B v Reading Borough Council & Ors

For untargeted malice in misfeasance in public office, the claimant must prove subjective knowledge or recklessness both as to the officer’s lack of power or unlawfulness and as to probable injury. Actual unlawfulness is insufficient. An absence of honest belief is shorthand for subjective recklessness, not a lower threshold.

The principle in Hill v Chief Constable of West Yorkshire [1989] AC 53 generally excludes a negligence duty owed by police during the investigation of suspected crime. Exceptional cases may fall outside it where the conduct is not part of that function, or where outrageous negligence has no specific-tort remedy. Extreme facts alone do not justify bypassing the principle.

The claimant brought claims against two local authorities and the Chief Constable arising from the handling of alleged sexual abuse of his daughter. The claims against the local authorities were in misfeasance in public office and conspiracy. The claim against the Chief Constable also included negligence in the investigation of suspected crime.

Mackay J rejected the claims. Permission to appeal was refused on the papers by Sir Richard Buxton. The claimant renewed the application before the Court of Appeal, challenging the application of the subjective mental element in misfeasance and arguing that the alleged police conduct fell outside the ordinary rule excluding negligence duties. The central issues were whether the facts disclosed subjective recklessness and whether the circumstances justified an exception to the police-investigation principle.

Application refused. The claimant had no real prospect of successfully appealing the rejection of the misfeasance, conspiracy or negligence claims.

1. For untargeted malice, the applicable test was correctly stated by reference to Three Rivers District Council v Bank of England Number 3 [2003] 2 AC 167. The officer must know, or be subjectively reckless as to, both the absence of power or unlawfulness of the act and the probability of injury to the claimant. The reference in Stockwell v Society of Lloyds [2008] 1 WLR 2255 and similar cases to an absence of honest belief is shorthand for that test, not a lower alternative. The London Borough of Southwark v Dennett [2007] EWCA Civ 1091 confirmed that the mental element must extend to the act’s unlawfulness as well as its consequences.
2. The trial judge’s findings defeated the claim. The social worker and police officer believed that they were acting properly and for the lawful purpose of protecting the child. They neither knew nor appreciated that they were probably acting wrongfully. The judge’s consideration of alleged deliberate manipulation addressed an issue advanced by the claimant; it did not replace the correct recklessness test. The conspiracy claim was conceded to depend upon proof of misfeasance.
3. The negligence claim fell squarely within the principle in Hill. The investigation of suspected crime does not ordinarily give rise to a duty of care owed to an individual, on grounds of both proximity and public policy. An argument based on objective assumption of responsibility did not overcome the public-policy difficulty. The suggested dual role involving child welfare had not been advanced at trial and, in any event, the officer’s principal function was the investigation of suspected crime. The later point at which no charge was expected did not assist because the claim arose from earlier investigative events.
4. Swinney v The Chief Constable [1997] QB 464 and Waters v Metropolitan Police Commissioner [2000] 1 WLR 1607 concerned materially different circumstances and did not take this case outside the principle. Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 recognised only a narrow possibility of exceptional police negligence outside the core investigative function, particularly where outrageous negligence had no specific tort remedy. Calveley v Chief Constable of Merseyside [1989] AC 1228 was particularly applicable because it denied a negligence duty to a suspect under investigation. Available remedies in misfeasance, or assault where appropriate, provided no justification for expanding negligence.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 1515, Sir David Keene refused the renewed application for permission to appeal. The formal order was Application refused.
• High Court of Justice, Queen’s Bench Division: Mackay J rejected the claims in misfeasance in public office, conspiracy and negligence.
• Permission on the papers: Sir Richard Buxton refused permission before the application was renewed before the Court of Appeal.