Weir v Bettison, Sued As the Chief Constable of Merseyside Police

Under Police Act 1996 s.88, liability is not avoided merely because a constable was off duty, acted without authority, or acted unlawfully. The decisive question is whether, when committing the tort, the constable was apparently acting in that capacity. Mere police status is insufficient. However, apparent exercise of constabulary authority may be shown by the officer’s identification as a police officer, control or removal of a person, use of a police vehicle, confinement, and an asserted intention to take the person to a police station. Where those circumstances establish purported performance of police functions, the chief constable is vicariously liable for the intentional tort.

An off-duty police constable borrowed a marked police van without permission to help his girlfriend move house. During the move he assaulted the 16-year-old claimant, forced him down stairs, placed him in the van’s restraining cage, and said that he would take him to the police station.

On a preliminary issue tried on documents, the Liverpool County Court held that the officer had acted privately and that the Chief Constable was not vicariously liable. The claimant appealed. The central issue was whether the torts were committed in the performance or purported performance of the constable’s functions for the purposes of Police Act 1996 s.88.

1. Appeal allowed unanimously. The court quashed the order below and entered judgment for the claimant on the preliminary issue. Sir Denis Henry gave the judgment, with which Latham and Tuckey LJJ agreed.

2. Section 88 of the Police Act 1996 makes the Chief Constable liable in the manner of an employer for torts committed by constables under his direction and control in the performance or purported performance of their functions. The provision applies to intentional torts as well as other torts. A claimant must establish more than the tortfeasor’s status as a constable, but need not prove that the constable acted lawfully or with express authority.

3. The proper inquiry was whether the constable was apparently acting as a constable when the tort was committed. The judge below erred by treating the incident as unconnected with policing and by isolating the officer’s words about arrest from the surrounding conduct.

4. Here the officer had confirmed his police status to the claimant. From the moment he began to remove the claimant from the building, his use of force, the marked police van, confinement in its restraining cage, and stated intention to take the claimant to the police station presented as an exercise of constabulary authority. He was therefore apparently acting as a constable, albeit improperly. The Chief Constable was liable for the assault, injuries, and forcible confinement. There was no basis for attributing blame to the claimant.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 111, allowed the claimant’s appeal, quashed the previous order, and entered judgment for the claimant on the preliminary issue.
• Liverpool County Court: H.H. Judge Mackay held on a preliminary issue that the Chief Constable was not vicariously liable because the constable’s assault was private conduct unconnected with policing.