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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sarjantson v Humberside Police  EWCA Civ 1252 (18 October 2013)
Cite as:  Med LR 63,  1 QB 411,  EWCA Civ 1252,  1 All ER 960,  WLR(D) 393,  QB 411,  3 WLR 1540
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ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Her Honour Judge Walden-Smith
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
LADY JUSTICE SHARP
|- and -
|THE CHIEF CONSTABLE OF HUMBERSIDE POLICE
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Fiona Barton QC (instructed by Plexus Law) for the Respondent
Hearing date: 8 October 2013
Crown Copyright ©
Master of the Rolls:
"In summary whilst there was an initial delay in allocating resources to the incident, it is difficult to ascertain if this was due to the workload of the talk group at the time. However, command centre supervision should have been made aware as soon as the call was received and outside supervision should have been made aware much sooner. The subsequent arrival of ambulance who were unwilling to attend the scene without police being present due to the nature of the incident (this is the correct procedure for ambulance crew)……..
The most significant conclusions from the research carried out is that the 11 minute delay in despatching to log 66 09/09/2006 resulted in a failure to attend within the target time and the first resource attending 26 minutes after the call for service was received. Combined with the ambulance policy at the time, i.e. to stand by until police arrival, and the apparent lack of communication (they rang us for an update after the offenders had left the scene but potentially were not updated accordingly) there was an unnecessary delay in units getting to Mr Sarjantson within a reasonable time."
Summary of the judgment below
A third issue
The grounds of appeal
The first issue: is it a condition that there is a real and immediate risk to an identified or identifiable person?
"115. …It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.
"The situation examined in the Osman and Paul and Audrey Edwards cases concerned the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act.
The instant case differs from those cases in that it is not a question here of determining whether the responsibility of the authorities is engaged for failing to provide personal protection to A. Mastromatteo; what is at issue is the obligation to afford general protection to society against the potential acts of one or of several persons serving a prison sentence for a violent crime and the determination of the scope of that protection."
"…the Court reiterates, firstly, that its approach to the interpretation of Art 2 is guided by the idea that the object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions to be interpreted and applied in such a way as to make its safeguards practical and effective".
Second issue: was there no breach of the duty because there was insufficient time for the police to attend the incident?
Third issue: can the duty arise once the risk has materialised?
Lord Justice McFarlane:
Lady Justice Sharp: