A duty of care to protect? The recent decision of the CA in Chief Constable of Northamptonshire v Esengul Woodcock and HD & Ors v Chief Constable of Wiltshire Police [2025] EWCA Civ 13

January 20, 2025

by David Sandiford

These appeals reported last week consider the issue of whether the police may be liable in damages for failing to protect a person from harm caused by the criminal actions of a third party.

In March 2015, Ms Esengul Woodcock was attacked and seriously injured by her former partner Riza Guzelyurt. She brought proceedings against the Chief Constable of Northamptonshire Police, alleging that the police owed her a duty of care to protect her from an attack and were in breach of that duty.

In March 2016, a man, MP, was sentenced to a total of 10 years’ imprisonment for two offences of rape of children, 13 offences of sexual assault on a child under 13, and 25 offences of making or possessing indecent images of children. HD & Ors brought proceedings against the Chief Constable of Wiltshire Constabulary, alleging that the police owed each of them a duty of care to protect them against MP, and were in breach of that duty. They claimed damages for breach of their rights under Articles 3 and 8 of the European Convention on Human Rights.

The judgment covers several areas of interest and relevance to the liability of public authorities – in this case the police – at common law and under Art 3 of the HRA.

In summary the Court of Appeal:

• Considered the key authorities (Van Colle and Smith [2008] UKHL 50, Michael [2015] UKSC 2, Robinson [2018] UKSC 4) relevant to the “core principle” that the police generally owe no common law duty to protect individuals from harm caused by criminals and the well-established exceptions to that, in particular where a public authority had assumed a positive responsibility to safeguard an individual along with the other Tofaris and Steel exceptions;
• Considered the principles arising from the recent decision of the SC in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33. That case begins with the restatement of the fundamental distinction between acts and omissions or, in the more illuminating language adopted in recent years, between making matters worse (or harming) and failing to confer a benefit (or to protect from harm). The principles emerging from the main cases are set out at para [44] including the fundamental distinction between making matters worse, where the finding of a duty of care is commonplace and straightforward, and failing to confer a benefit (including failing to protect a person from harm), where there is generally no duty of care owed. Put another way, a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of physical harm created by that person’s own conduct. By contrast, no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant’s conduct, whether from natural causes or third parties. Their Lordships then set out the exceptions to the general rule where, for example, a defendant has assumed a responsibility to protect a person from harm or has control of a third party;
• Considered the nature and scope of the Art 3 operational duty and the Art 3 investigative duty [110];

The parallel between the Art 2 and Art 3 operational duty is again articulated as it was by Lord Hughes in DSD [2018] UKSC 11. In certain circumstances the state has a positive obligation to take preventative operational measures to protect an individual who is at risk. The formulation in AB v Worcestershire County Council [2023] EWCA Civ 529 is cited at [57]: “The obligation can be seen as comprising four components. There needs to be (1) a real and immediate risk (2) of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 of the Convention (3) that the public authority knew or ought to have known of that risk and (4) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk.”

All the claims failed on appeal. No duty arose in any of the claims at common law or Art 3.

This is a useful and interesting decision traversing the authorities and principles relevant to the common law duty to protect and the duties arising under Art 3. Once again, cases involving terrible harm have faltered at the duty of care stage.

David Sandiford specialises in civil claims involving the police & other public agencies. He is a Legal 500 ranked leading junior in personal injury, administrative law, human rights, inquests & inquiries.