Allen & Ors v Hampshire Constabulary

Vicarious liability under the Police Act 1996 requires both a relationship capable of attracting liability and a close connection between that relationship and the tort. A police officer’s status, access to police facilities or use of police identity is insufficient where the conduct is a personal vendetta unconnected with police functions. A fact-sensitive claim may nevertheless be struck out where it has no realistic prospect of success.

The Article 3 investigative obligation is fact-sensitive and concerns means rather than results. Its scope depends on matters including the seriousness of the alleged treatment and State involvement. The totality of available procedures may discharge it. An Article 8 claim likewise has no realistic prospect where domestic law provides adequate protection.

The appellants, principally a mother and her children, alleged harassment, criminal damage, arson, burglary and assault by a serving police officer. They claimed that the Chief Constable was vicariously liable under section 88 of the Police Act 1996.

They also alleged failures to investigate and protect their rights under Articles 3 and 8 of the Convention. A District Judge struck out the claim, and HHJ Mitchell upheld that decision. The appeal concerned whether the pleaded facts disclosed a realistic prospect of establishing vicarious liability or a breach of the State’s investigative or protective obligations, particularly in the absence of pre-action disclosure.

The Court of Appeal, in the judgment of Gross LJ with which Ryder LJ and the Master of the Rolls agreed, dismissed the appeal.

1. Vicarious liability. The doctrine is policy-based and may extend to intentional wrongdoing. The two-stage approach identified in Lister v Hesley Hall [2001] UKHL 22 and Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 asks first whether the relationship is capable of giving rise to liability and then whether there is a sufficiently close connection between the relationship and the tort. Risk creation and causation may be important at the second stage.
2. The fact-sensitive nature of vicarious liability does not prevent summary determination. Following Three Rivers DC v Bank of England (No. 3) [2001] UKHL 16, the court must avoid a mini-trial but may strike out a claim with no realistic prospect of success. The caution in E v English Province of Our Lady of Charity [2012] EWCA 938 did not require every such claim to proceed to trial.
3. Section 88 of the Police Act 1996 was engaged only if the alleged conduct had the required connection with the officer’s police functions. The anonymous letters, calls, arson, criminal damage, burglary and assault were not pleaded as conduct by an officer acting or purporting to act as a police officer. The allegations therefore disclosed no close connection. They described, at most, a personal vendetta or frolic of her own, as illustrated by A-G v Hartwell [2004] UKPC 12 and N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB). Disclosure could not realistically cure that defect.
4. Article 3. The court assumed, without deciding, that the alleged treatment arguably crossed the Article 3 threshold. The investigative obligation is fact-sensitive, varies according to context and State involvement, and is an obligation of means rather than results. The State may discharge it through the totality of available criminal, civil, disciplinary and other procedures. Here, the criminal investigation, CPS decision, disciplinary processes and unexercised legal remedies were sufficient. The claim was at the low end of the Article 3 spectrum and the alleged wrongdoer was a private individual without State connivance.
5. The protective obligation was not separately determined because the appellant accepted that, on these facts, it was contingent on the investigative obligation. The Article 8 claim also had no realistic prospect. Domestic law was adequate, and the choice of measures fell within the State’s margin of appreciation. The claims were properly struck out.

• Court of Appeal (Civil Division) — [2013] EWCA Civ 967: dismissed the appeal.
• Central London Civil Justice Centre — HHJ Mitchell upheld the order and judgment of District Judge Taylor striking out the claim.
• Central London County Court — District Judge Taylor struck out the appellants’ claim.