The general rule in Scots law is that you can sue a professional person if you can prove that that person has acted negligently. If, for instance, a surgeon removes the wrong kidney or a surveyor fails to spot dry rot in the house you intend to buy, your claim for damages would invariably be successful.
Suing the Police, however, is another matter. For reasons of public policy, it is not sufficient to prove that the Police officer in question acted negligently. You also have to prove that he acted maliciously. It is, of course, very difficult to prove malice and that is why so few claims against the Police are successful. The theory is that the Police should be permitted to concentrate on preventing the commission of crime, apprehending criminals and preserving evidence – as opposed to practising defensive policing designed to mitigate against the threat of litigation. It is for that reason that the additional ingredient of malice is necessary.
Here is an example. Recently, I acted for a mother whose son had been murdered. The murderer had put methadone in her son’s drink and this proved to be fatal. The Police were having difficulty proving the crime but the murderer then wrote a letter to my client, confessing his crime. This was handed in to the Police but the Sergeant dealing with the case destroyed the letter. This was certainly negligent but it could not be proved that he had done it maliciously and, accordingly, the claim for damages could not proceed.
There are, however, two exceptions to this general rule. If a Police vehicle is driven negligently and you were injured as a result, you are entitled to make a claim against the Police.
The other exception is a case in which it can be established that the Police assumed responsibility for an individual. I am currently pursuing an action for damages on this very ground. My client was being stalked by her ex-boyfriend. She advised the Police who promised to protect her. However, they failed to do so and she suffered injury as a result. If we can prove that the Police assumed responsibility for her, then the court action should be successful.
Over the years, many have argued that the Police should not be immune from general liability and that their position should be no different to that of doctors, lawyers and other professionals. That argument seems to be sound and rational but, as the law currently stands, the Police remain protected.