In Sarjantson v Chief Constable of Humberside Police  EWCA Civ 1252 the Court of Appeal found that the police owed a duty under Article 2 to take reasonable steps to respond to a 999 call reporting that a group of youths were attacking someone, regardless of whether the victim was identified or identifiable to the police.
In the early hours of 9 September 2006 Mr Sarjantson was attacked by a group of young men armed with baseball bats. Humberside Police became involved following a 999 call which was described by the Court of Appeal at  as follows:
“At 01:11:43 on 9 September, a log was created from a 999 call made by Mr Ian Drake reporting that a number of named males were “smashing the windows at 17 Dame Kendal Grove [Grimsby] with BB bats…..they were after Liam Vick who they have already assaulted tonight”. Later in the same call (after 1.21 minutes) he said “You’d better get here quick love cos there’s gonna be someone here getting hurt, they’ve got, they’re smashing his windows….and they’re gonna fucking hammer him. They’ve already beat him up twice tonight.” Mr Drake continued in much the same vein for some time. After 5.50 minutes he said that one of the males had threatened to kill him. After 5.59 minutes he said “they’re beating me fucking nephew up down the street I think. They’re beating me nephew up in his front yard, our Stephen, ah fucking, I can’t go out they’ve got bricks and baseball bats and everything”. After 6.53 minutes, he said they had attacked his nephew in his front yard and that “they’re all coming back to start on me fucking sisters old man now. Oh they’ve hit him with a baseball bat…They’ve beat him up, he’s laid on the floor. They’ve beat him up with baseball bats love. He’s fighting them….They’ve beat him up with baseball bats….That’s Chris that’s me sister’s husband. He’s sixty year old and they’ve battered him with baseball bats”.
A second 999 call was made at 01:12 by a female reporting that her boyfriend (Liam Vick) had just been assaulted and that: “there’s a big gang of them down there….can you send the riot van, we’re running upstairs now”. 7 minutes 34 seconds into the conversation, referring to the Claimant by his first name, the caller said: “Fucking hell, stop it. Stop it. Fucking leave it. I’m sorry Chris, fucking hell you evil bastards”. After 8 minutes and 4 seconds she said that “Chris” had been battered with a bat; and 20 seconds later, that he needed an ambulance. A further 999 call was logged at 01:14 from a different person.
The Court of Appeal noted that the first time the police were notified about a violent attack on Mr Sarjantson (“Chris”) was at approximately 01.19, 7 minutes after the first 999 calls had been made.
Humberside Police conducted an internal investigation that concluded that (1) there had been an 11 minute delay before police officers were despatched; and (2) in total, 26 minutes elapsed before officers reached the scene. There was, said the police report, “an unnecessary delay in units getting to Mr Sarjantson within a reasonable time.” The target time for attending incidents was 15 minutes.
As a result of the attack, Mr Sarjantson sustained a serious head injury which caused him short and long-term memory loss. His attackers were convicted of grievous bodily harm and violent disorder. They were sentenced to substantial terms of imprisonment.
The Claimants (the victim of the attack and his partner) brought claims against Humberside Police under s.6 of the Human Right Act 1998 for breaches of Articles 2 and 3 ECHR – the right to life and the prohibition against torture, and inhuman or degrading treatment.
Following Osman v United Kingdom (2000) 29 EHRR 245, the police are under a “positive” or “operational” duty to take reasonable measures to avert a real and immediate risk to life of which they are, or reasonably ought to be, aware.
The Claimants’ argument was that the Humberside Police had breached its “positive” duty by failing, without justification, to take reasonable steps to protect them from physical violence at the hands of the young men.
As many police lawyers would probably have expected, the claim was struck out on the basis that it had no real prospect of success. The Circuit Judge in Grimsby County Court found that:
- The “Osman” duty could not have arisen until approximately 8 minutes after the first call when Mr Sarjantson was “identified” (as “Chris”) for the first time. By that time, it was too late for the police to take any steps to avert the attack;
- Even if Article 2 did not require the victim to be “identified”, there was insufficient time between the first call and the time of the assault for the police to attend. Even if there had been no delay in despatching the officers, they would have arrived after the assault.
The Claimant appealed to the Court of Appeal. The Master of the Rolls gave a short judgment dealing with the three issues raised by the parties.
(1) The victim does not need to be identified or identifiable for the Osman duty to apply
The Court noted at  that Article 2 may be engaged even if a death has not resulted from the alleged breach. The threat must be potentially lethal, but there is no need for death to ensue.
Prior to Sarjantson the general understanding of the Osman duty was was that the victim had to be an identified, or at least reasonably identifiable, individual before the duty was engaged. The Court of Appeal drew on European Court of Human Rights authorities, including Mastromatteo v Italy (App. No. 37703/97) and Onerylidiz v Turkey (App. No. 48939/99), for the proposition that the risk to life need not be a risk to the life of an identified or identifiable individual. The Court of Appeal found that the House of Lords’ choice of the words “an identified individual or individuals” in Osman was explained by the facts of the case. Because Osman concerned a risk to identified individuals (the Osman family), the House of Lords had simply never needed to consider the situation were a risk is posed to the lives of unidentified individuals. In any event, the Master of the Rolls said:
“ Take the facts of the present case. On the judge’s approach, the duty arose (subject to the restrictions and safeguards mentioned by the court in Osman) when the police knew or ought to have known that there was a real and imminent risk to the life of the first claimant; but no such duty arose when they knew or ought to have known that there was a real and immediate risk to the lives of unidentified individuals who were in the vicinity of the assailants. But they did know that there were individuals in the vicinity of the street where the youths were causing mayhem. They knew where to find them in order to protect them if it was reasonably necessary to do so.
 In my view, the distinction drawn by the judge is arbitrary and unprincipled and is unsupported by the Strasbourg jurisprudence. The essential question in a case such as this is whether the police knew or ought to have known that there was a real and immediate risk to the life of the victim of the violence and whether they did all that could reasonably be expected of them to prevent it from materialising. Where the police are informed about an incident of violent disorder, the Osman duty may arise regardless of whether they know or ought to know the names or identities of actual or potential victims of the criminal activity. It is sufficient that they know or ought to know that there are such victims.”
(2) Article 2 can even be breached where the police have insufficient time to intervene
The Master of the Rolls found at  that:
“The duty to provide protection arose at the time when the first emergency call was made. At that time, it was impossible to know whether and, if so, how quickly an assault would take place. There was therefore no reason at that time for the police to believe that immediate attendance was not required. Indeed, the tone and contents of the 999 calls suggested that there was every reason to think that there was an imminent likelihood that the young men would injure or kill one or more persons who were in the vicinity.”
The Court of Appeal relied on Osman for the proposition that potential breaches of Article 2 are tested by reference to what the police knew, or ought to have known, of the existence of a real risk to life “at the time”. Article 2 should not be determined with the benefit of hindsight. This limitation usually works in favour of public authorities because the magnitude or the urgency of the risk is not known at the relevant time. Equally, the limitation will benefit claimants where the magnitude and urgency of the risk is spelt out in advance (or in real time as it was during the 999 call in this case).
The Court of Appeal added at  that “the fact that a response would have made no difference is not relevant to liability”, relying on the Strasbourg authority of Kilic v Turkey (2000) 33 EHRR 58. The Court of Appeal explained at  that in the assessment of quantum (as opposed to liability for breach of Article 2) the fact that a timely response by the police would have made no difference may mean that there is no right to damages.
(3) The Article 2 duty can arise during the course of an attack, while the risk to life is materialising
Humberside Police sought to argue that Article 2 does not require the police to act once a risk has already materialised because Osman (at ) only describes a “requirement to take operational measures to prevent [the] risk from materialising“. In this case, the police argued, once the violent incident had started, it was too late to prevent the risk from materialising.
The Court of Appeal dismissed this argument. Lord Dyson MR accepted that where the police are told that a person has already been killed, it is too late to take measures to prevent the risk of death materialising. But that was different to the situation where a risk either has not yet materialised, or is in the process of materialising. At  he said:
“…if the police are told that there is a gang which is threatening and/or committing acts of violence and the incident is on-going, I can see no basis for saying that there is no duty to take operational measures (if these are reasonably required) to avert the risk of further violence. There is no support for such a proposition in the Strasbourg jurisprudence and in my view it is inconsistent with the idea which underpins the Osman duty. If the police are or ought to be aware that there is a real and immediate risk to a person’s life, they are under a duty to take reasonable measures to prevent the risk from materialising; and it makes no difference that the risk arises during an incident which has already commenced.”
Since this was an appeal from a decision to strike out the claim, the Claimants still have to prove their case at trial. The Court of Appeal was merely deciding whether an Osman duty was capable of arising as a matter of law. At trial, it will be for Humberside Police to establish that it was not reasonable in the circumstances to respond to the 999 calls more quickly. The Court of Appeal suggested the following as some of the relevant factors that will determine whether the police breached its Article 2 duty: “(i) the length of the delay, (ii) the reasons for the delay, and (iii) the gravity of the risk of which they were made aware by the 999 callers” and noted that “hindsight should be ignored.”
Unhelpfully for the police, the Court of Appeal also commented at  that: “[t]he facts strongly suggest that to have required the police to respond in accordance with the target of 15 minutes would not have imposed an unreasonable or disproportionate burden on them.”
A detailed commentary on Sarjantson and the broader subject of Article 2 versus negligence claims against the police for alleged operational failures by James Berry and Cecily White is appearing in Police Professional. It will be reproduced here in due course.
In the meantime, here is a summary of the key practical learning for police officers from Sarjantson:
- The police owe an Osman duty to take reasonable steps to protect individuals from a real and immediate risk to life where – as is a common occurrence – the police receive a credible report of an incident of violent disorder at a certain location posing a risk to the life any member of the public whether or not the potential victim is actually identified.
- The same duty applies whether the incident is reported to be anticipated or the incident is reported to be ongoing.
- The Osman duty is engaged (i.e. owed and capable of being breached) as soon as the police discover a sufficiently serious and immediate risk to life. Whether the police had time to respond is different matter, and will determine whether the duty was breached in the circumstances of a particular case.
For officers and lawyers alike, the following points are also important:
- The victim need not have died for a claim under Article 2 to be available – it is sufficient that potentially lethal force was being used.
- It is immaterial, for the purpose of establishing a breach of the Osman duty, whether the police response would have made any difference to the outcome. The reasonableness of the police response will be assessed according to whether, “at the time” that the police knew or ought to have known of the risk, the police failed to take reasonable measures available to them which might have been expected to avoid or minimise that risk.
- However, if a reasonable police response would not have made any difference to the outcome, a claimant will not be entitled to damages (even if s/he succeeds in establishing a breach of Article 2).
It is understood that Humberside Police is seeking permission to appeal this decision to the Supreme Court.