Michael & Ors v South Wales Police & Anor

The non-actionability principle in police negligence remains the general rule: police conduct in investigating or suppressing crime does not ordinarily give rise to a private law duty of care, but that principle yields where the police assume responsibility or a special relationship of proximity is established. By contrast, a positive obligation under the European Convention on Human Rights Article 2 requires knowledge (or constructive knowledge) of a real and immediate risk to an identified life and reasonable preventative measures: whether that threshold is met is a fact-sensitive inquiry and cannot normally be resolved on summary paper unless no realistic prospect of success exists.

The claimants sued the Chief Constables of South Wales and Gwent for damages after Joanna Michael was murdered following 999 calls. The pleadings advanced common law negligence and a breach of the positive obligations under Osman v UK (1998) 29 EHRR 245 / Article 2. The defendants applied to strike out or for summary judgment. The trial judge (HHJ Jarman QC) refused to dispose of the claims summarily and ordered trial on both heads; the police appealed. The Court of Appeal allowed the appeal in respect of the common law negligence claims but, by a majority, refused to grant summary judgment on the Article 2 claim and ordered a trial (Longmore LJ and Richards LJ). Davis LJ would have allowed the appeal on Article 2 as well and granted summary judgment for the defendants. The central issue is whether the facts disclose an arguable assumption of responsibility (escaping Hill non-actionability) and whether the Osman test for Article 2 is satisfied on the available material.

Overall disposition

1. The appeal is allowed in relation to the common law negligence claims; those claims disclose no reasonable cause of action and the claimants have no real prospect of success at common law in respect of negligence arising from the police investigation/suppression function. Judgment for the Chief Constables is entered on the common law claims. (Longmore LJ, Richards LJ, Davis LJ agree.)
2. On the Convention claim under Article 2 the court is divided. Longmore LJ and Richards LJ hold that the Article 2 claim raises triable issues of fact and should proceed to trial. Davis LJ would have determined the Article 2 claim as having no real prospect of success and granted summary judgment for the defendants.

Reasoning on common law negligence

1. The Court reaffirmed the continued force of the House of Lords authorities establishing the non-actionability principle in police negligence (notably Hill v Chief Constable of West Yorkshire [1989] AC 53) and subsequent qualifications in Brooks, Van Colle and Smith. The proper characterisation of Hill is absence of duty of care rather than a broad immunity.
2. The court applied those authorities to hold that routine features of police investigative decision-making and resource/prioritisation judgments fall within non-actionability. Attempts to carve out liability for alleged clerical/administrative failures, systemic failings or failure to follow policy would intrude into that excluded field and cannot be sustained while Hill and its line remain good law.
3. The court considered assumption of responsibility to be the recognised exception to non-actionability. On the facts here the South Wales Police had not assumed responsibility because there was no contact; at most Gwent’s operator expressed an expectation South Wales would call, which did not amount to an enforceable assumption of responsibility to the caller. Accordingly, no arguable duty of care at common law arises. The judge below was therefore wrong to require trial on the negligence claim.

Reasoning on Article 2

1. The court treated Article 2 as a separate and distinct analysis from common law negligence; the non-actionability rule does not negate Convention obligations. The appropriate test for state liability under Article 2 follows the European Court in Osman: it must be established that the authorities knew or ought to have known of a real and immediate risk to the life of an identified individual and that they failed to take reasonable measures within their powers to avoid that risk.
2. Longmore LJ observed that the facts pleaded could conceivably bring the case within Osman (threats on the 999 call, history of domestic violence, and proximate timing), and that resolution of audibility, the urgency and the respective knowledge of the two forces are inherently factual matters for trial rather than summary disposal.
3. Richards LJ concurred, emphasising the marginal character of the claim and the division of knowledge between the two forces as requiring full factual findings at trial to determine the Article 2 issues.
4. Davis LJ dissented on Article 2: applying Osman and the later authorities (Van Colle and Smith), he considered the pleaded facts far short of showing a real and immediate risk; he relied on the claimant’s own filed witness statement from the Gwent operator that she did not hear a threat to kill in real time and concluded there was no real prospect of success nor any compelling reason to proceed to trial.
5. The Court therefore ordered that the common law negligence claims be dismissed, while the Article 2 claim is to proceed to trial (majority). The differing views on Article 2 are recorded and the majority’s outcome controls the order for trial.

Orders

1. Appeal allowed in part. Common law negligence claims dismissed. Article 2 claim remitted for trial (Longmore LJ and Richards LJ). Davis LJ would have allowed the appeal on Article 2 and granted summary judgment for the defendants.

• Court of Appeal (Civil Division): [2012] EWCA Civ 981 — appeal allowed in part; common law negligence claims dismissed; Article 2 claim remitted for trial (majority).
• High Court (Queen's Bench Division): HHJ Jarman QC — claim not struck out and trial ordered on negligence and Article 2 issues (decision under appeal).