Acts v. Omissions
Nicholas Reed Langen
Under English common law, you have no duty to act. An ordinary person cannot be held liable for something that happened because they chose to do nothing. If you are walking beside a lake on a summer evening, hear cries of ‘help!’ and notice a swimmer flailing their arms, you are under no legal obligation to do anything. You do not have to call for help or throw them a lifebuoy, let alone dive into the water to save them. You could idle on the shore and watch them slip beneath the surface, for all an English court would hold you accountable.
This principle applies not only to ordinary citizens, but also to those explicitly charged with the protection of the public. The police and other emergency services are under no special obligation to act. If a police officer stood by and watched the swimmer drown, the courts would come to the same conclusion – so long as the officer didn’t make the situation worse.
In a recent case, Tindall v. Chief Constable of Thames Valley Police, the Supreme Court was ‘faced with a claim … which raises in acute form a question about precisely where the dividing line falls between failing to protect a person from harm and making matters worse’. On 4 March 2014, the police were called to the scene of an accident on a rural A-road in Buckinghamshire. Mark Kendall had skidded on black ice, losing control of his car and veering into a ditch. He extricated himself and signalled to other vehicles to alert them the danger before calling the emergency services.
When the police arrived, they interviewed Kendall, breathalysed him and handed him over to an ambulance crew. They put out a ‘Police: Slow’ sign, swept the road and requested a gritter. They then picked up their sign and left. Black ice was still all over the road. An hour after the first accident, another car skidded on the ice. This time, the driver, Carl Bird, careened across the road, colliding head-on with another car, being driven by Malcolm Tindall. Both were travelling at about 50 mph. The two drivers died almost instantly.
As with any death that occurs on the constabulary’s watch, the officers’ conduct was examined by the Independent Police Complaints Commission. The commission concluded that there was a case for gross negligence manslaughter and misconduct in public office, and referred it to the CPS. They declined to prosecute. A disciplinary tribunal found two of the officers guilty of misconduct and one of gross misconduct. After an inquest recorded a narrative verdict that the police ‘should’ have done more, the widow of one of the victims, Valerie Tindall, sued Thames Valley Police in the civil courts for negligence.
Even if you accept the distinction between ‘failing to protect’ and ‘making matters worse’ that the courts have maintained since 1941, Valerie Tindall should have had a good case. Before the police arrived, Mark Kendall had been trying to alert other drivers to the ice that he’d skidded on. When the emergency vehicles were on the scene, their blue lights, as well as the ‘Police: Slow’ sign, served as a warning to other drivers. But when the officers left, well aware of the risk still posed by the black ice and knowing that a gritter could still be some time away, they took the only safety precaution with them.
In their defence, the officers claimed that they had no proper training in road traffic accidents. It should not take formal training to realise that removing warning signs from dangerous roads will expose drivers to unnecessary risk. But they did not need even this defence. Overruling the Court of Appeal, which had found the officers negligent, the Supreme Court exonerated them. The officers were guilty of an omission, not an act. According to a unanimous court, the officers had done nothing to make the scene more dangerous or to expose drivers to extra risk. They left the road in the same state in which they had found it.
This follows the precedent set by the Supreme Court in the fatal case of Michael v. Chief Constable of South Wales Police. Joanna Michael called 999 from her mobile phone at 2.30 a.m. on 5 August 2009 to say that her ex-boyfriend had turned up at her house in Cardiff, where she lived with her two young children, and attacked her. She had been with another man, whom her ex was now driving home. But he would be back ‘any minute literally’.
The call was picked up by a neighbouring force, Gwent Police, who graded it as a G1 call, requiring an immediate police response, and passed it on to South Wales Police. But they graded it as G2, requiring a response within an hour. Less than fifteen minutes later, a second call was made from Joanna Michael’s mobile. The operator heard a scream and the line went dead. A rapid response vehicle was sent to the house, arriving eight minutes later to find Michael dead from multiple stab wounds.
Her parents sued the police for negligence. The Supreme Court justices, by a majority of 5-2, rejected their appeal:
The duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of close or special relationship (‘proximity’ or ‘neighbourhood’) necessary for the imposition of a private law duty of care.
If the call handlers had prioritised Joanna Michael’s call correctly and officers had rushed to the scene but still arrived too late to save her, it would be hard to blame the police, just as it would if the fatal crash on the A413 had occurred before the police got there. But in both cases there is a strong argument that the police failed in their public duty. If officers had set out for Joanna Michael’s house as soon as her first 999 call was received, they would have arrived before her ex-boyfriend returned. The reason they did not – the misgrading of the call as lower priority – was the fault of the police service. The police were at the scene of Malcolm Tindall’s death an hour before he was killed. By removing the caution signs, they placed him, and every other driver, at risk.
When police officers take up their position, they swear an oath to preserve the peace and protect the public. No one expects them to be superheroes, leaping into burning buildings or launching themselves unarmed into the middle of a gunfight – although some officers do sometimes behave with extraordinary bravery. But we ought to be able to expect them to be competent. Expecting the police to respond urgently to a 999 call from someone who is about to be murdered, or to ensure that black ice is flagged to drivers after attending the scene of a road traffic accident, is not imposing a huge burden on the emergency services. It is expecting them to do their jobs.
Comments
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29 November 2024
at
10:57am
IanGFraser
says:
Sound comment, except for being a little vague on the Court's basic distinction, between public duty and private duty.
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30 November 2024
at
11:58am
Rory Allen
says:
I had always understood that there were two areas in which people (police or not) have a duty to act: if they become aware that a terrorist act is being planned or carried out, and if they become aware of child abuse. In that case, 'act' means reporting their suspicions to the authorities. Not reporting suspicions of a crime is known, I read somewhere, as 'misprision', mainly applied in the past in cases of 'misprision of treason'. Can a lawyer clarify please?
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3 December 2024
at
6:11pm
CarpeDiem
says:
"Under English common law, you have no duty to act".
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5 December 2024
at
3:24am
OldScrounger
says:
@
CarpeDiem
I can't cite chapter and verse, but I am sure I remember reading of an occasion when bystanders watched a police officer trying to effect an arrest and ignored his order to help him. They were later charged with an offence.
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5 December 2024
at
11:09am
CarpeDiem
says:
@
OldScrounger
I am not aware of the case you are referring to, but there is a "common law offence of refusing to assist a constable when called upon to do so" - https://www.cps.gov.uk/legal-guidance/public-justice-offences.
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5 December 2024
at
12:44pm
SpinningHugo
says:
I dont agree.
Read more'Doing their job' is a duty owed to the public, represented by the police service and ultimately the government. You should well expect it to be done competently -- but that doesn't mean you have a private right to be compensated if they don't. You're not 'the public'.
Which brings in the arguments over where to draw that line. British courts seem readier to decide that on principle, as described in the piece, where they used to be more explicit about the policy elements -- which brings in the arguments about the proper role of courts!
Well, not quite. Under English common law, you have no GENERAL duty to act. There is a duty to act in several specific situations. For instance, where responsibility for another person has been voluntarily assumed, there is a duty to act on the basis of reliance. Also, while there is no general duty to help strangers, there is a duty to help those with whom we have a close or special relationship, although there is no well defined list of relationships where this duty to act applies.
That said, successful prosecutions for this offence seem somewhat rare - see https://assets.publishing.service.gov.uk/media/5fc8d748e90e0762adb31f1d/FOI_200701021_prosecutions_-_refusing_to_assist_a_constable.odt .
The distinction between injuring others and failing to confer benefits upon them is basic to what makes out rights in private law justifiable.(which is more accurate than saying it is the distinction between acts and omissions see [1] https://www.supremecourt.uk/cases/judgments/uksc-2023-0059 for a working link).
I have a right that you do not injure my body, smash up my bicycle, or call me an axe murderer in the pages of the LRB.
I have no right that you cure my illness, fix my broken bicycle, or praise me in the LRB.
The police (and army officers, and teachers, and social workers, and GPs etc) owe precisely the same duties that you and I do to one another. they acquire no special immunities from their status. But we don't, without more, acquire special rights against them from their status either.
The legislature does sometimes give us special rights against public bodies. You and I have a right against the Highways Authority that the road is is in good repair, so that if we are injured by its not being we potentially have a claim.
The mistake some courts made 30+ years ago was in thinking that because a statute created a public body with *public* duties, that meant that I had a private right against them that they be careful in carrying that duty out.
That is wrong. If on its correct construction the statute gives you no private right, and creates only a public duty, you've no private action.
See
Stovin v Wise
Gorringe
Michael v CC of S Wales
and now
Tindall v CC of Thames Valley.
In Tindall the claim rightly failed. The claimant (as in all such claims) needs to show that it was reasonably foreseeable that the defendant’s action would injure them.
It wasn’t enough to show that the police could reasonably foresee that their not putting up a “Police Slow” sign might lead to injury as that is simply the failure to confer a benefit: alone it isn’t potentially a wrong.
The action that was potentially wrongful was putting off someone assisting others, and as it was never pleaded or proven that the police could reasonably foresee that the person they called the ambulance for(Kendall) was guarding the road. So the claimants (rightly) lose.
Controversially, the unanimous UKSC were right.