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Smith v Chief Constable of Sussex Police, Court of Appeal, 5 February 2008

18 February 2008
The issues

Alexandrou v Oxford; Hill v Chief Constable of West Yorkshire – Police – duty to protect life – Article 2 European Convention on Human Rights – whether police liable to a member of the public for failure to arrest a person who subsequently attacked a member of the public.

The facts

On the 24th February 2003 Mr Smith made a 999 call to report that his former partner, who had been violent towards him in the past, was threatening to kill him. Two Constables went to the Claimant’s home in Brighton, where the Claimant told them that Gareth Jeffrey, his former partner, had attacked him in December 2000 when he tried to end the relationship and that since January he had received a stream of abusive and threatening text messages and emails containing messages such as “I am looking to kill you and no compromises”, “u r dead fucking meat” and “I was in the Bull Dog last night with a carving knife, it’s a shame I missed you”. The officers took no notes. No statement was taken. No crime report was filed. He was told to go to the police station to complete forms to let the calls be traced and he did so the next day. The death threats continued to come. On the 27th February he was told by the police that it would take 4 weeks to complete the trace. The next day, having received another series of explicit death threats from Jeffrey went to a London police station (staying in London for safety) when officers contacted the Brighton police. He went back to Brighton and, on the 6th March again visited the police station, seeing an Inspector. The Inspector refused to look at the messages Mr Smith had brought with him, took no notes and told him that the investigation was progressing and that he would hear from the police in about 3 weeks. 4 days later a Constable asked the Claimant for Jeffrey’s telephone numbers, which he was given. Later that morning Jeffrey arrived at Mr Smith’s house and attacked him with a claw hammer causing him serious and lasting injuries. The following day the police arrested Jeffrey at the London address which Mr Smith had set out on the form he filled in at the police station on the 25th February. Mr Smith was out of time for suing for breach of his convention rights pursuant to Section 7 of the Human Rights Act 1998 and instead brought a claim in negligence in the Brighton County Court against the Sussex Police. The Judge, at first instance, on the Application of the Police Constable, struck the claim out on the ground that there was no sufficient relationship of proximity between Mr Smith and the police and that his claim should not be entertained on grounds of public policy.

The Judge, granting permission to appeal directed that the appeal be transferred to the Court of Appeal because it raised an important point of principle, namely, whether a negligence claim of this kind was now reinforced by the Human Rights Act.

The decision

The convention value relevant to this action was the right to life enshrined in Article 2, which obliged states to take reasonable steps to protect human life. If the assumed facts were established, the Claimant was both a key witness to a serious offence of making threats to kill and the potential victim. The police ought to have been alerted by the evidence he offered them and Jeffrey ought to have been arrested promptly. Whether under Article 2 or at common law, it could not be a valid ground of distinction that an informer was entitled to protection whilst a witness was not, nor that a witness to a crime, which has been charged, is entitled to a measure of protection not available to a witness to a crime which should have been charged but, through neglect, had not been. In Alexandrou v Oxford, the Court of Appeal had held that a cursory inspection by police officers of premises to which they had been summoned by a burglar alarm, with the result that a burglary was not prevented, was insufficient to create a proximate relationship between the owner and the police. In Osman v Ferguson (the precursor of Osman v United Kingdom in the European Court of Human Rights) the Court of Appeal had held, by a majority, that the reporting to the police by Ahmed Osman’s family of the menacing behaviour of his obsessed teacher arguably created a relationship of sufficient proximity to attract a duty of care but that it was contrary to public policy to make the police liable for the consequent harm. If the Court was called upon to choose between Alexandrou and that of Osman, Osman ought to be preferred. Since Osman had been decided it had become clear in cases involving the police that the very proximity of the parties could not only create a duty of care but could overcome the public policy considerations which would otherwise bar the claim. An example of this was Swinney v Chief Constable of Northumbria.

By the time the Human Rights Act came into force, the law of negligence did not bar actions against the police but recognised that it would be contrary to public policy to allow any to proceed which were not founded upon a high degree of proximity. In this way the two tests, one relating to proximity, the other to fairness, justness and reasonableness – had in large part merged.

There had to come a point at which police officers, once alerted, could not entirely escape responsibility. Their public office required them, unlike the ordinary passer by, to do something. It was cogently arguable, if the pleaded facts were established, that this was such a case. In developing the common law case by case there was a risk of creeping liability – that each case would proceed by analogy with the last but always in the direction of enlarging the liability of the police. This had to be guarded against. The process had been, and could be expected to continue to be, a cautious one. It had also to be a process which attempted to close the gap between law and justice, remembering that justice to society and its institutions could be as relevant as justice to individuals. There might be a distinction to be drawn in this area, though not explored in this appeal, between neglect inefficiency and wilful neglect. This case, on its pleaded facts, was clearly capable of coming into the second category. There may also be a distinction to be made at common law as there was in the convention between the protection of property and the protection of life.

Appeal allowed.

Comments

Lord Justice Pill, delivering the third Judgment of the Court added his view that there was a strong case for developing this common law action for negligence in the light of convention duties. It was appropriate to absorb the rights which Article 2 protected into the long established action of negligence and a claim in negligence should, on appropriate facts, have regard to the duties imposed and standards required by Article 2 of the convention. It was not acceptable in his view, in circumstances such as this, to put a claim under Article 2 and a claim in negligence in different compartments, each with its own limitation period.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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