Torts - Negligence - Careless performance of public law duties - Immunities of police force and Director of Public Prosecutions - Dismissal of action.

Hill v Chief Constable of West Yorkshire [1989] AC 53; Calveley & Ors v Chief Constable of the Merseyside Police [1989] AC 1228; Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335; Osman v Ferguson [1992] EWCA Civ 8; [1993] 4 All ER 344; X & others (minors) v Bedfordshire County Council [1995] 3 All ER 353; M (a minor) v Newham London BC [1994] 4 All ER 602, referred to.

Judgment Number: [2000] TASSC 83

1 The defendant seeks an order that the plaintiff's claim be struck out and judgment entered for the defendant. Although not originally framed in this way, the application proceeded, without objection, as an application for summary judgment, pursuant to the Rules of Court, r367 and an application pursuant to r259, for dismissal and judgment on the basis that no reasonable cause of action is disclosed.

2 The plaintiff commenced his action by writ filed 12 November 1999 which contained the following endorsement of claim:

"The Plaintiff's claim against the Defendant is for damages for wrongful arrest and false imprisonment between the 1st day of November 1997 and the 19th day of February 1999 and costs to be taxed."

3 Pursuant to r117, by delivery of a statement of claim, the plaintiff may alter the claim against the defendant without amending the endorsement of the writ. A statement of claim dated 23 March 2000 has been delivered. It is a lengthy document, running to 29 paragraphs over 10 pages. Counsel for the plaintiff told me that the only causes of action alleged were in negligence; breach of statutory duty and "breach of common law duty". I was specifically advised by the plaintiff's counsel that causes of action were not alleged to exist for malicious prosecution or false imprisonment. It was not suggested that facts existed upon which an action for misfeasance in public office could be sustained. The relevant facts, which I shall assume to be true for the purpose of dealing with the application, are set out in the statement of claim.

4 On 1 November 1997, the plaintiff was arrested on the charge of murder and brought before a court. Thereafter, he was remanded in custody until the conclusion of his trial, in which a verdict of "not guilty" was directed by the trial judge on 19 February 1999. The trial had ended with the prosecutor advising the court that additional material had been recently forwarded by the police to the Office of the Director of Public Prosecutions and, that having examined that material, the Director of Public Prosecutions had ceased to be satisfied that there was a reasonable prospect of conviction if the trial continued.

5 The material in question was information received by the police on or prior to 15 October 1997 that a person told others prior to the murder, that the murder victim was a "child molesting cunt" whom he "ought to kill" and who "deserved what he got". The material included information that following the murder, the person had admitted committing the murder, albeit not to the police. It is alleged that in light of this information, the police "negligently and in breach of their duty" caused the plaintiff to be charged, arrested and detained in custody and failed to advise the courts and the Office of the Director of Public Prosecutions of the information. It is also alleged that police failed to "carefully, properly, diligently and adequately investigate the murder". The statement of claim goes on to allege that "counsel and employees of the Office of the Director of Public Prosecutions" were negligent and acted in breach of their duty by failing to ensure that all material gathered by the police in the course of the investigation which might have been relevant was provided to them. The defendant, the State of Tasmania, is said to be "vicariously liable" for the negligence and breach of duty of the relevant members of the Tasmania Police Force and counsel and employees of the Office of the Director of Public Prosecutions.

6 Counsel for the defendant, Mr Ellis, submitted that the claim should be summarily dismissed because, as a matter of public policy, the police and those responsible for the prosecution of crimes were immune from such actions for negligence and that the statutes which impose public law duties on police and prosecutors do not provide remedies in private law for breach of, or careless performance of, these duties.

7 In Hill v Chief Constable of West Yorkshire [1989] AC 53, the House of Lords considered a claim for damages for negligence against the police made by the estate of Miss Hill, a victim of serial murderer Peter Sutcliffe. The plaintiff's statement of claim set out 20 offences committed by Sutcliffe before the death of Miss Hill and alleged that negligence of the police resulted in the failure to arrest Sutcliffe prior to him murdering Miss Hill. The statement of claim was struck out as disclosing no reasonable cause of action. Upon appeal to the Court of Appeal, the decision was affirmed. A further appeal to the House of Lords was dismissed on the basis that the police did not owe a duty of care to individual members of the public who might suffer injury at the hands of unapprehended criminals. In addition, it was held by Lord Keith of Kinkel, at 63 - 64, with whom the other Law Lords agreed, that it was right:

"... to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 AC 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court".

8 In Calveley & Ors v Chief Constable of the Merseyside Police [1989] AC 1228, Lord Bridge of Harwich said, at 1238:

"Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect."

Each of the other Law Lords agreed with Lord Bridge.

9 In Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335, the Court of Appeal considered a claim against the Crown Prosecution Service by plaintiffs who had been arrested, charged and remanded in custody for serious offences. It was alleged that the Crown Prosecution Service was negligent, citing failures in obtaining, processing and communicating the results of forensic scientific evidence which showed the plaintiffs to be innocent. An appeal against the striking out of the statements of claim was dismissed. Morritt LJ said, at 352:

"One party to a civil action does not owe a duty of care to the other, nor does his solicitor: Business Computers International Ltd v Registrar of Companies [1988] Ch 229; Al-Kandari v J R Brown & Co [1988] EWCA Civ 13; [1988[ QB 665. The reason is obvious: the duty to the other side might conflict with the duty to his own client. The analogy is not precise because criminal proceedings and the role of the prosecutor are different from civil proceedings and the role of a plaintiff in them. But the respects in which the roles differ appear to me to suggest that the prosecutor is an a fortiori case. Some of his duties and in particular where they differ from those of a plaintiff are equated with those of a minister of justice. In that respect a liability in negligence would be even more inapposite than in the case of the opposing party or his solicitor in civil litigation.

Secondly, not only would it be surprising to find a common law duty in the circumstances that the CPS is a recent creature of statute but under no statutory duty to individuals, but it would suggest that in this field at least the independent torts of malicious prosecution and misfeasance in a public office are unnecessary. In the case of the former a plaintiff has to establish the absence of reasonable and probable cause and malice. In the case of the latter knowledge of the want of power is an essential element. If the plaintiffs are right want of reasonable care will suffice. To conclude that the duties for which the plaintiffs contend do exist would be to disregard the danger to which Lord Templeman referred in Downsview Nominees Ltd v First City Corporation Ltd [1993] AC 295, 316, namely:

'of extending the ambit of negligence so as to supplant or supplement other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic loss ...'."

10 In Osman v Ferguson [1992] EWCA Civ 8; [1993] 4 All ER 344, an appeal had been made to the Court of Appeal from a decision striking out a statement of claim as disclosing no reasonable cause of action. The plaintiffs were the widow and injured son of a murder victim. It was alleged that the police had cause to apprehend the murderer prior to the commission of the crime and negligently failed to do so. The appeal was dismissed, the claim being unsustainable for the reasons set out in Hill v Chief Constable of West Yorkshire (supra). McCowan LJ said, at 353:

"Secondly, Mr Hendy submits that the ratio of Hill's case is that policy decisions are protected by public policy immunity but operational decisions are not and that, whereas the failures in Hill's case were of a policy nature, those in the present case were of an operational nature. In my judgment, such a distinction is not to be supported by the speeches in Hill's case. Indeed I consider such a dividing line to be utterly artificial and impossible to draw in the present case."

11 Counsel for the plaintiff, Mr Hodgman QC, was unable to refer me to any case in which an action of the kind now presented has succeeded.

12 The plaintiff alleges a breach of general duty imposed upon police to carefully and diligently investigate crimes and a breach of a general duty and a statutory duty of prosecutors not to put to trial matters in respect of which there is not a reasonable prospect of conviction. In X & others (minors) v Bedfordshire County Council [1995] 3 All ER 353, Lord Browne-Wilkinson said, at 371:

"... a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties."

13 Having regard to the public policy considerations referred to in Hill v Chief Constable of West Yorkshire (supra) I do not see how a policy which disallows actions for negligence of this kind against police officers or prosecuting authorities would allow an action to proceed for careless performance of a statutory duty without the legislation plainly identifying an intent that such actions should be available. I was not referred to any particular legislation which might arguably disclose such an intent. A useful discussion illustrating the difficulty of establishing that a statute which imposes duties in the nature of public law functions also creates a right to damages in private law for breach of those duties or careless performance of them, is to be found in M (a minor) v Newham London BC [1994] 4 All ER 602 at 625 - 628. In my view, the statement of claim ought to be struck out, as it discloses no reasonable cause of action.

14 The defendant asks for judgment. I was told by counsel for the plaintiff that the plaintiff is unable to prove malice and there has been no suggestion that any claim based in the torts of false imprisonment; malicious prosecution or misfeasance in public office might be brought. In these circumstances, having regard to my finding that the pleaded causes of action cannot be sustained, I see no reason why judgment should not be entered in favour of the defendant.

15 There will be an order that the action be dismissed and that judgment be entered accordingly.