Police Civil Liability: Lessons From the Brooks Case
by A discussion of whether the negligence claim in Brooks v Commissioner of Police for Metropolis [2005] UKHL 24, [2005] one WLR 1495 should have been allowed, and what alternative remedies and avenues of accountability (both legal and other) would have been available to Mr Brooks in New Zealand.
On the evening of 22 April 1993, in south-east London, a gang of white teenagers attacked Stephen Lawrence and Duwayne Brooks, for no other reason than being black. Stephen was murdered; Brooks traumatized. Enter the police. A 1999 public inquiry found that the force was “institutionally racist,”[1] and that “Mr Brooks was stereotyped as a young black [which resulted] in the collective failure of those involved to treat him properly…”[2] These tragic events form the factual background that this paper investigates. The paper discusses whether the Brooks case negligence claim against the police should have been allowed, and the adequacy of available accountability venues (both legal and other) in New Zealand.[3]
Put succinctly, Mr Brooks’ negligence claim could not, should not, and would not succeed. It could not succeed because Mr Brooks is likely to fail on at least one element of the tort of negligence[4]—and even if he does not, the quantum of damages will be de minimis, given causal uncertainty. It should not succeed because negligence—an unintentional tort, is not suited to assigning liability on the constitutional, racism-pregnant, undertones in the case. And it would not succeed, given government’s apprehension, including the judiciary, when it comes to alienating their most effective apparatus: the police—all forms of “alchemic technologies”[5] can and will be employed to ensure that outcome. Mr Brooks’ best option lies inevitably outside government. Enter the media: Mr Brooks should take his case directly to the people.[6] Finally, the paper advocates a strict accountability model where police is held liable once (material contribution) causation is established.
It is submitted that the New Zealand Supreme Court (NZSC) will follow Couch v Attorney-General [2008] 3 NZLR 725 and not strike out a Brooks type negligence claim. [7] [8] Although in Gregory v Gollan [2009] NZSC 29 the NZSC did not seem concerned with the High Court’s striking out of a similar claim, Gregory can be distinguished given Mr Brooks is a victim and a witness, not a suspect,[9] which overcomes the lack of proximity argued where the claimant is a suspect,[10] and in turn overcome policy considerations against finding a duty.[11]
In Couch two factors were relevant for finding proximity (at [5]): statutory obligations, and knowledge of, and reasonable means to avoid risk to the claimant. The statutory obligations requirement is satisfied: under section 8(d) of the Policing Act 2008, “policing services are provided in a manner that respects human rights”, suggesting accountability to the individual—given the rights discourse. And under sections 9(c) and 9(e) two of the functions of the police are “law enforcement” and “community support and assurance”. The other factor is also satisfied: the traumatic effect from the attack should reasonably have been anticipated: officers’ training should have prepared them to take reasonable steps to mitigate aggravating that effect.
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