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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1252.html
Cite as: [2014] QB 411, [2013] 3 WLR 1540, [2013] WLR(D) 393, [2013] EWCA Civ 1252, [2014] 1 All ER 960, [2014] 1 QB 411, [2014] Med LR 63

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		Neutral Citation Number: [2013] EWCA Civ 1252
		Case No: B2/2013/0036

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Her Honour Judge Walden-Smith
9CL05977

Royal Courts of Justice
Strand, London, WC2A 2LL

18/10/2013

B e f o r e :

THE MASTER OF THE ROLLS
LORD JUSTICE McFARLANE
and
LADY JUSTICE SHARP
____________________

Between:

	SARJANTSON	Appellant
	- and -
	THE CHIEF CONSTABLE OF HUMBERSIDE POLICE	Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Hugh Southey QC (instructed by Deighton Pierce Glynn) for the Appellant
Fiona Barton QC (instructed by Plexus Law) for the Respondent
Hearing date: 8 October 2013
____________________

HTML VERSION OF JUDGMENT
____________________

Master of the Rolls:

This appeal concerns a claim brought in relation to an incident in the early hours of 9 September 2006 in which the first claimant was attacked by a group of young men armed with baseball bats. He sustained a serious head injury which has caused short and long-term memory loss. The assailants were convicted at Grimsby Crown Court of causing grievous bodily and violent disorder and sentenced to substantial terms of imprisonment. The second claimant is the partner of the first claimant.

The claimants issued proceedings alleging that the defendant was in breach of his statutory duty under section 6 of the Human Rights Act 1998 in that, in breach of articles 2 and/or 3 of the European Convention on Human Rights ("the Convention"), his police officers had failed, without justification, to take reasonable steps to protect them and their family from physical violence at the hands of the young men.

By an order dated 14 November 2012, HHJ Walden-Smith struck out the claim on the grounds that it had no prospects of success. The claimants appeal with the permission of the judge. The appeal raises important points as to the scope of articles 2 and 3 of the Convention.

Article 2 provides that everyone's life shall be protected by law. Article 3 provides that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The facts

At 01:11:43 on 9 September, a log was created from a 999 call made by Mr Ian Drake reporting that a number of named males were "smashing the windows at 17 Dame Kendal Grove [Grimsby] with BB bats…..they were after Liam Vick who they have already assaulted tonight". Later in the same call (after 1.21 minutes) he said "You'd better get here quick love cos there's gonna be someone here getting hurt, they've got, they're smashing his windows….and they're gonna fucking hammer him. They've already beat him up twice tonight." Mr Drake continued in much the same vein for some time. After 5.50 minutes he said that one of the males had threatened to kill him. After 5.59 minutes he said "they're beating me fucking nephew up down the street I think. They're beating me nephew up in his front yard, our Stephen, ah fucking, I can't go out they've got bricks and baseball bats and everything". After 6.53 minutes, he said they had attacked his nephew in his front yard and that "they're all coming back to start on me fucking sisters old man now. Oh they've hit him with a baseball bat…They've beat him up, he's laid on the floor. They've beat him up with baseball bats love. He's fighting them….They've beat him up with baseball bats….That's Chris that's me sister's husband. He's sixty year old and they've battered him with baseball bats".

There was a separate 999 call logged at 01:14 made from 58 Shelley Avenue reporting an incident "kicking off" and that the caller expected to "see the blues and twos in like two minutes". The call taker said that it was an "immediate priority" so that the next available patrol would be at the address.

Ms Louise Brewitt dialled 999 at 01:12. She reported that her boyfriend Liam Vick had just been assaulted and that "there's a big gang of them down there….can you send the riot van, we're running upstairs now". The first claimant's name was not mentioned until after 7.34 minutes when she said: "Fucking hell, stop it. Stop it. Fucking leave it. I'm sorry Chris, fucking hell you evil bastards". After 8.04 minutes she said that Chris had been battered with a bat; and at 8.24 minutes told the police that he needed an ambulance.

It can therefore be seen that the first time that the police were notified about a violent attack on the first claimant was at approximately 1.19 hrs, some seven minutes after the 999 calls had been made.

An internal police investigation was made of the incident. The report was critical of the performance of the police. It concluded that there was an 11 minute delay before police officers were deployed to the scene of the incident. It stated:

"In summary whilst there was an initial delay in allocating resources to the incident, it is difficult to ascertain if this was due to the workload of the talk group at the time. However, command centre supervision should have been made aware as soon as the call was received and outside supervision should have been made aware much sooner. The subsequent arrival of ambulance who were unwilling to attend the scene without police being present due to the nature of the incident (this is the correct procedure for ambulance crew)……..

The most significant conclusions from the research carried out is that the 11 minute delay in despatching to log 66 09/09/2006 resulted in a failure to attend within the target time and the first resource attending 26 minutes after the call for service was received. Combined with the ambulance policy at the time, i.e. to stand by until police arrival, and the apparent lack of communication (they rang us for an update after the offenders had left the scene but potentially were not updated accordingly) there was an unnecessary delay in units getting to Mr Sarjantson within a reasonable time."

Summary of the judgment below

The case advanced before the judge was that there had been a breach of the positive duty to take measures to avert a real and immediate risk to life and to avert a real and immediate risk of injury as required respectively by articles 2 and 3 of the Convention. The leading Strasbourg authority on the existence and scope of the positive duty under article 2 is Osman v United Kingdom (2000) 29 EHRR 245. I shall refer to this positive duty as "the Osman duty". The judge struck out the claim on two grounds. First, she said that the Osman duty could not have arisen until approximately 8 minutes after the first call when the first claimant was "identified" for the first time (para 52). By that time, it was too late (para 53). Secondly, even if the first claimant did not have to be "identified" before an Osman duty could arise in his favour, it could not arise on the facts of this case because there was insufficient time between the first call and the time of the assault for the police to attend the incident. It took the first officer 13 minutes to arrive at the scene (the target time being 15 minutes) and "while there was an unexplained delay in the dispatch of officers, had there been an immediate dispatch the officers would not have arrived until after the assault" (para 54).

A third issue

During the course of her oral submissions before us, Ms Barton QC advanced a third reason why the Osman duty did not arise on the facts of this case. She submitted that, once a risk to life or limb has materialised, there is no duty under article 2 or 3 to take operational measures to avert the risk. It is too late. A risk arose when the violence first occurred and that was some time before the assault on the first claimant. This submission was not advanced before the judge.

The grounds of appeal

Mr Southey QC submits that neither of the reasons given by the judge for holding that there was no Osman duty in this case was sound. He says that the judge's conclusions are inconsistent with clear Strasbourg jurisprudence and are wrong in principle. He also submits that the third reason advanced by Ms Barton is wrong in law.

The first issue: is it a condition that there is a real and immediate risk to an identified or identifiable person?

In Osman, the court said:

"115. …It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the 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. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.

It is not in dispute that article 2 may be engaged even if a death has not resulted from the alleged breach. An example of such a case is Makaratzis v Greece (Application no 50385/99, 20 December 2004). That was a case where it was alleged that police officers had used excessive firepower against the applicant during a police chase. The ECtHR said at para 60 in relation to article 2 that it had to examine whether the use of "potentially lethal force" against the applicant was legitimate and whether the operation "was regulated and organised in such a way as to minimise to the greatest extent possible any risk to his life".

Mr Southey relies on a number of authorities in support of his submission that the Osman duty is not limited to circumstances where there is a real and immediate risk to the life of identified persons. In Mastromatteo v Italy (Application No 37703/97, 24 October 2002), the applicant's son was murdered by four criminals, one of whom was on prison leave and another subject to a semi-custodial regime. It was only the conduct of these two criminals that might potentially engage the responsibility of the State for breach of the Osman duty. A complaint was made by the applicant that there had been a breach of the positive duty to protect her son's life in that the Italian authorities had granted prison leave to very dangerous criminals. The criminals did not pose a particular risk to the applicant's son; they posed a risk to the lives of the public at large. But that was not the reason why the ECtHR dismissed the complaint. The claim failed because the court held that there was nothing to alert the authorities to the fact that the release of the two criminals would pose a real and immediate risk to life; and there was nothing to alert them to the need to take additional measures to ensure that, once released, the two did not represent a danger to society (para 76).

The court recognised that, factually, this case differed from Osman in the sense that it was not a case of a risk to an identified individual. They said at para 69:

"The situation examined in the Osman and Paul and Audrey Edwards cases concerned the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act.

The instant case differs from those cases in that it is not a question here of determining whether the responsibility of the authorities is engaged for failing to provide personal protection to A. Mastromatteo; what is at issue is the obligation to afford general protection to society against the potential acts of one or of several persons serving a prison sentence for a violent crime and the determination of the scope of that protection."

The court repeated at para 74 that the relevant risk in the instant case (in distinction from Osman) was "a risk to life for members of the public at large rather than for one or more identified individuals". If that was the reason why the claim was rejected, the court would surely have said so.

The judge in the present case (para 47) distinguished Mastomatteo on the basis that the individuals responsible for the death of Mr Mastomatteo had been in the custody of the state. But in my view, this is not a sound basis for distinguishing Mastomatteo. There is nothing in the reasoning of the court to suggest that the fact that the killers had previously been in the custody of the state was relevant to the test to be applied when deciding whether a duty had arisen under article 2. As Mr Southey points out, the focus of the court was on whether the authorities were aware of a sufficient level of risk (para 76). No reason has been suggested as to why the test to be applied should depend on the status of the person posing the risk. Commentators have accepted that Mastromatteo established that a duty may be owed to the public at large: Law of the European Convention on Human Rights, Harris, O'Boyle and Warbrick, 2^nd edition at p 46. I agree.

There is further support for this view in other Strasbourg case-law, for example, Gorovenky and Bugara v Ukraine (Application nos 36146/05 and 424418/05, 12 January 2012). In that case, the applicants' relatives were shot by an off-duty police officer. They complained that the state had failed to exercise requisite control over the procedure for equipping police officers with a weapon. They alleged that there had been a breach of the Osman duty. At para 32, they summarised the relevant law. The positive duty under article 2 was expressed in broad terms: "…Article 2 enjoins the State…..to take appropriate steps to safeguard the lives of those within its jurisdiction." This may apply "in situations concerning the requirement of personal protection of one or more individuals in advance as the potential target of a lethal act (see Osman…)". It may also apply "in cases raising the obligation to afford general protection to society (see Maiorano and Others v Italy, no 28634/06)". In the latter circumstances, the court said that the positive obligation covers a wide range of sectors and "in principle, will arise in the context of any activity, whether public or not, in which the right to life may be at stake (see Oneryildiz v Turkey [GK] no 48939/99 para 71, ECHR 2004-XII).

The facts in Oneryildiz were that the applicant had lived with his family in a slum bordering on a municipal house-hold refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant's house, killing his close relatives. The applicant claimed that the local authorities were responsible for the accident at the tip and for the death of his relatives. He relied inter alia on article 2 of the Convention. The Grand Chamber of the ECtHR held that there had been a violation of the substantive aspect of article 2. At para 100, the court said that the Turkish authorities knew or ought to have known that there was a real and immediate risk to a number of persons living near the tip. They consequently had "a positive obligation under article 2 to take such preventive operational measures as were necessary and sufficient to protect those individuals". It is true that the court added "especially as they themselves had set up the site and authorised its operation, which gave rise to the risk in question." But I do not read these additional words as being determinative of the court's decision. The important point is that the court held that there was a positive obligation under article 2 to protect a group of individuals who could be identified only as persons living near the tip.

The court in Oneryildiz said at para 69 (and has often said):

"…the Court reiterates, firstly, that its approach to the interpretation of Art 2 is guided by the idea that the object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions to be interpreted and applied in such a way as to make its safeguards practical and effective".