Police not liable in negligence to victim of domestic violence, but Article 2 claim proceeds

4 February 2015 by Kate Beattie

Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2 – read judgment

Duncan Fairgrieve of 1 Crown Office Row was part of the team of counsel representing the appellants in this case. He has had nothing to do with the writing of this post.

The Supreme Court has rejected a challenge to the long-standing rule that the police owe no duty of care in negligence in the context of protecting victims from potential future crimes.

Background

The background facts to the case are shocking. On 5 August 2009, at 2.29am, Ms Michael dialled 999 from her mobile phone. She told the call handler at the Gwent Police call centre that her ex-boyfriend was aggressive; he had just turned up at her house; he had found her with another man; he had bitten her ear really hard; he then drove the other man home with Ms Michael’s car but, before doing so, told her that he would return to hit her; that he was going to be back “any minute literally” and, according to the recorded transcript of the conversation, that her ex-boyfriend had told her “I’m going to drop him home and (inaudible) [fucking kill you]”.

The call handler later gave evidence that she had heard “hit you” rather than “kill you”. Gwent Police graded the call “G1”; it required an immediate response. The call handler immediately called South Wales Police, in whose area Ms Michael lived, and summarised their conversation. No mention was made of a threat to kill. South Wales Police graded the call “G2”; officers should respond within 60 minutes.

Ms Michael’s home was five or six minutes from the nearest police station.

Ms Michael called 999 again at 2.43am. Following a scream from Ms Michael, the line went dead. South Wales Police were informed immediately and officers arrived at Ms Michael’s address at 2.51am. They found that she had been brutally attacked, stabbed many times and was dead. Her attacker subsequently pleaded guilty to murder and was sentenced to life imprisonment.

The Independent Police Complaints Commission later seriously criticised both police forces for individual and organisational failures.

Claims

Ms Michael’s parents and children claimed against the two police forces for damages in negligence and under the Human Rights Act, invoking the right to life under Article 2 ECHR. The police forces sought a strike out of these claims or summary judgment. At first instance, HHJ Jarman QC refused to strike out or give summary judgment but on appeal the Court of Appeal held that unanimously there should be summary judgment for the police forces on the negligence claim but, with Davis LJ dissenting, the Article 2 ECHR claim should proceed to trial.

Supreme Court judgment

The Supreme Court upheld the Court of Appeal judgment by a 5-2 majority. Lord Toulson gave the lead judgment, with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hodge agreed. Lady Hale and Lord Kerr dissented.

The Supreme Court considered two possible principles put forward as a basis for the police to be liable in negligence in the context of protecting victims from potential future crimes.

First, the so-called “Interveners’ Liability Principle” (because it was advanced by the interveners Refuge and Liberty), that the police owe a duty of care in negligence 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.

Second, “Lord Bingham’s Liability Principle” (from Lord Bingham’s dissenting judgment in Smith v Chief Constable of Sussex Police [2009] AC 225, heard together with the Van Colle case), that the police owe a duty of care in negligence where a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his life or physical safety.

The majority

Lord Toulson’s judgment contains a comprehensive survey of case law on the liability of police in negligence, the liability of other emergency services and exceptions to the general rule that liability is not imposed for harm to a claimant caused by the conduct of a third party, including case law from Scotland and the Commonwealth.

The Interveners’ Liability Principle was rejected by the majority for four reasons:

First, because it was hard to see why the duty should be confined to physical injury or death or to particular victims and not others.

Lord Toulson explained:

It is also hard to see why it should be limited to particular potential victims. If the police fail through lack of care to catch a criminal before he shoots and injures his intended victim and also a bystander (or if he misses his intended target and hits someone else), is it right that one should be entitled to compensation but not the other, when the duty of the police is a general duty for the preservation of the Queen’s peace? Similarly if the intelligence service fails to respond appropriately to intelligence that a terrorist group is intending to bring down an airliner, is it right that the service should be liable to the dependants of the victims on the plane but not the victims on the ground? Such a distinction would be understandable if the duty is founded on a representation to, and reliance by, a particular individual but that is not the basis of the interveners’ liability principle. These questions underline the fact that the duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of close or special relationship (“proximity” or “neighbourhood”) necessary for the imposition of a private law duty of care.

Second, because it is speculative whether a duty would improve the performance of individual officers in domestic violence cases and it was not in the public interest for police priorities to be affected by the risk of being sued. The interveners and the appellants had referred to a substantial body of material about the deep-rooted problem of domestic violence in society, its prevalence and the weaknesses in response to it. As well as the UK’s international legal obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on Preventing and Combating Violence Against Women and Domestic Violence (which came into force on 1 August 2014 – and which the UK has signed but not yet ratified).

Third, because it would have potentially significant financial implications for the police and/or public.

Fourth, because it is not necessary to develop the law of negligence to mirror or go beyond what is required by Articles 2 and 3 ECHR. ECHR claims have different objectives from civil actions such as negligence.

Lord Bingham’s Liability Principle was rejected for the additional reasons that it would be unsatisfactory to draw dividing lines according to who reports the threat, whether the threat is credible and imminent or credible but not imminent, and whether the whereabouts of the threat-maker are known or not, and whether the threat was aimed at physical injury or not. It was for Parliament to determine the existence and scope of such a compensatory scheme. Lord Toulson said:

It would be unsatisfactory to draw dividing lines according to whether the threat is reported by A or by someone else (for example, in the present case by the man driven home by Ms Michael’s murderer before he returned and killed her); or whether the threat is credible and imminent or credible but not imminent; or whether the whereabouts of the person making the threat are known or unknown; or whether the threatened violence was to A’s person or property or both.

The Supreme Court held that it was untenable that what the call handler said to Ms Michael gave rise to an assumption of responsibility. The call handler gave no promise as to how quickly the police would respond and did not advise or instruct her to remain in her house.

The question of whether he call handler should have heard Ms Michael say that her ex-boyfriend was threatening to “kill her” was a question of fact to be investigated at the trial of the Article 2 claim.

Dissenting judgments

Lord Kerr dissented. He would have allowed the appeal on the basis that there should be recognised a sufficient proximity of relationship, such as to create a duty on the police in negligence, where the following circumstances arise:

1. There is a closeness of association between the claimant and the defendant, such as where information is communicated to the defendant;
2. The information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken;
3. The defendant might reasonably be expected to provide protection in those circumstances;
4. The defendant should be able to provide for the intended victim’s protection without unnecessary danger to himself.

Lord Kerr considered that on the present facts, there was clearly a sufficient proximity of relationship between the police and Ms Michael. The fundamental principle that legal wrongs should be remedied outweighed the complete absence of evidence to support the claims of dire consequences if liability was found.

Lady Hale also dissented, and supported the analysis of Lord Kerr. In her view the policy reasons said to preclude a duty in a case such as this are diminished by the fact that the police already owe a common law, positive duty in public law to protect members of the public from harm caused by third parties, as well as the existence of claims under the HRA.

Comment

The dissenting judgments are compelling. While the majority was unable to see a logical or principled distinction between the protection of property and the protection of life, as Lord Kerr said at paragraph 172,

in fact, of course, there is ample reason to distinguish between the two situations. It is entirely right and principled that the law should accord a greater level of importance to the protection of the lives and physical well-being of individuals than it does to their property.

That is already what the Convention does by according the right to life and freedom from torture absolute status in Articles 2 and 3. As Lady Hale noted, the existence of a human rights claim in these circumstances

means that the policy reasons advanced against the imposition of a duty in [a] negligence claim have also ‘largely ceased to apply’ in a case such as this.

Further, the general common law ground that members of the public are not required to protect others from third party harm is, as Lord Kerr explained at paragraph 181, not appropriate for members of a force “whose duty it is to provide precisely the type of protection from the harm that befell Ms Michael. That is the essential and critical obligation of the police force”.

There is no doubting the difficult task faced by police in protecting victims of crime. As Lady Hale said,

It is difficult to see how recognising the possibility of such [common law] claims could make the task of policing any more difficult than it already is. It might conceivably, however, lead to some much-needed improvements in their response to threats of serious domestic abuse.

This is one area, however, where the common law will not march in step with the Convention. For now, at least: Ms Michael’s family is said to be considering taking the case to Strasbourg.

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