Allen and others v The Chief Constable of the Hampshire Constabulary [30.07.13]
Court of Appeal confirms Defendant not vicariously liable for acts of police officer; claim under European Convention on Human Rights also dismissed.
This was a very clear and decisive judgment by the Court of Appeal, which agreed with the observation of His Honour Judge Mitchell that:
"It is not on the law upon which these Claimants founder; it is upon the factual basis which ... is simply not there...".
The decision shows that defendants and their insurers should consider the factual allegations at an early stage and decide whether the matter is “fit for trial” or whether if there is “an absence of reality”. Where a claim has no realistic prospect of success, it is in all the parties’ interests (especially post-Jackson) to make an early application to bring the proceedings to an end, and thereby save substantial costs and court time.
In December 2003 the First Claimant began a relationship with PC Luchesa, an officer of the Defendant. They married in June 2005 and separated in February 2006. The Second and Third Claimants were the First Claimant’s children.
The Claimants alleged that, after the relationship started, another police officer, (Woman) PC Ridgeway began a campaign of harassment against the Claimants, including letters, telephone calls, interference with the First Claimant’s car, assault and criminal damage.
There was a criminal investigation. PC Ridgeway was arrested and interviewed. A decision not to prosecute was taken by the CPS. Disciplinary proceedings were explored by the Professional Standards Department of Hampshire Constabulary but were discontinued.
The Claimants alleged that:
- The Defendant was vicariously liable for the alleged acts, on the basis that they were carried out by officers in the Defendant’s control, in the purported performance of their police functions.
- The Defendant failed to comply with his investigative and protective obligations in respect of the Claimants’ rights under Article 3 (right to freedom from torture or inhuman or degrading treatment) and Article 8 (right to respect for private and family life) of the European Convention of Human Rights.
The Defendant successfully struck out the claim at both first instance and on appeal by the Claimants to HHJ Mitchell. The Claimants appealed again.
Giving the leading judgment of the Court of Appeal, Lord Justice Gross dismissed the Claimants’ appeal:
Vicarious liability: the claim for vicarious liability had no realistic prospect of success. Taken at their highest, the pleaded facts did not reveal any, let alone a close, connection between the acts alleged and PC Ridgeway’s position as a police officer.
There was an absence of reality to the claim. Wholly and conspicuously absent from the Particulars of Claim was any suggestion of the “creation of risk” arising out of the relationship between PC Ridgeway and the Defendant, which has been a hallmark of child abuse cases in this area.
The ECHR claim: this fell to be approached on the basis that the pleaded torts and crimes amounted to no more than allegations of a campaign of wrongdoing by a private individual who happened to be a police officer. The case was far removed from those which relate to wrongdoing by state agents or with the connivance of the state.
In terms of the investigation required under Article 3, the Defendant’s obligations had been discharged as a result of the investigations it had undertaken.
The claim under Article 8 was doomed to fail. It would be necessary to think long and hard before acceding to any claim raising the prospect of some generalised positive obligation on the state to intervene under Article 8.