Vicario v The Commissioner of Police for the Metropolis

Police and prosecutors generally owe no duty of care in negligence to victims or witnesses when investigating crime or deciding whether to prosecute. The principal policy concerns are defensive decision-making, diversion of resources and reopening closed investigations. Taking a victim’s interests into account does not, without more, create an assumption-of-responsibility duty; reliance on that assumption remains essential. A victim’s wishes cannot determine the decision, since authorities must weigh wider public interests and the interests of other victims. The Caparo requirements of proximity and fairness reinforce the same conclusion. Where the legal answer is clear and the pleaded case has no realistic prospect of success, the claim may be struck out without a trial.

Melania Vicario alleged that Metropolitan police officers investigating allegations against her step-father assumed responsibility to her and her siblings. She claimed that the officers negligently decided not to prosecute, failed to refer the papers to the Crown Prosecution Service, and failed adequately to consult the children or consider their interests.

HHJ Collins CBE, on appeal from District Judge Avent, struck out some aspects of the claim but allowed the alleged duty arising from assumption of responsibility to proceed. The Commissioner brought a second appeal, arguing that the whole claim should be struck out. The central issue was whether the pleaded facts gave the claim a realistic prospect of establishing a duty of care.

The appeal was allowed unanimously. Lord Justice Jacob gave the first judgment, with Lord Justice Arden and Mr Justice Mann agreeing. The claim was struck out altogether.

1. The general rule established by Hill, Elguzouli-Daf and Brooks is that police and prosecutors generally owe no duty of care in negligence to victims or witnesses in investigating crime or deciding whether to prosecute. The policy reasons include defensive policing, diversion of manpower and resources, and reopening closed investigations.
2. The prosecution guidance indicated that the effect of a prosecution on a victim may be considered once there is a realistic prospect of conviction. The pleading therefore needed to allege that no reasonable prosecutor would have failed to prosecute. That could not responsibly be pleaded on the facts. This was an alternative reason for striking out the claim.
3. Even assuming a duty might otherwise arise, the public interest was a complete answer. Treating consideration of the victim’s interests as actionable would require medical investigations into the consequences of prosecution and non-prosecution, causing delay and diversion of resources. Alternative remedies and the possibility of reopening closed matters supported, but did not independently determine, that conclusion.
4. An assumption-of-responsibility claim requires both an assumption of responsibility and reliance by the claimant. The authorities, including Hedley Byrne, Henderson and Capital & Counties, supported that requirement. The present pleading alleged no reliance. Welsh and Swinney were materially different, and L v Reading was confined to its unusual facts, where the police themselves caused damage and there was an alleged duty to prevent future harm.
5. The approach in Caparo led to the same result. A duty arising from the prosecution decision would not be fairly or reasonably imposed, and incremental development is particularly difficult where the proposed duty closely resembles one already rejected. The caution against striking out developing claims did not prevent determination at this stage where the legal answer was certain.

• Court of Appeal (Civil Division): Allowed the Commissioner’s second appeal and struck out the claim altogether: [2007] EWCA Civ 1361.
• Central London County Court: HHJ Collins CBE allowed some aspects of the claim to proceed after an appeal from District Judge Avent; the decision is not otherwise cited in the judgment.
• District Judge Avent: Earlier procedural decision referred to in the judgment; its terms are not stated.