Acts v. Omissions

Under English common law, you have no duty to act. An ordinary person cannot be held liable for something that happened because they chose to do nothing. If you are walking beside a lake on a summer evening, hear cries of ‘help!’ and notice a swimmer flailing their arms, you are under no legal obligation to do anything. You do not have to call for help or throw them a lifebuoy, let alone dive into the water to save them. You could idle on the shore and watch them slip beneath the surface, for all an English court would hold you accountable.

This principle applies not only to ordinary citizens, but also to those explicitly charged with the protection of the public. The police and other emergency services are under no special obligation to act. If a police officer stood by and watched the swimmer drown, the courts would come to the same conclusion – so long as the officer didn’t make the situation worse.

In a recent case, Tindall v. Chief Constable of Thames Valley Police, the Supreme Court was ‘faced with a claim … which raises in acute form a question about precisely where the dividing line falls between failing to protect a person from harm and making matters worse’. On 4 March 2014, the police were called to the scene of an accident on a rural A-road in Buckinghamshire. Mark Kendall had skidded on black ice, losing control of his car and veering into a ditch. He extricated himself and signalled to other vehicles to alert them the danger before calling the emergency services.

When the police arrived, they interviewed Kendall, breathalysed him and handed him over to an ambulance crew. They put out a ‘Police: Slow’ sign, swept the road and requested a gritter. They then picked up their sign and left. Black ice was still all over the road. An hour after the first accident, another car skidded on the ice. This time, the driver, Carl Bird, careened across the road, colliding head-on with another car, being driven by Malcolm Tindall. Both were travelling at about 50 mph. The two drivers died almost instantly.

As with any death that occurs on the constabulary’s watch, the officers’ conduct was examined by the Independent Police Complaints Commission. The commission concluded that there was a case for gross negligence manslaughter and misconduct in public office, and referred it to the CPS. They declined to prosecute. A disciplinary tribunal found two of the officers guilty of misconduct and one of gross misconduct. After an inquest recorded a narrative verdict that the police ‘should’ have done more, the widow of one of the victims, Valerie Tindall, sued Thames Valley Police in the civil courts for negligence.

Even if you accept the distinction between ‘failing to protect’ and ‘making matters worse’ that the courts have maintained since 1941, Valerie Tindall should have had a good case. Before the police arrived, Mark Kendall had been trying to alert other drivers to the ice that he’d skidded on. When the emergency vehicles were on the scene, their blue lights, as well as the ‘Police: Slow’ sign, served as a warning to other drivers. But when the officers left, well aware of the risk still posed by the black ice and knowing that a gritter could still be some time away, they took the only safety precaution with them.

In their defence, the officers claimed that they had no proper training in road traffic accidents. It should not take formal training to realise that removing warning signs from dangerous roads will expose drivers to unnecessary risk. But they did not need even this defence. Overruling the Court of Appeal, which had found the officers negligent, the Supreme Court exonerated them. The officers were guilty of an omission, not an act. According to a unanimous court, the officers had done nothing to make the scene more dangerous or to expose drivers to extra risk. They left the road in the same state in which they had found it.

This follows the precedent set by the Supreme Court in the fatal case of Michael v. Chief Constable of South Wales Police. Joanna Michael called 999 from her mobile phone at 2.30 a.m. on 5 August 2009 to say that her ex-boyfriend had turned up at her house in Cardiff, where she lived with her two young children, and attacked her. She had been with another man, whom her ex was now driving home. But he would be back ‘any minute literally’.

The call was picked up by a neighbouring force, Gwent Police, who graded it as a G1 call, requiring an immediate police response, and passed it on to South Wales Police. But they graded it as G2, requiring a response within an hour. Less than fifteen minutes later, a second call was made from Joanna Michael’s mobile. The operator heard a scream and the line went dead. A rapid response vehicle was sent to the house, arriving eight minutes later to find Michael dead from multiple stab wounds.

Her parents sued the police for negligence. The Supreme Court justices, by a majority of 5-2, rejected their appeal:

The duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of close or special relationship (‘proximity’ or ‘neighbourhood’) necessary for the imposition of a private law duty of care.

If the call handlers had prioritised Joanna Michael’s call correctly and officers had rushed to the scene but still arrived too late to save her, it would be hard to blame the police, just as it would if the fatal crash on the A413 had occurred before the police got there. But in both cases there is a strong argument that the police failed in their public duty. If officers had set out for Joanna Michael’s house as soon as her first 999 call was received, they would have arrived before her ex-boyfriend returned. The reason they did not – the misgrading of the call as lower priority – was the fault of the police service. The police were at the scene of Malcolm Tindall’s death an hour before he was killed. By removing the caution signs, they placed him, and every other driver, at risk.

When police officers take up their position, they swear an oath to preserve the peace and protect the public. No one expects them to be superheroes, leaping into burning buildings or launching themselves unarmed into the middle of a gunfight – although some officers do sometimes behave with extraordinary bravery. But we ought to be able to expect them to be competent. Expecting the police to respond urgently to a 999 call from someone who is about to be murdered, or to ensure that black ice is flagged to drivers after attending the scene of a road traffic accident, is not imposing a huge burden on the emergency services. It is expecting them to do their jobs.