LXD & Ors, R (on the application of) v Merseyside Police

Article 2 requires preventive operational measures only where the authorities knew or ought to have known of a real and immediate risk to an identified person’s life. The threshold is stringent. A conditional threat, arrests, bail conditions and continuing risk do not, without more, establish such a risk. Article 2 protects life but does not impose a general duty to rehouse claimants where safe alternative accommodation is available.

In claims involving disputed facts about the existence or immediacy of a threat, the Administrative Court’s fact-finding procedures may be unsuitable. Consideration should be given to commencing Part 7 proceedings or transferring the claim under CPR Part 54.20.

The claimants, a mother and her three young children, sought judicial review of the Chief Constable’s alleged failure to protect them from threats to kill associated with the mother’s former partner. They relied on articles 2, 3 and 8 of the European Convention on Human Rights, irrationality and related public-law grounds.

A threat had been made on 17 January 2019. The police investigated, arrested two suspects, imposed bail conditions and assessed that the claimants could remain safe away from their home, with protective measures. Later alleged incidents were investigated but their connection with the original threat could not be established. The central issue was whether the evidence demonstrated a real and immediate threat to life requiring further protective measures.

1. Permission and outcome. Permission to apply for judicial review was granted on all grounds, but the claim was dismissed on the merits.
2. Article 2. Article 2 may impose a positive operational obligation where the authorities knew or ought to have known of a real and immediate risk to the life of an identified person: Osman v United Kingdom [1998] 29 EHRR 245. The words were ordinary ones. A continuing risk could be immediate, but the threshold was high and stringent: Rabone v Pennine Care NHS Trust [2012] UKSC 2; In Re Officer L [2007] UKHL 36; Colle v Chief Constable of Hertfordshire [2008] UKHL 50.
3. The January threat was conditional. The police treated it seriously, investigated it properly, arrested the suspected perpetrators and imposed relevant bail conditions. The later reports of a following vehicle and men in balaclavas were investigated, but the evidence did not establish that they were connected with the original threat. The claimants’ visits to the former home without incident, the absence of recent supporting intelligence and the arrests meant that no real and immediate risk to life was proved.
4. Article 2 imposed no duty to provide housing where other accommodation was available. Bail conditions, a threat-assessment marker and evidence of risk did not themselves prove a real and immediate threat. The police’s failure to classify the threat as “medium” under its internal policy did not affect the practical measures taken or the outcome.
5. Articles 3 and 8. There were no egregious and significant investigative errors for the purposes of article 3, applying Commissioner of Police of the Metropolis v DSD [2018] UKSC 11. No breach of article 8 was established. The children’s best interests had been properly considered, as required by ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.
6. The police decisions were rational, took account of relevant considerations and were reached after anxious scrutiny. Sufficient information had been provided. The court identified no basis for quashing past assessments, particularly because the situation had evolved.
7. Where a claim alleging failure to protect against a real and immediate threat involves substantial factual disputes, Part 7 proceedings or transfer under CPR Part 54.20 should be considered. Judicial review procedures are designed for speedy legality review and are not well suited to resolving disputed facts. The court also observed that mediation would have been appropriate.

First-instance judicial review proceedings in the High Court (Administrative Court). Permission was granted, but the substantive claim was dismissed.