Cowan & Anor v Avon & Somerset Constabulary

A police force does not generally owe an individual a duty of care to prevent a crime committed by a third party. Such a duty arises only exceptionally where the police have assumed responsibility for the individual or created a sufficiently close special relationship. Mere attendance at the scene is insufficient; the objective purpose and scope of the attendance matter. Attendance intended to prevent a breach of the peace does not, without more, create responsibility to prevent an eviction. Public policy also weighs against imposing a duty which could fetter prompt operational policing or require officers to delay while obtaining legal advice. A Chief Constable’s duty to provide training is ordinarily owed to the public generally, not to an individual claimant.

Mr Cowan was an assured tenant under the Housing Act 1988. Men threatened him and then removed his possessions from the premises. Police officers attended but treated their role as preventing a breach of the peace. They did not know of the offences under the Protection from Eviction Act 1977.

Mr Cowan brought negligence proceedings against the landlord and the Chief Constable. The Bristol County Court held that the officers owed no duty of care. It held alternatively that any duty had not been breached and assessed damages at £5,000 if liability existed. The appeal concerned whether the officers had assumed responsibility to prevent the eviction and whether the Chief Constable owed a separate duty concerning officer training.

Keene LJ delivered the leading judgment. Sir Christopher Slade LJ agreed fully, subject to one reservation, and Walker LJ also agreed. The appeal was dismissed unanimously.

1. Training. Any duty of a Chief Constable to provide adequate training is owed to the public as a whole. An individual member of the public will not ordinarily have the necessary special relationship or proximity to found a negligence claim for inadequate training.
2. Duty of care analysis. The criteria in Caparo v Dickman [1990] 2 AC 605—foreseeability, proximity and whether it is fair, just and reasonable to impose a duty—are useful analytical tools, but they are overlapping labels rather than a rigid formula. Foreseeability alone is insufficient.
3. Third-party wrongdoing. A duty to prevent harm caused by a third party is exceptional and ordinarily requires a special relationship involving assumption of responsibility or the creation of a situation of potential danger. The authorities, including Dorset Yacht Company Ltd. v Home Office [1970] AC 1004, Hill v Chief Constable for West Yorkshire [1989] 1 AC 53 and Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550, establish no general police duty to prevent crime, although police liability is not a blanket immunity.
4. Application. The officers attended to prevent a breach of the peace. Nothing said or done objectively indicated that they had assumed responsibility for preventing the eviction. Mere presence at the scene was insufficient. Even if the circumstances might have created a duty concerning physical safety, they did not create a duty to prevent the eviction as such.
5. Fairness and public policy. There was no sufficiently weighty countervailing public interest in imposing liability. The police’s primary operational duty is owed to the public at large. It would not be just and reasonable to require officers to delay an emergency response while obtaining landlord-and-tenant advice, or to treat them as legal advisers.
6. It was unnecessary to decide whether any duty had been breached. Sir Christopher Slade LJ left open whether an officer with actual knowledge of the relevant eviction law might owe a duty to warn that an offence was being committed. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — In [2001] EWCA Civ 1699, the appeal was dismissed. Permission to appeal to the House of Lords was refused.
• Bristol County Court — His Honour Judge Jack held that the police officers owed no duty of care. Alternatively, he found no breach and assessed damages at £5,000 if liability were established.