On 9 May 2023, Ritchie J sitting in the High Court handed down judgment in Woodcock v Chief Constable of Northamptonshire Police  EWHC 1062 (KB) which addressed the question of whether the police had a duty to warn the Claimant that her violent ex-partner was lurking outside her home. A link to the judgment is here.
The Claimant had been in an abusive and coercive relationship with “RG”. On 4 February 2015, they split up. On 19 March 2015, as the Claimant was leaving her home with her two children, she was viciously attacked by RG and stabbed at least seven times in her chest and body. RG was convicted of attempted murder and imprisoned for life.
At 7:32 am, about 12 minutes before the attack, a neighbour made a 999 call to the Defendant to inform them that RG was loitering outside the Claimant’s house:
“I can see him lurking outside the lady’s house, I think he’s gonna attack her when she comes out to go to work… He’s pacing up and down with his arms behind his back… I think he’s going to attack her; she’s going to go to work about 7:45… He’s lurking on the corner… she’ll have her children with her as well because they’re going to school…”
At 7:36 am, the police were dispatched to the Claimant’s house. They did not make any phone call to warn the Claimant that RG was outside.
The question for the Court was: did the police owe the Claimant a duty to pass on the neighbour’s warning?
As Lord Toulson summarised in Michael v Chief Constable of South Wales Police  AC 1732 (from ), which was a case concerning a victim who was murdered by her ex-boyfriend shortly after reporting to police that he had threatened to kill her, English law does not as a general rule impose liability on a Defendant for injury or damage to the person or property of a Claimant caused by the conduct of a third party as this would impose liability for pure omissions.
Apart from statutory exceptions, the common law may impose liability for a pure omission where: (1) the Defendant is in a position of control over the third party and should have foreseen the likelihood of the third party causing damage to somebody in close proximity if the Defendant failed to take reasonable care in the exercise of that control; or (2) the Defendant has assumed a positive responsibility to safeguard the Claimant under the Hedley Byrne principle. Such a duty typically arises in relationships in contexts such as employer-employee, school-pupil and health professional-patient.
In determining whether there was a duty to protect or duty to warn, Ritchie J examined a number of high-level authorities including the relatively recent case of Tindall v Chief Constable of Thames Valley  4 WLR 104 which was analysed by Gareth McAloon on this blog here.
Ritchie J distilled the key points from the authorities at  of his judgment and summarised in outline below:
- The general common law principles which apply to the imposition of a duty of care on any member of the public apply as normal to the police.
- The police are under a general duty of care to their neighbours during the course of their operations (in the Donoghue v Stevenson sense) and so will be held liable for their actions which cause damage to persons who are, or property which is, proximate to them and may reasonably foreseeably be damaged or injured by their careless actions, subject to the clear public policy considerations which may affect the existence or extent of such a duty;
- The police owe no general civil liability duty of care to protect the public at large and so, if the police fail to find or catch criminals who then injure members of the public or damage property, the police are not liable (whether qua insurers or otherwise) for the injury or damage caused by those third party criminals.
- The exceptions to the general rule that the police are not liable and owe no duty of care for failing to act or failing to prevent harm caused by criminals are limited to cases where: (1) the police have assumed a specific responsibility to protect a specific member of the public from attack by a specific persons or persons; (2) exceptional or special circumstances exist which create a duty to act to protect the victim and/or it would be an affront to justice if they were not held to account to the victim.
Ritchie J then proceeded to elucidate five guideline factors which Courts will have regard to, when analysing the evidence, to determine if a duty of care has arisen on the police to act to protect a member of the public. Ritchie J’s analysis of those five factors on the facts of Woodcock is set out below.
Decision in Woodcock
Ritchie J found that the Defendant owed a duty at common law to call the Claimant once they had been informed by a neighbour that RG was loitering outside; the duty arose immediately after the neighbour’s phone call (at ). However, there was no civil law duty to protect the Claimant physically, beyond providing the warning.
The breadth and depth of the analysis undertaken by Ritchie J, in concluding that there was a duty to warn on the specific facts of the present case, demonstrate the exceptional and extremely fact-sensitive nature of such a duty.
At , Ritchie J analysed the evidence in Woodcock, having regard to the five evidential factors he had distilled from the authorities, set out at  of his judgment:
(a) The foreseeability of harm and the seriousness of the foreseeable harm to a specific member of the public: it was reasonably foreseeable to the Defendant that the Claimant was at high risk of serious injury after the 999 call from the neighbour and in light of the various circumstances leading up to the attack including the long history of domestic abuse by RG on the Claimant, recent threats and RG trespassing onto the Claimant’s property the day before the incident.
(b) The reported or known actions and words of the specific alleged protagonist in relation to the feared or threatened harm: RG was a specific protagonist who had inter alia made undisputed threats to kill, repeated breaches of bail conditions, and repeated criminal damage in an attempt to get into close contact with the Claimant;
(c) The course of dealing between the potential victim, the police and the alleged protagonist focussing on proximity: RG had repeatedly failed to comply with protective bail conditions and his attempts to get close to the Claimant in the days leading up to the attack had substantially increased. In fact, the Defendant’s officers had decided they wanted to arrest RG by the late evening of 18 March for threats to kill, criminal damage and breach of bail conditions. The danger to the Claimant at 7:32 am was “immediate and obvious” in the Judge’s view.
(d) The express or implied words or actions of the police in relation to protecting the victim from attack by the protagonist and the reliance of the victim (if any) on the police for protection as a result: the Judge found that there was a “very close tripartite nexus in which the Claimant was relying on the Defendant’s officers’ advice and the safety plan”. The police had asked neighbours to keep watch for RG and to keep the Claimant or the police informed.
(e) Whether the public policy reasons, for refusing to impose a duty of care for omissions and failures to prevent, outweigh the common law rules on providing compensation for tortiously caused damage or injury. Ritchie J had regard to Lord Keith’s consideration of public policy in Hill v Chief Constable of West Yorkshire  AC 53, a case concerning whether there was any duty owed by the police to apprehend mass murderer Peter Sutcliffe before he murdered his last victim:
The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime… 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… The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime…
Returning to Woodcock, Ritchie J found that the public policy reasons in Hill and the refusal of the common law to impose a general duty of care in civil law on the police to protect the public from the crimes of third parties should not stand as a bar to the “limited and precise duty to warn on the facts of this case”. The cost of passing on the “vital information” given by the neighbour was “infinitesimal”. There was no good reason to keep the information secret but very good reasons to inform the Claimant. Such a duty of care would not undermine the police’s operational decision-making or lead to a plethora of litigation.
In addition, Ritchie J considered that the Defendant’s words and actions, in the full circumstances of the case, gave rise to the Claimant having a reasonable expectation that the Defendant would warn her that RG was loitering outside her house (at ) and that the Defendant had assumed a responsibility to warn the Claimant to that effect. The Defendant had breached its duty to warn by failing to call the Claimant after the neighbour’s 999 call (at ).
On causation, there was an evidential gap. Ritchie J declined to infer that if the neighbour’s message had been passed onto the Claimant, she would have waited at home. The issue of causation was remitted to the trial Judge to hear further evidence.
The wider application of the five factors in Woodcock
At , Ritchie J said:
In my judgment, only if factors (a) to (c) and (e) [and in some cases also (d)] are proven, on the balance of probabilities by the Claimant, with sufficient weight and severity and immediacy, will the common law combined with public policy exceptionally permit the Courts to rule that a civil law duty of care was owed by the police to the specific potential victim to protect him or her from the actions of the specific third party criminal in the circumstances or to warn him or her of danger.
To adopt the words of Lord Toulson, giving judgment for the majority of the Supreme Court in Michael, the quest for some universal formula or yardstick for negligence has been elusive.
This becomes particularly apparent in cases like Woodcock concerning the police’s duty of care in relation to third party conduct.
The majority in Michael (see e.g. , , , ) recognised a number of problems presented by previous attempts to devise a single formula: Should it matter if a threat is reported by the victim or by someone else? Does the threat need to be credible and imminent or just credible? What if the police fail to catch a criminal before he shoots and injures his intended victim and also a bystander – is it right that a particular potential victim should be entitled to compensation but not the other? Does it matter if the whereabouts of the person making the threat is known or unknown? Does it make a difference if the threat is to property or to a person?
Happily, the categories of negligence are never closed, which ensures that claims such as Woodcock sound in compensation where merited – notwithstanding their novel factual circumstances. The price for such flexibility is uncertainty. It is difficult to predict which way a Court will decide such cases given the plethora of circumstances that need to be considered. In reaching a decision on the existence of a duty of care, the Courts have had to trundle through the wildly varying facts of previous authorities and try to work out whether the case at hand is more similar to X case or Y case.
Ritchie J’s distilling from the authorities of five evidential factors which the Courts will have regard to, in deciding if a duty to warn has arisen, strikes a balance between achieving more consistency whilst avoiding the problems of a catch-all formula.