For victims of serious crime, the question of whether police can ever be sued over catastrophic investigative failures reaches a decisive moment in Parliament next week, and the answer could shape access to justice for years to come.
A cross-party pair of backbench MPs, Conservative Andrew Mitchell and Labour’s Jess Phillips, have tabled an amendment to a bill due to be debated on Tuesday. Their aim is to counteract a 2025 Court of Appeal judgment, applying to England and Wales, which held that police officers are immune from civil litigation both in their role as witnesses and for conduct or statements made while carrying out criminal investigations. A separate route to the same destination also exists: the ruling could be overturned at a Supreme Court appeal this month.
The stakes for ordinary people are set out plainly by Mitchell, who told BBC News that the “police misconduct immunity created by the Court of Appeal’s ruling” was extremely concerning, and that if “we fail to close this legal loophole there will be devastating consequences for victims”. His amendment states that, except while acting as witnesses, no immunity applies to actions by police officers in preparation for criminal proceedings, including cases involving specified grave failings. Those failings include fabricated evidence, dishonesty, negligence, and reckless disclosure of confidential information relating to victims.
The human cost behind the legal argument is illustrated by the case that produced the ruling. A victim of serious domestic violence fled her abuser for a secret refuge, but Sussex Police included her new address in a file sent to the Crown Prosecution Service without sufficiently flagging its confidentiality. A CPS lawyer then disclosed her address in court during a bail hearing, revealing it to her abuser, and she had to flee again. She said the disclosure meant the place she was supposed to be safe “no longer felt safe at all”, and that she was still living with the impact and the loss of security. She brought claims against both the police and the CPS, arguing their failure placed her in fear for her life, forced her from her home, and caused loss of earnings and a psychiatric injury. Her claims were initially rejected, reinstated on appeal, then struck out again.
At the legal core of the dispute is who can be held responsible for such failures, and who enjoys immunity. Witnesses and lawyers already have what is known as “core immunity” for things said in court, so they can speak freely there. The Court of Appeal went further, holding that immunity extends to an extremely broad range of police activity, including conduct or statements forming part of an investigation leading to a potential prosecution. As a result, most types of legal claim are blocked, including cases about serious human rights abuses and data breaches, with no exemptions for unjustifiable conduct. Officers can still face prosecution in criminal courts and accountability through police misconduct processes.
Campaigners warn of what this means in practice for citizens who rely on the police to protect them. Kate Ellis, from the Centre for Women’s Justice, told the BBC that forces may now argue they cannot be “held legally responsible at all for serious mistakes made in a criminal investigation”, and that it could create an “accountability gap” in which police forces who fail to investigate rapists, stalkers or domestic abusers “face no consequences for their failings”.
By contrast, Mitchell points to a case where the failure destroyed a life outright. Ali Kololo, he said, had his life “ruined by a wrongful conviction secured, in large part, by the Metropolitan Police”. Mr Kololo, a Kenyan woodcutter, spent 11 years in jail after being wrongfully convicted of assisting a gang that attacked two British tourists in Kenya in 2011, one of whom was murdered. He was sentenced to death after a trial in Kenya at which a senior Met officer, called as a prosecution witness, omitted key evidence. Represented by the human rights group Reprieve, he is suing the Met, but the force has said it will rely on core immunity in defending the claim, a position likely to be strengthened by the Court of Appeal ruling. A Met spokesperson said the force would not comment on the ongoing civil claim but that its thoughts were with Mr Kololo, the victims of the crime and their families.
Government, as the body responsible for policing policy, has pointed to a wider review. A government spokesperson said the home secretary and lord chancellor commissioned a review into police accountability following long-standing concerns from policing leaders, officers, victims and their families that the current system is not fit for purpose, and that any changes to how the police are treated should be considered alongside the wider findings of that review. Sussex Police and the National Police Chiefs Council both declined to comment at this time. Further detail on the ruling and the parliamentary response can be found at https://www.bbc.co.uk/news/articles/c6y43mmke7ygo.
For the public, the debate on Tuesday will help determine whether people harmed by grave police failures retain any route to hold forces to account through the courts. If the Supreme Court declines to intervene, Parliament becomes the last door left open.