“I didn’t do it!” In what circumstances can police officers be liable for negligent omissions, and can the Human Rights Act limitation period be disapplied in such claims?

August 2, 2022

Alice Dobbie considers the implications for the police of CJ and Ors v Wiltshire Police [2022] EWHC 1661.

  1. The test to be applied for extension of limitation under the HRA
  2. Negligent liability for omissions of police officers

1. Limitation discretion under the Human Rights Act

The facts

Five claimants brought an action against the police on the basis that the police were liable for the criminal actions of a third party who had sexually abused the claimants years earlier when they were minors. The police were said to be liable because the investigating officer had been found guilty of gross misconduct in failing to progress an investigation into the defendant. Had he done so in a more timely matter, it may have prevented the sexual assaults.

The claim was brought in negligence and also as a Human Rights Act claim. The negligence claim was not statute barred because time had only started to run once the claimants had attained their majority. But the limitation period for claims under s.6 of the HRA was 1 year (regardless of the age of the claimants), and it had been grossly exceeded by them.

The judgment is useful for its exposition of factors to consider when dealing with an application to extend the limitation period under the HRA. The test to apply is not that of s.33 of the Limitation Act, and this judgment brings welcome clarity.

The test for HRA limitation extension

Section 7 of the HRA states that the court may extend the limitation period for “such longer period as it considers equitable having regard to all the circumstances”. This is a much more open test than that of s.33 of the Limitation Act, which states that the determination of what is equitable must consider the degree of prejudice to the claimant and defendant. The Limitation Act then goes on to list six particular factors to which the court must have regard.

The judge in CJ stressed that whilst s.33 factors may be of assistance, there was no question that the court’s discretion should be fettered by them. The court was free to examine any factor and give it such weight as it considered appropriate. Additionally, the court should be careful to have regard to the policy reasons for Parliament adopting a tighter limitation period for HRA claims.

Relevance to Defendants

If a Defendant is faced with an application to extend the limitation period for an HRA claim, it should consider marshalling its arguments along the following lines:

  • The burden of persuasion is on the claimant.
  • There is no public interest in public authorities being burdened by expensive, time-consuming and late claims brought years after an event.
  • If the effect of the court’s decision is to frustrate the primary intention of Parliament which set the one year limitation period, there must be particularly cogent reasons.
  • The court should look critically at any reason for delay. Delay is always a relevant consideration whether or not there is actual trial prejudice to a defendant.
  • Where a delay has caused evidential prejudice to a defendant (for instance witnesses have disappeared or memories have faded), that should militate against the fairness of granting an extension.
  • If the nature of the claim is not grave, there is limited (if any) public interest in allowing the claim to be litigated.

Above all, the court must be encouraged to have in mind the fact that ‘equitable’ must mean being fair to both sides, not just the claimant.

  2. Negligent liability for the omissions of police officers

As well as a limitation issue, the court in CJ had to consider the law of liability for acts and omissions.

The judge helpfully distinguished between acts and omissions. The principles of liability for omissions can be distilled as follows:

  • Public authorities are generally under no duty of care to prevent the occurrence of harm because the common law does not impose liability for pure omissions.
  • Where the distinction between acts and omissions becomes blurred, it is helpful to recast the distinction as causing harm (making things worse) and failing to confer a benefit (not making things better).
  • The fact that a public authority may have powers enabling it to prevent the harm in question does not change the fact that it still does not owe a duty of care towards individuals to protect them from harm.
  • There are only four exceptional circumstances in which public authorities might come under a duty of care to prevent harm:
    • When A has assumed responsibility to protect B from that danger;
    • When A has done something which prevents another from protecting B from that danger;
    • When A has a special level of control over the source of danger;
    • When A’s status creates an obligation to protect B from that danger.

Decision

The Judge in CJ concluded that the claimants were entitled to a limitation extension, but he then proceeded to dismiss the claims on the basis that they were founded upon an omission rather than act.

It should relieve defendants to know that where they intervene to protect harm but do so ineffectually, it will not come within the compass of a negligent act. That is also the case where a public authority has knowledge of a danger and the power to address it, but fails to do so. Nor does the picture change if, for instance, a public authority had intervened effectively in the past to prevent harm.

CJ confirms that there is no discernible judicial appetite for the weakening of this protection for police forces in liability claims. In particular, the police remain especially protected from the consequences of ineffectual actions: it is not sufficient to prove liability that the police are specifically alerted and respond to the risk of injury to an individual.

The circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are closely circumscribed, and likely to remain so.

Alice Dobbie is a negligence specialist who acts exclusively for defendants.

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