Focus on Rights

Affirming a state duty of care
At a point when the abuse of power by state officials in Sri Lanka has become an acknowledged problem and debates continue to take place regarding the appropriate responsibility that may be placed on the State in this respect, it may be interesting to look at recent developments elsewhere. While we have had definite thinking of Sri Lanka's Supreme Court affirming state responsibility in the specific context of the fundamental rights jurisdiction under Sri Lanka's Constitution, other judicial tribunals have looked at the issue in other contents that are equally relevant.

In particular, a recent judgement of the Judicial Committee of the Privy Council which, on 23rd February 2004, laid down standards relating to the duty of care of state officers for which the State itself may be liable in damages. This may come as an unpleasant surprise to many of us who are comfortable with invoking far more lax responses on the part of the State.

Deciding an appeal from the British Virgin Islands, the Judicial Committee had to examine a case where a police officer, (still on probation), was on duty at his post when he abandoned his post and taking with him, a service revolver from the strong box of the police station, embarked on a personal vendetta which caused serious injuries to two persons.

The police officer in question, police constable Kelvin Laurent was prosecuted and pleaded guilty to charges of unlawfully and maliciously wounding the two persons whom he injured and having a firearm with intent to do grievous bodily harm. He was sentenced to five years' imprisonment and dismissed from the police force.

However, despite this sentencing, Craig Hartwell, a British resident visiting the island who was the second individual seriously injured due purely to his being in the line of fire, brought civil proceedings in a claim for damages against Laurent and the Attorney General as the representative of the Government of the British Virgin Islands.

This claim was based on the argument that the Government was responsible by allowing the police constable who was an employee of the Government, access to dangerous weapons which thereby caused injuries to a member of the public. Though a lower court dismissed the claim, the Court of Appeal upheld the argument advanced on behalf of Mr Hartwell, giving judgment in his favour for damages to be assessed. The Attorney General appealed therefrom to the Judicial Committee.

In deciding in favour of Mr Hartwell (see Attorney General v. Hartwell (British Virgin Islands) [2004] UKPC 12 (23 February 2004), the Judicial Committee of the Privy Council affirmed particular principles that are of interest in our current debates. In the first instance, it was important that this is not a case where a police officer uses a service revolver incompetently or ill-advisedly in furtherance of police duties. Here, the police officer used a service revolver, to which he had access for police purposes, in pursuit of his own misguided personal aims. Could nonetheless, the Government be liable in law for the consequences of his wrongful acts based on the Government's vicarious liability as employer for acts done by a police officer?

In deciding this question, the Judicial Committee took the view that the police officer in question had put aside his role as a police constable and embarked elsewhere on a personal vendetta or "a frolic of his own" for which the Government could not be liable.

However, the more difficult question was whether, as wholly distinct from any question of vicarious liability for its employee's wrongful acts, the Government was itself at fault in that the police authorities knew or ought to have known that Laurent was not a fit and proper person to be entrusted with a gun. Had they exercised reasonable care they would not have permitted him to have access to a police firearm. Should they be held responsible in this regard?

The Judicial Committee answered this question in the affirmative. In giving his reasons on behalf of the Committee, Lord Nicholls of Birkenhead unequivocally took the view that when entrusting a police officer with a gun, the police authorities owe to the public at large, a duty to take reasonable care to see the officer is a suitable person to be entrusted with such a dangerous weapon. The police constable who had used the gun assigned to him for a personal vendetta had an unstable personal history. The police authorities ought to have foreseen there was a sensible risk that he might lose control of himself. In all, the Committee held that the police authorities failed to exercise the degree of care the situation demanded and advised that the appeal be dismissed.

The comparative principles that could be drawn from this judgment are striking in the Sri Lankan context. We have had, on the one hand, the Supreme Court ruling in fundamental rights applications that if a citizen is physically tortured, (which argument, for that matter, may be extended to psychological torture as well), in a custodial place, the State is liable even if the victim is unable to identify the particular police officers responsible. These principles were affirmed in recent judgements of the Court which were discussed in last week's column. Again the officer in command of that custodial place could be responsible on the basis of the theory of command responsibility.

The reasoning of the Judicial Committee of the Privy Council, in a different legal context, affirms principles that go further than what many conventionalists may like. However, it also serves as a good example of the manner in which law and order may be reinforced and strengthened.

What of, for example, the far clearer liability of the State in the continued employment of a police officer or an OIC found to be culpable in respect of egregious torture? Unfortunately, as of now, judgments both domestic and international, in respect of state liability in relation to the employment of police officers clearly found to be unsuitable for their positions, remain relevant only in the abstract.

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