Date: Mon, 8 Oct 2007 00:55

From: Neil Foster

Subject: Police liability

Dear Michael, John, etc

I read through the Hill v Hamilton-Wentworth decision over the weekend, at the same time as I have been working through Allan Beever's new book Rediscovering the Law of Negligence (Hart, 2007) which our library just got in. (For those who haven't read it yet, it is fascinating, a really important work which seems to me to break some new ground and also to be very readable! I don't know if Allan's on this list so I'm not saying that to be polite!)

I was wondering whether anyone else has read Allan's book and would like to comment on how his theory would suggest the issue of police liability to suspects for negligent investigation should be resolved. (I can't see that it is dealt with in the book, though I may be wrong - Sullivan v Moody doesn't even seem to rate a mention, oddly.) As I read it the core of Allan's theory (based on a corrective justice view of negligence) is that there should be a duty of care based on reasonable foreseeability, focusing on the relationship between the claimant and the defendant, and the issue of whether some right the claimant has, has been interfered with by the defendant, not encumbered by extraneous policy considerations. (See one summary at p 133 of the book; also p 512.)

In the police duty case, one could argue that the interest that a potential suspect has (i.e. you and I and everybody in society) is not to have their personal bodily integrity, liberty (and presumably reputation) interfered with unreasonably by the State in conducting investigation of crime. The State in conducting its investigation is actually doing something positive, not "failing to act", so the issue of nonfeasance is not present. If society thinks that such investigations should not be hampered by having to worry about being "reasonable", then it can put in statutory immunity. But the courts in developing the law of torts should not do so.

So I am saying that Allan's approach would support the decision reached by the majority of the SCC in this case, though it would get there by a different route.

(PS I just remembered that at the moment we have to manually add "ODG" to the subject line of messages.)

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> "Jones, Michael" 5/10/07 11:30 >>>

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.

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