This post, which originally appeared as an article in Police Professional, examines the implications of two recent cases concerning police liability for breach of Article 2 and explores the different vulnerability of the police to common law negligence claims and claims under Article 2 with respect to operational failures.
Police forces have long benefitted from the Hill principle of ‘core immunity’, meaning the police generally owe no duty of care at common law (negligence) to members of the public who suffer harm at the hands of criminals. However the recent cases of Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252 (which was summarised in this post) and Michael v Chief Constable of South Wales [2012] HRLR 30 confirm that this immunity does not extend to claims brought under Article 2 of the European Convention on Human Rights (ECHR).
The decisions demonstrate that where it is established that the police knew or ought to have known of a real and immediate risk to life – which may be following a 999 call – the police owe a duty under Article 2 to take reasonable steps to avoid or minimise that risk. This duty is owed even where the victim is not identified to the police by name. Whilst such claims may or may not result in compensation being awarded, any findings of breach of the Article 2 duty will inevitably have an impact on the police – whether operational, reputational, or financial.
The Hill principle and Article 2 cases prior to Sarjantson
Hill v Chief Constable of West Yorkshire [1988] 1 QB 60 was the well-known case brought by the mother of the last murder victim of Peter Sutcliffe, the ‘Yorkshire Ripper’. It was alleged that, due to negligence by officers in the investigation, Sutcliffe remained at large for longer than he ought to have done, and that the West Yorkshire Police were liable for the death of Jacqueline Hill, which would have been prevented by a competent investigation. The House of Lords confirmed that no actionable duty of care was owed by the police to the general public as potential victims of crime: the Hill principle.
Following the introduction of the ECHR into domestic law, the position has changed gradually. The case of Osman v United Kingdom (2000) 29 EHRR 245 concerned an alleged failure to prevent the young victim and his family from the risk to life posed by a stalker. The European Court of Human Rights in Osman decided that Article 2 (the right to life) placed the police under a “positive” or “operational” duty to take reasonable measures to avert a real and immediate risk to the life of an identified individual of which they were, or ought to have been, aware.
In the conjoined appeals of Smith v Chief Constable of Sussex Police and Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50 the House of Lords reached the curious conclusion that, while the police generally will not owe a duty of care in negligence to protect members of the public from harm caused by criminals (under the Hill principle), the police will owe a duty under Article 2 to take reasonable preventative measures if they knew or ought to have known of a real and immediate risk to life. The House of Lords upheld the common law Hill principle in the interests of public policy, citing the potentially damaging impact of imposing a duty of care in negligence on the ability of the police to perform their public functions, whilst recognising a concurrent duty may be owed under Article 2. Therefore, on precisely the same facts, the police may have no liability in negligence, yet at the same time be liable under Article 2.
This was illustrated by a recent Court of Appeal decision, Michael v Chief Constable of South Wales [2012] HRLR 30. The case concerned a police response to a 999 call made in the early hours of the morning by a young mother, reporting that her ex-partner had threatened to kill her. The first 999 call was made just before 02.30; at 02.51 the woman was found stabbed to death. An IPCC report identified individual and systemic failures in the handling of the initial 999 call, which had not been given immediate priority. The Chief Constable applied for both the common law and Article 2 claims to be struck out. In a majority decision, the Court of Appeal held that, whilst the claim in negligence should be struck out, the Article 2 claim should be allowed to proceed to trial as the Chief Constable could not establish that the claim had no real prospect of success.
The Article 2 claims described above all related to alleged failures to protect a named potential victim of crime.
The Facts in Sarjantson
In Sarjantson several 999 calls were made to the police in the early hours of the morning of 9 September 2006, reporting that a group of young men were violently attacking someone with baseball bats. This first call was made just before 01.12. The first time the police were told of an attack on a named individual, Mr Sarjantson (“Chris”), was 7 minutes later at 01.19.
The internal investigation conducted by Humberside Police found that there had been an 11 minute delay before police officers were despatched, and that in total 26 minutes had elapsed between the first call and officers reaching the scene. The target time for attending such incidents was 15 minutes. The investigation concluded that there had been, “an unnecessary delay in units getting to Mr Sarjantson within a reasonable time.”
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 and sentenced to substantial terms of imprisonment. Mr Sarjantson 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 prohibition against torture and inhuman or degrading treatment).
Was an Article 2 duty owed?
The Claimants argued that the Humberside Police had breached the positive ‘Osman’ duty by failing to take reasonable steps to protect Mr Sarjantson from violence at the hands of his attackers.
In the County Court, the claim was struck out on the basis that it had no real prospect of success because:
- The ‘Osman’ duty could not have arisen until Mr Sarjantson was first ‘identified’ (as “Chris”), approximately 8 minutes after the first call. 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 dispatching the officers, they would still have arrived after the assault on the Claimant.
The Claimants appealed. The Court of Appeal allowed their appeal and gave an important judgment dealing with three points of principle.
(1) The victim does not need to be identified or identifiable for the Osman duty to arise
The Court drew on authorities from the European Court of Human Rights, including Mastromatteo v Italy (App. No. 37703/97) and Oneryildiz v Turkey (App. No. 48939/99), to confirm that the risk to life need not be a risk to the life of an identified or identifiable individual. As Lord Dyson MR himself suggested at [15] and [20], neither of these authorities had any direct bearing on the issue, since neither was decided on the basis that a duty was owed to unidentified or unidentifiable individuals. Moreover the factual situation in both cases differed from Osman: Mastromatteo concerned the release of convicted criminals on prison leave; Oneryildiz involved the death of several people following a methane explosion at a rubbish tip maintained by a municipal authority.
The Court of Appeal approached the case not only on the basis of the Strasbourg authorities, but also from first principles. It concluded that the police knew from the 999 callers (1) that there were individuals in the vicinity of the street where the youths were causing mayhem; and (2) where to find the victims, if it were reasonably necessary to protect them from attack. Therefore, where the police are informed of an incident of violent disorder, the Osman duty may arise “regardless of whether [the police] 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.” Previously, following the plain wording of the Osman case, the legal position had been generally understood to be that the risk must be to the life “of an identified individual or individuals”.
(2) Article 2 may be breached even where the police have insufficient time to intervene effectively
It was argued on behalf of the force that there could be no breach of the Osman duty because there had been insufficient time between the first 999 call and the assault on Mr Sarjantson for the police to attend the incident.
The Master of the Rolls held that the duty under Article 2 to provide protection arose at the time when the first emergency call was made. At that time, he said, “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”.
Following Osman, the Court of Appeal confirmed that potential breaches of Article 2 are to be tested by reference to what the police knew or ought to have known of the real risk “at the time”. Article 2 should not be determined with the benefit of hindsight. This limitation will operate in favour of public authorities where the magnitude or 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 at least one of the 999 calls in Sarjantson: “Oh they’ve hit him with a baseball bat…They’ve beat him up, he’s laid on the floor… fighting them….That’s Chris that’s me sister’s husband. He’s sixty year old and they’ve battered him with baseball bats”.
The Court of Appeal noted 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. Significantly, it went on to confirm that “the fact that a response would have made no difference is not relevant to liability”. It was explained that in any subsequent assessment of damages (as opposed to liability) the fact that a timely response by the police would have made no difference may mean that the claimant has no right to damages. A failure to respond appropriately (in this case, sufficiently promptly) may amount to a breach of Article 2, even if the claimant has suffered no injury or financial loss as a result of the breach, and is therefore entitled to no more than a declaration that his Article 2 rights have been violated.
(3) The Article 2 duty can arise during the course of an attack
Humberside Police sought to argue that Article 2 does not require the police to act when, as in the present case, the risk had already materialised – the violence had started – by the time it came to the attention of the police.
Lord Dyson MR dismissed this argument summarily: “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 … it makes no difference that the risk arises during an incident which has already commenced”.
Implications of the Court of Appeal’s decision in Sarjantson
Sarjantson demonstrates the difference between the courts’ approach to claims in negligence and under Article 2. Whereas in negligence, a claimant must establish that the breach has caused loss, the claimant in an Article 2 action need only establish that the measures which should have been taken “might have been expected to avoid that risk” (Osman). The test for establishing this possibility is yet to be clearly defined.
The distinction may have practical consequences. Even if the Hill principle barring negligence claims did not apply, it appears unlikely that Mr Sarjantson would have been able to succeed in such a claim against Humberside Police, since it does not appear that a reasonable response would not have made any difference. He would therefore have been unable to establish a causative link to his injuries. However, the Court of Appeal found that he does have an arguable claim under Article 2 on the basis that, viewed at the time of the response, additional steps might have reduced the risk.
It was suggested in Smith & Van Colle that the reason for the difference in approach between the claims lies in their objectives, civil claims being designed to compensate, whereas human rights claims are intended to uphold minimum standards. Nevertheless, the practical effect on policing – the justification for the Hill principle against negligence claims – cannot be so easily distinguished.
Even if claimants in Article 2 cases are entitled to little (if anything) by way of financial compensation due to rules on causation, they may still be entitled to a declaration that their rights have been breached, which inevitably has a reputational and/or operational impact. The mere recognition of the Article 2 duty, and the lower causation test it appears to incorporate, is likely to have an impact on the number of claims (and – importantly – the attendant costs implications) brought on the basis that the police could have done more to avoid a real and immediate risk to life.
Practical lessons
The key practical learning from Sarjantson can be summarised as follows:
- The police owe an Osman duty to take reasonable steps to protect individuals from a real and immediate risk to life where the police receive a credible report of violent disorder, posing a risk to a member of the public or group, whether or not they are individually identified (a common scenario).
- The Osman duty is “engaged” (therefore capable of being breached) upon the police learning of a sufficiently serious and immediate risk.
- The same duty applies whether the incident is reported to be anticipated or ongoing.
- The failure to respond appropriately to a 999 call may amount to a breach of Article 2, even if the appropriate response would not 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, they failed to take measures which might have been expected to avoid or minimise that risk.
- If a reasonable police response would not have made any difference to the outcome, the claimant may not be entitled to damages (in spite of the breach of duty), but would still be entitled to a declaration that his/her Article 2 right had been breached.
- The victim need not have died – it is sufficient that potentially lethal force was being used.
Conclusion
It remains to be seen whether the case will be appealed to the Supreme Court. The Claimants in Sarjantson still have to prove their case at trial, when it will be for the police to establish that it was not reasonable in all the circumstances to respond to the 999 calls more quickly based on the risk which was known or ought to have been known to them at the time.
The Court of Appeal suggested that the following factors would be relevant to whether there has been a breach of Article 2: (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. It added that the facts of the present case, “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.” This is useful guidance as to the approach likely to be adopted in future cases brought under Article 2.
This post first appeared as an article in Police Professional and is reproduced here by kind permission of the Editor.