RATHBAND V ST GEORGE’S HEALTHCARE NHS TRUST [2015] EWHC 181
Surrey Personal Injury – Actions against the Police
FACTS: -
The Claimant, PC Rathband, a serving police officer was shot in the head by Raoul Moat, a criminal who had shot and injured his former partner and killed her current partner. He suffered horrific injuries including total blindness. Later he committed suicide having begun an action against Northumbria police.
The Claimant continued the action, saying that the police owed the police constable a duty of care to warn him of the threats made by Moat, that they were negligent in failing to issue an immediate warning, and that if an appropriate warning had been issued, he would not have been exposed to the danger which Raoul Moat presented. What was required was an immediate alert to all police officers that Moat had made threats to kill.
The defendant Chief Constable, who was vicariously responsible for the actions of the relevant police officers, denied that any such duty of care existed, denied in any event that it was negligent not to issue an immediate warning in the few minutes following Moat's call, and did not accept that doing so would have prevented the shooting of the police constable.
JUDGMENT: -
Justice Males considered the evidence and the facts in this case. There was expert evidence given on police practice and strategy by two retired police officers. He went on to describe how the police force was structured to deal with a major incident of this nature. The previous shooting incident had occurred in the very early morning of the 3rd July 2010, and PC Rathband had been well aware of what had happened. He was also aware that Moat was a dangerous criminal. Males J said that there was no reason to think that he would have approached Moat deliberately, and he accepted that as an experienced police officer PC Rathband would have known what to do. Initially he was sent to look for a vehicle, which was known to be owned by an associate of Moat, although he himself was not involved in the manhunt. Just after midnight on the 4th July 2010, Moat made a 999 call to the police and made threats to kill police officers. At that time, a Superintendent Farrell was responsible for responding to this information. She wanted to analyse the information in the call, and see if Moat’s location could be tracked. There was no dispute that these were sensible steps, but the issue was whether an interim warning should have been sent out immediately before these steps were taken. Moat’s call came in at 00.32.32 and came to an end at 00.34.37. During the telephone conversation, at 00.36.10, the police obtained an approximate location for Moat, but it was too wide to be of any use. It was at 00.44.00 that PC Rathband radioed in to say that he had been shot.
Males J said that he accepted Superintendent Farrell’s evidence to the effect that she had considered whether to send out an alert to police officers, but had decided not to do so. She wanted to try and locate Moat through his phone, and analyse what he had said. That would affect the kind of warning she would send out. Given the timing of each of the events, Superintendent Farrell had something in the order of 7 ½ minutes to make the decision to issue a warning to police officers.
Moat had simply run up to PC Rathband’s car and shot him twice. At 00.49.55 Superintendent Farrell instructed all police officers to return to their police stations.
A subsequent report by the police had found that an immediate warning could have been sent out by the police. A subsequent amendment to the Safe Patrolling Procedures said that in interim warning should be considered.
Males J considered the law on the subject. The first issue was whether the Defendant owed PC Rathband a relevant duty of care.
He referred to the following cases: -
The requirement of foreseeability was easily satisfied. The second requirement, proximity, needed to be viewed differently according to the way in which the claim was put. The cases established that a claim by a police officer for injury suffered in the course of duty might be put in two ways. The first was that a defendant Chief Constable was vicariously liable for the negligence of an individual police officer (in this case, that would be Superintendent Farrell) for whom he or she was responsible. In that case, what mattered is whether there was a relationship of proximity between (in this case) PC Rathband and Superintendent Farrell. Superintendent Farrell was not supervising PC Rathband, and had not spoken with him or deployed him. He was not part of the operation to find Moat. They were merely officers in the same force. The claimants did not challenge this analysis. However, the second way in which such a claim might be put, and the way in which the Claimants did put the claim, was that the relationship between a Chief Constable and an officer in his force was a relationship akin to employment, so that a Chief Constable owed the officer a non-delegable duty of care to devise and operate a safe system of work. This way of putting the case avoided the need to establish a relationship of proximity between individual officers. The relevant relationship was between the Chief Constable and the injured officer, which was itself a relationship of proximity. Males J said that at least so far as this second way of putting the case was concerned, the requirements of foreseeability and proximity were satisfied.
The real issue between the parties was the third requirement, whether in the circumstances of this case the imposition of a duty was fair, just and reasonable. Males J referred to the following cases: -
Males J would summarise the law as follows: -
(1) A Chief Constable owed to officers within his force a non-delegable duty to take reasonable care for their safety by ensuring both the provision and operation of a safe system of work.
(2) The duty as a quasi employer might, however, be excluded as a matter of public policy (or because it would not be fair, just and reasonable for such a duty to exist) by reference to the Hill principle.
(3) The duty would be excluded, or at least is more likely to be excluded, in cases involving operational decisions concerning the investigation or prevention of crime which were taken under pressure, whether of time or due to other circumstances.
(4) What mattered, therefore, was the nature of the decision that fell to be made.
The decision which Superintendent Farrell had to make in the present case involved a reaction to an unexpected and unforeseeable 999 call in the course of a complex and challenging police manhunt for a highly dangerous criminal wanted for murder. The issue of an immediate warning was not a "no brainer". On the contrary, the decision whether to issue an immediate warning and, if so, in what terms, was one which required careful albeit rapid thought and a weighing of the possible courses of action and their likely consequences. It fell clearly within the scope of the core Hill principle. It was an operational decision which had to be taken under considerable pressure of time. It involved the weighing of a number of factors, including public safety as well as the safety of police officers. It was directly concerned with the investigation and prevention of crime. To impose a duty of care owed to police officers in these circumstances would plainly give rise to a risk of defensive policing and would inhibit rapid decision making. Consequently, it would not be fair, just and reasonable for a duty of care to be owed in the circumstances of this case.
There might be in appropriate circumstances be a claim under the Human Rights Act 1998 for infringement of Article 2 of the European Convention on Human Rights (violation of a positive obligation to protect the right to life) but the requirements for such a claim were demanding (Osman v United Kingdom (2009) 29 EHRR 245). So too were the requirements for a private law claim under domestic law for misconduct in public office. It was not suggested that either of these claims was possible in the present case. The only claim advanced was in the tort of negligence, for which a private law duty of care was an essential element of the cause of action, but in my judgment there was on the facts of this case no such duty.
Consequently, the claim would be dismissed but Males J would consider the issue of whether Superintendent Farrell was negligent in not issuing an alert to police officers sooner.
First of all, the ability of the police to perform their duties on the night in question would be severely affected if a warning were given. Officers would inevitably want more information about the threat which they faced and about what they should do, for example in remaining visible to deter outbreaks of violence and provide assistance to those in need or in responding to emergency calls. There would be a potentially chaotic flood of calls to the police communications centre seeking further information or instructions, not only from individual officers but from supervisors concerned for the officers under their command. The witnesses who expressed these concerns were senior police officers of very great experience of policing in Northumbria.
The views expressed by the witnesses fell into three broad categories. One senior police officer went so far as to say it would have been "foolhardy" to issue a warning without first listening to the recording and seeking cell site analysis. There was nothing in what was reported to Superintendent Farrell to suggest that Moat was likely to strike immediately. The second was that while some commanders might have issued an immediate warning, it was not negligent not to do so. This was an unprecedented situation in which, taking into account the considerations identified above, it was reasonable to want the best available information. The only witness in the third category was the claimant's expert. His view was that the need for an immediate warning was obvious from the moment that Superintendent Farrell heard of the threat and that no other conclusion was possible. Males J regarded his view as of little or no weight. Such policing experience as he had was outdated, his experience was not relevant and he admitted that he could express no opinion on Superintendent Farrell's conduct or decision making in that capacity, and he had no real understanding of the potential adverse impact of issuing a warning.
The consequence was that there was a real weight of police evidence to the effect that the issue of a warning would have involved at least some adverse consequences for ordinary police operations at a very busy time and that a number of senior officers with substantial relevant experience of command in firearms operations would regard the decision not to issue an immediate warning as a reasonable exercise of judgment.
The Claimants had changed their formulation of what should have been sent out as a warning to police officers. That suggested that although the terms of a warning could have been formulated, they did need at least some thought, as well as needing to be communicated in precise terms to the radio officer who would actually issue the warning to officers on duty. It would have been reasonable for this process to have taken at least a few minutes.
Males J said that it was unrealistic to suggest that a warning should or even could have been issued earlier that 00.40.12. In the event, therefore, Superintendent Farrell had only 3½ minutes to avert the shooting of PC Rathband. Males J was extremely doubtful whether it would have been practicable within this short time to give even brief consideration to the pros and cons issuing a warning, to formulate its terms with proper thought for the likely consequences, to give the necessary instructions including briefing radio communication officers how they should deal with the enquiries which would inevitably be received, and then to have those instructions implemented. Even if it was practicable, the failure to do all these things in sufficient time before the expiry of 3½ minutes to give PC Rathband time to move away (assuming for the moment that he would have done so) cannot possibly be regarded as negligent. The decision of Superintendent Farrell was not negligent. That was not to say that the conduct of the operation to locate Moat, or even the response to the 999 call which he made, was flawless in every respect, but it was clear that these failings made no difference to what happened to PC Rathband.
There was also the issue of whether the issue of a warning would in fact have averted the injuries which PC Rathband suffered. This issue involved a degree of speculation as nobody could say with any confidence what PC Rathband would have done. The content of any warning was important because it would be likely to play a critical role in determining what PC Rathband would have done in response. The Claimant’s case, as indicated above, was limited to advice to officers to be vigilant at all times, coupled with the statement of a belief that Moat had made his call from somewhere within a certain area. Males J was not persuaded that PC Rathband would probably have moved away from the location where he was parked, or at least that he would have done so almost immediately. Given what was now known about the way in which Moat did in fact carry out his attack, it was doubtful whether additional vigilance would have made any difference. The time between the issue of any warning and the approach of Moat would have been, on any view, no more than a minute, and probably considerably less, even if it was assumed that the warning would have been broadcast before PC Rathband was shot. So if PC Rathband was going to avoid the shooting, he would have had to react almost instantaneously by moving away from the position where he was parked. Males J could find that it is more likely than not that he would have done so.
The Claimants had also argued that the police vehicles should have been double crewed before the start of PC Rathband’s shift. However, there was at this stage no information which could reasonably have caused the police to believe that Mr Brown had been shot because he was a police officer, let alone that Moat was "hunting for officers", or which would or should have caused the police to require that police vehicles should be double crewed. Nor did that situation change at any time before the 999 call.
The claim would fail.
Surrey Personal Injury – Actions against the Police
FACTS: -
The Claimant, PC Rathband, a serving police officer was shot in the head by Raoul Moat, a criminal who had shot and injured his former partner and killed her current partner. He suffered horrific injuries including total blindness. Later he committed suicide having begun an action against Northumbria police.
The Claimant continued the action, saying that the police owed the police constable a duty of care to warn him of the threats made by Moat, that they were negligent in failing to issue an immediate warning, and that if an appropriate warning had been issued, he would not have been exposed to the danger which Raoul Moat presented. What was required was an immediate alert to all police officers that Moat had made threats to kill.
The defendant Chief Constable, who was vicariously responsible for the actions of the relevant police officers, denied that any such duty of care existed, denied in any event that it was negligent not to issue an immediate warning in the few minutes following Moat's call, and did not accept that doing so would have prevented the shooting of the police constable.
JUDGMENT: -
Justice Males considered the evidence and the facts in this case. There was expert evidence given on police practice and strategy by two retired police officers. He went on to describe how the police force was structured to deal with a major incident of this nature. The previous shooting incident had occurred in the very early morning of the 3rd July 2010, and PC Rathband had been well aware of what had happened. He was also aware that Moat was a dangerous criminal. Males J said that there was no reason to think that he would have approached Moat deliberately, and he accepted that as an experienced police officer PC Rathband would have known what to do. Initially he was sent to look for a vehicle, which was known to be owned by an associate of Moat, although he himself was not involved in the manhunt. Just after midnight on the 4th July 2010, Moat made a 999 call to the police and made threats to kill police officers. At that time, a Superintendent Farrell was responsible for responding to this information. She wanted to analyse the information in the call, and see if Moat’s location could be tracked. There was no dispute that these were sensible steps, but the issue was whether an interim warning should have been sent out immediately before these steps were taken. Moat’s call came in at 00.32.32 and came to an end at 00.34.37. During the telephone conversation, at 00.36.10, the police obtained an approximate location for Moat, but it was too wide to be of any use. It was at 00.44.00 that PC Rathband radioed in to say that he had been shot.
Males J said that he accepted Superintendent Farrell’s evidence to the effect that she had considered whether to send out an alert to police officers, but had decided not to do so. She wanted to try and locate Moat through his phone, and analyse what he had said. That would affect the kind of warning she would send out. Given the timing of each of the events, Superintendent Farrell had something in the order of 7 ½ minutes to make the decision to issue a warning to police officers.
Moat had simply run up to PC Rathband’s car and shot him twice. At 00.49.55 Superintendent Farrell instructed all police officers to return to their police stations.
A subsequent report by the police had found that an immediate warning could have been sent out by the police. A subsequent amendment to the Safe Patrolling Procedures said that in interim warning should be considered.
Males J considered the law on the subject. The first issue was whether the Defendant owed PC Rathband a relevant duty of care.
He referred to the following cases: -
- Caparo Industries Plc v Dickman [1990] 2 AC 605, 617-8
- Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, [2014] PIQR 238.
The requirement of foreseeability was easily satisfied. The second requirement, proximity, needed to be viewed differently according to the way in which the claim was put. The cases established that a claim by a police officer for injury suffered in the course of duty might be put in two ways. The first was that a defendant Chief Constable was vicariously liable for the negligence of an individual police officer (in this case, that would be Superintendent Farrell) for whom he or she was responsible. In that case, what mattered is whether there was a relationship of proximity between (in this case) PC Rathband and Superintendent Farrell. Superintendent Farrell was not supervising PC Rathband, and had not spoken with him or deployed him. He was not part of the operation to find Moat. They were merely officers in the same force. The claimants did not challenge this analysis. However, the second way in which such a claim might be put, and the way in which the Claimants did put the claim, was that the relationship between a Chief Constable and an officer in his force was a relationship akin to employment, so that a Chief Constable owed the officer a non-delegable duty of care to devise and operate a safe system of work. This way of putting the case avoided the need to establish a relationship of proximity between individual officers. The relevant relationship was between the Chief Constable and the injured officer, which was itself a relationship of proximity. Males J said that at least so far as this second way of putting the case was concerned, the requirements of foreseeability and proximity were satisfied.
The real issue between the parties was the third requirement, whether in the circumstances of this case the imposition of a duty was fair, just and reasonable. Males J referred to the following cases: -
- Hill v Chief Constable of West Yorkshire [1989] 1 AC 53
- Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495
- Van Colle v Chief Constable of the Hertfordshire Police, Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225
- Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732
- Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, 487
- Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700
- Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550
- Hughes v National Union of Mineworkers [1991] 4 All ER 278
Males J would summarise the law as follows: -
(1) A Chief Constable owed to officers within his force a non-delegable duty to take reasonable care for their safety by ensuring both the provision and operation of a safe system of work.
(2) The duty as a quasi employer might, however, be excluded as a matter of public policy (or because it would not be fair, just and reasonable for such a duty to exist) by reference to the Hill principle.
(3) The duty would be excluded, or at least is more likely to be excluded, in cases involving operational decisions concerning the investigation or prevention of crime which were taken under pressure, whether of time or due to other circumstances.
(4) What mattered, therefore, was the nature of the decision that fell to be made.
The decision which Superintendent Farrell had to make in the present case involved a reaction to an unexpected and unforeseeable 999 call in the course of a complex and challenging police manhunt for a highly dangerous criminal wanted for murder. The issue of an immediate warning was not a "no brainer". On the contrary, the decision whether to issue an immediate warning and, if so, in what terms, was one which required careful albeit rapid thought and a weighing of the possible courses of action and their likely consequences. It fell clearly within the scope of the core Hill principle. It was an operational decision which had to be taken under considerable pressure of time. It involved the weighing of a number of factors, including public safety as well as the safety of police officers. It was directly concerned with the investigation and prevention of crime. To impose a duty of care owed to police officers in these circumstances would plainly give rise to a risk of defensive policing and would inhibit rapid decision making. Consequently, it would not be fair, just and reasonable for a duty of care to be owed in the circumstances of this case.
There might be in appropriate circumstances be a claim under the Human Rights Act 1998 for infringement of Article 2 of the European Convention on Human Rights (violation of a positive obligation to protect the right to life) but the requirements for such a claim were demanding (Osman v United Kingdom (2009) 29 EHRR 245). So too were the requirements for a private law claim under domestic law for misconduct in public office. It was not suggested that either of these claims was possible in the present case. The only claim advanced was in the tort of negligence, for which a private law duty of care was an essential element of the cause of action, but in my judgment there was on the facts of this case no such duty.
Consequently, the claim would be dismissed but Males J would consider the issue of whether Superintendent Farrell was negligent in not issuing an alert to police officers sooner.
First of all, the ability of the police to perform their duties on the night in question would be severely affected if a warning were given. Officers would inevitably want more information about the threat which they faced and about what they should do, for example in remaining visible to deter outbreaks of violence and provide assistance to those in need or in responding to emergency calls. There would be a potentially chaotic flood of calls to the police communications centre seeking further information or instructions, not only from individual officers but from supervisors concerned for the officers under their command. The witnesses who expressed these concerns were senior police officers of very great experience of policing in Northumbria.
The views expressed by the witnesses fell into three broad categories. One senior police officer went so far as to say it would have been "foolhardy" to issue a warning without first listening to the recording and seeking cell site analysis. There was nothing in what was reported to Superintendent Farrell to suggest that Moat was likely to strike immediately. The second was that while some commanders might have issued an immediate warning, it was not negligent not to do so. This was an unprecedented situation in which, taking into account the considerations identified above, it was reasonable to want the best available information. The only witness in the third category was the claimant's expert. His view was that the need for an immediate warning was obvious from the moment that Superintendent Farrell heard of the threat and that no other conclusion was possible. Males J regarded his view as of little or no weight. Such policing experience as he had was outdated, his experience was not relevant and he admitted that he could express no opinion on Superintendent Farrell's conduct or decision making in that capacity, and he had no real understanding of the potential adverse impact of issuing a warning.
The consequence was that there was a real weight of police evidence to the effect that the issue of a warning would have involved at least some adverse consequences for ordinary police operations at a very busy time and that a number of senior officers with substantial relevant experience of command in firearms operations would regard the decision not to issue an immediate warning as a reasonable exercise of judgment.
The Claimants had changed their formulation of what should have been sent out as a warning to police officers. That suggested that although the terms of a warning could have been formulated, they did need at least some thought, as well as needing to be communicated in precise terms to the radio officer who would actually issue the warning to officers on duty. It would have been reasonable for this process to have taken at least a few minutes.
Males J said that it was unrealistic to suggest that a warning should or even could have been issued earlier that 00.40.12. In the event, therefore, Superintendent Farrell had only 3½ minutes to avert the shooting of PC Rathband. Males J was extremely doubtful whether it would have been practicable within this short time to give even brief consideration to the pros and cons issuing a warning, to formulate its terms with proper thought for the likely consequences, to give the necessary instructions including briefing radio communication officers how they should deal with the enquiries which would inevitably be received, and then to have those instructions implemented. Even if it was practicable, the failure to do all these things in sufficient time before the expiry of 3½ minutes to give PC Rathband time to move away (assuming for the moment that he would have done so) cannot possibly be regarded as negligent. The decision of Superintendent Farrell was not negligent. That was not to say that the conduct of the operation to locate Moat, or even the response to the 999 call which he made, was flawless in every respect, but it was clear that these failings made no difference to what happened to PC Rathband.
There was also the issue of whether the issue of a warning would in fact have averted the injuries which PC Rathband suffered. This issue involved a degree of speculation as nobody could say with any confidence what PC Rathband would have done. The content of any warning was important because it would be likely to play a critical role in determining what PC Rathband would have done in response. The Claimant’s case, as indicated above, was limited to advice to officers to be vigilant at all times, coupled with the statement of a belief that Moat had made his call from somewhere within a certain area. Males J was not persuaded that PC Rathband would probably have moved away from the location where he was parked, or at least that he would have done so almost immediately. Given what was now known about the way in which Moat did in fact carry out his attack, it was doubtful whether additional vigilance would have made any difference. The time between the issue of any warning and the approach of Moat would have been, on any view, no more than a minute, and probably considerably less, even if it was assumed that the warning would have been broadcast before PC Rathband was shot. So if PC Rathband was going to avoid the shooting, he would have had to react almost instantaneously by moving away from the position where he was parked. Males J could find that it is more likely than not that he would have done so.
The Claimants had also argued that the police vehicles should have been double crewed before the start of PC Rathband’s shift. However, there was at this stage no information which could reasonably have caused the police to believe that Mr Brown had been shot because he was a police officer, let alone that Moat was "hunting for officers", or which would or should have caused the police to require that police vehicles should be double crewed. Nor did that situation change at any time before the 999 call.
The claim would fail.