Smith v Sussex Police

A negligence claim against the police is not barred merely because the claimant is a member of the public or because policing engages public-policy considerations. The Hill principles define a perimeter for liability; they do not confer blanket immunity. Where police are repeatedly alerted to an identified and serious threat to a person’s life, and fail to take elementary protective steps, a duty of care may be arguable. The common-law inquiry into proximity and what is fair, just and reasonable may have to take account of Article 2 rights. The precise relationship between Article 2 and common-law negligence was left open, but a claim should not be struck out where the pleaded facts could establish a sufficiently close relationship and negligent failure to protect life.

The appellant was seriously injured by a former partner after repeatedly reporting explicit threats to kill to Sussex police. He brought a negligence claim, having brought it outside the limitation period for a claim under section 7 of the Human Rights Act 1998. The Brighton County Court, Judge Simpkiss, struck out the claim on the grounds that there was insufficient proximity and that public policy precluded a duty of care. The judge did not strike out the claim for failure to establish causation.

The appeal concerned whether the assumed facts were capable of establishing a duty of care and whether Articles 2 and 8 of the Convention should inform the common-law analysis.

Disposition

1. Appeal allowed. The strike-out order was set aside and the action restored. The assumed facts were capable of proving a duty of care, breach and causation, and the claim was not bound to fail.
2. The policy reasoning in Hill did not create a blanket immunity. It concerned a member of the general public exposed to a common risk and also reflected the question whether liability would be fair, just and reasonable. Brooks preserved the core of that approach, particularly against general duties owed to victims and witnesses during criminal investigations, but did not make the present claim inevitably impossible.
3. The distinction drawn in Alexandrou between a person reporting crime against property and the protected relationship in Osman was not decisive. The court preferred the proximity reasoning in Osman. Swinney showed that sufficiently close proximity may overcome policy objections. Repeated warnings about an identified person’s explicit threats to kill, coupled with the police’s failure to take elementary steps or arrest, made proximity and liability cogently arguable.
4. Article 2 imposed a positive obligation, where the authorities knew or ought to have known of a real and immediate risk to an identified person’s life, to take measures within their powers which might reasonably have been expected to avoid that risk. The court did not finally decide whether that was the common-law test. Pill LJ considered that Article 2 rights should be absorbed into the ordinary negligence inquiry under section 6 of the Human Rights Act 1998; Sedley LJ and Rimer LJ treated the wider issue as open but arguable.
5. Possible distinctions between inefficiency and wilful neglect, and between protection of property and protection of life, were left for trial and future development. No order on costs or other consequential order was stated.

1. Court of Appeal (Civil Division) allowed the appeal and restored the negligence action.
2. Brighton County Court, before His Honour Judge Simpkiss, struck out the claim for insufficient proximity and on public-policy grounds. The causation challenge was rejected and was not pursued by cross-appeal.