Michael & Ors v South Wales Police & Anor

Just before half past two in the early hours of the 5^th August 2009, a young mother, Joanna Michael, made a 999 phone call on her mobile phone to the police from her home in St Mellons, east of Cardiff. The signal was received at a mast across the county border and accordingly a Gwent Police operator, Ms Mason, took the call. Miss Michael informed Ms Mason that her former partner, Cyron Williams, had come to the house, had found her with someone else, had bit her ear really hard and taken the other person away in his car, saying he would return to hit her. Later on in the phone call, which lasted just over three minutes, she is recorded as saying that Williams said he was going to return to kill her. There is an issue as to whether that was audible to Ms Mason. Ms Mason said the call would be passed on to South Wales Police, who would want to call her back, and asked her to keep the phone free. She replied “Alright, then”. The call was automatically graded as requiring an immediate response envisaging attendance on Ms Michael in about 5 minutes.

The operator then spoke to her counterpart, Mr Gould, in an emergency control room at South Wales Police and passed on these rather scant details, but said Williams had threatened to return to hit Miss Michael, not referring to the threat to kill. Ms Michael’s phone number was passed on.

By 2.30 a.m. the information was relayed to police officers on mobile patrol. The call should have continued to be graded as requiring an immediate response. Instead it was graded at the next level of priority down. The officers took some time to gather further information. It is alleged that the decision to downgrade the urgency of the call was made by Mr Gould.

At 2.43 a.m. a further emergency call was received from Ms Michael by Gwent Police. There was screaming, which then stopped. That call was graded immediate and at 2.51 a.m. police officers arrived and found she had been stabbed to death. Williams has now been convicted of her murder and is serving a life sentence.

The family which Ms Michael left behind includes two young children, her father and her mother. They and her estate now bring claims against the Chief Constables of the two respective police forces for damages. The bases of the claims are negligence at common law and a failure to protect the life of Ms Michael in breach of the rights conferred by Article 2 of the European Convention of Human Rights as incorporated by the Human Rights Act 1998.

On behalf of the Chief Constables it is accepted that the handling of the 999 calls by their respective forces was attended by serious failings. In the months leading to Ms Michael’s tragic death, South Wales Police had attended at her home to deal with domestic violence issues between her and Williams. There are some factual disputes as to the precise number and nature of those attendances, but there were at least four of them.

The judge summarised the failings by reference to a report of the Independent Police Complaints Commission in July 2010. The report concluded that there were both individual failings and systemic failings; the latter included the problem of Ms Michael’s calls being “misrouted” to Gwent rather than South Wales, the radio request of a police dog handler being made at the same time as Ms Mason was listening to the call, and also the lack of proactive intervention in terms of how she was dealt with in the past by South Wales Police in relation to the domestic violence incidents. The individual failings included (1) the fact that vital information was not taken from Ms Michael by the Gwent control room operator; (2) poor communication in that relevant information was not provided to South Wales Police; (3) a lack of proactive engagement with Ms Michael in that the South Wales Police operator did not contact her, graded the call incorrectly and did not inform her that officers had been dispatched; and (4) that the response officers had insufficient information and so conducted their own telephone checks, which meant that their attendance was not as speedy as it could have been. The Commission also found that Mr Gould, the South Wales Police operator, fell below the standards expected. He failed to obtain vital information for a full risk assessment by failing to call Ms Michael. He failed correctly to grade the call. He did not have all the relevant information he needed. He could have obtained that information by contacting Ms Michael and without it should have erred on the side of caution and graded the call as requiring an immediate response.

These are the circumstances in which the Chief Constables apply to strike out the claims on the basis that in law they disclose no reasonable causes of action. Alternatively, they apply for summary judgment on the basis that the claims have no real prospect of success. It is submitted on their behalf that the court should not be swayed, by the obvious sympathy the court must feel for the family, to allow claims to progress which are bound in law to fail.

The hurdles which the claims have to surmount to survive these applications are not high. The application to strike out is made under Rule 3.4(2)(a) of the Civil Procedure Rules 1998, which provides that the court may strike out a statement of case if it appears to the court from the statement of case that the claimant has no reasonable grounds to bring a claim. Under Rule 24.2 the court can give summary judgment against a claimant if it considers that the claimant has no real prospect of succeeding on the claim. In order to defeat such an application it is sufficient to show that there is some prospect or some chance of success. That prospect must be real. The court will disregard prospects which are fanciful or imaginary. But a claimant is not required to show the case will probably succeed at trial, and a case may be held to have a real prospect of success even if it is improbable.

In the case of Hill v Chief Constable of West Yorkshire [1989] AC 53 it was held in the House of Lords as a matter of private law that a negligence action could not be brought against the police in respect of a failure to identify and apprehend a criminal (in that case the Yorkshire Ripper) where that failure resulted from actions relating to the investigation or suppression of crime. The police had an “immunity” from suit. The word “immunity” has given rise to some misunderstanding on the part of European Court of Human Rights on the question whether access to the courts was thereby prohibited or impeded, see Osman v UK (1999) EHRR 245 as qualified by Z v UK (2001) 34 EHRR 97. In the later House of Lords authority of Brooks v Commissioner of Police of the Metropolis and Others [2005] 1 WLR 1495 (the case of the mistreatment of Stephen Lawrence’s friend Dwayne Brooks) Lord Steyn said that it would be better if the principle of Hill were reformulated in terms of the absence of a duty of care, rather than a blanket immunity. He went on to observe that with hindsight not every observation in the Hill case could be supported. He referred to the observation of Lord Keith that everyone, including the police, makes mistakes from time to time, but it is not to be doubted that they apply their best endeavours. “Nowadays”, said Lord Steyn, “a more sceptical approach to the carrying out of all public functions is necessary”. It was moreover accepted in Brooks that where there is an assumption of responsibility, that would fall outside the principle in Hill’s case. In any such case there is no need to inquire separately whether it is fair, just and reasonable to impose liability. At paragraph 30 Lord Steyn went on to say this.

“But the core principle of Hill’s case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill’s case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect. But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime, protecting life and property”.

In the further House of Lords cases of Van Colle and Smith [2009] 1 AC 225, the House considered two cases. In the first the accused, in the weeks preceding his trial on charges of theft, approached certain witnesses, including the son of the claimant and tried to persuade them not to give evidence. There were incidents of damage to property, some of which were reported to the police, including two telephone calls from the accused to the claimant’s son. The claimant alleged that no steps were taken to protect his son and later the accused shot him dead. The claimant relied on both common law negligence and on Article 2 of the European Convention of Human Rights (“the right to life”). In the second case the claimant reported to the police that he had received persistent and threatening telephone, text and internet messages from his former partner following the break-up of their relationship, including threats to kill. He provided details of a history of violence, the partner’s home address and the contents of the messages. The police failed to look at the messages, took no statement and completed no crime form. They did take steps to trace the calls and informed him of the progress of that investigation. Shortly thereafter he was attacked by his former partner at home and sustained severe injuries. The House allowed the defendant’s appeal in each case. In Van Colle it overturned the judgment in favour of the claimants and in Smith it reinstated the judge’s order striking out the claim (Lord Bingham dissenting in the second case, in which there was no Article 2 claim because the relevant limitation period had expired).

His Honour Judge Jarman QC sitting in Cardiff (as this Court also did to hear the appeal) held that there were serious issues of fact which could only be determined at a hearing of both the negligence claim and the Article 2 claim. At the stage of decision he did not recapitulate them but they (or serious issues of mixed fact and law) had emerged earlier in his judgment as essentially being:-

Mr Jeremy Johnson QC submitted that the judge was wrong to let the case go to trial. He accepted that Hill was not a complete answer to the claims but said any police activity in the course of investigating or suppressing crime could not be made the subject of an action. He accepted that if, against that background, there was

Mr Nicholas Bowen QC, placing some reliance on the remarks of Arden LJ in An Informer v A Chief Constable [2012] EWCA Civ 197 paras 93-94 and 109-111, ranged rather more widely.

He accepted that the non-actionability doctrine set out in Hill, Brooks, Van Colle and Smith applied to what he called “true policing functions” such as deciding which leads to follow, which witnesses to pursue and how they were treated, who to arrest and what judgment calls to make having regard to resources or policy decisions within the police force; but he submitted that not-actionability could not apply:-

Speaking for myself, I found this submission not only more far-ranging than necessary for the decision in this particular case but also somewhat unfocused. Mr Johnson had in any event accepted categories (3) and (6) above and it will be necessary to decide whether there was an arguable case of assumption of responsibility. But as far as (6) is concerned, there is no evidence (apart from previous attendances by South Wales Police in relation to domestic violence) that Ms Michael had any greater relationship of proximity than any other person making a 999 call and I cannot see the relevance of category (6) to this particular case. As for categories (2) (4) and (5), they appear to cut across the non-actionability principle. One cannot just say for example that responding to a 999 call is a clerical or administrative task and that if, therefore, an operator misdirects a call or fails to give it the appropriate grading, the police will then be liable for all the consequences of that failure; any investigation of that supposed failure and its consequences is bound to throw up questions of what a proper response should be and what are the appropriate steps to train such operators. In a case where the police are investigating or suppressing criminal activity, it would be bound to trespass into the forbidden area. Likewise it is impossible to draw any clear-cut distinction between systemic and operational negligence. It would be all too easy for a claimant in what was really a case about operational negligence to make allegations of systemic negligence which would quickly involve questions about allocation of resources and policy decisions made at a higher level in the police force which again would trespass into forbidden territory. The same consideration applies to category (5). It is on the face of it attractive to say that the police force should have policies about domestic violence and should follow those policies. But an allegation that there has been a failure to follow a particular policy relating to domestic violence is bound to end up by saying either that an individual officer should have done more to protect the victim from her assailant’s criminal behaviour or to be alleging that persons at a higher level in the force should have adopted better polices and seen that such better policies were properly enforced and applied so that an assailant’s criminal behaviour could have been avoided.

So, placing allegations in Mr Bowen’s categories (2) (4) and (5) runs into the exclusionary rule and cannot, in my view, be permitted while Hill, Brooks, Van Colle and Smith remain good law. These submissions have to be addressed, if at all, to a higher court than that in which we sit.

Nor do I see the relevance of category (7) in this case. The thinking stems from the case of Capital and Counties v Hampshire County Council [1997] QB 1004 in which the court held that in general the Fire Service was under no duty to householders when the service attends a fire but may be liable, if they made matters worse by e.g. turning off available sprinklers in the building where the fire is, when they should have been left on. I very much doubt if that can be consistent with the non-actionability rule in relation to the police but, in any event, no conduct of this sort has occurred in this case.

Mr Johnson pointed out that in Van Colle and Smith Lord Bingham of Cornhill said (para 44):-

“I would hold that if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and if appropriate take reasonable steps to prevent it being executed. I shall for convenience of reference call this “the liability principle”.”

He submitted that many of Mr Bowen’s submissions proceeded on the basis that this was the law but it was not the law because what Lord Bingham had called the “liability principle” was rejected by every other member of the House.

That leaves for consideration categories (1) and (3) which Mr Johnson would accept in theory but which, he submitted, were not arguable on the facts. I agree with him.

Once Ms Michael had reported that she had been hit and was obviously seeking the assistance of the police by means of the 999 call, the police in seeking to come to her aid were at least investigating the crime of assault and battery and hoping to suppress further crimes of that nature. If, of course, Ms Michael said in audible terms that Williams was going to come back and kill her (which is, as I understand it, the claimant’s case) the police were investigating the crime of making a threat to kill and endeavouring to avoid (or suppress) an actual killing. The fact that the police failed in that endeavour does not mean that no investigation into criminal activity had begun.

The question of assumption of responsibility to Ms Michael is not much more difficult. The South Wales police assumed no responsibility to her because they were never in contact with her. The highest it can be put against the Gwent police is that Ms Mason, by informing Ms Michael that South Wales police “would want to call her” was saying that South Wales police would call her and that she should keep her phone free. To my mind this was more a routine expression of expectation that South Wales police force would call her not an assurance that they would and, still less, was it any assumption of responsibility for Ms Michael’s safety or to ensure that South Wales police did indeed call her. This question is not susceptible of much elaboration and is, in my view, suitable for disposal, at any rate, on an application by the defendants for summary judgment, if not by a strike out application.

To this extent, therefore, I would respectfully disagree with the judge and hold that it is neither necessary nor appropriate that the factual inquiries he envisaged (which I have attempted to summarise in para 12 above) should be determined at trial as part of a claim for common law negligence.

I view this case rather differently because there is no case of non-actionability in answer to a Convention Claim. In Van Colle the House of Lords rejected the notion that the potential existence of a Convention claim should alter the non-actionability rule at common law. But conversely the common law non-actionability rule cannot, in my view, inhibit a proper assessment of any claim under the Convention.

The leading case is Osman v UK (1998) 29 EHRR 245 and Mr Johnson’s submission was that Osman was a stronger case than this on its facts and that, since the European Court of Human Rights held that there was no liability to Osman, the claimant’s case here was not seriously arguable; it should either be struck out or summary judgment be given in favour of the Chief Constables. This is, of course, a forceful argument but it is not usually appropriate to give summary judgment on what is essentially a question of fact.

The pleaded facts in Osman (set out in paras 11-59 of the report and helpfully summarised by Lord Bingham in para 56 of Van Colle) showed that a school-master named Paget-Lewis had developed an infatuation for Ahmet Osman, a teenage pupil at the school where he was teaching. Paget-Lewis had spread offensive rumours about an alleged sexual relationship between Ahmet and another boy (LG); he had stalked LG and had written obscene graffiti about Ahmet and LG; he had changed his own name to Osman and created fears that he might abscond with Ahmet. He had burst the tyres of Ahmet’s father’s car and poured engine oil and paraffin into the Osman family home; he had smeared dog excrement on the family’s doorstep and the car and broken all the car windows; he had driven his car into a van in which LG was a passenger and suggested that he himself would in a few months be “doing life”; he had told LG that he would “get him” whether it took 30 days or 30 years and spoke of “a sort of Hungerford”. All this was reported to the police who assured the Inner London Education Authority that the Osman family would be protected and assured Ahmet’s headmaster that the police would take the necessary measure to protect the deputy headmaster, Ahmet and his father. The police took no effective action and Ahmet’s father was killed, as was the deputy headmaster’s son; Paget-Lewis also wounded both Ahmet and the deputy headmaster.

It was obviously a terrible case, the facts extending over a much longer period than in Ms Michael’s case. In para 116 of its judgment the court defined the circumstances in which liability ought to arise in these words:-

“it must be established to [the court’s] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”

This inquiry is self-evidently a factual inquiry highly dependent on the judge’s assessment of the threats and the manner in which they were spoken. In para 119 the Court expressed the view that Paget-Lewis’s cryptic threats e.g. to “do a Hungerford” could not reasonably be construed as a threat against the life of the Osman family. The court’s ultimate conclusion that there was no violation of Article 2 was expressed in para 121:-

“In the view of the Court the applicants have failed to point to any decisive stage in the sequence of the events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. While the applicants have pointed to a series of missed opportunities which would have enabled the police to neutralise the threat posed by Paget-Lewis, for example by searching his home for evidence to link him with the graffiti incident or by having him detained under the Mental Health Act 1983 or by taking more active investigative steps following his disappearance, it cannot be said that these measures, judged reasonably, would in fact have produced that result or that a domestic court would have convicted him or ordered his detention in a psychiatric hospital on the basis of the evidence adduced before it. As noted earlier, the police must discharge their duties in a manner which is compatible with the rights and freedoms of individuals. In the circumstances of the present case, they cannot be criticised for attaching weight to the presumption of innocence or failing to use powers of arrest, search and seizure having regard to their reasonably held view that they lacked at relevant times the required standard of suspicion to use those powers or that any action taken would in fact have produced concrete results.”

It is clear that the court was assessing the facts of a different case from that of Ms Michael’s and in particular felt able to come to the conclusion that there was no real and immediate risk to the life of the Osmans or the deputy headmaster and his son from Paget-Lewis who, in any event, was denying his involvement before the killings and the injury occurred.

One of the critical features of the present case is what a trial judge would make of the urgency of the 999 call and, indeed, its audibility made by Ms Michael to Ms Mason in Gwent. Mr Johnson invited us to listen to the tape and make our own assessment of it. We declined that invitation for my part because that is not, in my view, an appropriate course if it is sought to dispose of the case summarily without a trial. Mr Johnson then said that even if the threat to kill was clearly audible and however urgently it was expressed there could, in the light of Osman be no liability. But it does seem to me to be reasonably arguable that the case is different from that of Osman and that there could arguably be a breach of Article 2 on the facts of the present case where it is clear, on the claimant’s case, that there was on any view a threat to injure from an already identified third party which may have been the culmination of a history of domestic violence. The fact, moreover, that this is a domestic violence case is another reason for distinguishing Osman, involving as it did a teacher and a pupil in a school environment.

It is also worth remarking that the facts in Van Colle were far from justifying an Article 2 claim but there had been a trial. Smith’s case on the other hand might have generated an Article 2 claim but for the fact that it was too late to bring one. Their Lordships in the majority adverted to that possibility but did not say that any claim which there might have been would have been bound to fail. Rather the contrary, see per Lord Brown of Eaton-under-Heywood at paragraph 135 saying the apparent strength of Smith’s case might well have made an HRA claim irresistible.

It may well be that the court of trial will determine that there was no breach of Article 2, but in my view that should be established at trial not as a result of a paper exercise without witnesses. To this extent therefore I would uphold the order of His Honour Judge Jarman and direct that there be a trial of the Article 2 claim while giving judgment in favour of the Chief Constables on the common law claim for negligence.

I agree with Longmore LJ both on the issue of negligence at common law and on the article 2 issue. The decision on article 2 is in my view a marginal one, but in a marginal case I think it better to allow the matter to proceed to trial. I am also troubled about the implications, for article 2 purposes, of the division of relevant knowledge between the two police forces, and I would prefer to see their respective positions under article 2 decided on the basis of complete findings of fact and a detailed examination of the relevant relationship between the two forces. I am not persuaded that there is no real prospect of success against either of them.

I agree, for the reasons given by Longmore LJ, that the appeal on the issue of negligence should be allowed. In many ways, I think, Mr Bowen’s arguments in reality involved a re-run of the liability principle advanced by Lord Bingham in Smith. But that was not a view which found favour with the majority; and, whilst acknowledging of course that each case has its own facts, I think that the approach laid down by the majority is effectively determinative of the outcome on the issue of negligence in this case.

However, I take a different view, with respect, from Longmore LJ and Richards LJ on the outcome for the Article 2 claim. I would be for allowing the appeal on this issue also and for granting summary judgment in favour of the defendants.

The test here, as set out in Osman, is that the positive obligation arising under Article 2 is breached only if the authorities knew or ought to have known, on the facts at the relevant time, that there existed a real and immediate risk to the life of an identified individual. As pointed out by Lord Brown in paragraph 115 of Van Colle & Smith, the test is “clearly a stringent one and not easily satisfied”.

In my view, the facts alleged here (and as summarised by Longmore LJ) do not show realistic prospects of satisfying that test. In this regard I would observe that the claimants put in on the appeal, with no objection from Mr Johnson, a witness statement from Ms Mason herself, dated 13 May 2012. In it, she explained that she had a number of distractions in the control room that night and that (although re-listening subsequently to the tape she agrees the word “kill” was at the later stage of the conversation used) her recollection is that she did not hear that at the time; rather, she had certainly understood that Williams had said he was going to hit Joanna and in fact she (Ms Mason) was more concerned about the safety of Joanna’s new partner. That being evidence filed by the claimants, I see no reason not to adopt it in assessing the summary judgment application. That said, I appreciate that there still remains an issue as to whether Ms Mason ought to have heard the word “kill”.

The facts alleged here, taken at their highest, fall a very long way short of the factual position in Osman – where, on very strong facts indeed, the claim was rejected by the European Court of Human Rights. In the passage immediately preceding the exposition of the now well-known test, I note that the Court had said this (at paragraph 116 of the judgment):

“116.

For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention….”

I also note that while Lord Brown alluded to the possibility that the facts of Smith may have brought that case within the Osman principle those facts were unquestionably much more extreme than the facts (as known to the police) in the present case. Further, in the Van Colle case threats to kill were repeatedly made (set in the context of other striking facts); but the claim under Article 2 – admittedly after a trial – was rejected; and that rejection was unanimously upheld in the House of Lords. That case too on the facts, on my reading of them, was more extreme than the present case.

Hindsight has of course told us that Williams was intent on killing Joanna. But hindsight is what the police did not have at the time. It is, regrettably, by no means uncommon that threats to kill can be made in the course of a heated dispute. That does not necessarily mean that there is indeed a real intent to kill: and it does not by any means follow that a charge (if brought at all) of unlawful threats to kill under s.16 of the Offences Against the Person Act 1861 would necessarily succeed.

In the present case, I do not think it can be concluded that what Joanna told Ms Mason on the phone as set out in the transcript and set in the context of the other facts should have caused the police to appreciate at that time that there was indeed a “real and immediate risk” to Joanna’s life (obviously the second call did, but by then it was too late). As I have indicated, not every recorded threat to kill, as reported to the police, can give rise to an appreciation of such risk, given the unpredictability of human conduct and given the reality as to the things that may be said in the heat of the moment in a violent row, whether or not in circumstances of anger or indicated revenge: and in my view that was the position here.

I am also rather troubled by the assumption of Mr Bowen that one can, as it were, synthesise the knowledge of South Wales Police and the knowledge of Gwent Police; although I do appreciate that, through the prism of Human Rights law, the relevant emanation of the State may be styled generically as “the police”. But even assuming one could synthesise what was known to each, that does not really advance the case. South Wales Police did not know of any threat to kill (assuming that Ms Mason should have heard the word) because Ms Mason did not tell them. On the other hand, South Wales Police knew of Williams’ previous convictions for domestic violence (and Ms Mason did not): but those incidents were not of a kind to lead to a conclusion that ought to have been drawn to the effect that there was a real and immediate risk to life.

Mr Bowen’s assertions of alleged systemic failures can, in my view, add nothing extra to this aspect of the case. Nor is there any reason to think that any further facts will now emerge. There are no outstanding significant factual issues affecting the outcome here, as I see it.

Accordingly, I think that the view can and should be taken now that the facts alleged in this case cannot satisfy the Osman test.

I have considered whether, nevertheless, this aspect of the claim should be permitted to proceed on the “some other compelling reason ground” (CPR Part 24.2(b)). I do not think so. There has been very full publicity given to this case. The conduct of the police has been extensively investigated by the IPCC: criticisms and recommendations have been made and acted on. To allow this claim for damages under Article 2 to proceed – no doubt at considerable expense – when, as is my view, it can have no realistic prospect of success will serve no further purpose. As Judge Jarman QC said in the court below (and I agree):

“The hearing of the claims will no doubt bring further distress and it seems to me, with respect, that if these claims are bound to fail then it is better for all concerned that they fail now.”