Michael and others v The Chief Constable of South Wales Police and another

The police owe a public duty to preserve the peace, but that duty does not ordinarily create a private duty of care to protect individuals from criminals. Negligence for an omission may arise where the police control the wrongdoer or assume responsibility to the claimant, coupled with reliance. Foreseeability, an identifiable victim and an imminent threat do not alone suffice. Receiving a 999 call without assuring the caller when assistance will arrive does not amount to an assumption of responsibility.

Article 2 imposes a distinct operational duty where authorities know, or ought to know, of a real and immediate risk to an identified person's life. Whether an emergency call disclosed such a risk may require factual investigation at trial.

Joanna Michael telephoned 999 after her former partner assaulted her and threatened to return imminently. The call reached Gwent Police and was transferred to South Wales Police without communicating an alleged threat to kill. South Wales Police downgraded the response priority. Ms Michael was killed before officers arrived.

Her parents and children claimed damages in negligence and under the Human Rights Act 1998 for breach of article 2. At first instance, Judge Jarman QC refused to strike out either claim or grant summary judgment. The Court of Appeal, [2012] EWCA Civ 981, unanimously entered summary judgment for the police on negligence but, by a majority, allowed the article 2 claim to proceed.

The claimants appealed on negligence and the police cross-appealed on article 2. The central questions were whether the police owed a private duty of care because of the known threat or an assumption of responsibility, and whether the article 2 claim had a real prospect of success.

1. Disposition. The claimants' appeal on negligence was dismissed by a 5–2 majority. The police cross-appeal was dismissed unanimously, so the article 2 claim could proceed to trial.
2. Ordinary principles of negligence. Lord Toulson, with Lord Neuberger, Lord Mance, Lord Reed and Lord Hodge, held that English law does not generally impose liability for failing to prevent harm caused by a third party. Two established exceptions are material: responsibility arising from control over the wrongdoer, and an assumption of positive responsibility towards the claimant coupled with reliance. The murderer was not under police control.
3. Police public duties. The police duty to preserve the peace and protect the public is owed to the public at large. It does not itself create the proximity required for a private duty of care. This is an application of ordinary principles concerning omissions and public authorities, not a police immunity. The majority declined to create an exception for an identified person facing a specific and imminent threat. Such a rule would produce arbitrary boundaries and potentially significant resource consequences. Any wider public compensation scheme was a matter for Parliament. The majority followed the approach of Smith v Chief Constable of Sussex Police [2008] UKHL 50.
4. Assumption of responsibility. The Gwent call handler promised only to pass the call to South Wales Police. She did not promise a particular response time or instruct Ms Michael to remain at home. The exchange therefore did not create a duty under the principle in Hedley Byrne & Co Ltd v Heller & Partner Ltd [1964] AC 465. Kent v Griffiths [2001] QB 36 was distinguishable because the ambulance service had given misleading assurances of an imminent arrival.
5. Article 2. Whether the call handler ought to have heard the threat to kill, sought clarification and appreciated a real and immediate risk to life raised factual questions suitable for trial. It could not be determined summarily that the article 2 claim had no real prospect of success.
6. Dissent. Lord Kerr and Lady Hale would have allowed the negligence appeal. They considered that proximity could arise where the police knew, or ought to have known, of a specific and imminent threat of serious injury to an identified person and had the means to prevent it. On the assumed facts, they considered that test satisfied and regarded a duty as fair, just and reasonable.

• United Kingdom Supreme Court: The claimants' negligence appeal was dismissed by a 5–2 majority. The police cross-appeal was dismissed unanimously, leaving the article 2 claim to proceed to trial.
• Court of Appeal: [2012] EWCA Civ 981. The court unanimously entered summary judgment for the police on negligence. A majority upheld the decision permitting the article 2 claim to proceed; Davis LJ dissented on that issue.
• High Court: Judge Jarman QC struck out the misfeasance claim by consent but refused to strike out, or grant summary judgment on, the negligence and article 2 claims.