A public role for the intentional torts

Introduction Recent years have seen wide-ranging debates on the nature of tort law. For some, tort law is firmly placed within private law: it is concerned with the rights individuals have against each other and with the legal implications of the violation of those rights. Others emphasise the extent to which broad social considerations enter into the determination of tort liability and the many ways in which tort law today serves a public role that is ill-explained by the private law model. Given the centrality of negligence in contemporary tort law, much of this debate focused on this tort, but recent litigation that culminated in the House of Lords’ decision in Ashley v. Chief Constable of Sussex Police and some academic commentary relating to it provide an opportunity for examining these questions in the context of the intentional torts. Though it will be some time before I get to discuss Ashley, it will be useful to describe its facts right away. The police had gathered information that James Ashley was involved in illegal activities including drug-dealing. They obtained a warrant to search his house and decided to raid it in the middle of the night. When a police unit entered the house, Ashley got up from his bed and walked towards the police officers with his hands pointing towards them as though holding a gun. One of the police officers, PC Sherwood, fired a single shot that hit Ashley in the neck. Ashley was severely wounded, and despite the police officers’ attempts at resuscitation and the prompt arrival of an ambulance, in less than an hour Ashley was pronounced dead. Ashley’s dependants sued the police for negligence and trespass to the person with regard to the actions that led to his death, as well as for misfeasance in public office with regard to certain events that took place after the shooting. As the police admitted negligence, they argued that there would be no point in a trial on the trespass claim. The trial court accepted the argument, but the Court of Appeal (Auld LJ dissenting) reversed and the House of Lords, against the dissenting opinions of Lords Carswell and Neuberger, upheld the Court of Appeal’s decision. © Cambridge University Press 2013.