Leach v Chief Constable of Gloucestershire Constabulary

A police force may owe a duty of care to a member of the public requested to act as an appropriate adult during the questioning of a mentally disordered suspect. The duty question requires consideration of foreseeability, proximity, and whether imposing a duty is fair, just and reasonable. The majority held that public-service policy barred claims concerning the selection of the appropriate adult or the conduct of interviews, since the police should not act defensively. Claims that the police failed to offer counselling or support could proceed because such a duty would not interfere with the investigation. A claim based on an assurance that the claimant would not have to testify was struck out. The confidentiality agreement did not determine whether a duty existed.

Janet Leach, a voluntary and unpaid worker, was requested to act as an appropriate adult for Frederick West during police interviews conducted under Code C of the Police and Criminal Evidence Act 1984. She alleged psychiatric injury and a stroke, and pleaded negligence in her selection, warnings, support and counselling, welfare, and an assurance that she would not have to testify.

The Bristol County Court struck out the claim on the basis that no duty of care was owed. The Court of Appeal considered whether that decision was correct. The central issue was whether the pleaded relationship between the police and the appropriate adult justified a duty of care, and, if so, which allegations could proceed.

1. Disposition. By a majority, Brooke LJ and Henry LJ allowed the appeal in part. Particulars (d) and (e), concerning counselling and trained support, were restored to the pleading. Particulars (a), (b), (c), (f) and (g) were struck out, with liberty to apply in relation to (g). Pill LJ dissented and would have declined to strike out the claim more broadly.
2. Applicable approach. The court applied the three-stage approach stated in Elguzouli-Das v Commissioner of Police [1995] QB 335, following Caparo Industries plc v Dickman [1990] 2 AC 605. Foreseeability, proximity and the fair, just and reasonable question had to be considered together. Psychiatric harm to an untrained person present during the interviews was sufficiently arguable for the strike-out application.
3. Selection and investigative conduct. Brooke LJ and Henry LJ held that public-service policy prevented a duty requiring the police to protect an appropriate adult from psychiatric harm arising from the choice of that adult or the conduct of interviews. Code C deliberately permitted a wide range of appropriate adults. The role was voluntary, unpaid and independent, and the adult could withdraw. The police should not be required to act defensively or to select only hardened individuals. The public-service immunity recognised in Hill v Chief Constable of West Yorkshire [1989] AC 53 applied to the conduct of the investigative process.
4. Counselling and support. The counselling allegations were different. The police had requested the claimant’s assistance, and a duty to take reasonable care by offering or providing support would not restrict the content or number of interviews. The allegations therefore disclosed an arguable duty and required determination at trial. The scope of any duty, and whether it was breached, remained unresolved.
5. Other matters. The false-assurance allegation was struck out because no freestanding negligence case had been argued and Henry LJ considered the Chief Constable would not be vicariously liable for the statement. The confidentiality agreement was irrelevant to the existence of any duty. The order was: appeal allowed with costs, costs below reserved to the trial judge, and leave to appeal to the House of Lords refused.

1. Court of Appeal (Civil Division). Appeal allowed in part. The counselling and support allegations were restored; the remaining allegations were struck out, subject to liberty to apply concerning paragraph (g).
2. Bristol County Court. On 17 November 1997, Judge Batterbury struck out the claimant’s claim on the basis that the defendant owed no duty of care.