Michael & Ors v South Wales Police & Anor

The common-law police non-actionability rule concerns the absence of a duty of care, rather than a blanket immunity. It ordinarily bars negligence claims arising from investigating or suppressing crime, including operational responses to emergency calls. Describing the alleged failure as administrative, systemic or policy-based does not circumvent the rule. An arguable assumption of responsibility remains a recognised exception. Article 2 is analysed separately. The common-law rule cannot prevent a Convention claim. Whether the police knew or ought to have known of a real and immediate risk to an identified person is fact-sensitive. Where the alleged threat, its urgency and the surrounding domestic-violence context make the claim reasonably arguable, summary judgment is inappropriate and the claim should proceed to trial.

Following an emergency call from Joanna Michael reporting domestic violence and threats by her former partner, the call was handled between Gwent Police and South Wales Police. The response was downgraded and officers arrived after a further emergency call, by which time Ms Michael had been killed.

Her estate and family claimed damages against both Chief Constables in common-law negligence and for breach of Article 2. The High Court refused strike-out and summary-judgment applications, holding that the claims raised serious factual and mixed questions, including the audibility of the threat, assumption of responsibility, the response decision, systemic failings and whether there was a real and immediate risk to life. The Chief Constables appealed.

Disposition. The appeal was allowed unanimously on the common-law negligence claim. The Article 2 appeal was dismissed by a majority, with the claim directed to proceed to trial. Davis LJ dissented on that issue and would have granted summary judgment for the defendants.

1. The applications were governed by the low threshold under the Civil Procedure Rules 1998. A claimant need show only a real prospect or chance of success. The case need not probably succeed, although fanciful or imaginary prospects are disregarded.
2. The rule in Hill v Chief Constable of West Yorkshire [1989] AC 53, reformulated in Brooks v Commissioner of Police of the Metropolis and Others [2005] 1 WLR 1495 as absence of a duty rather than immunity, remained good law. It applied because responding to the call involved investigating assault, threats and the suppression of further criminal conduct. Allegations labelled administrative, systemic or policy-related could not evade the rule, and no clear distinction between systemic and operational negligence was available.
3. There was no arguable assumption of responsibility. South Wales Police had no contact with Ms Michael. The Gwent operator’s statement that South Wales Police would want to call her was a routine expectation, not an assurance concerning her safety or a promise that a call would be made.
4. Article 2 was separate from the common-law rule. Under Osman v UK (1998) 29 EHRR 245, the issue was whether the authorities knew or ought to have known of a real and immediate risk to the life of an identified person from criminal acts of a third party, and failed to take measures which might reasonably have avoided it. The alleged audible threat, the identified assailant and the domestic-violence history made the claim reasonably arguable and created factual issues unsuitable for summary determination.
5. Davis LJ considered the facts insufficient to satisfy the stringent Osman test, noting the absence of hindsight and the more extreme facts in Osman, Van Colle and Smith. He would also have refused permission to proceed on the ground of some other compelling reason.

• Court of Appeal (Civil Division) — In [2012] EWCA Civ 981, the appeal was allowed on the common-law negligence claim. By majority, the Article 2 claim was permitted to proceed to trial.
• High Court of Justice, Queen’s Bench Division — His Honour Judge Jarman QC refused the applications to strike out or obtain summary judgment, holding that serious factual and mixed questions required determination at trial.