Osman v Ferguson

A negligence claim against the police for failing to investigate, apprehend or prevent a known criminal may be barred on public-policy grounds, even where the pleaded facts arguably show close proximity or a special relationship with the victims. The protection covers investigative and crime-suppression functions broadly. It is not confined to high-level policy choices: alleged operational failures, including failures to interview, search, trace or link evidence, may fall within it. Public policy is a distinct question from duty of care and is not displaced because the victims form a small class. Where binding authority makes the claim plain and obvious, the court may resolve the legal issue on a strike-out application.

The widow and son of Ali Osman sued a consultant psychiatrist and the Commissioner of Police for the Metropolis in negligence. The police claim alleged that officers knew of escalating conduct by Paget-Lewis but failed to investigate, arrest or otherwise prevent his later shooting of Ali Osman and wounding of his son. The High Court dismissed the Commissioner’s application under Rules of the Supreme Court, Order 18, rule 19, to strike out the claim. The appeal concerned whether the pleaded facts could found a duty of care and whether public policy nevertheless barred the claim at the interlocutory stage.

Disposition. The appeal was allowed with costs. Leave to appeal to the House of Lords was refused.

1. Proximity. Lord Justice McCowan considered that the pleaded facts arguably disclosed a very close relationship between the plaintiffs and the investigating police officers, capable of amounting to a special relationship. Lord Justice Beldam preferred not to decide that issue in an interlocutory appeal, since it was unnecessary to the result.
2. Public policy. The House of Lords decision in Hill v Chief Constable of West Yorkshire [1989] AC 53 applied. A claim alleging failures to apprehend, interview, search for, trace or otherwise investigate a suspected criminal fell within the police functions of investigating and suppressing crime. Suppression included prevention. The distinction between policy decisions and operational decisions was artificial and unsupported by Hill.
3. Public policy was a separate issue from proximity and duty of care. It was not removed because the alleged victims formed a small class or were especially vulnerable. The reasoning in Alexandrou v Oxford that Hill’s public-policy observations were general was accepted. The contrary Canadian reasoning in Doe v Board of Commissioners of Police 58 DLR 396 was not helpful because it conflicted with binding authority.
4. Strike out. The guidance in Lonrho v Tebbit [1991] 4 All ER 973 did not require the court to defer determination. This was a plain and obvious case falling squarely within the House of Lords’ decision. The claims against the Commissioner were therefore not maintainable.

1. Court of Appeal (Civil Division) — The appeal was allowed with costs. Leave to appeal to the House of Lords was refused. [1992] EWCA Civ 8.
2. High Court of Justice, Queen’s Bench Division — Sir Peter Pain dismissed the Commissioner’s application under Rules of the Supreme Court, Order 18, rule 19, to strike out the statement of claim.