We'll be back here again and again unless their Lordships re-read, and take seriously, Gorringe. How many HL cases on this issue have there been since Anns? Fifteen? More?
Of course if the Law Commission's proposals become law, we'll have an entertaining free-for-all, with every case proceeding to trial on the basis that the public body's breach is a serious one. Money in the bank for lawyers like me.
Dear Colleagues
As was clear last week there are a number of people more qualified than I am to give a comment on these proceedings, but I will just flag that the decisions are now available. In Chief Constable of the Hertfordshire Police v Van Colle (administrator of the estate of GC (deceased)); Smith v Chief Constable of Sussex Police [2008] UKHL 50 (30 July 2008) the House of Lords gives its current view on the law relating to liability of police where there is a failure to properly investigate threats that have been made against a known member of the public.
In Van Colle the case was brought in reliance on the domestic effect of s 2 of the ECHR, by the estate of a person who had been killed by the criminal at whose trial he was about to be a witness, relying on the decision of the Strasbourg Court in Osman v UK (1998) 29 EHRR 245. That decision had found that there was a Convention action in circumstances defined very precisely at para [116] as
... 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.
Here the art 2 action by the deceased's parents had succeeded at first instance and on appeal (though with damages reduced). But all the members of the House overturned the decision, holding that in the circumstances of this case there was no actual knowledge of the threat to the witness, nor should there reasonably have been, for reasons set out by Lord Bingham at [36] – e.g. the prosecution was for a fairly minor offence, there had been no actual threats of killing although after the event other incidents of harm to witnesses came to light. On the facts seems a reasonable decision. (It is also worth noting that their Lordships rejected the view that an art 2 action should be "easier" in case of a witness as opposed to just an ordinary member of the public.)
In Smith, however, the question was one of common law, rather than Convention, liability. (I suppose this was so on the obvious ground that art 2 protects "life" and that Mr Smith had only received very severe injuries rather than actually being killed. It is in the poorest of taste to say so, but the reasoning of the court leads inexorably to the view that his estate would have recovered money under Osman if in fact he had died.)
Here there is a division in the House, 4-1. The majority (Lords Hope, Phillips, Carswell and Brown) hold that there is no common law duty of care owed by police in investigation of threats against a plaintiff who is later harmed. In doing so they effectively affirm that Hill v Chief Constable Yorkshire Police [1989] AC 53 and Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24 stand for a broad ratio of immunity of police in investigation of crime. See e.g. Lord Hope at [74]ff. They accept a two-fold "policy" analysis of the need to avoid "defensive policing" and the need to avoid "diversion of resources" in investigating complaints, while saying that the facts of Smith are deplorable and make it a very hard case. (Mr Smith was viciously attacked by an ex-partner who had been stalking him with violent messages and threats for weeks, which the police knew all about, and where hardly anything had been done.)
There is a strong dissent by Lord Bingham, who distinguishes Hill and Brooks and articulates the principle he thinks should have been adopted in 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.
He explains why this limited principle would not, in his view, lead to the bad policy outcomes mentioned by the other members of the House.
I find myself really conflicted about this decision. I can see the strength of Lord Bingham's arguments very clearly. The majority make policy arguments but one can indeed ask whether they have the expertise to assess these properly. Indeed, the Supreme Court of Canada basically assessed these arguments in precisely the opposite direction recently in Hill v Hamilton-Wentworth Regional Police Services Board 2007 SCC 41, (2007) 285 DLR (4th) 620 (as to which it is a pity the House chose not to give it a single reference).
But as I see it a "rights-based" analysis would suggest that the majority are correct because what is being argued for is a right to receive protection from threats, and none of us have a free-standing right to demand such protection from others. This analysis would leave open possible cases where the police had voluntarily assumed a duty to offer such protection (see the example given by Lord Brown at [135]). I suppose that I would like to argue that it is possible that the circumstances of modern Western society are such that when a serious threat of harm has been reported to the police one feels that they ought to investigate it properly - but that doesn't quite seem to reach a "right".
It is possible that the High Court of Australia will comment on these issues when the appeal from the decision of the Vic CA in Kirkland-Veenstra v Stuart [2008] VSCA 32 is finally heard - but since that involves not investigation of crime but the police power to detain someone in danger of suicide, it may be that the Court feels the Hill line of cases is not really on point.
