The article 2 of the Human Rights Act of 1998 is a fundamental provision that is usually invoked to safeguard the right to life of individuals and that which imposes the legal obligation of contracting states to take appropriate steps not only in refraining from taking life intentionally, but also to take the appropriate steps to safeguard life. This provision has become the controversy in many cases involving human rights torts, by virtue of the section 6 of the Act that provides a statutory cause of action against the public authorities or bodies. In many occasions the article 2 of the Human Rights Act of 1998 are used as a ground to sue public officials for negligence as a breach of section 6 of the same Act. Section 6 makes it unlawful for any public authority to act in any way that is incompatible with the Convention right. It can be pointed out that no criminal offense may arise from violating article 2 of the Human Rights Act 1998, but it gives private individuals the right to sue a public authority for human rights tort and there is no requirement under the law that the conduct of the public officers should be unlawful.
Considering this provision of article 2 of the Human Rights Act 1998, the same was upheld by the Supreme Court decision in Osman v UK. The facts of the case provides that a male teacher was obsessed to his male student and performed certain acts of vandalism against the student family's property. The police investigated the matter and although the teacher denied the allegations he remains to be the prime suspect. The teacher continued to perform irrational criminal acts which are to the knowledge of the police. He further announced that he will be doing life in a few months. True enough he seriously wounded the student and killed his father.
The police officers were sued with the claimants asserting for their liability on the failure to take action considering that the teacher is a potential threat and the police gave insufficient protection to the student and his family. The fact that it is within the knowledge of the police of seeing the teacher on three occasions to be prowling outside their family home should alert them of the potential risk the family is subjected to. The court upheld that the article 2 of the Human Rights Act 1998 imposes a duty on the public authority to take all reasonable steps to protect a person from real and immediate risk to his life. It considers the police immunity for operational decisions is broad enough to infinge a human right's protection of life. It was held by the court that it is sufficient for a claimant to prove that the public authorities failed to perform what could be reanably expected from them to avoid danger and risk to life in situations that they have knowledge about.
The case doctrine laid down in the ruling of the court in the case of Osman v UK was invoked in the case of Hill v Chief Constable of West Yorkshire. The case involves the death of Jacqueline Hill who was murdered by Peter Sutcliffe who is known to be the Yorkshire Ripper. Sutcliffe has committed 13 murders and 8 attempted ones within 5 years. The Chief Constable was sued by the victim’s mother for the failure to prevent the criminal acts of Sutcliffe. It was claimed by the victim's mother that the public authorities were negligent for detaining Sutcliffe. What the defendent claimed as a defense was that there was no cause of action by invoking that there is no duty of care that is owed by the police authorities in detecting crime.
The decision of the court sustained such defense by ruling that there is no duty owed by the police and they are immune from this kind of action. The court further explained that to allow this kind of action to prosper against the police authorities will open the floodgates of unreasonable legal actions against the police even in minor instances that they failed to catch a criminal as soon as they could possibly do. This action can potentially result in meddling with the conduct of police investigation which decisions usually involve matters of policy administration and discretion. Moreover, the court is also alarmed with the possibility of costly investigation and defense expenses and attendance of witnesses at the trial should this be allowed. More police time will be spent on litigation by defending police officers that can result in the diversification of police manpower instead of focusing all its resources on other important police functions.
This ruling on the immunity of the police authorities against violation under Article 2 of the Human Rights Act of 1998 in the case of Hill v Chief Constable of West Yorkshire was departed from the more current case of Michael v Chief Constable of South Wales. In this case, the court did not upheld the immunity of the police against human rights tort under the facts of the case. Joanna Michael was murdered by her former partner Cyron Williams. Prior to the killing, Michael was able to make a 999 call to ask for help. Although Michael made a statement to the handler of the call that Williams is threatening to kill her, it became an issue on whether or not the handler did hear her say the same. Based on the abbreviated account of the handler of their conversation, the threat to kill information was excluded. Thus, the call made by Michael was downgraded to only one that requires a response within 60 minutes and no immediate action was taken.
Another 999 call was again made by Michael and this time she was screaming and the line went dead. This prompte the handler to request immediate response from the South Wales Police who responded within 8 minutes and found Michaels dead with stab wounds. The family of Michael sued the South Wales Police for negligence and for breach of Article 2 of the Human Rights Act 1998 on its failure to protect Michael’s right to life. The main issue of the case is focused on whether or not the police authorities owed duty of care to Joanna Michael. It was the court’s majority decision to upheld the duty of the police to preserve at large the Queen’s peace that involves the prevention of violence and disorder.
At some point, the ruling in Michael v Chief Constable of South Wales noted the doctrine of immunity in the case ruling of Hill v Chief Constable of West Yorkshire where it explained that the English law does not impose as a rule any liability on the defendant public authorities for any injuries caused to a claimant due to the acts of a third party, hence they are immune from liability, but the court provides for some exceptions. The first exception is based on the case doctrine in Home Office v Dorset Yacht Co Ltd where the defendant must be in the position to control the third party with the ability to foresee its likelihood of causing harm or damage to somebody within close proximity and the defendant failed to take action in delivering reasonable care in exercising control over such third party. This is known as the Proximity Principle. The second exception is based on the case doctrine enunciated in the Hedley Byrne & Co Ltd v Heller & Partner Ltd case providing that the defendant assumes a positive responsibility in safeguarding the right to life of the claimant.
The Proximity Principle is one of the exceptions that the court used in ruling against the defendants where it ruled that the police authorities have the duty of care to the public and are thus not immune to human rights tort. Under this principle, there must be important elements present to make a police officer liable for human right torts. There must be an information providing that the victim is at the risk of harm if no urgent action is taken by the police and the latter is reasonably expected to provide protection to another for being a person or agency with the authority to do so. It is also a requirement that the defendant must be capable of helping another to provide protection without also causing unnecessary danger to himself.
Proximity is therefore a relevant requirement as a cause of action under the human rights tort or in cases where the defendant fails to provide protection against harm to one that is caused by a third party. It has also been upheld by the court that the mere foresight of the possible harm constitutes the element of proximity. It is worth noting that in the decision of Michael v Chief Constable of South Wales, the court stated that the core principle in the Hill v Chief Constable of West Yorkshire remains to be unchallenged in the domestic jurisprudence. It was further stated that the primary function of the police authorities is to protect and maintain the Queen’s peace, which is one of the grounds considered by the court to impose liability to the police officers on the failure to provide sufficient protection to life and failure to prevent disorders and violence. Some of the dissenting opinions provide that the retreat from the doctrine in the Hill v Chief Constable of West Yorkshire may have some detrimental results on how the police authorities execute law enforcement.
Contrary to the ruling in Hill v Chief Constable of West Yorkshire that upheld the intervener’s liability principle, the court rejected the said principle in the case of Michael v Chief Constable of South Wales by using Lord Bingham’s Liability Principle in deciding the issue. The Liability Principle addresses the question on whether or not the police owe a duty of care to take reasonable measures in assessing possible threats when there is an apparent credible evidence showing that a person is under an imminent threat or danger to his life and physical safety with the duty to prevent it. The doctrine provides for the broader scope of duty owed by the police in keeping the Queen’s peace and preservation of order and safety of the public at large. Some authors also yield to this principle where the duty of care owed by the police should not be only limited to potential victims of a particular kind of breach of the peace.
Thus, the proximity test should be weighed under the circumstances brought about before the court for resolution. In the case of Michael v Chief Constable of South Wales, there is a clear relationship of proximity with the reasonable cause for action that the police should have done in response to the 999 call made by Michael. As has already been established in the case doctrine of Osman v UK, there is a duty owed by the police to the public to secure their right to life and against violence. Considering that there was already a call made directedly by the victim to ask for help, it is the duty of the police authorities to respond promptly to prevent risk to life of a person who is exposed to some form of a danger. As pointed out by the court in the case of Glasbrook Brothers Ltd v Glamorgan County Council the police authorities have the absolute and unconditional obligation that is binding to them to take all the necessary steps to ensure keeping the peace, in preventing crimes and protecting people against criminal injury.
It was to the contention of the court that whenever a person is threatened with violence by another person, he is entitled to police protection whether or not such claim is correct or not. Allowing the police to deny the person such right of protection can possibly leave the person at risk of losing his life and prevention is better than allowing loss of life to occur when it could have been prevented. While it is an individual’s duty to exercise self protection, it is not an excuse to discharge the police authorities of such duty of protecting the right to life of the public that it serves. By applying the proximity rule, the fact that the victim made a call of fearing for her life there is a reasonable proximity relationship that should alert the police authorities to the threatening acts made by the victim’s former partner that should prompt them to respond immediately.
The presence of threat to the victim’s life is foreseeable under the circumstance and the case doctrine in Michael v Chief Constable of South Wales provides proximity as that legal relationship existing between the parties once foreseeability has been established. The legal duty of the police authorities in the duty of care it owes to the public thus arises under the presence of foreseeable circumstances and the presence of proximity that gives them reasonable belief that threat to life is actually present especially when it was communicated to them. Contrary to this ruling is the immunity from suit from human rights tort which was upheld by the court in the case of Hill v Chief Constable of West Yorkshire. However, although the court departed from its ruling when it rendered a decision in the more recent case of Michael v Chief Constable of South Wales there is undoubtedly difference on the grounds laid down by the court in its ruling.
In Hill v Chief Constable of West Yorkshire, the proximity relationship is absent. There is sufficient proximity as when the victim is under the custody of the police or in close association with them, such as when the victim called for help as in the case of Michael v Chief Constable of South Wales. In Hill v Chief Constable of West Yorkshire, the victim was considered to be just one of the many members of the general public who might be at risk under certain circumstances, and the duty owed by the police to prevent crimes do not extend to making them liable for negligence for any damage or harm caused to an individual by a third person. By critical analysis, the departure of the ruling in Michael v Chief Constable of South Wales from the ruling in Hill v Chief Constable of West Yorkshire is due to the difference in the facts of the case that rendered the court to postulate an opposing view in rendering its decisions. However, the doctrine of Osman v UK remains to be upheld by the court in both cases where it is established in the common law that there is a duty owed by the police authorities to protect the right to life of the public under Article 2 of the Human Rights Act 1998.
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