Judgments - Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) V Van Colle

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55.  These statements would support a principle broader than the liability principle I have formulated. But the law attaches particular importance to the protection of life and physical safety, and I do not think it necessary for present purposes to analyse in detail the cases on property damage. The Chief Constable relied on Alexandrou v Oxford [1993] 4 All ER 328, which related to a burglary which the police allegedly failed to prevent. Kent v Griffiths [2001] QB 36, by contrast, concerned a failure by the ambulance service to act promptly, with the result that serious injury was suffered: the Court of Appeal held that Alexandrou should be confined to its own facts (paras 21, 26) and upheld the trial judge’s decision that a duty of care had been owed in the case before it. The Court of Appeal’s judgment in Capital & Counties Plc v Hampshire County Council [1997] QB 1004 was very largely concerned with the prevention of damage to property. I would wish to reserve my opinion on its correctness in the light of later authority.

56.  There are two authorities which I should consider in a little more detail. The first is Osman and another v Ferguson and another [1993] 4 All ER 344, the domestic predecessor of the better known Strasbourg decision in Osman v United Kingdom (1998) 29 EHRR 245. The case concerned a schoolmaster named Paget-Lewis who developed an infatuation for a teenage pupil, Ahmet Osman, and culminated in the killing of Ahmet’s father, Ali, the wounding of Ahmet, the wounding of a deputy headmaster and the killing of the deputy headmaster’s son. The domestic proceedings were brought by Ali Osman’s widow and Ahmet against, with another, the Commissioner of Metropolitan Police. The Commissioner applied, unsuccessfully before the judge but successfully before the Court of Appeal, to strike out the claim as disclosing no cause of action because the Commissioner and his officers owed Ali and Ahmet no duty of care. For purposes of the application the pleaded facts were to be assumed to be true. The pleaded facts (taken from the somewhat fuller summary in the reported decision of the Strasbourg court) showed that Paget-Lewis had spread offensive rumours about an alleged sexual relationship between Ahmet and another boy (LG); had followed LG home and stalked him; had written obscene graffiti about Ahmet and LG; had stolen the files relating to the two boys from the school office; had changed his name to Osman (not the first time he had taken the name of a pupil); had aroused fears that he might abscond with Ahmet; had thrown a brick through the Osmans’ window; had twice burst the tyres of Ali Osman’s car; had poured engine oil and paraffin outside the Osmans’ family home; had smashed the windscreen of Ali’s car; had jammed the lock of the Osmans’ front door with superglue; had smeared dog excrement on the Osmans’ doorstep and car; had more than once stolen the bulb from the Osmans’ outside porch; had broken all the windows of the Osmans’ car; had spoken of doing something criminally insane; had driven his car into a van in which LG was a passenger; had suggested that in a few months he would be “doing life"; had told LG that he would “get him” whether it took “30 days or 30 years"; and had spoken of “a sort of Hungerford". All this was reported to the police, who assured the Inner London Education Authority that the Osman family would be protected and assured Ahmet’s headmaster that the police would undertake the necessary measures to protect the deputy headmaster and the plaintiffs. But the police took no effective action beyond taking steps to lay an information for careless driving. A majority of the Court of Appeal (McCowan and Simon Brown LJ) were of opinion that on these facts a sufficient relationship of proximity existed between the plaintiffs and the police (pp 350, 354). Beldam LJ preferred to express no opinion on the point (p 354). But all three members of the court were of opinion that the considerations of public policy propounded by Lord Keith in Hill precluded any duty of care. So the case was struck out. I find this an unsatisfactory result. It does not seem to have been suggested that serious physical injury was not foreseeable. A majority of the Court of Appeal found the necessary proximity. I find it strange that public policy should be thought to preclude redress in such circumstances since in my opinion, accepted by Lord Browne-Wilkinson (with whom the other members of the House agreed) in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 749, the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and very potent considerations are required to override that policy. I can recognise no potent policy considerations which should have denied relief to Ahmet and his mother, a view which is not affected by the failure of the Strasbourg court to find a violation of article 2.

57.  The second authority I should consider did not involve the police but did involve injury to the person: OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897. The judgment was given at first instance on an application to strike out the claim as disclosing no reasonable cause of action, so the facts pleaded by the plaintiff were assumed to be true. The facts were that a party of eight children with a teacher and two instructors set off on a canoeing trip in Lyme Bay at about 10.00 am. They were due back at noon but did not return. They ran into severe difficulties at sea. Two members of the party became separated from the rest. The canoes capsized and sank. Some tried to swim ashore. Two more members became separated. They were all eventually rescued between 5.30 and 6.40 pm, but four of the children died and the other members of the party suffered severe hypothermia and shock. Proceedings were brought against the organisers of the trip, who sought redress against the Secretary of State as the minister responsible for HM Coastguard. The facts (pleaded with obvious reference to the decision in Capital & Counties) were that by 2.42 pm or shortly after the coastguard knew or ought to have realised that the party was missing and overdue and that at least one of the party might be in the sea and parted from his or her canoe. Soon after 3.0 pm the coastguard intervened, telling the manager of the organisers not to worry and saying that the coastguard would conduct a search limited to a land search. From then, the coastguard was in effective control of the search and rescue operation. They made the position of the party worse by taking no steps to launch an appropriate search and rescue operation until about 3.48 pm. They made the position of the party worse by mis-directing a lifeboat to search inshore rather than offshore or in the area of a certain point. They made the position of the party worse by directing a Royal Navy helicopter from an appropriate search to an inappropriate sweep up and down the coastline. They made the position of the party worse by failing to ask the Royal Navy to scramble a second helicopter until 5.0 pm although they were asked at 4.26 pm whether a further aircraft was required. The claim was struck out on the basis that no duty of care was owed and the claim was bound to fail. My Lords, I feel bound to say that a law of delict which denies a remedy on facts such as these, in the absence of any statutory inhibition, fails to perform the basic function for which such a law exists.

58.  Considerable argument was devoted to exploration of the relationship between rights arising under the Convention (in particular, the article 2 right relied on in Van Colle) and rights and duties arising at common law. Should these two regimes remain entirely separate, or should the common law be developed to absorb Convention rights? I do not think that there is a simple, universally applicable answer. It seems to me clear, on the one hand, that the existence of a Convention right cannot call for instant manufacture of a corresponding common law right where none exists: see Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406. On the other hand, one would ordinarily be surprised if conduct which violated a fundamental right or freedom of the individual did not find a reflection in a body of law ordinarily as sensitive to human needs as the common law, and it is demonstrable that the common law in some areas has evolved in a direction signalled by the Convention: see the judgment of the Court of Appeal in D v East Berkshire Community NHS Trust, [2003] EWCA Civ 1151, [2004] QB 558, paras 55-88. There are likely to be persisting differences between the two regimes, in relation (for example) to limitation periods and, probably, compensation. But I agree with Pill LJ in the present case (para 53) that “there is a strong case for developing the common law action for negligence in the light of Convention rights” and also with Rimer LJ (para 45) that “where a common law duty covers the same ground as a Convention right, it should, so far as practicable, develop in harmony with it". Since there is no reliance on the Convention in this case I do not think it profitable to consider whether, had he chosen to do so in time, Mr Smith could have established a breach of article 2 on the facts of this case.

59.  My noble and learned friends Lord Hope, Lord Carswell and Lord Brown, in paras 77, 109 and 129 of their respective opinions, criticise the liability principle I have formulated. Who, they ask, is to judge whether the evidence is apparently credible? Who is to judge whether the threat is imminent? The answer is that given in any case where it is said that a professional should have been alerted to and should have responded to a risk. In the first instance the judgment is made by the professional in question. If that judgment is challenged, a judge must decide. In the present case it may be said that the police dismissed the threats to Mr Smith as incredible. If that was a reasonable judgment, no duty to respond arose. But it must be doubted whether that was their judgment, given that they embarked on the time-consuming (and on the facts unnecessary) exercise of tracing the calls.

60.  On the assumed facts as set out above, I am satisfied that the liability principle is satisfied and that the Brighton Police owed Mr Smith a duty of care. He, as a member of the public, furnished them with apparently credible evidence that Jeffrey, whom he identified and whose whereabouts were known, presented a specific and imminent threat to his life or safety. It has not been argued that death or injury was not a foreseeable result of a failure to assess the threat and, as appropriate, act. The relationship between Mr Smith and the police was one of close proximity, based on direct, face-to-face meetings. If, as some of the cases suggest, it is necessary to find a special relationship for a duty of care to arise, this relationship was in my view special as a result of Mr Smith’s approach to the police and their response to it. If, as other cases suggest, it is necessary for responsibility to be assumed for a duty of care to arise, then in my opinion the police assumed responsibility by visiting Mr Smith, initiating what was regarded by them as an investigation, assuring him that the investigation was progressing well and inviting him to call 999 if he was concerned for his safety. Public policy points strongly towards imposition of a duty of care: Mr Smith approached a professional force having a special skill in the assessment of criminal risk and the investigation of crime, a professional force whose main public function is to maintain the Queen’s peace, prevent crime and apprehend criminals. He was entitled to look to the police for protection and they, in my opinion, owed him a duty to take reasonable steps to assess the threat to him and, if appropriate, take reasonable steps to prevent it.

61.  I would dismiss the appeal and remit the case to the Brighton County Court for the hearing to continue.

LORD HOPE OF CRAIGHEAD

My Lords,

62.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. His account of the background to these two cases, which I accept with gratitude, enables me to go directly to the issues of law that they raise. There is a close relationship between them because they both concern failures by the police to respond to requests for help by members of the public in time to prevent threatened attacks on them by third parties, with tragic consequences. They led in one case to death and in the other to serious physical injury.

63.  Normally the law does not attach responsibility to any individual for harm caused to another by the tortious acts of a third party. The police, in common with members of the other emergency services, provide a service which is available on demand to members of the public. People who are being intimidated by threats of death or serious injury are not permitted to take the law into their own hands. They are encouraged to report these threats to the police. If they do, this creates a relationship between them and the police which might suggest that the police should accept civil liability if they do not respond to these reports. It is only natural to blame the police if, despite these reports, the intimidator makes good his attack. But the fact that the police may be blamed for what took place is not in itself sufficient to make them liable to the injured party or his close relatives in damages. For reasons of public policy the law sets a threshold which must be surmounted before civil liability will attach to the police for the harmful acts of third parties. The issue in each case is whether, on the proved or assumed facts, this threshold has been crossed.

64.  The grounds of action which raise this question in each case are different. In Van Colle the claim is brought under sections 6 and 7 of the Human Rights Act 1998. The claimants maintain that the defendant, the Chief Constable of the Hertfordshire Police, acted unlawfully in violation of article 2 of the European Convention on Human Rights by failing to discharge a positive obligation of the police to protect the life of their son Giles, who was murdered by his former employee Daniel Brougham on 22 November 2000. In Smith the claim is brought in negligence at common law. Mr Smith maintains that officers of Sussex Police owed him a duty of care to prevent his former partner Gareth Jeffrey from carrying out his threats to kill him, and that it was because they were in breach of that duty that Jeffrey was able to attack him with a claw hammer on 10 March 2000 causing him serious and permanent injury. Despite the inter-relationship between the two cases, the fact that the grounds of action are different makes it necessary to examine them separately.

Van Colle

65.  The legal framework in this case is quite straightforward. The defendant, the Chief Constable, is a public authority within the meaning of section 6 of the Human Rights Act 1998. It is unlawful for a public authority to act in a way that is incompatible with any of the Convention rights. Among those rights is the right to life which is guaranteed by article 2(1) of the Convention. The first sentence of that article states: “Everyone’s right to life shall be protected by law.” The claimants say that the defendant’s failure to protect Giles from being murdered by Brougham was a violation of that right. If they can make good this claim the defendant will be liable to them under section 7 of the 1998 Act and the judge will have power under section 8 of that Act to award them damages.

66.  The extent of the positive obligation has been defined by the Strasbourg court in Osman v United Kingdom (1998) 29 EHRR 245, para 116. The relevant part of that paragraph has been quoted by Lord Bingham in para 29 of his opinion. It declares that the court must be satisfied that the authorities knew or ought to have known “at the time” of the existence of “a real and immediate risk to the life” of an identified individual from the criminal acts of a third party. If they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk, the positive obligation will have been violated. In In re Officer L [2007] 1 WLR 2135, para 20, Lord Carswell said that the real and immediate test is one that is not readily satisfied, the threshold being high. I read his words as amounting to no more than a comment on the nature of the test which the Strasbourg court has laid down, not as a qualification or a gloss upon it. We are fortunate that, in the case of this vitally important Convention right, the Strasbourg court has expressed itself in such clear terms. It has provided us with an objective test which requires no further explanation. The question in each case will be whether on the facts it has been satisfied.

67.  The Osman test tells us that the facts must be examined objectively at the time of the existence of the threat, and that the positive obligation is breached only if the authorities knew or ought to have known at that time that it was a threat to life which was both real and immediate. In this case everything depends on what DC Ridley knew or ought to have known as the events unfolded before him. As Lord Bingham’s review of the facts that were established at the trial shows, this was a relatively minor case of theft. It was the kind of case that might well not have attracted a custodial sentence in the event of a conviction - a factor highly relevant to the issue of bail in the event of an arrest. There was nothing in Brougham’s record that showed that he had a propensity to commit acts of violence. The telephone call on 13 October 2000 was regarded by Giles as a death threat and he reported it to the police. But there was no indication, taking the other circumstances known at that time into account, that the threat to life was seriously meant or, more importantly, was imminent. The telephone call on 9 November 2000 was clearly intended to intimidate. But there was nothing in the words used, which Giles reported to DC Ridley about 10 days later, to indicate that Brougham was seriously intent on physical violence or that a violent act amounting to a threat to life was imminent at that stage. There was no further indication of what he may have had in mind until the tragic events of 22 November 2000 when Giles was murdered.

68.  The murder was the action of a seriously disturbed and unpredictable individual. In my opinion it cannot reasonably be said that DC Ridley should have anticipated, from the information available to him at the time, that Brougham constituted a risk to Giles’s life that was both real and imminent. I regret that, for the same reasons that Lord Bingham has given, I cannot say that the Osman test is met in this case.

69.  The case was however pleaded in a way that sought to escape from the very high threshold that was laid down in Osman. It was said that the defendant owed a duty of care to Giles because, by involving him in the prosecution of Brougham, in particular by requesting him to be a witness at Brougham’s trial, he had exposed Giles to a risk to his life. The argument was that Giles was thereby placed into a special category of witnesses, not shared by all members of the public, to whom a lower threshold applied. This argument was encouraged by the Court of Appeal’s observation in R (A and others) v Lord Saville of Newdigate and others [2002] 1 WLR 1249, para 28, that it was not appropriate to apply the Osman test in the case of soldiers or former soldiers who were to be called by the authorities to give evidence in circumstances where their lives were said to be at risk of terrorist violence. The judge in this case said that where it was the conduct of the state authorities that has exposed an individual to the risk of his life the Osman threshold is too high. If there is a risk on the facts, she said, then it is a real risk, and “immediate” can mean just that the risk is present and continuing. The Court of Appeal said that this proposition was supported by the authorities [2007] 1 WLR 1821, para 76.

70.  I would confine the decision in Lord Saville’s case to its own facts. The way the test was expressed in Osman offers no encouragement to the idea that where the positive obligation is invoked the standard to be applied may vary from case to case. The standard is, as Lord Caswell said in In re Officer L [2007] 1 WLR 2135, para 20, constant and not variable with the type of act in contemplation. The Strasbourg court said in para 115 that, while the scope of the positive obligation was in dispute between the parties, it was accepted by the parties that it applied in certain well-defined circumstances. Its conclusion on the scope of the obligation in para 116 begins with this sentence:

“For the court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.”

The court might have said that the question whether to impose the obligation would be impossible or disproportionate was a matter to be decided on the facts of each case. It chose not to do that. The solution which it adopted was to define the limits of the obligation. Those limits must be observed in every case where it is alleged that a public authority has violated its positive obligation under the article. Of course the answer to the question whether the positive obligation was breached will always depend on the individual facts of the case, as the judge said. But the test itself is invariable.

71.  There are undoubtedly cases where things done by the police can give rise to negative or positive duties under article 2 if life is to be protected. Placing an apprehended person into the same cell as a person known to have a tendency to violence is an example. The negative duty obliges the police to refrain from doing this. The need to protect a person who is known to have been exposed to a real and immediate risk to life because he has agreed to become a police informer is another example. But Giles’s case falls well short of these examples. I would allow the appeal and make the order which Lord Bingham has proposed in para 41 of his opinion.

Smith

72.  There was in Mr Smith’s case a highly regrettable failure to react to a prolonged campaign by Jeffrey threatening the use of extreme criminal violence. The question is whether, on the assumed facts which Lord Bingham has set out, it is at least arguable that the Sussex Police owed him a duty to take reasonable care to prevent these threats from being carried out. It raises an important issue of principle. On the one hand there is the liability principle which Lord Bingham has enunciated: see para 44. According to this principle a police officer who is furnished with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to the life or safety of a member of the public owes a duty to that person to take reasonable steps to prevent its being executed. On the other hand there is what in Brooks v Commissioner of Police of the Metropolis and others [2005] 1 WLR 1495, para 30, Lord Steyn described as the core principle in Hill’s case: Hill v Chief Constable of West Yorkshire [1989] AC 53. Is this a case to which the core principle in Hill’s case must be applied? Or is it one where the relationship between Mr Smith and the police was such that, on ordinary delictual grounds, a duty of care ought to be imposed on the police?

73.  As Lord Bingham has explained, the reasons which Lord Keith gave in Hill for saying that an action of damages for negligence should not lie against the police on grounds of public policy do not all stand up to critical examination today. The more important authority for present purposes therefore is the recent decision of this House in Brooks. I need not repeat para 30 of Lord Steyn’s opinion in that case, with which Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood expressed their unqualified agreement. I would however draw attention to the following sentences in that paragraph which have a direct bearing on the issue that confronts us in this case:

“A retreat from the [core] principle in Hill’s case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded.”

74.  Lord Bingham says in para 52 that it is evident that both Lord Keith and Lord Steyn were addressing the situations raised on the facts before the House and that neither decision conflicts with the liability principle, acceptance of which calls for reasonable performance of the public function. In my opinion however it is clear from Lord Steyn’s opinion, read as a whole, that he was laying down a principle of public policy that was to be applied generally. In para 22 he referred to his own judgment in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335. That was, as he said, a different case altogether, as it raised the question whether the Crown Prosecution Service owed a duty of care to those whom it was prosecuting. But he relied on the case by analogy. In holding in Elguzouli-Daf that policy factors argued against the recognition of a duty of care owed by the CPS to those whom it prosecutes, he said this at p 349:

“While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence.”

 
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