Smith v. Sussex Police

S, who was attacked and seriously injured by his former partner J, brought a claim of negligence against the Sussex police on the grounds that he had repeatedly told them that J had threatened to kill him but they had failed to act on this evidence. The judge at first instance, while denying that the case would fail on causation, dismissed S’s claim on the grounds that there was no sufficient relationship of proximity between S and the police. The judge held, firstly, that S’s position was that of a member of public and hence not one which called for special protective measures (Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 followed) and, secondly, that public policy was not in favor of imposing a duty of care on the police (dicta of Lord Keith in Hill (above) at paragraph 63 followed).

S appealed to the Court of Appeal, which considered whether the relationship between S and the police was capable of creating a duty of care under common law on the part of the latter; and whether a negligence claim of this kind concerns a breach of Article 2 of the European Convention of Human Rights (‘the Convention’).

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal, it was held that:

(1) A simple exclusionary rule immunizing the police against negligence claims, of the kind proposed in Hill (above), would be in breach of Article 6 of the Convention. Instead, following the reasoning of the European Court of Human Rights (Osman v United Kingdom (2000) 29 EHRR 245 and Z v United Kingdom (2002) 34 EHRR 97 considered), there have emerged two tests: one relating to the degree of proximity between the parties, and another relating to whether it is fair, just and reasonable that there should be liability (Brooks v Metropolitan Police Commissioner [2005] UKHL 24, Alexandrou v Oxford [1993] 4 All ER 328 and various other cases considered).

(2) Therefore, taking into consideration Article 2 of the Convention, the common law recognizes that, while it is unreasonable to expect the police to compensate every individual for the adverse impact of preventable crimes, there may be situations in which an individual’s life or safety has been so firmly placed in the hands of the police that unexcused negligence in failing to protect it may provide grounds for seeking damages. It is arguable that the police, in such cases, have a responsibility to take positive, proportionate, preventive measures to protect the right to life upheld in Article 2 (Osman v United Kingdom (above) considered).

(3) Unlike the circumstances set out in Hill (above), S’s claim does not invoke his status as a member of the public with no special relationship to the police. Indeed, it is arguable that, in S’s case, the sufficiently high level of proximity between the parties may not only create a duty of care but also overcome the public policy considerations that have previously stood as a barrier to claims of negligence.

(4) However, in developing the common law on a case-by-case basis, there is a danger of creeping liability; that is, that the liability of the police may be increasingly enlarged. The process must therefore be a cautious one.

Per Pill LJ (concurring):

Under s 6 of the Human Rights Act 1998, it is unlawful for any public authority to act in a way that is incompatible with a Convention right. Moreover, common law should evolve in response to contemporary issues (dicta of Lord Bingham in D v East Berkshire Community Health Trust & Ors [2005] 2 AC 373 at paragraph 50 considered). There is therefore reason to believe that the common law regarding negligence should evolve in relation to – or ‘absorb’ – the right to life and corresponding duties set out under Article 2 of the Convention.

[Adapted from INTERIGHTS summary, with permission]