Osman v. United Kingdom

The applicants are Mrs. Mulkiye Osman and her son Ahmet Osman. Mr. Ali Osman, the husband and father of the applicants, respectively, was shot dead by Mr. Paul Paget-Lewis on 7 March 1988. Mr. Paget-Lewis was a former instructor of Ahmet Osman and had developed a strong attachment to him. Ahmet Osman was also wounded in the shooting incident.

Starting at least a year prior to the shooting, Mr. Paget-Lewis had harassed Ahmet Osman and at least one of Ahmet’s friends. Mr. Paget-Lewis followed Ahmet home, asked Ahmet to stay in during lunch, allegedly put up graffiti regarding Ahmet and stole office documents to find out personal information about Ahmet. During this time, the Osmans attempted to move Ahmet to a new school and contacted the police regularly. The police interviewed Paget-Lewis for a number of suspicious activities and vague threats. At one point, the police attempted to arrest Paget-Lewis, but he immediately left the area. Mr. Paget-Lewis returned to the area and was seen near the Osman’s home on 1, 4 and 5 March; police were alerted on each visit, but did not arrest him until the morning after the shooting.

“The applicants complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that Paul Paget-Lewis represented a serious threat to the physical safety of Ahmet Osman and his family.”

Applicants commenced proceedings against the police for negligence. The Court of Appeal, in light of Hill v. Chief Constable of West Yorkshire, held that no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required immunity from suit.

Applicants brought a claim before the European Court of Human Rights alleging the United Kingdom had failed to take adequate and appropriate steps to protect the lives of the second applicant and his father, Ali Osman, from the real and known danger which Paget-Lewis posed, that the police had failed to bring an end to the campaign of harassment, vandalism and victimization which Paget-Lewis waged against their property and family, that the dismissal by the Court of Appeal of their negligence action against the police on grounds of public policy amounted a denial of access to court, and that there was no effective remedy for adjudication.

This, the applicants allege, violated their rights under articles 2 (right to life), 6 (right of access to court), 8 (right to family and private life), and 13 (right to effective remedy).

The Court, by a vote of seventeen to three, found that there had been no violation of article 2. 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 neutralize the threat posed by Paget-Lewis, 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.

The Court, by a vote of seventeen to three, found that there had been no violation of article 8. The reasoning behind there not being a violation of article 2 equally supports there not being a violation of article 8.

The Court held unanimously that there had been a violation of article 6. The House of Lords in the Hill case lay down an exclusionary rule to protect the police from negligence actions. In the instant case this served to automatically exclude the claim without regard to the merits. The rule as interpreted by the domestic court provided an automatic immunity to the police, and deprived the applicants of their right of access to court.

The Court, by a vote of nineteen to one, found it unnecessary to examine the complaints under article 13.

“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[…] [I]t must be established to its 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.“ Para. 116

“The Court recalls that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, this right 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. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the 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. Furthermore, a limitation will not be compatible with Article 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.“ Para. 147.

“The Court would observe that the application of the rule in this manner without further enquiry into the existence of competing public- interest considerations only serves to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and amounts to an unjustifiable restriction on an applicant’s right to have a determination on the merits of his or her claim against the police in deserving cases.

In its view, it must be open to a domestic court to have regard to the presence of other public-interest considerations which pull in the opposite direction to the application of the rule. Failing this, there will be no distinction made between degrees of negligence or of harm suffered or any consideration of the justice of a particular case.” Para. 151