Domestic violence victims unable to sue police in negligence: UK Supreme Court

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

The United Kingdom 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.

Facts

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 1998 (UK), invoking the right to life under article 2 of the European Convention on Human Rights. 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 Hertfordshire Police v  Van Colle), 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?

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 law obligations under the Convention on the Elimination of All Forms of Discrimination Against Women 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.

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 the 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:

• There is a closeness of association between the claimant and the defendant, such as where information is communicated to the defendant;
• The information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken;
• The defendant might reasonably be expected to provide protection in those circumstances; and
• 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 disappointing majority decision confirms the significant legal hurdles that victims of crime and their families face in the UK when suing police for negligence in failing to prevent harm. Victims still have the option of pursuing compensation by making a right to life claim under article 2 of the ECHR.

In Australia, negligence law in this area has generally followed the UK lead. It is very difficult to establish that police owe a duty of care in a range of situations including alleged failures to prevent harm to victims.

Claims by victims could be made against police under the Victorian Human Rights Charter and ACT Human Rights Act which both protect the right to life. However, under both pieces of legislation, unlike the UK’s Human Rights Act, courts cannot award compensation for human rights breaches.

The full text of the decision can be found online here: https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0043_Judgment.pdf

Kate Beattie is a barrister at One Crown Office Row, London, practising in public law, human rights, equality and health law.

This is an edited version of an article that first appeared on http://ukhumanrightsblog.com/ and is published with permission.