EWJ June 61 2025 web - Flipbook - Page 63
Police Errors of Judgment and
Negligence - Is there a Distinction?
W v Chief Constable of Nottinghamshire
Police - A Closer Look
by Catherine Dent - Barrister at St John's Buildings
Last month, I represented the Claimant in an appeal
to the High Court before Mr Justice Bourne. The issues, or rather “issue” could not have been more
straightforward - did the failure of a police officer to
put his vehicle in neutral amount to negligence or was
it simply an error of Judgment - which having regard
to the factual circumstances at the time, did not
amount to negligence?
The circumstances in Robinson involved a suspect
who was dealing drugs outside a shopping centre. Police officers made a plan to apprehend him whilst two
or more other officers would wait outside. As the first
two officers took hold of the suspect, the suspect resisted arrest and there was a tussle. They collided with
Mrs Robinson causing her injury. The lead officer accepted that it was necessary to consider the risk to bystanders and, that if he had walked past someone who
was in harm’s way, he would not have attempted the
arrest. He simply failed to see Mrs Robinson.
A precis of the decision was reported on our website.
This article explores the issues in greater depth.
The facts
The Claimant was injured on 15th April 2020, when
attempted to evade the police. He was part of a group
of men who were being observed by a serious organised crime police unit. The Claimant was part of a
group of young men who were observed passing
items between them. The group, upon seeing a police vehicle, dispersed in various directions. The
Claimant left the scene on his bicycle and proceeded
to cycle on the pavement, alongside a row of terraced
houses.
Lord Reed considered that this was not a situation
where the suspect had to be detained at that moment.
It was therefore held that the trial judge was entitled
to find negligence. The following paragraphs of the
Judgment were particularly relevant:75. The Court of Appeal was correct to emphasise the
importance of not imposing unrealistically demanding standards of care on police officers acting in the course of their
operational duties. That is most obviously the case where critical decisions have to be made in stressful circumstances with
little or no time for considered thought. This point has long
been recognised. For example, in Marshall v Osmond, concerned with a police driver engaged in the pursuit of a suspect,
Sir John Donaldson MR stated, as noted at para 47 above,
that the officer’s duty was to exercise “such care and skill as is
reasonable in all the circumstances”. He went on to state that
those “were no doubt stressful circumstances”, and that although there was no doubt that the officer made an error of
judgment, he was far from satisfied that the officer had been
negligent (p 1038). The same point was made, in a context
closer to that of the present case, by May LJ in Costello v Chief
Constable of Northumbria [1999] ICR 752, 767, where he
remarked that “liability should not turn on ... shades of
personal judgment and courage in the heat of the potentially
dangerous moment”.
The police officer drove alongside the Claimant and
repeatedly asked him to stop, but he did not. The police officer pulled ahead of the Claimant in front of an
end terrace house which had a concreted over front
garden area with a low brick wall. In the heat of the
moment, the police officer forgot to put his automatic
vehicle into park or neutral and as he attempted to
exit the car, it rolled into the brick wall striking the
Claimant obliquely.
The Claimant, although knocked over by the impact,
managed to make good his escape by a nearby street.
The Claimant returned to the scene of the accident
and admitted to the police officer that he had in his
possession at the time a small quantity of cannabis.
76. It is also necessary to remember that a duty to take
reasonable care can in some circumstances be consistent with
exposing individuals to a significant degree of risk. That is
most obviously the case in relation to the police themselves.
There are many circumstances in which police officers are exposed to a risk of injury, but in which such exposure is consistent with the taking of reasonable care for their safety. Equally,
there may be circumstances which justify the taking of risks to
the safety of members of the public which would not otherwise
be justified. A duty of care is always a duty to take such care
as is reasonable in the circumstances.
First instance decision
In the first instance the trial judge found that the
police officer owed the Claimant a duty of care however, he considered that the failure to place the vehicle in park or neutral did not constitute negligence.
From the police officer’s perspective the prevailing set
of circumstances were “not trivial”.
Case law
The relevant case law that fell to be considered was
Robinson v Chief Constable of West Yorkshire [2018]
UKSC4.
EXPERT WITNESS JOURNAL
A case going the other way was Marshall v Osmond CA
1983. The Claimant was driving a stolen car. The
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JUNE 2025
