Smith v Sussex Police

The Court of Appeal holds that the common law of negligence can, on appropriate facts, recognise a duty on the police to take reasonable operational steps to protect an identified individual from a real and immediate risk to life, and that Convention rights under Article 2 should inform the incremental development of the duty of care rather than leave victims without any private-law remedy.

The appellant was grievously injured after repeated threats from a named individual. His negligence claim against Sussex Police had been struck out by the county court for want of proximity and on public policy grounds. The Court of Appeal (Sedley, Rimer and Pill LJJ) allowed the appeal and restored the action. The court treated the pleaded facts as sufficient to raise an arguable common-law duty of care where the police knew or ought to have known of a real and immediate risk to life, and held that Article 2 Convention principles are relevant to the common-law inquiry.

Disposition: Appeal allowed; the claim struck out below is restored and may proceed to trial.

1. On the assumed facts the claimant was both a potential victim and a key witness, and the police had sufficient information to make it arguable that they ought to have arrested the assailant promptly. The claim was therefore not plainly doomed to fail and should not have been struck out. [28–31]
2. The common-law tests of proximity and whether it is "fair, just and reasonable" to impose liability remain the governing framework, but they must be applied in the light of developments in Convention law, particularly Article 2, where relevant. Convention values may inform and, where appropriate, shape the incremental development of common-law duties. [21–27, 54–57]
3. The House of Lords decision in Hill v Chief Constable of West Yorkshire establishes an important public-policy perimeter but does not afford police a blanket immunity; subsequent authority (including Osman, Brooks, Swinney and Van Colle) demonstrates that proximity can in some circumstances overcome the Hill policy barrier. Distinctions of fact and proximity are critical. [8–13, 16–20, 30–46]
4. An Article 2 analysis (the Osman formulation requiring knowledge or constructive knowledge of a real and immediate risk to an identified individual and a failure to take reasonable measures) is highly relevant to whether the common law recognises a duty of care in cases involving protection of life; the standard is one of reasonable, proportionate preventive measures judged in context. The court may absorb Article 2 considerations into the negligence inquiry to avoid arbitrary differences of remedy caused by differing limitation regimes. [25–29, 43–57]
5. Practical and policy concerns about creeping liability and the allocation of policing resources must be addressed incrementally and cautiously at trial on proved facts; these concerns do not justify striking out a claim which is arguably sustainable. [30–31, 60]

Order: Appeal allowed; action restored to the county court for trial. Costs and remittal matters are not elaborated in the judgment.

• Court of Appeal (Civil Division): Appeal allowed; action restored to the Brighton County Court for trial. [05/02/2008]
• Brighton County Court: Claim struck out by His Honour Judge Simpkiss on grounds of insufficient proximity and public policy (permission to appeal granted by Mackay J and transferred pursuant to CPR 52.14(i)(a)).