In 1990s Britain, racist street harassment and violence was widespread. But it took the murder of the 18-year-old Black teenager Stephen Lawrence in 1993 to highlight both the prevalence of violence and the failures of the police to respond. He was set upon by a group of white young men while he waited, with his friend Duwayne Brooks, for a bus in southeast London. When the police arrived, they failed to give Lawrence first aid and instead of treating Brooks as a victim and a crucial witness, he received racist treatment.
Later, despite having the suspected killers under surveillance, the police watched them dispose of bin bags of evidence. Two weeks after the murder, Nelson Mandela met with the Lawrence family and compared their loss to apartheid South Africa, 'where black lives are cheap'. In 1998, the state-commissioned Macpherson report found 'derelictions of duty and failures' in the police handling of the case, describing the Metropolitan police as institutionally racist.
The trauma that Duwayne Brooks experienced was exacerbated by the police racism and by their failure to bring the killers of his close friend to justice. Because the police failed to take an adequate witness statement, Brooks was unable to contribute to bringing the accused to justice. Brooks sought to sue the police under the tort of negligence. This article explores the subsequent case of Brooks v Commissioner of Police for the Metropolis and Others [2005] and whether the state’s recent reforms to its justice policy framework would have led to a better outcome for Brooks today.
Brooks v Commissioner
To win his case, Brooks would have to jump several legal hurdles. Firstly, he had to establish that the police had a duty of care to him, such as between a doctor and a patient. Then, that the harm done to him was reasonably foreseeable (Donoghue v Stephenson) and also, proximate: that is, there must be a fairly close relationship between claimant and respondent (Caparo v Dickman). Finally, he had to show that ‘but for' the police’s breach, he would not have been experienced harm (Barnett v Kensington).
Those legal hurdles had evolved over hundreds of years. Traditionally, the state (formally, the crown) had immunity from suit for negligence. Even now, there is no duty for the fire service to respond to a call about a fire, though they have a duty not to make the fire worse. In 1866, the case of Mersey Docks and Harbour Board Trustees v Gibbs found that public servants could be found to be negligent in certain circumstances, though the 1941 East Suffolk case established that no duty would be held by a public body unless it left the claimant worse off than how they were found.
For Brooks, the key precedent was Hill v Chief Constable of West Yorkshire Police [1989]. That judgement said that the police would be ‘unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime.’ In Brooks, despite the racial profiling and harm he had suffered, Lord Steyn took the view that the good functioning of the police would be undermined by imposing a liability.
The court could have taken a different view. As Lord Dyson said in Jones v Kaney [2011]: ‘The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional.’ This made the judgement in Brooks all the more disappointing. The police had taken on responsibility when they interviewed a vulnerable young man. Instead, he was subject to racial profiling and discrimination.
Judges are still reluctant to accept that protecting the police from being sued makes negligence more likely. For example, in Michael v Chief Constable of South Wales Police [2015] a woman told the police 999 operator that she had been assaulted, was in grave danger and had received a death threat from the eventual killer. The operator mishandled the call and by the time the police arrived, she had been murdered. Her death would not have occurred ‘but for’ the police's failure to respond in time. But her relatives sued the police and lost.
The 1998 Macpherson report was followed by the 2023 Casey review which found that the Met was still institutionally racist. Given the courts did find racial discrimination in Brooks but favoured the precedent in Hill over the findings of Macpherson, there may be concern about how the courts are upholding these institutional attitudes by limiting the scope for accountability.
Justice policy today
In recent years, the state has presented a new policy framework for the treatment of victims of crime. The two major steps made have been the placing of a Victim’s Code on a statutory footing in the Victims and Prisoners Act 2024; and the introduction of a victim’s Right to Review from December 2020, which the government have pledged to put on a statutory footing.
But a right to review would not have assisted Duwayne Brooks. The right applies to cases not referred by the police to the Crown Prosecution Service. However, the police misconduct towards Brooks was referred to the CPS but they chose not to charge the officers. This partial reform does not go far enough to provide accountability.
The Victims and Prisoners Bill was also criticised when scrutinised by the House of Common’s Justice Select Committee: it ‘does not appear to do any more […] than is already provided for in existing legislation.’ They found that it did little to increase compliance of public bodies with standards set out in the Code for the treatment of victims, or to drive the ‘necessary cultural change’ required, leaving ‘the onus on the victim to claim rights they are often unaware of.’
The then Victim’s Commissioner Dame Vera Baird stated ‘there is little […] that seem set to galvanise these agencies to deliver for victims’ and called for a formal role for the victim as pioneered in Australia. This might have assisted Brooks and allowed him to advocate to the police in bringing the killers to justice. However, Baird and the Select Committee’s concerns have not been answered. The state is sleepwalking into a situation where Black victims of crime may face a similar ‘litany of failures’ that Duwayne Brooks did some 30 years ago. The mechanisms in place today wouldn’t be robust enough to prevent or limit racist actions taken by actors dealing with his case in the police force or the criminal justice system. Sadly, it may take more discrimination, or worse, more deaths, before the legal system allows victims to hold the police to account.
Written by Thomas Dixon Humphreys
All blogposts are published with the permission of the author. The views expressed are solely the author’s own and do not necessarily represent the views of StopWatch UK.