- The majority of the Supreme Court have once again concluded that the police owe no duty of care in negligence to members of the public who suffer harm at the hands of criminals.
- However, the case of Michael v Chief Constable of South Wales [2015] UKSC 2 has confirmed that, although there may be no claim in negligence, the police may still be liable for a breach of Article 2 of the European Convention on Human Rights (ECHR).
- Such claims can be brought in the domestic courts under the Human Rights Act (HRA) 1998.
- The police may be held liable to victims (or their families) for clear failures to prevent a potentially fatal incident of domestic violence of which they have received specific warning.
The murder of Joanna Michael
At 02.29am on 5th August 2009 Ms Michael dialled 999 to report that her ex-partner had just turned up at her house, found her with another man and had hit her. Although she lived in the area of South Wales Police (SWP), the call was routed to the Gwent Police call centre. Ms Michael said her ex-partner had taken her car to drive the other man home but that he was going to be back “any minute literally”.
The transcript of the call recorded Ms Michael as saying, “ … he just said “I’m going to drop him home and (inaudible) [fucking kill you]”.” The call handler told Ms Michael that her call would be transferred to SWP who would call her back. Having been graded “G1” (requiring immediate response) by Gwent Police, the call was downgraded to “G2” (response within 60 minutes) by SWP based on an abbreviated account of what Ms Michael had said, which made no mention of any threat to kill. At 02.43 Ms Michael again called 999 and was heard to scream before the line went dead. SWP were immediately informed and officers arrived at her address at 02.51, where they found her dead, having been stabbed multiple times.
The legal claim
Ms Michael’s parents and two young children brought claims for damages both in negligence and under the HRA for breach of a public authority’s duty under Article 2 ECHR to protect Ms Michael’s right to life. The Chief Constable applied for both claims to be struck out. The application was refused at first instance. The Court of Appeal then reversed the decision in relation to the negligence claim, holding that there should be summary judgment in favour of the police. However they upheld the decision to allow the Article 2 claim to proceed to trial.
Negligence
The majority (5:2) of the Supreme Court reached the same conclusions as the Court of Appeal. The judgment of the majority focused on the reasons why the police should not be held liable in negligence.
Three arguments had been made by the claimants.
- First, if the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, the police owe that person a duty to take reasonable care for their safety.
- Alternatively, if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his/her life or physical safety, B owes A a duty to take such steps as are reasonable to protect A (the so-called “liability principle”).
- Given what was said during the first 999 call, the police assumed responsibility to take reasonable care for Ms Michael’s safety.
Lord Toulson rejected all three arguments, concluding that:
- The police owe a general public law duty to preserve the peace and prevent crime. However, this duty does not carry with it an additional private law duty to individual members of the public at risk of violent crime. He therefore upheld the ‘core principle’ established by the House of Lords in Hill v Chief Constable of West Yorkshire [1989] AC 53, that the police will not be held liable for failures in their operations in the investigation and suppression of crime (in that case, to the victims of the Yorkshire Ripper);
- This does not mean the police can never be found to be negligent, e.g. for carelessly creating a danger or causing damage. However, there is generally no liability in negligence for omissions, i.e. failures to take action, where injury or damage has been caused by a third party rather than the defendant him/herself. The police were, in this respect, no different from any other defendant;
- Although there are recognised exceptions to this general rule, none of them applied in the present case. It is possible for a defendant who exercises some control over the third party to be liable for that person’s actions; but Ms Michael’s murderer was not under the control of the police. Alternatively a defendant may assume responsibility for a person’s welfare by making a representation on which the person relies; but no such representation had been made by the call handler.
Lord Toulson recognised that it would be open to the court to create a new exception if it was logically or socially justifiable to do so, but could find no such justification. It was not possible to define the proposed duty with any certainty because it was not clear what sorts of threats would give rise to it, or to whom it would be owed.
There was also no evidence to support the claimants’ argument that the recognition of a duty would improve the performance of the police in dealing with cases involving domestic violence. As Lord Toulson put it, “The only consequence of which one can be sure is that the imposition of liability on the police to compensate victims of violence on the basis that the police should have prevented it would have potentially significant financial implications”.
Article 2
A notable omission from Lord Toulson’s lengthy overview of the case law was Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252, where several 999 calls had been made to the police reporting that a group of men were violently attacking someone. The victim brought claims for breaches of Article 2 and 3 ECHR on the basis that there had been an unreasonable delay in the police arriving at the scene. The Court of Appeal refused to allow them to be struck out because it was at least arguable that the police had breached their duty under Article 2 ECHR to take reasonable steps to protect Mr Sarjantson.
This “positive” or “operational” duty arises where it is established that the police knew or ought to have known of a real and immediate risk to life to an identifiable (or readily traceable) individual. It followed the well-known cases where liability under Article 2 was established in Osman v United Kingdom (2000) 29 EHRR 245, Smith v Chief Constable of Sussex Police and Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50.
Despite the significant overlap between the Article 2 operational duty and the arguments made in relation to negligence, Lord Toulson did not feel the need to consider it in any detail. This is likely to be because the Supreme Court unanimously accepted that the claimants had an arguable Article 2 claim which would be allowed to proceed to trial. Although the majority refused to recognise the parallel claim in negligence, this does not prevent the claimants from pursuing their human rights claim.
The way is now clear for the claimants to bring their case to trial. If they are able to establish that, in all the circumstances, SWP knew – or ought to have known – of a real and immediate risk to Ms Michael, and failed to take reasonable steps open to them to avoid or minimise that risk, they may be entitled to damages under the HRA 1998, and/or a declaration that their human rights have been breached.
Practical implications
Although the Supreme Court have confirmed that it is not possible to bring claims for operational failures in negligence:
1. Such claims can still be brought under the HRA 1998 where there is arguably a real and immediate risk to life;
2. Cases involving reports of a threat to kill or cause serious injury are likely to trigger the Article 2 obligation. Where there is a credible case for alleging the obligation has been breached, the Article 2 claim will be allowed to proceed to trial.
The two types of claim are said to serve different purposes: negligence claims are designed to compensate victims of loss or injury, whereas human rights claims are intended to vindicate human rights.
In claims brought by the relatives of the deceased, the damages awarded under the HRA may be more modest than would be recovered in a negligence claim. Nevertheless, where the police are, or ought to be aware of a sufficiently serious threat to life and fail to take reasonable steps to avert it, the threat of litigation remains, with its associated financial and reputational implications.
The claimants in Michael have not yet succeeded in obtaining damages; on the facts of that case there may still be arguments as to whether there was in fact any breach of the Chief Constable’s duty under Article 2.
Whatever the outcome of the case, this is – tragically – another example of police intervention being insufficient, or not prompt enough, to prevent the murder of a woman by her partner or ex-partner. It highlights once again the priority that must be afforded to protecting women who warn the police that they are, or may be, at risk of domestic violence.
This article was first published in Police Professional.