EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23452/94
Mulkiye Osman and Ahmed Osman
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 1 July 1997)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-19) ...... 1
A. The application (paras. 2-4) ...... 1
B. The proceedings (paras. 5-14)...... 1
C. The present Report (paras. 15-19) ...... 2
II. ESTABLISHMENT OF THE FACTS (paras. 20-80)...... 3
A. Particular circumstances of the case (paras. 20-71) ...... 3
B. Relevant domestic law and practice (paras. 72-80) ...... 10
III. OPINION OF THE COMMISSION (paras. 81-140) ...... 13
A. Complaints declared admissible (para. 81) ...... 13
B. Points at issue (para. 82) ...... 13
C. As regards Article 2 of the Convention (paras. 83-103)...... 13
CONCLUSION (para. 104)...... 21
D. As regards Article 8 of the Convention (paras. 105-108) ...... 21
CONCLUSION (para. 109)...... 22
E. As regards Article 6 of the Convention (paras. 110-130) ...... 22
CONCLUSION (para. 131)...... 28
TABLE OF CONTENTS
page
F. As regards Article 13 of the Convention (paras. 132-135) ...... 28
CONCLUSION (para. 136)...... 28
G. Recapitulation (paras. 137-140) ...... 29
PARTLY DISSENTING OPINION OF MR. S. TRECHSEL, JOINED BY MM. E. BUSUTTIL, A. WEITZEL, J.-C. GEUS, I. CABRAL BARRETO AND I. BÉKÉS...... 30
PARTLY DISSENTING OPINION OF MR. L. LOUCAIDES ...... 33
PARTLY DISSENTING OPINION OF MR. N. BRATZA, JOINED BY MRS. G.H. THUNE, MRS. J. LIDDY, MM. P. LORENZEN AND K. HERNDL ...... 35
APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION ...... 39
I. INTRODUCTION
1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.
A. The application
2. The applicants are British citizens resident in London. The first applicant, born in 1948, was married to Ali Osman who was killed on 7 March 1988. The second applicant born in 1972 is their son. They are represented by Mr Ben Emmerson, counsel, and Ms. Nuala Mole, a solicitor at the Aire Centre in London.
3. The application is directed against the United Kingdom. The respondent Government are represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office.
4. The case concerns the complaints of the applicants that the police failed to protect the lives of Ali and Ahmed Osman and that they have no access to court or effective remedy in respect of this failure. It raises issues under Articles 2, 6, 8 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 10 November 1993 and registered on 14 February 1994.
6. On 30 August 1994, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits.
7. On 31 January 1995, after two extensions in the time-limit, the Government submitted their observations and on 7 June 1995, the applicants submitted their observations in reply, also after two extensions in the time-limit.
8. On 16 October 1995, the Commission decided to invite the parties to make submissions at an oral hearing at Strasbourg.
9. On 3 May 1996, the parties submitted further observations and documents.
10. At the oral hearing, held on 17 May 1996, the Government were represented Mr M.R. Eaton, Agent, Mr J. Eadie, counsel, Mr S. Freeland, counsel, and Mrs S. Weston, Mr G. Edwards, Mrs S. McDougall and Mr P. Shawdon, as advisers. The applicants were represented by Mr B. Emmerson, counsel, Mr T. Kerr, counsel, Ms. N. Mole, solicitor, Mrs L. Christian, solicitor, Mr A. Clapham, counsel, and Mr A. Porter, legal assistant.
11. On 17 May 1996, the Commission declared the application admissible.
12. The parties were then invited to submit any additional observations on the merits of the application.
13. On 13 August 1996, the Government submitted further observations and on 21 August 1996, the applicants submitted observations on the merits. The applicants submitted further information on 31 January 1997.
14. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case. In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:
Mr S. TRECHSEL, President Mrs G.H. THUNE Mrs J. LIDDY MM E. BUSUTTIL A. WEITZEL H. DANELIUS C.L. ROZAKIS L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS P. LORENZEN K. HERNDL
16. The text of the Report was adopted by the Commission on 1 July 1997 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.
17. The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.
18. The Commission's decision on the admissibility of the application is annexed hereto.
19. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
20. In 1987, Ahmed Osman, the second applicant, then 14 years old, was a pupil at Homerton House School, Hackney, London. Paul Paget-Lewis was employed as a teacher at the school.
21. On or about 2 March 1987, the mother of another boy at the school and neighbour to the applicants complained to the school that Paget- Lewis was falsely accusing her son, Leslie Green, of deviant sexual practices and spreading rumours to that effect. Paget-Lewis had followed Leslie home from school on occasion.
22. The Deputy Head, Mr Perkins, interviewed Leslie Green. Another teacher, Mr Fleming, interviewed Ahmed Osman. An entry on 3 March 1987 in the diary of the Head Master, Mr Prince, records that contact was made with a PC Williams. In a typed note signed by Ahmed Osman and dated 6 March 1987, taken from the interview with Mr Fleming, it was stated that Paget-Lewis had warned Ahmed about Leslie, ascribing various sexual conduct to Leslie. Paget-Lewis asked Ahmed to come and see him in the class-room at lunchtimes, apparently to learn Turkish from him. He had given him money and a pen and taken photographs of him. He had followed Ahmed home in his car. The diary notes of the Head Master recorded that PC Williams came to the school on 9 March 1987. The applicants state that on this occasion information concerning Paget-Lewis' conduct towards Ahmed was passed on to the police. The Government state that the police officer concerned has no recollection that he was told about the presents or that Paget-Lewis had followed Ahmed home. The Government state that all concerned were satisfied that there was no sexual element to Paget-Lewis' attachment to Ahmed and the matter was left to be dealt with internally by the school.
23. The Deputy Head interviewed Paget-Lewis about these matters on two occasions. In a note dated 13 March 1987, he records Paget-Lewis as stating that he had a special relationship with Ahmed, that Leslie was trying to disrupt it; that he was so upset on one occasion that he confronted Leslie and accused the boy of being a sexual deviant; that he had followed Ahmed home on one occasion and waited outside for 45 minutes. The note referred to a second interview being conducted with Leslie Green after another complaint that Paget-Lewis had been seen driving his car past the Green's house.
24. On 13 March 1987, the Head Master formally interviewed Paget-Lewis. Notes of the meeting indicate that Paget-Lewis admitted that he had become attached to Ahmed, that he had accused Leslie Green of trying to turn Ahmed against him and had parked outside Leslie Green's house to show that he was not to be scared away. The diary notes of the Head Master recorded that PC Williams came to the school.
25. The Head Master was informed on 16 March 1987 in an interview with Mrs Green and Leslie Green that Paget-Lewis had been spying on Ahmed. Ahmed had told Leslie that Paget-Lewis had said that he knew where Ahmed's mother worked and could find Ahmed even if he left the school.
26. On 17 March 1987, the Head Master met with Ahmed and his parents to explain his concerns. Ali Osman expressed his wish that Ahmed should be transferred to another school. The diary of the Head Master recorded a contact that day with PC Williams. Another meeting took place at the school on 19 March 1987 and further discussion took place about a possible transfer of Ahmed to another school.
27. During or about March-April 1987, graffiti appeared in different places near the school referring to Ahmed's alleged sexual relationship with Leslie Green. Paget-Lewis denied that he was responsible when questioned by the Deputy Head, who however noted in a report dated 5 May 1987 that Paget-Lewis knew the exact wording and the exact locations of all the graffiti.
28. While attempting to transfer Ahmed elsewhere, it was discovered that the files relating to him and Leslie Green had been stolen from the school office. The file relating to staff disciplinary matters was also found to be missing. Paget-Lewis was questioned about this by the Deputy Head, but denied any involvement.
29. On 14 April 1987, Paget-Lewis changed his name by deed-poll to Paul Ahmed Yildirim Osman. On 1 May 1987, the Head Master wrote to ILEA (the Inner London Education Authority) stating that Paget-Lewis had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of the pupil Ahmed Osman. The applicants state that the Head Master informed the police of the name-change and preceding incidents on or about 4 May 1987. A note in the Head Master's diary refers to a meeting with two police officers, DS Newman and DS Clarke, on 4 May 1987.
The applicants allege that by this stage the police considered that Paget-Lewis posed a serious threat to the safety of Ahmed and advised the ILEA that Ahmed's father, Ali Osman (husband of the first applicant), should be warned. The applicants state that the police requested that they be informed if Ahmed should go missing for more than an hour and that they informed ILEA that they intended to search Paget-Lewis' home for the missing files. Undated manuscript notes by an ILEA official, Ian Honeyset, which appear to have been made after Paget-Lewis' change of name and before other events occurred in May, refer, inter alia, to "fear boy may be harmed", "police are investigating missing files and his
The Government state that there is doubt as to the information which was passed on to the police, in particular that DS Newman and DS Clarke have no recollection of being informed of the graffiti or the missing files. The Government submit that, having considered the information passed to them, the police did not believe that Paget-Lewis posed a serious threat to the safety of Ahmed. They deny that the police asked ILEA to inform them if Ahmed went missing or that they intended to search Paget-Lewis' home.
30. By letter dated 8 May 1987, the Head Master wrote to ILEA, enclosing reports concerning Paget-Lewis, stating that while he believed Paget-Lewis needed medical help, his continued presence in the school jeopardised the welfare, safety and education of the pupils.
31. On 19 May 1987, Paget-Lewis was seen by Dr Ferguson, the ILEA psychiatrist, who reported: "This teacher must indeed give cause for concern. He does not present ill in formal terms, nor does he seem sexually deviant. He does have personality problems, and his judgment regarding his friendship with a pupil is reprehensibly suspect." Dr Ferguson recommended that Paget-Lewis remain teaching at the school but that he should receive some form of psychotherapy.
32. On or about 21 May 1987, a brick was thrown through a window of the applicants' house. The police were informed.
33. On two occasions in June 1987, the tyres of Ali Osman's car were deliberately burst. The police were informed.
34. On 16 June 1987, following a further interview with Paget-Lewis, Dr Ferguson recommended that Paget-Lewis should no longer teach at the school and that transfer on medical grounds was strongly and urgently recommended.
35. On 18 June 1987, Paget-Lewis was suspended pending an ILEA investigation. He submitted a statement dated 6 July 1987 in which, inter alia, he admitted taking photographs of Ahmed and giving him money but denied stealing files or painting graffiti. He accused Mr Perkins of lying about him and stated that Mr Perkins has stated his intention of breaking him.
36. On 7 August 1987, ILEA sent a letter to Paget-Lewis officially reprimanding him but lifting the suspension.
37. In or about August-September 1987, a mixture of engine oil and paraffin was poured on or near the applicants' doorstep. This was reported to the police.
38. In September 1987, Paget-Lewis resumed teaching at a different school.
39. On or about 18 October 1987, the windscreen of Ali Osman's car was smashed. In late October/early November 1987, in a series of incidents, the applicants' front door lock was jammed with superglue, dog excrement was smeared on their doorstep and on their car and the light bulb stolen from their porch. These incidents were reported to the police.
40. A police officer, PC Adams, at a date unknown in October-December 1987 was in contact with Paget-Lewis regarding the acts of vandalism. In later statements to the police, Paget-Lewis stated that he telephoned the officer on at least one occasion leaving his number but his call was not returned. He also alleged that he told the police officer on one occasion that the loss of his job was so distressing that he felt that he was in danger of doing something criminally insane. The Government deny that this was said. No detailed records were made by the police officer of his contacts with Paget-Lewis or the Osman family, who he also visited at this time. Any entries in notebooks or duty registers (crime reports or parade books) could not later be traced by the Metropolitan Police Solicitor's Department.
41. On 7 December 1987, Paget-Lewis drove his car in such a manner that it collided with a van in which Leslie Green was a passenger. The police arrived and cautioned him, issuing a form requesting him to produce his driving documents.
42. On 8 December the police contacted the ILEA stating that they wished to interview Paget-Lewis and the Head Master. The applicants state that the police assured the ILEA that Ahmed's family would be protected. The Government deny that such an assurance was given.
43. An ILEA memorandum dated 8 December 1987 referred to acts of harassment of the Osman family, the van collision and that Paget-Lewis had allegedly admitted responsibility for the collision saying that Leslie Green has lured Ahmed Osman away from his affections. It noted that the police were pursuing enquiries but that if nothing was heard the matter should be chased. It included with the note "Families getting police protection".
44. On 9 December 1987, the police interviewed Leslie Green and his mother.
45. On 10 December 1987, Paget-Lewis attended the police station and produced his driving documents. He failed to produce a road worthiness (MOT) certificate for his car and was cautioned in relation to that.
46. On 14 December 1987, the police took photographs of the graffiti near the school.
47. On 15 December 1987, Paget-Lewis was interviewed by officers of the ILEA at his own request. An ILEA memorandum dated 15 December 1987 recorded that Paget-Lewis felt in a totally self-destructive mood, stating that it was all a symphony and the last chord had to be played. He was selling all his possessions. It noted that he said that he would not do a "Hungerford" in a school but would see the Deputy Head Master at home. The note stated agreement that this caused worry and should be passed on to the police. A call was made to DS Boardman, who was unavailable but a detailed message was left with the above information. One of the ILEA officers recalled later in a statement dated 9 March 1988 that Paget-Lewis spoke in a manner which was very disturbing, said that he blamed the Deputy Head Master, that he knew where he lived and that he was going to do something though not at the school. The other officer recalled in her statement of 9 March 1988 that Paget-Lewis had stated that he was going to do something that would be "a sort of Hungerford". She recalled that as a result of this conversation she caused the police and the school to be alerted that she considered the Head Master and Deputy Head to be at risk of violence.
The applicants state that content of the interview was passed on to the police.
The Government deny that mention was made of the "Hungerford" reference or that there was any suggestion that the Osmans might be in danger.
48. On 15 December 1987, after contact with ILEA, the police sent a telex to the local police station near the Deputy Head Master's home referring to the fact that vague threats had been made and that the school authorities were very concerned and asked that the local police pay casual attention to the address, giving a brief description of Paget-Lewis and the registration number of his car.
49. On or about 15 December 1987, DS Boardman visited the Osman family and discussed the criminal damage and Paget-Lewis' relationship with Ahmed.
50. By 16 December 1987, DS Boardman had concluded that Paget-Lewis should be arrested on suspicion of criminal damage. He contacted ILEA with a view to tracing Paget-Lewis and was provided with his address. He requested the official at ILEA to ask Paget-Lewis to contact the police. On the same day, DS Boardman met with the Head Master and his Deputy. The applicants state that the police officer assured the Head Master that they would undertake the necessary measures to protect his Deputy (against whom threats had been made) and the applicants. According to the Government, no assurance of protection was given. The police officer received the impression from his meetings with the Head Master and Deputy that Paget-Lewis was angry at being removed from the school but that the anger was directed against the Deputy. The Deputy however informed the police officer that he did not feel in any danger.
51. The diary note of the Head Master for 16 December 1987 refers to DS Boardman, contains a heading "OSMAN/PERKINS/POLICE PRESENCE* ARRANGED" and a note that ILEA had called to finalise arrangements re protection for Perkins/Osman families.
52. On 17 December 1987, the police arrived at Paget-Lewis' house with the intention of arresting him on suspicion of criminal damage. Paget-Lewis was absent. The police were unaware that he was teaching at school that day. On 18 December 1987, pursuant to the request of the police, ILEA sent a letter to Paget-Lewis requesting him to contact DS Boardman.
53. On 18 December 1987, the ILEA informed the police that Paget-Lewis had not attended school. He did not return to the school again.
54. On 22 December 1987, the police took a statement from the driver of the van which had been rammed by Paget-Lewis. He recalled that Paget-Lewis had been unconcerned by the incident stating that in a few months he would be serving life imprisonment.
55. In an undated unsigned report outlining events leading up to the collision, stated to have been prepared by DS Boardman in December 1987, it is recorded "it should be pointed out that at this stage there is no evidence to implicate Paget-Lewis in either of these offences
56. In or about early January 1988, the police commenced the procedure of laying an information before the magistrates' court with a view to prosecuting Paget-Lewis for driving without due care and attention.
57. In January 1988, Paget-Lewis was put on the Police National Computer as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage.
58. Between January and March 1988, Paget-Lewis travelled around in England hiring cars in his adopted name of Osman and being involved in a number of accidents. He spent time at his home address during this period and continued to receive mail there.
59. On 17 January 1988, Paget-Lewis broke into 3 cars at a clay-pigeon shoot and stole a shotgun. He sawed off both barrels. While the theft was reported to the local police, there was nothing to connect the incident to Paget-Lewis and it did not come to the attention of the Metropolitan police dealing with the case.
60. On 1, 4 and 5 March 1988, Leslie Green saw Paget-Lewis in a black crash helmet near the applicants' home. According to the applicants, Mrs Green informed the police on each occasion, but the police officer dealing with the case did not return her call. The Government accept that, on 5 March 1988, the police officer received a message which stated "phone Mrs Green" but there was no phone number on the note and he did not connect the message with the mother of Leslie Green.
61. On 7 March 1988, Paget-Lewis was seen near the applicants' home by a number of people. At about 23.00, Paget-Lewis shot and killed Ali Osman and injured Ahmed. He then drove to the home of the Deputy Head Master where he shot and injured the Deputy Head Master and killed his son.
62. On 8 March 1988, the police stopped and arrested Paget-Lewis on the M1 motorway. He said words to the effect of "Why didn't you stop me before I did it. I gave all the warning signs."
63. In a record of interview with the police on 8 March 1988, Paget- Lewis stated that he had planned the attacks for two weeks, and for the previous week he had been watching the Osmans' house. He had been hoping in the back of his mind that the police would stop him. He regarded Ali and Ahmed Osman as responsible for making him lose his position at school. He admitted holding the family at gunpoint as they returned to the house, making Ali and Ahmed Osman kneel down in the kitchen, turning out the light and shooting at them. He denied that on earlier occasions he had damaged the windows but admitted that he had let down his tyres as a prank. PC Adams had talked to him about paint and other things but it was not him and it had made him angry. He stated that the Deputy Head was his main target. He denied responsibility for the graffiti and taking files from the school office.
64. On 28 October 1988, Paget-Lewis was convicted of two charges of manslaughter having pleaded guilty on the grounds of diminished responsibility. He was sentenced to be detained in a secure mental hospital without limit of time pursuant to section 41 of the Mental Health Act 1983.
65. An inquest was held into the death of Ali Osman after the conclusion of the criminal proceedings. Since a person had been convicted in connection with the death, the Coroner did not hold a full inquest (section 16 of the Coroner's Act 1988).
66. On 28 September 1989, the applicants commenced proceedings against the police alleging negligence in that, inter alia, they had failed to apprehend Paget-Lewis prior to 7 March 1988, failed to interview Paget-Lewis other than in relation to the road traffic offences, failed to charge Paget-Lewis with any offence and failed to trace Paget-Lewis through car hire company records. Orders for discovery of documents were made on 24 April 1990.
67. On 19 August 1991, the Metropolitan Police Commissioner issued a summons for an order that the statement of claim be struck out on the ground that it disclosed no reasonable cause of action. The High Court judge dismissed the application.
68. On 7 October 1992, the Court of Appeal upheld the appeal by the Commissioner. In its judgment, it held that in light of previous authorities no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required an immunity from suit.
69. Lord Justice McCowan found, inter alia:
"In my judgment the plaintiffs
70. However, having regard in particular to the judgment of the House of Lords in the case of Hill (see Relevant domestic law and practice below), with which he found no relevant distinction, he considered that the matters in issue were failures in investigation of crime and public policy doomed the action to failure. He rejected the argument that where the class of victim was sufficiently proximate and sufficiently small the public policy argument might not apply. He found that Lord Keith in the Hill case had treated public policy as a separate point which is not reached unless there is a duty of care. The second judge in the Court of Appeal, Lord Justice Beldam, also held that on grounds of public policy the claims were not maintainable but refrained from expressing an opinion as to whether the facts, if proved, were sufficient to establish a relationship sufficiently proximate to found a duty of care. Lord Justice Simon Brown agreed with the judgment of Lord Justice McCowan. The applicants' claim was accordingly struck out.
71. The Court of Appeal refused leave to appeal to the House of Lords and the application to the House of Lords for leave to appeal was refused on 10 May 1993.
B. Relevant domestic law and practice
72. In the case of Dorset Yacht Co. Ltd. v. the Home Office (1970 AC 1004), owners of a yacht damaged by Borstal boys, who had escaped from the supervision of prison officers, sought to sue the Home Office alleging negligence by the prison officers. The House of Lords held that in the particular case a duty of care could arise. Lord Diplock said:
"I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situated in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and capture."
73. In the case of Hill v. Chief Constable of West Yorkshire (1989 AC 53), the mother of a victim of the Yorkshire Ripper instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members of the public who might be his victims. Lord Keith in the House of Lords found:
"The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Secretary in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up a deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police."
74. He went on to find that in any case there was another ground for rejecting the case, namely, public policy in preventing a flood of complaints alleging police failure to catch criminals which would result in a significant diversion of police and manpower from their most important function of suppressing crime.
75. Lord Templeman commented:
"...if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties.
This action is misconceived and will do more harm than good."
76. In Swinney and another v. the Chief Constable of Northumbria (1996 3 AER 449), the plaintiff had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to be traced back to her. The information was recorded, naming the plaintiff, in a document which was left in an unattended police vehicle, which was broken into with the result that the document was stolen, came into the possession of the person implicated and the plaintiff was threatened with violence and arson and suffered psychiatric damage. The plaintiff's claim in negligence against the police was struck out but allowed on appeal to the High Court judge. The Chief Constable appealed contending that the police owed no duty of care or alternatively that public policy precluded the prosecution of the claim since the police were immune for claims arising out of their activities in the investigation or suppression of crime. The Court of Appeal dismissed the appeal. In his judgement Lord Justice Hirst referring to the cases of Dorset Yacht and Hill (see above) stated that he could not accept a claim of blanket immunity for the police in this case, but that there were other considerations of public policy in this case, namely, the need to protect springs of information, to protect informers and to encourage them to come forward. On the facts of the case, it was arguable that the police had assumed responsibility of confidentiality to the plaintiff. The case should therefore proceed to trial.
77. Lord Justice Ward held that it was arguable that:
"there is a special relationship between the plaintiffs and the defendant, which is sufficiently proximate. Proximity is shown by the police assuming responsibility, and the plaintiffs relying upon that assumption of responsibility, for preserving the confidentiality of the information which, if it fell into the wrong hands, was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others, greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude;... and it is fair, just and reasonable that the law should impose a duty, there being no overwhelming dictate of public policy to exclude the prosecution of this claim. On the one hand there is, as more fully set out in Hill v. the Chief Constable ... an important public interest that the police should carry out their difficult duties to the best of their endeavours without being fettered by, or even influenced by, the spectre of litigation looming over every judgment they make, every discretion they exercise, every act they undertake or omit to perform, in their ceaseless battle to investigate and suppress crime. The greater good rightly outweighs any individual hardship. On the other hand it is incontrovertible that the fight against crime is daily dependent upon information fed to the police by members of the public, often at real risk of villainous retribution from the criminals... The public interest will not accept that good citizens should be expected to entrust information to the police without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected..."
78. Police have been held liable in negligence or failure in their duties in other cases. In Kirkham v. the Chief Constable of Manchester (1989 2.QB p. 283), the Court of Appeal upheld a finding of liability in negligence under the Fatal Accidents Act 1976 where the police had taken a man into custody, knew he was a suicide risk but did not communicate that information to the prison authorities. The man, diagnosed as suffering from clinical depression had committed suicide in remand prison. The police, who had assumed responsibility for the man, had owed a duty of care, which they had breached with the result that his death had ensued.
79. In Rigby and another v. Chief Constable of Northamptonshire (1985 2 AER p. 986), the High Court found the police liable to pay damages for negligence in that they had fired a gas canister into the plaintiffs' premises in order to flush out a dangerous psychopath. There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was firefighting equipment available to put the fire out at an early stage. No equipment had been present at the time and the fire had broken out and spread very quickly. Negligence was also found in Knightley v. Johns and others (1982 1 AER 301) where a police inspector at the site of an accident failed to close a tunnel and ordered officers to go back through the tunnel in the face of traffic, thereby leading to a further accident.
80. In R. v. Dytham (1979 1 QB 722), where a police officer stood by while a man died outside a club in a murderous assault, the Court of Appeal upheld the conviction of the officer for wilful neglect to perform a duty.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
81. The Commission has declared admissible the applicants' complaints that there was a failure to protect the lives of Ali and Ahmed Osman and to prevent the harassment of their family and that the applicants had no access to court or effective remedy in respect of that failure.
B. Points at issue
82. The issues to be determined in the present case are:
- whether there was a failure to protect the lives of Ali and Ahmed Osman contrary to Article 2 (Art. 2) of the Convention;
- whether there was a failure to protect the applicants from harassment contrary to Article 8 (Art. 8) of the Convention;
- whether the applicants were denied access to court for the determination of their civil rights contrary to Article 6 para. 1 (Art. 6-1) of the Convention;
- whether there has been a violation of Article 13 (Art. 13) of the Convention in relation to their allegations of lack of an effective remedy in respect of their complaints.
C. As regards Article 2 (Art. 2) of the Convention
83. Article 2 (Art. 2) of the Convention, as relevant, provides:
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
84. The applicants submit under Article 2 (Art. 2) of the Convention that the United Kingdom were under a positive obligation to protect the right to life of the deceased, Ali Osman, and Ahmed Osman and that this obligation was breached by the failure of the police to take adequate and appropriate steps to provide them with effective protection. Effective protection means not only that laws and structures are in place to prohibit attacks but that operational procedures must be adapted to meet the needs of individuals in danger. They submit that the facts of the case show that the police were kept well-informed of events and the fears of the school authorities, pointing to statements by, inter alia, school and education authority personnel that the police did consider Paget-Lewis to be a potential threat to the applicants. The applicants submit that on three occasions Paget-Lewis had made threats to commit murder, including on 15 December 1987 talking about "doing something which would be a sort of Hungerford". The applicants submit that on each of these occasions the threat was communicated to the police. They further submit, inter alia, that inadequate steps were taken to secure evidence against Paget-Lewis in relation to the criminal damage or to ensure that he was taken into custody once the decision to arrest had been taken. They also contend that it would have been possible to arrange for Paget-Lewis to have been subject to an emergency application or admission for assessment under the provisions of the Mental Health Act 1956 and thus secured his admittance to hospital.
85. The applicants also refer to the lack of any detailed records made by the police as to steps taken or information received in the case, which shows a casual and careless approach, inappropriate to an investigation involving the protection of a child. The failure to keep proper documentary records inevitably resulted in a situation where the police officers responded to each incident as it occurred without the benefit of a file of records against which to judge the offence in the proper context. When the information was finally consolidated in mid-December 1987, an attempt was made to arrest Paget-Lewis but this was badly mishandled due to incompetent planning and execution. The applicants further submit that Article 2 (Art. 2) requires a State to afford a legal procedure for determining whether a victim's right to life was afforded adequate protection and the exclusion of liability for negligence by the police discloses a failure in legal protection.
86. As regards the complaints under Article 2 (Art. 2), the Government point out that domestic law prohibits murder and manslaughter. They argue that there can be no positive duty to exclude any possible violence by third persons. While there may be a positive obligation on a Contracting State to provide appropriate structures, it will be only in exceptional cases, where there is and is known to be a real, direct and immediate threat to life and an assumption of responsibility to carry out an act or acts, that the police could be under any obligation to take specific actions in relation to the investigation or suppression of crime. Protection by law is still provided notwithstanding the exclusion of negligence actions against the police since it applies only to a narrow category of cases and even within that category it is not absolute but may be overridden by other considerations.
87. In this case, the Government emphasise that at no stage prior to the shooting was a threat to the life of the Osmans made by word or deed and they dispute the applicants' submissions about general threats, submitting that there was no evidence that the acts of vandalism preceding the shooting were committed by Paget-Lewis; that these acts had come to an end four months before the shooting and the police had no reason to suspect that Paget-Lewis had stolen a shotgun. Further, the incidents in which Paget-Lewis was suspected of being involved tended to suggest that his anger was directed equally against a number of other people. It is denied that police officers either knew or should have known that the applicants were at any risk to their lives or that they had given any assurances of safety to the applicants. The Government deny that there was any failure by the police to make contemporaneous notes on the investigation but that despite extensive searches the Metropolitan Police Solicitors' Department has been unable to trace such records that were brought into existence. Accordingly, the Government submit that sufficient and appropriate steps were taken by the police on the information and evidence available to them to protect Mr Ali Osman and Ahmed Osman.
General considerations
88. Article 2 (Art. 2) of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention, and together with Article 3 (Art. 3) of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe. It must be interpreted in light of the principle that the provisions of the Convention be applied so as to make its safeguards practical and effective (Eur. Court HR, McCann and others judgment of 27 September 1995, Series A no. 324, paras. 146-147).
89. Article 2 (Art. 2) extends to but is not exclusively concerned with intentional killing resulting from the use of force by agents of the State. The first sentence of Article 2 para. 1 (Art. 2-1) also imposes a positive obligation on Contracting States that the right to life be protected by law. In earlier cases, the Commission considered that this may include an obligation to take appropriate steps to safeguard life (see e.g. No. 7154/75 Dec. 12.7.78 D.R. 14 p. 31). As regarded any duty of protection in respect of violence or threats of violence, the Commission held, in a case concerning the killing of the applicant's husband by the Provisional IRA, that Article 2 (Art. 2) could not give rise to a positive obligation on the part of the State to protect from any possible violence and in a case where a person, subject to the threat of terrorist violence, complained of the withdrawal of a police bodyguard, the Commission held that Article 2 (Art. 2) could not be interpreted as imposing a duty on a State to give protection of this nature, at least not for an indefinite period (Nos. 9438/81, Dec. 28.2.83, D.R. 32 p. 190, and 6040/73 Coll. 44 p. 121).
90. As a minimum, the Commission considers that a Contracting State is under an obligation to provide a framework of law which generally prohibits the taking of life and to ensure the necessary structures to enforce these prohibitions, including the provision of a police force with responsibility for investigating and suppressing infringements. While it cannot be a requirement of Article 2 (Art. 2) that a State must necessarily succeed in locating and prosecuting perpetrators of fatal or life-threatening attacks, the case-law of the Convention organs has established a requirement that the investigation undertaken be effective:
"The obligation to protect the right to life under this provision, read in conjunction with the State's general duty under Article 1 (Art. 1) of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State." (Eur. Court HR, McCann and others op. cit. para. 161)
91. While effective investigation procedures and enforcement of criminal law prohibitions in respect of events which have occurred provide an indispensable safeguard and the protective effect of deterrence, the Commission is of the opinion that for Article 2 (Art. 2) to be given practical force it must be interpreted also as requiring preventive steps to be taken to protect life from known and avoidable dangers. However, the extent of this obligation will vary inevitably having regard to the source and degree of danger and the means available to combat it. Whether risk to life derives from disease, environmental factors or from the intentional activities of those acting outside the law, there will be a range of policy decisions, relating, inter alia, to the use of State resources, which it will be for Contracting States to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention. Thus, where an applicant alleged a risk to her life from the threat of terrorist attack in Northern Ireland, her husband and brother having been killed, the Commission considered that it was not its task to consider in detail the appropriateness or efficiency of the measures taken to counter terrorism and that the United Kingdom could not be required by the Convention to take measures going beyond those already being taken to protect the lives of the inhabitants in Northern Ireland. It referred to the fact that the army strength had been increased to 10 500 and that several hundred members of the security forces had lost their lives in combating terrorism (No. 9348/81 op. cit.).
92. The extent of the obligation to take preventive steps may however increase in relation to the immediacy of the risk to life. Where there is a real and imminent risk to life to an identified person or group of persons, a failure by State authorities to take appropriate steps may disclose a violation of the right to protection of life by law. In order to establish such a failure, it will not be sufficient to point to mistakes, oversights or that more effective steps might have been taken. In the Commission's view, there must be an element of gross dereliction or wilful disregard of the duties imposed by law such as to conflict fundamentally with the essence of the guarantee secured by Article 2 (Art. 2) of the Convention.
Application to the present case
93. The Commission has examined, in light of the above considerations, whether there has been a failure to comply with the obligation to protect the lives of Ali and Ahmed Osman, firstly through the alleged omissions of the police and, secondly, as a result of the alleged lack of accountability of the police in domestic law.
94. As a preliminary point, it would observe that, while as a general rule for a complaint to fall within the scope of Article 2 (Art. 2) there must have been a loss of life, it is not excluded that acts or events of a life-threatening character could properly be dealt with under this provision, in particular where the threat is real and immediate and the risk of death occurring is high (see mutatis mutandis, Bahaddar v. the Netherlands, No. 25894/94, Comm. Report 13.9.96 pending before the Court). In the present case, the events disclose that serious violence was inflicted on Ahmed and Ali Osman, with an apparent intention of causing death, or reckless disregard as to whether death occurred. In these circumstances, the Commission considers the incident may be properly considered under Article 2 (Art. 2), it being inappropriate and artificial to examine the same facts under one provision for Ali Osman, who tragically died, and under other provisions (Articles 3 or 8) (Art. 3, 8) for Ahmed Osman, who, by fortunate circumstance, did not.
As to the alleged failure of the police to take steps to protect the lives of Ali and Ahmed Osman
95. The Commission recalls that the facts concerning the events leading up to the shooting of Ali and Ahmed Osman are in dispute between the parties in relation to the state of knowledge of the police of events and the intentions of the police as expressed to the Osman family and the school authorities. It regrets that this has not been subject to a detailed factfinding exercise by the domestic courts, which, it observes, is the subject of additional complaints by the applicants.
96. The Commission has examined the submissions and materials of the parties. It finds the following: a. By mid-March 1987, the conduct of Paget-Lewis was a concern to the school and it was known that he was showing a disturbing attachment to Ahmed Osman and exhibiting worrying conduct in relation to another boy, Leslie, including an admission that he had followed Leslie home and was accusing him of deviant sexual conduct, in a context of jealousy of the friendship with Ahmed. Ali Osman was sufficiently worried about these developments to express his wish for Ahmed to transfer to another school. b. In March 1987, the school was in contact with the police on four occasions. No record was made, or now exists, as to what information was conveyed to the police. The Commission finds no reason to doubt that the substance of events was passed on to the police officer who attended the school. It is an element indicating the seriousness with which the school viewed events that they involved the police. Even though the school made no request for steps to be taken and dealt with the developments as a matter of internal school discipline, the Commission is satisfied that the police must have been made aware of the concerns of the school and the Osman family and the seriousness with which they were regarded. c. In the period March-April 1987, obscene graffiti appeared near the school referring to Ahmed and Leslie; the files relating to the boys were discovered to have disappeared from the school office and Paget-Lewis changed his name to Paul Ahmed Yildirim Osman. On 4 May 1987, the Head Master of the school had a meeting with the police and the Commission is satisfied that in all probability he informed the police of these developments. There is an undated note from an ILEA official in which it is recorded that the police intended to search Paget-Lewis' home and requested to be informed if Ahmed was missing for more than an hour and that Ahmed's father should be advised that the change of name might be a device to enable him to remove the boy from the country. A further note of 8 May 1987 referred to the police investigating the missing files. While the Government state that there is doubt as to what the police were told, the two police officers having no recollection of being told of the missing files or the graffiti, the Commission finds that in the absence of any police notes of the interview, this is of dubious weight. As to whether the police informed the school authorities that they would carry out a search and requested to be told if Ahmed went missing for an hour, the Commission recalls that the ILEA notes are not based on direct contact with the police but on what the school passed on to them from their contacts. It is not improbable that during the meeting between the Head Master and the two police officers, a range of possibilities were canvassed and that these could have been inaccurately transformed into undertakings or ascribed to the police. The Commission is therefore not satisfied that at this stage the police had made any commitment to carry out a search of Paget-Lewis' home or were seriously concerned as to the possibility of any kidnapping. d. From May-November, the Osman family were subject to a series of vandalising attacks on their home and car, which could be categorised as offences of criminal damage. The police were informed of all these incidents. It appears that throughout this period the only step taken by the police in response to events was for a police officer PC Adams to make contact with Paget- Lewis. It would therefore appear that the Osman family had informed the police of their concern that Paget-Lewis was involved. The date of the contact is not known. The police officer made no detailed notes and no other records have been traced. The Commission is unable to assess what might have occurred in this interview. It considers that in the circumstances little reliance can be placed on the statement of Paget-Lewis himself who later stated to the police that he had told PC Adams that he was in danger of doing something criminally insane. Nor can it place weight on his other statements after the tragic events that during this time he gave clear warnings that he was about to do something terrible. e. On 7 December 1987, Paget-Lewis drove his car into a van in which Leslie Green was a passenger. This act of overt violence led the police to take a number of steps within a short period of time. Interviews were conducted with Leslie Green and his mother on 9 December, the Osman family on 15 December and with the Head Master and Deputy Head Master on 16 December. Photographs were taken of the graffiti. f. Following a meeting by Paget-Lewis with two ILEA officials on 15 December, contact was made by ILEA with the police. From the text of a telex, it appears that the police were told that Paget- Lewis had made vague threats against the Deputy Head and that the school authorities were very concerned. There is a dispute between the parties as to what other information about the exchange with Paget-Lewis was passed on to the police. The statements later made by the two ILEA officers and the notes of the meeting are concordant on the fact that he talked in a disturbing, self-destructive manner. The only reference to his alleged threat to commit a "Hungerford" massacre appears in one ILEA officer's statement several months later. The notes taken at the time refer to his stating that he would not do "a Hungerford" at the school but would see the Deputy at home. This would appear to be a more accurate record and tally with the fact that the police took action in respect of having the house of the Deputy watched casually by the local police. The Commission agrees with the Government that there is no evidence that Paget- Lewis made any direct or indirect threat against the Osmans or that the police were informed of such. The evidence supporting the assertion that the police undertook or promised protection of the Osman family are two notes: an ILEA memorandum of 8 December which stated that families were being protected and a note in the Head Master's diary following his meeting with the police on 16 December, which is cryptic and unexplained. There are no police records of what was said either to ILEA or at the meeting to clarify matters. It would however seem unlikely that the police referred to or promised police protection to the Osman family by way of a constant police presence, particularly when it is clear that such was never envisaged or given. The school authorities may have received the impression that protection had been arranged but it may be that this was based on re-assurances by the police that the necessary measures were being taken, namely, that enquiries were now being pursued actively, that a casual watch had been placed on the Deputy Head's house and the likelihood that an arrest was about to be made. g. On 16 December 1987 DS Boardman took the decision to arrest Paget-Lewis on suspicion of criminal damage. DS Boardman's undated report stated that Paget-Lewis was believed by everyone to be behind the graffiti and attacks on the Osman home but that there was as yet no evidence. Nonetheless the Commission notes that police must have taken the view that Paget-Lewis was presenting sufficient threat that formal steps should be taken against him. h. The police attempted to carry out the arrest at Paget Lewis' home on 17 December 1987 having found out his address from ILEA. When he was absent they took no steps to discover his whereabouts at school, where he was in fact teaching that day. From 18 December 1987, Paget-Lewis failed to appear at school, leaving the area for a time. While ILEA, as requested by the police, had sent a letter to him dated the same day putting him on notice that the police wanted to talk to him, it is not established that this letter in fact caused him to disappear. i. From 18 December 1987 to March 1988, while Paget-Lewis' name was placed in the Police National Computer in January 1988 as wanted for criminal damage offences, no further active steps were taken by the police to trace Paget-Lewis' whereabouts. j. Paget-Lewis was seen near the Osmans' home on 1, 4 and 5 March 1988 by Leslie Green. Mrs Green contacted the police on at least one occasion. There are no contemporaneous records to support the assertion that she informed the police about Paget- Lewis. If she had, it would seem probable that, in light of the previous concern the police had shown in the case, the matter would have come to the attention of DS Boardman and there would have been a reaction of some kind. If, as appears most likely, Mrs Green merely left a message that DS Boardman should call her back, the Commission does not find it surprising that DS Boardman would not be able to make the connection between a Mrs Green and the Paget-Lewis case almost three months after the case had been dormant and that accordingly no police response was forthcoming.
97. The Commission finds that the risk posed by Paget-Lewis to the Osman family was not of such a nature or immediacy that the police were, or should have been on notice, that their lives were in danger. While there were acts of criminal damage against the Osman family which could be characterised as a form of violence, it appeared that Paget- Lewis' threats of violence were rather in connection with the Deputy Head and his collision with a car involved Leslie Green. The Commission recognises that the families, school authorities and ILEA were increasingly worried as events developed and Paget-Lewis' behaviour became more bizarre. Nonetheless, there is no factor which in the Commission's opinion rendered it foreseeable with any degree of probability that Paget-Lewis would carry out an armed attack on the Osman family.
98. The police could perhaps have taken steps which may have led to events turning out otherwise. If they had searched his accommodation, they may have found evidence that he was involved in the graffiti or acts of criminal damage and been able to take proceedings against him. If they had acted more promptly in carrying out their intention to arrest, or tried to trace him through hire-cars or credit companies when he disappeared, they might have obtained a confession from him, enabling minor charges to be brought. These are however hypothetical considerations and would not, in any event, lead to a conclusion that Paget-Lewis would have been subject to any form of custodial detention or other measure which would have diverted him from his course of vindictive persecution. While reference is made to the option of seeking to obtain his admittance to hospital under the provisions of the Mental Health Act, the Commission observes that Paget-Lewis had already been seen on two occasions by an ILEA psychologist who had not advised ILEA that he was suffering from a mental condition justifying compulsory measures.
99. The failings to take additional investigative steps do not, in the Commission's view, disclose any seriously defective response by the police to the threat posed by Paget-Lewis as perceived at the time. As regards the applicants' allegations that the police failed to keep proper records of events as they developed, disclosing a lack of appropriate care in a case potentially concerning risk to a child, the Commission considers it regrettable that the police did not take notes or preserve notes of meetings by police officers with school and ILEA officials and Paget-Lewis himself. Nevertheless it does not find it established that the inability to produce records of these meetings prevented a proper assessment of the risk to the Osman family or posed an obstacle to effective steps being taken.
100. The Commission finds therefore that the circumstances fail to disclose fundamental disregard by the police of the duties imposed by law in respect of the protection of life.
As to an alleged lack of accountability of the police in domestic law
101. The Commission recalls that the applicants have complained of the inability to bring proceedings for negligence against the police in the courts, their action having been struck out on the basis that public policy excludes actions against the police in matters relating to the investigation and suppression of crime.
102. As to whether this exclusion of liability is compatible with the requirement of Article 2 (Art. 2) that the right to life be protected by law, the Commission recalls that it has been held that criminal liability for acts may be required to secure respect for substantive rights under the Convention (Eur. Court HR, X and Y v. the Netherlands judgment of 26 March 1985 Series A no. 91, p. 11, paras. 22 and 33). There are examples also where the possibility of pursuing civil proceedings has been regarded as a significant element in assessing whether the procedural elements of other substantive rights have been respected (see e.g. No. 20357/92 Whiteside v. the United Kingdom of 7.3.94, D.R. 76-A p. 80 and Eur. Court HR, Air Canada judgment of 5 May 1995, No. 316, paras. 35-38). Further the Court has stated that the question of any right to take civil proceedings for deaths attributed to security forces would be more appropriately dealt with under Articles 6 and 13 (Art. 6, 13) (McCann, op. cit. para. 160) but did not exclude the possibility of issues arising under Article 2 para. 1 (Art. 2-1).
103. In the present case, the Commission would note that a separate issue might arise under Article 2 para. 1 (Art. 2-1) where the state of the law failed to accord respect to the right to life as guaranteed under the Convention. However, the criminal law in the United Kingdom prohibited the acts of violence carried out in this case, and the perpetrator was duly tried and sentenced. Civil proceedings would also have been possible in respect of establishing any liability under civil law by the perpetrator of the crimes, and potentially any person who failed in a duty of care to prevent foreseeable damage to the applicants. The Commission is not satisfied that the exclusion of a duty of care in civil negligence actions in relation to the police which is limited to a specific area of operational discretion, namely, in respect of the suppression and investigation of crime, demonstrates any lack of protection to the right to life in the law itself.
CONCLUSION
104. The Commission concludes, by 10 votes to 7, that there has been no violation of Article 2 (Art. 2) of the Convention.
D. As regards Article 8 (Art. 8) of the Convention
105. Article 8 (Art. 8) of the Convention provides as relevant:
"1. Everyone has the right to respect for his private ...life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
106. The applicants have invoked this provision in respect of the alleged failure of the police to protect them from persistent harassment for over a year.
107. The Commission refers to its findings above that it has not been established that the police failed in any positive obligation to protect the lives of Ali and Ahmed Osman. As regards any positive obligations on the State to protect the applicants' right to respect for private life and home, the Commission notes that insofar as the applicants refer to the acts of vandalism against their home and property it was possible for them to pursue an injunction from the courts to prohibit the tortious acts, failure to comply with which might constitute a contempt for which committal to prison would be an available sanction (see, mutatis mutandis, Whiteside v. the United Kingdom, No. 20357/92 op. cit.).
108. Consequently, the Commission does not find that there has been any interference with rights protected under Article 8 (Art. 8) in the present case.
CONCLUSION
109. The Commission concludes, by 10 votes to 7, that there has been no violation of Article 8 (Art. 8) of the Convention.
E. As regards Article 6 (Art. 6) of the Convention
110. Article 6 para. 1 (Art. 6-1) of the Convention provides, in its first sentence:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..."
111. The applicants complain under Article 6 (Art. 6) of the Convention of denial of access to court since their claims against the police were struck out on the basis that public policy conferred an immunity on the police in actions for negligence in relation to the investigation and suppression of crime. They argue that the case-law does not support the view that the exclusion is a component part of negligence such that no "civil right" can be said to exist in domestic law. Reference is made to cases which describe the exclusion as an "immunity" which is a separate and independent ground which is not reached unless there is a duty of care and as pursuing the public policy of stopping cases against the police going to trial on the merits.
112. The applicants submit that the immunity conferred on the police does not pursue a legitimate aim or, alternatively, is disproportionate to the aim sought to be achieved. There is, for example, no convincing reason why police should be treated differently from any other public body pursuing a public service or other professionals, such as medical practitioners or firemen. The argument of prevention of diversion of manpower from public service would apply equally to other proceedings against the police or other public servants. They see no force in the argument that a lack of immunity would lead to a detrimental result to policing, since in this case defensive policing might have prevented a tragedy. The fact that the immunity applies regardless of the seriousness of the damage alleged or the foreseeability of the damage indicates its disproportionate effect.
113. The Government submit that Article 6 (Art. 6) is inapplicable since the Court of Appeal in the present case held that the applicants had no right recognised under domestic law to claim damages from the police. The existence of negligence as a cause of action does not establish a legal basis for a civil right without consideration of the particular claim being made. A duty of care must be established as existing, which depends not only on the foreseeability of damage and proximity but additionally on whether it is fair, just and reasonable, which element establishes that a duty of care is not owed by the police in relation to matters of the investigation and suppression of crime.
114. The Government add that if Article 6 para. 1 (Art. 6-1) is in fact applicable the exclusion of a duty of care on the part of the police in a limited area is compatible with Article 6 (Art. 6), as pursuing a legitimate aim of preventing harm to the effectiveness of the police who might otherwise be hampered by a detrimentally defensive approach to their functions or by their resources and time being diverted into re-traversing old investigations in civil litigation. This aim is pursued in a proportionate manner, in which context they point out, inter alia, that the exclusion applies, not to actions against the police in negligence generally, but only in the limited category of the investigation or suppression of crime where the police have not voluntarily assumed responsibility for a particular person and where there are no countervailing public policy considerations which outweigh it. Further, the Government note that the applicants could sue Paget-Lewis himself and apply to the Criminal Injuries Compensation Board.
Concerning the applicability of Article 6 para. 1 (Art. 6-1) of the Convention
115. The Commission recalls that Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations") over rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law. It does not in itself guarantee any particular content for "rights and obligations" in the substantive law of Contracting States (cf. Eur. Court HR, James and others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, para. 81; Lithgow and others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, para. 192). It is also established case-law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims that an interference with his "civil rights" is unlawful the right to submit that claim to a tribunal satisfying the requirements of that provision (Eur. Court HR, Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, para. 44). The claim or dispute, however, must be of a "genuine and serious nature" (cf. Eur. Court HR, Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). Furthermore, in the "contestations" or disputes contemplated by Article 6 para. 1 (Art. 6-1) it may be the actual existence of a "civil right" which is at stake (e.g. Eur. Court HR, Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, para. 55).
116. In order to establish a claim in civil proceedings, an applicant must generally satisfy a number of conditions: these may be of a procedural nature (time-bars, personal capacity to act, formal requirements) and of a substantive nature (i.e. that the ingredients of the right claimed are proved in the particular case). In the former category, the Convention organs have treated the effect of the condition as a restriction on access to court which must be justified in terms of the Ashingdane criteria (see below para. 124).
117. As regards the latter category, the approach has been to view a limitation on the content of the right not as concerning a bar on access to court, but rather as indicating a lack of legal basis of the right in domestic law, in respect of which Article 6 para. 1 (Art. 6-1) does not apply. Whether a defence, immunity or exclusion of liability which takes effect in defined circumstances falls within the latter category is a difficult question. In Ashingdane itself, the Court found it unnecessary to decide if exclusion of liability in civil proceedings which might otherwise lie in respect of acts done in pursuance of the Mental Health Act provisions defined the content of the right or imposed a restriction on access. In Fayed (Eur. Court HR, Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B), the Court found it unnecessary to decide if the immunity or privilege in defamation delimited the content of the right to reputation under English law or, as the Commission had found, acted as a limitation on the right to bring defamation proceedings. In Tinnelly and McElduff (Nos. 20390/92 and 21322/93, Comm. Report 8.4.97, pending before the Court), where an Act conferring rights against discrimination in employment did not apply where an act was done for the purpose, inter alia, of safeguarding national security, the Commission found that the serving of a certificate by the Secretary of State as conclusive evidence that national security applied conferred a form of immunity from action and blocked access to court.
118. On the other hand in Powell and Rayner (Eur. Court HR, judgment of 21 February 1990, Series A no. 172), where a statute provided that nuisance and trespass would not lie in respect of the ordinary incidents of flights of aircraft which conformed with reasonable height requirements and applicable navigation regulations, the Court found that as a result of this exclusion of liability the applicant houseowners could not claim to have a substantive right under English law to obtain relief for exposure to aircraft noise in those circumstances. Legislative exclusion of the right of prior option on purchase in respect of the expropriation of shares in the applicants' case was not found to raise issues of access to court (No. 14324/88, Dec. 19.4.91, D.R. 69, p. 227) nor rejection on formal grounds of a claim for compensation by the applicant seller of land on refusal of a permit for sale to the buyer, where his claims relied on expropriation provisions which had been found by the courts to have no applicability in his case (No. 12810/87, Dec. 18.1.89, D.R. 59 p. 172).
119. The case-law nonetheless identifies the important principle protected by Article 6 para. 1 (Art. 6-1) that civil claims must be capable of being submitted to a judge (Eur. Court HR, Golder judgment of 21 February 1975, Series A no. 18, para. 35). Arbitrary action by a Contracting State to do away with its courts or remove their jurisdiction to determine certain classes of civil actions and entrust them to organs dependent on the Government would be incompatible with Article 6 para. 1 (Art. 6-1) (Golder loc. cit.; Ashingdane v. the United Kingdom, Comm. Report 12.5.83, para. 93). This consideration has been held to apply by the Commission not only to procedural limitations but also in respect of what was considered to be a substantive immunity from liability, ie. where a soldier injured in an accident was barred by legislative provisions from making a claim in tort against the officer who was driving and the Ministry of Defence (Dyer v. the United Kingdom, No. 10475/83, Dec. 9.10.83, D.R. 39 p. 246). In that case, the Commission examined whether there had been an arbitrary limitation of the applicant's civil claims as a result of the statutory exclusion in liability. The Court also had regard to this principle in the Fayed case (op. cit. para. 65):
"... it would not be consistent with the rule of law in a democratic society or with the basic principle underlying article 6 para. 1 - namely that civil claims must be capable of being submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons."
120. In Fayed (op. cit. para. 67), the Court also commented that whether or not a limitation is procedural or substantive is not always an easy matter to trace and may appear to be a question of legislative technique as to whether the limitation is expressed in terms of the right or the remedy.
121. In the present case, the limitation has been imposed by the courts, not the legislature, in their interpretation and development of the common-law based tort of negligence. As the arguments of the parties show (paras. 111-114 above), immunities of this kind may be expressed in either procedural or substantive terms. The Commission considers that the distinction becomes unhelpful in such circumstances. There may be cases where a claim clearly has no basis in domestic law, or there has been a legislative intervention which, as in Powell and Rayner, defines the act or conduct in respect of which liability arises. Once it is apparent however that the applicant is relying on a right which exists in domestic law it is not decisive for the applicability of Article 6 para. 1 (Art. 6-1) that because of the operation of a defence, privilege or immunity in favour of a particular defendant the action is inevitably doomed to failure.
122. The Commission is of the opinion that the following factors are significant in this case:
- negligence as a cause of action is framed in general terms; - until the case of Hill in 1989 it was not established that the general principles of foreseeability and proximity would not apply in the ordinary way in determining whether the police could owe a duty of care to a particular person; - the rejection of the applicants' case in light of Hill was based purely on considerations of public policy; - the exclusion of liability is not principally based on re-qualifying conduct as falling outside the notion of negligence or as defining the elements of the right but rather operates to protect a particular group of defendants from suit.
123. Consequently, the Commission finds that the applicants' claim against the police in negligence was arguably based on an existing right in domestic law. The courts' development of an immunity for a particular group of defendants, the police, when acting in a particular capacity, may be equated to a bar to the applicants' action in this case and as such amounts to a restriction on their access to court in the adjudication of their civil claims.
Compliance with the requirements of Article 6 para. 1 (Art. 6-1)
124. The relevant principles to be applied in cases of limitations on access to court are established as follows:
"(a) The right of access to the courts secured by Article 6 para. 1 (Art. 6-1) is not absolute but may be subject to limitations; these are permitted by implication since the right of access 'by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals'.
(b) In laying down such regulations, the Contracting States enjoy a certain margin of appreciation, but the final decision as to observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.
(c) Furthermore, a limitation will not be compatible with Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
(Eur. Court HR, Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, para. 194 citing Ashingdane v. the United Kingdom op. cit. para. 57).
Legitimacy of the aims pursued by the limitation
125. The Commission recalls that the exclusion of liability of the police in the investigation and suppression of crime is stated by the Government and the domestic courts to be based on considerations of maintaining the efficacy of the police by avoiding "defensive policing" and preventing diversion of resources. It accepts that this may be considered a legitimate aim.
Proportionality of the means employed
126. The Commission notes that the exclusion of liability of the police is, first of all, limited to alleged negligence in the exercise of their functions in the investigation and suppression of crime. It appears that the police remain liable for damage attributable in the exercise of other functions, whether from failure to take steps to protect property or life in operational situations or failure to take care of persons under their responsibility. While as the Government point out this indicates that there is no blanket immunity to the police, the Commission observes that the liability to suit of the police in other areas is not considered as impacting negatively on their effective functioning. The reference to "defensive policing" resulting from the liability of suit for failure to prevent crime appears to reflect the concern that police would alter their procedures with a view to protecting themselves from actions for negligence. It is not readily apparent, where the basis of negligence in domestic law is liability for failure to take reasonable care to prevent foreseeable damage, that action by the police to respond to these eventualities would be detrimental to their effective functioning. Nor can the argument of the impact on resources be of material significance in itself since the exclusion of liability of public servants from civil claims on the grounds of costs is difficult to reconcile with the rule of law.
127. The applicants have also highlighted the fact that arguments of use of resources and impact of litigation on effective functioning are not utilised in the context of other crucial public services, such as the medical profession and firefighters. The Commission has considered whether the role of the police in the investigation and suppression of crime is such as to distinguish it from other areas of public service, where the right to pursue civil claims for damages is regarded as outweighing any effect on, for example, resources or efficiency. While the prevention of crime is a task less immediately confined in time and place than those habitually performed by doctors and firemen rendering it to a large degree unpredictable and subject to the influence of a multitude of external and uncontrollable factors, the Commission is not persuaded that this is a convincing argument on which to found an exclusion of all liability, whatever the circumstances.
128. The Commission recalls that in the leading case of Hill (see Relevant domestic law and practice, paras. 73-75), the grounds for rejecting the applicant's claims of police negligence were not only the exclusion on public policy grounds but also the consideration that there was an insufficient proximity between the Yorkshire Ripper and the victim, such as to reveal that she was at any more risk from him than any other young female and thus the police could not be said to owe her a duty of care in respect of their failure to apprehend him. It would appear that in the vast majority of cases of crime the link between a potential perpetrator of a crime and the future victim will rarely be of such concrete kind that the police could anticipate that their failure in investigation would be likely to result in particular damage or injury occurring. Before the Commission, it has not been established that the conduct of the police was in violation of the standards imposed by Article 2 (Art. 2) of the Convention. However, the applicants claim in terms of domestic law that the police were in a relationship of proximity with the applicants and their family such as to render them liable for the foreseeable damage which occurred. They were however denied the opportunity of establishing the factual basis of their claims in adversarial proceedings due to the operation of the immunity.
129. The Commission has given weight to the applicants' argument that the right to life is of such paramount importance that an immunity which does not distinguish between negligence with trivial effects and that with catastrophic results is disproportionate. It is not persuaded that the possibility of suing Paget-Lewis as the person directly responsible for the injury or of applying for compensation to the Criminal Injuries Compensation Authority mitigates the applicants' inability to proceed against the police, the essence of their claim relating to the alleged circumstances that the applicants placed reliance on the police to protect them against a known threat and the police misled, and neglected their duty towards, them.
130. The Commission concludes that the application of the exclusion of liability in this case operated in a disproportionate manner to restrict the applicants' access to court.
CONCLUSION
131. The Commission concludes, by 12 votes to 5, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
F. As regards Article 13 (Art. 13) of the Convention
132. Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
133. The applicants submit that they have an arguable claim that the obligation to protect life under Article 2 (Art. 2) has been violated by the police and thus should enjoy the right to an adjudication on the merits of this issue by a national authority with the possibility to provide redress. They submit that the possibility to obtain ex gratia payment from the Criminal Injuries Compensation Authority does not afford a right to a remedy or redress in respect of their complaint against the police. Similarly the possibility to sue Paget-Lewis or the ILEA doctor was not capable of addressing the central question on which the application is based, namely, whether the death of Ali Osman and injury to Ahmed Osman could have been prevented if the police had acted adequately and appropriately.
134. The Government submit that in the circumstances of this case the applicants have no arguable claim of a violation of Article 13 (Art. 13) such that they can claim a right to an effective remedy in respect of those matters. Even assuming there was an arguable claim, they refer to their arguments which explain the justification for the immunity to the police under Article 6 (Art. 6) and submit that the real and serious public policy reasons must also be taken into account under Article 13 (Art. 13), otherwise the national law would be required to provide a remedy against the police, notwithstanding the harm which would be caused, inter alia, to the effective protection of others. In these circumstances, the opportunity to sue Paget-Lewis and apply for criminal injuries compensation provides remedies which are as effective as can be given the serious justification for the "police immunity".
135. The Commission recalls its findings above (para. 131) that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. Where questions of civil rights and Article 6 (Art. 6) arise it is not necessary to make a separate examination of the case under Article 13 (Art. 13) of the Convention "because its requirements are less strict than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1)" (Eur. Court HR, R. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 126, para. 90 amongst other authorities).
CONCLUSION
136. The Commission concludes, by 12 votes to 5, that no separate issue arises under Article 13 (Art. 13) of the Convention.
G. Recapitulation
137. The Commission concludes, by 10 votes to 7, that there has been no violation of Article 2 (Art. 2) of the Convention (para. 104).
138. The Commission concludes, by 10 votes to 7, that there has been no violation of Article 8 (Art. 8) of the Convention (para. 109).
139. The Commission concludes, by 12 votes to 5, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 131).
140. The Commission concludes, by 12 votes to 5, that no separate issue arises under Article 13 (Art. 13) of the Convention (para. 136).
H.C. KRÜGER S. TRECHSEL Secretary President to the Commission of the Commission
(Or. English)
PARTLY DISSENTING OPINION OF MR. S. TRECHSEL, JOINED BY MM. E. BUSUTTIL, A. WEITZEL, J.-C. GEUS, I. CABRAL BARRETO AND I. BÉKÉS
I regret that in the present case I cannot agree with the majority in finding that there has been no violation of Article 2 of the Convention. In my view, there was such a large number of extremely worrying signals that the half-hearted efforts of the police to exercise control over Paget-Lewis denote a lack of protection incompatible with the obligation "to secure" the applicants' right to life.
For the relevant facts I can refer to the summary set out in para. 96 of the Report. Of course, it is not enough to find that, with the benefit of hindsight, it was abundantly clear that there existed a very serious danger of Paget-Lewis becoming lethally violent. Still, even ex ante it is very difficult to understand the relative unconcern of the police.
First, I am struck by the degree of negligence in the management of informations. It appears that there was no file in which every event concerning the situation was mentioned and no efforts seem to have been made to complete such a file and to follow the course of events closely.
Second, I cannot help noticing a certain inconsistency in the behaviour of the police. At one point it was decided to arrest Paget- Lewis. He was not found at home. A brief inquiry with the ILEA would no doubt have disclosed the fact that he was teaching. Yet, no such inquiry was made. Subsequently Paget-Lewis disappeared - it may well be that he found out about the attempt at arresting him and was warned thereby.
Third, I find it difficult to understand why no efforts were made to find evidence as to the various acts of vandalism which were most probably committed by Paget-Lewis. Establishing whether he was in fact the person who had committed them would have further enhanced his dangerosity.
Fourth, the fact that Paget-Lewis changed his name to Osman strongly indicated that he was totally obsessed.
Fifth, I attach particular weight to the fact that, on 7 December 1987, Paget-Lewis drove his car on purpose into a van in which Leslie Green was a passenger. This is, in my view, a highly alarming behaviour which betrays a complete loss of emotional control over explosive feelings and desperate aggressivity and the act in itself also constituted a very dangerous offence.
Sixth, I am not impressed with the fact that an ILEA-psychologist did not consider Paget-Lewis as dangerous; in my view it was obvious that at the very least he had serious psychological of not psychiatric troubles which called for a very careful examination.
Seventh, I am not impressed either with the argument that Paget- Lewis' aggressiveness was not only directed against the applicant's family. As long as he was dangerous, and I see no reason which would ever, after March 1987, have permitted to assume anything else, he certainly constituted a danger also, if not in the first place, to Ahmed and Ali Osman.
All in all, and the above list is by no means exhaustive, this case, presents an extraordinary multitude of signals from which it was obvious that Paget-Lewis constituted a serious danger to the applicants' lives.
In my view this danger fave raise to a duty, on behalf of the authorities, in particular the police, to protect potential victims, including in particular the applicants. I accept that it was not poxssible to set up a permanent protection of the endangered persons by body-guards. I am quite aware that such a protection necessitates an enormous efforts and is also very costly. However, it would have been possible, in the present case, to concentrate on the source of the danger, a single person who does not seem to have shrewdly attempted to conceal his whereabouts.
The question then arises as to whether seriously watching over, probably also arresting Paget-Lewis would have saved the applicants. The majority, without making it explicitly clear, apply a test of causation which I cannot follow. They seem to assume that, in order to find a violation of Article 2 due to failure to "secure" the life of the applicants, a strict link of causation must be established, a conditio sine qua non. Of course, as the responsability due to omission is at issue, it would have to be a conditio cum qua non which would be called for: Would the result not have happened if the police had taken the necessary steps?
However, this is not a realistic test. In fact, no "real", factual link of causation can ever be established between an omission and a result - ex nihilo nihil fit. We can argue only by way of hypotheses. Here, two tests may be applied. The first one, a test of probability, would mean that the link is established if there is a very high probability, bordering on security, that the measures of protection which were not taken would have avoided the result. I tend to think that even in applying this test it may be said that arresting Paget-Lewis, establishing his authorship of the acts of vandalism, carefully examining his dangerousness etc. would have averted the fatal shootings.
But I propose a different test, a test which is less strict and which I would reject if criminal responsability is at issue, but which I consider called for where the protection of human rights is under examination. I am referring to the test of "increase of risk". Responsability is established, under this test, as soon as it can be said that the action called for would have considerably diminished the risk of the result, in other words, if the omission considerably increased that risk.
In the present case, I have no doubts that the answer must be positive and I therefore reach the conclusion that there has been a violation of Article 2 due to the fact that the authorities did not take the necessary steps to secure the lives of the applicants.
As far as Article 8 is concerned I have voted against the conclusion that there has been no violation because in view of my opinion on Article 2 no separate issue arises under Article 8.
(Or. English)
PARTLY DISSENTING OPINION OF MR. L. LOUCAIDES
I regret that in the present case I cannot agree with the majority in finding that there has been no violation of Article 2 of the Convention.
In my view the duties imposed under Article 2 of the Convention as regards the right to life include the obligation to provide for and to take preventive measures through the appropriate authorities, in this case the police, to avert every real danger to human life in all those cases where concrete evidence, signalling such danger comes to the knowledge of the authorities.
In this particular case several pieces of evidence, if taken together and assessed properly, were clearly giving a signal that Paget-Lewis was a deranged person with perverse tendencies capable of becoming dangerously violent. The following pieces of evidence were indicative of the problem:
- Paget-Lewis was employed as a teacher at the school attended by the second applicant, a boy called Ahmed Osman, then 14 years old. By mid-March 1987 the conduct of Paget-Lewis was a concern to the school and it was known that he was showing a disturbing attachment to Ahmed Osman.
- Paget-Lewis was also exhibiting worrying conduct in relation to another boy at the school, Leslie Green, accusing him of deviant sexual practices and spreading rumours to that effect. This was done in a context of jealousy of the friendship of Leslie with Ahmed. Paget-Lewis had followed Leslie home from school. Ali Osman was sufficiently worried about these developments to express his wish for Ahmed to transfer to another school.
- In March 1987 the school was in contact with the police on four occasions.
- There followed the change of name of Paget-Lewis to Paul Ahmed Yildirim Osman and the disappearance from the school office of the files of the boys. The police were informed of these developments.
- From May-November, the Osman family were subject to a series of vandalising attacks on their home and car, which could be categorised as offences of criminal damage. The police were informed of all these incidents.
- The Commission was satisfied that the police must have been aware of the concerns of the school and the Osman family and the seriousness with which they were regarded.
- On 7 December 1987, Paget-Lewis drove his car on purpose into a van in which Leslie Green was a passenger.
- Also in December 1987 the police were told that Paget-Lewis had made vague threats against the Deputy Head of the school and that the school authorities were very concerned.
The deranged personality of Paget-Lewis should be obvious. This coupled with his perverse interest towards Ahmed Osman and the incidents which followed should have been considered as a sufficient alarm necessitating a close study and watch of the case by police with a view to taking the necessary action in time in order to secure the safety of the Osman family and those persons affected by Paget-Lewis's relevant perversions and obsessions.
Yet, the police did not give to the case the attention it deserved. They did not keep a close watch of Paget-Lewis, as a suspect, in the exercise of their duty to prevent the commission of crimes. Moreover, there is no convincing evidence that the police tried to investigate properly his bizarre behaviour or even draw his attention to the fact that his activities were the subject of concern to the police who were keeping the situation under observation. They did not even take effective steps to implement a decision to arrest Paget-Lewis which decision was apparently taken because the police were convinced that he was presenting sufficient threat justifying his arrest.
Any who reads as a whole the relevant information of this case which was within the knowledge of the police has no difficulty to come to the conclusion that the police should have acted in a quicker, more concrete and effective way to prevent Paget-Lewis from putting into danger the lifes of those who eventually were killed by him. Here, it might be interesting to recall what Paget-Lewis, himself, said when he was arrested after such killings:
"Why didn't you stop me before I did it. I gave all the warning signs."
I attach particular importance to the fact that the police did not keep or maintain proper records of the incoming relevant information in this case. Such records would have certainly made it possible to follow the developments of the case which when considered as a whole and assessed properly would have led to effective, preventive measures securing the safety of those endangered by the potentially violent obsessions of Paget-Lewis.
Therefore, I find that in so far as the police authorities of the respondent Government have failed to take the necessary preventing measures in order to secure the life of the tragic victims in this case the respondent Government has acted in breach of Article 2 of the Convention.
(Or. English)
PARTLY DISSENTING OPINION OF MR. N. BRATZA, JOINED BY MRS. G.H. THUNE, MRS. J. LIDDY, MM. P. LORENZEN AND K. HERNDL
I share the opinion and reasoning of the Commission that there has been no violation of Article 2 or Article 8 of the Convention in the present case. However, I am unable to agree with the majority that the facts disclose a violation of Article 6 para. 1 of the Convention on the grounds that the exclusion of liability of the police operated in a disproportionate manner to restrict the applicants' access to court.
As is noted in the Report the Government's principal contention in respect of the applicants' complaint under Article 6 is that the Article is inapplicable since the Court of Appeal in the present case concluded that the applicants had no right recognised under domestic law to claim damages against the police. It is argued that, in order to establish the existence of a duty of care in domestic law giving rise to a cause of action in negligence, it is necessary not only to establish the elements of proximity of relationship and foreseeability of damage but additionally to show that in the particular circumstances of the case it would be fair, just and reasonable to impose such a duty. It is accordingly contended by the Government that the exclusion of liability of the police in matters related to the investigation and suppression of crime operates not as a procedural bar to access to court but as a limitation on the substantive right recognised under English law.
The majority of the Commission rejected this argument, concluding that even though framed as a substantive element of the tort, the domestic courts' development of an immunity for a particular group of defendants - in this case, the police - may be equated to a procedural bar to the applicants' proceedings in negligence and as such amounts to a restriction on their access to court in the adjudication of their civil claims.
I have not found it necessary finally to determine whether or not the applicants' claims were based on civil rights recognised under domestic law since, even assuming Article 6 to be applicable in the present case, the requirements of that provision were in my view not violated.
The relevant principles to be applied in cases of limitations of access to court are summarised in paragraph 124 of the Report. Such limitation must pursue a legitimate aim, must be proportionate to the aim sought to be achieved and must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.
In striking out the applicants' claim, the Court of Appeal found the case to fall squarely within the decision of the House of Lords in Hill v. Chief Constable of West Yorkshire [1989] A.C. 53, in which the public policy objections to the existence of an action in negligence against the police in the performance of their duties in the investigation and suppression of crime were set out.
The House of Lords, in the leading judgment of Lord Keith, expressly acknowledged that the potential existence of liability in negligence may in many instances be in the general public interest as tending towards the observance of a higher standard of care in the carrying out of various types of activity. However, it was considered that the general sense of public duty which motivated police forces was unlikely to be appreciably reinforced by the imposition of such liability so far as concerned their function in the investigation and suppression of crime. It was the view of the House of Lords that, on the contrary, in some instances the imposition of liability might lead to the exercise of a function being carried on in a detrimentally defensive frame of mind.
The House of Lords went on to observe that it would be reasonable to expect that, if potential liability were to be imposed, it would be not uncommon for actions to be raised against police forces on the grounds that they had failed to catch a criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure, others would be likely to enter deeply into the general nature of a police investigation:
"The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted."
While contrary views may be held as to the justification for excluding the tortious liability of the police in such cases, it cannot in my view be said that the conclusion of the House of Lords that such limitation is necessary for maintaining the efficacy of the police, by avoiding defensive policing and preventing the diversion of resources, is arbitrary or unreasonable. Indeed the difficulties envisaged by the House of Lords are in my view well illustrated by the facts of the present case. The Statement of Claim in the domestic proceedings alleged numerous failures on the part of the police in the handling of the case, including a failure to apprehend Paget-Lewis on 17 December 1987 or prior to the shootings; a failure to interview him; a failure to search his home; a failure to charge Paget-Lewis with any offence more serious than driving without due care and attention; a failure to exercise the powers to detain Paget-Lewis on the grounds of mental illness; and a failure to alert Paget-Lewis that the police were looking for him. These allegations would involve an investigation not only into issues of fact but into acutely difficult questions of policy and discretion on the part of the police, faced as they were with a situation which could as easily be exacerbated as defused by any inappropriate action by them.
In the opinion of the majority of the Commission it is accepted that the exclusion of liability of the police may be considered as pursuing a legitimate aim. It is further accepted that, as evidenced by the cases referred to in paragraphs 76-80 of the Report, the exclusion confers no blanket immunity on the police, limited as it is to alleged negligence in the exercise by the police of their functions in the investigation and suppression of crime.
The conclusion of the majority that the exclusion of liability was in the present case disproportionate to the legitimate aim served is based on three principal grounds: (1) the claimed absence of any convincing argument that an action in negligence would be detrimental to the effective functioning of the police, particularly having regard to the fact that such an argument is not utilised to exclude the liability of other crucial public services, such as the medical profession and firefighters; (2) the claim that the removal of the immunity would not result in a flood of actions against the police since in the vast majority of cases the line between a potential perpetrator of a crime and the future victim would not be of such a concrete kind that the damage or injury would be the foreseeable result of a failure of investigation; and (3) the alleged disproportionate nature of an immunity which fails to distinguish between negligence with trivial effects and that with catastrophic results, such as the loss of life.
None of these considerations is in my view sufficient to suggest a lack of proportionality between the exclusion of tortious liability of the police and the aim thereby sought to be achieved. As to the comparison between the police and other public services, the role of the police in the prevention of crime is, as acknowledged by the majority of the Commission, significantly different in nature from that of the firefighter or medical practitioner, involving as it does the making of assessments about human conduct which is to a large degree unpredictable and influenced by numerous external, uncontrollable factors, and the taking of policy decisions in the light of such assessments.
As to the second ground relied on by the majority of the Commission, while it may be true that it will be a comparatively rare case in which a plaintiff is able to show a sufficient degree of proximity and foreseeability to establish the foundations of a claim in negligence against the police, this does not in my view undermine the reasoning of the House of Lords as to the need for a general exclusion of tortious liability of the police in matters relating to the investigation and suppression of crime.
As to the third ground relied on, having regard to the special considerations affecting the role of the police, I do not find it unreasonable or arbitrary that the domestic courts have based the exclusion on the character of the police role without differentiating between cases by reference to the seriousness of the damage alleged to have resulted.
The applicants in the present case complain of a violation of one of the most fundamental rights guaranteed by the Convention - the right to life. It is true that, in consequence of the decision of the House of Lords, as applied to their case by the Court of Appeal, they have been denied the right to an examination by the domestic courts of the actions of the police leading up to the death of Ali Osman with a view to obtaining an award of damages against the police in respect of the death. Nevertheless, it is I consider of importance that the applicants were not thereby left without any remedy. As noted by the majority of the Commission, an action lay against Paget-Lewis as the person directly responsible for causing the death. More importantly, a claim lay for an award of compensation for the death under the Criminal Injuries Compensation Scheme, which was expressly set up for the purpose of compensating the victims of crimes of violence.
In these circumstances, I consider that the exclusion of tortious liability of the police in the present case was not disproportionate and did not restrict or reduce access to court in such a way or to such an extent that the very essence of the right guaranteed by Article 6 was impaired.
For substantially the same reasons, namely that remedies were in my view available to the applicants under domestic law in respect of the deprivation of life of Ali Osman, I have concluded that there was no violation in the present case of Article 13 of the Convention.