Posted on 18th February 2015
A recent Supreme Court decision confirms that the Human Rights Act continues to be the only legal tool to hold the police to account for failure to protect victims from serious crimes in all but the rarest of cases.
The Supreme Court recently issued its judgment in Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents)  UKSC 2. The case was an opportunity for the highest Court in the UK to revisit the issue of police accountability in negligence under the common law.
The Appellants in the case are the family of Joanna Michael, who was murdered by her ex -boyfriend in 2009. At 2.29am on 5 August Ms Michael called 999 from her mobile phone; by chance the call was picked up by a telephone mast in the neighbouring police area of Gwent, and not by South Wales Police which was her local force. Ms Michael said that her ex-boyfriend was aggressive, had just turned up at her house in the middle of the night and found her with another man, and had hit her. She said he had taken her car to drive the other man home, and that when he came back he was going to kill her. Ms Michael said the ex-boyfriend would be back ‘any minute literally’. There is a factual dispute in the case as to whether the call handler heard Ms Michael say ‘kill her’ or ‘hit her’. The call handler informed Ms Michael that she would have to pass the call on to South Wales Police to respond, and asked Ms Michael to keep her phone free so South Wales Police could call her back. Gwent Police graded the call as a ‘G1’ requiring immediate response, but when the details were passed to South Wales no mention was made of a threat to kill. South Wales downgraded the priority of the call to one requiring a response within 60 minutes. At 2.43am Ms Michael called 999 again, the call again picked up by Gwent Police. She could be heard screaming and the line went dead. South Wales police officers attended at 2.51am, and found that Ms Michael had been murdered. Her ex-boyfriend was subsequently convicted.
Ms Michael’s family sought to bring civil claims against Gwent Police and South Wales Police for negligence and under the Human Rights Act for breach of Ms Michael’s right to life under Article 2 of the European Convention on Human Rights. The Defendants applied to have the claims struck out at an early stage on the basis that there was no possibility the claims could succeed. The High Court refused to do so, and this decision was appealed. The Court of Appeal decided there should be summary judgment (i.e. a judgment reached without full trial) in the Defendant’s favour in relation to the negligence claim but considered the Human Rights Act claim should continue to trial. The family appealed the decision for summary judgment in the negligence claim to the Supreme Court, and the police forces cross-appealed the decision to allow the Human Rights Act claim to continue.
The Supreme Court was therefore considering at an early stage of the civil case, before the evidence had been heard, whether the claims should be allowed to go forward to trial.
The case was an opportunity for the Supreme Court to revisit the issue of whether the police owe any duty of care to a person at risk of harm from a third party. This is a key component of accountability in negligence: if no duty of care is owed, the claim will fail. The key decision in relation to the duty of care owed by the police was Hill v Chief Constable of West Yorkshire  AC 53. This case was brought by the mother of one of the victims of the Yorkshire Ripper, arguing that but for the failings in the police investigation, the culprit Peter Sutcliffe would have been apprehended before her daughter was murdered. In that case the court found that the victim was part of a group similarly at risk (young women) and there was no reason to think that the victim was at any greater or particular risk than any other members of that group. Because the police did not know the Claimant’s daughter to be at particular risk, there was no proximity of relationship between the police and the victim from which a duty of care could arise. But the court went further, and decided there would be public policy objections to imposing a duty of care on the police in relation to any of its core functions, including the investigation and prevention of crime. This was referred to as the ‘core immunity’; rather unfortunately as this incorrectly suggested that the police are ‘exempt’ from such claims.
Nevertheless, the unwillingness of the courts to find circumstances where the police could owe a duty of care to victims, potential victims and suspects limits the remedies available at common law to hold the police to account. Although not in truth an immunity, the Hill principles have in practice had the same effect.
In Michael, two arguments were advanced for the police to be liable in negligence. The interveners in the case, Refuge and Liberty, argued that the police owe a duty of care where they are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group (referred to in the case as ‘the Interveners’ liability principle). The second argument was based on a liability principle set out by Lord Bingham in his dissenting judgment in Smith v Chief Constable of Sussex Police  AC 225. Lord Bingham considered that the police owe a duty of care when they receive credible information from a member of the public that an identified third party presents a specific and imminent threat to that person’s life or safety. It was also argued in Michael that there was an assumption of responsibility by the police. Although the Supreme Court agreed that the police can be liable in negligence where they have assumed responsibility, the majority found on the facts that the advice given to Ms Michael by the call handler did not amount to a promise of assistance which Ms Michael relied upon.
The liability principles proposed reflect, in some respects, the test developed under Article 2 of the European Convention of Human Rights, the Right to Life. This imposes positive obligations on states to protect life, including a procedural duty to take reasonable steps to prevent loss of life where a public authority knows, or ought to know, of a real and imminent risk to life. Failure to take reasonable steps can give rise to a claim for compensation under the Human Rights Act, which Ms Michael’s family brought in addition to the claim in negligence.
In a 5 – 2 majority decision, the Supreme Court declined to find any basis for liability in negligence in Michael. The Court dismissed both cross-appeals, finding no duty of care was owed to Ms Michael to found a negligence claim, but allowing the Human Rights Act claim to proceed to trial.
Lord Toulson, giving the lead judgment of the Court, described the police’s general public duty to keep the Queen’s peace. In considering whether, and in what circumstances, the police may a private law duty to a member of the public at risk of violent crime, in addition to the public law duty, Lord Toulson considered that this would make the police a special case, as the law ordinarily would not make one person liable for the actions of a third party. The common law does not generally impose liability for pure omissions [paragraph 97 of the judgment], except where the defendant was in a position of control over the third party or had assumed a positive responsibility to safeguard the injured party.
Lord Kerr, dissenting, considered that the rules relating to liability for omissions should not inhibit the recognition of a legal duty of the police force to take action to protect a particular individual whose life and safety is, to the knowledge of the police, threatened by someone whose actions the police are able to restrain [para 175]. Lord Kerr noted that the common law required professional persons to conduct themselves with reasonable care and skill, and that other emergency services can be liable for their negligence if there is sufficient proximity and foreseeability. Lord Kerr considered that in the circumstances of this case, when Ms Michael informed the police of a specific, imminent attack on her, created a sufficient proximity of relationship for a duty of care to arise.
The dissenting judgments of Lord Kerr and Lady Hale were both in favour of a narrow liability principle arising when the police are informed of a specific and imminent threat, not unlike the article 2 test. Both Lord Kerr and Lady Hale were not convinced that policy concerns should inhibit the introduction of a narrow liability principle, with Lady Hale noting that the existence of a human rights claim in itself means that the policy reasons advanced against the imposition of a duty in negligence claim have “largely ceased to apply” [para 196].
The majority however, whilst accepting that common law claims and human rights act claims serve different purposes, did not consider that the common law needs to develop in the same direction as Convention law [para 125, per Lord Toulson].
Though the two dissenting judgments suggest there is some judicial appetite for a future development of a narrow liability principle, the majority decision confirms that for the time being the Human Rights Act is indispensable for ensuring judicial scrutiny of police failings. At this time, when there are serious proposals to remove this statute and withdraw from the European Convention, Michael illustrates that the common law does not offer the same legal protection for those fundamental rights. Families who have lost loved ones in the most tragic and difficult circumstances will also lose the ability to hold the state and its agents to account for failings if this protection goes.
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