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I would like to thank Ken Oliphant, Hanna Wilberg and John Bell for their very helpful comments on an earlier draft of this article.
I.
Introduction
As far as negligence liability is concerned, the English courts have always been very protective of the police. Following the seminal House of Lords decision in Hill v. Chief Constable of West Yorkshire,1 their standard response to any allegation of police negligence - no matter how loosely related to the investigation or prevention of crime - is to pull out the policy card, and to use a simple defensive practice argument to deny the existence of a duty of care. Whether the defensive practice argument has ever been a convincing one in the context of the police function is a matter for debate. There is at least some evidence to suggest that, at the time of the Hill decision in the late 1980s, the courts tended to adopt a rather rose-tinted view of the British police force; a view which, in light of failings highlighted by recent public inquiries,2 would now be subject to direct challenge.3 More importantly, the validity of the argument is increasingly being tested by the diverse range of contexts in which it is now being called into use, in terms of both the precise nature of the allegation of police negligence being made, and the specific aspect of the multifaceted police function being targeted. For although it was conceived as a tool to protect the police from indeterminate claims brought the public at large for harm inflicted by the criminal conduct of third parties, it is now being stretched to cover claims brought by claimants who were not merely foreseeable victims, but also have some further special status (e.g. as a prosecution witness) and even claims which allege positive police misfeasance. A further challenge to the practice of using this type of policy reasoning to justify the imposition of a de facto immunity is the increasing use being made of the alternative cause of action against public authorities created by the Human Rights Act 1998 (hereafter "HRA").
The tenability of this police immunity principle requires urgent reassessment. A perfect opportunity to carry out such...