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411

[2014] QB Sarjantson v Chief Constable of Humberside Police (CA)

A Court of Appeal

Sarjantson and another v Chief Constable of


Humberside Police
[2013] EWCA Civ 1252
B 2013 Oct 8; 18 Lord Dyson MR, McFarlane, Sharp LJJ

Negligence  Duty of care  Police  Urgent telephone calls to police indicating


imminent attack on claimant victim by group of men  Police slow in
responding  Victim su›ering serious injury from attackers  Whether prior
knowledge of identity of victim required for duty of care to arise by virtue of
Convention rights  Whether material that violent incident already ongoing 
C Whether relevant that timeous response would have made no di›erence 
Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 2, 3

In the early hours of the morning the rst claimant was attacked by men armed
with baseball bats, sustaining a serious head injury which resulted in short- and long-
term memory loss. The evidence, taken from a number of emergency calls, described
a group of named individuals attacking with the bats a house where they thought a
D named person whom they were seeking was present. Another emergency call
mentioned the individual as having been attacked and named the rst claimant as
also being attacked some seven minutes after the rst call. The attackers were
subsequently convicted of causing grievous bodily harm and violent disorder,
receiving substantial prison sentences. An internal police investigation criticised the
performance of the police and concluded there had been a delay of 11 minutes before
o–cers had been deployed to the scene some 26 minutes after the rst call. The rst
E claimant and his partner, the second claimant, brought proceedings against the
defendant chief constable alleging, inter alia, failure to protect their and their familys
fundamental rights under articles 2 and 3 of the Convention for the Protection of
Human Rights and Fundamental Freedoms1. On the defendants application, the
judge struck out the claim on the ground that it had no prospect of success, holding
that no duty on the police could have arisen until the rst claimant had been expressly
identied, and that, even if the duty had arisen earlier, there had been insu–cient
F time between the rst emergency call and the time of the assault for the police to
attend the incident and prevent the injury.
On the claimants appeal
Held, allowing the appeal, (1) that the scope of the duty to protect a persons life,
under article 2 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, was not limited to circumstances where a real and imminent
risk to the life of an identied or identiable individual was or should have been
G known; that the distinction drawn by the judge was arbitrary, unprincipled and
wrong in law; that the essential question was whether the police had known or ought
to have known of a real and immediate risk to the life of the victim of violence and
whether they had done all that could reasonably be expected of them to prevent it
from materialising, and, where they had been informed about an incident of violent
disorder, it was su–cient that they had known or ought to have known that there
were actual or potential victims of the criminal activity regardless of their names or
H identities; and that, therefore, the duty had arisen when the rst emergency call had
been made, informing the police that there were individuals in the vicinity of the
1
Human Rights Act 1998, Sch 1, Pt I, art 2.1: Everyones right to life shall be protected by
law.
Art 3: see post, para 4.

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street where the men were causing mayhem and where to nd those individuals so as A
to protect them if it was reasonably necessary to do so (post, paras 22—26, 32, 35,
36).
Osman v United Kingdom (1998) 29 EHRR 245 applied.
(2) That whether there had been compliance with the article 2 duty should not be
determined with the benet of hindsight, and so the question was not whether the
real and immediate risk to life would actually have been avoided had steps been
taken to avoid it; that, since there had been no reason at the time when the rst B
emergency call had been made for the police to believe that immediate attendance
was not required and the tone and content of the emergency calls suggested there was
an immediate likelihood that the men would injure or kill one or more persons in the
vicinity, the question whether a response would have made a di›erence was not
relevant to liability; that it made no di›erence that the risk had arisen during an
incident which had already commenced; and that, accordingly, the judges
conclusion had been wrong and the case should go to trial (post, paras 26—28, 31—34, C
35, 36).
Kili v Turkey (2000) 33 EHRR 1357 applied.
Per curiam. (i) If it were established that a timeous response by the police would
have made no di›erence, that would be relevant to quantum, and may mean there is
no right to damages (post, paras 29, 35, 36).
(ii) It will be a matter for the judge to decide whether the police failure amounted
to a breach of the duty bearing in mind all the circumstances of the case, including D
but not limited to the length of the delay, the reasons for it and the gravity of the risk
of which they were made aware by the emergency callers, but hindsight should be
ignored (post, paras 33, 35, 36).

The following cases are referred to in the judgment of Lord Dyson MR:
Gorovenky and Bugara v Ukraine (Applications Nos 36146/05 and 42418/05) E
(unreported) given 12 January 2012, ECtHR
Kili v Turkey (2000) 33 EHRR 1357
Makaratzis v Greece (2004) 41 EHRR 1092, GC
Mastromatteo v Italy Reports of Judgments and Decisions 2002-VIII, p 151, GC
ðneryildiz v Turkey (2004) 41 EHRR 325, GC
Osman v United Kingdom (1998) 29 EHRR 245
F
The following additional case was cited in argument:
Van Colle v United Kingdom (2012) 56 EHRR 839

APPEAL from Judge Karen Walden-Smith sitting in Central London County


Court
By a claim form and particulars of claim issued in the Central London G
County Court on 20 July 2009 the claimants, Christopher Sarjantson (suing
by his litigation friend Tracy Alexandra) and Tracy Alexandra, claimed
damages and/or a declaration against the defendant, the Chief Constable of
Humberside Police, in respect of breaches of their rights under the Human
Rights Act 1998, negligence and misfeasance in public o–ce further to
events on or about 9 September 2006 when the claimants had been attacked
at their home by a group of men, in that in breach of the claimants H
fundamental rights under articles 2 and 3 of the Convention for the
Protection of Human Rights and Fundamental Freedoms the defendants
o–cers had failed to take reasonable steps to protect the claimants from
physical violence by the men.

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[2014] QB Sarjantson v Chief Constable of Humberside Police (CA)
Argument

A By an application the defendant applied to strike out the claim. On


14 November 2012 Judge Walden-Smith granted the application and
ordered the claim to be struck out on the ground that it had no prospect of
success, but granted permission to appeal.
By an appellants notice led on 4 December 2012 the claimants appealed
on the ground that the judge had erred in striking out the claim by
B
(i) requiring that there should have been a real and immediate risk to the life
of an identied individual or individuals, when the obligations which arose
under article 2 were engaged on the facts of the case; (ii) viewing whether
there had been compliance with article 2 by taking account of matters which
could only be known with the benet of hindsight; and (iii) failing to equate
the obligations which arose under article 2 with those which arose under
article 3.
C The facts are stated in the judgment of Lord Dyson MR.

[LORD DYSON MR. We will ask the defendant to open as the claimants
case is clear from the skeleton argument on the states duty, under article 2 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms, to take reasonable steps in certain circumstances to protect an
D
individual.]
Fiona Barton QC (instructed by Plexus Law, Leeds) for the defendant
chief constable.
The overarching duty of the state under article 2 of the Convention for the
Protection of Human Rights and Fundamental Freedoms is to secure the
right to life by putting in place an e›ective system of criminal law provisions
E
to deter the commission of o›ences against the person, backed up by law-
enforcement machinery for the prevention, suppression and punishment of
breaches of those provisions. The duty may also extend in appropriate
circumstances to a positive obligation to take preventative operational
measures to protect an individual whose life is at risk from a third party. The
rst three limbs of the test set out in Osman v United Kingdom (1998)
29 EHRR 245, paras 115, 116 give rise to the existence of the duty, while the
F fourth limb deals with breach of article 2. The European Court of Human
Rights spells out in that case three relevant factors as to why an impossible
and disproportionate burden is not to be placed on the authorities. As is
pointed out in Mastromatteo v Italy Reports of Judgments and Decisions
2002-VIII, p 151, para 69 the test in the Osman case concerns personal
protection of an individual or individuals identiable in advance as the
G potential target of a lethal attack, not the protection of members of the
public at large already the subject of an ongoing attack.
The agreed facts showed that the calls made about the assault resulted at
most in an 11-minute delay before o–cers were dispatched to the scene to
carry out an e›ective investigation leading to the arrest and conviction of the
assailants. The risk to the claimant had already materialised so that the
Osman test relating to the specic duty did not apply, namely, to take
H
measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk: see the Osman case 29 EHRR 245,
para 116. What might apply is the e›ective police investigation to identify
the perpetrators. This element of the test necessarily involves hindsight: the
claimants would have to prove this element to succeed in their claim for

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Argument

damages. Since the risk had in fact already materialised the claim would fail. A
The judge on the strike-out application correctly assessed whether the claim
had any reasonable prospect of success, rightly concluding there was no
opportunity for preventative measures.
The distinct obligation of the state, under article 3 of the Convention,
requiring the taking of necessary measures to ensure that an individual is not
subject to ill-treatment by others, relates to the implementation of e›ective B
criminal law provisions and systems to deter and punish, and does not
concern individual protective measures such as the incident in the present
case. The courts task when considering a breach of article 3 is to examine
whether the practice and application of those systems were su–ciently
awed to amount to a breach of the states obligations. There is no case
similar to the instant case in which the duties under article 2 or article 3 have
been imposed. The facts show that a wholly disproportionate burden was C
placed on the police: see the Osman case, para 116 and the Mastromatteo
case, paras 67—68.
Hugh Southey QC (instructed by Deighton Pierce Glynn) for the
claimants.
Osman v United Kingdom (1998) 29 EHRR 245, para 116 raises the
question as to what is known by the state/authorities of the existence of D
the real and immediate risk to the individual at the time. That implies that
compliance with the duty under article 2 should not be determined with the
benet of hindsight.
A real risk is one which is more than remote and fanciful, and an
immediate one is one which is present and continuing. Importance should
be attached to the right to life under article 2: see para 115 of the Osman E
case. Here the telephone calls showed that the incident had started, but it
was clear that it was going to get worse; the fact that the ght had already
started showed that the risk was more pressing so that the duty to take
reasonable steps was arguably higher. There was no need for the rst
claimant to be named or personally identied: the police had reliable
information regarding the time and place of a serious violent incident. Since
the Convention rights are intended to be e›ective it is hardly surprising that F
the language in the Osman case does not suggest that an individual must be
named for the duty to arise; it is enough that an individual or individuals are
identied. The court in Mastromatteo v Italy Reports of Judgments and
Decisions 2002—VIII, p 151, paras 74, 76 considered and applied the Osman
duty to circumstances where the risk was directed to members of the public
at large, and it focused on whether the authorities were aware of a su–cient G
level of risk. Academic opinion accepts that such a duty may be owed: see
Harris, OBoyle & Warbrick, Law of the European Convention on Human
Rights, 2nd ed (2009), p 46. [Reference was also made to Gorovenky and
Bugara v Ukraine (Applications Nos 36146/05 and 42418/05) (unreported)
given 12 January 2012 and Van Colle v United Kingdom (2012) 56 EHRR
839, para 91.]
H
The test of whether the obligation arises is objective. If it can be shown
that a response would have made no di›erence, that is relevant to quantum
and not to liability. The case shows that the rst claimant was plainly in
need of urgent protection at the relevant time. Authority establishes that
equivalent obligations exist under article 3 to those arising under article 2.

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[2014] QB Sarjantson v Chief Constable of Humberside Police (CA)
Argument

A That is consistent with the fact that both articles protect fundamental rights.
The claim should not have been struck out.

The court took time for consideration.

18 October 2013. The following judgments were handed down.


B LORD DYSON MR
1 This appeal concerns a claim brought in relation to an incident in the
early hours of 9 September 2006 in which the rst claimant was attacked
by a group of young men armed with baseball bats. He sustained a serious
head injury which has caused short- and long-term memory loss. The
assailants were convicted in the Crown Court at Grimsby of causing
C grievous bodily harm and violent disorder and sentenced to substantial
terms of imprisonment. The second claimant is the partner of the rst
claimant.
2 The claimants issued proceedings alleging that the defendant was in
breach of his statutory duty under section 6 of the Human Rights Act
1998 in that, in breach of articles 2 and/or 3 of the Convention for the
D
Protection of Human Rights and Fundamental Freedoms, his police
o–cers had failed, without justication, to take reasonable steps to protect
them and their family from physical violence at the hands of the young
men.
3 By an order dated 14 November 2012 Judge Walden-Smith struck out
the claim on the grounds that it had no prospects of success. The claimants
appeal with the permission of the judge. The appeal raises important points
E as to the scope of articles 2 and 3 of the Convention.
4 Article 2 provides that everyones life shall be protected by law.
Article 3 provides that No one shall be subjected to torture or to inhuman
or degrading treatment or punishment.

The facts
F
5 At 01:11:43 on 9 September 2006 a log was created from a 999 call
made by Mr Ian Drake reporting that a number of named males were
smashing the windows at 17 Dame Kendal Grove [Grimsby] with BB
bats . . . they were after Liam Vick who they have already assaulted
tonight. Later in the same call (after 1.21 minutes) he said:
Youd better get here quick love cos theres gonna be someone here
G
getting hurt, theyve got, theyre smashing his windows . . . and theyre
gonna fucking hammer him. Theyve already beat him up twice
tonight.
Mr Drake continued in much the same vein for some time. After 5.50
minutes he said that one of the males had threatened to kill him. After 5.59
H minutes he said:
theyre beating me fucking nephew up down the street I think.
Theyre beating me nephew up in his front yard, our Stephen, ah
fucking, I cant go out theyve got bricks and baseball bats and
everything.

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Lord Dyson MR

After 6.53 minutes, he said they had attacked his nephew in his front yard A
and that
theyre all coming back to start on me fucking sisters old man now.
Oh theyve hit him with a baseball bat . . . Theyve beat him up, hes laid
on the oor. Theyve beat him up with baseball bats love. Hes ghting
them . . . Theyve beat him up with baseball bats . . . Thats Chris thats
me sisters husband. Hes 60-year old and theyve battered him with B
baseball bats.
6 There was a separate 999 call logged at 01:14 made from 58, Shelley
Avenue reporting an incident kicking o› and that the caller expected to
see the blues and twos in like two minutes. The call taker said that it was
an immediate priority so that the next available patrol would be at the
address. C
7 Ms Louise Brewitt dialled 999 at 01:12. She reported that her
boyfriend Liam Vick had just been assaulted and that theres a big gang of
them down there . . . can you send the riot van, were running upstairs
now. The rst claimants name was not mentioned until after 7.34 minutes
when she said: Fucking hell, stop it. Stop it. Fucking leave it. Im sorry
Chris, fucking hell you evil bastards. After 8.04 minutes she said that Chris
D
had been battered with a bat; and at 8.24 minutes told the police that he
needed an ambulance.
8 It can therefore be seen that the rst time that the police were notied
about a violent attack on the rst claimant was at approximately 1.19 hrs,
some seven minutes after the 999 calls had been made.
9 An internal police investigation was made of the incident. The report
was critical of the performance of the police. It concluded that there was an E
11-minute delay before police o–cers were deployed to the scene of the
incident. It stated:
In summary whilst there was an initial delay in allocating resources to
the incident, it is di–cult 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 F
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 signicant conclusions from the research carried out is that
the 11-minute delay in despatching to log 66 09/09/2006 resulted in a G
failure to attend within the target time and the rst resource attending 26
minutes after the call for service was received. Combined with the
ambulance attendance 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 o›enders 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. H

Summary of the judgment below


10 The case advanced before the judge was that there had been a breach
of the positive duty to take measures to avert a real and immediate risk to

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[2014] QB Sarjantson v Chief Constable of Humberside Police (CA)
Lord Dyson MR

A life and to avert a real and immediate risk of injury as required respectively
by articles 2 and 3 of the Convention. The leading Strasbourg authority on
the existence and scope of the positive duty under article 2 is Osman v
United Kingdom (1998) 29 EHRR 245. I shall refer to this positive duty as
the Osman duty. The judge struck out the claim on two grounds. First,
she said that the Osman duty could not have arisen until approximately 8
B
minutes after the rst call when the rst claimant was identied for the
rst time: para 52. By that time, it was too late: para 53. Secondly, even if
the rst claimant did not have to be identied before an Osman duty
could arise in his favour, it could not arise on the facts of this case because
there was insu–cient time between the rst call and the time of the assault
for the police to attend the incident. It took the rst o–cer 13 minutes to
arrive at the scene (the target time being 15 minutes) and while there was
C an unexplained delay in the dispatch of o–cers, had there been an
immediate dispatch the o–cers would not have arrived until after the
assault: para 54.

A third issue
11 During the course of her oral submissions before us, Ms Barton QC
D advanced a third reason why the Osman duty did not arise on the facts of
this case. She submitted that, once a risk to life or limb has materialised,
there is no duty under articles 2 or 3 to take operational measures to avert
the risk. It is too late. A risk arose when the violence rst occurred and that
was some time before the assault on the rst claimant. This submission was
not advanced before the judge.
E
The grounds of appeal
12 Mr Southey QC submits that neither of the reasons given by the
judge for holding that there was no Osman duty in this case was sound. He
says that the judges conclusions are inconsistent with clear Strasbourg
jurisprudence and are wrong in principle. He also submits that the third
reason advanced by Ms Barton is wrong in law.
F

The rst issue: is it a condition that there is a real and immediate risk to an
identied or identiable person?
13 In the Osman case 29 EHRR 245, paras 115—116 the court said:
115. . . . It is thus accepted by those appearing before the court that
G article 2 of the Convention may also imply in certain well-dened
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 di–culties involved in
policing modern societies, the unpredictability of human conduct and the
H
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

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Lord Dyson MR

from materialising. Another relevant consideration is the need to ensure A


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 o›enders 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 B
authorities have violated their positive obligation to protect the right to
life in the context of their above-mentioned duty to prevent and suppress
o›ences 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 identied 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 C
reasonably, might have been expected to avoid that risk. The court does
not accept the Governments 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 D
Convention and the obligations of contracting states under that article to
secure the practical and e›ective 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 su–cient 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 E
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.
14 It is not in dispute that article 2 may be engaged even if a death has
not resulted from the alleged breach. An example of such a case is
Makaratzis v Greece (2004) 41 EHRR 1092. That was a case where it was F
alleged that police o–cers had used excessive repower against the applicant
during a police chase. The European Court of Human Rights said, at
para 60, in relation to article 2 that it had to examine whether the use of
potentially lethal force against the applicant was legitimate and whether
the operation was regulated and organised in such a way as to minimise to
the greatest extent possible any risk to his life. G
15 Mr Southey relies on a number of authorities in support of his
submission that the Osman duty is not limited to circumstances where there
is a real and immediate risk to the life of identied persons. In Mastromatteo
v Italy Reports of Judgments and Decisions 2002-VIII, p 151 the applicants
son was murdered by four criminals, one of whom was on prison leave and
another subject to a semi-custodial regime. It was only the conduct of these
H
two criminals that might potentially engage the responsibility of the state for
breach of the Osman duty. A complaint was made by the applicant that
there had been a breach of the positive duty to protect her sons life in that
the Italian authorities had granted prison leave to very dangerous criminals.
The criminals did not pose a particular risk to the applicants son; they posed

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[2014] QB Sarjantson v Chief Constable of Humberside Police (CA)
Lord Dyson MR

A a risk to the lives of the public at large. But that was not the reason why the
European Court of Human Rights dismissed the complaint. The claim failed
because the court held that there was nothing to alert the authorities to the
fact that the release of the two criminals would pose a real and immediate
risk to life; and there was nothing to alert them to the need to take additional
measures to ensure that, once released, the two did not represent a danger to
society: para 76.
B
16 The court recognised that, factually, this case di›ered from the
Osman case 29 EHRR 245 in the sense that it was not a case of a risk to an
identied individual. They said, at para 69:
The situation examined in the Osman and [Edwards v United
Kingdom (2002) 35 EHRR 487] cases concerned the requirement of
personal protection of one or more individuals identiable in advance as
C
the potential target of a lethal act. The instant case di›ers 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 a›ord
general protection to society against the potential acts of one or of several
persons serving a prison sentence for a violent crime and the
D determination of the scope of that protection.
17 The court repeated, at para 74, that the relevant risk in the instant
case (in distinction from the Osman case) was a risk to life for members of
the public at large rather than for one or more identied individuals. If that
was the reason why the claim was rejected, the court would surely have said
so.
E 18 The judge in the present case (para 47) distinguished the
Mastromatteo case on the basis that the individuals responsible for the death
of Mr Mastromatteo had been in the custody of the state. But in my view,
this is not a sound basis for distinguishing the Mastromatteo case. There is
nothing in the reasoning of the court to suggest that the fact that the killers
had previously been in the custody of the state was relevant to the test to be
applied when deciding whether a duty had arisen under article 2. As
F
Mr Southey points out, the focus of the court was on whether the authorities
were aware of a su–cient level of risk: para 76. No reason has been
suggested as to why the test to be applied should depend on the status of the
person posing the risk. Commentators have accepted that the Mastromatteo
case established that a duty may be owed to the public at large: Harris,
OBoyle & Warbrick, Law of the European Convention on Human Rights,
G 2nd ed (2009), p 46. I agree.
19 There is further support for this view in other Strasbourg case law,
for example, Gorovenky and Bugara v Ukraine (Applications Nos 36146/05
and 42418/05) (unreported) given 12 January 2012. In that case the
applicants relatives were shot by an o›-duty police o–cer. They
complained that the state had failed to exercise requisite control over the
procedure for equipping police o–cers with a weapon. They alleged that
H
there had been a breach of the Osman duty. At para 32, they summarised
the relevant law. The positive duty under article 2 was expressed in broad
terms: article 2 enjoins the state . . . to take appropriate steps to safeguard
the lives of those within its jurisdiction. This may apply in situations
concerning the requirement of personal protection of one or more

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Lord Dyson MR

individuals identiable in advance as the potential target of a lethal act (see A


Osman . . .). It may also apply in cases raising the obligation to a›ord
general protection to society (see Maiorano v Italy (Application
No 28634/06) (unreported) given 15 December 2009, para 107). In the
latter circumstances, the court said that the positive obligation covers a wide
range of sectors and in principle, will arise in the context of any activity,
whether public or not, in which the right to life may be at stake (see
B
ðneryildiz v Turkey (2004) 41 EHRR 325, para 71).
20 The facts in ðneryildiz v Turkey (2004) 41 EHRR 325 were that the
applicant had lived with his family in a slum bordering on a municipal
household refuse tip. A methane explosion at the tip resulted in a landslide
which engulfed the applicants house, killing his close relatives. The
applicant claimed that the local authorities were responsible for the accident
at the tip and for the death of his relatives. He relied inter alia on article 2 of C
the Convention. The Grand Chamber of the European Court of Human
Rights held that there had been a violation of the substantive aspect of
article 2. At para 100, the court said that the Turkish authorities knew or
ought to have known that there was a real and immediate risk to a number
of persons living near the tip. They consequently had a positive obligation
under article 2 of the Convention to take such preventive operational
D
measures as were necessary and su–cient to protect those individuals. It is
true that the court added especially as they themselves had set up the site
and authorised its operation, which gave rise to the risk in question. But
I do not read these additional words as being determinative of the courts
decision. The important point is that the court held that there was a positive
obligation under article 2 to protect a group of individuals who could be
identied only as persons living near the tip. E
21 The court in the Oneryildiz case said, at para 69 (and has often said):
the court reiterates, rstly, that its approach to the interpretation of
article 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 e›ective. F

22 The source of the judges conclusion in the present case that the
Osman duty is owed where there is or ought to be known to be a real and
imminent risk to the life of an identied individual or individuals is
para 116 of the judgment in the Osman case 29 EHRR 245 itself. But this
choice of words by the court in the Osman case was heavily inuenced by
the facts of that case. The question there was whether the police knew or G
ought to have known that the lives of the Osman family were at real and
immediate risk from Mr Paget-Lewis. The individuals whose lives were at
risk were identied. The court did not have to explore the boundaries of
the scope of the duty and did not purport to do so in paras 115 and 116 of
its judgment. The subsequent jurisprudence to which I have referred
shows that the European Court of Human Rights has not limited the scope
H
of the article 2 duty to circumstances where there is or ought to be
known a real and imminent risk to the lives of identied or identiable
individuals.
23 Leaving the case law on one side, I can nd no reason in principle for
so limiting the scope of the duty. Neither the judge nor Ms Barton suggested

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A any reason for doing so. Such a limitation would be inconsistent with the
idea that the provisions of the Convention should be interpreted and applied
in such a way as to make its safeguards practical and e›ective.
24 Take the facts of the present case. On the judges approach, the duty
arose (subject to the restrictions and safeguards mentioned by the court in
the Osman case) when the police knew or ought to have known that there
was a real and imminent risk to the life of the rst claimant; but no such duty
B
arose when they knew or ought to have known that there was a real and
immediate risk to the lives of unidentied individuals who were in the
vicinity of the assailants. But they did know that there were individuals in
the vicinity of the street where the youths were causing mayhem. They knew
where to nd them in order to protect them if it was reasonably necessary to
do so.
C 25 In my view, the distinction drawn by the judge is arbitrary and
unprincipled and is unsupported by the Strasbourg jurisprudence. The
essential question in a case such as this is whether the police knew or ought
to have known that there was a real and immediate risk to the life of the
victim of the violence and whether they did all that could reasonably be
expected of them to prevent it from materialising. Where the police are
informed about an incident of violent disorder, the Osman duty may arise
D
regardless of whether they know or ought to know the names or identities of
actual or potential victims of the criminal activity. It is su–cient that they
know or ought to know that there are such victims.

Second issue: was there no breach of the duty because there was insu–cient
time for the police to attend the incident?
E 26 In my view, the judge erred on this issue for the reasons given by
Mr Southey. The duty to provide protection arose at the time when the rst
emergency call was made. At that time, it was impossible to know whether
and, if so, how quickly an assault would take place. There was therefore no
reason at that time for the police to believe that immediate attendance was
not required. Indeed, the tone and contents of the 999 calls suggested that
F
there was every reason to think that there was an imminent likelihood that
the young men would injure or kill one or more persons who were in the
vicinity.
27 As the court made clear at para 116 in the Osman case, it must be
established that the police knew or ought to have known at the time of the
existence of a real risk and immediate risk to the life of the individual from
the criminal acts of a third party. This implies that compliance with article 2
G should not be determined with the benet of hindsight. This is conrmed by
the court saying at para 116 and that [the authorities] failed to take
measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk. As Mr Southey points out, if it had
been appropriate to apply hindsight, the question would have been whether
the risk would actually have been avoided had steps been taken to avoid it.
But that was not the question considered by the court.
H
28 The fact that a response would have made no di›erence is not
relevant to liability. That this is the correct approach is illustrated by
decisions of the European Court of Human Rights such as Kili v Turkey
(2000) 33 EHRR 1357. In that case, the applicant relied inter alia on
article 2 and complained that his brother had been killed by or with the

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connivance of the security forces. The court considered whether the A


authorities did all that could reasonably be expected of them to avoid
the risk to the brothers life. At para 76, the court held that there had been
an absence of any operational measures of protection. This was despite
the fact that the Government disputed that it could have e›ectively provided
protection against attacks. The court said that a wide range of measures was
available which would have assisted in minimising the risk to the brothers B
life. It concluded, at para 77, that the authorities failed to take reasonable
measures available to them to prevent a real and immediate risk to the
brothers life. Accordingly, there had been a violation of article 2. It is
noteworthy that there was no consideration of whether the steps that should
have been taken would in fact have saved the brothers life.
29 I accept that, if it were established that a timeous response by the
police in the present case would have made no di›erence, this would be C
relevant to quantum. A nding that a response would have made no
di›erence may mean that there is no right to damages. But it is not relevant
to liability.

Third issue: can the duty arise once the risk has materialised?
30 Ms Barton draws attention to para 116 of the judgment in the D
Osman case 29 EHRR 245 and in particular the reference to the
requirement to take operational measures to prevent [the] risk from
materialising. On the facts of the present case she submits that, once the
violent incident had started, it was too late to prevent the risk from
materialising. It had already materialised. Accordingly, there was no duty
to act.
E
31 It goes without saying that, if the police are told that a person has
been killed, it is too late to take measures to prevent the risk of death
materialising in that case. But if the police are told that there is a gang which
is threatening and/or committing acts of violence and the incident is
ongoing, I can see no basis for saying that there is no duty to take operational
measures (if these are reasonably required) to avert the risk of further
violence. There is no support for such a proposition in the Strasbourg F
jurisprudence and in my view it is inconsistent with the idea which underpins
the Osman duty. If the police are or ought to be aware that there is a real
and immediate risk to a persons life, they are under a duty to take
reasonable measures to prevent the risk from materialising; and it makes no
di›erence that the risk arises during an incident which has already
commenced. G

Conclusion
32 The issues raised in this appeal are of considerable importance for
the police. For the reasons that I have given, the judge reached the wrong
conclusion on the rst and second issues and I reject the submissions made
by Ms Barton in relation to the third issue.
H
33 It does not, however, follow that the claim for damages must
succeed. I would allow the appeal and direct that the case go to trial.
Neither party objects to the trial being conducted by Judge Walden-Smith.
In principle, an Osman duty was capable of arising in this case. The facts
strongly suggest that to have required the police to respond in accordance

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A with the target of 15 minutes would not have imposed an unreasonable or


disproportionate burden on them. It will, however, be a matter for the judge
to decide whether the police failure in this case amounted to a breach of the
duty bearing in mind all the circumstances of the case including but not
limited to (i) the length of the delay, (ii) the reasons for the delay, and (iii) the
gravity of the risk of which they were made aware by the 999 callers. But
hindsight should be ignored.
B
34 Accordingly, I would allow the appeal.

MCFARLANE LJ
35 I agree.

SHARP LJ
C 36 I also agree.
Appeal allowed with costs in Court of
Appeal and below.
Assessment of claimants publicly
funded costs.
Case remitted for trial to county court.
D Permission to appeal refused.
ROBERT RAJARATNAM, Barrister

' 2014 The Incorporated Council of Law Reporting for England and Wales