1. (1999) 1 FLR 193, (1999) 11 Admin LR 200, (1998) 5 BHRC 293 (hereinafter referred to as Osman).

2. See T Weir ‘Down Hill - All the Way?’ (1999) CLJ 4; Lord Hoffmann ‘Human Rights and the House of Lords’ (1999) 62 MLR 159; P Craig and D Fairgrieve ‘Barrett, Negligence and Discretionary Powers’ (1999) PL 626; and Lord Browne-Wilkinson in Barrett v Enfield London BC (1999) 3 All ER 193 at 198–200. Contrast B Fitzpatrick (1999) 4 J Civ Lib 146.

3. (1993) 4 All ER 344.

4. (1989) AC 53.

5. See also J Steel and D S Cowan ‘The Negligent Pursuit of Public Duty - a Police Immunity?’ (1994) PL 4; D Brodie ‘Pursuing the Police’ (1993) 3 Jur Rev 292.

6. Section 2(1)(a) of the Act states that a court, in determining a question which has arisen in connection with a Convention right, must take into account any judgment of the European Court of Human Rights. In addition, s 6(1) renders it unlawful for a public authority (defined in s 6(3)(a) to include a court or tribunal) to act in a way which is incompatible with a Convention right. A court would therefore be expected to interpret the common law police immunity in a manner compatible with art 6, as interpreted in Osman v United Kingdom. This is noted by Lord Browne-Wilkinson in Barrett, above n 2, at 200 in highlighting what he viewed as ‘the present very unsatisfactory state of affairs’.

7. Eg ss 34 and 35 of the Criminal Justice and Public Order Act 1994, which permit inferences to be drawn from the accused's silence, may be subject to challenge.

8. See Golder v United Kingdom (1975) 1 EHRR 524; Comment, G Zellick ‘The Rights of Prisoners and the European Convention’ (1975) 38 MLR 683; Silver v United Kingdom (1983) 5 EHRR 347, E Ct HRR A61 (1983).

9. Golder v United Kingdom (1975) 1 EHRR 524.

10. See above n 1, para 150.

11. (1989) AC 53.

12. Lord Browne-Wilkinson in the recent case of Barrett v Enfield London BC (1999) 3 All ER 193 criticises use of the term ‘immunity’, but at the same time is critical of Osman on the basis that it fails to appreciate that English law decides questions of public policy as questions of law to be applied as precedents in future cases. It is difficult not to classify this approach as establishing an ‘immunity’ at law. The term ‘immunity’ is used by the rest of the House of Lords in Barrett without comment.

13. (1989) AC 53 at 63.

14. Alexandrou v Oxford (1990) (1993) 4 All ER 328; Ancell v McDermott (1993) 4 All ER 355. See M Tregilgas-Dowey ‘Osman v Metropolitan Police Commissioner: The Cost of Police Protectionism’ (1993) 56 MLR 732 and T Dugdale ‘Osman v Ferguson: Protecting the Professionals’ (1993) 9 PN 85.

15. (1993) 4 All ER 344.

16. Elguzouli-Daf v Commissioner of Police of the Metropolis (1995) QB 335, but contrast Welsh v Chief Constable of the Merseyside Police (1993) 1 All ER 692.

17. Skinner v Secretary of State for Transport (1995) Times, 3 January, in which Judge Gareth Edwards QC held that the policy reasons for denying liability in Hill applied even more powerfully to the coastguard service and it should therefore not be liable in negligence in respect of its watching, listening and rescue co-ordination functions.

18. Mulcahy v Ministry of Defence (1996) 2 All ER 758.

19. Gavnor v Allen (1959) 2 QB 403; Cox v Dixon (1984) 134 NLJ 236; Marshall v Osmond (1983) QB 1034, although all the circumstances of the case will be taken into consideration in determining whether there is a breach of the duty of care.

20. (1985) 1 WLR 1242.

21. See also Knightley v Johns (1982) 1 WLR 349. In Alcock v Chief Constable of South Yorkshire (1992) 1 AC 310 the ordinary rules of negligence were applied to allegedly negligent crowd control by the police. The Chief Constable of South Yorkshire admitted that a duty of care was owed by his force towards those who died or suffered physical injury as a result of negligent crowd control by his force. However, this decision seems to conflict with that of Hughes v NUM (1991) 4 All ER 278, in which May J held the deployment of police in dealing with an angry picket line should be within the immunity. May J stressed the difficulties of dealing with serious public disorder in the heat of the moment and this was relied upon by the Court of Appeal in Mulcahy v Ministry of Defence (1996) 2 All ER 758. Such cases, in my view, are based on a different policy objection to that underlying Hill v Chief Constable of West Yorkshire, namely that the conduct of individuals under battle conditions is not justiciable by the courts, and thus the two cases can be reconciled.

22. See R Clayton and H Tomlinson Civil Actions against the Police (Sweet & Maxwell, 2nd edn, 1992) ch 10.

23. See R Clayton and H Tomlinson Civil Actions against the Police above Chapter 4 and Police Actions (Chichester: Wiley, 1997). Note also the criminal offence of misconduct in public office: R v Dytham (1979) 1 QB 722.

24. (1998) QB 498.

25. (1998) QB 498 at 517–518. On this basis, exemplary damages are subject to an absolute maximum of £50,000, which must involve directly officers of at least the rank of superintendent.

26. For criticism, see McCowan LJ in Osman v Ferguson (1993) 4 All ER 344 at 353, Lord Keith himself in Rowling v Takaro Properties (1988) AC 473 at 501 and Lord Browne-Wilkinson in Barrett v Enfield London BC (1999) 3 All ER 193 at 197.

27. See X v Bedfordshire CC (1995) 2 AC 633; P Cane ‘Suing Public Authorities in Tort’ (1996) 112 LQR 13, even where the conduct is irrational ie in excess of the statutory discretion. A good example of this in practice is the recent case of R v Chief Constable of Sussex, ex p International Trader's Ferry Ltd (1999) 1 All ER 129, HL.

28. (1995) 1 WLR 898. See R James and D Longley ‘Judicial Review and Tragic Choices’ (1995) PL 367.

29. This position may, of course, be criticised, but that is not the aim of this article. There is an obvious overlap here with public law.

30. (1993) 4 All ER 355. While it is true to say that the main focus of the court was on proximity - on which the court, in my view rightly. held that there was insufficient proximity between the police and the victim - public policy immunity was pleaded by the plaintiff and the court uncritically affirmed the existence and application of the immunity in this case: see Beldam LJ at 366 (who also decided Oman v Ferguson). See also the approach of Kennedy J in Clough v Bussan (West Yorkshire Police Authority, third party) (1990) 1 All ER 431 at 435, which is discussed below.

31. Clough v Bussan (West Yorkshire Police Authority, third party) (1990) 1 All ER 431.

32. (1982) 1 WLR 349.

33. 1999 SC 420, (1999) Times, 11 May. See transcript at http://www.scotcourts.gov.uk. His Lordship also criticises Alexandrou v Oxford (1993) 4 All ER 328.

34. Osman v Ferguson (1993) 4 All ER 344. See paras 151–152.

G Monti ‘Osman v UK - Transforming English negligence law into French administrative law’ (1999) 48 ICLQ 757 suggests that such considerations bear a closer resemblance to French administrative law than the English treatment of duty of care.

35. (1999) 1 FLR 193, at para 144.

36. (1997) QB 464. It should be noted, however, that on the full hearing of the case, Jackson J found that the police were not in breach of duty: Swinney v Chief Constable of Nothumbria Police (No 2) (1999) 11 Admin LR 811.

37. (1997) QB 464 at 484 per Hirst LJ.

38. (1999) 1 All ER 550.

39. (1999) 1 All ER 550 at 564.

40. (1999) 1 All ER 550 at 565.

41. (1999) 3 All ER 193.

42. (1995) 2 AC 633.

43. (1999) 3 All ER 193 at 209. See also Lord Hutton at 228–229.

44. This is a variant of the floodgates argument (see J Bell Policy Arguments in Judicial Decisions (Oxford: Clarendon Press, 1983) p 71 ff), which relies on utilitarian views of the general public benefit in that it is preferable to target resources on providing a better police force for the general public than channel funds into compensating the claims of a certain group of litigants.

45. The courts appear perfectly content to rely on the inherent validity of these arguments and have not sought or instigated empirical research into their validity. See also P Cane Tort Law and Economic Interests (Oxford: Clarendon Press, 2nd edn, 1996) p 241 ff. Some empirical research has been undertaken in relation to the fire brigade by J Hartshorne, N Smith and R Everton ‘“Caparo Under Fire”: a study into the effects upon the fire service of liability in negligence’ (2000) 63 MLR 502, although their results are not conclusive.

46. The problems of dealing with substantive questions of law at the striking-out stage were recognised by Lord Browne-Wilkinson in Barrett (1999) 3 All ER 193 at 198 in relation to his decision in X v Bedfordshire CC (1995) 2 AC 633, on which he had held that an arguable case existed against the local authority where they had provided a psychology service: ‘This erroneous dictum of mine made in the course of seeking to determine a striking out application on hypothetical facts has apparently given rise to a proliferation of claims against psychology services provided by local authorities in dealing with those suffering from reading disability. It vividly illustrates how important it is to decide these cases on actual facts and not on mistaken hypotheticals.’

47. This, however, is not necessarily the case. In Kinsella v Chief Constable of Nottinghamshire (1999) Times, 24 August Tucker J emphasised that there is no absolute rule that the courts cannot strike out such claims. Where there is sufficient material evidence available on the pleadings, the balancing of public policy considerations required to be carried out in assessing whether a police force should have immunity against a negligence claim may be performed at an interlocutory stage. See also Lord Woolf MR in Kent v Griffiths (2000) 2 WLR 1158 at 1169.

48. (1997) QB 1004.

49. Bolam v Friern Barnet Hospital Management Committee (1957) 1 WLR 582. The Bolam test already provides a measure of protection for professionals. The defendant will be judged by the standard of the reasonable professional in his or her circumstances, which will allow for a level of discretion subject to the limits set out by Lord Browne-Wilkinson in Bolitho v City and Hackney HA (1997) 4 All ER 771.

50. There is an argument that because the case against the police in Hill was defeated on the issue of proximity, Lord Keith's statements on public policy were strictly obiter. Lord Templeman did base his argument on considerations of public policy, but the other judges refer to and agree with the judgment of Lord Keith. The House of Lords has yet to decide a case purely on public policy grounds. However, this argument is unlikely to hold any weight with the courts. In Calveley v Chief Constable of the Merseyside Police (1989) AC 1228, where Hill was not cited, it clearly influenced Lord Bridge's judgment. However, the ground given by the House for rejecting the police officers’ claim for negligence in that case was that the loss suffered was not reasonably foreseeable damage capable of sustaining an action in negligence. More recently, the House of Lords raised, but distinguished the Hill policy grounds in Waters v Commissioner of Police for the Metropolis (2000) Times, 1 August (Lord Jauncey dissenting) in refusing to strike out a claim by a police officer for harassment and victimisation by her fellow officers.

51. See Swinney v Chief Constable of Northumbria Police (1997) QB 464 and Osman v United Kingdom (1999) 1 FLR 193.

52. (1990) 2 AC 605 at 633.

53. Proximity is here used in its narrow sense and not as an overall concept determining the duty of care.

54. Hill v Chief Constable of West Yorkshire (1989) AC 53 at 62. Contrast Doe v Board of Commissioners of Police for Metropolitan Toronto (1989) 58 DLR (4th) 396, affirmed by the Divisional Court (1990) 72 DLR (4th) 580 (striking out); (1998) 160 DLR (4th) 697 (trial).

55. (1993) 4 All ER 355.

56. Clough v Bussan (West Yorkshire Police Authority, third party) (1990) 1 All ER 431.

57. (1982) 1 WLR 349.

58. See Lord Goff in Smith v Littlewoods Organisation Ltd (1987) AC 241 This article does not propose to examine critically the law of omissions, but will focus on the impact of the current restrictive approach.

59. (1993) 4 All ER 355.

60. Clough v Bussan (West Yorkshire Police Authority, third party) (1990) 1 All ER 431.

61. See J Stapleton ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301, 310–317. This argument was raised by the government in Osman v United Kingdom (1999) 1 FLR 193, which argued that the Osmans could have sued their attacker, Paget-Lewis, or Dr Ferguson, the ILEA psychiatrist, for compensation. The court held, at para 153, that such claims would not have enabled them to secure answers to the basic question which underpinned their civil action, namely why did the police not take action sooner to prevent the attack. This is in contrast to the position taken by Lord Templeman in Hill.

62. Alexandrou v Oxford (1990) (1993) 4 All ER 328. Capital and Counties plc v Hampshire CC (1997) QB 1004 at 1030: ‘The Fire Brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, get lost on the way or run into a tree, they are not liable.’

63. (1997) QB 1004.

64. (1993) 1 All ER 692.

65. See generally Hedley Byrne v Heller (1964) AC 465 and Henderson v Merrett Syndicates (1995) AC 145.

66. (1993) 1 All ER 692. See also Kirkham v Chief Constable of the Greater Manchester Police (1990) 2 QB 283, where the police were found liable for failing to inform the prison authorities that the prisoner was a suicide risk on the basis that they had voluntarily assumed responsibility to him to pass on this information. Contrast Leach v Chief Constable of Gloucestershire Constabulary (1999) 1 All ER 215, where the police were held not to assume responsibility towards an appropriate adult who had volunteered to assist a mentally disordered interviewee.

67. (1993) 1 All ER 692 at 703.

68. (1995) QB 335 at 348.

69. (1997) QB 464 at 484, although Peter Gibson and Ward LJJ take a more restrictive view. See also Hardaker v Newcastle Health Authority (8 March 1996, unreported) where Waterhouse J struck out a claim against a coastguard on the basis that the coastguard did not owe a duty of care to ensure the claimant was expeditiously transferred for decompression treatment. Waterhouse J held nevertheless that if the coastguard had assumed responsibility to a particular individual, a limited duty of care would be imposed despite the strong policy grounds against recovery.

70. (1999) 1 All ER 550.

71. (1990) (1993) 4 All ER 328. Contrast the approach of the Outer House of the Court of Session in Gibson v Chief Constable of Strathclyde Police (1999) Times, 11 May, where the police, by taking control of a hazard on a public road, but later withdrawing without putting any barrier or warning in place, were held to be in a sufficiently proximate relationship with road users likely to be immediately and directly affected by that hazard.

72. (2000) 2 WLR 1158.

73. See eg the public authority cases such as X v Bedfordshire CC (1995) 2 AC 633 and Phelps v Hillingdon LBC (2000) 3 WLR 776.

74. (1997) QB 1004. Consolidated with John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority and Church of Jesus Christ of Latter-Day Saints (Great Britain) v West Yorkshire Fire and Civil Defence Authority. See J Hartshorne ‘The liability in negligence of the fire service - the Court of Appeal decides’ (1997) 13 PN 53.

75. See also East Suffolk Rivers Catchment Board v Kent (1941) AC 74.

76. (1997) 3 All ER 897.

77. W V H Rogers Winfield and Jolowicz on Torts (Sweet & Maxwell, 15th edn, 1998) at p 120 also suggests that the generous approach may also be based on perceived difficulties in proving cause and effect and lack of sympathy for the plaintiffs, who were seeking a contribution in circumstances in which one of their officers had been convicted of manslaughter in respect of the incident.

78. One may equally seek to question May J's judgment in Daly v Surrey CC (23 October 1997, unreported) where the fire brigade had told the workmates of the victim, who was trapped in an excavation trench, to stop trying to rescue him whilst they implemented their own rescue plan. As a result, Mr Daly was trapped for longer and died. On the assumption that his workmates could have saved Mr Daly if they had continued in their efforts, did not such conduct render his predicament significantly worse?

79. (1970) AC 1004. Lord Diplock's judgment should be noted in particular at 1070-1071, which is relied upon by Lord Keith in Hill v Chief Constable of West Yorkshire (1989) AC 53 and McCowan LJ in Osman v Ferguson (1993) 4 All ER 344. See also Ellis v Home Office (1953) QB 135 (duty to prevent prisoners being attacked by a fellow prisoner) and Hartshorn v Home Office (21 January 1999 unreported, CA), S Foster (1999) 149 NLJ 799 (prison authorities liable in negligence where a prisoner had been assaulted by fellow prisoners who had negligently been allowed to come on to the plaintiff's wing from another part of the prison).

80. (1993) 4 All ER 344. The case of course fell on public policy grounds.

81. Hill v Chief Constable of West Yorkshire (1989) AC 53.

82. The possibility of greater liability resulting from arguments of general reliance has received little support. Such arguments were raised by Lord Hoffmann in Stovin v Wise (1996) AC 923 at 952–953, who relied on Mason J's dictum in Sutherland CC v Heyman (1985) 157 CLR 424 at 464, whereby a public service might be rendered liable for omissions where there is a general expectation that the service can be depended upon to intervene. For doubts, see Capital and Counties plc v Hampshire CC (1997) QB 1004 at 1026–1028 and May J in OLL v Secretary of State for Transport (1997) 3 All ER 897 at 907, who states that no such duty of care arises in English law.

83. (1990) (1993) 4 All ER 328.

84. (1997) QB 464.

85. See eg Lord Keith in Hill v Chief Constable of West Yorkshire (1989) AC 53 at 63: ‘From time to time [the police] make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it.’

86. (1999) 1 FLR 193, (1999) 11 Admin LR 2000, (1998) 5 BHRC 293.

87. Hill v Chief Constable of West Yorkshire (1989) AC 53.