Case Comment: Michael & Ors v Chief Constable of South Wales Police & Anor  UKSC 2
20 Friday Feb 2015
Ms Michael had phoned police from home just before half past two in the morning on 5 August 2009. However, her mobile phone signal was picked up across the county border by Gwent Police, rather than South Wales Police. Ms Michael informed the Gwent Police operator that her ex-partner had found her with someone else, bitten her and threatened to hit her. Later in the conversation, she said he was going to come back and kill her, but there was an issue as to whether the operator heard this. The operator told Ms Michael that the call would be passed to South Wales Police, who would call her back. The operator then spoke to her counterpart, Mr Gould, in the emergency control room at South Wales Police and said that the ex-partner had threatened to hit Ms Michael but did not mention the threat to kill. The information was sent to officers on mobile patrol by 2.30am but it had not been graded as needing an immediate response, rather as the next level of priority down. It was alleged that the decision to downgrade the priority level was made by Mr Gould. The officers spent some time collecting additional information. At 2.43am, Gwent Police received another call from Ms Michael. Screaming was heard but it stopped. The call was graded as needing an immediate response but when officers arrived at 2.51am, Ms Michael had been murdered. Ms Michael’s ex-partner pleaded guilty to murder and was sentenced to life imprisonment.
Ms Michael’s family and estate brought claims against the Chief Constables of the Gwent Police and the South Wales Police for negligence at common law and a failure to protect her life in breach of the rights conferred by the ECHR, art 2. The police sought a strike out or summary judgment.
The High Court refused to grant a strike out or summary judgment, holding that there were serious issues of fact that necessitated a hearing of both claims.
The Court of Appeal judges held that summary judgment should be granted to the police on the common law negligence claim.
However, distinguishing the present case from the leading case of Osman v UK (1998) 29 EHRR 245, Lord Justice Longmore held that the claim for a breach of the ECHR, art 2 should go to trial. Lord Justice Richards agreed, however Lord Justice Davis dissented.
Ms Michael’s family and estate appealed against the decision to grant summary judgment on the common law negligence claim. The police cross-appealed against the decision that the ECHR, art 2 claim should proceed to trial.
Supreme Court Judgment
The Supreme Court handed down its judgment on 28 January 2015. It dismissed the appeal by a majority of 5 to 2 and unanimously dismissed the police’s cross-appeal.
The Supreme Court considered four key issues. Issues 1 and 2 were whether the police owed a duty of care to Ms Michael on receiving her 999 call. It was submitted to the court that the police should owe a duty of care in negligence where they 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. This is also called the intervener’s liability principle. The Supreme Court rejected this argument for a number of reasons. First, Lord Toulson stated that it is hard to see why the duty of care should be limited to particular potential victims and not others, or to certain types of injury and harm and not others. Second, it is speculative whether the addition of potential liability would make a practical difference to the conduct of police officers and support staff in domestic violence cases, and it is difficult to see that it would be in the public interest for the police to determine their priorities according to the risk of being sued. Third, there would be potentially significant financial implications for the police if they were liable to compensate victims of violence on the basis that they should have prevented it. Fourth, it is not necessary to develop the law of negligence to comply with the ECHR, arts 2 and 3, particularly as ECHR claims have different objectives from civil actions such as negligence.
Another key argument submitted to the court was that the police should owe a duty of care in negligence where a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his or her life or personal safety, also known as Lord Bingham’s liability principle. Lord Toulson rejected this argument for the same reasons as the broader intervener’s liability principle, and for the additional reasons that it would be unsatisfactory to draw dividing lines according to whether the threat is reported by the victim or by someone else, or whether the threat is credible and imminent or credible but not imminent, or whether the whereabouts of the person making the threat are known or unknown, or whether the threatened violence was to the victim’s person or property or both. Further, he stated it is for Parliament to determine whether there should be a compensation scheme for victims of certain types of crime and what its scope should be.
Issue 3 concerned whether the police should be held to have assumed responsibility to take reasonable care for Ms Michael’s safety. Lord Toulson held that the argument that what the Gwent call handler said to Ms Michael gave rise to an assumption of responsibility was untenable and the only assurance given to Ms Michael was that the call would be passed to South Wales Police. The call handler did not instruct her to remain in the house or give any promise as to how quickly the police would respond.
Issue 4 concerned whether there was arguably a breach of the ECHR, art 2. Lord Toulson held that the question of whether the Gwent call handler ought to have heard Ms Michael say that her ex-partner was threatening to “kill her” is a question of fact and accordingly it should be investigated at trial.
Lord Kerr and Lady Hale disagreed with the majority ruling to dismiss the appeal by Ms Michael’s family and estate. Lord Kerr would have allowed the appeal, stating that there should be a sufficient proximity of relationship where certain elements exist, so as to impose a duty on the police in negligence. Those elements are: (i) a closeness of association between the claimant and defendant, which may for example come into existence where information is communicated to the defendant; (ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken; (iii) the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances; and (iv) the defendant should be able to provide for the intended victim’s protection without unnecessary danger to him or herself. Lord Kerr held that on the facts of this particular case, there was clearly a sufficient proximity of relationship between Ms Michael and the police.
Lord Kerr further noted that the general common law ground that members of the public are not required to protect others from third party harm is not appropriate to apply to the police, who have been empowered to protect the public from harm.
Lady Hale supported Lord Kerr’s analysis. She stated that the policy reasons advanced against the imposition of a duty in negligence in cases like this one have largely diminished, due to the fact that the police already owe a common law, positive duty in public law to protect members of the public from harm caused by third parties and by the existence of human rights claims.
The Supreme Court’s judgment has attracted much discussion around whether or not the police should owe a duty of care in negligence in such situations, with some commentators pointing to the fact that several other professions have had their “immunity” from negligence claims restricted or removed. Campaigners like Refuge also argue that such protection from negligence claims is preventing improvements in police practice which could help in the fight against domestic violence, as detailed in this Guardian article.
Both Lord Kerr and Lady Hale gave strong dissenting judgments. One of the points advanced in support of the police not owing a duty of care in negligence is that to impose liability may lead to the police determining its priorities according to fear of being sued (see commentary and Lord Toulson’s judgment at para 121). However, in his dissenting judgment, Lord Kerr appears to dismiss this, setting “the fundamental principle that legal wrongs should be remedied” against the “complete absence of evidence to support the claims of dire consequences should liability for police negligence be recognised”. Lord Kerr also makes one of the key arguments for imposing liability on the police when he states that the police should not be exempted from liability to protect others from third party harm in the same way that members of the public are exempted from this duty, because it is the police force’s duty to provide precisely that kind of protection: it is “the essential and critical obligation of the police force”.
The fact that (i) Lord Kerr and Lady Hale gave such powerful dissenting judgments and (ii) the court unanimously agreed that the family is able to pursue its ECHR, art 2 claim means that Ms Michael’s family can be said to have had a partial success, as touched on in this BBC News article, and suggests that change may eventually come, giving hope to families of future victims that they may succeed in their claim.
Victoria Durham is a Legal Information Officer at Matrix. Victoria previously worked as a solicitor specialising in commercial dispute resolution. Before attending law school, she worked as a journalist in the music industry and news.