Police Law Blog European Decisions Statutory Materials

Police risk assessments, actions and threats to kill

In LXD and Ors v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin), the Administrative Court found that the police had not breached its obligations under Articles 2, 3 and 8 of the Human Rights Act 1998 in its response to a threat to kill LXD and her children. Dingemans J, as he then was, encouraged mediation where the recipient of such a threat sought to challenge the adequacy of the police’s risk assessment or the protective measures that the police have put in place. The judge also questioned the appropriateness of a claim for judicial review being brought in these circumstances, which are likely to involve disputes of fact. 


LXD and her three children (aged 6 and under) lived together in House A. LXD’s former partner and father to her children lived elsewhere. In December 2018, the father received a telephone call saying that if he didn’t pay EM’ (recently released from prison) money that he allegedly owed to him then “the baby mum’s house is going to be shot at”, i.e. LXD’s home. EM believed the father had “grassed on him” and, in January 2019, the father was warned that unless he contacted EM, “things are going to get messy” [37].

On 17 January 2019 at approximately 19:00 the father agreed to meet EM’s associates in a restaurant. He was told to contact EM and offer to pay up, and that “you have got until the end of the night to get it sorted or things are going to get messy” [40]. Around half an hour later, two men turned up at LXD’s door and said that unless the father paid the money by midnight, they would return and kill LXD and her three children. LXD called the father, who admitted owing money to EM and told her to get out of the house immediately [41].

LXD was told to call 999 if she heard anything unusual and that a “Treat As Urgent” (‘TAU’) marker would be placed on her house, requiring a police response within a certain period of time.

The suspects were arrested on 19 and 24 January. In that time, the Claimants had moved to another relative’s property. With no further reported incidents, and both suspects having been arrested and subject to bail conditions, the threat to LXD and her children was closed [67].

LXD claimed that she remained seriously concerned that she and her children were at risk of serious harm including death [85]. She sought to judicially review the police’s investigative decisions, and claim for convention breaches of right to life (Article 2), freedom from torture (Article 3), and right to family life (Article 8).


Dingemans J set out the relevant principles of law concisely, which included:

  • Article 2 may imply a positive obligation on the police to take preventative operational measures to protect an individual where the police know or ought to know that that individual’s life is at real and immediate risk [8]: see Osman v UK [1998] 29 EHRR 245, and discussed further here;
  • A real and immediate risk to life is a present and continuing one, which imposes a high threshold [9]: Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] AC 72;
  • It is for the courts to decide whether a Convention right has been breached, which requires assessing the proportionality of the steps taken [13]. Where the decisions of a public body are challenged on rationality grounds, the court must “give anxious scrutiny to any challenge, because the decisions involve fundamental human rights” [14].


The court dismissed the claims for breaches of Articles 2, 3 and 8, and the challenge of irrationality.

In respect of Article 2, the Court found that:

  • Although there had been threats to kill, the police had taken that threat seriously. They carried out thorough investigations into the threats made on 17 January, and LXD’s subsequent allegations in February of being followed and sought out by men in balaclavas [88]-[90]
  • The evidence did not indicate a real and immediate threat to life requiring the police to take “preventive operational measures” to protect the Claimants: the Claimants had openly used, if not returned to, their home; there was no intelligence to indicate continuing threats; and the suspects had been arrested and bailed thus reducing the risk of their threatening the Claimants’ lives [92]; and
  • The Claimants were safe living with relatives. Dingemans J stressed that, since the Claimants had alternative houses available to them, “the Defendant did not have an obligation to provide housing to the Claimants… The article 2 ECHR duty is a duty to protect life, but it is not a duty to rehouse if other accommodation is available” [93].

On Articles 3 and 8, the Court found that there was no breach of Article 3, as the evidence did not indicate any egregious and significant failings in the investigation, nor was there a breach of Article 8 by disclosing LXD’s involvement in the investigation; in this circumstance, there was no obligation to order anonymisation in the proceedings.

Further, Dingemans J dismissed the LXD’s separate public law irrationality challenge. He considered that the police took account of the relevant matters, rationally assessed whether there was a real and immediate threat to life and acted accordingly [99].

Lessons from LXD

The take-home lesson for the parties was that “this was a case where the parties should have undertaken a mediation. It would, at the least, have resolved what was in issue for the hearing. It would also have enabled the Defendant to address the real and continuing fears of the First Claimant…” [105].

Where a force faces expedited claims for ECHR breaches, it will be important for the parties to consider embarking on alternative dispute resolution before coming to court. ADR, such as mediation, may allow the parties to resolve pressing ‘threat-to-life’ issues sooner, to identify a working solution and provide each party the time properly to prepare for a trial where evidence is required to determine disputes of fact on important, indeed fundamental, issues.

Also, some challenges are not suitable for judicial review. In cases such as LXD’s, relating to a real and immediate risk to life and the police response thereto, Dingemans J said at [107]

“…very careful consideration should be given either to commencing the proceedings by Part 7 Claim Form or, where the proceedings have been commenced by way of judicial review claim form, to transferring the proceedings to the Queen’s Bench Division so that they be treated as if it was begun by way of Part 7 claim form, pursuant to CPR Part 54.20. This is because there are likely to be factual disputes raised by the evidence in such a case which might need to be resolved to determine whether the risk is a real and immediate risk to life…”

As to documenting threat to life assessments, here the police were able to demonstrate the threat assessments carried out at each stage. Although there were discrepancies in the police’s recording of the threat to the Claimants, this ultimately did not have an impact on the outcome of the hearing since the police had documented their investigations.

Merseyside Police were able to draw on significant evidence to show that the threat to LXD had been properly considered and responded-to, with further investigation where relevant. That included being able to demonstrate that officer had reviewed CCTV, obtained mobile telephones, reviewed ANPR movements, obtained search warrants, arrested the suspects for offences of threats to kill, carried out target-hardening, safely housed the Father, placed a TAU marker on the Claimant’s house and carried out repeated threat assessments for the Claimants in their various housing locations. This underlines the value of maintaining good records of investigative steps, no matter how fast-moving events may be.

Ian Skelt appeared for Merseyside Police in this case. James Berry was instructed at an earlier stage of the proceedings.