Factual and Procedural Background
In August 2009 the deceased (“Victim”) telephoned 999 to report that her former partner had assaulted her and threatened to kill her. The call was answered by a civilian call-handler employed by Gwent Police but related to an address within the South Wales Police area. Gwent Police graded the call for an immediate response, yet when it was passed to South Wales Police the threat to kill was omitted and the priority was reduced, allowing up to one hour to attend. Fourteen minutes later the Victim rang 999 again; she was heard screaming before the line went dead. Officers arrived eight minutes after that second call and found that she had been stabbed to death. Her assailant was arrested and later convicted of murder.
The Victim’s parents and two children (“Claimants”) sued the Chief Constables of the two police forces (“Defendants”) seeking damages for negligence, under the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934, and for breach of Article 2 ECHR via the Human Rights Act 1998. At first instance, Judge [Last Name] refused to strike out the negligence and Article 2 claims. The Court of Appeal entered summary judgment for the Defendants on negligence but, by a majority, allowed the Article 2 claim to proceed. The Claimants appealed on negligence; the Defendants cross-appealed on Article 2. The Supreme Court heard both appeals on the assumption that the Claimants’ factual allegations could be proved.
Legal Issues Presented
- Whether, in the circumstances alleged, the police owed the Victim a common-law duty of care to take reasonable steps to protect her from the threatened violence.
- Whether a duty arises whenever the police know, or ought reasonably to know, of a specific and imminent threat to the life or physical safety of an identified individual (“the interveners’ liability principle”).
- Whether, alternatively, a duty arises where an individual supplies apparently credible evidence that a known third party presents a specific and imminent threat to that individual (“Lord Bingham’s liability principle”).
- Whether, on the assumed facts, there is an arguable breach of the positive duty to protect life under Article 2 ECHR.
Arguments of the Parties
Claimants’ Arguments
- The police assumed responsibility by accepting the 999 call and requesting the Victim to keep her phone free, thereby creating proximity.
- Even absent assumption of responsibility, English law should recognise a duty where police know of a specific and imminent threat to an identified person.
- Public-policy reasons advanced in earlier cases (e.g. Hill) have diminished because Article 2 ECHR already exposes police forces to similar scrutiny.
Defendants’ Arguments
- Hill v Chief Constable of West Yorkshire establishes that the police owe no private-law duty to protect individuals from third-party crime absent special circumstances.
- No assurance was given on which the Victim relied; therefore there was no assumption of responsibility.
- Recognising such a duty would divert police resources, encourage defensive policing and open floodgates to litigation.
- The Article 2 threshold of a “real and immediate risk” was not met on the facts alleged.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Hill v Chief Constable of West Yorkshire | Core principle denying a general duty of care in police investigation/prevention of crime. | Re-examined; majority declined to extend liability beyond Hill, minority favoured modification. |
| Brooks v Commissioner of Police of the Metropolis | Endorsed Hill; emphasised policy reasons and absence of proximity. | Cited as supporting no duty in the present circumstances. |
| Smith v Chief Constable of Sussex Police | Majority rejected Lord Bingham’s proposed limited duty; minority supported it. | Formed competing models for duty; central to Supreme Court divide. |
| Van Colle v Chief Constable of Hertfordshire Police | Test for Article 2 positive obligation: “real and immediate risk”. | Adopted when analysing Article 2 limb of claim. |
| Glasbrook Brothers Ltd v Glamorgan CC | Common-law duty of police to keep the peace and protect property/persons. | Confirmed existence of public-law duty but distinction from private-law duty. |
| Donoghue v Stevenson | Neighbour principle; foreseeability not enough without proximity. | Used to illustrate limits of foreseeability alone. |
| Caparo v Dickman | Three-fold test: foreseeability, proximity, and fair & reasonable. | Framework for analysing any novel duty. |
| Dorset Yacht Co Ltd v Home Office | Liability where defendant had control over wrongdoers. | Distinguished: attacker here not under police control. |
| Stovin v Wise | Reluctance to impose liability for omissions by public bodies absent assumption or control. | Quoted as underpinning omissions principle. |
| Gorringe v Calderdale MBC | Public-law duties do not automatically create private-law duties. | Applied in evaluating whether police public duties translate into negligence duties. |
| D v East Berkshire NHS Trust | Post-HRA recognition of duty of care to children despite prior policy objections. | Minority relied on analogy to justify extending duty to Victim. |
| Kent v Griffiths | Ambulance service liable for unreasonable delay after accepting call. | Compared when considering assumption of responsibility via 999 system. |
| Anns v Merton LBC | Two-stage test; now disapproved but discussed historically. | Explained evolution of policy reasoning in negligence. |
| Osman v United Kingdom | Earlier misunderstanding at Strasbourg about “immunity”. | Cited to clarify that summary dismissal can be Convention-compliant. |
| Opuz v Turkey | State obligation to protect victims of domestic violence under Articles 2 & 3. | Contextual support for Article 2 claim and gender-violence background. |
Court's Reasoning and Analysis
For the negligence claim the Justices first reaffirmed that English law generally imposes no liability for pure omissions or for harm caused by third parties. Two recognised exceptions—control over the wrongdoer and assumption of responsibility—did not apply on the assumed facts: the attacker was not in police custody and the call-handler offered no explicit assurance that officers would arrive immediately.
Majority (Judge [Last Name], Judge [Last Name] and Judge [Last Name]) held that extending liability would conflict with the Hill principle. Foreseeability of harm, even where a threat is reported, is insufficient to establish proximity. Policy reasons—resource allocation, risk of defensive policing, and potential flood of claims—remained persuasive, and Parliament had already provided limited redress through the Human Rights Act and Criminal Injuries Compensation Scheme.
Minority (Judge Kerr and Judge Hale) considered that proximity was satisfied whenever police know, or ought to know, of a specific and imminent threat to an identified person and have the operational capacity to prevent it. They argued that modern human-rights obligations and the evident gap in protection justified recognising a narrow duty without undermining policing.
On Article 2, the entire court applied the Osman “real and immediate risk” test. It held that, assuming the call-handler ought to have appreciated the death threat, a trial was required to decide whether a reasonable policing response would have averted the killing. Accordingly, the Defendants’ cross-appeal on Article 2 failed.
Holding and Implications
Appeal on negligence DISMISSED. The majority concluded that no common-law duty of care arose on the facts alleged.
Cross-appeal on Article 2 DISMISSED. The Article 2 claim proceeds to trial because a jury could find that the police knew, or ought to have known, of a real and immediate risk to the Victim’s life.
Implications: The decision re-affirms the restrictive approach of Hill to police negligence, leaving victims to rely primarily on human-rights remedies where state protection fails. No new duty of care was created, though strong minority opinions may influence future incremental developments, especially in domestic-violence contexts.