EHRM281098

AANSPRAKELIJKHEIDSRECHT - C.C. van Dam

________________________________________

EHRM 28 OKTOBER 1998

CASE OF OSMAN V. THE UNITED KINGDOM

Conclusion: No violation of Art. 2; No violation of Art. 8; Violation of Art. 6-1; Not necessary to examine Art. 13; Non-pecuniary damage - financial award; Costs and expenses partial award - Convention proceedings

Published in: Reports 1998-VIII

Keywords: Life; Respect for private life; Respect for home; Positive obligation; Civil rights and obligations; Civil proceedings; Access to court; Margin of appreciation

SUMMARY

Judgment delivered by a Grand Chamber

United Kingdom – alleged failure of authorities to protect right to life of first applicant’s husband and of second applicant from threat posed by individual and lawfulness of restrictions on applicants’ right of access to a court to sue authorities for damage caused by said failure

I. Article 2 of the convention

A. Establishment of the facts

Applicants dispute exhaustiveness of facts as found by Commission – Court, following usual practice, assesses whether facts disclose violation of Article 2 in light of all material before it including material obtained of its own motion.

B. Alleged failure to protect right to life

Not disputed that Article 2 may imply, inter alia, positive obligation for State to take preventive operational measures to protect individual whose life at risk from criminal acts of another individual – on other hand, scope of such obligation contested – for Court, it must be established to its satisfaction that authorities knew or ought to have known at time of existence of real and immediate risk to life of individual and failed to take measures which, judged reasonably, might have been expected to avoid said risk – sufficient in this regard for applicant alleging breach of positive obligation to show that authorities did not do all that could reasonably be expected of them in circumstances to avoid risk.

On facts of instant case, Court not persuaded that police at any decisive stage knew or ought to have known that lives of applicants’ family at real and immediate risk from third party (Paget-Lewis) – thus, in early stages police could reasonably conclude in light of contacts with school and information available to them that life of second applicant not threatened by Paget-Lewis – significant that Paget-Lewis continued to teach at school until June 1987 despite school’s concern – psychiatrist had concluded over this period on basis of three interviews with Paget-Lewis that latter did not display any signs of mental illness or propensity to violence – unreasonable to expect police to assess his behaviour any differently – furthermore, no evidence on which to prosecute Paget-Lewis for commission of (non-life threatening) attacks on family home and property – various cryptic threats uttered by Paget-Lewis could not reasonably be construed as threats against lives of family – police cannot be criticised for failing to use powers of arrest, search, etc. to neutralise threat – cannot be said that use of these powers, judged reasonably, would have been productive.

C. Alleged breach of procedural obligation under Article 2

Appropriate to consider grievance in context of applicants’ complaints under Articles 6 and 13.

Conclusion: no violation (seventeen votes to three).

II. Article 8 of the convention

Court recalls that it did not find it established that police knew or ought to have known at relevant times that Paget-Lewis represented real and immediate risk to life of second applicant and police response not incompatible with authorities’ duty under Article 2 to safeguard right to life – conclusion equally valid for a finding of no breach of any positive obligation under Article 8 to safeguard second applicant’s physical integrity.

Furthermore, police had formed view that no evidence on which to prosecute Paget-Lewis in respect of campaign of harassment against family – cannot be maintained therefore that authorities in breach of Article 8 positive obligation on this account either.

Conclusion: no violation (seventeen votes to three).

III. Article 6 § 1 of the convention

A. Applicability

Applicants enjoyed right derived from general law of negligence to request domestic court to rule on their arguable claim that they were in a relationship of proximity to police, that harm suffered was foreseeable and that in circumstances it was fair, just and reasonable not to apply rule excluding liability of police for alleged negligence in respect of investigation and suppression of crime – assertion of that right by applicants sufficient in itself to ensure applicability of Article 6 § 1 – domestic case-law confirms that exclusionary rule not regarded as absolute bar to such civil actions against police.

B. Compliance

Reiteration of principles governing lawfulness of limitations on right of access to a court.

1. Legitimacy of aim

Reasons given by House of Lords in Hill case as justification for application of exclusionary rule may be accepted as legitimate in terms of Convention (maintenance of effectiveness of police service and hence prevention of disorder or crime).

2. Proportionality of restriction

Court of Appeal in instant case regarded exclusionary rule as absolute defence to applicants’ civil action against police – domestic court gave no consideration to competing public-interest considerations at stake: applicants acknowledged by Court of Appeal to have
satisfied strict proximity test; case involved allegations that police gravely negligent in failing to protect life of a child (second applicant) and argument that police had assumed responsibility for applicants’ safety; harm suffered of most serious nature – for Court such considerations require to be examined on merits and not dismissed in application of a rule in a way tantamount to grant immunity to police – Court not persuaded by Government’s arguments that applicants had adequate alternative remedies to secure compensation – application of rule in instant case must be considered a disproportionate interference with applicants’ right of access to a court.

Conclusion: violation (unanimously).

IV. Article 13 of the convention

Requirements of Article 13 less strict than and here absorbed by those of Article 6 in respect of which violation found.

Conclusion: not necessary to examine complaint (nineteen votes to one).

V. Article 50 of the convention

A. Pecuniary and non-pecuniary damage

Amounts claimed by applicants speculative – sum awarded to compensate for loss of opportunity to sue police.

B. Costs and expenses

Amount claimed awarded in part.

Conclusions: specified sums awarded to the applicants in respect of damage costs and expenses (unanimously) and remainder of claims dismissed (nineteen votes to one).

COURT’S CASE-LAW REFERRED TO

21.2.1975, Golder v. the United Kingdom; 18.1.1978, Ireland v. the United Kingdom; 27.9.1995, McCann and Others v. the United Kingdom; 9.6.1998, L.C.B. v. the United Kingdom; 10.7.1998, Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom

In the case of Osman v. the United Kingdom¹,

The European Court of Human Rights, sitting, in accordance with Rule 51 of Rules of Court A², as a Grand Chamber composed of the following judges:

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

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 27 July and 24 September 1998,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 22 September 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 23452/94) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 by two British nationals, Mrs Mulkiye Osman and her son, Ahmet Osman, on 10 November 1993.

The Commission’s request referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 2, 6, 8 and 13 of the Convention.

2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30).

3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention), and Mr R. Ryssdal, the then President of the Court (Rule 21 § 4 (b)). On 25 September 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr R. Macdonald, Mr A.B. Baka, Mr L. Wildhaber, Mr K. Jungwiert, Mr J. Casadevall and Mr V. Toumanov (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr R. Bernhardt, the Vice-President of the Court, replaced Mr Ryssdal as President of the Chamber following the latter’s death (Rule 21 § 6, second sub-paragraph).

4. As President of the Chamber at the time (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicants’ memorials on 5 and 24 March 1998 respectively, the applicants having been granted an extension by the President of the Chamber of the deadline for submission of their memorial. The applicants filed with the registry on 9 April and 8 June 1998 further details of their claims for just satisfaction under Article 50 of the Convention. The Government’s observations in reply to these claims were filed with the registry on 18 June 1998.

5. In accordance with the decision of the new President of the Chamber, Mr Bernhardt, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 June 1998. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government
Mr M. Eaton, Deputy Legal Adviser,
Foreign and Commonwealth Office, Agent,
Mr J. Eadie, Barrister-at-Law,
Mr S. Freeland, Barrister-at-Law, Counsel,
Ms R. Davies, Home Office,
Mr P. Edmundson, Home Office, Advisers;

(b) for the Commission
Mr C.L. Rozakis, Delegate;

(c) for the applicants
Mr B. Emmerson, Barrister-at-Law,
Mr N. Ahluwalia, Barrister-at-Law,
Mr A.B. Clapham, Barrister-at-Law, Counsel,
Mrs N. Mole,
Ms L. Christian, Solicitor, Advisers.

The Court heard addresses by Mr Rozakis, Mr Emmerson and Mr Eadie.

6. Following deliberations on 26 June 1998 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51).

7. The Grand Chamber to be constituted included ex officio Mr Bernhardt, the President of the Court, who was elected to this office following the death of Mr Ryssdal, and Mr Thór Vilhjálmsson, the Vice-President, who was elected to this office in succession to Mr Bernhardt, together with the other members and the four substitutes of the original Chamber, the latter being Mr I. Foighel, Mr J. Makarczyk, Mr M.A. Lopes Rocha and Mr R. Pekkanen (Rule 51 § 2 (a) and (b)). On 28 June 1998 the President, in the presence of the Registrar, drew by lot the names of the eight additional judges needed to complete the Grand Chamber, namely Mr J. De Meyer, Mr J.M. Morenilla, Mr G. Mifsud Bonnici, Mr D. Gotchev, Mr P. Jambrek, Mr P. Kuris, Mr U. Lohmus and Mr T. Pantiru (Rule 51 § 2 (c)). Subsequently Mr Macdonald, a member of the original Chamber, withdrew from the Grand Chamber, being unable to take part in the further consideration of the case.

8. On 26 June 1998, having consulted the Agent of the Government and the Delegate of the Commission, the President acceded to the applicants’ request for legal aid (Rule 4 of the Addendum to Rules of Court A).

9. Having taken note of the opinions of the Agent of the Government, the Delegate of the Commission and the applicants, the Grand Chamber decided on 27 July 1998 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the original Chamber (Rules 38 and 51 § 6).

AS TO THE FACTS

the CIRCUMSTANCES OF THE CASE

A. The applicants

10. The applicants are British citizens resident in London. The first applicant, Mrs Mulkiye Osman, was born in Cyprus in 1948. She is the widow of Mr Ali Osman who was shot dead by Mr Paul Paget-Lewis on 7 March 1988. The second applicant, Ahmet Osman, is her son, born in England in 1972. He was a former pupil of Paul Paget-Lewis at Homerton House School. Ahmet Osman was wounded in the shooting incident which led to the death of his father.

The applicants complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that Paul Paget-Lewis represented a serious threat to the physical safety of Ahmet Osman and his family. There is disagreement between the applicants and the respondent State on essential aspects of the circumstances leading to the tragedy. The applicants have disputed in this respect the completeness of the facts as found by the Commission.

B. The events to the end of March 1987

1. The initial complaints against Paget-Lewis

11. In 1986 the headmaster of Homerton House School, Mr John Prince, noticed that one of his teaching staff, Paul Paget-Lewis, had developed an attachment to Ahmet Osman, a pupil at the school. According to a statement which he made to the police on 10 March 1988, Mr Prince indicated that he “made a point of personally keeping an eye on the situation”. As a result of this attachment, Paget-Lewis informed Mr Prince that he intended to leave the school and become a supply teacher. Mr Kenneth Perkins, a deputy head teacher, spoke with Paget-Lewis and managed to persuade him to remain at the school.

12. In January 1987 Mrs Green, the mother of Leslie Green, another pupil at the school and the applicants’ neighbour, telephoned Mr Fleming – another deputy head teacher – to complain that Paget-Lewis had been following her son home after school and harassing him. She alleged that Paget-Lewis had been spreading rumours that her son had engaged in deviant sexual practices and that he objected to her son’s friendship with Ahmet Osman. Mrs Green made a formal complaint to this effect to Mr Prince on 2 March 1987.

2. The various interviews regarding the complaints

(a) Leslie Green

13. On 3 March 1987 Mr Perkins interviewed Leslie Green, who confirmed that Paget-Lewis had been following him and had been spreading rumours of a sexual nature about him because of his friendship with Ahmet Osman.

(b) Ahmet Osman

14. Also on 3 March 1987 Mr Fleming interviewed Ahmet Osman. In the typed record of this interview dated 6 March 1987, Ahmet confirmed that Paget-Lewis had warned him about Leslie Green, accusing Leslie of sexual misconduct with another boy at the school. Ahmet also reported to Mr Fleming during the interview that on one occasion Paget-Lewis had followed Leslie and himself home in his car. He also stated that Paget-Lewis had asked him to come and see him in his classroom at lunch times, apparently to learn Turkish, and that Paget-Lewis had taken photographs of him and given him money, a pen and a Turkish dictionary. However, he later took the pen and deliberately snapped it in half during a lesson.

(c) Paget-Lewis

15. On 6 March 1987 Mr Perkins interviewed Paget-Lewis. In the course of the interview Paget-Lewis stated that he had a special relationship with Ahmet Osman which had developed over a period of a year and which Leslie Green was trying to disrupt and that he was so upset on one occasion that he confronted Leslie and accused the boy of being a sexual deviant. He admitted that he had followed Leslie home on one occasion and had waited outside his parents’ house for 45 minutes. Paget-Lewis mentioned to Mr Perkins that he had told Leslie Green that he would become “very angry” if anything happened to his relationship with Ahmet, although he indicated to Mr Perkins that this was not to be seen as a threat. He also acknowledged that he had given Ahmet money and presents, and had taken photographs of him for “sentimental reasons”. In a later memorandum dated 5 May 1988, Mr Perkins described Paget-Lewis as having been in a highly irrational state during this interview and unwilling to admit that his behaviour displayed a serious lack of wisdom and professionalism.

16. On 9 March 1987 Paget-Lewis submitted a written statement to Mr Perkins regarding the complaint made by Mrs Green. In his memorandum of 5 May 1988 (see paragraph 15 above) Mr Perkins stated that he found the statement “disturbing” since it showed clearly that Paget-Lewis was “overpoweringly jealous” of the friendship between Ahmet Osman and Leslie Green and provided clear evidence that he “was not in control of his emotions”. Leslie was presented as devious, malicious and an evil influence.

Mr Perkins again interviewed Paget-Lewis on his written statement during which he pointed out his concerns about the content of the statement and suggested to Paget-Lewis that he seek psychiatric help. Mr Perkins informed Mr Prince of everything which had happened up until that date.

17. Prior to 13 March 1987 Mr Prince had an informal discussion with Paget-Lewis in which he admitted telling pupils at the school that Leslie Green had engaged in acts of oral sex with Ahmet Osman in revenge for rumours spread by Leslie concerning his relationship with Ahmet.

On 13 March 1987 Mr Prince formally interviewed Paget-Lewis on the basis of the notes of the interview between Paget-Lewis and Mr Perkins. The contemporaneous notes taken of the meeting reveal that Paget-Lewis admitted that he had become attached to Ahmet Osman; that he had accused Leslie Green of trying to turn Ahmet against him; and that he had parked outside Leslie’s house to show that he was not to be scared away. Paget-Lewis denied that he had accused Leslie of deviant sexual practices. The notes of the meeting conclude with the sentence “the situation has now escalated and Mr Prince has no confidence in his own ability to contain it”.

(d) Leslie Green and his mother

18. Mr Prince was informed on 16 March 1987 in an interview with Leslie Green and his mother that Paget-Lewis had been spying on Ahmet Osman and that Paget-Lewis had told Ahmet that “he knew where his mother worked and how much money she earned and that if Ahmet left school, he would find him”.

(e) Ahmet Osman

19. During this period another deputy head teacher, Mr Youssouf, also interviewed Ahmet Osman on a number of occasions. These interviews revealed that Paget-Lewis had told Ahmet that he would be able to find him if he left the school. Paget-Lewis claimed to have discovered Ahmet’s previous address and the name of his previous school and said he had visited the area and had spoken to his former neighbours.

(f) The Osman family

20. On 17 March 1987 Mr Prince met with the Osman family to explain his concerns about the interest Paget-Lewis had taken in Ahmet. He explained that the school was quite satisfied that nothing improper had taken place between Paget-Lewis and Ahmet. He told them that the school would monitor the situation closely to ensure that Ahmet would be safe. Ahmet was told never to be alone with Paget-Lewis. During this meeting Ahmet’s mother expressed her wish that her son should be transferred to another school.

3. Contacts between the school and the police during this period

21. According to the diary of Mr Prince between 3 March 1987 and 17 March 1987 he met with PC Williams on four occasions. The applicants state that during these meetings information concerning Paget-Lewis’ conduct towards Ahmet Osman was passed on to the police. The Government state that PC Williams had no recollection of being told about the presents which Paget-Lewis had given to Ahmet or that Paget-Lewis had followed Ahmet home. PC Williams did not keep any record of the meetings, nor did he make any report concerning the nature and extent of the information that was communicated to him, or if he did no such record now exists. The Government stress that all concerned were satisfied that there was no sexual element to Paget-Lewis’ attachment to Ahmet and the matter could be dealt with internally by the school.

4. The graffiti incident

22. By 17 March 1987 graffiti had appeared at six locations around the school which read “Leslie, do not forget to wear a condom when you screw Ahmet or he will get Aids.” The words had been written with spray paint and a stencil.

23. Following the discovery of the graffiti, Mr Perkins interviewed Paget-Lewis and asked him if he was responsible. He denied this. However, Mr Perkins noted in his report that Paget-Lewis knew the precise wording and the exact locations of all the graffiti.

5. The stolen files

24. On 19 March 1987 a further discussion took place between Mr Prince and the Osman family regarding Ahmet’s transfer to another school. For his safety Mr Prince told Ahmet not to give his new school address to anyone from Homerton House. While attempting to arrange his transfer, Mr Youssouf discovered that the files relating to Ahmet and Leslie Green had been stolen from the school office. The file relating to staff disciplinary matters was also found to be missing.

Mr Perkins considered that the stolen files were the likely source of the information that Paget-Lewis had acquired about Ahmet Osman’s previous address and school (see paragraph 19 above). He subsequently questioned Paget-Lewis, who denied any involvement in the theft and denied having made any comments about Ahmet’s previous address and school or visiting the area in which Ahmet used to live.

25. On 23 March 1987 Ahmet Osman was transferred to a different school, but owing to curriculum difficulties he had to return to Homerton House fourteen days later.

C. The events between April 1987 and August 1987

1. Paget-Lewis changes name

26. On 14 April 1987, Paget-Lewis changed his name by deed poll to Paul Ahmet Yildirim Osman. On 1 May 1987, Mr Prince wrote to the Inner London Education Authority (ILEA) informing them that Paget-Lewis had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of Ahmet Osman. He also stated that he was of the opinion that Paget-Lewis should be removed from the school as soon as possible.

2. Further contacts between the school and the police

27. On 4 May 1987 Mr Prince spoke with two police officers, Detective Chief Inspector Newman and Detective Inspector Clarke. According to the applicants during this meeting the headmaster informed them of the missing files and the graffiti incident and discussed the fact that Paget-Lewis’ real name was Ronald Stephen Potter. He had previously changed his name by deed poll to name himself after a pupil called Paget-Lewis whom he had taught at Highbury Grove School. The Government state that the two police officers have no recollection of having been informed of these matters.

3. The contacts with the ILEA

28. Following his letter of 1 May 1987 (see paragraph 26 above), Mr Prince wrote to the Head of Discipline at ILEA in a letter dated 8 May 1987 stating that while he believed Paget-Lewis needed medical help, his continued presence in the school jeopardised the welfare, safety and education of the pupils. An internal memorandum from the Head of Discipline at ILEA dated the same day makes reference to “a fear that [Paget-Lewis] might seek to take the boy out of the country” and that the police are investigating the complaint that “he has removed certain files about the matter from the school”.

Undated notes written by the same official between 14 April and 8 May 1987 indicate that it was feared that Ahmet Osman may be harmed and that by changing his name Paget-Lewis may abscond with the boy. The notes refer to the fact that the police had stated that Mr Prince should contact them if Ahmet goes missing for more than an hour. In addition, the police would investigate the disappearance of the missing files, search Paget-Lewis’ home and check up on his background.

The Government deny that the police said that they should be contacted if Ahmet went missing or that they intended to search Paget-Lewis’ house.

4. The conclusions of the ILEA psychiatrist following the first meeting with Paget-Lewis

29. On 19 May 1987 Paget-Lewis was seen by Dr Ferguson, the ILEA psychiatrist. Dr Ferguson was provided with, inter alia, the documents showing Paget-Lewis’ change of name; the records of the interviews conducted in March 1987; and the memorandum prepared by Mr Perkins on 5 May 1987 (see paragraph 15 above). Dr Ferguson reported:

“This teacher must indeed give cause for concern. He does not present ill in formal terms, nor does he seem sexually deviant. He does have personality problems, and his judgment regarding his friendship with a pupil is reprehensibly suspect.”

Dr Ferguson recommended that Paget-Lewis remain teaching at the school but that he should receive some form of counselling and psychotherapy.

5. The attacks on the applicants’ property

30. On or about 21 May 1987, a brick was thrown through a window of the applicants’ house. The police were informed and a police officer was sent to the house and completed a crime report. On two occasions in June 1987 the tyres of Ali Osman’s car were deliberately burst. Both incidents were reported to the police, but no police records relating to the offences can be found.

6. Dr Ferguson’s further interviews with Paget-Lewis

31. On 1 June 1987 Mr Prince requested Paget-Lewis to take sick-leave. On 2 June 1987 Paget-Lewis was examined again by Dr Ferguson. He described a continuing strong urge to speak with Ahmet Osman and said that he felt angry that Ahmet seemed content with the situation of non-contact. Dr Ferguson concluded that under the circumstances, Paget-Lewis should remain away from Homerton House and was designated temporarily unfit to work.

Paget-Lewis subsequently informed Mr Perkins that he would be taking medical leave for the remainder of the school term. He then left Homerton House and did not return again.

32. On 16 June 1987, following a further interview with Paget-Lewis, Dr Ferguson recommended that he should no longer teach at Homerton House and that transfer on medical grounds was strongly and urgently recommended.

7. Mrs Green’s further complaints against Paget-Lewis

33. On 4 June 1987 Mrs Green telephoned Mr Perkins making further complaints about Paget-Lewis following her son. She also informed him that she had sent her son to stay with her sister.

8. Paget-Lewis’ suspension from teaching duties and subsequent reinstatement

34. On 18 June 1987, Paget-Lewis was suspended pending an ILEA investigation for “unprofessional behaviour” towards Ahmet Osman. He submitted a statement dated 6 July 1987 in which, inter alia, he admitted taking photographs of Ahmet and giving him money but denied stealing files or painting graffiti. He accused Mr Perkins of lying about him and said that Mr Perkins has stated his intention of breaking him.

35. On 7 August 1987, ILEA sent a letter to Paget-Lewis officially reprimanding and severely warning him but lifting the suspension. The letter also stated that he was not to return to Homerton House. Shortly afterwards he began working as a supply teacher at two other local schools, Haggerston School and Skinners School.

D. The events between August 1987 and December 1987

1. The criminal damage to the Osmans’ property

36. In August or September 1987, a mixture of engine oil and paraffin was poured on the area outside the Osman family home. On 18 October 1987, the windscreen of Ali Osman’s car was smashed. During November 1987, in a series of incidents, the applicants’ front door lock was jammed with superglue, dog excrement was smeared on their doorstep and on their car, and on more than one occasion the light bulb was stolen from the light in the outside porch. Around this time all the windows of their car were also broken. All these incidents were reported to the police and on two occasions Ali Osman visited Hackney police station to discuss the vandalism and criminal damage to his property.

37. At some point during November 1987, PC Adams visited the Osmans’ home and then spoke to Paget-Lewis about the acts of vandalism. In a later statement to the police, Paget-Lewis alleged that he told PC Adams that the loss of his job was so distressing that he felt that he was in danger of doing something criminally insane. The Government deny that this was said, and refer to the fact that during the interview with PC Adams Paget-Lewis denied any involvement in the acts of vandalism and criminal damage. No detailed records were made by PC Adams of his contacts with Paget-Lewis or the Osman family. Any entries in notebooks or duty registers (crime reports or parade books) could not later be traced by the Metropolitan Police Solicitor’s Department.

2. The vehicle collision involving Paget-Lewis

38. On 7 December 1987 a car driven by Paget-Lewis collided with a van in which Leslie Green was a passenger. According to the driver of the van, Paget-Lewis claimed that his accelerator had jammed and that he could not help what happened. After the police arrived at the scene of the accident they cautioned Paget-Lewis, and provided him with a form requesting him to produce his driving documents.

39. On 10 December 1987 Paget-Lewis attended Hackney police station and produced his driving documents for inspection. Since he failed to produce a road worthiness (MOT) certificate for his car he was cautioned by the police.

40. In a statement taken by the police on 22 December 1987 from the driver of the van that had been allegedly rammed by Paget-Lewis, the driver recalled that after the accident Paget-Lewis had said: “I’m not worried because in a few months I’ll be doing life.”

3. Contacts between Detective Sergeant Boardman and ILEA

41. On 8 December 1987, following the collision incident, Detective Sergeant Boardman contacted ILEA stating that he wished to interview Paget-Lewis and the headmaster. The applicants state that Detective Sergeant Boardman assured ILEA that the Osman family would be protected. The Government deny that such an assurance was given.

An ILEA memorandum dated 8 December 1987 referred to the harassment of the Osman family and Paget-Lewis’ alleged admission of responsibility for the van collision saying that Leslie Green had lured Ahmet Osman away from his affections. It noted that the police were pursuing enquiries but that if nothing was heard the matter should be “chased”. It concluded with the note “Families getting police protection”.

4. Detective Sergeant Boardman interviews the Green and the Osman families and visits the school

42. On 9 December 1987 Detective Sergeant Boardman took a detailed statement from Leslie Green and his mother concerning, inter alia, the fact that Paget-Lewis had followed Leslie home, the acts of harassment and the
graffiti which had appeared at the school. In his statement Leslie claimed that Paget-Lewis had threatened to “get him” whether it took “thirty days or thirty years”. He also said that he had not been to school for two weeks as he was afraid to travel there and that he had moved in with his aunt, so as to be safe from Paget-Lewis.

43. On 14 December 1987 Detective Sergeant Boardman visited Homerton House and inspected the graffiti. A police photographer took photographs of the graffiti.

44. On or about 15 December 1987 Detective Sergeant Boardman visited the Osman family and discussed the criminal damage and Paget-Lewis’ relationship with Ahmet. The applicants allege that Detective Sergeant Boardman told the family that he knew Paget-Lewis was responsible for the acts of vandalism, and gave them assurances that he would cause the incidents to stop. The Government deny that Detective Sergeant Boardman said that he knew Paget-Lewis was responsible, and that he gave assurances as to the family’s safety.

5. Detective Sergeant Boardman’s report on the case

45. In his report on the case which was completed on or about 15 December 1987, Detective Sergeant Boardman observed:

“It should be pointed out at this stage that there is no evidence to implicate Paget-Lewis in either of these offences [the graffiti at the school] or the acts of vandalism against Osmans’ address, although there is no doubt in everybody’s mind that he was in fact responsible and this was just another example of his spite.”

6. Paget-Lewis is interviewed by ILEA officers

46. On 15 December 1987 Paget-Lewis was interviewed by officers of ILEA at his own request. An ILEA memorandum dated the same day recorded that Paget-Lewis felt in a totally self-destructive mood, stating that it was all a symphony and the last chord had to be played. He admitted being deeply in debt and as a result was selling all his possessions. He blamed Mr Perkins for all his troubles but would not do a “Hungerford”¹ in a school but would see him at his home. The memorandum stated that the concerns of ILEA should be passed on to the police and noted that a call was made to Detective Sergeant Boardman, who was unavailable. Nevertheless, a detailed message was left with the receptionist.

One of the officers of ILEA recalled later in a statement dated 9 March 1988 that Paget-Lewis spoke in a manner which was very disturbing, said that he blamed Mr Perkins for the loss of his job, that he knew where he lived and that he was going to do something though not at the school. The
other officer recalled in her statement of 9 March 1988 that Paget-Lewis had stated that he was going to do something that would be “a sort of Hungerford”. She recalled that as a result of this conversation she informed the police and the school that she considered that the head and deputy head were at risk of violence.

Although the applicants state that the content of the interview was passed on to the police, the Government deny that mention was made of the “Hungerford” reference or that there was any suggestion that the Osmans might be in danger.

7. Detective Sergeant Boardman’s reaction to the ILEA message and the decision to arrest Paget-Lewis

47. On 15 December 1987 after receiving the message of the officer of ILEA (see paragraph 46 above), Detective Sergeant Boardman sent a telex to the local police station near Mr Perkins’ home referring to the fact that vague threats had been made and that the school authorities were very concerned. He asked them to pay casual attention to the address, giving a brief description of Paget-Lewis and the registration number of his car.

48. On 16 December 1987 Detective Sergeant Boardman contacted ILEA with a view to tracing Paget-Lewis and was provided with his address. He requested the official at ILEA to ask Paget-Lewis to contact the police. On the same day, Detective Sergeant Boardman met with Mr Prince and Mr Perkins. The applicants state that he assured Mr Prince that the police would undertake the necessary measures to protect both Mr Perkins and the applicants. A diary entry of Mr Prince dated 16 December 1987 refers to Detective Sergeant Boardman and contains a heading “OSMAN/PERKINS/POLICE PRESENCE ARRANGED” and a note that ILEA had called “to finalise arrangements re protection for Perkins/Osman families”. According to the Government no assurance of protection was given. Detective Sergeant Boardman received the impression from his meetings with Mr Prince and Mr Perkins that Paget-Lewis was angry at being removed from the school but that the anger was directed against the deputy head, who in any case did not feel in danger.

49. On 17 December 1987 Detective Sergeant Boardman and other police officers arrived at Paget-Lewis’ house with the intention of arresting him on suspicion of criminal damage. Paget-Lewis was absent. The police were unaware that he was teaching at Haggerston School that day.

50. On 18 December 1987 pursuant to the request of the police, ILEA sent a letter to Paget-Lewis requesting him to contact Detective Sergeant Boardman. The same day ILEA informed the police that Paget-Lewis had not attended Haggerston School. He did not return to the school again.

E. The events between January 1988 and October 1988

1. Attempts to trace the whereabouts of Paget-Lewis

51. In early January 1988 the police commenced the procedure of laying an information before the Magistrates’ Court with a view to prosecuting Paget-Lewis for driving without due care and attention. In addition, Paget-Lewis’ name was put on the Police National Computer as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage.

52. On 8 January an officer of ILEA rang Detective Sergeant Boardman for an update on the case but he was unavailable. Three days later he returned her call saying there had been no progress.

53. Between January and March 1988 Paget-Lewis travelled around England hiring cars in his adopted name of Osman and was involved in a number of accidents. He spent time at his home address during this period and continued to receive mail there.

54. On 17 January 1988 Paget-Lewis broke into a car parked near a clay-pigeon shoot near Leeds in Yorkshire and stole a shotgun. He sawed off both barrels. While the theft was reported to the local police, because there was nothing to connect the incident to Paget-Lewis the theft did not come to the attention of the Metropolitan police dealing with the case.

2. Paget-Lewis is sighted near the Osman home

55. On 1, 4 and 5 March 1988 Leslie Green saw Paget-Lewis wearing a black crash helmet near the applicants’ home. According to the applicants, Mrs Green informed the police on each occasion, but her calls were not returned. The Government accept that, on 5 March 1988, Detective Sergeant Boardman received a message which stated “phone Mrs Green” but since there was no phone number on the note he did not connect the message with the mother of Leslie Green.

3. The fatal shootings and the arrest of Paget-Lewis

56. On 7 March 1988 Paget-Lewis was seen near the applicants’ home by a number of people. At about 11 p.m. Paget-Lewis shot and killed Ali Osman and seriously wounded Ahmet. He then drove to the home of Mr Perkins where he shot and wounded him and killed his son.

57. Early the next morning Paget-Lewis was arrested. On being arrested he stated “why didn’t you stop me before I did it, I gave you all the warning signs?”

58. Later that day Paget-Lewis was interviewed by the police. According to the record of the interview, Paget-Lewis said that he had been planning the attacks ever since he lost his job, and for the previous two weeks he had been watching the Osmans’ house. Although he considered Mr Perkins as his main target, he also regarded Ali and Ahmet Osman as being responsible for his losing his position at Homerton House. Paget-Lewis stated that he had been hoping in the back of his mind that the police would stop him. He admitted holding the family at gunpoint as they returned to the house, making Ali and Ahmet Osman kneel down in the kitchen, turning out the light and shooting at them. He denied that on earlier occasions he had damaged the windows of the Osmans’ house but admitted that he had let down the tyres of their car as a prank. He also denied responsibility for the graffiti and taking the files from the school office.

4. Paget-Lewis is convicted of manslaughter

59. On 28 October 1988 Paget-Lewis was convicted of two charges of manslaughter having pleaded guilty on grounds of diminished responsibility (see paragraph 73 below). He was sentenced to be detained in a secure mental hospital without limit of time pursuant to section 41 of the Mental Health Act 1983.

F. Judicial proceedings against the police for negligence

60. An inquest was held into the death of Ali Osman after the conclusion of the criminal proceedings. Since a person had been convicted in connection with the death, the Coroner did not hold a full inquest (section 16 of the Coroner’s Act 1988).

61. On 28 September 1989 the applicants commenced proceedings against, inter alios, the Commissioner of Police of the Metropolis alleging negligence in that although the police were aware of Paget-Lewis’ activities since May 1987 they failed to apprehend or interview him, search his home or charge him with an offence before March 1988. Orders for discovery of documents were made on 24 April 1990.

62. On 19 August 1991 the Metropolitan Police Commissioner issued an application to strike out the statement of claim on the ground that it disclosed no reasonable cause of action. The High Court judge dismissed the application.

63. On 7 October 1992 the Court of Appeal upheld the appeal by the Commissioner (Osman and another v. Ferguson and another [1993] 4 All England Law Reports at p. 344). In its judgment, the court held that in light of previous authorities no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required an immunity from suit.

64. Lord Justice McCowan found, inter alia:

“In my judgment the plaintiffs [the applicants] have therefore an arguable cause that as between [the second applicant] and his family, on the one hand and the investigating officers, on the other, there existed a very close degree of proximity amounting to a special relationship.”

65. However, having regard to the judgment of the House of Lords in the case of Hill v. Chief Constable of West Yorkshire (see paragraphs 90–92 below), from which he found no relevant distinction, he considered that the matters in issue were failures in investigation of crime and thus public policy doomed the action to failure. He rejected the argument that where the class of victim was sufficiently proximate and sufficiently small the public policy argument might not apply. He found that Lord Keith in the Hill case had treated public policy as a separate point that is not reached unless there is a duty of care.

The second judge in the Court of Appeal, Lord Justice Beldam, also held that on grounds of public policy the claims were not maintainable but refrained from expressing an opinion as to whether the facts, if proved, were sufficient to establish a relationship sufficiently proximate to found a duty of care. Lord Justice Simon Brown agreed with the judgment of Lord Justice McCowan. The applicants’ claim was accordingly struck out.

66. The Court of Appeal refused leave to appeal to the House of Lords and the application to the House of Lords for leave to appeal was refused on 10 May 1993.

G. The Commission’s findings of fact

67. The domestic courts had not established the full facts of the case since Paget-Lewis pleaded guilty to the charges against him and a full inquest was not conducted into the death of Ali Osman (see paragraph 60 above). Furthermore, the applicants’ civil action against the police was struck out as showing no reasonable cause of action (see paragraph 65 above). Having examined the submissions and materials of the parties especially as regards the facts in dispute the Commission proceeded to the establishment of the facts of the case. Its findings may be summarised as follows.

68. As to the four meetings which took place between the police and the school between 3 March and 17 March 1987 (see paragraph 21 above), the Commission was satisfied that the police were made aware of the substance of the events and of the school’s concerns about the disturbing attachment which Paget-Lewis was showing towards Ahmet Osman as well as Paget-Lewis’ worrying reaction towards Leslie Green.

Furthermore, Mr Prince had in all probability informed Detective Inspectors Newman and Clarke on 4 May 1987 (see paragraph 27 above)
about the graffiti incident, the theft of the school files and Paget-Lewis’ change of name, even if both officers had no recollection of having been told about the first two matters. Like the meetings between PC Williams and Mr Prince, no police notes appear to have been taken. However, the Commission did not find it established that at this stage the police had made any commitment to searching Paget-Lewis’ home or were seriously concerned about the possibility of Paget-Lewis kidnapping Ahmet. These hypotheses emerge from the memoranda drawn up by ILEA officers around this time (see paragraph 28 above) and were probably based on the contacts which the officers had with Mr Prince and not on any direct contact between the officers and the police.

69. While all the vandalism on the Osmans’ home and property between May and November 1987 had been reported to the police and the family had informed the police of its concern that Paget-Lewis was behind the attacks, the only step taken during that period was to invite Paget-Lewis to the police station for an interview (see paragraph 37 above). In the Commission’s opinion, little reliance could be placed on Paget-Lewis’ later assertions that he told PC Adams during the interview that he was in danger of doing something criminally insane. No police notes or records of this meeting which took place on an unspecified date could be traced.

70. Following the alleged ramming incident (see paragraph 38 above), the police immediately interviewed the Greens and the Osmans and photographed the graffiti at the school (see paragraphs 42 and 43 above). Although Detective Sergeant Boardman in his undated report (see paragraph 45 above) had stated that there was no evidence that Paget-Lewis was responsible for the graffiti and the attacks on the Osmans’ home the police had nevertheless taken the view that he was presenting a sufficient threat that formal steps should be taken against him. Thus the decision was taken on 16 December 1987 to arrest Paget-Lewis on suspicion of criminal damage.

The Commission was also satisfied that there was no evidence that Paget-Lewis had made any direct or indirect threats against the Osmans during his meeting with ILEA officers on 15 December 1987 (see paragraph 46 above). It placed greater weight on the contemporaneous notes of the meeting rather than on the statement of one of the officers taken several months later that Paget-Lewis threatened at the meeting to commit a “Hungerford massacre”. According to the notes of the meeting, Paget-Lewis is reported as having stated that he would not do a “Hungerford” at the school but would see the deputy at home. In the Commission’s view, this would explain why the police requested that a casual watch should be kept on Mr Perkins’ address. Furthermore, despite the wording of the ILEA memorandum of 8 December and of Mr Prince’s rather cryptic diary entry on 16 December 1987 (see paragraphs 41 and 48 above) it seemed unlikely
that the police had referred to or promised police protection to the Osman family especially since none was in fact envisaged or provided. The school authorities had probably received this impression from the assurances given by the police that the necessary measures were being taken to deal with the situation including the vague threats made against Mr Perkins.

71. The Commission did not find it established that the letter sent by the ILEA to Paget-Lewis at the request of the police following the failed arrest attempt on 17 December 1987 caused Paget-Lewis to disappear (see paragraph 50 above). It was also satisfied that the police took no further active steps to trace the whereabouts of Paget-Lewis from 18 December 1987 to March 1988 apart from placing his name on the Police National Computer in January 1988. In addition, there were no contemporaneous records to support the assertion that Mrs Green had informed the police about Paget-Lewis being seen by her son around the Osman home in early March 1988 (see paragraph 55 above). It may have been the case that Mrs Green merely left a message with the police station that Detective Sergeant Boardman should ring her back. In that event, it was not surprising that Detective Sergeant Boardman had not been able to make a connection between a Mrs Green and the Paget-Lewis file since the case had been dormant for three months.

ii. relevant domestic law

A. The criminal law

1. Murder

72. The offence of murder is committed if a person of sound mind unlawfully kills any human being with malice aforethought. The mental element of murder, “malice aforethought”, is established if it is proved that there was, on the part of the accused, an intention to kill, an intention to cause grievous bodily harm or an intention to do an act knowing it to be highly probable that the act will cause death or grievous bodily harm. The sentence for murder is life imprisonment.

2. Manslaughter

73. The offence of manslaughter is committed if the victim is unlawfully killed by a person who, by reason of abnormality of mind, suffered from diminished responsibility – i.e. who suffered from such abnormality of mind as substantially impaired his mental responsibility for his acts. The sentence of manslaughter is imprisonment for life or for any shorter term.

B. Criminal procedure

1. Search warrants

74. The power to obtain a warrant to search for items that have been used, or are intended for use, in committing criminal damage is governed by section 6(1) of the Criminal Damage Act 1971 which provides:

“If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse –

(a) to destroy or damage property belonging to another; or

(b) to destroy or damage any property in a way likely to endanger the life of another,

the Justice of the Peace may grant a warrant authorising any constable to search for and seize that thing.”

2. Police powers of arrest and detention

75. In order for an arrest to be lawful it must first satisfy either section 24 or 25 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”).

76. Under section 24 a police officer may arrest any person whom he has reasonable grounds to believe is guilty of an arrestable offence. All offences which carry a maximum sentence of five years’ imprisonment or more are considered arrestable offences (section 24(1)).