Unravelling Osman

Date01 March 2001
DOIhttp://doi.org/10.1111/1468-2230.00315
Published date01 March 2001
THE
MODERN LAW REVIEW
Volume 64 No 2March 2001
Unravelling Osman
Conor A. Gearty*
The judgment of the European Court of Human Rights in Osman vUnited
Kingdom, decided in October 1998, has proved very controversial. Its
implications for the UK law of negligence appear to be immense. Not the least
of the complexities associated with the decision is the widespread perception that
the reasoning of the Court is extremely difficult to understand, indeed, that it is at
times contradictory. This article subjects the Osman judgment to close analysis. It
explains the Court’s approach to Article 6(1) by reference to the way in which the
Strasbourg court has over many years developed its case law on this provision.
The article includes an overview of the way in which, so far, the decision has been
deployed in UK law. The author suggests that, whatever about the actual result of
the case, the reasoning of the European Court in Osman is deeply flawed, and that
the UK judiciary should be mindful of this fact when considering its deployment in
domestic law.
By 28 October 1998, the Human Rights Bill had almost completed its passage
through Parliament.1In a routine piece of business in the upper house on that day, a
government minister is to be found referring to the then forthcoming fiftieth
anniversary of the signing of the Universal Declaration on Human Rights as ‘an
important opportunity to re-affirm the universal nature of human rights’,2and
pointing to the Human Rights Bill as evidence of the administration’s
determination ‘to give further effect to ECHR rights in domestic law so that
people can enforce those rights in the United Kingdom courts.’3That very day, the
European Court of Human Rights in Strasbourg released its judgment in Osman v
United Kingdom.4The case involves two of the Convention rights (Articles 2 and
6) which are now part of UK law. Though not required to be followed, Osman will
need to be dealt with in some way by British judges, both because the Human
Rights Act itself so requires5and because Strasbourg remains open to disappointed
ßThe Modern Law Review Limited 2001 (MLR 64:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 159
* Professor of Human Rights Law, King’s College London; founding member, Matrix Chambers. My
thanks to K. D. Ewing, C. Harlow, M. Lunney and A. Tomkins who have read and commented upon earlier
drafts of this article; I retain sole responsibility for the content, including any errors that there may be. My
thanks are also due to the Leverhulme Trust for an award which has given me a much fuller opportunity
than I would otherwise have had to conduct the research upon which this article is based, and to secure the
time to be able to write up my conclusions.
1 The Bill received the Royal Assent on 9 November: HC Deb vol 319 col 32 9 November 1998.
2 HL Deb vol 593 col 1910 28 October 1998 (Baroness Symons of Vernham Dean, Under Secretary of
State at the Foreign and Commonwealth Office).
3ibid col 1912. The reference to the ‘ECHR’ is of course to the European Convention on Human
Rights.
4 (1998) 29 EHRR 245; [1999] 1 FLR 193; [1999] Family Law 86.
5 Human Rights Act 1998, s 2.
domestic applicants even after full implementation of the measure. To put it at its
mildest, the decision demonstrates that the ‘universal nature of human rights’ is of
a more complex construction than that phrase would seem to suggest.
The basic facts of the case were simple. The applicants had sought to sue the
Metropolitan Police Commissioner in the English courts for negligence, alleging a
breach of a duty of care owed to them, which they claimed arose out of a culpable
police failure to prevent a third party from fatally shooting a member of their
family (the first applicant’s husband, who was also the second applicant’s father).
The action was struck out in the Court of Appeal as disclosing no reasonable cause
of action, on the basis that it was clear law after the House of Lords decision in Hill
vChief Constable of West Yorkshire 6that no action could lie against the police for
negligence in a situation such as the one allegedly before the court, and that this
was the case even if all the disputed facts were resolved in the claimants’ favour.7
In its ruling, the Strasbourg court found that the police failure to protect the right to
life of the applicants’ husband and father did not amount to a breach of the
qualified right to life to be found in Article 2 of the Convention.8This aspect of the
decision is a very important one with its own implications for official conduct, but
it will not be further pursued here. Our interest lies exclusively with what the
Strasbourg court had to say about Article 6.
The judges were unanimous that the procedure whereby the applicants’
complaint of negligence came to be defeated in the domestic courts had infringed
the first sentence of Article 6(1) of the Convention. At first glance, the terms of
that sentence do not make this result as clear as the unanimity of the Court would
suggest:
In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law.
Clearly what was involved here was the determination of a ‘civil right’ (in
Convention terms this was the right to sue for damages for negligence), but equally
clearly – one would have thought – the applicants had had a ‘fair and public
hearing’. Indeed they had had two such hearings, in the High Court and afterwards
in the Court of Appeal, where the courts had, if anything, been ‘over-fair’ to them,
in that all the disputed facts had been assumed to have been found in their favour.
No question of any lack of openness or of delay having being alleged, how could
this procedure have been found to have been in breach of this part of the
Convention? The European Court’s answer – that Article 6(1) was applicable
because the applicants had asserted the right to sue with at least some prospect of
success9and that it was breached because the inflexible ruling in Hill meant that
they were bound to fail10 – seems on a superficial reading at least to be somewhat
contradictory. Also the European Court’s invocation of the applicants’ ‘right to a
court’, upon which it based this part of its judgment,11 is not easy to understand,
given that no such right is expressly guaranteed in Article 6 and even if it were
explicitly present, the applicants seemed (as earlier mentioned) to have had
7Osman vFerguson and Another [1993] 4 All ER 344. The application to strike out had been earlier
dismissed in the High Court and so the matter had come before the Court of Appeal as an appeal
against that decision by the Metropolitan Police Commissioner.
8 n 4 above, paras 101–123.
9ibid paras 138–139.
10 ibid para 152.
11 See ibid para 147.
The Modern Law Review [Vol. 64
160 ßThe Modern Law Review Limited 2001
abundant opportunities to put their case before a succession of such tribunals. In
any event, how could the right to a court have been good enough for them to have
credibly asserted their right to sue but not good enough when it came to the
substance of the court hearing itself?
Though still a relatively new decision, the Article 6 aspect of Osman has already
come in for some very heavyweight criticism in the United Kingdom. Lord
Browne-Wilkinson has observed that after Osman, ‘extreme care . . . must be taken
in striking out claims in this confused and developing area of law.’12 Lord Woolf
has referred judicially to the fact that the ‘possible consequences’ of the case
‘concern’ him ‘from a procedural point of view in the light of the new culture in
litigation in this jurisdiction as a result of the introduction of the Civil Procedure
Rules 1998 . . .’.13 The United Kingdom judge on the European Court of Human
Rights, Sir Nicolas Bratza, has referred extra-judicially to the decision, noting the
fact that it has ‘attracted so much hostile publicity in this country’.14 Lord
Hoffman, also writing extra-judicially, has described the case as one which ‘fills
[him] with apprehension,’ and which ‘reinforce[s] the doubts [he has] had for a
long time about the suitability, at least for this country, of having questions of
human rights determined by an international tribunal made up of judges from many
countries.’15 Tony Weir asserts in the Cambridge Law Journal that
[n]ations should decide for themselves whether public funds should be directed to victims of
past malfunction in public services or used to reduce the number of such malfunctions in the
future. . .. In any case to answer this question in terms of ‘human rights’ is frankly absurd.16
Reflecting on the case in a recent decision in the House of Lords, Lord Browne-
Wilkinson ‘confess[ed] that [he found] the decision of the Strasbourg court
extremely difficult to understand’17 and expressed ‘the hope that the law applicable
under Art 6 [would be] further interpreted.’18
Lord Browne-Wilkinson’s aspiration is easier to state than to achieve. The
opacity of the reasoning in Osman makes it particularly resistant to critical
analysis. An added difficulty – indeed one of the central problems with Osman –is
that it is only a recent manifestation of a line of Strasbourg cases in which similarly
complex modes of legal reasoning have been displayed. The Osman decision does
not come from nowhere; its various formulations have a pedigree in the Strasbourg
jurisprudence, and a knowledge of these cases is essential to a proper
understanding of the decision. But the matter is not extensively addressed in any
of the many UK-based textbooks on human rights and the European Convention
12 Barrett vEnfield Borough Council [1999] 3 All ER 193, 197.
13 Kent vGriffiths [2000] 2 All ER 474, 484. There is more in a similar vein in Palmer vTees HA [2000]
PNLR 87 and Aldrich vNorwich Union (Court of Appeal, 30 July 1999). See further Sv
Gloucestershire CC [2000] 3 All ER 346.
14 Sir N. Bratza, ‘The Implications of the Human Rights Act 1998 for Commercial Practice’ [2000]
EHRLR 1, 9.
15 ‘Human Rights and the House of Lords’ (1999) 62 MLR 159, 164.
16 (1999) 58 CLJ 4, 7. M. Lunney, ‘A Tort Lawyer’s View of Osman vUnited Kingdom’ [1999] KCLJ
238 is an exceptionally powerful critique. P. Craig and D. Fairgrieve, ‘Barrett, Negligence and
Discretionary Powers’ [1999] PL 626 think the ‘reasoning of the ECHR [to be] not convincing’ (at
630). Also very critical is G. Monti, ‘Osman vUK – Transforming English Negligence Law into
French Administrative Law?’ (1999) 48 ICLQ 757. For an overview of the English law, written
before Osman was decided, see J. Wright, ‘Local Authorities, the Duty of Care and the European
Convention on Human Rights’ (1998) 18 OJLS 1. For a close analysis of the implications of the case
for the police see P. Giliker, ‘Osman and Police Immunity in the English Law of Torts’ (2000) 20 LS
372.
17 Barrett vEnfield Borough Council n 12 above, 198.
18 ibid 200.
March 2001] Unravelling Osman
ßThe Modern Law Review Limited 2001 161

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