(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

(3) In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after paragraph (m) there is inserted

(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.

(b) his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property.

(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

(5) If on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2.

(6) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (5) convicted before it of an offence under section 2 as a magistrates' court would have on convicting him of the offence.

Lord Justice Keene said that the issue concerned the liability of a police force in negligence when officers failed to prevent an offence being committed against an individual member of the public. The chief constable's liability was alleged to arise vicariously. His Lordship, having reviewed the relevant authorities, agreed with the propositions set out by Lord Justice May in Costello v Chief Constable of Northumbria Police (1998) The Times, 15 December. It was only if a particular responsibility towards an individual arose, establishing a sufficiently close relationship, that a duty of care might be owed to that individual.

The issue was whether the police officers who attended assumed a responsibility towards Cowan, a member of the public, to prevent his eviction creating a special relationship between themselves and him.

If there was a duty it might have been performed in the circumstances by the giving of a warning to Mr Lumber that he would be committing an offence by evicting Cowan. The fact that such performance might not have been difficult did not itself indicate that the officers had assumed the responsibility contended for. His Lordship did not accept that the mere presence of the officers at the scene was in the circumstances sufficient to give rise to the necessary special relationship: see by comparison Capital Counties plc v Hampshire County Council (1997) QB 1004. Something more was required.

Some assistance could be obtained by considering the purpose behind the attendance of the police. What, if anything, were they assuming responsibility for? The judge found that the officers attended in order to prevent a breach of the peace. While the issue of whether there was a special relationship was to be determined objectively, nothing said or done by the officers indicated that they were assuming a responsibility to prevent Cowan being evicted. Unlike in Costello the purpose for which the officers were present was one which they fulfilled.

His Lordship found it impossible to discern any sufficiently weighty countervailing public interest which would make a duty of care appropriate in the present case or render it just or reasonable to impose such a duty.

Police officers called to an incident where a member of the public had been threatened with violence if he did not leave his rented property and who was then evicted in their presence, did not owe a duty of care to prevent an offence being committed against him under the Protection from Eviction Act 1977.

The Court of Appeal so stated when dismissing an appeal by Cowan against the dismissal in Bristol County Court on 3 November 2000 of his claim for negligence against the Chief Constable of the Avon and Somerset Constabulary. Cowan had called out police officers when men threatened him with violence if he did not leave his rented property as the landlord had requested. When the men returned, on the officers' advice, he called them again. They attended and he was evicted. He brought proceedings in negligence alleging that the officers

owed him a duty to take steps to prevent a crime being committed under the 1977 Act, primarily by pointing out that the conduct of one of the men, Paul Lumber, was an offence.

The judge found that the officers had no knowledge of the 1977 Act. He decided that there was a sufficiently proximate relationship between Cowan and the officers for them to owe a duty of care, but concluded that it was not just, fair and reasonable to impose such a duty and would be against public policy to do so.

The facts - WPC Costello had taken into custody a young woman who had absconded from local authority care. Accompanied by Inspector Bell, she had taken the prisoner to a cell, and the prisoner had attacked her. Inspector Bell had done nothing. Hearing her screams, another officer had given assistance, but not before WPC Costello had been injured.

For public policy reasons the police were under no general duty of care to members of the public for their activities in the investigation and suppression of crime: Hill v Chief Constable of West Yorkshire [1989] 1 AC 53, but that was not an absolute blanket immunity and circumstances might exceptionally arise when the police assumed a responsibility, giving rise to a duty of care to a particular member of the public.

Duty of care to respond to emergencies - Neither the police nor other public rescue services were under any general obligation, giving rise to a duty of care, to respond to emergency calls Alexandrou v Oxford [1993] 4 All ER 328 nor if they did respond were they to be held liable for want of care in any attempt to prevent crime or effect a rescue.

But if their own positive negligent intervention directly caused injury which would not otherwise have occurred or if it exacerbated injury or damage there might be liability: see Capital and Counties plc v Hampshire County Council, supra.

Just as circumstances might occur in which a police officer assumed responsibility in particular circumstances to a particular member of the public not to expose a member of the public to a specific risk of injury, so a police officer might in particular circumstances assume a similar responsibility to another police officer.

If a police officer tried to protect a member of the public from attack but failed to prevent injury to the member of the public, there should, in his Lordship's view, generally be no liability in tort on the police officer for public policy reasons. In the circumstances liability should not turn on shades of personal judgement and courage in the heat of the moment.

But Inspector Bell had acknowledged his police duty to help the plaintiff. Yet he had not, on the extraordinary facts found by the judge, even tried to do so.

Police duty to come to the aid of a fellow officer - In his Lordship's judgment, the inspector's acknowledged breach of police duty should also incrementally be seen as a breach of a legal duty of care. The duty was a duty to comply with a specific or acknowledged police duty where failure to do so would expose a fellow officer to unnecessary risk of injury.

There was a strong public policy consideration to be taken into account, namely that the law should accord with common sense and public perception. The judge had been right to say that the public would be greatly disturbed if the law held that there was no duty of care in the case.

The particular circumstances of the case should not be left solely to internal police discipline. In addition, the public interest would be ill served if the common law did not oblige police officers to do their personal best in situations such as the one before the court.

The decision should not be interpreted in any shape or form as undermining the general principle laid down in Hill v Chief Constable of West Yorkshire.

The decision in Costello - A police inspector accompanying a colleague for her protection was in breach of a duty of care when she came under attack and he did nothing to help her. There was a duty to comply with a specific or acknowledged police duty where failure to do so would expose a fellow officer to unnecessary risk of injury and the matter could not be left solely to internal police discipline.

The Court of Appeal so held dismissing an appeal by the defendant, the Chief Constable of Northumbria Police, from a decision of Mr Justice Astill on 30 July 1997 that Inspector Stuart Bell of the defendant's force was under a duty of care owed at common law and actionable in tort to go to the assistance of the plaintiff, Julie Christine Costello, who was being attacked by a prisoner.

In Kent v Griffiths and Others (1998) The Times, 23 December the Court of Appeal held that accepting a 999 call might create a duty to send an ambulance. Although the ambulance service owed no duty to the public at large to respond to a telephone call for help, once a 999 call in a serious emergency had been accepted. it was arguable that the ambulance service did have an obligation to provide the service for a named individual at a specified address.

It was therefore not appropriate to strike out as disclosing no reasonable cause of action a claim in negligence for failure of an ambulance to arrive promptly.

The Court of Appeal held, allowing the appeal of Mrs Tracey Kent, against the order of Mr Justice Moses on 10 September 1998, inter alia, striking out those parts of the statement of claim alleging that the third defendant, the London Ambulance Service, was in breach of a duty of care to the plaintiff in failing to provide an ambulance promptly to convey the plaintiff to hospital.

In Schofield v Chief Constable of West Yorkshire (1998) The Times, 15 May the Court of Appeal held that damages were recoverable by a WPC shocked by a firearm.

A policewoman who suffered post-traumatic shock after a colleague unlawfully discharged a pistol in her presence was more than a mere bystander and was entitled to recover damages against the chief constable for the resulting psychiatric injury.

The Court of Appeal held dismissing an appeal by the defendant, Peter Nobes, Chief Constable of West Yorkshire, from a decision of a deputy judge of the Queen's Bench on 28 February 1997 awarding damages of £151,000 to the plaintiff, WPC Lynne Schofield.

LINKS