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Michael & Ors v The Chief Constable of South Wales Police & Anor, heard 28 July 2014.

Court of Appeal judgment: [2012] EWCA Civ 981

Background

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 was convicted of murder. Her family and estate brought claims against the appellants for negligence at common law and a failure to protect her life in breach of the rights conferred by the ECHR, art 2. The High Court held that there were serious issues of fact that necessitated a hearing of both claims. The police appealed against this decision.

Court of Appeal Decision

The Court of Appeal judges agreed on the common law negligence claim but took slightly different views to one other on the ECHR, art 2 claim. Lord Justice Longmore held that it was “neither necessary nor appropriate” that the factual inquiries the High Court judge envisaged – including whether the Gwent Police operator heard the word “kill” and the reasons for the downgrading of the emergency status of the police responses – should be determined at trial as part of a claim for common law negligence [1]. He therefore directed that summary judgment should be granted to the appellants on the common law negligence claim. Lord Justice Richards and Lord Justice Davis agreed.

However, distinguishing the present case from the leading case of Osman v UK (1998) 29 EHRR 245 [2], Lord Justice Longmore held that the claim for a breach of the ECHR, art 2 should be established at trial and “not as a result of a paper exercise without witnesses” [3]. His reasons included that “there could arguably be a breach of Article 2 on the facts of the present case where it is clear, on the claimant’s case, that there was on any view a threat to injure from an already identified third party which may have been the culmination of a history of domestic violence” [4].

Lord Justice Richards agreed. However, Lord Justice Davis stated that the ECHR, art 2 claim should also be rejected and summary judgment granted in favour of the police. His reasons for this view included that the facts alleged in the present case did not show realistic prospects of satisfying the stringent test set out in Osman, namely that the positive obligation arising under ECHR, art 2 is breached only if the authorities knew or ought to have known, on the facts at the relevant time, that there existed a real and immediate risk to the life of an identified individual [5].

Appeal to the Supreme Court

The appeal was heard by the Supreme Court on 28 July 2014, when it considered whether it is arguable that the police were liable in negligence and / or under ECHR, art 2. Historically, the courts have been reluctant to impose liability on the police in respect of common law negligence or ECHR, art 2. This is based on the view that the police need to be free to carry out their prime function of preventing the commission of crime, protecting life and property [6]. Therefore, it will be interesting to see how the Supreme Court approaches this case. In particular, given the difference between the views of Lord Justice Longmore and Lord Justice Davis on the ECHR, art 2 claim, it will be interesting to find out the Supreme Court’s conclusions on the point.

[1] Para 23, Michael (Administratrix of the Estate of Miss Joanna Louise Michael (Deceased)) & Ors v The Chief Constable of South Wales Police & Anor [2012] EWCA Civ 981

[2] Osman v UK (1998) 29 EHRR 245 (BAILII transcript)

[3] Para 30, [2012] EWCA Civ 981

[4] Para 28, [2012] EWCA Civ 981

[5] Para 34, [2012] EWCA Civ 981

[6] Para 10, [2012] EWCA Civ 981 in reference to Lord Steyn at para 30 in Brooks v Commissioner of Police of the Metropolis and Others [2005] UKHL 24