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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Michael & Ors v The Chief Constable of South Wales Police & Anor [2015] UKSC 2 (28 January 2015) URL: https://www.bailii.org/uk/cases/UKSC/2015/2.html Cite as: [2015] AC 1732, [2015] UKSC 2, [2015] 2 All ER 635, [2015] 2 WLR 343, [2015] HRLR 8, [2015] Med LR 171, [2015] 1 AC 1732 |
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Hilary Term
[2015] UKSC 2
On appeal from: [2012] EWCA Civ 981
Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Reed
Lord Toulson
Lord Hodge
JUDGMENT GIVEN ON
Heard on 28 and 29 July 2014
Appellants Nicholas Bowen QC Duncan Fairgrieve Jude Bunting (Instructed by Martyn Prowel Solicitors) |
Respondents Lord Pannick QC Jeremy Johnson QC (Instructed by South Wales and Gwent Police Joint Legal Services) |
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Interveners (1) Refuge (2) Liberty |
Interveners Karon Monaghan QC Rajeev Thacker (Instructed by Deighton Pierce Glynn Solicitors) |
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Intervener Cymorth i Ferched Cymru (Welsh Women's Aid) |
Intervener Caoilfhionn Gallagher Conor McCarthy (Instructed by Hopkin Murray Beskine Solicitors) |
LORD TOULSON: (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hodge agree)
Introduction
Facts
" he come back and he told the guy to get out of the room, and then he bit my ear really hard and it's like all swollen and all bruised at the moment, and he just said 'I'm going to drop him home and (inaudible) [fucking kill you]'."
"On listening to the recording I can hear the words 'fucking kill you' being said by Joanna. My understanding is assisted by reading these words in the typed transcript. I had certainly heard and understood her previously when she had said he was going to return and 'hit her'. For periods of time throughout the call I was very distracted. As I explained ... all the details were going to have to be retaken by South Wales Police, the call graded and resources deployed from their end not ours At the time I was distracted and under pressure to redirect the call and my memory is that I did not hear 'kill you'. I don't remember her saying this. I was more concerned at the time with the safety of the other man in the company of the assailant."
Issues
(1) If the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group, do the police owe to that person a duty under the law of negligence to take reasonable care for their safety?
I will refer to this as the interveners' liability principle, because it was advanced by Ms Monaghan.
(2) Alternatively, if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, does B owe to A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed?
I will refer to this for convenience as Lord Bingham's liability principle, because that is how Lord Bingham of Cornhill described it in his dissenting judgment in Smith v Chief Constable of Sussex Police, heard jointly with Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225, at para 44. Mr Bowen argued in support of this proposition as an alternative to his principal proposition.
(3) On the basis of what was said in the first 999 call, and the circumstances in which it was made, should the police be held to have assumed responsibility to take reasonable care for Ms Michael's safety and therefore owed her a duty of care in negligence?
This was Mr Bowen's main argument.
(4) On the material before the Court, was there arguably a breach of article 2?
Domestic violence
Case Law
"No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; and the public, who pay for this protection through the rates and taxes, cannot lawfully be called upon to make a further payment for that which is their right. This was laid down by Pickford LJ in the case of Glamorganshire Coal Co v Glamorganshire Standing Joint Committee [1916] 2 KB 206, 229 in the following terms:
'If one party to a dispute is threatened with violence by the other party he is entitled to protection from such violence whether his contention in the dispute be right or wrong, and to allow the police authority to deny him protection from that violence unless he pays all the expense in addition to the contribution which with other ratepayers he makes to the support of the police is only one degree less dangerous than to allow that authority to decide which party is right in the dispute and grant or withhold protection accordingly. There is a moral duty on each party to the dispute to do nothing to aggravate it and to take reasonable means of self-protection, but the discharge of this duty by them is not a condition precedent to the discharge by the police authority of their own duty.'
With this statement of the law I entirely agree "
"I do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property "
"By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded." (para 30)
"it must be established to [the Court's] 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."
"where the police have reason to believe that an individual is threatened with criminal violence they owe a duty to that person to take such action as is in all circumstances reasonable to protect that person."
But such a duty of care would be in direct conflict with Hill. He therefore found himself reluctantly unable to accept Lord Bingham's liability principle.
Issues 1 and 2: did the police owe a duty of care to Ms Michael on receiving her 999 call?
Issue 3: should the police be held to have assumed responsibility to take reasonable care for Ms Michael's safety?
Issue 4: was there arguably a breach of article 2?
Conclusion
LORD KERR:
Introduction
Authorities
"The second stage requirement of proximity continues to cause judicial and academic debate over whether proximity possesses some independent, discernible meaning against which facts in a novel category can be tested, or whether it represents simply a conclusion that the necessary relationship of neighbourhood exists between two parties. For critics, proximity 'has evolved, possibly unavoidably, into an ad hoc device, judicially micro-refined by the particular facts of cases and the particular idiosyncrasies of the judges hearing them' (Brown, 2005, p 162) and 'gives no practical or even theoretical guidance' (p 164). For others, it provides a useful device by which legal reasoning can be structured. It is not a formulaic test, but a 'meaningful definitional element' (Kramer, 2003, p 72), 'a conduit for the application of community standards' about responsibility (p 72), and 'unequivocal as indicators of the presence or absence of a substantial ability on the part of the defendant to cause injury to the claimant' (Witting, 2005, p 39). Furthermore, as a wrapper for a range of diverse factors, some argue that proximity has wrongly allowed policy concerns centring on distributive justice to infiltrate what should be an inquiry focused on the relationship between two parties (Beever, 2007). As a consequence, it is claimed that proximity has opened the door to the balancing of two incommensurable types of argument. But even for those sceptical of a clear-cut distinction between issues of principle and policy, proximity can be 'dangerously misleading' because it masks the inevitable exercise in judicial balancing (Stapleton, 1998, p 61). Criticism of proximity thus comes from all sides of the theoretical spectrum."
"It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained. It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance. Both the identity and the relative importance of the factors which are determinative of an issue of proximity are likely to vary in different categories of case."
"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."
" if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed."
Proximity and fairness
"In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered."
How is a relationship of proximity created?
Was there a relationship of proximity in this case?
Liability for the acts of third parties and for omissions
"Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure, nor does he undertake to use the highest possible degree of care and skill."
Public policy
" . the courts in general ought to think very carefully before resorting to public policy considerations which will defeat a claim that ex hypothesi is a perfectly good cause of action. It has been said that public policy should be invoked only in clear cases in which the potential harm to the public is incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that the court should not enforce a liability which prima facie exists."
These words of Lord Lowry in Spring v Guardian Assurance Plc [1995] 2 AC 296, 326 are entirely pertinent today.
"The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional "
Conclusion
LADY HALE:
"A is not under a duty to take care to prevent harm occurring to B through a source of danger not created by A unless either (i) A has assumed a responsibility to protect B from that danger, (ii) A has a special level of control over that source of the danger, or (iii) A's status creates an obligation to protect B from that danger."
"A person faced with the threat of violence is permitted by law to take reasonable measures of self-protection, but beyond that her only option is to inform the police. In essence, other than reasonably protecting herself, the law obliges her to entrust her physical safety in the police." (Tofaris and Steel, p 18)