N v Chief Constable of Merseyside Police

Vicarious liability for a police constable’s intentional torts is governed by the ordinary close-connection test. The fact that a constable is apparently or ostensibly acting as a police officer is an important factor, but it is not conclusive. The use of uniform, warrant card or police authority may provide only the opportunity to commit a tort. The court must assess the whole context, including the nature of the employment, any police function being performed, whether a specific duty was entrusted to the officer, and whether the officer was pursuing personal aims. A chief constable is not liable where an off-duty officer, outside his working area and using his status as camouflage, commits assaults unconnected with any entrusted police responsibility.

The claimant was raped and indecently assaulted by an off-duty probationer police constable. He had been sitting in his own car near a nightclub, wearing his police uniform and displaying his warrant card. After presenting himself as a police officer, he persuaded the claimant, who was severely intoxicated, to enter his car on the stated basis that he would take her to a police station. Instead, he drove her to his home and committed the assaults.

The preliminary issue was whether the Chief Constable was vicariously liable under section 88(1) of the Police Act 1996. The central question was whether the assaults were sufficiently closely connected with the constable’s employment to be regarded as occurring in the ordinary course of it.

Claim dismissed on the preliminary issue.

1. Section 88(1) of the Police Act 1996 makes a chief constable liable in the same manner as a master for torts committed by constables in the course of employment. It does not create a distinct or wider test for police officers.
2. The principles in Lister v Hesley Hall Limited [2002] 1 AC 215 apply. The question is whether the wrongful acts are so closely connected with the acts authorised by the employment that they may fairly and properly be regarded as occurring in its ordinary course. The assessment requires a broad evaluation of all the circumstances. Mere opportunity supplied by employment is insufficient.
3. Apparent or ostensible action as a constable is an important factor, but it is not decisive. Uniform, a warrant card and an assertion of police authority do not themselves establish liability. Nor does the fact that a police officer holds the office of constable mean that every purported exercise of authority is within the scope of employment.
4. The cases involving police officers were fact-sensitive. In Weir v Chief Constable of Merseyside Police [2003] ICR 708 and Bernard v Attorney General of Jamaica [2005] IRLR, the officers were apparently performing or enforcing a police function when the torts occurred. That feature was absent here. The case was more akin to Attorney General of British Virgin Islands v Hartwell [2004] 1 WLR 1273, where the officer had abandoned police duties and pursued personal aims.
5. The constable was off duty, outside his working area and in his own vehicle. He had positioned himself near the club to find a vulnerable woman and used his uniform and warrant card as camouflage. He was not performing a police function and had not been entrusted with a specific duty of care towards the claimant. The assaults were therefore merely an opportunity created by his employment, not acts sufficiently connected with it.
6. The absence of a specific duty owed by the police to protect or assist the claimant was relevant to the contextual assessment. The claim against the Chief Constable consequently failed.

First-instance decision. No earlier decision or subsequent appeal is stated in the judgment.