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motorcycle accidentThe Police Federation has announced that it is calling for changes in relation to rules governing when police officers can, and cannot, pursue criminals who are fleeing via mopeds and motorcycles.

At present, it is not common practice for police officers to pursue such law-breaking criminals who are travelling by moped or motorcycle in the absence of them wearing a helmet.  This position is subject to guidance issued by the individual police forces themselves however; there is no generic explicit rule in place.  The reason behind this policy decision is to avoid worsening the situation.  The police do not want to cause injury to the person(s) on the moped/motorcycle during the pursuit.  They also do not want to cause injury to any innocent bystanders.  In the event that this did happen, the police force could then be held accountable for the harm that has ensued.  Alternatively, the individual officers may face prosecution for their own careless/dangerous driving.  The question that many of the authorities are faced with is how many innocent lives are we willing to risk to catch the perpetrator?; the answer being, at least at present, none.

The Police Federation for England and Wales stated that officers are deterred from pursuing motorcyclists due to fear of being investigated and charged for breaking the speed limit, jumping red lights or driving on the wrong side of the road.  It means that each time officers find themselves faced with situations where they are pursuing helmet-less motorcyclists, they have to consider how built up the area is, whether the speed is appropriate to the conditions, and also whether the speed is appropriate to the pedestrians.  Similarly, there is an argument that if the police do not intervene in such pursuits, then they are absolved of any liability for the harm arising out of consequential incidents.  Cases that have gone through the courts have suggested that where the emergency services do not intervene, then they cannot be held liable for the harm that has arisen.  The mere assumption of a position, coupled with a power to intervene, is not sufficient basis for a breach of public duty - which is necessary to establish liability.  There is no duty to be a good samaritan.  Accordingly, in the event that the police did intervene, then there could be potential for liability as they are deemed to have then assumed control of the situation; and, any harm as a result, is arguably down to them.  There requires to be a special relationship between the public body and the person affected that amounts to sufficient proximity - i.e. closeness - before there is liability for failure to act.  Assuming control of a situation can assist with establishing the relationship.

In 2017, David Videcette, who investigated organised crime within Scotland Yard, stated that he did not care how many motorcyclists fell off of their bikes and killed themselves as they were not wearing crash helmets.  He also said, "No police officer wants anyone to die but you should stop when the police indicate you do so.  If you continue on, after that point, whatever happens is down to you, not the police."  Unfortunately, taking such an approach may have detrimental effects for the authorities and police officers concerned.

Nonetheless, almost a year later, it has now been announced that the government is reviewing the law in order to better protect the police.  Proposals have now been submitted allowing for police officers to be subjected to a separate test of necessity and proportionality relative to the circumstances.  It will be assessed on a case-by-case basis.  The purpose of this is to allow for skilled police drivers to be protected, whilst ensuring that the officers who do not are held to account.  It has also been said that the new rules will make it clear that any motorcyclist who does not ride with a helmet will be held responsible for their own decision to drive dangerously.  However, it is not yet clear who will assume responsibility for any subsequent loss or harm.

Whilst the matter of Police Scotland remains a devolved power and is under the scope of the Scottish Parliament, it remains open as to whether or not we will follow our English counter-parts' reforms.  The law on both sides of the border regarding a public authority's liability is quite clear however - when no control has been assumed over a particular situation, an authority cannot be held liable.  Therefore, in order to satisfy the aims of the Police Federation, it may be that a new statutory regime is required in order to absolve the authority of any liability in these situations and reverse the current legal position.

Blog by Natalie Donald, Solicitor

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