Osman v United Kingdom

The Times November 5 1998

EUROPEAN COURT OF HUMAN RIGHTS

Effect of police immunity case disproportionate

Case No 87/1997/871/1083

Before R. Bernhardt, President and Judges Thor Vilhjalmsson, J. De Meyer, I. Foighel, R. Pekkanen, J. M. Morenilla, Sir John Freeland, A. B. Baka, M. A. Lopes Rocha, L. Wildhaber, G. Mifsud Bonnici, J. Makarczyk, D. Gotchev, P. Jambrek, K. Jungwiert, P. Kuris, U. Lohmus, J. Casadevall, T. Pantiru and V. Toumanov

Registrar H. Petzold

Deputy Registrar P. J. Mahoney

[Judgment October 28]

The application of the exclusionary rule formulated by the House of Lords in Hill v Chief Constable of West Yorkshire Police ([1989] AC 53) as a watertight defence to a civil action against the police, constituted a disproportionate restriction on their right of access to a court in breach of article 6.1 of the European Convention on Human Rights.

However, the European Court of Human Rights held by 17 votes to 3 that there had been no violation of articles 2 (right to life) and 8 (right to private life) of the Convention.

Article 2 provides: "1 Everyone's right to life shall be protected by law..."

Article 6.1 provides: "In the determination of his civil rights ... everyone is entitled to a hearing by an independent and impartial tribunal established by law."

Article 8 provides: "1 Everyone has the right to respect for his private and family life, his home and his correspondence. "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."

Mrs Mulkiye Osman was born in Cyprus in 1948 and her son, Ahmet Osman, was born in England in 1972. Both applicants lived in London. Mrs Osman was married to Mr Ali Osman, who was killed on March 7, 1988 by her son's former teacher. Her son was seriously wounded in the same incident.

In 1987 when Ahmet Osman, then aged 14, was a pupil at Homerton House School, Hackney, London, one of the teachers, Mr Paul Paget-Lewis, formed a disturbing attachment to him.

That first came to the attention of the school authorities early in March 1987, when, following a complaint by the mother of another pupil, it emerged that Mr Paget-Lewis had given Ahmet money, taken photographs of him and followed him home. A police officer visited the school on several occasions between March 3 and 17, 1987 but no further action was taken then by the police.

Ahmet's father, Mr Ali Osman, asked the headmaster to have Ahmet transferred to another school. While trying to arrange the transfer, it was discovered that the files relating to Ahmet and to staff disciplinary matters had been stolen from the school office. Graffiti of a sexual nature referring to Ahmet appeared around the neighbourhood.

Mr Paget-Lewis was questioned by the school but denied any involvement. On April 14, 1987 Mr Paget-Lewis changed his name by deed poll to Paul Ahmet Yildirim Osman. The headmaster spoke to the police again on 4 May 1987, but there is a dispute as to how much information was passed to them.

Mr Paget-Lewis was examined on three occasions by a psychiatrist from the education authority between May 19, 1987 and June 16, 1987. The psychiatrist concluded that Mr Paget-Lewis was not mentally ill but his transfer from the school on medical grounds was urgently recommended.

He was suspended from teaching duties on June 18, 1987 pending an investigation by the education authority into his unprofessional conduct towards Ahmet Osman.

Between May and October 1987 a number of attacks were made on the Osmans' property: a brick was thrown through a window of their house, the tyres of Mr Osman's car were slashed and the windscreen smashed, paraffin and dog excrement were applied to their doorstep.

Following each of those incidents they complained to the police. In October or December 1987 a police officer interviewed Mr Paget-Lewis, who had by then been permitted to resume teaching duties at another school.

In December, he was again questioned following an incident when he drove his car into a van containing a former schoolfriend of Ahmet of whom he was jealous. On December 15 he was interviewed at his own request by officers from the education authority, to whom he admitted that he felt totally self-destructive, blamed the deputy headmaster, Mr Perkins, and was thinking of doing a "Hungerford" (an indiscriminate mass killing carried out in the town of Hungerford). The police were informed and took some measures to protect the deputy headmaster.

On December 17, 1987 police arrived at Mr Paget-Lewis' home with the intention of arresting him on suspicion of causing criminal damage to the Osmans' property.

He was not at home because he was teaching. The education authorities were requested to ask him to contact the police, but from the following day onwards he did not turn up for work.

Between January and March 1988, Paget-Lewis travelled around England, hiring cars under his adopted name of Osman and periodically returning to his home address. On January 17 he stole a gun from a car parked outside a clay-pigeon shoot, but that information did not come to the attention of the police in charge of his case because there was nothing to connect him with the theft.

On March 7, 1988 he went to the Osmans' home where he shot and killed Ali Osman and shot and injured Ahmet. He then drove to the home of the deputy headmaster, whom he shot and injured, also shooting and killing his son.

On October 28, 1988, Paget-Lewis was convicted of two charges of manslaughter, having pleaded guilty on the ground of diminished responsibility. He was sentenced to be detained in a secure mental hospital.

On September 28, 1989 the applicants commenced a civil action in negligence against the police. On August 19, 1991 the Metropolitan Police Commissioner issued a summons requesting that the statement of claim be struck out because it disclosed no reasonable cause of action.

That application was dismissed by the High Court, but upheld by the Court of Appeal on October 7, 1992 (Osman and Another v Ferguson and Another ([1993] All ER 344), on the ground that according to the 1989 ruling of the House of Lords in the case of Hill v Chief Constable of West Yorkshire no action could lie for public policy reasons against the police for their negligence in the investigation and suppression of crime.

In their application to the European Commission of Human Rights, lodged on November 10, 1993, the applicants complained that there had been a failure to protect the lives of Ali and Ahmet Osman and to protect the family from harassment, contrary to articles 2 and 8 of the Convention, and that they had been denied access to a court or to any other effective remedy in respect of that failure, contrary to articles 6.1 and 13. Their application was declared admissible on May 17, 1996.

Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report on July 1, 1997 in which it established the facts and expressed the unanimous opinion that there had been no violation of article 2 (ten votes to seven); that there had been a violation of article 6 (twelve votes to five); that there had been no violation of article 8 (ten votes to seven) and that no separate issue arose under article 13 (twelve votes to five). The Commission referred the case to the Court on September 22, 1997.

In its judgment, the European Court of Human Rights held as follows:

The applicants complained that the authorities of the respondent State had failed to take adequate and appropriate steps to protect the lives of the second applicant, Ahmet Osman, and his father, Ali Osman, from the real and known danger which Paget-Lewis posed and that the decision of the Court of Appeal to dismiss their negligence action against the police for reasons of public policy amounted to a restriction on their right of access to a court and a denial of the only effective remedy available to them in the circumstances.

I Alleged violation of article 2

1 As to the facts of the case

The Court observed at the outset that it would assess whether the facts of the case disclosed a violation of article 2 of the Convention in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion.

2 As to the alleged failure of the authorities to protect the right to life of Ali and Ahmet Osman

The Court noted that it was not disputed that article 2 of the Convention might in well defined circumstances imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.

As to the scope of that obligation, which was contested, the Court considered that, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, any such obligation had to be interpreted in a way which did not impose an impossible or disproportionate burden on the authorities.

Accordingly, for the Court not every claimed risk to life could entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.

Another consideration seen by the Court as relevant was the need to ensure that the police exercised their powers to control and prevent crime in a manner which fully respected the due process and other guarantees which legitimately placed restraints on the scope of their action to investigate crime and bring offenders to justice.

The Court considered that where there was an allegation that the authorities had violated their positive obligation to protect the right to life in the context of their duty to prevent and suppress offences against the person it 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.

The Court expressed the opinion that it was sufficient in that regard for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they had or ought to have knowledge, a question which could only be answered in the light of all the circumstances of any particular case.

Against the background of the above statement of principles, the Court examined the particular circumstances of the instant case.

It observed that the concerns of the school about Paget-Lewis' disturbing attachment to Ahmet Osman could be reasonably considered to have been communicated to the police over the course of the meetings which took place between March 3 and May 4, 1987 and that it could reasonably be accepted also that the police were informed of all relevant connected matters which had come to light by May 4, 1987 including the graffiti incident, the theft of the school files and Paget-Lewis' change of name.

The Court was not persuaded however that the police's failure to investigate further Paget-Lewis' alleged involvement in the theft of the school files and in the graffiti incident could be impugned from the standpoint of article 2 having regard to the state of their knowledge at that time.

It was significant that Paget-Lewis had always denied any responsibility for those acts, even when questioned by the police after the tragic shooting incident.

While Paget-Lewis' attachment to Ahmet Osman could be judged by the police officers who visited the school to be most reprehensible from a professional point of view, there was never any suggestion that Ahmet Osman was at risk sexually from him, less so that his life was in danger.

Accordingly, at that juncture, the police's appreciation of the situation and their decision to treat it as a matter internal to the school could not be considered unreasonable.

While the applicants had attached particular weight to Paget-Lewis' mental condition and in particular to his potential to turn violent and to direct that violence at Ahmet Osman, the Court for its part noted that Paget-Lewis continued to teach at the school up until June 1987 and that he had been examined on three occasions by a psychiatrist who was satisfied that he was not mentally ill.

The Court considered that if it had appeared to a professional psychiatrist that Paget-Lewis did not at the time display any signs of mental illness or a propensity to violence it would be unreasonable to have expected the police to have construed the actions of Paget-Lewis as they were reported to them by the school as those of a mentally disturbed and highly dangerous individual.

In assessing the level of knowledge which could be imputed to the police at the relevant time, the Court also had close regard to the series of acts of vandalism against the Osmans' home and property between May and November 1987.

It observed first that none of those incidents could be described as life-threatening and second there was no evidence pointing to the involvement of Paget-Lewis, it being noted that he had denied responsibility when interviewed by the police.

Even it were to be assumed that the applicants were correct in their assertions that the police did not keep records of the reported incidents of vandalism and of their meetings with the school, ILEA officials and Paget-Lewis, that failing could not be said to have prevented them from apprehending at an earlier stage any real threat to the lives of the Osman family or that the irrationality of Paget-Lewis' behaviour concealed a deadly disposition.

The Court noted in that regard that when the decision was finally taken to arrest Paget-Lewis it was not based on any perceived risk to the lives of the Osman family but on his suspected involvement in acts of minor criminal damage.

The Court also examined carefully the strength of the applicants' arguments that Paget-Lewis on occasions communicated to the police, either directly or indirectly, his murderous intentions.

However, in its view, his statements could not be reasonably considered to imply that the Osman family were the target of his threats and to put the police on notice of such.

For example, as to Paget-Lewis' alleged threat to "do a sort of Hungerford" it would appear more likely that his words were uttered with respect to the deputy headmaster, Mr Perkins, whom he regarded as principally to blame for being forced to leave his teaching post at Homerton House.

Moreover, Ahmet Osman was not a passenger in the car which the applicants claimed Paget-Lewis had deliberately rammed in December 1987.

Having carefully examined the facts of the case, the Court concluded that the applicants had 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 had 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 could not be said in the Court's view that those 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 pyschiatric hospital on the basis of the evidence adduced before it.

p>The Court repeated its earlier view that the police had to discharge their duties in a manner which was compatible with the rights and freedoms of individuals.

In the circumstances of the present case, they could not 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. For those reasons the Court concluded, Judges De Meyer, Lopes Rocha and Casadevall dissenting, that there had been no violation of article 2 of the Convention in the circumstances of the case.

II Alleged violation of article 8 of the Convention

The applicants complained in particular that the failure of the police to secure the personal safety and physical integrity of Ahmet Osman engaged the responsibility of the authorities under article 8.

The Court did not accept that contention. It considered that the reasons which led it to conclude that the authorities had not breached their positive obligation under article 2 of the Convention to secure Ahmet's right to life equally supported a finding that there had been no violation of any implied positive obligation under article 8 to safeguard his physical integrity against the threat posed by Paget-Lewis.

As to the applicants' separate contention that the police failed to investigate the attacks on their home and bring to an end the campaign of harassment being waged against them by Paget-Lewis, the Court reiterated its view that the police had questioned Paget-Lewis about the allegations made against him.

However, there was no evidence to implicate him in the attacks. Accordingly, the responsibility of the authorities could not be engaged under article 8 on this account either.

Judges De Meyer, Lopes Rocha and Casadevall dissented on that point.

III Alleged violation of article 6 of the Convention

1 Applicability of article 6.1

The Court did not accept the Government's argument that the applicants could not rely on article 6 of the Convention given that the Court of Appeal in application of the exclusionary rule established by the House of Lords in the Hill case dismissed their civil action as showing no cause of action.

It observed that the common law of the respondent state had long accorded a plaintiff the right to submit to a court a claim in negligence against a defendant and to request that court to find that the facts of the case disclosed a breach of a duty of care owed by the defendant to the plaintiff which had caused harm to the latter.

The domestic court's inquiry was directed at determining whether the constituent elements of a duty of care had been satisfied, namely: whether the damage was foreseeable; whether there existed a relationship of proximity between the parties; and whether it was fair, just and reasonable to impose a duty of care in the circumstances.

The Court noted that the latter criterion was invoked by the House of Lords for the first time in the Hill case to shield the police from liability in the context of the investigation and suppression of crime.

Although the applicants had argued in terms which suggested that the exclusionary rule operated as an absolute immunity to negligence actions against the police in the context at issue, the Court accepted the Government's contention that the rule did not automatically doom to failure such a civil action from the outset but in principle allowed a domestic court to make a considered assessment on the basis of the arguments before it as to whether a particular case was or was not suitable for the application of the rule.

On that understanding the Court considered that the applicants must be taken to have had a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the Hill case.

In the view of the Court the assertion of that right by the applicants was in itself sufficient to ensure the applicability of article 6.1 of the Convention.

2 Compliance with article 6.1

The Court noted that the applicants' claim never fully proceeded to trial in that there was never any determination on its merits nor on the facts on which it was based.

The applicants' claim was rejected by the Court of Appeal since it was found to fall squarely within the scope of the exclusionary rule formulated by the House of Lords in the Hill case.

While observing that the aim of such a rule might be accepted as legitimate in terms of the Convention, as being directed to the maintenance of the effectiveness of the police service and hence to the prevention of disorder or crime, the Court stressed that, in turning to the issue of proportionality, it must have particular regard to its scope and especially its application in the case at issue.

It appeared to the Court that in the instant case the Court of Appeal proceeded on the basis that the rule provided a watertight defence to the police.

It further observed that the application of the rule in that manner without further inquiry into the existence of competing public interest considerations only served to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and amounted 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 that, there will be no distinction made between degrees of negligence or of harm suffered or any consideration of the justice of a particular case.

The Court noted that in the instant case, Lord Justice McCowan in the Court of Appeal appeared to be satisfied that the applicants, unlike the plaintiff Hill, had complied with the proximity test, a threshold requirement which was in itself sufficiently rigid to narrow considerably the number of negligence cases against the police which could proceed to trial.

Furthermore, the applicants' case involved the alleged failure to protect the life of a child and their view that that failure was the result of a catalogue of acts and omissions which amounted to grave negligence as opposed to minor acts of incompetence. The applicants also claimed that the police had assumed responsibility for their safety. Finally, the harm sustained was of the most serious nature.

For the Court, these were considerations which must be examined on the merits and not automatically excluded by the application of a rule which amounted to the grant of an immunity to the police.

The Court did not accept either the Government's plea that the applicants had available to them alternative routes for securing compensation which mitigated their inability to take a negligence action against the police, for example a civil action against Paget-Lewis or the psychiatrist who had examined the latter and found him not be mentally ill.

In its opinion neither course of action would have enabled them to secure answers to the basic question which underpinned their civil action, namely why did the police not take action sooner to prevent Paget-Lewis from exacting a deadly retribution against Ali and Ahmet Osman?

While they might or might not have failed to convince the domestic court that the police were negligent in the circumstances, they were nevertheless entitled to have the police account for their actions and omissions in adversarial proceedings. For the above reasons, the Court concluded unanimously that the application of the exclusionary rule in the instant case constituted a sproportionate restriction on the applicants' right of access to a court and for that reason there had been a violation of article 6.1 of the Convention.

IV Alleged violation of article 13 of the Convention

The Court ruled that it was not necessary to examine the applicants' complaints under this provision, which guarantees an effective remedy before a national authority, having regard to its finding of a violation of article 6 of the Convention.

V Application of article 50 of the Convention

The Court awarded the applicants £10,000 each to compensate them for their loss of opportunity to have their case considered on the merits by a court.

A specified amount was also awarded in part compensation of the legal costs and expenses they incurred in bringing their case to Strasbourg.