Date: Michael Jones

From: Fri, 5 Oct 2007 14:30

Subject: Police liability

Dear John,

Secondly, although not worried about financial consequences, individual officers could still disciplined, demoted, forced into early retirement etc. So even though they won't be required to cough up the damages, there is still the prospect of heightened accountability, both prior to the potential cock up (as in the "do things in pairs" example) and retrospective (as in the disciplining, demoting etc example).

Don't individual officers face disciplinary sanctions already - albeit not as frequently as some of the newspaper reports on police cock-ups might seem to warrant? Arguments about "defensive practice" are very easy to make, but very rarely is there any empirical evidence to justify them (I have looked at this issue in the context of medical malpractice over a number of years).

Secondly, is it not arguable that we actually need a bit more accountability from the police service? I say this against the background of a high profile prosecution currently in progress arising out of the shooting dead of an entirely innocent member of the public because someone in the police service (wrongly) identified him as a terrorist with a bomb. He was shot seven times in the head at point blank range. As you know (one of) the remarkable features of the case, is that no individual police officer will be prosecuted for manslaughter, but the police service is being prosecuted for breach of health and safety legislation. Well, as the facts demonstrate, 7 pieces of lead in the head is surely dangerous to health.

Even if there is a conviction, I'm not sure that fining the police service (there is a snowball's chance in hell of any police officer being imprisoned) will reassure the public (well, certainly not me) that the police are accountable. I would not in the least want to underestimate the difficulty of the task facing the police when dealing with potential terrorist incidents - on the other hand, I'm not sure that I feel any safer if they are running around pouring bullets into "suspects" on false information.

What chance of a successful negligence/trespass action against the police by the family of the victim? Would the defensive practice argument be: "If we are worried about being sued/prosecuted/disciplined we may not shoot first and ask questions later next time, and a terrorist may let off a bomb killing dozens of people". On the other hand, might the argument for accountability go: "If you are not worried about being sued/prosecuted/disciplined you need not worry about whether the person you are about to kill is an innocent member of the public". Personally, I would like the police to be "worried" about both possible outcomes, and to make the best possible decision in the circumstances, whilst recognising that they are human and sometimes may get the judgment wrong.

But we won't produce a safer society by asking them to worry about only the first possibility; just as you cannot defend liberal democratic societies from terrorism by passing whole rafts of draconian anti-civil liberties legislation.

Best wishes,

Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
--------------------------------------

--------------------------------------------------------------------------------
From: John Murphy
Sent: Fri 05/10/2007 10:28
Subject: Re: Police Liability

Dear David:

I feel I should say thanks for the swift feedback. But I think it is more apt to say: Go back to bed, you fool (unless of course you are on this side of the pond, just now).

Anyway, I take your points that (i) the police are insured and (ii) individual officers can hide behind vicarious liability. But there are still at least 2 reasons why practice may change.

First, the opening up of liability may lead to an institutional response (e.g., the big chiefs of the police force now insist "you guys must now do things in pairs rather than alone").

Secondly, although not worried about financial consequences, individual officers could still disciplined, demoted, forced into early retirement etc. So even though they won't be required to cough up the damages, there is still the prospect of heightened accountability, both prior to the potential cock up (as in the "do things in pairs" example) and retrospective (as in the disciplining, demoting etc example).

No doubt, time will tell. In the meantime, get some sleep.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>