amendment to his pleadings which changed the status of the claimant from employee to Crown officer. As the claimant was not successful in his assertion that the provisions of section 145(4A) applied the judge ordered the claimant to pay the majority of the defendant's costs prior to the amendment. Mr Justice Jack held that, even if it could be said that the claimant had been entering or getting on to the police vehicle, it had not been with the intention of becoming a passenger, and therefore had he been regarded as an employee, his claim would have failed.

Ian WalkerSolicitor, BLM London

BLM acted for Kent PoliceBLM acknowledge the assistance of Phil Humm Technical Claims Manager, Strategic Claims, QBE.

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Balancing budgets and civil claims

Police authorities and their chief constables have recently finalised their precept requests and a number of police forces are having to make cuts to balance the budget. In the aftermath of the doomed Home Office proposals and the monies, time and resources that were expended, this is regrettable as it will mean that front line policing is placed under pressure.

One area of significant expenditure is legal costs, whether on force solicitors, BLM, or one of their competitors in connection with the defence of civil claims, the most expensive of which are generally those involving allegations which lead to a jury trial. There have been recent changes to trial by jury in criminal cases and a QC, William Waldron from Exchange Chambers in Liverpool, who has substantial experience in these type of cases, has recently called for jury trials in such civil claims against the police to be curtailed.

His sensible argument is that judges are far better placed to deal with such cases and the costs incurred in a jury's involvement cannot be justified. In this period when budgets are stretched BLM echos his call for the government to do the sensible thing and limit the claimant's rights to a jury in these cases. BLM’s head of policy development, Alistair Kinley, has been tasked with taking this up at the highest level.However, recent experience has shown the writer that juries do have some advantages, illustrated by Kamara v Merseyside Police which concluded on Valentine's Day 2007.

Public funding had been discharged after the Legal Services Commission agreed with BLM comments that PACE breaches alone should not allow the case on false arrest and malicious prosecution to have public backing to trial, especially as £1500 had been paid in with the offer of limited costs and no settlement. The claimant pursued the case to trial himself. The jury had the measure of him and his case. The judge recommended to the jury a bracket of £250 to £750 for damages for the fact that his custody review had not taken place as it should have in breach of his rights but the jury knew better and awarded him the princely sum of 2 pence! An award of 80% of the force's costs followed.

Whilst a rare award, it does show that a jury on occasion will do things a judge would not dare to and show society's contempt for the claimant's case. Hopefully, the claimant will have got the message.

Stuart FurnissAssociate, BLM Liverpool

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The Human Rights Act and failure to protect

Van Colle v Chief Constable of Hertfordshire Police

The Court of Appeal has upheld the judgment of Cox J in Van Colle v The Chief Constable of the Hertfordshire Police [2007] EWCA Civ 325, in which the police were ordered to pay damages under the Human Rights Act 1998 to the parents of Giles Van Colle, a 25-year-old optometrist who was murdered on 22 November 2000. Mr Van Colle had been due to give evidence against a former employee, Daniel Brougham, in a theft prosecution. Brougham threatened Mr Van Colle and then murdered him a week before the trial. The Van Colles successfully claimed that police officers had failed properly to protect their son. The decision, the first of its kind, is both legally and practically important and seems to mark a significant departure from the common law principles established - and recently re-affirmed - by the House of Lords in Hill v Chief Constable of South Yorkshire [1989] 1 AC 53, and Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495.

The facts

The facts were, to say the least, somewhat unusual. Although the amounts at stake were relatively modest (around £4000 worth of optical equipment had been stolen from various businesses), Brougham seems to have been determined to avoid conviction at any cost, embarking on a campaign of bribery, threats and intimidation against witnesses, culminating in Mr Van Colle's murder.

In August and October 2000 Brougham made two attempts to bribe one of the other witnesses and made a threatening telephone call to Mr Van Colle, telling him he'd be in danger if he gave evidence. These matters were reported to the officer in the case who took statements and submitted them to the CPS. Brougham also set fire to a witness' car and business premises in North London. The witness telephoned the same officer, worried that the fires may have been started by Brougham (even though local fire officers had told him they thought the fires were accidental). The officer tried to reassure the witness but took no further steps, apparently content to let the Metropolitan Police handle the matter.

On the 9 November 2000 Brougham made another threatening call to Mr Van Colle. He reported it to the officer in the case, who arranged to meet Mr Van Colle and take a statement from him on the 23 November 2000. Mr Van Colle was murdered before the meeting could take place.

After the murder, it emerged that Brougham had earlier tried to bribe two other witnesses and was probably responsible for setting fire to Mr Van Colle's car in September 2000 (thought, by the Van Colle family, to have been caused by an electrical fault, and not reported to the police at the time).

The officer in the case was charged with various disciplinary offences, and found guilty of failing to properly investigate offences of witness intimidation, failing to analyse evidence and failing to arrest Mr Brougham. He was fined.

The decision

Both Cox J and the Court of Appeal (CA) rejected the defendant's argument that claims based on operational police errors should only succeed in exceptional circumstances (as would be the position, it was argued, at common law). They held that the investigating officer knew or should have known that Mr Van Colle's life was at risk, and that there were steps he should have taken which would, or might have, prevented the murder. In judging whether the risk was sufficiently grave to activate a police officer's duty under Articles 2 and 8 they held that a witness in a criminal trial was in a different - and more vulnerable - position from an ordinary member of the public. They decided that a claim for damages could succeed where there was a reasonable chance that death could have been avoided (though on the facts they held that the murder would not in fact have occurred if the police had acted competently). Cox J awarded damages of £50,000. The CA reduced the award to £25,000, to bring the award more into line with European cases.

The consequences

Although the damages were modest, the case may well have far-reaching practical and financial consequences for the police. First, operational decisions of busy police officers and the allocation of police resources may come under much greater scrutiny from the courts than ever before. It will cost the police time and money to research and defend these types of claims.

Secondly, resources will no doubt have to be diverted towards developing and implementing - or at least revisiting - strategies for protecting both witnesses and other vulnerable members of the public (victims of domestic violence, perhaps).

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And finally, while damages were low in this case, there may be circumstances in which a failure to act compatibly with the right to life might lead to a serious and disabling injury rather than death. Personal injury claims for catastrophic brain injuries, for example, can run into many millions of pounds. There seems no reason in principle why claims under the Human Rights Act 1998 could not do the same.

For all of these reasons, Hertfordshire police are no doubt carefully considering whether or not to appeal to the House of Lords.

Edward BishopBarrister, 1 Chancery Lane

Edward specialises in personal injury, clinical negligence and police work and is noted as a leader in all 3 fields by the Legal 500.

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DisclaimerThis document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case.

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