Rogue officers: who is responsible?

In the recent case of Allen v Chief Constable of Hampshire [2013] EWCA Civ 967 the Court of Appeal has once again been asked to rule on whether a chief constable is vicariously liable for the acts of an officer that would seem to have no connection whatsoever with their policing duties.

The judgment highlights some of the apparently contradictory decisions in this area over the last decade. Senior officers could be forgiven for feeling somewhat baffled about the current legal position over potential liability for unauthorised behaviour by officers. This article looks at Allen, some of the older cases the Court of Appeal considered and poses the question: is there a consistent theme that might help predict where a court would draw the boundary of a chief officer’s vicarious liability for wrongdoing by an officer?

Events in Allen

The claimant Ms Allen had been in a relationship with, and then married, a police officer from Hampshire Constabulary. This led to an apparently jealous (or spurned) female police officer, PC Ridgeway, subjecting her to a very unpleasant campaign of harassment. This included anonymous threatening letters, telephone calls, criminal damage, burglary and even an assault on the claimant. The harassing officer had been investigated and the case passed to the Crown Prosecution Service (CPS), which had not charged her. The professional standards department commenced two investigations into PC Ridgeway’s behaviour, neither of which led to disciplinary proceedings.

The claimant sued the chief constable, alleging vicarious liability for the acts of PC Ridgeway. It was also alleged that the chief constable was liable for breaches of Article 3 and Article 8 of the European Convention on Human Rights (ECHR) (inhuman/degrading treatment and invasion of privacy). The chief constable applied to strike the claim out for demonstrating no reasonable cause of action, as PC Ridgeway’s actions had no connection with her position as a police officer. The district judge and circuit judge both agreed that the claim should be struck out and the claimant appealed to the Court of Appeal.

The Court of Appeal reminded itself that, under section 88 of the Police Act 1996, a chief constable “shall be liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions”. It went on to consider three particular cases demonstrating where courts had previously drawn the line for vicarious liability: Weir v Chief Constable of Merseyside Police [2003] EWCA Civ 111, A-G v Hartwell [2004] UKPC 12 and N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB).

Weir v Chief Constable of Merseyside Police

In the case of Weir an off-duty constable in uniform assaulted the claimant, pushed him down a flight of stairs and locked him in a police van (which had been taken without authority), where he continued to assault the claimant and threaten him with arrest. The claimant failed to establish vicarious liability at trial, but was successful on appeal. The Court of Appeal stated that: “To establish liability the claimant has to show more than the mere fact that the tortfeasor was a police officer. He has to show that the tort he alleges was committed at a time when the police officer was apparently acting in his capacity as a constable. I think the judge should have concluded that PC Dudley was apparently acting as a constable, albeit one who was behaving very badly.”

A-G v Hartwell

This case was brought against the Royal Virgin Islands Police. A probationary police officer had abandoned his post, taken a firearm from a secure box in the police station to which he had access and gone to a bar. There, in a jealous rage, he shot his girlfriend, also injuring bystanders. A claim was brought against the British Virgin Islands government. The defendant was found to be responsible in negligence for allowing the officer access to a firearm, but was not vicariously liable for the shootings which followed. At pa