Police’s responsibility for acts of Third Parties
On 28 January 2015, the Supreme Court handed down judgment after being asked to consider whether or not a police force is liable for injury and death caused to another by a third party.
In Michael and Other v Chief Constable of South Wales Police and Another  All ER (D) 215, Joanna Michael telephoned 999 after her former partner, Cyron Williams had assaulted her (biting her ear) after coming to her home and finding Joanna there with someone else. Williams left, but said he would return to hit Joanna.
The 999 call was answered by an operator at Gwent Police Force. During the call, which lasted just over three minutes, Joanna is recorded as saying that Williams was going to return to kill her. There is an issue as to whether that was audible to the operator, who said the call would be passed on to South Wales Police who would call her back. The call was automatically graded as requiring an immediate police response, envisaging attendance within about five minutes.
Details of the call were passed to patrol officers in the area, but had been downgraded to a lower level of urgency. At 2.43am, about 15 minutes after the first call, Joanna made a further emergency call to Gwent Police. There was screaming, which then stopped. That call was graded as requiring an immediate response and at 2.51am police officers arrived and found Joanna had been stabbed to death by Williams who has now been convicted of her murder and is serving a life sentence.
Joanna’s family, including two young children, her mother and father, brought two claims against the police:
- In negligence, alleging that Joanna was given insufficient advice to protect herself, and
- a claim under Article 2 of European Convention on Human Rights (‘ECHR’) – the right to life.
The police accepted that there were serious failings (both individual failings and systemic failings) in the handling of the 999 calls. In the months leading to Joanna’s tragic death, South Wales Police had attended at her home on at least four occasions to deal with domestic violence issues between her and Williams.
Nevertheless, the police sought to strike out the claims on the basis that there was no reasonable cause of action, or in the alternative that they had no real prospects of success. At first instance the Judge held that there were serious issues of fact which could only be addressed at trial and therefore dismissed the applications.
The police appealed to the Court of Appeal, claiming that the Judge’s decision in allowing the matter to go to trial was wrong. It was argued that any police activity in the course of investigating or suppressing crime could not be made the subject of an action against them. The police accepted that if there had been either an assumption of responsibility by the police to a victim of, or witness to, a crime, or a particular relationship of close proximity then an action might lie, but that those situations had not applied in this case.
Further, in respect of Article 2 of the (‘ECHR’), it was submitted on behalf of the police that many threats to kill were reported to the police and Joanna’s telephone call had revealed no more real and immediate a threat than any other.
The issues for the Court of Appeal to decide were:
(1) Where a police force is, or ought reasonably to be, aware of a threat of life or physical safety of an identifiable person or member of an identifiable group, do they owe that person a duty to take reasonable care for their safety?
(2) Do the police have a duty to take reasonable steps to prevent an imminent threat to life or physical safety where a person has provided credible evidence that a third party (who can be identified and their whereabouts are known) is an imminent threat to life and safety?
(3) Based on the information given in the telephone calls between Joanna and the emergency operator, should the police be held to have assumed responsibility to take reasonable care for Joanna’s safety, owing her duty of care in negligence?
(4) Had there been a breach of Article 2 of ECHR?
The Judges in the Court of Appeal held (by a majority) that:
(1) English law does NOT impose liability on the police or any other person or public body for injury done to another person by a third party (unless the police had assumed specific responsibility for the victim);
(2) The police did not make any warranties as to how long it would take the police to call Joanna back. The discussion involving the emergency operator did not amount to advice to Joanna to stay in the house; the police could not be held to be negligent on that basis;
(3) Whether or not the emergency operator should have asked Joanna to repeat any comment about her fear that Williams was going to kill her (if the operator had not been able to understand her, as was claimed by the police) is a matter of fact to be determined at a trial of the claim of a breach by the police of Article 2.
The Supreme Court therefore upheld the Court of Appeal’s decision and confirmed that there was no exception to the ordinary application of common law principles to provide protection for victims of domestic violence and/or to extend the common law in harmony with the obligations of the police under Articles 2 and 3 of the ECHR. Further, the family’s Article 2 claim – the failure to protect the right to life – involved questions of fact that should properly be determined at trial.