Leach v Gloucestershire Constabulary [1998] EWCA Civ 1368 (31 July 1998)

On 17 November 1997 His Honour Judge Batterbury TD DL struck out Mrs Janet Leach’s claim for damages against the Chief Constable of Gloucestershire. The plaintiff appeals against that striking out and the issue for this Court, as expressed by the defendant in the written submissions made on his behalf, is “whether the learned Judge was correct in holding that on the matters set out in the particulars of claim the defendant did not owe the plaintiff a duty of care”.

On 25 February 1994, the plaintiff, then a voluntary worker on the Young Homeless Project in Cheltenham and 38 years old, was asked by a police officer in the Gloucestershire force to attend Bearland police station to act as what is described in the Code of Practice under the Police and Criminal Evidence Act 1974 (“the 1974 Act”) as an “appropriate adult” during a police interview at the station. She was told only that the person to be interviewed was a 52 year old male. In fact, the particulars of claim continue, “it was one Frederick West who was about to be questioned about a number of murders committed in particularly harrowing and traumatic circumstances”. She had been told nothing about the nature of the case. The police had formed the view that West was mentally disordered so that Code C required the presence at interview of an appropriate adult.

On that day and for many weeks thereafter, the plaintiff acted as “an appropriate adult” “sitting in on interviews, accompanying him [West] to scenes of the murders he had committed and, on numerous occasions, being locked and left alone in a cell with him”. It is common ground that on 24 March 1994, the plaintiff signed, at the request of police officers, a confidentiality agreement which I will set out. Had she declined to sign, she could not have continued to act as an appropriate adult. The plaintiff claims that she was not offered counselling or support until January 1995 after West had committed suicide in custody. The plaintiff subsequently gave evidence at the trial for murder of Rosemary West, wife of Frederick. The plaintiff claims that, by reason of her involvement in the matter, she has suffered post-traumatic stress and psychological injury as well as a stoke.

Further particulars of the particulars of claim have not been sought and the present application is to be considered on the basis of that pleading but it is common ground that the plaintiff attended very many interviews, about forty, as an appropriate adult between 25 February and 24 March 1994 and again between 13 April and 5 May 1994. The West case is notorious amongst modern crimes and it is inconceivable that the police officers concerned were unaware during most if not all of that period that they were dealing with a particularly harrowing case involving allegations of mass murder. That must have been obvious at an early stage of their enquiries. The plaintiff alleges that West’s solicitor (Mr Ogden) and his staff as well as the defendant’s officers on the case were offered counselling in the course of and as a result of their involvement with the case.

“(a) she was caused and/or permitted to attend and accompany Frederick West over the course of the protracted investigation described without adequate or any warning of what the case involved, when it was or ought to have been apparent that such previous experience as she may have had in the guise of “appropriate adult” on the Young Homeless Project would be limited to juveniles charged, in the main, with minor offences;

In order to protect the confidentiality of notes photographs, plans or other written or spoken information however stored which the Appropriate Adult may have acquired during her appointment and without prejudice to every other duty to keep secret all information given to the Appropriate Adult or gained in confidence or acquired during the Appointment the Appropriate Adult agrees that any such information is confidential and will not either during the Appointment or after its termination disclose to anyone and will use the Appropriate Adult’s best endeavours to prevent the disclosure to anyone of any confidential information concerning all matters heard or disclosed to the Appropriate Adult during interviews and all ancillary discussions including all meetings and discussions which may take place between the Appropriate Adult Mr. West and his defence Solicitor or nominated agent in the absence of a member of the Constabulary.

The Appropriate Adult will not at any time make any copy abstract summary or précis of the whole of part of any information document or photograph relating to any details acquired during the period of appointment. Any such copy abstract summary or précis of the whole or part of any information document of photograph prepared in breach of the provision shall belong to the Constabulary and should be immediately given over to the Constabulary when so directed by the Constabulary.

“All in all, having to consider, as I must, whether it is just and reasonable in the public interest to impose a duty of care on the Gloucestershire Police whilst they were exercising their duties under the statutory codes of practice, I regret from the plaintiff’s point of view that I am not persuaded that it is thus just and reasonable. There is no duty of care in this case made out upon the pleaded facts, and to that extent the application [to strike out] must succeed.”

Mr Freeland made his oral submissions on the basis that it was arguable that psychiatric harm was foreseeable and the case turned on points (b) and (c) identified by Steyn LJ. At the end of his submissions, Mr Freeland withdrew his concession on the ground that it might be misunderstood. Further particulars were declined. In my judgment, Mr Freeland was right to make his submissions on points (b) and (c). Forseeability of the risk of psychiatric harm to an untrained person present at the West interviews is in my view plainly arguable.

It is necessary to refer to the Codes of Practice under the 1984 Act, as did the judge. In doing so, it is important to have regard to the purpose of the Codes. They are issued by the Secretary of State pursuant to his duty under section 66 of the 1984 Act (subject to approval by resolution of each House of Parliament under s 67(5)). Code C is the “code of practice for the detention, treatment and questioning of persons by police officers”. Its purpose is to provide a fair and effective procedure for that purpose. It is not to regulate the duties inter se under the civil law of all those involved in the procedures. The question is not one which arose in such cases as X (Minors) v Bedfordshire County Council [1995] 2 AC 633, that is, whether a common law duty to a person exists in parallel with the authority’s statutory obligations. The Code is not concerned to create, negate or define statutory duties to appropriate adults.

“C: 1E In the case of people who are mentally disordered ... , it may in certain circumstances be more satisfactory for all concerned if the appropriate adult is someone who has experience or training in their care rather than a relative lacking such qualifications. But if the person himself prefers a relative to a better qualified stranger or objects to a particular person as the appropriate adult, his wishes should if practicable be respected.

The plaintiff was requested to attend at interview as “some other responsible adult” under 1.7(b)(iii). I propose to consider the position of such a person, that is, a member of the public unrelated to the mentally disordered person and without experience of dealing with mentally disordered people. Different considerations may apply if a relative attends or, for example, a trained social worker employed by a local authority.

For the defendant, Mr Freeland submits first that the plaintiff had no special relationship with the police, as distinct from a special relationship with West, such that the police assumed responsibility for her welfare. The independent nature of her role positively precluded any assumption of responsibility by the defendant. Her task was to advise the defendant, to observe whether the interview was proper and fair and to intervene if she thought necessary. Because she was present to advise and assist the person detained and not the police, her special relationship was with him and not with them. Mr Freeland accepts that there can be an assumption of responsibility without police officers expressly saying that they assume responsibility but he submits that the relationship must be such that the assumption of responsibility must inevitably be inferred.

The defendant’s second submission, and it is the one which found favour with the learned judge, is that it was not fair, just and reasonable in the public interest for a duty of care to exist. It is submitted that the existence of the claimed duty would impinge on the defendant’s ability to investigate crime. The existence of a duty to the plaintiff could conflict with the performance of the duty to investigate crime, for example by requiring curtailment of an interview or by otherwise distracting officers from their investigation. The existence of the duty might lead to an undesirable diversion of resources. Further, the independence of the appropriate adult might be compromised. It is also submitted that, if there is a duty to the appropriate adult, as defined in the Code, it would follow that a duty is owed to others at the interview, for example a relative of the person being questioned or his legal advisers. The law ought not to impose such responsibilities on the police. It is further submitted that the defendant can rely upon the silence of the Code on the question of duties to the appropriate adult to refute the existence of a duty.

In my judgment this case must be distinguished from those, such as Hill v Chief Constable of West Yorkshire [1989] AC 53, Alexandrou v Oxford [1993] 4 All ER 328 and Osman v Furgeson [1993] 4 All ER 346 in which members of the public who are victims of crime have sought unsuccessfully to establish a duty of care to them. The circumstances are different in that in the present case the police requested, albeit on a voluntary and unpaid basis, the services of the member of the public concerned.

The question whether a duty of care exists cannot be decided by reference to the Code of Practice alone. The Code imposes requirements for the conduct of interviews but does not, and would not be expected to, answer the questions posed by this civil claim. What it does is to provide justification for the request to the plaintiff to attend interviews. It imposes a requirement on the police to create a situation in which a third party, and in this case an appropriate adult as defined in the code, attends interviews at the police station.

In this context, I do not find helpful the distinction between primary and secondary victims considered by the House of Lords in Page v Smith [1996] AC 155 in the context of road traffic accidents. In the words of Henry LJ in Frost v Chief Constable of South Yorkshire [1998] 2 QB 254 at 278D, following those of Lord Hope in Robertson v Forth Bridge Joint Board [1995] SCLR 466 at 475, the plaintiff was an “active participant in the events causing the psychiatric damage”. The plaintiff was not of course a victim of crime. The police created the situation, as they were required to do, in which it was foreseeable that the plaintiff would be subject to the risk of psychiatric injury. It was not of their choosing that West was interviewed in the presence of the plaintiff and the requirement for the presence of the plaintiff (or some other appropriate adult) was a duty imposed upon them by the Code. That duty is different in nature from the duty now under consideration. Their performance of the duty under the Code may lead them to assume a duty to the appropriate adult present on their premises for the purpose of their interview. The Code is the background against which the police created a situation in which the potential for a duty of care is present. There can be no doubt that, with respect to the state of their premises, they owed a duty of care to the plaintiff though that is not an important factor for present purposes.

In my judgment the defendant did assume responsibilities to the plaintiff in the inevitably stressful situation in which they had placed her and the element of proximity is established. They may not have wished to place her in the situation but, once they did, they assumed responsibilities towards her. If, for example, the person being interviewed was known to be subject to spontaneous outbursts of physical violence (not this case) the police would plainly assume a responsibility for the safety of a member of the public they had asked to be present at the interview. In relation to whether a duty of care exists, I see no sensible distinction between that situation and a situation in which the member of the public was to be subject to a most bizarre and horrific verbal scenario. When foreseeability is in issue, it does not matter whether the injury in fact sustained is physical, psychiatric or both ( Page v Smith [1996] AC 155).

There is in my view no merit in the submission that the duty is avoided because the plaintiff was required to be independent of the police in the performance of her duties and to assist the man being interviewed. She was, from the point of view of the police, a necessary participant in the procedures. The independence required of her did not preclude a duty of care any more than it would to the operators of a factory in relation to an independent safety officer or to the promoters of a boxing match in relation to the referee. Neither does the possibility that an attachment of some kind may develop between the appropriate adult and the person being interviewed negate the existence of a duty, though it may influence the measures necessary for its discharge. It is not a complete answer to the claim that the appropriate adult is entitled to withdraw from the proceedings. It is foreseeable that, once appointed, that person may persist either out of a sense of public duty, or a wish to help the person interviewed, or both.

The existence of the necessary relationship between police and appropriate adult is reinforced in this case by the written agreement signed by the plaintiff and on behalf of the defendant. Undertakings were given to the police by her as to the manner in which her duties would be performed. The perceived need for the agreement and its formality give substance to the relationship, or as I see it, confirm the existence of a relationship in which a duty of care is owed. It has not been suggested that the plaintiff’s acknowledgement in the agreement that no express or implied duties are owed to her determine in context whether a duty of care exists. That must be decided upon the circumstances as a whole amongst which that acknowledgement, given as and when it was, is not a major factor.

I also consider that it is fair, just and reasonable that the law should impose a duty of care. The Code of Practice which requires the presence of an appropriate adult lays down procedures for questioning witnesses. There may be circumstances in which the presence of the appropriate adult, as with other parts of the Code, does impose limitations on what the police can do. Indeed, she is expected to be more than an observer. The fact that their activities are circumscribed, in this and other ways, does not make it reasonable for the relationship created to be outside those in which a duty of care exists. The task the police are performing at interview, and a recognition of its problems, may bear upon the definition of the boundaries of their duty and upon whether they are in breach of it but should not negate the existence of the duty.

I fail to see how it is necessary or appropriate in the interests of good policing to deny the existence of a duty of care to this member of the public. The existence of the duty need not itself unduly constrain the interview in a situation which is intended by Parliament to be subject to constraint. It is not suggested that the duty involves a requirement not to ask embarrassing questions or questions which will provoke distressing answers. It does not require the police to prevent the situation becoming stressful but in their dealings with the appropriate adult to have regard to the stress which will inevitably be present. The Court will define the nature and extent of a duty appropriate to the circumstances, including the need for the police to be able to question effectively. This is not the time to define the duty but it may involve having regard to the nature of the case when selecting an appropriate person and some degree of instruction and counselling. The possibility that, once appointed, the person may persist in her duties should be borne in mind.

It appears to me eminently fair, just and reasonable that the police should owe a duty of care to a member of the public whom they have requested to assist them in this way. Fairness requires that in my view. There is a public interest in members of the public coming forward as the plaintiff did and that public interest would not be promoted by a finding that no duty of care is owed. There is a public interest in dealing fairly with such members of the public.

In Swinney v Chief Constable of the Northumbria Police [1997] QB 464, the Court held that it was arguable that the police owed a duty of care to an informant who passed on information in confidence implicating a person known to be violent. The Court considered the policy reasons for granting the police immunity from suit which emerge from the judgments in Hill and other cases. However, Hirst LJ stated (484C) that “public policy in this field must be assessed in the round ... in order to reach a fair and just decision on public policy”. Peter Gibson LJ stated (486A) that “the Court must evaluate all the public policy considerations that may apply.” A person asked to act as an appropriate adult under 1.7(b)(iii) of the Code is for the reasons given owed a duty of care as is one who assists by acting as an informant, though the assistance is of a different kind and the obligations which arise will be different.

I find the notion that the police may request a member of the public otherwise uninvolved in the matter to perform the duties of an appropriate adult, without owing her a duty of care, repugnant. The situation created is an unusual one and the task of defining the scope and extent of the duty, and the standard of care required, may be difficult. It may be discharged by minimal or quite simple measures in many cases. Moreover in cases of alleged psychiatric injury, a plaintiff may often have difficulties in establishing causation.

What would in my view be quite wrong, however, would be to allow the question whether a duty of care exists in the present situation to be determined by the difficulty or otherwise of defining the extent of the duty or the standard of care which is required if the duty does exist. The single question for this Court is that stated by the defendant and set out in the first paragraph of this judgment. It should be decided according to principle without anticipating real or imagined future difficulties and of course without inappropriate sympathy for either party. Nor, upon the question posed, should the duty be defined or put into compartments.

The facts for the purposes of this appeal must be taken from the Particulars of Claim and they must be assumed to be true. They are conveniently set out in the judgment of Pill LJ, and I will not repeat them. Although the pleader averred that the plaintiff was required to remain in attendance, Mr Denyer QC accepted that this word should read “requested” and that she was free to leave at any time. It is clear from the Defence that a number of the plaintiff’s allegations will be put in issue, or sought to be set in a different context, at the trial.

The first set of complaints relate to the police’s original request that she should act as an appropriate adult in this case. It is said that it should have been apparent to them that such previous experience as she might have had in the guise of “appropriate adult” on the Young Offenders Project would be limited to juveniles charged, in the main, with minor offences. In those circumstances the police should not have invited her to attend and accompany Mr West over this protracted investigation without any adequate warning of what the case involved. They did not carry out a proper assessment of her suitability for this task, or give proper consideration to the effect that her performance of this role would or might have on her, given that she was an untrained and unqualified voluntary worker whose experience was limited to the young and homeless. They also took insufficient care to ensure that the “appropriate adult” appointed for this task was properly qualified or experienced enough to take it on without risk of mental or psychological harm.

The second group of complaints relates to the fact that she was not offered or provided with counselling and trained support, such as was available to Mr Ogden and his staff, and to the police involved in the case. Such support, it is said, should have been offered or made available to her during the course of her exposure to the trauma she underwent as a result of what she heard and witnessed during the investigation and the interviews.

The present arrangements are prescribed by the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, known as Code C, which was made pursuant to section 66 of the Police and Criminal Evidence Act 1984 (“PACE”). Pill LJ has set out in his judgment most of the relevant provisions of the second edition of Code C, which was in force in 1994. In addition, paragraph 11.14 provides that a “person who is mentally disordered ... must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult.”

Sir Henry Fisher’s report on the Confait case (13th December 1977: HMSO, HC 90) shows at paragraph 16.4 that the arrangements by which a mentally handicapped adult should be interviewed only in the presence of a parent or other person in whose care, custody or control he is, or of some other person who is not a police officer (for example a social worker) were first introduced by means of Home Office Circular No 109 of 1976 to chief officers of police, which was issued after consultation with the Lord Chief Justice. The discussion of the similar arrangements in relation to a child or young person at paragraphs 16.26-16.27 of the report shows that their purpose is to ensure that there is some suitable adult person present who is capable of protecting the interests of the vulnerable person who is being interviewed by the police and of being an independent witness of what takes place. The Royal Commission on Criminal Procedure (1981) Cmnd 8092 discussed this issue at paras 4.105-4.108 of their report. It is clear from para 4.108 that they envisaged that an important part of a social worker’s role, when attending as an appropriate adult, was to ensure that the mentally handicapped person understands the questions that are being put to him. By this time the practice was set out in Administrative Direction 4A of the Home Office circular called The Judges’ Rules and Administrative Directions to the Police, and this in turn was subsumed in Code C published under PACE.

The judge held that it was not just and reasonable in the public interest to impose a duty of care on the Gloucestershire police in the circumstances of this case when they were acting at all times within the Codes of Practice. He was clearly influenced by the fact that the plaintiff was performing her role voluntarily, and that it was not being suggested in her pleadings that she ever protested or showed any overt signs of distress or reluctance. He also appears to have been influenced by a passage in the judgment of Lord Hoffmann in Stovin v Wise [1996] AC 923 at p 946H to the effect that a public authority may have discretionary powers which enable it to do things to achieve a statutory purpose, notwithstanding that they involve a foreseeable risk of damage to others.

On the hearing of this appeal we were shown a number of illustrations of the way in which the courts have decided whether to categorise different types of mishap, or alleged mishap, within the criminal justice system as giving rise to the breach of a duty of care. Most of them were cases in which claims were brought in respect of physical injury or death ( Ancell v McDermott [1993] 4 All ER 355; Osman v Ferguson [1993] 4 All ER 344; Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283; Knightley v Johns [1982] 1 WLR 349), or damage to property, or loss of property ( Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Alexandrou v Oxford [1993] 4 All ER 328). Two were concerned with loss of liberty ( Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335; Welsh v Chief Constable of Merseyside Police [1993] 1 All ER 692). In each, the court, after deciding that the type of damage complained of was a reasonably foreseeable consequence of the plaintiff’s acts or omissions, performed the familiar task of determining first whether the necessary relationship of proximity existed, and then whether it was fair, just and reasonable in the public interest to impose a duty of care in the circumstances of the case. In Elguzouli-Daf, where the two plaintiffs complained about their loss of liberty for 22 and 85 days respectively which was allegedly caused by shortcomings on the part of the Crown Prosecution Service, Steyn LJ said at p 349F that these two considerations inevitably shaded into each other in the context of those two claims, and it did not seem to him that they could sensibly be considered separately. In the present case the harm alleged is psychiatric injury which was entirely divorced from physical injury, and because in the past this type of claim has been treated as problematical, I consider it appropriate to devote a little attention to it before turning to the principal issues we have to decide.

During the last ten years there have been an increasing number of claims coming before the courts in which plaintiffs have been claiming damages for psychiatric illness caused by the breach of some legal duty it is said that the defendants owed to them, when they have not suffered physical injuries at all. In Page v Smith [1996] AC 155 the House of Lords by a majority ruled that if a duty situation exists, like the duty of a motorist not to cause reasonably foreseeable personal injury to others while he is driving his car, then the old distinction between physical injury and psychiatric injury (not linked with physical injury) no longer forms part of our law. This decision does not, however, help in identifying whether a duty situation exists in any particular context.

Most of the cases in the books are concerned with situations in which a plaintiff suffers psychiatric illness as a result of his own imperilment - as in Page v Smith - or reasonable fear of danger to himself, or as a result of the physical injury or imperilment of a third party (or parties) which has been caused by the defendant. Such claims are now being resolved by the courts on a case by case basis following the guidance given by the House of Lords in Page v Smith and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

There is, however, a less familiar line of cases in which, as in the present case, a defendant has neither imperilled nor caused physical injury to anyone. One example is Walker v Northumberland County Council [1995] 1 All ER 737, where the plaintiff suffered a psychiatric illness caused by stress at work, and Colman J held that he was entitled to recover damages by reason of his employer’s failure to provide him with a safe system of work. There was of course, no difficulty in identifying the existence of such a duty in the context of an employer-employee relationship.

In addition to these two types of case which can be readily categorised, the Law Commission has identified a miscellaneous group of cases in which recovery may be available for a negligently inflicted psychiatric illness (assuming that the standard elements of the tort of negligence can be made out): see its report, “Liability for Psychiatric Illness” (1998) Law Com No 249, para 2.51. These include a case where a patient suffers a psychiatric illness because of negligent treatment by his/her psychiatrist (cf M v Newham LBC [1995] 2 AC 633); where a prisoner foreseeably suffers a psychiatric illness as a result of ill-treatment by prison officers (cf R v Deputy Governor of Parkhurst Prison ex p Hague [1992] 1 AC 58 per Lord Bridge at pp 165-6); and where recipients of distressing news suffer reasonably foreseeable psychiatric illness as a result of the news being broken in an insensitive manner ( AB & Others v Tameside & Glossop Health Authority [1997] 8 Med LR 91 and Allin v City & Hackney Health Authority [1996] 7 Med LR 167). These are useful illustrations, but there is not yet any English case of the types described in which it has not been comparatively easy to establish that the requisite duty of care exists, whether from a psychiatrist’s duty to his patient, the Prison Service’s assumption of responsibility for the care of prisoners, or, in the two medical cases I have mentioned, from the defendant health authorities’ acceptance that they owed a relevant duty of care to their patient or former patients. It is noteworthy that in M v Newham LBC (reported sub nom X (Minors) v Bedfordshire County Council [1995] 2 AC 633) the House of Lords declined to recognise a duty of care owed by a local authority or by a psychiatrist retained by the authority towards a child or her parent in the event that the psychiatrist negligently performed his duties of inquiring and reporting on children believed to be at risk.

A case which appears to break new ground, but which was not mentioned by the Law Commission, is Swinney v Chief Constable of Northunbria Police Force [1997] QB 464. The plaintiffs, who were wife and husband, claimed that they were suffering from psychiatric illnesses because they had been threatened with violence and arson after some confidential information furnished by the first plaintiff to the police had been stolen from a police vehicle broken into by criminals. This court did not pay any particular attention to the fact that the claims were for damages for psychiatric illness. It allowed the action to proceed to trial on the facts because it was arguable that the police had assumed responsibility towards the first plaintiff and that there were no policy grounds on which the claim should be barred from proceeding. In evaluating all the public policy considerations that might apply, Peter Gibson LJ said at p 486A that it seemed to him plain that the position of a police informer required special consideration from the viewpoint of public policy (see also Hirst LJ at p 484A-C and Ward LJ at p 487A-C).

Swinney illustrates vividly the way in which, after Page v Smith , the courts in future are not going to have their way blocked by some supposed difference in kind between physical injury and psychiatric injury which may ipso facto bar cases of the latter type. On the other hand, where the reasonable foreseeability of harm of a psychiatric nature as a consequence of the defendant’s alleged acts or omissions can be established - as counsel for the police was at first willing to accept as arguable on the facts of the present case, and which I would consider to be arguable - the two other stages of the Caparo test may well shade together in this type of case, and it may not be sensible to consider them separately. In Stovin v Wise [1996] AC 923 Lord Nicholls of Birkenhead suggested at p 932 that “proximity” was a slippery word, being a convenient shorthand for a relationship between two parties which makes it fair and reasonable that one should owe the other a duty of care.

I turn now to consider the first set of complaints to which I have referred. These are contained in paragraphs (a), (b), (c) and (g) of the Particulars of Negligence. As the judge correctly observed, the plaintiff did not have to involve herself in the obligations of an appropriate adult. She agreed to do so, and she could have stopped doing so at any time. Indeed, Mr Denyer accepted that she had in fact been replaced for a short period, but had resumed her duties willingly when Mr West asked that she should come back. As the written agreement made clear, and as was indeed the case, she was not in an employer/employee relationship with the police: indeed she would not have been qualified to act as an appropriate adult if she had been (see Code C, para 1.7). I do not consider that there is anything in the language of the confidentiality agreement, which simply reflected the existence of a duty of confidentiality already imposed by the general law, that could create a duty of care which did not otherwise exist.

In my judgment, there are strong reasons of a policy nature why the law should not impose on the police a duty towards an appropriate adult to take care to protect her from the kind of harm of which the plaintiff complains in this case. It must be remembered that the potential beneficiaries of such a duty would constitute a very wide class. They would include the parents or guardians of any juvenile, or the relative, guardian or other person responsible for anyone who is mentally disordered or mentally handicapped, or, if there is nobody suitable in this category or in the categories of social worker mentioned in paragraphs 1.7(a)(ii) and (b)(ii) of Code C, any responsible adult over 18 (other than police officers or those employed by the police) who agrees to do the job. Many parents, guardians and relatives are likely to be in an anxious, nervous state when they come to the police station to perform their role as appropriate adults, and although the crimes imputed to Frederick West were particularly revolting, the police often have to investigate fairly unpleasant activities. I do not know how it could be envisaged that they should fulfil their role if they owed a duty to the appropriate adult of the type for which the plaintiff contends, or how the courts could readily distinguish on the facts of any particular case those adults to whom such a duty is owed from those to whom it is not owed.

Although the requirements of Code C are not enforceable by mandamus (cp PACE s 67(10)), Parliament decided that they were so important that they should not be introduced without a positive resolution of both Houses (s 67(4)) and it used a subtler mechanism for ensuring that the police recognised that their task of obtaining evidence likely to lead to the conviction of alleged offenders would be impeded if they did not comply with requirements of the Codes (see s 67(ii)). In other words, the police are for all practical purposes obliged to ensure that an appropriate adult is present, although that person will not be performing her independent duties in any sense as an agent for the police.

In his judgment Pill LJ suggests that it would be legitimate to limit the ambit of our decision in this case to those mentioned in paragraph 1.7(b)(iii) of Code C (“some other responsible adult aged 18 or over who is not a police officer or employed by the police”) and to leave for decision on some future occasion or occasions the question whether the police owe a similar legal duty, which nobody has ever previously identified or, so far as I am aware, suggested, to those in categories (i) and (ii) (a relative etc, or someone who has experience of dealing with mentally disordered people). In the meantime the police would be left in a state of complete uncertainty. They would not know what they are obliged to do in order to comply with their legal duty in relation to category (iii), and it is difficult to see any very logical reason why they should not behave in the same way towards those in categories (i) and (ii), at any rate in relation to their conduct during questioning or visits to the scenes of crimes.

There is no trace of any suggestion in Code C that Parliament or the Secretary of State intended that the police should owe a duty towards an appropriate adult of the type suggested by Mr Denyer. The independence of the appropriate adult is an essential part of her function. She is not formally selected, paid or employed by the police, and they have no power to secure that she be replaced: in the event of an irreconcilable dispute a court, and not a police-appointed authority would have to rule that she could no longer be properly regarded as appropriate. Note for Guidance 1E in Code C, indeed, includes the suggestion that it may in certain circumstances be more satisfactory for all concerned if the appropriate adult (in the case of mentally disordered persons) is someone who has experience or training in their care rather than a relative lacking such qualifications, but if the person himself prefers a relative to a better qualified stranger, the Guidance Note prescribes that his wishes should, if practicable, be respected.

In a number of cases liability is found to arise because the defendants assumed responsibility vis a vis the plaintiff in a relevant respect. Examples in this field include the relationship between the police and a police informer in relation to the security of the information entrusted to police care ( Swinney), the relationship between the police and someone they detain in custody and hand over to the custody of the prison service in relation to information about his known suicidal tendencies ( Kirkham), and the relationship between the Crown Prosecution Service and an offender in relation to information that his responsibility in respect of a pending charge has been admitted and taken into consideration at a Crown Court, so that he was no longer in jeopardy in respect of that charge before magistrates ( Welsh). In my judgment the whole essence of the present plaintiff’s relationship to the police is that they did not assume responsibility towards her in relation to her duties as appropriate adult. She was there at the police station to be of assistance to Mr West, and the police might not be able to do their job of interviewing Mr West effectively if they were under a concurrent legal duty to be protective of the plaintiff’s psychological well-being.

It must be remembered that if a duty of care is found to exist, it would be a duty to take reasonable care not to do reasonably foreseeable injury to the mind of the person to whom the duty is owed. When considering foreseeability, that person, if nothing more is known about him, must be assumed to be a person of customary phlegm, but Iif the duty is broken, the victim would be treated as a primary victim, and if the victim in fact has an “eggshell mind”, then the police would be liable for all the harm suffered by a person with a mind in such a state (see Page v Smith [1996] AC 155 per Lord Lloyd of Berwick at pp 185-190) unless some different rules are introduced on policy grounds for some of the cases in the Law Commission’s third category, as compared with the rules we now have to use for primary victims who are directly imperilled in an accident.

A further problem is connected with the standard of care the courts should apply in determining whether the alleged duty is broken. Judges have no particular expertise in deciding what should or should not be done to avoid the sort of stressor which may trigger off an identifiable psychiatric illness, and counsel did not suggest that there was any repository of wisdom to which the police might have access in order to know what they should do to order to comply with their suggested new legal duty. In cases involving professional men and women the courts will customarily apply the contemporary standard of care accepted as proper by a responsible body of professional people practising in the field in question ( Whitehouse v Jordan [1981] 1 WLR 246). If a duty of care exists, and there is no body of opinion to which the court should look, it will have to apply what it considers to be an appropriate standard, drawn no doubt from the evidence it receives in the particular case it is deciding (see AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 per Brooke LJ at p 99 LHC). It is not very satisfactory to develop the law in a novel field on such possibly unreliable foundations.

Counsel told us that they had not been able to identify any case in any common law jurisdiction which suggested that a legal duty of care might exist in a situation of this kind, so that there would be no model code on which the courts could draw. A hypothetical code of acceptable practice could not be limited to a duty to provide counselling, because if counselling is necessary, foreseeable harm may already have been done. It would have to involve vetting whether the responsible adult is sufficiently robust to withstand exposure to what may be distasteful and shocking details, because the police, saddled with their new legal duty, would wish to have the right to vet the person in question or to relieve her of her responsibilities even if she had won the trust of the person being questioned. This new right of police veto might well militate against the public interest, since a sensitive person, as contrasted with a rather unimaginative, hard-boiled personality, might generally be thought more appropriate for this task, and the Code itself suggests that the choice of the appropriate adult should ultimately be one for the person being questioned, not for the police. I had a comparable worry when I was concerned with a case in which free-standing psychiatric injury had been accepted as a means of qualifying for a police pension (see R v Fagin and Travers ex p Mountstephen [1996] COD 416) because it appeared to me that the ramifications of an obligation to pay a pension to a policeman who retired early due to stress-related psychiatric illness, even if he had an eggshell personality when he entered police service, might not have been properly thought out.

I do not derive any assistance at all from the thought that there were well-established duties of care which the police undoubtedly owed to the plaintiff, just as they owed them to anybody else who was foreseeably at risk of personal injury: for instance the occupier’s duty of care to ensure, so far as was reasonable, that the chair she sat on did not collapse, or a duty of care to do what was reasonable to protect her from physical attack by someone in police custody. Where I part company from Pill LJ is that he sees no sensible distinction between the latter situation and the situation with which we are concerned in the present case.

The reason why I see a clear distinction is that in the present case the harm from which the police are said to be under a duty to protect her is harm to her mind, and the history of English law over the last 100 years has shown that this is a highly charged policy area. In my judgment, in our hierarchy of courts it is for the House of Lords to take any new policy decisions in this field, if it is considered to be an appropriate subject for judicial law-making at all, and not for this court (compare the similar approach of this court in the two recent cases of Hunter v British Coal Corporation [1998] 2 All ER 97 and Tranmore v T E Scudder Ltd (unreported: CAT 28th April 1998). See also the difficulties the House of Lords experienced in deciding how policy considerations should stake out the limits of the law in the “secondary victim” case of McLoughlin v O’Brian [1983] AC 410).

Three years at the Law Commission taught me the very great practical problems that are created when judges, out of sympathy for a particular plaintiff, identify the existence of a quite new duty of care scenario without spelling out what is required to comply with that duty except the vague aspiration that the details may be filled out on a case by case basis hereafter. I have no difficulty in concluding from the story of this case that it would be very desirable for the Home Secretary to initiate consultation about the guidance which should be given to the police in relation to their selection and treatment of appropriate adults, since Code C is at present rather short of details on these matters. The Gloucestershire police already appear to think that they have power to provide counselling at taxpayers’ expense to the solicitor acting for a person being questioned, but as with all items of expenditure from public funds it would be desirable to make this power explicit, if it exists, and to set out the criteria which should control its exercise. For this court to go further than this and to create a new, rather vaguely defined legal duty where none has been perceived to exist before would, in my judgment, not be helpful. The House of Lords, indeed, would be likely to receive the benefit of a much wider range of information to enable them to make policy choices than was available to us.

I am conscious that the House of Lords has repeatedly stated that a plaintiff’s claim should not be struck out unless it is clear and obvious that in law the claim cannot succeed. Where the law is not settled but is in a state of development, it is normally inappropriate to decide novel questions on hypothetical facts ( X (Minors) v Bedfordshire County Council [1995] 2 AC 633 per Lord Browne-Wilkinson at pp 740-741). In my judgment we are in just as good a position now as we would be at the end of a contested trial to decide the policy question which will be determinative of liability on the first set of complaints. I therefore agree with the judge that paragraphs (a), (b), (c) and (g) of the Particulars of Claim should be struck out. I also agree with Henry LJ that we should grant liberty to apply to restore sub-paragraph (g) if the plaintiff’s counsel wishes to do so for any reason at the trial.

As to the second set of complaints, which are set out in paragraphs (d) and (e) of the Particulars of Claim, I do not consider that the fact that the police provided counselling for Mr West’s solicitor and his staff - precisely what they did in relation to the plaintiff is in issue between the parties, but for present purposes we must assume that she did not receive this service - takes the matter any further forward. Mr Denyer accepted that the police owed no legal duty towards Mr West’s solicitor of the type he contends for in respect of his own client, and unfortunate though it is if the plaintiff’s complaint in this respect is well-founded, I am very doubtful whether this disparity of treatment could give rise to a legal duty which did not otherwise exist. I have, however, read the judgment of Henry LJ, and I do not dissent from his view that this part of the plaintiff’s claim should be allowed to proceed to trial on these issues, in order that the facts may be definitively established before a court makes a final ruling on the questions whether a duty of care did exist in the circumstances established at the trial, what form it took, and whether it was broken. I would therefore be willing to allow the appeal to the extent that paragraphs (d) and (e) of the Particulars of Negligence are restored to the Particulars of Claim.

As to the final complaint, which is contained in paragraph (f) of the Particulars of Negligence, Mr Denyer did not suggest to us that if his client’s claim was unsustainable on the basis that the police owed her no duty of care to protect her from reasonably foreseeable psychiatric injuries while acting as an appropriate adult, she had a freestanding cause of action in negligence in relation to the allegation that she was falsely advised and assured that she would not have to testify at trial. Although it is easy to imagine circumstances in which carelessness by the police in giving false information on which a plaintiff relied to her detriment might found liability, irrespective of the wider issues raised by this case, it is unnecessary to examine this question in view of the manner in which Mr Denyer argued his case. It appears to me that he was correct to confine his argument in this way, because the nature of the plaintiff’s relationship to the police would have been an essential starting-point for any inquiry as to whether she was owed a Hedley Byrne duty in relation to this particular statement. Because she was as a matter of law independent of the police, it is easier to see that she could have been owed no such duty in relation to a matter over which the police would have had no control. I therefore agree with the judge that paragraph (f) of the Particulars of Negligence should be struck out.

Defendants often do themselves no favours when they attempt to strike the plaintiff’s Statement of Claim under Order 18, rule 19. This is because such applications commonly (and certainly here) have to be decided on inadequate facts and untested but implausible factual assumptions. In this appeal the inadequacy of the factual basis is demonstrated by the fact that we have not seen the transcripts of Frederick West’s interviews with the police, nor even any summary of them. Nor have we seen any medical reports in relation to the plaintiff, nor any medical opinion on causation and foreseeability. Yet problems of foreseeability and causation are normally central in any case where the damage alleged is psychiatric. But for our purposes we must assume, however sceptically, that foreseeability will be established.

Though the case concerns psychiatric damage, it is not the normal psychiatric damage case. That is to say, it is not a case which involved either a near-accident to the plaintiff, nor the plaintiff witnessing an accident or anticipated accident to another, nor its aftermath, nor being told of such an accident. Nor is it a case where the stressing or distressing factor was caused by the negligence of the defendant. That factor was whatever it was that Frederick West said in interview in answer to the questions lawfully asked of him by the police officers who interrogated him under the regime laid down by the Police and Criminal Evidence Act, 1984, and the Codes approved by Parliament.

In their interviews of Frederick West, the police were playing an important part in their investigative process - important for the person questioned, important for the police, and important for the public interest in the open-ness and fairness of the judicial process.. The safeguards to ensure the integrity of the process are laid down in the Act and in the Codes. In the case of an adult offender, where there is any suspicion that he or she might be mentally disordered, then the custody officer must ensure that an “appropriate adult” (hereinafter “AA”) is in place. That AA is there for the protection of the suspect. His presence is, as a general rule, necessary at any interview even though (as was the case here) the accused’s solicitor is present. Other police officers or employees of the police are disqualified from performing the role. The role requires independent judgment - the AA is there to advise the person questioned, to see that the interview is being conducted properly and fairly, and to ensure that the person understands the questions. For the purpose of the interview, he is there to assist and advise the person questioned who must be informed that he can consult privately with the AA at any time. The person questioned may object to the AA, or express a preference for another, and the notes to the Code reflect that some regard should be paid to the accused’s expressed preference (as here was, when the plaintiff voluntarily resumed her role as AA).

In their conduct of these interviews the police are performing an important part of their public duty in the investigation of crime. So this is a case where public policy may properly “confine the duty of care within narrower limits than those which would be defined by an unqualified acceptance of the neighbour principle.” (see Lord Kieth in Yuen Kun Yeu -v- Attorney-General for Hong Kong [1988] 1 AC 175 at 191, quoting Brennan J in the High Court of Australia). Lord Keith expanded on this immunity in Hill -v- Chief Constable of West Yorkshire [1989] 1 AC 63 from the top of page 63 to the end of his speech. There he details the public policy immunity from suit enjoyed by the police. For the reasons there set out it seems to me to be quite clear that the police could successfully rely on that public policy defence to defeat any claim against them in negligence in the way in which they chose to carry out their interviews in their investigative role. As will be seen when we come to the pleadings, the plaintiff does not assert negligence in the conduct of the interviews. Had such a case been made, the public policy defence would have defeated it.

The criticisms made of the defendants are set out in the Particulars of Negligence already cited by Pill LJ. The provisions of Order 18, rule 19 make it clear that “anything” in a pleading may be struck out if “it discloses no reasonable cause of action”. Here the defendants sought and succeeded in striking out the whole action, but it lies within the powers of this court to effect a partial strike-out. And that is what I believe to be appropriate in this appeal.

Third, being the AA is a voluntary, unpaid task, not a contractual obligation. As Mr Denyer QC acknowledged, though his pleading alleges that Mrs Leach was “required” to attend, in fact she was “requested”, and could have stopped at any time. If at any time she had found the interviews in any way distressing, she could have walked out and brought the interview to an end. Where the AA retains such a power, in my judgment there is little point in a rigorous selection procedure for an unpredictable occurrence.

Therefore, in my judgment the police may rely on their public service immunity to defeat claims made against them in relation to both the conduct of the interviews, and in the choice of appropriate adult. In my judgment the police should not be required to act defensively to avoid claims either in their approaches to individuals to see if they will act as AAs, or in the conduct of their interviews. That would not be in the public interest. Therefore I would strike out paragraphs a), b) and c) of the Particulars of Negligence.

I start with the Australian case of Mount Isa Mines Limited -v- Pusey [1970] 125 CLR 383. The psychiatric injury had been sustained by an employee plaintiff, who went to the assistance of two fellow employees, who had been badly burnt. There Windeyer J, having earlier wryly commented that in psychiatric damage cases the law marches with medicine, but “in the rear, limping a little” (ibid at 395), went on to say:

It is pleaded in the Statement of Claim that “the Defendant’s officers on the case were offered counselling in the course of and as a result of their involvement with the case.” For an analogous case see Miller -v- Royal Derwent Hospital Board Management (unreported, Tasmanian Supreme Court 29th May 1992 No 282 of 1988 - for which I am grateful to the editors of Tort Liability for Psychiatric Damage Mullany & Handford).

Now the plaintiff was not their employee, nor was she allowed to be their employee. But though a volunteer free to leave at any time, she was there at their request and going through whatever the interviewing officers (and we know not whether they had counselling) were going through. In my judgment she would clearly (but for the public service immunity) satisfy the proximity test. Though her presence was voluntary, it was of assistance to the police in their task, because they could not conduct their interviews without an AA, and she clearly enjoyed Frederick West’s trust.

But does the public service immunity argument offer a defence? In my judgment it clearly does not because the existence of a duty where appropriate to offer and provide counselling to AAs in no way hampers or interferes with the police’s discretion as to the content and number of interviews. Their investigative process remains unaffected. There is no reason for the immunity to operate. So I would not strike out either Particulars d) or e). Particular g) is a sweep-up allegation. If it were widened to extend beyond the offer and provision of counselling it might conceivably interfere with the interview process. I would strike it out on the basis that d) and e) cover counselling, with liberty to apply to the judge responsible for the case.

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Leach v Gloucestershire Constabulary [1998] EWCA Civ 1368 (31 July 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1368.html Cite as: [1998] EWCA Civ 1368, [1999] WLR 1421, [1999] 1 WLR 1421

England and Wales Court of Appeal (Civil Division) Decisions