Law students/lawyers

[Stuart Kirby]

Guys

Currently in the library at university (yes, 12:10pm on a Saturday) doing some tort coursework that is due for Monday.

The question is - a guy was about to give evidence against a chap with a known history of intimidating witnesses. With that in mind the witness decided to hire private bodyguards. Police said not to bother, they'll protect him. They sent a policeman around one night, who unfortunately fell asleep. The witness was attacked.

Now, now, now then! The question is basically asking me to consider whether or not a duty of care is owed by the police in this example. This is an imaginary House of Lords judgment and the case has been through the High Court already and the Court of Appeal upheld the High Court's decision on the same facts (Caparo approach adopted, foreseeability and proximity were sufficient however judge ruled it wasn't "fair, just and reasonable" to impose duty.

As it's the damn police, policy considerations are a major issue. I really want to decide in favour of the appellant rather than the police, however it's looking like it'd be a very bold decision to do so. Perhaps comment on misfeasance and nonfeasance? The police officer that fell asleep didn't act at all, thus excluding liability, however this nonfeasance was committed in the course of doing something positive? I want these cops punished! I'm not so sure I'll be able to, though.

What do you guys think?

[onefivenine]

I'd say you have a case. Sounds like dereliction of duty, and probably a disciplinary offence to boot.


In wartime, soldiers could face the death penalty for falling asleep on watch.

Here from the current U.S. Uniform Code of Military Justice [UCMJ]:

ARTICLE 113. MISBEHAVIOR OF A SENTINEL OR LOOKOUT

"Any sentinel or look-out who is found drunk or sleeping upon his post, or leaves it before he is regularly relieved, shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct"


Edit: pity no one took his photo - oh that's right it's illegal now to photograph police officers.

[guitarcarfanati]

It's an awquard question just because this whole area is rather confusiing. Osman v United Kingdom seems to further support Hill v Chief Constable of West Yorkshire Police in that it is very difficult to to show police owing a duty of care. These are scenarios where the Police knew of the danger and failed to act and I would probably have to argue that the same applies here.

Do you ahve access to lexus nexus or Westlaw? There must be a few journal articles relating to this issue. Especially as the ECHR suggested this immunity offered to Police contravened Article 6.

[LFC_SL]

Without wanting to write it for you...

You can see guitarcarfanati's post. And there was another House of Lords case involving the police last year.
And then there have been some very big House of Lords cases about private law claims against public bodies beginning with X v Bedfordshire, which whilst not strictly concerning the police do have relevant judicial consideration and indeed refer to the other cases

onefivenine, this concerns whether a duty of care is owed and private law claims against public bodies

Originally Posted by Stuart Kirby

I really want to decide in favour of the appellant rather than the police, however it's looking like it'd be a very bold decision to do so

Unless you are super confident, if a question does not specifically instruct you to make an argument on behalf of one side then argue a question both ways. You can offer some opinion by saying "it would appear that in light of..."

But it is a dangerous game to be biased against one side. Leave your personal feeling out of it

[LFC_SL]

One more thing

Have you done mooting before? If you construct concise arguments like you would for a moot and write coursework like that then it is easy marks. Yes it involves reading 30-40 side House of Lords judgments but needs be

[Stuart Kirby]

Originally Posted by LFC_SL

But it is a dangerous game to be biased against one side. Leave your personal feeling out of it

Quite so! Fair point. A point which isn't lost on me, generally speaking I tend to argue with ways however my comment did imply my overall argument, which isn't the case. I do however still have a niggling feeling that at the end of this judgment I could write "Appeal allowed", although this may well be down to the fact that it seems all the harder to do so. Glutton for punishment?

It's a tricky one. I've been using Van Colle as guidance and Alexandrou and Oxford - looking at whether or not the case would have been decided differently had there been a contractual relationship with the police/private security firm based on Glidewell L.J's comments. There's also some relevant dicta in Van Colle by Brown L.J. hinting that if the police had directly assumed responsibility, a duty of care would arise.

We shall see.

[Stuart Kirby]

Originally Posted by LFC_SL

One more thing

Have you done mooting before? If you construct concise arguments like you would for a moot and write coursework like that then it is easy marks. Yes it involves reading 30-40 side House of Lords judgments but needs be

Funnily enough the day we were to do our moot, I wasn't in. Reasonable excuse, however - had to go and demand answers from my financial advisor! It's a damn shame though as you're right, that would've made this thing a whole bunch easier.

[LFC_SL]

If you are doing tort I presume you are first or second year so as good a time as any to get into the habit of reading cases in full

Don't bother with misfeasance or anything else. I would suggest you have misunderstood what the tort of misfeasance is to be thinking about it. This is a matter concerning negligence so stick with it. You don't get marks for showing off your range of knowledge if a question is not asking you about it and it is a waste of precious word count. If you are having to digress to fill up your word count, then again its better to expand on your arguments or to ensure you are applying the principles to the facts and devoting an appropriate proportion of your essay to doing that

I mentioned mooting because it is excellent for learning how to find extracts from speeches from Court of Appeal/House of Lords judgments to support an argument for or against, as you have been assigned to do so

Originally Posted by Stuart Kirby

I really want to decide in favour of the appellant rather than the police, however it's looking like it'd be a very bold decision to do so

Not particularly a bold argument (do not confuse what you are being asked to write)... its not even a case of police failing to act on information and whether or not on policy grounds they were entitled not to act. They did act on information and undertook a duty to protect the witness

What I am hinting at is you are going to have to spend the forthcoming time doing nothing but reading the two big House of Lords cases in this specific area about the protection of witness. You must surely have covered it in lectures to be given work on it...

[Stuart Kirby]

Thank you LFC (if you mean Liverpool by that, you're going down tomorrow.)

I will shy away from misfeasance. I -think- I have the right basic understanding of it, perhaps not the right notion of where to apply it.

One assumes you mean Smith and Van Colle, heard together? I'll take you up on it and see where it leaves me! Dumbfounded, no doubt. No, hopefully not!

One thing I would ask though - the police -did- indeed take on the duty and somewhat undertook the duty... but by assuming responsibility surely that puts an extra weight on it? Rather than just the police don't generally owe a duty of care the public?

Curiousity, are you third year or all qualified up and should rightly be charging me for such information?!

[Woodywizz]

10 years ago I would have given you some quite brilliant analysis, as it is - many years of Carling abuse has addled the brain - and I just wish you all the best in your argument.

[LFC_SL]

Just be sure to construct your argument carefully as the facts of the cases were that police did not act on information whereas in your scenario they did. Its a case of saying whether a decision was on a set of particular facts or can be applied generally

Arguing both for and against you are saying each time
"The facts were the same in that case and so like in this instant matter..."
"The facts were different in this case but it is relevant because...."

And on that note Lord Keith in Hill did not exclude the police from liability in negligence in general and indeed expressly said as such. You want to read it carefully

Not the best of areas to give yourself 2 days to complete...

[Abbeygoo]

I think the butler did it.

One thing I will have to pick you up on Stuart is that your case of Liverpool v Man City is severely flawed and will only end in tears .... boo hoo!!

[Stuart Kirby]

Originally Posted by Abbeygoo

I think the butler did it.

One thing I will have to pick you up on Stuart is that your case of Liverpool v Man City is severely flawed and will only end in tears .... boo hoo!!