Sarjantson and another v Chief Constable of Humberside Police
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Mcfarlane,Lady Justice Sharp |
| Judgment Date | 18 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1252 |
| Docket Number | Case No: B2/2013/0036,B2/2013/0036 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 October 2013 |
[2013] EWCA Civ 1252
The Master of the Rolls
Lord Justice Mcfarlane
and
Lady Justice Sharp
Case No: B2/2013/0036
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Her Honour Judge Walden-Smith
9CL05977
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC (instructed by Deighton Pierce Glynn) for the Appellant
Fiona Barton QC (instructed by Plexus Law) for the Respondent
Hearing date: 8 October 2013
Approved Judgment
This appeal concerns a claim brought in relation to an incident in the early hours of 9 September 2006 in which the first claimant was attacked by a group of young men armed with baseball bats. He sustained a serious head injury which has caused short and long-term memory loss. The assailants were convicted at Grimsby Crown Court of causing grievous bodily and violent disorder and sentenced to substantial terms of imprisonment. The second claimant is the partner of the first claimant.
The claimants issued proceedings alleging that the defendant was in breach of his statutory duty under section 6 of the Human Rights Act 1998 in that, in breach of articles 2 and/or 3 of the European Convention on Human Rights ("the Convention"), his police officers had failed, without justification, to take reasonable steps to protect them and their family from physical violence at the hands of the young men.
By an order dated 14 November 2012, HHJ Walden-Smith struck out the claim on the grounds that it had no prospects of success. The claimants appeal with the permission of the judge. The appeal raises important points as to the scope of articles 2 and 3 of the Convention.
Article 2 provides that everyone's life shall be protected by law. Article 3 provides that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The facts
At 01:11:43 on 9 September, a log was created from a 999 call made by Mr Ian Drake reporting that a number of named males were "smashing the windows at 17 Dame Kendal Grove [Grimsby] with BB bats…..they were after Liam Vick who they have already assaulted tonight". Later in the same call (after 1.21 minutes) he said "You'd better get here quick love cos there's gonna be someone here getting hurt, they've got, they're smashing his windows….and they're gonna fucking hammer him. They've already beat him up twice tonight." Mr Drake continued in much the same vein for some time. After 5.50 minutes he said that one of the males had threatened to kill him. After 5.59 minutes he said "they're beating me fucking nephew up down the street I think. They're beating me nephew up in his front yard, our Stephen, ah fucking, I can't go out they've got bricks and baseball bats and everything". After 6.53 minutes, he said they had attacked his nephew in his front yard and that "they're all coming back to start on me fucking sisters old man now. Oh they've hit him with a baseball bat…They've beat him up, he's laid on the floor. They've beat him up with baseball bats love. He's fighting them….They've beat him up with baseball bats….That's Chris that's me sister's husband. He's sixty year old and they've battered him with baseball bats".
There was a separate 999 call logged at 01:14 made from 58 Shelley Avenue reporting an incident "kicking off" and that the caller expected to "see the blues and twos in like two minutes". The call taker said that it was an "immediate priority" so that the next available patrol would be at the address.
Ms Louise Brewitt dialled 999 at 01:12. She reported that her boyfriend Liam Vick had just been assaulted and that "there's a big gang of them down there….can you send the riot van, we're running upstairs now". The first claimant's name was not mentioned until after 7.34 minutes when she said: "Fucking hell, stop it. Stop it. Fucking leave it. I'm sorry Chris, fucking hell you evil bastards". After 8.04 minutes she said that Chris had been battered with a bat; and at 8.24 minutes told the police that he needed an ambulance.
It can therefore be seen that the first time that the police were notified about a violent attack on the first claimant was at approximately 1.19 hrs, some seven minutes after the 999 calls had been made.
An internal police investigation was made of the incident. The report was critical of the performance of the police. It concluded that there was an 11 minute delay before police officers were deployed to the scene of the incident. It stated:
"In summary whilst there was an initial delay in allocating resources to the incident, it is difficult to ascertain if this was due to the workload of the talk group at the time. However, command centre supervision should have been made aware as soon as the call was received and outside supervision should have been made aware much sooner. The subsequent arrival of ambulance who were unwilling to attend the scene without police being present due to the nature of the incident (this is the correct procedure for ambulance crew)……..
The most significant conclusions from the research carried out is that the 11 minute delay in despatching to log 66 09/09/2006 resulted in a failure to attend within the target time and the first resource attending 26 minutes after the call for service was received. Combined with the ambulance policy at the time, i.e. to stand by until police arrival, and the apparent lack of communication (they rang us for an update after the offenders had left the scene but potentially were not updated accordingly) there was an unnecessary delay in units getting to Mr Sarjantson within a reasonable time."
Summary of the judgment below
The case advanced before the judge was that there had been a breach of the positive duty to take measures to avert a real and immediate risk to life and to avert a real and immediate risk of injury as required respectively by articles 2 and 3 of the Convention. The leading Strasbourg authority on the existence and scope of the positive duty under article 2 is Osman v United Kingdom (2000) 29 EHRR 245. I shall refer to this positive duty as "the Osman duty". The judge struck out the claim on two grounds. First, she said that the Osman duty could not have arisen until approximately 8 minutes after the first call when the first claimant was "identified" for the first time (para 52). By that time, it was too late (para 53). Secondly, even if the first claimant did not have to be "identified" before an Osman duty could arise in his favour, it could not arise on the facts of this case because there was insufficient time between the first call and the time of the assault for the police to attend the incident. It took the first officer 13 minutes to arrive at the scene (the target time being 15 minutes) and "while there was an unexplained delay in the dispatch of officers, had there been an immediate dispatch the officers would not have arrived until after the assault" (para 54).
A third issue
During the course of her oral submissions before us, Ms Barton QC advanced a third reason why the Osman duty did not arise on the facts of this case. She submitted that, once a risk to life or limb has materialised, there is no duty under article 2 or 3 to take operational measures to avert the risk. It is too late. A risk arose when the violence first occurred and that was some time before the assault on the first claimant. This submission was not advanced before the judge.
The grounds of appeal
Mr Southey QC submits that neither of the reasons given by the judge for holding that there was no Osman duty in this case was sound. He says that the judge's conclusions are inconsistent with clear Strasbourg jurisprudence and are wrong in principle. He also submits that the third reason advanced by Ms Barton is wrong in law.
The first issue: is it a condition that there is a real and immediate risk to an identified or identifiable person?
In Osman, the court said:
"115. …It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances 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. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and 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, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. 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. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities...
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