HILL, HILLSBOROUGH AND BEYOND – POLICE IMMUNITY FROM SUIT?1
Introduction
The issue of whether a police force should enjoy an immunity from suit in relation to their
crime prevention, investigative and prosecutorial functions has been the subject of a number
of recent decisions in Ireland. While some of the decisions appear to suggest that Ireland
would follow the line set by the House of Lords in Hill –v- Chief Constable for West
Yorkshire, a recent Supreme Court decision appears to suggest that the existence or nonexistence of any such an ‘immunity’ (if such it be) may still be an open question in Irish Law.
In addition, one recent Irish decisions appears to suggest that any such immunity – if it exists
at all - would certainly not be extended beyond this narrow ambit.
Background: Hill –v- Chief Constable for West Yorkshire
1. The starting point for the consideration of the immunity under discussion is the decision
of the House of Lords in Hill –v- Chief Constable for West Yorkshire2. In Hill, the
mother of the last victim of the Yorkshire Ripper sued the police for damages, contending
that the Ripper would have been caught before he murdered her daughter had the police
investigation not been negligently conducted.
The House of Lords struck out the
Plaintiff’s claim for public policy reasons. The House of Lords not only held that the
police should not owe a duty of care to protect victims from the criminal acts of a third
party (which may well have been an obiter finding anyway as the action had already
failed for a lack of proximity between the police and the last victim), but also queried
whether a claim for damages for negligence would ever be an appropriate vehicle for
investigating the deficiency of a police force.
2. It may be suggested, however, that the problems identified by the Law Lords (and in
particular, Templeman LJ) which would arise if a court were asked to hear whether the
conduct of the individual members of the investigating team failed to meet the standard of
care which would be expected of a hypothetical average policeman were not necessarily
1
I wish to thank David Leonard B.L. and Niamh Barry B.L. for their assistance to me in compiling this paper.
Grateful thanks are also due to Conor Gearty, Professor of Human Rights Law and Director of the Institute of
Public Affairs, LSE, for his help and encouragement. All errors contained herein are entirely my own.
1
new. Such an issue arises in any action for damages for what is sometimes described as
“professional negligence”.
Similarly, one might think that the observation by
Templeman LJ to the effect that any finding of negligence by one or more members of the
police “would not help anybody or punish anybody” is both facile and erroneous.
3. Templeman LJ did, however, identify a difficulty to how future police investigations of
criminal activities might be conducted with the threat of claims for negligence hanging
over their heads. He suggested that the threat of litigation against a police force would
not make a policeman more efficient; rather it would distract police from their duties and
obligations. In addition, a policeman who feels compelled to concentrate on one crime
may be accused of neglecting others3. These themes are subsequently considered and
embraced by the Irish courts.
Ireland: Immunity for the Attorney General: W v Ireland (No 2)
4. As we will see, the idea that the police would be entitled to such a blanket “immunity”
from suit has since been challenged in England and in Europe.
In the meantime,
however, in Ireland in W –v- Ireland (No 2)4 the victim of a convicted paedophile
2
[1988] 2 All E.R. 238 (‘Hill’).
See also Lord Keith of Kinkel, who summarises the problems it was thought the imposition of such a liability
would create: "Potential existence of such liability may in many instances be in the general public interest, as
tending towards the observance of a higher standard of care in the carrying on of various different types of
activity. I do not, however, consider that this can be said of police activities. 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. 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. The possibility of this happening in relation to the
investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if
potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on
the ground that they had failed to catch some criminal as soon as they might have done, with the result that he
went on to commit further crimes. While some such actions might involve allegations of a simple and
straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a
burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the
present action would seek to do. The manner of conduct of such an investigation must necessarily involve a
variety of decisions to be made on matters of policy and discretion, for example as to which particular line of
inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available
resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet
elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of
police time, trouble and expense might be expected to have to be put into the preparation of the defence to the
action and the attendance of witnesses at the trial. The result would be a significant diversion of police
manpower and attention from their most important function, that of the suppression of crime. Closed
investigations would require to be reopened and retraversed, not with the object of bringing any criminal to
justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell
L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view
that the police were immune from an action of this kind."
4
[1997] 2 IR 141(‘W’)
3
2
claimed against the Attorney General for damages for shock, distress and psychiatric
difficulties arising from the delay in extraditing the paedophile from the Republic of
Ireland to Northern Ireland. Rejecting the claim, Costello P. was of the view that the
Attorney General was not in such a relationship of proximity with prospective victims of
the paedophile in question when addressing the issue of the paedophile’s extradition as to
generate a duty of care towards those victims.
5. The High Court also held, however, that even if there was a sufficient relationship of
proximity, and even if the kind of injury of the Plaintiff was reasonably foreseeable, it
would be contrary to public policy to impose a duty of care on the Attorney General.
Reaching this conclusion, the High Court balanced the hardship to individuals which such
an immunity could produce against the disadvantage to the public interest if no such
immunity existed. The High Court also indicated that denial of a right to claim damages
against the Attorney on the grounds set out above, was appropriate because it arose out of
the statutory functions the Attorney General was obliged to perform in the public interest.
If the duty of care contended for was imposed on the Attorney General, this could give
rise to a conflict between the exercise of his/her statutory and international obligations
and in the duty of care in common law to a potential victim. The imposition of such a
duty of care therefore had the potential to compromise the exercise of his/her statutorilyconferred functions.
6. Insofar as W accepted that a blanket immunity from suit for damages for negligence
could be conferred on a public law officer on public policy grounds, the law in Ireland
appeared to reflect the law in England and Wales as set out in Hill. appeared to reflect the
law in Ireland. It is, however, worth noting that in some subsequent English cases it has
been suggested that the principle stated so trenchantly in Hill should be reformulated in
terms of the absence of a duty of care rather than a blanket immunity from suit.
7. In truth the issue may be one of linguistic confusion. One well-known commentator5 has
suggested that the so-called ‘immunity’ is in fact no more than the absence of the third
ingredient required under the test formulated in Caparo Industries v Dickman6 as to
5
See C.A. Gearty, ‘Osman Unravels’ (2002) MLR 87.
[1990] 2 AC 605 (‘Caparo’). The three ingredients required are: (i) is the damage to the plaintiff foreseeable
(ii) is the relationship between the plaintiff and the defendant sufficiently proximate (iii) is it fair, just and
equitable to impose liability on the defendant.
6
3
whether or not a duty of care exists. The European Court of Human Rights (‘the Court’)
held in Osman7 that the ‘immunity’ from suit afforded to the police in such
circumstances was disproportionate and breached a plaintiff’s implied right of access to
the the domestic courts as guaranteed under Article 6(1)8 of the European Convention on
Human Rights (‘the Convention’).
8. It may be, therefore, that ‘immunity from suit’ is a misnomer: it is not that a plaintiff
cannot commence proceedings or obtain a hearing, but rather that any such a claim will
almost inevitably fail because the three requirements of the Caparo test will not be met.
Indeed in some cases the test may be met, if there is for example, a ‘special relationship’,
such as that which has been held may arguably exist as between the police and an
informer9, though in the absence of such a special relationship it seems unlikely the court
would recognise the existence of a duty of care10. It may be noted that a number of other
so-called ‘blanket’ immunities from suit (such as the famed immunity from suit of a
barrister for the conduct by him/her of a case in court) have been abolished11. However,
whether described as an ‘immunity’, or a policy decision not to impose a duty of care, it
was clear at least until recently that the police would not be made liable for damages for
negligence in the carrying out of their prevention investigative and prosecutorial
functions, as an analysis of the three cases considered below makes clear.
Lockwood, LM and G
7
Osman v United Kingdom (1998) 29 EHRR 245 (Osman). Gearty notes this conclusion was greeted with a
great deal of adverse comment in the United Kingdom, and was effectively jettisoned in Z and others v United
Kingdom 29392/95, 10 May 2001 (Z), which held that the case law establishing there was no duty of care in
negligence in certain situations was at least, in principle, compatible with the Convention.
8
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law”.
9
See Swinney and Another –v- Chief Constable of West Cumbria Police [1996] 3 AER 449 in which Peter
Gibson LJ observed at page 446:
“…it seems to me arguable that an informant giving in confidence sensitive information to the Police, is in a
special
relationship to the Police, that relationship being based on an assumption of responsibility towards the
informant by
the Police, is such that when through the negligence of the Police that information is disclosed to criminals, it
can
result in a valid claim by the informant in respect of consequent damage to the informant.”
10
See Brookes –v- Metropolitan Police Commissioner and Others [2005] 2 AER 48 a case brought
unsuccessfully by Duwayne Brookes who was present – and was also abused and attacked – when his friend
Stephen Lawrence was abused and murdered.
11
See Rondel –v- Worsley [1969] 1 AC, 191 and Paul –v- Simons [2002] 1 AC, 615
4
9. In Lockwood –v- Ireland12 a rape trial collapsed because the defendant who made
admissions in Garda custody was found to have been unlawfully detained. The victim of
the rape sued the Gardaí for, inter alia, relying on the power of arrest which had been
abolished (and therefore, rendered the detention unlawful). The question of whether the
police could be held liable for damages for the performance of their investigative and
prosecutorial functions was tried as a preliminary issue. Kearns P. held that in the absence
of mala fides no such liability could arise, and that no duty of care arose in respect of
bona fide actions and decisions carried out by An Garda Síochána in the course of a
criminal investigation and/or prosecution.
10. In LM –v- The Commissioner of An Garda Síochána13 a conviction for rape was set
aside. An order was then granted preventing a re-trial on grounds of delay. The victim
sued the Gardai, complaining of post-traumatic stress as a result of the collapse of the
prosecution. When discovery was sought of documents which it was believed would set
out the full circumstances surrounding the pursuit of the prosecution in question, the
defendants raised a preliminary issue as to whether the Defendants owed a duty of care to
the complainant in respect of the investigation of her rape complaint. In dismissing the
plaintiff’s claim, Hedigan J endorsed Kearns P’s previous ruling in Lockwood and
affirmed the non-existence of a duty of care on Gardaí and prosecuting authorities in
carrying out their functions in the investigation and prosecution of crime.
11. In G –v- Minister for Justice, Equality and Law Reform14, the plaintiff claimed she
had been raped in her house by a friend whom she was accommodating while the friend’s
own house was the scene of a Garda investigation into his wife’s death. Gardaí had
brought the friend to the Plaintiff’s house to see if he could stay there temporarily. At the
time, they did not alert the Plaintiff that his wife’s death could have been murder and that
he would have been a suspect. The Plaintiff’s claim for damages for negligence and
breach of constitutional rights was dismissed after a full plenary hearing. Hedigan J said:
“It is now clearly established in Irish Law that the Gardaí owe no duty of care in respect
of actions taken in the course of their duty to investigate and prosecute crimes. The
absence of this duty situation arises from considerations of public policy”. It is notable
that this appears to expand the absence of a duty of care into a much wider general
12
[2011] 1 IR 374 (‘Lockwood’)
[2012] 1 ILRM 132 (‘LM’)
14
[2011] IEHC 65 (‘G’)
13
5
absence of a duty of care in respect of the investigation and prosecution of crimes
generally, rather than confining it simply to the victims of crime.
The Validity of the Policy Considerations underpinning the decisions
12. As has been pointed out elsewhere15 these three cases do not directly concern the situation
in Hill where the police were sued for failing to protect a plaintiff from injury inflicted by
a third party, although G might come close in this regard, since it could be argued that the
Gardai took de facto responsibility for relocating the attacker in order to facilitate the
investigation, and brought him to a situation where he presented a reasonably foreseeable
risk of injury to the victim, perhaps not unlike the situation in Home Office –v- Dorset
Yacht Company Limited 16.
13. Notably, however, in each of these three cases, Hill-type public policy arguments17 were
deployed in the judgements to justify the exclusion of any duty of care on the part of the
police in such circumstances. The three judgments warn of the prospect of ‘defensive’
policing as well as highlighting the time, trouble and expense which would be likely to be
incurred by the police in defending their conduct in a negligence claim, and paint a bleak
picture of the dire consequences if such a duty of care was to be imposed18.
14. Arguably, however, these various policy considerations, (defensive policing, diversion of
resources and manpower, the unlimited range of those entitled to sue – the ‘floodgates’
argument) are not in themselves unanswerable. There is certainly a suggestion, for
example, that some medical practitioners practice ‘defensive medicine’ for fear of being
sued. It is also self-evident that any person sued for negligence in the course of their
employment will necessarily have to devote much time and expense to the preparation of
the defence of such a claim; such a defence may involve enlisting the assistance of other
persons from the same profession. The ‘floodgates’ argument is something of a blunt
instrument, but it would surely be possible to formulate a test relating to the “proximity”
15
See Dermot Walsh’s excellent article ’Liability for Garda Negligence in the Prevention and Investigation of
Crime’ (2013) Ir Jur 1 the inspiration and assistance of which is gratefully acknowledged.
16
[1970] AC, 1004
17
See fn 3 above.
18
Walsh (op. cit.) described the language used in Lockwood in particular as being “dramatic”, “colourful” and
“heavily charged”.
6
of the relationship between a plaintiff and the police force in the relevant circumstances
of a given case, in line with the second step of the test laid down by CJ Keane in Glencar
Exploration plc -v- Mayo County Council19.
LM and Lockwood – Supreme Court
15. The plaintiffs in LM and Lockwood appealed the dismissal of their claims20. In its
judgment allowing the appeals, the Supreme Court21 noted there were considerable
similarities between the two cases since they both involved claims for damages which
were dependent upon a contention that public bodies, which carry on important public
functions of investigation and prosecution of crime, owe a duty of care to individual
members of the public giving rise to an obligation to compensate them in the event of any
failure to perform those functions adequately22.
16. O’Donnell J’s judgement contains a lucid and comprehensive analysis of the development
of the law in England since Hill observing how this development has occurred in parallel
with and has been influenced by cases such as Osman and Z exploring the impact of the
Convention on domestic law. It also noted the impact the decision of the European Court
of Human Rights in O’Keeffe –v- Ireland23. Despite the shocking facts24 of Michael &
Ors (FC) –v- The Chief Constable of South Wales Police & Anor25 the UK Supreme
Court - by a majority - affirmed the Hill principle, noting that in Australian Courts and
certain State Courts in the United States had taken a similar approach26. (The minority in
the UK Supreme Court in Michael would have permitted a negligence claim to proceed
on the basis that the particular facts created a duty of care to the victim). Observing that
the issue is just one which has involved a considerable legal debate at the highest level in
19
[2002] 1 IR 84 (‘Glencar’), the test being (i) the reasonable foreseeability of injury or damage (ii) the
proximity of relationship – (the neighbour principle) (iii) whether there are countervailing public policy
considerations suggesting no duty of care should be imposed, and (iv) whether in all the circumstances it is just
and reasonable that a duty of care should be imposed.
20
G is also under appeal though has not as yet been heard.
21
[2015] IESC 81 (O’Donnell J.)
22
Paragraph 8 of the judgement.
23
[2014] 59 EHRR 15
24
The victim, Ms Michael contacted the emergency 999 number because her violent and aggressive exboyfriend had assaulted her and had threatened to return to kill her. Because of inadequacies in the handling of
the call, the police service was not mobilised with sufficient urgency, and Ms Michael was stabbed and killed.
25
[2015] 2 WLR 343 (‘Michael’).
7
other common law countries, O’Donnell J noted the decision in Michael had been
described “arguably the third most important case after Donoghue –v- Stephenson and
Hedley Byrne –v- Heller on the English law of negligence to be decided by the U.K.’s
highest court27.
17. O’Donnell J also noted that in C (person under a disability) –v- The Chief Constable
of the Police Service of Northern Ireland28 an application to strike out pleadings
alleging that culpable failure to investigate a rape allegation caused extreme upset,
distress and psychiatric injury to the victim was refused by Gillen J, who observed that it
is possible that the development of the law in negligence may be affected by
developments in the field of the Convention. In this regard, it may be noted that in
addition to a Member State’s obligation to provide access to the courts under Article 6, a
Member State is also obliged to protect life under Article 2 and to provide an effective
remedy under Article 3 of the Convention.
LM - The perils of trying preliminary issues
18. In LM the Supreme Court made it clear that a court is entitled on the hearing of a
preliminary issue to consider if it is, in fact, an appropriate case for determination by this
procedure. It would be entitled to conclude in the light of the arguments in the matters
advanced that it was not possible to give the sort of clear and unequivocal answer to the
issue which would dispose of the case or any issues in the case29: this was particularly so
when the point raised was a major issue of law likely to affect many other cases. The
Supreme Court noted that separate and important considerations which did not arise in
Hill or Michael would be involved in the cases under consideration: what would happen,
for example, if the alleged perpetrator was never charged in the first place? Or suppose
the alleged perpetrator was acquitted? Observing that “very large questions of public
policy could arise”, O’Donnell J indicated that any consideration of the issues and any
refinement of them fully illustrated the complexity and importance of these cases. The
Supreme Court, therefore, directed that the appeals should be allowed, the High Court
Orders should be set aside and the Plaintiffs should be allowed to bring their cases to
Trial in the High Court.
26
However, in New Zealand, the Court of Appeal overturned a decision to strike out such a claim, and in
Canada and South Africa it was still possible to establish liability at common law for negligent police actions.
27
Paragraph 24
28
[2014] NIQB 63,
8
19. In LM the Supreme Court did not go as far as declaring that the police should not enjoy
‘immunity’ from suit in respect of the conduct of their investigative and prosecutorial
actions relating to crime. O’Donnell J noted that the possibility of claiming damages
against the investigative or prosecution services was a “difficult issue”. It has been
suggested, however, that the mere fact that O’Donnell J did not reaffirm the Hill principle
suggests possible future changes to - or developments of an exception to - the principle in
question30.
The Convention
20. The growing influence of the Convention has also been the subject of some scrutiny31.
There was some confusion in the LM cases on whether the Convention claims remained
live irrespective of what happened to the claim in negligence. If it were the position that
the Convention claim remained ‘live’, then affording the police an immunity from suit in
negligence would not dispose of the case. The consideration of possible breaches under
the Convention was a further reason not to determine the issue of whether or not a duty of
care in negligence was owed as a preliminary issue. In this regard the judgement suggests
human rights law may conceivably have a degree of influence on domestic tort law;
certainly similar issues can arise in both areas of law. The judgment also depicts the
potentially dependent relationship between Convention law and the law of negligence,
especially where a judgment in human rights law directly impacts on negligence claims.
The Convention: Da Silva and Failure to Prosecute
21. One of the issues raised by O’Donnell J in LM was the question of what cause of action
would lie if a perpetrator was never prosecuted. In recent times efforts were again been
made to ground an action against police officers in the UK using Article 232 of the
29
See paragraphs 34 and 35.
Case Comment: LM v Commissioner of An Garda Siochana Trinity College Law Review Online (Julia
Launders) 2016
31
Launders, op. cit.
32
Article 2 provides as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by
law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the
use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
30
9
Convention. In Da Silva v United Kingdom33 the cousin of Jean Charles de Menezes34,
a Brazilian national shot dead on an underground train at Stockwell a couple of weeks
after the London Underground bombings July 2005 claimed the failure to prosecute
individual police officers35 was a breach of the procedural aspect of Article 236.
Specifically, she claimed that the investigation into her cousin’s death fell short of the
standard required by Article 2: firstly, because the authorities were precluded from
considering the reasonableness of certain police officer’s belief that the use of force was
necessary for self-defence, and secondly, because the prosecutorial system in England
and Wales prevented those responsible for the shooting from being held accountable and,
as a consequence, the procedural requirement under Article 2 of the Convention has not
been satisfied37.
22. On the first issue, the Court noted that the test in England and Wales (‘whether the person
using the force had an honest and genuine belief that the use of was necessary in selfdefence’) was indeed a question of subjective belief, but held that such a test was not a
violation of Art 2, and pointed once more to the danger of imposing an unrealistic burden
on law‑ enforcement personnel in the execution of their duty38.
23. On the second issue, the Court noted its case law established a number of requirements
for an investigation into the use of lethal force by State agents to be “effective”. In
summary, those responsible for carrying out the investigation must be independent from
those implicated in the events; the investigation must be “adequate”; its conclusions must
be based on thorough, objective and impartial analysis of all relevant elements; it must be
sufficiently accessible to the victim’s family and open to public scrutiny; and it must be
carried out promptly and with reasonable expedition.
33
5878/08 (30 March 2016)
The police subsequently accepted de Menezes was an entirely innocent man.
35
The OCPM (Office of Metropolitan Police Commissioner) had been prosecuted and fined £175,000 but no
personal responsibility had been attached to any one officer.
36
A civil action claiming damages brought by the family against the Commissioner of Police of the Metropolis
was settled confidentially by mediation in November 2006
37
The Court’s task was to review whether such case as existed had been submitted the case to the ‘careful
scrutiny’ required by Article 2, so as to ensure that the deterrent effect of the judicial system in place and the
significance of the role it is required to play in preventing violations of the right to life are not undermined.
38
See McCann and Others v UK (27 September 1995) where the Court held there had been no violation in the
shooting dead of ‘The Gibraltar Three’ because the soldiers “honestly believed, in the light of the information
that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them
from detonating a bomb and causing serious loss of life”.
34
10
24. The Court reviewed the various disciplinary proceedings, inquest hearings and criminal
prosecution and concluded, “having regard to the proceedings as a whole, it cannot be
said that the domestic authorities have failed to discharge the procedural obligation under
Article 2 of the Convention to conduct an effective investigation into the shooting of Mr
de Menezes which was capable of leading to the establishment of the facts, a
determination of whether the force used was or was not justified in the circumstances and
of identifying and – if appropriate – punishing those responsible39. Accordingly, the
Court found no violation of the procedural aspect of Article 2 of the Convention had been
established.
Public Order Policing: Fagan v Commissioner of An Garda Siochana40
25. The visit of Queen Elizabeth to Ireland involved the deployment of large numbers of
members of An Garda Síochána. On the 17th of May 2011, members of the Public Order
Unit (POU) were required to respond to a riot situation which developed at Dorset Street,
Dublin during the visit in question. Mr Fagan was standing on the footpath making a
phone call when he was knocked to the ground by a member of the POU which, having
previously been in a stationary position, had begun to move forward towards the riot in
question. Mr Fagan sued the Gardai for damages for negligence.
26. It was clear that a very serious and dangerous public order incident took place on the
pavement in front of the plaintiff when a group of rioters threw a metal barrier at three
uniformed Gardaí. While the evidence suggested a warning had been broadcast over the
PA system at ten minute intervals advising people to leave the area, the plaintiff claimed
he had not heard any such warning. The plaintiff then fell – or was knocked down –
some 8 seconds later. The mayhem created by the thrown barrier forced people to move
right, left or simply flee the area. There was a risk of injury from further missiles which
might be thrown at the advancing POU riot squad, which thus faced something of an
evolving obstacle course, making far more difficult and complicated.
27. The court accepted the plaintiff had been knocked over by a member of the unit (though
all three officers had “no recollection” of knocking the plaintiff down or seeing him on
39
40
At paragraph 286 of the judgement.
[2014] IEHC 128 (‘Fagan).
11
the ground). However, the Court concluded that any contact between a member of the
POU and the plaintiff did not arise as a result of any deliberate force or any dangerous,
aggressive, reckless or ill disciplined manoeuvre on the part of the member in question.
28. The defendants contended Gardaí should be afforded an immunity in respect of injuries
which might otherwise be deemed to have been negligently inflicted were it not for the
fact that they were exercising their function to maintain public order. However, the court
took the view that, whatever about an immunity from suit in relation to the carrying out of
their investigative prosecutorial obligations in respect of crime, there was no authority to
suggest that such an immunity should extend to Gardaí when involved in public order
duties. No statutory provision conferred any special protection on the Gardaí exercising
such functions. Nor in the view of the trial judge41 did the Glencar principles provide an
immunity for Gardaí in such a situation. Unlike the county council in Glencar the Gardaí
were not, when carrying out public order functions, acting in pursuit of any statutory
obligation. Irvine J was of the view that the imposition of a reasonable duty of care on
Gardaí would not paralyse them in their capacity to achieve public order or render them
ineffective when carrying out their functions. To afford a blanket immunity in respect of
the actions of all Gardaí when exercising any public order function would, the court held,
be to give the Gardai “a latitude extremely disproportionate to their needs. Indeed, such
immunity could readily be abused by the use of excessive or unnecessary force is
something that would not be in the public interest”.
29. While the defendants relied on Hill and W, the court held that regardless of the
aforementioned body of case-law, there was no requirement to afford Gardaí a similar
type of immunity when performing public order functions. Permitting the Gardai to be
sued in such circumstances would not give rise to any particular evidential difficulties;
nor would the ability of the Gardaí to perform their public order duties be brought to an
effective standstill. Irvine J was also of the view that the time available to Gardai to deal
with other duties would not be significantly adversely affected if members of the public
could make claims for damages for negligence.; nor would their involvement in such
litigation
interfere with their efficiency in the conduct of their overall duties. Irvine J
noted that Lord Keith in Hill had observed :“There is no question that a police officer,
like anyone else, may be liable in tort to a person who is injured as a direct result of his
41
Irvine J
12
acts or omissions. Though he may be liable in damages for assault, unlawful arrest,
wrongful imprisonment and malicious prosecution, and also for negligence”.
30. Irvine J also pointed out that drivers of emergency vehicles, who may be exempted from
ordinary speed limits, are not exempted in terms of liability for negligence. They are not
given carte blanche to drive without due care. When determining whether due care was
taken, however, the court was entitled to give the object of the journey due weight. Since
this category of defendant was to be held potentially accountable in the law of tort, it
would make no sense to conclude that Gardaí when performing public order duties could
be deemed to be under any less of an obligation in terms of the duty of care they owe to
members of the public.
31. In addition to holding that the Gardai were not entitled to such an immunity from a suit in
negligence, Irvine J also held that there was no higher threshold which a plaintiff had to
establish (such as malice or recklessness) so as to succeed in establishing liability. Irvine
J was of the view that this would involve her “affording a different albeit lesser type of
immunity than that already discussed which is not provided for by statute and in respect
of which no legal authority has been produced”. Irvine continued: “Simplistic as it may
appear, I believe that the defendants’ concerns as to the ability of Gardaí to carry out
their public order functions without the fear of unreasonable claims for damages being
brought against them are more than adequately catered for by the application of the
standard principles of the law of torts. Those principles which have at their core, the
concept of reasonableness are sufficiently flexible to take into account the interests of the
Gardaí and the public alike”. The relevant factors include the facts of any given case, the
probability of an accident if reasonable care is not used, the gravity of the threatened
injury and the social utility of the defendant’s conduct at the relevant time.
32. In the circumstances of the case, the court concluded that the fact the defendants were
carrying out a very significant public order function at the time the plaintiff sustained his
injuries was a factor which weighed heavily when considering whether the Defendants
acted with reasonable care. She noted that the unlawful violent actions of the protesters
may have potentially caused grave injuries to members of the public or visiting
dignitaries. She also concluded the members of the POU in question were reasonably
entitled to assume that anyone who decided to stay in the street during this period of
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danger would notice the advance of the riot squad and be able to take evasive action. To
hold the riot squad culpable if they failed to carry out such a manoeuvre without
accidentally knocking into somebody in attempting to clear rioters from a street would, in
her view, be “to set the standard of care required of them unreasonably high”. She
concluded that as the Plaintiff had been injured accidentally, there was no negligence or
breach of duty on the part of the Defendants.
Fagan: Public Policy Justifications For A Police ‘Immunity’ Rejected
33. Fagan does not decide there can never be a police “immunity from suit” for negligence; it
did not need to do so. Rather, Fagan is authority for the proposition that there is no
justification for granting such an immunity for the Gardaí in respect of their public order
duties and functions; the standard principles of negligence are more than adequate to deal
with same.
34. However, it is interesting that the rationale offered for providing such an immunity was
vigorously comprehensively rejected by the court. One might wonder whether the same
rationale offered to justify the granting of an immunity to the police in effect of their
investigative and prosecutorial functions is in the circumstances justified after all. The
test formulated by Irvine J to assess whether the Gardai have discharged their duty of care
when carrying out public order functions could surely easily be adopted so as to be
applied to the exercise by the Gardai of their investigative and prosecutorial functions in
respect of crime. Certainly such a scenario would be more attractive at the level of
principle than the granting of a ‘blanket’ immunity along the lines of the immunity from
suit originally envisaged in Hill.
Hillsborough
35. The outcry following the outcome of the Hillsborough Inquest has once more ignited the
debate about police immunity from suit. A number of claims have recently been lodged
against the police force: these claims are (in part) based on the conduct by members of the
police who altered statements so as to divert blame for what had happened onto the fans.
However the latest claims against the South Yorkshire Police Authority are for
misfeasance in public office, and so are quite different in nature to claims in negligence42.
42
To succeed in a claim for misfeasance in public office, a plaintiff needs to show the conduct complained of is
actuated by malice, and/or that the public officer in question is guilty of knowing – or reckless – disregard of the
lack of power to do the act of complained of, whereas claims in negligence are based instead on a “reasonable
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36. However, writs seeking compensation for negligence for injuries sustained at
Hillsborough against South Yorkshire Police Authority and Sheffield Wednesday
Football Club were issued and served days after the disaster in April of 1989. A total of
more than 1500 claims were made, with the pay-out of totalling almost £20m. A number
of the claims were settled without admission of liability43, though two test cases
proceeded to hearing, relating to (a) the proximity required to claim ‘nervous shock’44,
and (b) the extent to which compensation was payable for the pre-death pain and the
suffering of those who had died45. Perhaps ironically, some police officers also made
claim for the psychological injuries which they claimed to have suffered, a number of
which were also settled. However, were a tragedy such as Hillsborough to occur here,
there is no doubt after Fagan that the police would be unable to rely on any claimed
immunity from suit in respect of the carrying out by them of what are essentially public
order functions46.
Conclusion
foreseeability” test. The requirement that a plaintiff effectively show ‘subjective’ reckless disregard undoubtedly
presents challenges to plaintiffs: see McMahon and Binchy, Law of Torts 4th Edition Bloomsbury 2013
paragraph 19.84 et seq.
43
One memo to the Chief Constable in 1991 stated: “Whilst we have never formally admitted liability for what
occurred at Hillsborough, we have not disputed the claims made by others that by opening the emergency gates
and failing to protect the tunnel under the West Stand thereby allowing spectator access to pens three and four
when they were already full, we allowed a dangerous situation to develop. By implication and general
assumption, even by the High Court, we are assumed to have conceded this point. I was advised by seven
separate lawyers at a meeting some 18 months ago that in terms of civil negligence we are liable as stated
above and our position is absolutely indefensible”.
44
In Alcock and others v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 the House of Lords
held that to establish a claim for psychiatric illness resulting from shock, it was necessary to show that the injury
was a reasonably foreseeable result of the events at the stadium, and that the claimant was sufficiently proximate
or close to what had happened. Remarkably the House of Lords concluded that the loss of a son (and a fiancé)
was sufficiently proximate but the loss of a brother – of itself – was not.
45
In Hicks v Chief Constable of South Yorkshire Police [1992] 2 All E.R. 65 the House of Lords held –
though the evidence was hotly contested in this regard – that the the two Hicks sisters lost consciousness in a
matter of seconds and so had no suffered any physical injury before their “swift and sudden death” of traumatic
asphyxia.
46
During a so-called ‘friendly’ football match between Republic of Ireland and England in Lansdowne Road on
15 February 1995, a riot caused by the English neo-Nazi organization Combat 18 left 20 people injured. After
questions were raised about the conduct of the Gardaí, the former Chief Justice Thomas Finlay was appointed to
investigate the events. He found that the rioting was entirely caused by the English fans without any
provocation. Finlay reported that the Gardaí had received intelligence that members of Combat 18 were
intending to cause trouble. He also found that the rioting could have been avoided if the Gardaí (who included
the Garda Public Order Unit) had acted on the intelligence. The investigation found that the head of the NCIS
(British National Criminal Intelligence Service) had offered help to the Gardaí in dealing with the hooligans, an
offer which, however, the Gardaí refused. The segregation of the fans was also found to be insufficient, and this
was found to be a contributory factor to the incident.
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37. The refusal by the Supreme Court in LM to state unequivocally that a Hill-type blanket
immunity from suit protects the police means the existence of such an immunity in this
jurisdiction remains an open question.
38. Given its complexity and far-reaching effects, it is clearly preferable the question when it
next arises is determined at a full plenary hearing rather than by way of the trial of a
preliminary issue.
39. Although the decision in G was reached following a full plenary hearing, its precedential
value may now be doubtful given the extensive reliance in its ratio on the decisions in
LM and Lockwood which have since been set aside, especially as the decision in G is
also under appeal.
40. It seems likely that any future consideration of the so-called ‘immunity’ will involve not
simply consideration of principles of negligence but also consideration of the impact and
effect of the European Convention on Human Rights, and the extent of the convergence
and/or interdependence of the two streams of jurisprudence.
41. While W v Ireland is on one view authority for the legitimacy in principle of the
imposition of an ‘immunity’ from suit, this is so only in respect of the exercise of the
Attorney General’s statutorily conferred functions in relation to extradition.
42. The approach taken in Fagan is perhaps preferable to the somewhat crude imposition of a
blanket-type immunity based on public policy considerations. Having regard to Glencar,
it should be possible to formulate the circumstances in which a duty of care might be
imposed on the police in the exercise of their preventative, investigative and prosecutorial
functions relating to crime: indeed, having regard to the provisions of the Convention as
well as the Constitution, such an approach would appear to be desirable.
John O’Donnell SC
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