29 September 2009

Hanscombe on a Hiding to Nothing?

The Independent reports, "Rachel Nickell: Boyfriend plans legal action,

The partner of murdered Rachel Nickell said he had instructed lawyers to try to bring the police to account for their failings in the case.

Andre Hanscombe's son Alex witnessed the murder and sexual assault of his mother on Wimbledon Common on 15 July, 1992 at the hands of Robert Napper.

Napper was convicted in December last year, 16 years after Miss Nickell's death.

I don't know if this will get anywhere.

The problem is that, in general, it isn't possible to sue the police in negligence. In Hill the Yorkshire Ripper murdered someone; at the time, and in hindsight, the police should have caught him. It was said to be due to the negligence of the police that the Ripper went on to kill. Hill tried to sue the police in negligence for the loss of their daughter - but failed.

When establishing negligence, the claimant has to establish that the potential tortfeasor owed a duty of care, one of the factors that determines whether or not this duty of care exists is public policy. In Hill, Lord Keith of Kinkel explained that the imposition of this duty of care may not be in the public interest, since it could impede the functioning of the police,

"From time to time they 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. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind."

Hill was reviewed in Van Colle where the Cox J said,

"Those cases in which, on their particular facts, the existence of the Article 2 positive obligation to protect life would impose a disproportionate or impossible burden on the police, would inevitably be cases where no duty of care would be held to exist at common law. Those cases in which the claimant succeeds could well be cases in which, as Lord Nicholls observed in Brooks, the absence of a common law remedy in negligence, sounding in damages, would be regarded as an "affront to the principles which underlie the common law.""

Is the Nickell case an affront to those principles?

Bear in mind that the Hill ratio still stands when talking about a duty owed to the general public, rather than a specific individual.

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