Issue 3
January 2014
Editor: Paul Stagg
POLICE BRIEFING
In this issue:
THE STATE’S FAILURE TO PROTECT: RECENT DEVELOPMENTS ON THE APPLICATION OF THE OSMAN TEST
By Edward Bishop QC
There have been two interesting recent decisions on the state’s obligations under the Human Rights Act 1998 (“HRA”) to protect citizens
from injuries inflicted by others.
Such actions have already been brought against the police (e.g. Van
Colle v Chief Constable of Hertfordshire [2008] UKHL 50; [2009] 1
AC 225) and other state bodies (e.g. Rabone v Pennine Care [2012]
UKSC 2; [2012]2 AC 72 and Mitchell v Glasgow City Council [2009]
UKHL 11; [2009] 1 AC 874). In these cases liability has been
assessed by reference to – and application of - the “Osman” test. For
liability to be established it must be shown that:
“…the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life of an identified individual or
individuals from the criminal acts of a third party and that they failed to
take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”1
Notably, in Van Colle Lord Bingham said he thought that “every ingredient of this carefully drafted ruling is…of importance”. 2
In Bedford v Bedfordshire County Council [2013] EWHC 1717 (Q B)
Mr Justice Jay applied and interpreted the Osman test in a manner that
may have to be re-appraised in light of the CA decision in Sarjantson v
Chief Constable of Humberside [2013] EWCA Civ 1252.
Bedford v Bedfordshire County Council
In Bedford, Mr Justice Jay dismissed a claim under sections 6 and 7 of
the HRA alleging a violation by Bedford County Council (“BCC”) of
article 8 of the European Convention on Human Rights (“ECHR”).
The Claimant, Bradley Bedford, (“B”) was out walking in Torbay with
his girlfriend at around midnight in May 2004. Both were 13 years old.
They were violently attacked by two 15 year old boys, who beat and
kicked B and assaulted and raped his girlfriend (who was not a party to
proceedings). B suffered severe head injuries. The boys were convicted of various offences and sentenced to life imprisonment.
One of the boys who attacked B (“H”) was looked after under s.20 of
the Children Act 1989 by BCC. After a number of local placements
had broken down as a result of H’s abusive, threatening and occasionally violent behaviour, BCC decided to place H out of county, at a private
children’s home in Torbay. H moved to the home in January
2004. There were a number of troubling incidents but the broad
picture was that H was making some progress at the home and
was – for the first time for over a year – attending school.
On the day of the assault H was out with one resident of the
home, supervised by three adult members of staff. He absconded
at around 5pm. Staff reported him missing to the police and
made some attempts to locate him, but as the judge recognised,
the home’s staff had no powers to arrest H or force him to return
home even if they’d found him. After the assault H was arrested
at about 2 am the next day.
B, relying on the state’s obligation to protect its citizens’ “bodily
integrity” under article 8, alleged that H posed a general risk to
members of the public and that BCC had not properly performed
its functions, sending H down to Torbay with no effective plan
for care or supervision in place, and without paying proper attention to the dangers of H being out on his own. B accepted that
BCC was not liable under the HRA for any individual breaches
of duty by the home or its staff on the ground, but contended that
BCC owed an over-arching duty to ensure H was properly contained.
BCC accepted that there may be an obligation to protect citizens
from the criminal acts of others under article 8 but argued that
where such an allegation was made the test would be the same as
if a claim had been brought – as might be thought more appropriate – under article 2 (the right to life) or 3 (prevention of torture
or inhuman treatment) . The judge accepted this, and therefore
applied the “Osman test” to determine whether or not liability
was established.
The judge rejected the Osman claim on the simple ground that B
was not an “identified individual”, but was a member of the public at large, who happened to be in the wrong place at the wrong
time. He also thought that the risk was “real” but not
“immediate”. 3He found that B had failed to identify any reasonable steps that BCC should have taken that might have prevented
the assault. He also dismissed the claim on limitation grounds.
Although the decision depended to a large part on the facts (and
would have failed whatever the judge’s view of the correct test),
WWW.1CHANCERYLANE.COM
it is notable that Jay J thought the Osman claim failed simply because B was not an “identified individual” and that he appeared to
accept that some element of causation (whether on a loss of chance
or “but for” basis) was a necessary ingredient of the cause of action
under the HRA.
Both these aspects of the judge’s approach may have to be reassessed in light of the Court of Appeal’s decision in Sarjantson.
Sarjantson v Chief Constable of Humberside
Humberside police received a number of 999 telephone calls reporting that men armed with baseball bats and sticks were attacking
members of the public in the early hours of 9 th September 2006. Mr
Sarjantson (“Mr S”), who was assaulted and seriously injured, was
only identified by name as a potential victim about 7 minutes after
the first 999 call was received. He alleged that the police owed a
duty under articles 2 and/or 3 of the ECHR to respond reasonably
quickly to the reports of the attacks, and that they had failed to do
so. An internal police enquiry had concluded that police had been
slow to attend the incident and that there was an unjustified delay
of 11 minutes in despatching units to the scene.
The police sought to strike the claim out, arguing successfully at
first instance (a) that, applying the Osman test, the duty to protect
Mr S only arose when he first became an “identified individual” (so
there was no duty to protect him until they knew of his presence at
the scene, which was not until 7 minutes after the first 999 call) and
(b) that even if police had responded as quickly as they should
after the initial emergency call, they would not have arrived at the
scene in time to prevent the assault on Mr S.
The CA allowed Mr S’s appeal. Lord Dyson MR concluded that
the duty under articles 2 and/or 3 to protect individuals from attacks
by others can be owed to members of the public in general, and
went beyond that owed to “identified individuals”. He thought the
Osman test had been formulated very much with the facts of that
case in mind.
On the causation point (i.e. that earlier arrival would have made no
difference) Lord Dyson thought that this was not fatal to Mr S’s
claim. He said that if it was shown that the assault could not have
been prevented this might deprive Mr S of damages for just satisfaction, but would not defeat the cause of action under the HRA.
He said:
“A finding that a response would have made no difference
may mean that there is no right to damages. But it is not
relevant to liability”.
Both these conclusions – i.e. (a) that an Osman duty can be owed to
the public in general and (b) causation is not a necessary ingredient
to a cause of action under the HRA - could be regarded as surprising.
The idea that the state’s duty to protect can be owed to members of
the public in general might be thought to be an unwarranted extension of the Osman test (described by Lord Bingham, as set out
above, as a “carefully-drafted ruling "every ingredient of which is “
of importance”). It is also not entirely clear why the CA felt the
need to extend the duty in this way, as it might well have been possible to include Mr S in a “group” of individuals (ie those under attack
at the location) within the Osman test definition. In reaching his
conclusion Lord Dyson relied on the ECtHR decision in Mastromatteo v Italy (App. No. 37703/97, 24.10.02), a failed claim which suggests (but does not state in clear terms) that an Osman duty could be
owed to the general public. Of course, under s. 2 of the HRA the CA
did not, even if it thought Mastromatteo was clear authority for this
proposition, have to follow it.
On causation, the ECtHR seemed to suggest in Osman itself that
there had to be some prospect – if liability is to arise at all - that different actions by the authorities could have prevented the injuries
(see para 121). Lord Brown in Van Colle suggested the same thing
(para 138), albeit that causation in an HRA claim would be established by the loss of a substantial chance rather than on a “but for”
basis.
The decision has worrying implications for the police and other state
bodies. It may mean, for example, that police failing to conduct a
proper investigation could be liable under the HRA to any member
of the public injured by a suspect who has not been arrested, or has
been released on bail (see e.g. the facts of Hill v Chief Constable of
West Yorkshire [1988] QB 60). The same may be true of hospital
authorities who release mentally ill patients who go on to commit
crimes of violence (see e.g. Palmer v Tees Health Authority [ 2000]
PIQR P1) . In either case a claimant would not have to prove that
different action would in fact have prevented or reduced the chance
of injury in order to establish a cause of action under the HRA.
Perhaps it is partly for these reasons that the Chief Constable is, so
we understand, seeking permission to appeal Sarjantson to the
Supreme Court.
Osman v United Kingdom (1998) 29 EHRR 245
Para 29
3
Para 96
1
2
About the Author
Edward Bishop QC specialises in clinical negligence, police and human rights law, and appeared
for the defendants in Van Colle and Bedford. He is currently instructed in a number of claims
based on allegations that state bodies failed to protect members of the public from assaults by
others.