Hutchinson V Metropolitan Police Commissioner & Anor

An expert psychiatric diagnosis cannot determine disputed historical facts. Where the diagnosis depends on the claimant’s account, it cannot compel the court to accept that account against reliable first-hand evidence.

Police constables acting under statutory direction and control are entitled to indemnity for reasonable costs incurred through performing assigned functions. The entitlement arises by operation of law and does not depend on agency, public policy, or the costs discretion.

For statutory liability for a constable’s wrongful acts, conduct may be in the purported performance of police functions where the officer objectively assumes an official police role, even if the conduct is unlawful.

The claimant alleged that a probationer police constable assaulted her at a work party and claimed damages for physical and psychiatric injury against the constable and the Metropolitan Police Commissioner. The Commissioner’s liability was alleged under section 88 of the Police Act 1996.

After hearing extensive evidence, the court rejected the claimant’s account and found on the balance of probabilities that no assault had occurred. The claimant applied for reconsideration of the draft liability judgment. The parties also sought hypothetical findings on statutory liability, causation, quantum and costs if the liability finding were overturned.

1. Liability. The claim against both defendants failed. The claimant’s account was unreliable, while the evidence of the principal defence witnesses was consistent and reliable. The court found that no assault by the second defendant had occurred.
2. Reconsideration. The application to alter the draft judgment was refused. Genuine psychiatric symptoms and expert evidence could not establish that the alleged assault occurred. The expert’s reports proceeded on the claimant’s account and could not compel acceptance of the factual basis on which the diagnosis rested. The court made no finding as to the precise cause of the claimant’s psychiatric problems.
3. Indemnity. A police constable subject to statutory direction and control is entitled to indemnity for reasonable costs incurred as a result of performing functions assigned by the Commissioner. The entitlement is independent of any relationship of principal and agent. It does not depend on what the Commissioner knew, or ought to have known, when indemnity was sought. The discretionary principles in CPR 44.3 did not apply where the costs were reasonably incurred in performing those functions.
4. Hypothetical statutory liability. On the assumed basis that the claimant’s account was accurate, conduct before the constable identified herself as a police officer would not attract liability under section 88. Once she said that she was a WPC, however, an objective observer would regard her as purporting to act as a constable. The Commissioner would therefore have been liable for the subsequent conduct. Weir v Chief Constable of Merseyside [2003] ICR 708 was applied. Makanjuola v Commissioner of Police for the Metropolis (1990) 2AdminLR 214 was distinguished because the conduct there fell wholly outside the range of conduct which a police officer could perform in some circumstances.
5. Hypothetical consequences. On the same assumed basis, the alleged assault would have caused the physical injuries. The claimant’s unusual susceptibility to psychiatric injury would not have reduced recovery, and subsequent litigation, disciplinary and employment difficulties would have been treated as flowing from the assault.
6. Costs. The claimant was ordered to pay the costs of both defendants, subject to the Commissioner’s indemnity to the second defendant for her reasonable costs.