Authors:Stephen Cragg KC and Maya Sikand KC
Last updated:2023-10-03
Holding the police to account
Marc Bloomfield
Description: LAG 50 Years
Stephen Cragg KC and Maya Sikand KC look back over 35 years of actions against the police, noting that while there have been some improvements, practitioners in this area are likely to remain busy for the foreseeable future.
Description: Police Misconduct book ads
Other than a handful of earlier articles, LAG’s involvement in the police misconduct field started with the publication of the first edition of Police Misconduct: Legal Remedies in 1987 – John Harrison had written it while working at Paddington Law Centre, with a £26,000 grant from the Greater London Council, and co-authored all subsequent editions until his untimely death in 2009. John was a trailblazer who saw that areas of law that were relevant to police conduct, such as the torts of false imprisonment, malicious prosecution and misfeasance, had largely fallen into disuse over the years (more than half of the case references in the first edition’s section on false imprisonment were from the 19th century). The book provided a straightforward guide that helped establish actions involving the police as a mainstream area of legal practice, and provided the first proper complainant’s guide to the police complaints system.
Over the years, increased numbers of cases against the police have led to developments in all these tort areas, and others such as negligence, but also the growth of a range of other cases emerging from areas such as human rights law, discrimination legislation, data protection and information rights, and the law of protest. At the same time, the police complaints system has seen several iterations, morphing from the Police Complaints Authority, through the Independent Police Complaints Commission, to the current Independent Office for Police Conduct (IOPC).
Description: Police misconduct magazine and book covers
Throughout this period, major controversies have kept the subject of police misconduct in the public eye, and the relationship between the police and the public appears as strained as ever. The Undercover Policing Inquiry was set up in 2015 amidst revelations that the Metropolitan Police had, over a period of decades, deployed undercover officers among legitimate protest groups. The May 2020 murder of George Floyd sparked global outrage and a renewed focus on issues of policing and race. In recent years, there have been a number of controversial deaths of Black men following police contact (such as Sean Rigg, Leon Briggs, Azelle Rodney, Mark Duggan and Jermaine Baker). At the time of writing, the focus is on the death of Chris Kaba, an unarmed man shot by police in September 2022.
In March 2021, Sarah Everard was kidnapped, raped and murdered by Wayne Couzens, a serving Metropolitan Police officer. The murder sparked broader debate about the safety of women, and the culture within the police with regards to attitudes towards them. In February 2022, the IOPC published a report describing a pattern of bullying, discrimination, and ‘toxic masculinity, misogyny and sexual harassment’ at Charing Cross police station.1Operation Hotton: learning report, IOPC, 1 February 2022, para 6, page 5. In June 2021, a report into the death of Daniel Morgan in 1987 criticised the Metropolitan Police for placing the organisation’s reputation above the need for accountability and transparency.2The report of the Daniel Morgan Independent Panel, HC 11-I to HC 11-III, 15 June 2021.
Description: Police misconduct Stephen Cragg_ Tony Murphy and Heather Williams Apr 2005
LAG has run twice-yearly updating articles since 2005, authored initially by Stephen Cragg, Tony Murphy and Heather Williams, covering all recent cases and developments. Heather withdrew as an author when she was appointed as a High Court judge in 2021, and Tony has recently stepped back following his contribution to the October 2022 article, and the team has added Maya Sikand and Carolynn Gallwey. The fifth edition of Police Misconduct: Legal Remedies, now featuring contributions from a score of expert practitioners, was authored by Stephen Cragg and Sam Jacobs in 2022. Following are some of the changes in the torts identified in the 1987 edition, along with the police complaints system, and some of the more recent developments.
There has been some positive change and clarification in the tortious liability of the police in recent times. False imprisonment claims against the police, and the tests to be met for success, were first set out in Castorina v Chief Constable of Surrey Police [1988] 6 WLUK 85; (1996) 160 LG Rev 241. and then in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788; [2019] 1 WLR 2238; April 2019 Legal Action 22. The case law where the police have failed to establish that the use of arrest powers was necessary for the purposes of Police and Criminal Evidence Act 1984 s24(5) continues to grow: see most recently ST v Chief Constable of Nottinghamshire Police [2022] EWHC 1280 (QB); October 2022 Legal Action 21, which also deals with the rights of children on arrest.
In relation to malicious prosecution, a welcome decision was Rees and others v Commissioner of Police of the Metropolis [2018] EWCA Civ 1587; October 2018 Legal Action 27, finding that the police were prosecutors when they denied the Crown Prosecution Service an opportunity to make an independent judgement by submitting an untruthful report. Also in Rees, the subjective/objective test for reasonable and probable cause, as well as for malice, was clarified in the context of a desire to concoct evidence and/or to procure a conviction at any cost – the court focused not on whether there was a belief in the claimant’s guilt, but on whether there was a belief in there being a fit case to be tried. The court found there was no room for so-called noble cause corruption justifying an otherwise untenable prosecution.
The tort of negligence has always been about ‘incremental’ change, but in the context of claims against the police, it has been at a snail’s pace. Hill v Chief Constable of West Yorkshire [1989] AC 53 prevailed for the best part of three decades, with its mantra that it would not be ‘fair, just and reasonable’ to impose a duty of care on the police (subsequently known as Hill immunity). The start of its unravelling was in Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2; [2015] AC 1732; April 2015 Legal Action 37, where the Supreme Court made it plain that there was no special protection being afforded to the police. In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] AC 736; June 2018 Legal Action 20, the Supreme Court said, in terms, that there was no principle that the police would not generally owe a duty of care when discharging their core functions of investigating and suppressing crime.
The next landmark case in public authority negligence was Poole BC v GN and another [2019] UKSC 25; [2020] AC 780; October 2019 Legal Action 35. Lord Reed simplified the distinction between acts and omissions by describing it as ‘between causing harm (making things worse) and failing to confer a benefit (not making things better)’ (para 28). He confirmed that there are exceptions to the rule of no liability for omissions, such as where there is an assumption of responsibility, and this is where the focus now lies in police claims.
Description: Police misconduct article Tony Gifford Jul 1983
As every ‘actions against the police’ lawyer knows, when it comes to tort damages, including aggravated and exemplary damages, Thompson and Hsu v Commissioner of Police of the Metropolis [1998] QB 498, CA was a landmark case, recognising the mainstream arrival of police cases and setting a tariff for damages still used today (with the appropriate uplifts for inflation). As a result, many cases for compensation settle before trial.
The influence of the Human Rights Act 1998 is everywhere to be seen in police cases. The police owe a duty to protect life where there are steps that can be taken to do so: Osman v UK App No 23452/94, 28 October 1998; (2000) 29 EHRR 245. Increased scrutiny of police actions now takes place in European Convention on Human Rights (ECHR) article 2 complaint inquests following R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182; May 2004 Legal Action 36. In DSD and another v Commissioner of Police of the Metropolis [2018] UKSC 11; [2019] AC 196; June 2018 Legal Action 24, the Supreme Court accepted that the ECHR article 3 investigative obligation for the police applies to allegations of mistreatment by non-state actors.
The ECHR article 8 duty to protect private life is engaged when the police disclose information about individuals (see R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3; [2010] 1 AC 410; April 2010 Legal Action 34) (enhanced criminal records), when information is retained in police records (see Catt v UK App No 43514/15, 24 January 2019; (2019) 69 EHRR 7; April 2019 Legal Action 24), and when new technology such as facial recognition is used (R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058; [2020] 1 WLR 5037; November 2020 Legal Action 21).
Although often unused because of a strong overlap with the law of false imprisonment, the ECHR article 5 right to liberty can be important when actions of the police lead to longer pre-trial detention: Zenati v Commissioner of Police of the Metropolis and another [2015] EWCA Civ 80; [2015] QB 758; April 2015 Legal Action 37. Policing of protest now comes with a requirement to consider rights to freedom of speech and association covered by ECHR articles 10 and 11: see R (Leigh and others) v Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin); [2022] 1 WLR 3141; October 2022 Legal Action 22 and the policing of the Sarah Everard vigil.
Other statutes that place further legal responsibilities on the police now often crop up. The police must comply with the public sector equality duty in Equality Act 2010 s149 when introducing new policies and practices: see Bridges (above). Reasonable adjustments must be made when carrying out police functions, including those involving arrest and detention: Commissioner of Police of the Metropolis v ZH [2013] EWCA Civ 69; [2013] 1 WLR 3021; April 2013 Legal Action 27.
Description: Police misconduct article David Carter Mar 1985
As for the police complaints system, despite real efforts to make it more effective, the criticisms remain the same: it is too complicated, investigations take too long, and the vast majority of complaints (and reviews of complaints decisions) are still investigated by the police themselves. Many advisers feel the system adds little for clients looking for a satisfactory outcome to a complaint. Sadly, Baroness Casey's interim report into the Metropolitan Police misconduct system, published on 17 October 2022, reinforces what police lawyers and their clients have known for too long: 'Cases are taking too long to resolve, allegations are more likely to be dismissed than acted upon, the burden on those raising concerns is too heavy, and there is racial disparity across the system, with White officers dealt with less harshly than Black or Asian officers.'3Letter from Baroness Casey to Metropolitan Police Commissioner Sir Mark Rowley, 17 October 2022.
The hope has often been that an effective complaints system and the steady pressure of justifiable litigation against the police would lead to the raising of standards and accountability. Even though, for example, the Metropolitan Police paid out almost £8m in nearly 400 cases of ‘malfeasance’ in the three years between 2018 and 2021,4Compensation pay outs for financial years 2018/19, 2019/20 and 2020/21, FOI request ref 01.FOI.22.023358, Metropolitan Police, March 2022. there seems to be little sign of that, and the band of lawyers working to defend the rights of people who are victims of police misconduct seems only likely to grow in the years to come.
Thank you
Description: Tony Murphy_Bhatt Murphy
LAG would like to thank Stephen Cragg KC for 17 years of magazine updates, along with all his work on editions of Police Misconduct: Legal Remedies and on LAG training courses - what a huge contribution to the dissemination of information in this vital area. We'd also like to thank his current co-authors, Carolynn Gallwey and Maya Sikand KC, and past authors Heather Willliams J and Tony Murphy (pictured), who has just stepped down after writing for Legal Action since 2005 - another huge contribution to LAG's work and the field of police misconduct law. We'd also like to pay tribute to all the other authors/trainers in this area over LAG's history, some mentioned above, and including one London mayor Sadiq Khan, who has written for both Legal Action and the fourth edition of Police Misconduct: Legal Remedies, before leaving the law for politics!
1     Operation Hotton: learning report, IOPC, 1 February 2022, para 6, page 5. »
2     The report of the Daniel Morgan Independent Panel, HC 11-I to HC 11-III, 15 June 2021. »
4     Compensation pay outs for financial years 2018/19, 2019/20 and 2020/21, FOI request ref 01.FOI.22.023358, Metropolitan Police, March 2022. »