In my last blog, I referred to a successful claim against the National Crime Agency where by reason of an administrative mistake my client had been wrongly arrested and then given onerous bail conditions for several months.
The National Crime Agency admitted, correctly, liability for false imprisonment and breach of Articles 5 & 8 of the Human Rights Act. However, any claim against the National Crime Agency in negligence would, in my opinion have failed. Why? Because as a general rule, no duty of care is owed by the National Crime Agency (and other prosecuting agencies) because of the “Hill principle” which established that the Police (and other prosecuting agencies) owe no duty of care to individual members of the public for acts committed in the course of investigating or suppressing crime.
The exception to that general rule is where the Defendant has assumed a responsibility towards a Claimant. That well-established proposition was most recently upheld by the Court of Appeal in An Informer v A Chief Constable  Q/B/ 579 in which the Court cited with approval the decisions in Welsh v Chief Constable of Merseyside and Elguzouli-Daf v Commissioner of Police of the Metropolis and the Crown Prosecution Service.
Toulson LJ held:
- A third category case where the Hill principle does not apply is where there is a special relationship between the parties, or, more specifically, an assumption of responsibility by the police to the Claimant.
- Lord Brown in Van Colle considered that Swinney v Chief Constable of Northumbria Police Force  QB 464, considered below, provided an example of such a case. Moreover, in Van Colle, Lord Hope referred to the fact that Swinney had been distinguished by Lord Hamilton in Gibson v Orr, and accepted that it fell outside the Hill principle (page 623A). The other members of the House, apart from Lord Bingham, agreed with Lord Hope.
- An assumption of responsibility could also exist where the police take control of a situation, as where they hold a person in detention in a police cell.
- An assumption of responsibility may be by express words. In the analogous field of the liability of the Crown Prosecution Service (“CPS”) to a defendant in a criminal case, this is established by Welsh v Chief Constable of Merseyside Police, to which Pill LJ refers at paragraph 139 of his judgment. Lord Brown also refers to Welsh at paragraph 135 of his speech in Van Colle. Welsh was itself distinguished by this court in Elguzouli-Daf v Commission of Police for the Metropolis  QB 335. This also concerned the question whether the CPS owed a duty of care to a defendant in the conduct of the prosecution to convey matters to the court. This court recognised that a duty could arise if the CPS had voluntarily assumed responsibility to the plaintiff. In Welsh, Tudor Evans J held that there had been an express assumption of responsibility.
- The courts may also find an assumption of responsibility on an evaluation of the facts: see the authorities cited by Pill LJ at paragraph 165 and 166 of his judgment. If there is on the facts a sufficient relationship between the parties, the Hill principle does not apply.
Instances of “assumption of responsibility” are relatively few, but one such case concerned my client, Mr. S.
In May 2011, Mr. S , then 19 years old, was lawfully arrested by officers of Merseyside Police when he was found to be in possession of a small amount of Cannabis, a controlled drug of Class B, in contravention of the Misuse of Drugs Act 1971.
Mr. S was taken to his local Police Station where he was lawfully detained.
A short while later, Mr. S was charged as follows:
‘On 10/05/2011 you had in your possession a small quantity of Cannabis, a controlled drug of Class B in contravention of section 5(1) of the Misuse of Drugs Act 1971’.
Immediately after charge Mr. S was bailed on condition that he surrender to the custody of his local Magistrates’ Court on 27 May 2010.
On the 25 May 2011, the CPS sent an email to Merseyside Police in the following terms;
‘Please see attached conditional caution authority. Please can you arrange an appointment with the Defendant? I note his phone number is on the charge sheet. If this can be done prior to first appearance please sent confirmation …….. The case can then be withdrawn at court without the need for the defendant to attend. He is due in court on 27 May. Otherwise the case will be adjourned for two weeks for this to be done.
On 26 May 2011 an officer of Merseyside Police attended Mr. S’s home address and advised him to attend his local Police Station in order to accept a caution and thereby avoid the need to surrender to the custody of the Court on the following day.
Mr. S as requested, attended at the Police Station where he was issued with a conditional caution and was informed that he was no longer required to attend the Magistrates’ Court on 27 May 2011.
Mr. S’s custody record was then indorsed by Sergeant J.D. as follows:
‘D/P attends stn and is issued with cond caution as per CPS. All relevant forms signed and issued. CPS, CJU and CMU informed’.
Sergeant J.D. at 15.37h on 26 May 2011 sent an email to the CPS as follows;
‘Mr. S has now been cond cautioned as req, PNC has been updated. Please see below for signed docs.
Mr. S understandably relied upon the fact that he had accepted the caution with the effect that the prosecution against him was withdrawn. He therefore did not attend the Magistrates’ Court on 27 May 2011, having been assured by Merseyside Police that, in accordance with the email set out above, he did not need to attend.
On 27 May 2011 following Mr. S’s non-attendance, the CPS advocate in Court failed to inform the Court that the caution had been administered and the case against Mr. S. withdrawn. No information was before the Court to confirm that the caution had been administered.
The CPS advocate instead at 12.05h asked the Court to issue a warrant not backed for bail for Mr. S’s arrest, which it did. The Court register confirmed that the warrant for arrest without bail was issued on the following basis: ‘no appearance to answer to bail’.
The said warrant was then executed upon Mr. S at around 18.35h on 27 May 2011 by an officer of Merseyside Police who arrested him under no authority other than that provided by the warrant.
Mr. S was taken to his local Police Station where he arrived at approximately 18.50h and his detention was authorised at 19.02h ‘for the purpose of Warrant (no bail)’.
Mr. S was kept in overnight before production at the Court the next morning.
Mr. S explained that he had already been cautioned for the offence of possession of Cannabis and had been told that as a consequence the case against him had been withdrawn. The Court Register confirmed that Mr. S was then granted unconditional bail until 6 June 2011 for the CPS to make enquiries.
On 6 June 2011 the Claimant returned to Court and after some 30 minutes, he was advised that a mistake had been made and he was released.
Given those circumstances, I was of the opinion that the CPS had “assumed a responsibility” towards Mr. S and were therefore negligent. I argued that:
- A duty of care in negligence existed because the CPS had assumed a particular responsibility towards M. S when by an email on 25 May 2011 it had requested Merseyside Police to administer a caution to Mr. S upon which it undertook to withdraw the case against him or, alternatively, because it would inevitably follow from the administration of the caution that the case against Mr. S would be withdrawn;
- The CPS was (by the email from Sergeant J.D. on 26 May 2011) informed that the caution had been administered as requested. The said caution was administered that day;
- The CPS was in the circumstances under a duty on the morning of 27 May 2011 to take reasonable steps to update the Police National Computer, and/or to inform its advocates and/or representatives and the Court that:
- the caution had been administered such that the case was withdrawn;
- Mr. S need not attend Court;
- the Court was not seized of any offence in respect of Mr. S.
- The CPS failed to take any such reasonable steps and therefore breached the aforementioned duty;
- The CPS further breached the said duty when it caused the Court to issue a warrant for Mr. S’s arrest, which warrant caused Merseyside Police to arrest and detain Mr. S and to bring him before the Court on 28 May 2011.
As a result of the said failure, Mr. S suffered loss and damage specifically; loss of liberty from the time of the execution of the arrest warrant at around 18.35h on 27 May 2011 until the time of his release from the custody of the Court on the morning of 28 May 2011, a total time of approximately 16 hours and a further period of loss of liberty when he was obliged to surrender to the custody of the Court on 6 June 2011 for some 30 minutes.
Of course, the CPS disputed the claim and denied the assumption of responsibility and negligence.
Nonetheless I was satisfied with my assessment. On my advice, Mr. S issued proceedings. The CPS maintained its denial and the case was eventually fixed for trial.
This was an exceptional but by no means unique case and I was adamant that a duty of care did exist because the CPS had assumed responsibility to Mr. S ‘by express words’. Moreover, per Welsh and Eguzouli-Daf, that duty was to take all reasonable steps to convey information to the Court. There was plainly here a ‘sufficient relationship between the parties’.
The facts in Welsh v Chief Constable of Merseyside Police  1 All ER 693 were strikingly similar: the CPS had agreed to certain offences being taken into consideration when the claimant was before the Crown Court, but then failed to relay that information to the Magistrates’ Court who had been dealing with him for those offences, resulting in him being taken into custody.
The Court of Appeal’s discussion of Welsh in Elguzouli-Daf  Q.B. 335 was also useful.
‘The judge approached the matter on the basis that the CPS assumed by conduct a responsibility to keep the Magistrates’ Court informed as to the fact that the offences had been taken into consideration’.
The existence and nature of the duty of care in Mr. S’s claim was abundantly clear from the contemporaneous documentation:
(i) The CPS by email asked Merseyside Police to administer a caution to Mr. S on the explicit basis that if he accepted the same the case against Mr. S would be withdrawn at Court and he would therefore not have to surrender to the Magistrates’ Court the following day, or on any other date;
(ii) An officer visited Mr. S’s home address to confirm this and Mr. S promptly attended the police station where the above position was again confirmed and the caution accepted.
(iii) Sergeant JD of Merseyside Police endorsed the Custody Record confirming that the caution had been issued ‘as per CPS’ which, confirmed, if further confirmation were needed, that it was the CPS who had taken the decision to offer to Mr. S a caution which would obviate the need to surrender to the custody of the Court, as per the email set out above;
(iv) Sergeant D then indicated on the Custody Record ‘All relevant forms signed and issued. CPS, CJU and CMU informed’. The CPS did not deny that it was indeed informed that the caution had been issued.
The existence of the duty of care here was therefore manifest: the CPS had sent an email assuming a particular responsibility to Mr. S and Merseyside Police acted on the CPS’s behalf in communicating that Mr. S need not attend Court because the case against him was withdrawn upon his acceptance of the caution on 26 May 2011.
Accordingly the duty of care imposed an obligation upon the CPS to inform its own advocate at South Sefton Magistrates’ Court on 27 May 2011 and also the Court that it had discontinued the case against Mr. S the previous day.
I assume that the CPS eventually realised the force of my argument ,as shortly before trial, I am pleased to report that the CPS agreed, albeit without a formal admission of liability, a substantial settlement.
As stated by Lord Justice Pill in An Informer the “Hill principle” does not give the Police nor the CPS a “carte blanche” to mislead the Court.
There should be no expectation that the police or CPS can hide behind an ‘immunity’ from negligence claims in cases where they have not merely been careless or slow in progressing a case or evaluating evidence but were they have actively caused a person’s imprisonment by way of an obvious error.