I have previously written about ‘Clare’s’ case; a young vulnerable victim of domestic abuse groomed and sexually exploited by a serving Police Officer, PC Powell.
I am pleased to report that Clare’s case has now been successfully concluded; on my advice, Clare brought a claim against West Mercia Police for misfeasance in public office and successfully recovered £25,000 compensation plus her legal costs.
Clare first contacted me shortly after PC Powell had been sentenced to 15 months imprisonment at Gloucester Crown Court for Misconduct in Public Office. PC Powell had admitted that:
- When acting as a public officer he wilfully neglected to perform his duty and/or wilfully misconducted himself
- To such a degree as to amount to an abuse of the public’s trust in his office without reasonable excuse or justification.
per Attorney General’s Reference number 3 of 2003  EWCA Criminal 868.
Clare felt that PC Powell’s personal behaviour was reprehensible but that West Mercia Police were also at least partly responsible, as PC Powell had been warned for similar misconduct in 2008 but had been allowed to continue in office without adequate supervision, and in particular had been allowed to continue to have conduct with victims of domestic abuse.
On review, it struck me that Clare had a potential civil claim for misfeasance in public office, an ancient tort originally developed during the eighteenth century for the benefit of electors willfully refused the right to vote and increasingly deployed in civil actions against the police in more recent times.
What is misfeasance in public office?
In order to establish a successful claim for misfeasance, the Claimant must show that:
- A public officer;
- Exercised a power in that capacity; and
- The officer intended to injure the Claimant by his/her acts. This is known as ‘targeted malice’; or
- The officer knowingly or recklessly (in the subjective sense) acted beyond his/her powers. This is known as ‘un-targeted malice’; and
- The officer’s act(s) caused damage to the Claimant; and
- The officer knew or was subjectively reckless to the fact that his/her act(s) would probably cause damage of the kind suffered by the Claimant.
If misfeasance can be established against a serving Police Officer then his Chief Constable, and therefore in effect the whole Force as an organisation, becomes ‘vicariously’ liable to pay damages to the wronged/injured party. In a case like Clare’s this would be an eminently fair result, owing to the failings of the Force and Senior Officers in allowing PC Powell to prey upon domestic abuse victims (as highlighted in my previous blog).
Proving Clare’s Claim
In support of the claim for misfeasance, it was clear that PC Powell was acting as a public officer in the West Mercia Police Force when he abused Clare:
- PC Powell was responsible for investigating crimes and incidents in which Clare was a victim and for taking action and providing support to Clare in respect of the same.
- PC Powell engaged in sexual relations with Clare during his working hours and whilst on duty (and on a number of occasions whilst wearing his uniform).
- In all the circumstances, there was clearly a very close connection between PC Powell’s conduct and the performance of his duties, such conduct having taken place in the performance or purported performance of his policing duties and his relationship with Clare having been established through the position of authority he held as the investigating officer in her case.
During the course of his office, PC Powell exercised powers as a Police Officer and was responsible for the following acts:
- Sending and receiving text messages and telephone calls of a personal and sexual nature to Clare, a victim of domestic abuse.
- Requiring Clare to attend at the police station on a number of occasions.
- Attending Clare’s home address on a number of occasions.
- Instigating and engaging in a sexual relationship with Clare, a victim of domestic abuse.
Although often difficult for Claimants to prove bad faith on the part of the officer, here it was blatantly apparent that PC Powell acted with malice in that he:
- Knew that Clare was a vulnerable victim of domestic abuse and that she would, or would be likely to, respond to apparent care, concern and attention on his part and thus knew and intended or did not care that he could injure Clare, by instigating an inappropriate sexual relationship with her;
- Specifically targeted Clare as a vulnerable victim of domestic abuse in order to exert control over her and for his own sexual gratification;
- Instigated a personal and sexual relationship with Clare in flagrant disregard for his professional duty as a Police Officer assigned to her case.
In all the circumstances, it was apparent that PC Powell knew of, or was reckless to the risk that his acts would probably cause harm to Clare, but proceeded to act, indifferent to that risk
By reason of PC Powell’s conduct, Clare had suffered material damage, specifically she reported psychological trauma as a result of the relationship and such injury was reasonably foreseeable specifically;
- Immediately following the incident, Clare experienced disturbed appetite, disturbed sleep, low mood and a degree of weight loss. Clare lost confidence, which affected her self-esteem.
- Clare felt as though PC Powell had sexually exploited her. Clare felt ‘dirty’, ‘used’, and ‘stupid’, and as though she has done something wrong. Clare felt that PC Powell abused her trust.
- Clare’s view of the police was also affected by the incident and she felt very negatively about the police. Clare said that she would be reluctant to contact the police for assistance in the future.
Notwithstanding the broad nature of this civil wrong, the Courts have routinely issued warnings to lawyers against actions for misfeasance in public office being brought unless there is clear evidence to support a contention of dishonest abuse of power (see Masters v Chief Constable of Sussex  EWCA Civ 1482) Unlike claims in false imprisonment and assault, the burden of proof lies squarely on the Claimant at each stage. It is a difficult burden to overcome in the absence of clear evidence of bad faith.
Notwithstanding these issues, I was confident of success and agreed to act on behalf of Clare by way of ‘no win no fee’ agreement.
I believe that my robust presentation of Clare’s case encouraged West Mercia Police to admit liability early on. It is a pity that they did not agree settlement terms swiftly but that will be for another blog.