________________________________________
EHRM 28 OKTOBER 1998
CASE OF OSMAN V. THE UNITED KINGDOM
(Bron: www.echr.coe.int)
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)).
77. Under
section 25 a police officer may arrest without warrant any person whom he has
reasonable grounds to suspect is guilty of a non-arrestable offence provided
that one of the general interest conditions apply. These include:
(a) that the
constable has reasonable grounds for doubting whether a name furnished by the
relevant person as a name is in fact his real name (section 25(3)(a));
(b) that the
constable has reasonable grounds to believe that an arrest is necessary to
prevent the relevant person causing physical injury to any person or causing
loss or damage to property (section 25(3)(d)(i) and (ii));
(c) that the
constable has reasonable grounds to believe that an arrest is necessary to
protect a child or other vulnerable person from the relevant person
(section 25(3)(e)).
78. In determining whether the available information is sufficient
to give rise to a reasonable suspicion, the test to be applied is that laid
down by the House of Lords in Hussein v. Chang Fook Kam [1970] Appeal
Cases at p. 942:
“Suspicion in its
ordinary meaning is a state of conjuncture or surmise where proof is lacking:
‘I suspect but I cannot prove’. Suspicion arises at or near the starting point
of an investigation of which the obtaining of prima facie proof is at the end.”
3. The
decision to charge
79. Where
a person is arrested for an offence without a warrant, or under a warrant not
endorsed for bail, the custody officer at the police station where he is
detained after his arrest must determine whether he has sufficient evidence to
charge the person for the offence for which he has been arrested
(section 37(1)(b) of the 1984 Act). In reaching this decision the custody
officer must have “reasonable and probable” cause to prosecute. In Hicks v.
Faulkner [1878] 8 Queen’s Bench Division at p. 167, Judge Hawkins
interpreted this requirement to mean:
“… an honest
belief in the guilt of the accused based upon a full conviction, founded upon
reasonable grounds, of the existence of a state of circumstances, which,
assuming them to be true, would reasonably lead any ordinary prudent and
cautious man, placed in the position of the accuser to the conclusion that the
person was probably guilty of the crime imputed.”
80. The
custody officer is not required to be sure that the accused person is guilty before
charging him (Tempest v. Snowden [1952] 1 King’s Bench Reports at p.
130). Nor is it necessary for a charging officer to believe that the
prosecution will result in a conviction (Dawson v. Vasandau [1863] 11
Weekly Reporter at p. 516). The charging officer is simply required to make an
assessment of whether there is sufficient evidence to withstand examination in
the course of “a fair and impartial trial” (Glinski v. McIver [1962]
Appeal Cases at p. 726).
81. If
the custody officer does not have sufficient evidence to charge, the arrested
person must be released either on bail or without bail. However, if the custody
officer has reasonable grounds to believe that the suspect’s detention is
necessary to secure or preserve evidence relating to an offence for which he is
under arrest or to obtain such evidence by questioning him, the custody officer
may authorise the suspect’s further detention (section 37(2) of the 1984
Act).
4. Pattern
of offending
82. In
determining whether to bring criminal charges against a person, the custody
officer may take into account evidence disclosing a pattern of
offending. However, in D.P.P. v. P. [1991] 2 Appeal Cases at p. 447 the
House of Lords stated that admissibility of such evidence is to be determined
by the degree of its probative worth. The Lord Chancellor, Lord Mackay of
Clashfern, said:
“… the essential
feature of evidence which is to be admitted is that its probative force in
support of the allegation that an accused person committed a crime is
sufficiently great to make it just to admit the evidence notwithstanding that
it is prejudicial to the accused in tending to show that he was guilty of
another crime… Once the principle is recognised that what has to be assessed is
the probative force of the evidence in question, the infinite variety of
circumstances in which the question arises demonstrates that there is no single
manner in which this can be achieved. Whether the evidence has sufficient
probative weight to outweigh its prejudicial effect must in each case be a
question of fact and degree.” (at p. 460)
He continued:
“Where the
identity of the perpetrator is in issue, and evidence of this kind is important
in that connection, obviously something in the nature of what has been called
in the course of argument a signature or other special feature will be
necessary. To transpose this requirement to other situations where the question
is whether a crime has been committed, rather than who did commit it, is to
impose an unnecessary and improper restriction upon the application of the
principle.” (at p. 462)
5. Bail
83. Section 38
of the 1984 Act provides that where an arrested person is charged with an
offence, the custody officer shall order his release from police detention,
either on bail or without bail, unless, inter alia, his name or address
cannot be ascertained; detention is necessary for the person’s own protection
or to prevent him causing physical injury to any other person or damage to
property; or the person arrested will fail to appear in court to answer bail.
84. If
the custody officer decides not to release the defendant, he must be produced
before a Magistrates’ Court within 24 hours after his arrest who shall either
commit him in custody or release him on bail. Pursuant to section 13 of
Schedule 1 Part 1 to the Bail Act 1976:
“The defendant
need not be granted bail if the court is satisfied that there are substantial
grounds for believing that the defendant, if released on bail (whether subject
to conditions or not) would –
(a) fail to
surrender to custody, or
(b) commit
an offence while on bail, or
(c) interfere
with witnesses or otherwise obstruct the course of justice, either in relation
to himself or any other person.”
In taking this
decision the Magistrates’ Court is required, pursuant to section 9 of
Schedule 1 Part 1, to have regard to such of the following considerations as
appear to it to be relevant, namely:
“(a) the
nature and seriousness of the offence…;
(b) the
character, antecedents, associations and community ties of the defendant;
(c) the
defendant’s record as respects the fulfilment of his obligations under previous
grants of bail in criminal proceedings;
(d) except
in the case of a defendant whose case is adjourned for inquiries or a report,
the strength of the evidence of his having committed the offence or having
defaulted.”
C. Mental health
85. Section 136
of the Mental Health Act 1983 provides:
“(1) If
a constable finds in a place to which the public have access a person who
appears to him to be suffering from mental disorder and to be in immediate need
of care or control, the constable may, if he thinks it necessary to do so in
the interests of that person, or for the protection of other persons, remove
that person to a place of safety…
(2) A
person removed to a place of safety under this section may be detained there
for a period not exceeding 72 hours for the purpose of enabling him to be
examined by a registered medical practitioner and to be interviewed by an
approved social worker and of making any necessary arrangements for his
treatment or care.”
86. Both
the Magistrates’ Court and the Crown Court have the power to remand an accused
person to a specified hospital for the preparation of a report on his mental
condition. Section 35(2) defines an accused person as follows:
“(a) in
relation to the Crown Court, any person who is awaiting trial before the court
for an offence punishable with imprisonment or who has been arraigned before
the court for such an offence and has not yet been sentenced or otherwise dealt
with for the offence on which he has been arraigned;
(b) in
relation to a Magistrates’ Court any person who has been convicted by the court
of an offence punishable on summary conviction with imprisonment and any person
charged with such an offence if the court is satisfied that he did the act or
made the omission charged or he has consented to the exercise by the court of
the powers conferred by this section.”
If these requirements
are met the court may, pursuant to section 35(3), remand the accused
person to a hospital for a report if:
“(a) the court is satisfied on the written or oral evidence of a
registered medical practitioner, that there is reason to suspect that the
accused person is suffering from mental illness, psychopathic disorder, severe
mental impairment or mental impairment; and
(b) the
court is of the opinion that it would be impracticable for a report on his
mental condition to be made if he were remanded on bail…”
87. The
Crown Court may remand an accused person to a specified hospital for treatment,
if it is satisfied on the evidence of two medical practitioners that he is
suffering from mental illness or severe mental impairment of a nature or degree
which makes it appropriate for him to be so detained (section 36(1)).
88. Following
conviction for an offence punishable with imprisonment, both the Magistrates’
Court and the Crown Court have the power under section 38(1) to make an
interim hospital order, where:
“… the court
before or by which he is convicted is satisfied, on the written or oral
evidence of two registered medical practitioners
(a) that
the offender is suffering from mental illness, psychopathic disorder, severe
mental impairment or mental impairment; and
(b) that
there is reason to suppose that the mental disorder from which the offender is
suffering is such that it may be appropriate for a hospital order to be made in
his case…”
Pursuant to
section 37(2) both the Magistrates’ Court and the Crown Court may also
admit an offender to a hospital if:
“(a) the
court is satisfied, on the written or oral evidence of two registered medical
practitioners, that the offender is suffering from mental illness, psychopathic
disorder, severe mental impairment or mental impairment and that…
(i) the
mental disorder from which the offender is suffering is of a nature or degree
which makes it appropriate for him to be detained in a hospital for medical
treatment and, in the case of psychopathic disorder or mental impairment, that
such treatment is likely to alleviate or prevent a deterioration of his
condition…
(b) the
court is of the opinion, having regard to all the circumstances including the
nature of the offence and the character and antecedents of the offender, and to
the other available methods of dealing with him, that the most suitable method
of disposing of the case is by means of an order under this section.”
D. Actions against the police for negligence
89. In
the case of Dorset Yacht Co. Ltd v. the Home Office ([1970] Appeal Cases
at p. 1004), the owners of a yacht damaged by borstal boys who had escaped from
the supervision of prison officers sought to sue the Home Office alleging
negligence by the prison officers. The House of Lords held that in the
particular case a duty of care could arise. Lord Diplock said:
“I should
therefore hold that any duty of a borstal officer to use reasonable care to
prevent a borstal trainee from escaping from his custody was owed only to
persons whom he could reasonably foresee had property situated in the vicinity
of the place of detention of the detainee which the detainee was likely to
steal or to appropriate and damage in the course of eluding immediate pursuit
and capture.”
90. In
the case of Hill v. Chief Constable of West Yorkshire ([1989] Appeal
Cases at p. 53), the mother of a victim of the Yorkshire Ripper instituted
proceedings against the police alleging that they had failed properly to
exercise their duty to exercise all reasonable care and skill to apprehend the
perpetrator of the murders and to protect members of the public who might be
his victims. Lord Keith in the House of Lords found:
“The alleged
negligence of the police consists in a failure to discover his identity. But if
there is no general duty of care owed to individual members of the public by
the responsible authorities to prevent the escape of a known criminal or to
recapture him, there cannot reasonably be imposed upon any police force a duty
of care similarly to identify and apprehend an unknown one. Miss Hill cannot
for this purpose be regarded as a person at special risk simply because she was
young and female. Where the class of potential victims of a particular habitual
criminal is a large one the precise size of it cannot in principle affect the
issue. All householders are potential victims of an habitual burglar and all
females those of an habitual rapist. The conclusion must be that although there
existed reasonable foreseeability of likely harm to Miss Hill if Sutcliffe were
not identified and apprehended, there is absent from the case any such
ingredient or characteristic as led to the liability of the Home Secretary in
the Dorset Yacht case. Nor is there present any additional characteristic such
as might make up a deficiency. The circumstances of the case are therefore not
capable of establishing a duty of care owed towards Miss Hill by the West
Yorkshire Police.”
91. While
he considered this sufficient to dispose of the appeal, Lord Keith went on
to set out public-policy objections to the existence of an action in negligence
against the police in the performance of their duties in the investigation and
suppression of crime.
“Potential
existence of such liability may in many instances be in the general public
interest, as tending towards the observance of a higher standard of care in the
carrying on of various different types of activity. I do not, however, consider
that this can be said of police activities. The general sense of public duty
which motivates police forces is unlikely to be appreciably reinforced by the
imposition of such liability so far as concerns their function in the
investigation and suppression of crime. From time to time they make mistakes in
the exercise of that function, but it is not to be doubted that they apply
their best endeavours to the performance of it. In some instances the
imposition of liability may lead to the exercise of a function being carried on
in a detrimentally defensive frame of mind. The possibility of this happening
in relation to the investigative operations of the police cannot be excluded.
Further it would be reasonable to expect that if potential liability were to be
imposed it would be not uncommon for actions to be raised against police forces
on the ground that they had
failed to catch some criminal as soon as they might have done, with the result
that he went on to commit further crimes. While some such actions might involve
allegations of a simple and straightforward type of failure – for example that
a police officer negligently tripped and fell while pursuing a burglar – others
would be likely to enter deeply into the general nature of a police
investigation, as indeed the present action would seek to do. The manner of
conduct of such an investigation must necessarily involve a variety of
decisions to be made on matters of policy and discretion, for example as to
which particular line of inquiry is most advantageously to be pursued and what
is the most advantageous way to deploy the available resources. Many such decisions
would not be regarded by the courts as appropriate to be called in question,
yet elaborate investigation of the facts might be necessary to ascertain
whether or not this was so. A great deal of police time, trouble and expense
might be expected to have to be put into the preparation of the defence to the
action and the attendance of witnesses at the trial. The result would be
significant diversion of police manpower and attention from their most
important function, that of the suppression of crime. Closed investigations
would require to be reopened and retraversed, not with the object of bringing
any criminal to justice but to ascertain whether or not they had been
competently conducted.”
92. Lord
Templeman commented:
“... if this
action lies, every citizen will be able to require the court to investigate the
performance of every policeman. If the policeman concentrates on one crime, he
may be accused of neglecting others. If the policeman does not arrest on
suspicion a suspect with previous convictions, the police force may be held
liable for subsequent crimes. The threat of litigation against a police force
would not make a policeman more efficient. The necessity for defending
proceedings, successfully or unsuccessfully, would distract the policeman from
his duties.
This action is
misconceived and will do more harm than good.”
93. In
Swinney and another v. the Chief Constable of Northumbria ([1997]
Queen’s Bench Reports at p. 464), the plaintiff had passed on information in
confidence to the police about the identity of a person implicated in the
killing of a police officer, expressing her concern that she did not want the
source of the information to be traced back to her. The information was
recorded, naming the plaintiff, in a document which was left in an unattended
police vehicle, which was broken into with the result that the document was
stolen, came into the possession of the person implicated and the plaintiff was
threatened with violence and arson and suffered psychiatric damage. The plaintiff’s
claim in negligence against the police was struck out but allowed on appeal by
the High Court judge. The Chief Constable appealed contending that the police
owed no duty of care or alternatively that public policy precluded the
prosecution of the claim since the police were immune for claims arising out of
their activities in the investigation or suppression of crime. The Court of
Appeal dismissed the appeal.
In his judgment
Lord Justice Hirst referring to the cases of Dorset Yacht and Hill
(see paragraphs 89–92 above) stated that he could not accept a claim of blanket
immunity for the police in this case, but that there were other considerations
of public policy in this case, namely, the need to protect springs of
information, to protect informers and to encourage them to come forward. On the
facts of the case, it was arguable that the police had assumed a responsibility
of confidentiality towards the plaintiff. The case should therefore proceed to
trial.
94. Lord
Justice Ward held that it was arguable that:
“There is a
special relationship between the plaintiffs and the defendant, which is
sufficiently proximate. Proximity is shown by the police assuming
responsibility, and the plaintiffs relying upon that assumption of
responsibility, for preserving the confidentiality of the information which, if
it fell into the wrong hands, was likely to expose the first plaintiff and
members of her family to a special risk of damage from the criminal acts of
others, greater than the general risk which ordinary members of the public must
endure with phlegmatic fortitude.
It is fair, just
and reasonable that the law should impose a duty, there being no overwhelming
dictate of public policy to exclude the prosecution of this claim. On the one
hand there is, as more fully set out in Hill v. the Chief Constable ...
an important public interest that the police should carry out their difficult
duties to the best of their endeavours without being fettered by, or even
influenced by, the spectre of litigation looming over every judgment they make,
every discretion they exercise, every act they undertake or omit to perform, in
their ceaseless battle to investigate and suppress crime. The greater good
rightly outweighs any individual hardship. On the other hand it is incontrovertible
that the fight against crime is daily dependent upon information fed to the
police by members of the public, often at real risk of villainous retribution
from the criminals and their associates. The public interest will not accept
that good citizens should be expected to entrust information to the police
without also expecting that they are entrusting their safety to the police. The
public interest would be affronted were it to be the law that members of the
public should be expected, in the execution of public service, to undertake the
risk of harm to themselves without the police, in return, being expected to
take no more than reasonable care to ensure that the confidential information
imparted to them is protected...”
95. The
police have been held liable in negligence or failure in their duties in other
cases. In Kirkham v. the Chief Constable of Manchester ([1989] 2 Queen’s
Bench Reports at p. 283), the Court of Appeal upheld a finding of liability in
negligence under the Fatal Accidents Act 1976 where the police had taken a man
into custody, knew he was a suicide risk but did not communicate that
information to the prison authorities. The man, diagnosed as suffering from
clinical depression had committed suicide in remand prison. The police, which
had assumed responsibility for the man, had owed a duty of care, which they had
breached with the result that his death had ensued.
96. In
Rigby and another v. Chief Constable of Northamptonshire ([1985] 2 All
England Law Reports at p. 986), the High Court found the police liable to pay
damages for negligence in that they had fired a gas canister into the
plaintiffs’ premises in order to flush out a dangerous psychopath. There had
been a real and substantial fire risk in firing the canister into the building
and that risk was only acceptable if there was fire-fighting equipment
available to put the fire out at an early stage. No equipment had been present
at the time and the fire had broken out and spread very quickly. Negligence was
also found in Knightley v. Johns and others ([1982] 1 All England Law
Reports at p. 301) where a police inspector at the site of an accident failed
to close a tunnel and ordered officers to go back through the tunnel in the
face of traffic, thereby leading to a further accident.
97. In
R. v. Dytham ([1979] 1 Queen’s Bench Reports at p. 722), where a police
officer stood by while a man died outside a club in a murderous assault, the
Court of Appeal upheld the conviction of the officer for wilful neglect to
perform a duty.
PROCEEDINGS BEFORE THE COMMISSION
98. The
applicants applied to the Commission on 10 November 1993, complaining that
there had been a failure to protect the lives of Ali and Ahmet Osman and to
prevent the harassment of their family, and that they had no access to court or
effective remedy in respect of that failure. The applicants relied on
Articles 2, 6, 8 and 13 of the Convention.
99. The
Commission declared the application (no. 23452/94) admissible on 17 May 1996.
In its report of 1 July 1997 (Article 31), it expressed the opinion
that there had been no violation of Article 2 of the Convention (ten votes
to seven); that there had been no violation of Article 8 of the Convention
(ten votes to seven); that there had been a violation of Article 6 § 1 of
the Convention (twelve votes to five); and that no separate issue arose under
Article 13 of the Convention (twelve votes to five). The full text of the
Commission’s opinion and of the three dissenting opinions contained in the
report is reproduced as an annex to this judgment1.
FINAL SUBMISSIONS TO THE COURT
100. The
applicants maintained in their memorial and at the hearing that the facts of
the case disclosed breaches by the respondent State of its obligations under
Articles 2, 6, 8 and 13 of the Convention. They requested
the Court to find accordingly and to award them just satisfaction under Article 50.
The Government
for their part requested the Court to find that there had been no breach of any
of the Articles relied on by the applicants.
AS TO THE LAW
i. alleged violation of article 2 of the convention
101. The
applicants asserted that by failing to take adequate and appropriate steps to
protect the lives of the second applicant and his father, Ali Osman, from the
real and known danger which Paget-Lewis posed, the authorities had failed to
comply with their positive obligation under Article 2 of the Convention,
which provides as relevant:
“1. Everyone’s
right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law.
…”
102. The
Government maintained that the facts of the case did not bear out the
applicants’ allegation and for that reason there had been no breach of
Article 2. The Commission agreed with the Government’s arguments.
A. Arguments of those appearing before the Court
The applicants
103. The
applicants contended that a most careful scrutiny of the events leading to the
tragic shooting incident revealed that the police were several times put on notice
that the lives of Ali and Ahmet Osman were at real risk from the threat posed
by Paget-Lewis. Despite the clear warning signals given the police failed to
take appropriate and adequate preventive measures to secure effective
protection for their lives from that risk. While disagreeing with the standard
of care formulated by the Government (see paragraph 107 below), they submitted
that even on the basis of that overly-strict standard the obvious inadequacy of
the police response over a period of fourteen months must be considered to
amount to a grave dereliction of the authorities’ duty to protect life and a
substantial contributing factor to the death of Ali Osman and the wounding of
the second applicant.
104. The applicants argued that by May 1987 the police, on the basis
of their contacts with the headmaster of the school, Mr Prince (see
paragraphs 21 and 27 above) must be taken to have been fully aware that
Paget-Lewis was an unbalanced, obsessive and aggressive individual who had
stalked Ahmet Osman, taken photographs of him, plied him with gifts and even
assumed his name. Further, they were plainly made aware that Paget-Lewis was
strongly suspected of being responsible for the graffiti incident and the theft
of the school files. However, these warning signs were never taken seriously by
the police even though they must have known of Mr Prince’s assessment of the
situation, in particular his view that Paget-Lewis was psychologically
unbalanced (see paragraph 26 above). In spite of the existence of compelling
circumstantial evidence linking Paget-Lewis with the theft of the school files
and the spraying of graffiti close to the school (see paragraphs 22 and 24
above), the police did not investigate these matters further.
The applicants
further submitted that this inertia on the part of the police in the face of
clear indications that the life of a vulnerable child was at real risk from the
danger posed by Paget-Lewis was compounded by their failure to apprehend the
significance of the eight reported attacks on the home and property of the
Osman family between May and November 1987 marking an escalation in an already
life-threatening situation. In brief, nothing was done to establish that
Paget-Lewis was the author of this campaign of harassment and intimidation
threatening the security of the family. It was only on 17 December 1987, and
ten days following the ramming incident (see paragraph 38 above), that a
decision was finally taken to arrest Paget-Lewis. Even then the police
seriously mishandled the situation by giving Paget-Lewis the opportunity to
avoid arrest and abscond, and then failing to inform the Osman family of this
occurrence and to keep a watch on their home.
105. The
applicants emphasised that Paget-Lewis had on three separate occasions stated
that he intended to commit a murder and each of his statements came to the
attention of the police (see paragraphs 37, 40 and 46 above). However, the
police once again failed to take seriously what was conclusive proof that the
lives of the Osman family were at risk from an unstable, obsessive, disturbed
and dangerous individual. The fact that no records were ever kept of the police
visits to the school in March and May 1987 nor of the attacks on the home and
property of the family confirmed in the applicants’ view the casual and
careless approach of the authorities to the investigation of a very grave
threat to life and explained their failure to make use of their powers to
prevent that threat from materialising by arresting Paget-Lewis on suspicion of
being responsible for the graffiti incident, the theft of the school files or
the attacks on the Osmans’ home, or
searching his home for evidence of his involvement in these offences or by
having him compulsorily admitted to a psychiatric hospital for assessment.
106. For
the above reasons, the applicants concluded that the authorities had failed in
the circumstances to comply with their positive obligation under Article 2
of the Convention. They further contended that there had never been any effective
official investigation into the authorities’ failure in this respect. Their
civil action in negligence against the police founded on the successful
invocation by the Metropolitan Police Commissioner of the rule of police
immunity (see paragraph 63 above). In their view, this gave rise to a separate
violation of Article 2.
2. The
Government
107. The
Government did not dispute that Article 2 of the Convention may imply a
positive obligation on the authorities of a Contracting State to take
preventive measures to protect the life of an individual from the danger posed
by another individual. They emphasised however that this obligation could only
arise in exceptional circumstances where there is a known risk of a real,
direct and immediate threat to that individual’s life and where the authorities
have assumed responsibility for his or her safety. In addition, it had to be
shown that their failure to take preventive action amounted to gross
dereliction or wilful disregard of their duty to protect life. Finally, it must
be established on sound and persuasive grounds that there is a causal link
between the failure to take the preventive action of which the authorities are
accused and that that action, judged fairly and realistically, would have been
likely to have prevented the incident in question.
108. On
that basis, and having regard to the facts of the instant case, the Government
argued that the police could not be taken at any relevant time to have
appreciated that Paget-Lewis represented a real and immediate threat to the
lives of the Osman family. He had never threatened either Ali or Ahmet Osman in
word or deed and both before and after his arrest he had consistently denied
that he had been responsible for the theft of the school files, the graffiti in
the area around the school and the acts of vandalism on the home and property
of the family. Significantly, the Inner London Education Authority (“ILEA”),
after investigating the complaints against Paget-Lewis, considered that a
reprimand was sufficient action and he was allowed to assume teaching duties in
another school. The fact that Dr Ferguson, the ILEA psychiatrist, had
concluded on the basis of a complete case file that Paget-Lewis was fit to
teach (see paragraph 29 above) confirmed that the latter manifested no clear
signs of mental illness which would have suggested that he posed a real and
immediate danger to the lives of the Osmans.
109. In the Government’s submission, the police response at each
stage of the events in the light of their knowledge and information at the
relevant times was reasonable. At no time was there sufficient evidence on
which to lay charges against Paget-Lewis on suspicion of having committed acts
of criminal damage or to search his home to secure proof of such. Detective Sergeant
Boardman conducted a complete review of the case file in December 1987 but was
forced to concede that, in the absence of a confession statement, there was no
evidence on which to lay charges against Paget-Lewis.
110. The
Government averred that the weakness of the applicants’ case before the Court
lay not only in their assessment of the police action from the standpoint of
hindsight but also in their erroneous interpretation of certain events in order
to impute to the police knowledge of the danger posed by Paget-Lewis to the
Osman family or to accuse them of gross negligence. In this latter respect they
challenged, inter alia, the applicants’ unfounded assertions that the
police had promised protection to the family on the basis of the ILEA memorandum
of 8 December 1987 (see paragraph 41 above) or that the ILEA letter
of 17 December 1987 caused Paget-Lewis to abscond before he could be
arrested (see paragraph 50 above) or that no police records had been kept of
the incidents reported to them (see paragraph 105 above). As to the latter
allegation, they pointed to the fact that Detective Sergeant Boardman was fully
apprised of the entire case file in December 1987 (see paragraph 109 above).
3. The
Commission
111. Having
regard to its own findings in this case (see paragraphs 67-71 above), the
Commission considered that there were no factors which, judged reasonably,
rendered it foreseeable at the time with any degree of probability that
Paget-Lewis would carry out an armed attack on the Osman family. While noting
that it was to be regretted that the police did not keep or preserve records of
their meetings with the school and ILEA officials and with Paget-Lewis himself,
it did not consider that this failure prevented a proper assessment of the risk
to the Osman family or posed an obstacle to effective steps being taken; nor
did the failure to take any additional investigative steps suggest any
seriously defective response to the threat posed by Paget-Lewis as perceived at
the time. The Commission concluded that the circumstances of the case did not
disclose any fundamental disregard by the police of the duties imposed by law
in respect of the protection of life.
112. As
to the applicants’ argument that their inability to sue the police in
negligence amounted to a breach of Article 2 (see paragraph 106 above), the
Commission was not satisfied that the limited nature of the exclusion of
a duty of care in relation to negligence actions against the police (see
paragraphs 90–97 above) demonstrated any lack of protection to the right to
life in the domestic law of the respondent State.
The Court’s assessment
1. As to
the establishment of the facts
113. The
Court notes that there was never any independent judicial determination at the
domestic level of the facts of the instant case. The Commission on the basis of
the pleadings of the parties and the hearing which it held in the case made its
own findings on the course of events in the case up until the time of the armed
attack by Paget-Lewis on Ali and Ahmet Osman on 7 March 1988 (see
paragraphs 67–71 above). According to the applicants, the Commission overlooked
in its findings of fact the importance of certain events which they claim have
a bearing on the level of knowledge which can be imputed to the police in
respect of the seriousness of the danger which Paget-Lewis represented for the
lives of the Osman family (see paragraph 10 above).
114. The
Court observes that it is called on to determine whether the facts of the
instant case disclose a failure by the authorities of the respondent State to
protect the right to life of Ali and Ahmet Osman, in breach of Article 2
of the Convention. In addressing that issue, and having due regard to the
Commission’s role under the Convention in the establishment and verification of
the facts of a case, it will assess this issue in accordance with its usual
practice 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
(see the Ireland v. the United Kingdom judgment of 18 January 1978, Series
A no. 25, p. 64, § 160; and the McCann and Others v. the United Kingdom
judgment of 27 September 1995, Series A no. 324, p. 51, § 173).
2. As to
the alleged failure of the authorities to protect the rights to life of Ali and
Ahmet Osman
115. The
Court notes that the first sentence of Article 2 § 1 enjoins the State not
only to refrain from the intentional and unlawful taking of life, but also to
take appropriate steps to safeguard the lives of those within its jurisdiction
(see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports
of Judgments and Decisions 1998-III, p. 1403, § 36). It is common ground
that the State’s obligation in this respect extends beyond its primary duty to
secure the right to life by putting in place effective criminal-law provisions
to deter the commission of offences against the person backed up by
law-enforcement machinery for the prevention, suppression and sanctioning of
breaches of such provisions. 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 (see
paragraph 115 above), 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 does not accept the Government’s view that the
failure to perceive the risk to life in the circumstances known at the time or
to take preventive measures to avoid that risk must be tantamount to gross
negligence or wilful disregard of the duty to protect life (see paragraph 107
above). Such a rigid standard must be considered to be incompatible with the
requirements of Article 1 of the Convention and the obligations of Contracting
States under that Article to secure the practical and effective protection of
the rights and freedoms laid down therein, including Article 2 (see, mutatis
mutandis, the above-mentioned McCann and Others judgment, p. 45, § 146).
For the Court, and having regard to the nature of the right protected by
Article 2, a right fundamental in the scheme of the Convention, it is
sufficient 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 have or ought to have knowledge. This is a question which can
only be answered in the light of all the circumstances of any particular case.
On the above
understanding the Court will examine the particular circumstances of this case.
117. The
Court observes, like the Commission, that the concerns of the school about
Paget-Lewis’ disturbing attachment to Ahmet Osman can be reasonably considered
to have been communicated to the police over the course of the five meetings
which took place between 3 March and 4 May 1987 (see paragraphs 21
and 27 above), having regard to the fact that Mr Prince’s decision to call
in the police in the first place was motivated by the allegations which
Mrs Green had made against Paget-Lewis and the school’s follow-up to those
allegations. It may for the same reason be reasonably accepted that the police
were informed of all relevant connected matters which had come to light by
4 May 1987 including the graffiti incident, the theft of the school files
and Paget-Lewis’ change of name.
It is the
applicants’ contention that by that stage the police should have been alert to
the need to investigate further Paget-Lewis’ alleged involvement in the
graffiti incident and the theft of the school files or to keep a closer watch
on him given their awareness of the obsessive nature of his behaviour towards
Ahmet Osman and how that behaviour manifested itself. The Court for its part is
not persuaded that the police’s failure to do so at this stage can be impugned
from the standpoint of Article 2 having regard to the state of their
knowledge at that time. 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. Furthermore,
Mr Perkins, the deputy headmaster, alone had reached the conclusion that
Paget-Lewis had been responsible for the graffiti in the neighbourhood of the
school and the theft of the files. However Paget-Lewis had denied all
involvement when interviewed by Mr Perkins and there was nothing to link
him with either incident. Accordingly, at that juncture, the police’s
appreciation of the situation and their decision to treat it as a matter
internal to the school cannot be considered unreasonable.
Like the
Commission (see paragraph 68 above), the Court is not persuaded either that the
ILEA official’s memorandum and internal notes written between 14 April and
8 May 1987 are an accurate reflection of how the discussions between
Mr Prince and the police officers wound up (see paragraph 28 above).
118. The
applicants have 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. However, it is to be noted that Paget-Lewis continued to teach at
the school up until June 1987. Dr Ferguson examined him on three occasions
and was satisfied that he was not mentally ill. On 7 August 1987 he was
allowed to resume teaching, although not at Homerton House (see paragraph 35 above).
It is most improbable that the decision to lift his suspension from teaching
duties would have been made if it had been believed at the time that there was
the slightest risk that he constituted a danger to the safety of young people
in his charge. The applicants are especially critical of Dr Ferguson’s
psychiatric assessment of Paget-Lewis. However, that assessment was made on the
basis of three separate interviews with Paget-Lewis and if it appeared to a
professional psychiatrist that he 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.
119. In
assessing the level of knowledge which can be imputed to the police at the
relevant time, the Court has also had close regard to the series of acts of
vandalism against the Osmans’ home and property between May and November 1987
(see paragraphs 30, 36 and 37 above). It observes firstly that none of these
incidents could be described as life-threatening and secondly that there was no
evidence pointing to the involvement of Paget-Lewis. This was also the view of
Detective Sergeant Boardman in his report on the case in mid-December 1987
having interviewed the Green and Osman families, visited the school and taken
stock of the file (see paragraphs 42–45 above). The completeness of Detective
Sergeant Boardman’s report and the assessment he made in the knowledge of all
the allegations made against Paget-Lewis would suggest that even if it were to
be assumed that the applicants are correct in their assertions that the police
did not keep records of the reported incidents of vandalism and of their
meetings with the school and ILEA officials, this 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 notes in this 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 (see paragraph 49 above).
120. The
Court has also examined carefully the strength of the applicants’ arguments
that Paget-Lewis on three occasions communicated to the police, either directly
or indirectly, his murderous intentions (see paragraph 105 above). However, in
its view these statements cannot be reasonably considered to imply that the
Osman family were the target of his threats and to put the police on notice of
such. The applicants rely in particular on Paget-Lewis’ threat to “do a sort of
Hungerford” which they allege he uttered at the meeting with ILEA officers on
15 December 1987 (see paragraph 46 above). The Government have disputed
that these words were said on that occasion, but even taking them at their most
favourable to the applicants’ case, it would appear more likely that they were
uttered with
respect to Mr Perkins whom he regarded as principally to blame for being forced
to leave his teaching post at Homerton House. Furthermore, the fact that
Paget-Lewis is reported to have intimated to the driver of the car with which
he collided on 7 December 1987 that he was on the verge of committing some
terrible deed (see paragraphs 38 and 40 above) could not reasonably be taken at
the time to be a veiled reference to a planned attack on the lives of the Osman
family. The Court must also attach weight in this respect to the fact that,
even if Paget-Lewis had deliberately rammed the vehicle as alleged, that act of
hostility was in all probability directed at Leslie Green, the passenger in the
vehicle. Nor have the applicants adduced any further arguments which would
enhance the weight to be given to Paget-Lewis’ claim that he had told PC Adams
that he was in danger of doing something criminally insane (see paragraph 37
above). In any event, as with his other cryptic threats, this statement could
not reasonably be construed as a threat against the lives of the Osman family.
121. In
the view of the Court the applicants have 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
have 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 cannot be said that these 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 psychiatric
hospital on the basis of the evidence adduced before it. As noted earlier (see
paragraph 116 above), the police must discharge their duties in a manner which
is compatible with the rights and freedoms of individuals. In the circumstances
of the present case, they cannot 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.
122. For
the above reasons, the Court concludes that there has been no violation of
Article 2 of the Convention in this case.
3. As to the alleged breach by the authorities of a procedural obligation
under Article 2
123. The
Court considers that the essence of the applicants’ complaint under this head
(see paragraph 106 above) concerns their inability to secure access to a court
or other remedy to have an independent assessment of the police response to the
threat posed by Paget-Lewis to the lives of the Osman family. The Court
considers it appropriate therefore to consider this grievance in the context of
the applicants’ complaints under Articles 6 and 13 of the Convention (see,
mutatis mutandis, the above-mentioned McCann and Others judgment, p. 48,
§ 160).
II. alleged violation of article 8 of the convention
124. The
applicants contended that the failure of the police firstly to bring an end to
the campaign of harassment, vandalism and victimisation which Paget-Lewis waged
against their property and family and secondly, and in particular, to avert the
wounding of the second applicant constituted a breach of Article 8 of the
Convention, which stipulates:
“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.”
125. The
applicants maintained that they could not have been expected to obtain a civil
injunction to prevent Paget-Lewis from intimidating their family and attacking
their home and property since any such request would have been futile. They
pleaded in this respect that they would have been unable to provide a court
with any proof that Paget-Lewis was responsible for the acts of vandalism given
that the police had never taken any steps to investigate the incidents which
they had reported.
At the hearing
the applicants informed the Court that their main complaint under
Article 8 concerned the failure of the police to secure the second
applicant’s personal safety, an issue which the Commission had not addressed.
In the applicants’ submission, even if it were to be accepted that the police
could not have foreseen that Paget-Lewis would have carried out a near-fatal
attack on the life of Ahmet Osman, the risk of some harm being caused to him
was nevertheless foreseeable. In their view that was in itself sufficient to
engage the responsibility of the authorities under Article 8.
126. The Commission found that the applicants’ complaints concerning
the failure of the authorities to protect their home and property against the
attacks allegedly perpetrated by Paget-Lewis did not give rise to a breach of
Article 8 since in its view it would have been open to the applicants to
seek an injunction against Paget-Lewis.
As to the
complaint that the police failed to protect the second applicant’s physical
integrity, the Delegate of the Commission informed the Court at the hearing
that the Commission had in fact addressed this grievance. For the reasons which
led it to conclude that there had been no violation of Article 2, it found
that the complaint under Article 8 could not be sustained either.
127. The
Government agreed with the Commission on both points.
128. The
Court recalls that it has not found it established that the police knew or
ought to have known at the time that Paget-Lewis represented a real and
immediate risk to the life of Ahmet Osman and that their response to the events
as they unfolded was reasonable in the circumstances and not incompatible with
the authorities’ duty under Article 2 of the Convention to safeguard the
right to life. In the Court’s view, that conclusion equally supports a finding
that there has been no breach of any positive obligation implied by
Article 8 of the Convention to safeguard the second applicant’s physical
integrity.
129. As
to the applicants’ contention that the police failed to investigate the attacks
on their home with a view to ending the campaign of harassment against the
Osman family, the Court reiterates that the police had taken the view that
there was no evidence to implicate Paget-Lewis and for that reason charges
could not be laid against him. It is to be noted in this respect that
Paget-Lewis was questioned by PC Adams sometime in November 1987, but he denied
all responsibility. Detective Sergeant Boardman also confirmed in his report
that there was no evidence on which to mount a prosecution case against
Paget-Lewis (see paragraph 45 above). In the light of new developments in the
case, an attempt was in fact made to arrest and question Paget-Lewis on
17 December 1987 on suspicion of criminal damage including with respect to
the acts of vandalism directed at the applicants’ home and property (see
paragraph 49 above). However, that attempt failed.
130. The
Court concludes accordingly that the facts of the case do not disclose the
breach by the authorities of any positive obligation under Article 8 of
the Convention.
III. alleged violation of article 6 § 1 of the conventon
131. The
applicants alleged that the dismissal by the Court of Appeal of their
negligence action against the police on grounds of public policy
amounted to a restriction on their right of access to a court in breach of
Article 6 § 1 of the Convention, which provides to the extent relevant:
“In the
determination of his civil rights and obligations ..., everyone is entitled to
a ... hearing … by [a] ... tribunal...”
132. The
Commission agreed with the applicants’ arguments in this respect. The
Government however contended that the applicants could not rely on
Article 6 § 1, maintaining in the alternative that there had been no
breach of that provision in the circumstances of the case.
Applicability of Article 6 § 1
133. The
Government maintained that the applicants could not rely on any substantive
right in domestic law to sue the police for their alleged failure to prevent
Paget-Lewis from shooting dead Ali Osman and seriously wounding the second
applicant. They explained that whether or not the police can be considered to
owe a plaintiff a duty of care in a particular context depended not only on
proof of proximity between the parties and the foreseeability of harm but also
on the answer to the question whether it was fair, just and reasonable to
impose a duty of care on the police. The Court of Appeal had answered the
latter question in the negative, being satisfied that there were no other
public-policy considerations which would have led it to reach a different
conclusion. Accordingly, since the applicants had failed to establish an
essential ingredient of the duty of care under domestic law they did not have
any substantive right for the purposes of the applicability of Article 6 §
1. Any other conclusion would result in the impermissible creation by the
Convention institutions of a substantive right where none in fact existed in
the domestic law of the respondent State.
134. The
applicants replied that the Court of Appeal had accepted their proposition that
there was a special relationship of proximity between them and the police since
the police knew that Paget-Lewis was conducting a campaign of victimisation
against the Osman family and that the second applicant was especially at risk
from the threat posed by Paget-Lewis to his life. The applicants maintained
that although they had established all the constituent elements of the duty of
care, the Court of Appeal was constrained by precedent to apply the doctrine of
police immunity developed by the House of Lords in the Hill case (see paragraph
90 above) to strike out their statement of claim. In their view the doctrine of
police immunity was not one of the essential elements of the duty of care as
was claimed by the Government, but a separate and distinct ground for defeating
a negligence action in order to ensure, inter alia, that police manpower
was
not diverted from their ordinary functions or to avoid overly cautious or
defensive policing.
135. The
Commission agreed with the applicants that Article 6 § 1 was applicable.
It considered that the applicants’ claim against the police was arguably based
on an existing right in domestic law, namely the general tort of negligence.
The House of Lords in the Hill case modified that right for reasons of public
policy in order to provide an immunity for the police from civil suit for their
acts and omissions in the context of the investigation and suppression of
crime. In the instant case, that immunity acted as a bar to the applicants’
civil action by preventing them from having an adjudication by a court on the
merits of their case against the police.
136. The
Court recalls at the outset that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations brought
before a court or tribunal. In this way the Article embodies the “right to a
court”, of which the right of access, that is the right to institute
proceedings before courts in civil matters constitutes one aspect only (see the
Golder v. the United Kingdom judgment of 21 February 1975, Series A no.18,
p. 18, § 36).
137. The
Court notes with reference to this fundamental principle that the respondent
Government have disputed the applicability of Article 6 § 1 to the applicants’
claim. They allege that the applicants did not have any substantive right under
domestic law given that the Court of Appeal, in application of the exclusionary
rule established by the House of Lords in the Hill case (see paragraph 65
above), dismissed their civil action against the police as showing no cause of
action.
138. The
Court would observe that the common law of the respondent State has 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 disclose a breach of a duty of care owed by the defendant to the plaintiff
which has caused harm to the latter. The domestic court’s enquiry is directed
at determining whether the constituent elements of a duty of care have been
satisfied, namely: whether the damage is foreseeable; whether there exists a
relationship of proximity between the parties; and whether it is fair, just and
reasonable to impose a duty of care in the circumstances (see paragraphs 94 and
133 above).
It is to be
noted that the latter criterion, which has been relied on by the Government in
support of their contention that the applicants have no substantive right under
domestic law, is not of sole application to civil actions taken against the
police alleging negligence in the investigation and suppression of crime, but
has been considered and applied in other spheres of activity. The House of
Lords in the Hill case declared for the first time that this criterion could be
invoked to shield the police from liability in the context of the investigation
and suppression of crime (see paragraphs 90–92
above). Although the applicants have argued in terms which suggest that the
exclusionary rule operates as an absolute immunity to negligence actions
against the police in the context at issue, the Court accepts the Government’s
contention that the rule does not automatically doom to failure such a civil
action from the outset but in principle allows a domestic court to make a
considered assessment on the basis of the arguments before it as to whether a
particular case is or is not suitable for the application of the rule. They
have referred to relevant domestic case-law in this respect (see paragraph 94
above).
139. On
that understanding the Court considers 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 is in itself sufficient to ensure the
applicability of Article 6 § 1 of the Convention.
140. For
the above reasons, the Court concludes that Article 6 § 1 is applicable.
It remains to be determined whether the restriction which was imposed on the
exercise of the applicants’ right under that provision was lawful.
Compliance with Article 6 § 1
141. According
to the applicants the public-interest considerations invoked by the House of
Lords in the Hill case as justification for the police immunity rule and on
which the Government have based their case could not be sustained. Thus, the
argument that exposing the police to actions in negligence would result in a
significant diversion of manpower from their crime-suppression function sits
ill with the fact that the immunity is limited to negligence actions involving
the investigation and suppression of crime and not to cases of assault or false
imprisonment which could equally be said to give rise to a diversion of
manpower.
As to the
contention that the threat of liability for negligence would lead to defensive
or over-cautious policing, they maintained that this consideration has never
been invoked to protect other vital public services such as hospitals,
ambulances and the fire brigade from negligence actions. They also disputed the
validity of the argument that a negligence action against the police would have
the undesirable effect of reopening closed investigations in order to ascertain
whether they had been conducted competently. In their submission if a negligent
investigation has resulted in
a wholly preventable death there are cogent reasons to re-examine the conduct
of the police. The applicants further contended, inter alia, that
the imposition of liability in negligence on the police in respect of the
investigation and suppression of crime would serve to enhance standards among
officers, especially where the activity in question concerned the protection of
the right to life.
142. In
their alternative submission the applicants asserted that even if it could be
said that the immunity pursued a legitimate aim or aims, its operation offended
against the principle of proportionality. They reasoned in this respect that
the immunity was complete and as such did not distinguish between cases where
the merits were strong and those where they were weak. In the instant case,
involving the protection of a child and the right to life and where the damage
caused was grave, the requirements of public policy could not dictate that the
police should be immune from liability. Furthermore, the combined effect of the
strict tests of proximity and foreseeability provided limitation enough to
prevent untenable cases ever reaching a hearing and to confine liability to
those cases where the police have caused serious loss through truly negligent
actions.
143. The
Government replied that the exclusionary rule which defeated the applicants’
civil action pursued the legitimate aim or aims outlined by the House of Lords
in the Hill case, in particular the avoidance of defensive policing and the
diversion of police manpower (see paragraph 91 above). In the Government’s view
it was central to the reasoning of the House of Lords in the Hill case that the
imposition of a duty of care in the context in question carried with it a real
risk that effective policing for the benefit of the public at large would be
undermined.
144. Further,
the rule was a proportionate response to the attainment of those aims and fell
well within the respondent State’s margin of appreciation. They emphasised that
the exclusion was not a blanket exclusion of liability but a carefully and
narrowly focused limitation which applied only in respect of the investigation
and suppression of crime, and even then not in every case (see paragraph 93
above). Thus, in the instant case, the Court of Appeal had considered that
there were no competing public-policy considerations at stake which would have
outweighed the general public-policy consideration that it would not be fair,
just and reasonable to impose a duty of care on the police.
145. The
Government further stressed in defence of the proportionality of the
restriction on the applicants’ right to sue the police that they could have
taken civil proceedings against Paget-Lewis. Moreover, they had in fact sought
to sue Dr Ferguson but subsequently abandoned their action against him. In
either case they had full access to a court.
146. The Commission accepted that the impugned rule may be
considered to pursue the legitimate aims suggested by the Government (see
paragraph 143 above). However, it agreed with the essence of the applicants’
arguments for countering the Government’s justification for the application of
the rule (see paragraphs 141 and 142 above). The Commission noted, in
particular, that the applicants claimed to have satisfied the proximity
component of the duty of care, which had not been satisfied by the plaintiff in
the Hill case. However, they were denied the opportunity of establishing the
factual basis of their claim in adversarial proceedings through the operation
of an immunity rule which, moreover, did not distinguish between negligence
having trivial effects and that, as in this case, with catastrophic results.
147. The
Court recalls that Article 6 § 1 embodies the “right to a court”, of which
the right of access, that is, the right to institute proceedings before a court
in civil matters, constitutes one aspect.
However, this
right is not absolute, but may be subject to limitations; these are permitted
by implication since the right of access by its very nature calls for regulation
by the State. In this respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention’s requirements rests with the Court. It must be satisfied that the
limitations applied do not restrict or reduce the access left to the individual
in such a way or to such an extent that the very essence of the right is
impaired. Furthermore, a limitation will not be compatible with Article 6
§ 1 if it does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the aim sought
to be achieved (see, most recently, the Tinnelly & Sons Ltd and Others and
McElduff and Others v. the United Kingdom judgment of 10 July 1998, Reports
1998-IV, p. 1660, § 72).
148. Against
that background the Court notes that the applicants’ claim never fully
proceeded to trial in that there was never any determination on its merits or
on the facts on which it was based. The decision of the Court of Appeal striking
out their statement of claim was given in the context of interlocutory
proceedings initiated by the Metropolitan Police Commissioner and that court
assumed for the purposes of those proceedings that the facts as pleaded in the
applicants’ statement of claim were true. The applicants’ claim was rejected
since it was found to fall squarely within the scope of the exclusionary rule
formulated by the House of Lords in the Hill case.
149. The
reasons which led the House of Lords in the Hill case to lay down an
exclusionary rule to protect the police from negligence actions in the context
at issue are based on the view that the interests of the community as a whole
are best served by a police service whose efficiency and effectiveness in the
battle against crime are not jeopardised by the constant risk of exposure to
tortious liability for policy and operational decisions.
150. Although
the aim of such a rule may 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 must
nevertheless, in turning to the issue of proportionality, have particular
regard to its scope and especially its application in the case at issue. While
the Government have contended that the exclusionary rule of liability is not of
an absolute nature (see paragraph 144 above) and that its application may
yield to other public-policy considerations, it would appear 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 and that it was impossible to prise
open an immunity which the police enjoy from civil suit in respect of their
acts and omissions in the investigation and suppression of crime.
151. The
Court would observe that the application of the rule in this manner without
further enquiry into the existence of competing public-interest considerations
only serves to confer a blanket immunity on the police for their acts and
omissions during the investigation and suppression of crime and amounts 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 this, there will be no distinction made
between degrees of negligence or of harm suffered or any consideration of the
justice of a particular case. It is to be noted that in the instant case Lord
Justice McCowan (see paragraph 64 above) appeared to be satisfied that the
applicants, unlike the plaintiff Hill, had complied with the proximity test, a
threshold requirement which is in itself sufficiently rigid to narrow
considerably the number of negligence cases against the police which can
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.
152. For
the Court, these are considerations which must be examined on the merits and
not automatically excluded by the application of a rule which amounts to the
grant of an immunity to the police. In the instant case, the Court is not
persuaded by the Government’s argument that the rule as interpreted by the
domestic court did not provide an automatic immunity to the police.
153. The
Court is not persuaded either by the Government’s plea that the applicants had
available to them alternative routes for securing compensation (see paragraph
145 above). In its opinion the pursuit of these remedies could not be said to
mitigate the loss of their right to take legal proceedings against the police
in negligence and to argue the justice of their case. Neither an action against
Paget-Lewis nor against Dr Ferguson, the ILEA psychiatrist, 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.
They may or may not have failed to convince the domestic court that the police
were negligent in the circumstances. However, they were entitled to have the
police account for their actions and omissions in adversarial proceedings.
154. For
the above reasons, the Court concludes that the application of the exclusionary
rule in the instant case constituted a disproportionate restriction on the
applicants’ right of access to a court. There has accordingly been a violation
of Article 6 § 1 of the Convention.
IV. alleged violation of article 13 of the convention
155. The
applicants complained that they had no effective remedy enabling them to have
an adjudication on their claim that the authorities had not done all that was
required of them under Article 2 to protect the lives of Ali and Ahmet
Osman. They relied on Article 13 of the Convention, which provides:
“Everyone whose
rights and freedoms as set forth in [the] Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.”
156. The
applicants submitted that the only effective mechanism in the circumstances for
holding the authorities accountable for their failure in the instant case to
comply with their positive obligation under Article 2 of the Convention
would have been a civil action in negligence against the police. However the
pursuit of that remedy was blocked when the Court of Appeal accepted the
Metropolitan Police Commissioner’s plea of police immunity and struck out their
statement of claim.
157. The
Commission considered that no separate issue arose under Article 13 in
view of its finding of a violation of Article 6 § 1 of the Convention. The
Government invited the Court to follow this view should it be minded to find a
breach of Article 6 § 1.
158. The Court agrees with the Commission’s opinion on this
complaint having regard to its own conclusion that the applicants’ rights under
Article 6 § 1 have been violated. It recalls in this respect that the
requirements of Article 13 are less strict than, and are here absorbed by,
those of Article 6 (see, most recently, the above-mentioned Tinnelly and
Others judgment, pp. 1662–63, § 77).
v. application of article 50 of the convention
159. The
applicants claimed just satisfaction under Article 50 of the Convention,
which provides:
“If the Court
finds that a decision or a measure taken by a legal authority or any other
authority of a High Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and if the internal law
of the said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
160. The
applicants in their memorial requested the Court to award them compensation for
pecuniary and non-pecuniary loss calculated by reference to the appropriate
level of compensation which would have been payable in the domestic courts if
their claim had been permitted to proceed and had succeeded in full.
161. In
their supplementary submissions received at the registry on 9 June 1998
the applicants provided detailed estimates of what each of them might have been
expected to receive from a domestic court by way of compensation. They
indicated however that these were only to be seen as guidance for the benefit
of the Court and that they were content for the Court to make its own
assessment of the appropriate level of just satisfaction in accordance with its
established principles.
162. The
Government maintained in their primary submission that the applicants’ detailed
claims should be rejected since they were submitted out of time and were in any
event unsubstantiated and inflated. In the alternative, they considered that a
finding of a violation of any or all of the Articles of the Convention invoked
by the applicants would in itself constitute sufficient just satisfaction.
163. The
Delegate of the Commission did not comment on this branch of the
Article 50 issue.
164. The
Court notes that it conducts its assessment of what an applicant is entitled to
by way of just satisfaction in accordance with the principles laid down in its
own case-law under Article 50 and not by reference to the principles or
scales of assessment used by domestic courts. The applicants accept this to be
the case (see paragraph 161 above). The Court does not consider it necessary
therefore to answer the Government’s objections to the admissibility of their
supplementary submissions.
In any event,
the Court cannot speculate as to the outcome of the domestic proceedings had
the applicants’ statement of claim not been struck out. It considers
nevertheless that the applicants were denied the opportunity to obtain a ruling
on the merits of their claim for damages against the police. Deciding on an
equitable basis it awards each of the applicants the sum of 10,000 pounds
sterling (GBP).
Costs and expenses
165. The
applicants claimed a total amount of GBP 46,976.78 by way of costs and
expenses incurred in bringing their case before the Convention institutions.
They provided details of the number of lawyers who worked on the case, the
hourly rates charged and the nature of the work involved as well as
disbursements. The applicants were in receipt of legal aid from the Council of
Europe.
166. The
Government considered, inter alia, that the details supplied by the
applicants showed a considerable overlap between the time spent by the
solicitors and legal advisers on the case and the time spent by counsel. They
contended that the claim should be reduced on that account. They suggested that
a sum of GBP 27,216.43 would represent a more reasonable claim in the
circumstances, this amount being subject to any award of legal aid by the
Council of Europe and to apportionment to reflect anything other than a finding
of violation of each of the Articles under which a complaint has been made.
167. The
Delegate of the Commission did not comment on this limb of the Article 50
claim either.
168. Having
regard to the specifications provided by the applicants, to the fact that their
complaints under Articles 2 and 8 have not been substantiated and to equitable
considerations, the Court awards the applicants the sum of GBP 30,000
together with any value-added tax that may be chargeable, less the 28,514
French francs already paid in legal aid by the Council of Europe.
C. Default interest
169. According
to the information available to the Court, the statutory rate of interest
applicable in the United Kingdom at the date of adoption of the present
judgment is 7.5% per annum.
for these reasons, the court
1. Holds
by seventeen votes to three that there has been no violation of Article 2
of the Convention;
2. Holds
by seventeen votes to three that there has been no violation of Article 8
of the Convention;
3. Holds
unanimously that Article 6 § 1 of the Convention is applicable in
this case and has been violated;
4. Holds
by nineteen votes to one that it is unnecessary to examine the applicants’
complaints under Article 13 of the Convention;
5. Holds
unanimously
(a) that the
respondent State is to pay the applicants, within three months, 10,000
(ten thousand) pounds sterling each by way of compensation for loss of
opportunity;
(b) that the
respondent State is to pay the applicants, within three months, 30,000
(thirty thousand) pounds sterling in respect of costs and expenses together
with any value-added tax that may be chargeable, less 28,514 (twenty-eight
thousand five hundred and fourteen) French francs to be converted into pounds
sterling at the rate applicable on the date of delivery of the present
judgment;
(c) that simple
interest at an annual rate of 7.5% shall be payable from the expiry of the
above-mentioned three months until settlement;
6. Dismisses
by nineteen votes to one the remainder of the applicants’ claim for just
satisfaction.
Done in English
and in French, and delivered at a public hearing in the Human Rights Building,
Strasbourg, on 28 October 1998.
Signed: Rudolf
Bernhardt
President
Signed: Herbert
Petzold
Registrar
In accordance
with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A,
the following separate opinions are annexed to the judgment:
concurring opinion of Mr Foighel;
concurring
opinion of Sir John Freeland;
concurring
opinion of Mr Jambrek;
(d) partly
dissenting, partly concurring opinion of Mr De Meyer joined by Mr Lopes Rocha
and Mr Casadevall;
(e) partly
dissenting, partly concurring opinion of Mr Lopes Rocha.
Initialled: R. B.
Initialled: H. P.
CONCURRING OPINION OF JUDGE FOIGHEL
I agree with the
conclusion of the majority that there has been no violation of Article 2
of the Convention in this case.
I also agree
with that there has been a violation of Article 6 § 1 on account of the
disproportionate impact of the restriction on the applicants’ rights of access
to a court guaranteed by that Convention provision (see paragraph 154 of the
judgment). However, as regards the prior issue of the applicability of Article 6
§ 1, I have based myself on a different line of reasoning to that used by the
Court.
In the first
place, and irrespective of whether the domestic rule which defeated the
applicants’ civil action in this case is framed in terms of a substantive or
procedural bar, the applicants had first and foremost a Convention right under
domestic law to submit their claim to a court and to have a determination on
it. The fact that the applicants’ claim failed to get off the ground does not
displace the right guaranteed them by Article 6 § 1 of the Convention. In
my view, what is decisive for the applicability of Article 6 § 1 in this
case is that the applicants had a right to a determination on their claim that
their rights to life should have been protected by the police, which claim
could not be considered devoid of merit from the outset. In my opinion, the
fact that they were adjudged by the Court of Appeal in application of the rule
in the Hill case to have no cause of action, or as the Government have formulated
it, no substantive right to sue the police, is irrelevant for the purposes of
the applicability of Article 6 § 1. That decision is an issue which is
independent of the question of the applicability of Article 6 § 1.
I am of course
aware that the Court up until now has understood the expression “civil rights”
in Article 6 § 1 as rights which exist under domestic law. For me,
however, this does not exclude other rights whose existence cannot be a matter
of doubt. The fundamental nature of an applicant’s right to submit a civil
claim to a court cannot be determined exclusively by domestic-law
considerations on whether or not such a right exists in a particular set of
circumstances. In this respect, I would recall that the Court has stressed on
occasions that it is sufficient for an applicant to show that there are at
least arguable grounds which point to the recognition of the right at issue
under domestic law (see, inter alia, the Fayed v. the United Kingdom
judgment of 21 September 1994, Series A no. 294-B, p. 49, § 65),
and in the final analysis it is for the Court in the exercise of its
supervisory jurisdiction and on the basis of Convention criteria to rule on
whether the applicant has shown this to be the case. I would also note that
the requirement that there be a dispute (contestation) over a civil
right in order to bring Article 6 § 1 into play has been construed by the
Court in its case-law to cover not only disputes concerning the scope of a
right but also its very existence under domestic law (see the Ashingdane
v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, §
55).
Furthermore, and
of even greater importance, is the fact that the domestic law of the
Contracting States must secure the enjoyment of the rights and freedoms laid
down in the Convention and its Protocols (see Article 1 of the Convention).
This includes the right to life. In the instant case, the applicants have
relied on a civil action against the police to establish that their right to
life was breached on account of the culpable failure of the police to prevent
the tragedy which befell them. In my view that right, derived from the
Convention, secures them in consequence their right to the protection of
Article 6 § 1 of the Convention.
For the above
reasons, I have been led to conclude that Article 6 § 1 is applicable in
this case.
CONCURRING OPINION OF JUDGE Sir John FREELAND
1. To
the reasons given in the judgment for the finding of a violation of Article 6 §
1, I would add only briefly in explanation of my own vote in that sense.
2. I
so voted because of the way in which, in practice, the public-policy exception
from liability enunciated by the House of Lords in Hill v. Chief Constable
of West Yorkshire (see paragraphs 90–92 of the judgment) operated in this
case to block the claims of the applicants in their actions against the police
in negligence. I accept, as indeed does paragraph 150 of the judgment, that the
aim of the exception is legitimate in terms of the Convention; and I also
accept that the exception may in other cases be applied proportionately to that
aim. The difficulty for me arises primarily from the fact that in the present
case it appears to have been applied as if conferring on the police a blanket exemption
from liability in negligence so far as concerns their function in the
investigation and suppression of crime, to the exclusion of any examination by
the court of considerations which might pull in another direction.
3. In
this latter respect the present case stands in marked contrast to the later
Court of Appeal case of Swinney and another v. Chief Constable of
Northumbria Police Force (see paragraphs 93 and 94 of the judgment), where
the court had regard to the possible existence of other, and countervailing,
considerations of public policy – in particular, as relevant in the
circumstances of that case, the need to preserve the springs of information, to
protect informers, and to encourage them to come forward. The court also
considered it arguable, on the facts pleaded in that case, that there had been
a voluntary assumption of responsibility by the police (a similar argument has
been advanced by the applicants in the present case).
4. I
also note that in the Hill case the plaintiff lost her action on two grounds,
either of which would have been enough to defeat it – first, the absence of the
necessary proximity and, secondly, the public-policy exception. In the present
case, however, McCowan LJ, with whom Simon Brown LJ agreed, expressed the view
that the plaintiffs had an arguable case that there existed a very close degree
of proximity amounting to a special relationship (the third member, Beldam LJ,
preferred to express no opinion on the point at that stage); and the court
proceeded to strike out the claim against the police on the sole ground of the
public-policy exception.
5. The
weight thus attached to the exception in this case, together with its broad
reach and the exclusive application given to it, combined in my view to produce
a disproportionate limitation on the applicants’ right of access to court. I
therefore concurred in the conclusion stated in
paragraph 154 of the judgment. For me the exception, operating in this
way, is an inappropriately blunt instrument for the disposal of claims raising
human rights issues such as those of the present case.
CONCURRING OPINION OF JUDGE JAMBREK
1. I agreed
with the Court’s unanimous conclusion that Article 6 § 1 of the Convention is
applicable to the applicants’ claim and with the reasons given in the judgment
in support thereof.
2. However,
in my opinion, a more extensive interpretation of the term “civil rights and
obligations” than the one applied by the Court in this case and in its case-law
in general, would only require the Court to be satisfied that a right existed
under domestic law – in the instant case, a right derived from the general tort
of negligence or the duty of care owed by the police to the plaintiff. The only
condition for the Court’s recognition of a right as a “civil” right, thereby
guaranteeing an applicant the right of access to a domestic court as protected
by Article 6 § 1, would be that the right at issue is recognised in the
national legal system as an individual right within the sphere of general
individual freedom. Seen in these terms, the right of everyone to a fair trial
by a court of law would also protect the individual in his or her relations
with the authorities of the State.
3. Had the
Court taken this interpretation of the term “civil rights” as its
starting-point, it would not have been necessary for it to examine in the
instant case whether the exclusionary rule imposed on the exercise of the right
operated in an absolute manner or whether it allowed the domestic courts to
make a considered assessment as to whether a particular case should be allowed
to proceed to a consideration on the merits before a domestic court and thus
guaranteeing a plaintiff access to a court for this purpose (see paragraph 138
of the judgment). Nor would it have been necessary for the Court to establish
whether the applicants could arguably claim that in the circumstances it was
fair, just and reasonable not to apply the exclusionary rule in the Hill case
(see paragraph 139 of the judgment).
4. My
reasoning has been informed by the dissenting opinions of Mr Melchior and
Mr Frowein in the decision of the European Commission of Human Rights in the
Benthem case (Article 31 report of 8 October 1983) and by Judge van Dijk’s
chapter on “The interpretation of ‘civil rights and obligations’ by the
European Court of Human Rights – one more step to take” in Franz Matscher and
Herbert Petzold (eds.), Protecting Human Rights: The European Dimension –
Studies in Honour of Gerard J. Wiarda, Köln, Carl Heymanns Verlag KG, 1988,
pp. 131–43.
5. In the
Sporrong and Lönnroth v. Sweden case (judgment of 23 September 1982,
Series A no. 52), the Court ruled that, since the applicants’ case could not be
heard by a tribunal competent to determine all the aspects of the matter, there
had for that reason been a violation of Article 6 § 1 of the Convention (p. 31,
§ 87). In its Golder v. the United Kingdom judgment (21 February 1975, Series A
no. 18) the Court also
stressed (p. 17, § 35) that the guarantees embodied in Article 6 § 1 of the
Convention could be frustrated by national legislators if the right to a court
were not considered to be implied in that provision:
“... a
Contracting State could, without acting in breach of that text, do away with
its courts, or take away their jurisdiction to determine certain classes of
civil actions and entrust it to organs dependent on the Government.”
The situation as
described in the facts of the present case comes close to the concerns
expressed by the Court in this quotation.
6. I
therefore also agree with Judge van Dijk’s assessment that if the Court were to
take this additional step, and thereby no longer restrict the meaning of “civil
rights and obligations” to “private rights and obligations”, the certainty and
foreseeability of its case-law would be enhanced. Furthermore, if “civil rights
and obligations” were to be understood as “all those rights which are
individual rights under the national legal system and fall within the sphere of
general individual freedom” (see, supra, the dissenting opinion of Mr
Melchior and Mr Frowein in the Benthem case), the Court’s case-law would
conform better to the object and purpose of Article 6 and of the Convention as
a whole, that is to say respect for the requirement of the rule of law as
interpreted by the Court in, for example, the Klass and Others v. Germany case
(judgment of 6 September 1978, Series A no. 28) wherein it held (pp. 25–26, §
55):
“The rule of law
implies, inter alia, that an interference by the executive authorities
with an individual’s rights should be subject to an effective control which
should normally be assured by the judiciary, at least in the last resort,
judicial control offering the best guarantees of independence, impartiality and
a proper procedure.”
PARTLY dissenting, PARTLY concurring OPINION OF JUDGE DE MEYER joined by
judgeS lopes rocha and casadevall
In this sad case
there was enough evidence that for several months before 7 March 1988 the
authorities of the respondent State were well aware of the strange and worrying
behaviour of Mr Paget-Lewis. Both ILEA1 and the police2 knew, at least
since the spring of 19873, that he was
obsessed with Ahmet Osman. They knew that he was harassing the Osman
family and the Green family4, and that he
was increasingly threatening them as well as Mr Perkins5. They knew that
some harm had already been caused6. From December
1987 they could have had hardly any doubts that further, more serious, harm was
to be foreseen7.
They took,
however, almost no action to avert impending danger and to protect those
concerned8.
They should have
taken Mr Paget-Lewis into custody before it was too late in order to have him
cared for properly. Instead they let things go until he killed two persons and
wounded two others.
Mr Paget-Lewis
himself asked the police arresting him why they did not stop him before he
acted as he did and reminded them that he had given all the warning signs9. He was right.
In my view,
therefore, the authorities of the respondent State, by failing to do what they
should have done10, have violated
the applicants’ right to life and also their right to private and family life.
There was of
course also a violation of the applicants’ right to a court, since the Osmans
were denied any possibility to have their claims concerning the failures of the
police properly examined by a tribunal. Whether or not they could rely on any
substantive right thereto in domestic law is irrelevant, since they were
asserting that they were the victims of a violation of fundamental (and
therefore also civil11) rights, which
had to be secured to them under the Convention12,
notwithstanding anything to the contrary in domestic law or practice, and since
their right to have their case heard in court was also such a right13. It was
likewise irrelevant whether the immunity of the police was or was not absolute,
since the very principle of such immunity is not acceptable under the rule of
law. The refusal to consider the applicants’ action was therefore an obvious
denial of justice14.
NOTES
partly DISSENTING, partly CONCURRING opinion of judge lopes rocha
(Translation)
I regret that I
am unable to share the majority’s view that there has been no violation of
Articles 2 and 8 of the Convention.
My
interpretation of the facts – which is the same as Judge De Meyer’s – leads me
to conclude that the police underestimated the danger Mr Paget-Lewis presented
for the life and physical integrity of Mr Ahmet Osman and, in all probability,
of his close relatives.
In my opinion,
it is not possible to say, as the Government did, that there was no causal link
between the failure to take preventive action, of which the authorities are
accused, and the events that occurred.
A quite
different approach is required to determine liability for an omission from that
required to determine liability for an act. The former must be determined
according to generally accepted rules. It has to be decided whether the assault
originated from the failure to take a particular measure or measures where the
assailant’s previous behaviour already pointed to a likelihood that he would
act aggressively towards someone of whom he was particularly fond.
In the instant
case, there was strong evidence of aggressive behaviour on the part of Mr
Paget-Lewis suggesting that at the first opportunity he would act violently. It
should not be forgotten that he displayed rather strange traits of personality
and was known to the police, although there was some doubt over whether he was
homosexual.
Given, too, the
professional experience one is entitled to expect of them, the police could
legitimately be required to exercise caution and to take measures to protect
the people at risk. Failure to take such measures renders the police and the
State concerned liable. There has therefore been a breach of the aforementioned
Articles.
1. This
summary by the registry does not bind the Court.
2. Rules of Court A apply to all cases referred to the Court
before the entry into force of Protocol No. 9 (1 October 1994) and thereafter
only to cases concerning States not bound by that Protocol. They correspond to
the Rules that came into force on 1 January 1983, as amended several times
subsequently.
1. Hungerford
was the scene of a 1987 massacre in which a gunman killed sixteen persons
before committing suicide.
1. Note
by the Registrar. For practical reasons this annex will appear only with
the printed version of the judgment (in Reports of Judgments and Decisions
1998), but a copy of the Commission’s report is obtainable from the registry.
1. The management
of Homerton House School noticed since 1986 Mr Paget-Lewis’ “attachment” to
Ahmet Osman (Government’s memorial, § 1.5) and they were informed in January
1987 that he was harassing Leslie Green (ibid., § 1.7). They viewed the events
seriously (Commission’s report, § 96 (b) and investigated the matter in
March 1987. Mr Prince’s letter of 1 May 1987 to Mrs May (Annex A to
applicants’ memorial, no. 4, p. 17) shows that the problem was known at
the headquarters of ILEA before May 1987.
2. Mr Prince met
with PC Williams on 3, 9, 13 and 17 March 1987 (see the extracts of his diary,
Annex A to applicants’ memorial, no. 1, pp. 1–10). The Government admit that,
on these occasions, “no doubt the substance of the concerns was made known to
PC Williams” (Government’s memorial, § 1.13).
3. Commission’s
report, § 96 (a)–(b).
5. The graffiti
incident, the theft of the files and Mr Paget-Lewis’ change of name occurred
already in March-April 1987 (ibid., §§ 27, 28, 29 and 96 (c)). Then followed,
in May-November 1987, the “vandalising attacks” on the home and car of the
Osman family, for which “there was no doubt in everybody’s mind he was in fact
responsible” (ibid., §§ 32, 33, 37, 39 and 96 (d), Government’s memorial,
§ 1.42, and Detective Sergeant Boardman’s memo of 16 December 1987,
Annex D to Government’s memorial, p. 5, § 18), and also on the Green family
(Annex A to applicants’ memorial, no. 7, pp. 24–26, and Annex B to
Government’s memorial, pp. 37–38), on 7 December 1987 the ramming of the van in
which Leslie Green was a passenger and Mr Paget-Lewis’ statement to Mr Prince
that “in a few months” he would “be doing life” (Commission’s report, §§ 41 and
96 (e), Annex A to applicants’ memorial, loc. cit., and Annex B to Government’s
memorial, pp. 41–42), on 15 December 1987, at the meeting with Mr David
and Mrs May, Mr Paget-Lewis’ saying that he would “not do a ‘Hungerford’ in a
school”, but “see Perkins at home” (Commission’s report, §§ 47 and 96 (f),
and Annex A to applicants’ memorial, no. 8, pp. 27–29), on 18 December
1987 his disappearance from school (Commission’s report, §§ 53 and 96
(g)), between January and March 1988 his roaming around and being involved in
“a number of accidents” (ibid., § 58), and finally on 1, 4 and 5 March 1988 his
presence in a crash helmet near the applicants’ home (ibid., §§ 60 and
96 (j)). All these facts were known to the police before 7 March 1988.
6. Commission’s
report, §§ 32–33, 37, 39 and 41. See also Mrs Green’s statement to Detective
Sergeant Boardman on 9 December 1987 (Annex B to Government’s memorial, pp.
37–38).
7. Commission’s
report, § 47. See the ILEA memorandum dated 15 December 1987 (Annex A to the
applicants’ memorial, no. 8, pp. 27–29) relating the meeting of Mr Paget-Lewis
with Mrs May and Mr David. According to that document, Mr Paget-Lewis had
“spoken in the following terms: He feels in a totally self-destructive mood …
it is all a symphony and the last chord has to be played … he is deeply in debt
and is selling all his possessions … Nick Perkins is the cause of all his
troubles, has said he is sexually deviant … He wouldn’t do a ‘Hungerford’ in a
school, but will see Perkins at home”. The memorandum adds that this
information was passed on to the police. See also the statement of Mr Prince to
Detective Sergeant Boardman on 22 December 1987 (Annex B to the Government’s
memorial, pp. 41–42). According to that statement, Mr Paget-Lewis had said,
immediately after the collision of 9 December 1987: “I’m not worried about all
this because in a few months I’ll be doing life.” After the shootings, he
recalled, in one of his statements to Detective Sergeant Boardman on 8 March
1988, that he had earlier warned the police (PC Adams) that “there was a danger
of me doing something criminally insane unless things were mended between me
and the Osmans”. (Annex B to Government’s memorial p. 77). It is rather obvious
that these utterances ought to have been taken more seriously.
8. In December
1987, after the van incident, the police decided to arrest Mr Paget-Lewis, but,
having not found him at his home, they did not even try to find him at his
school before he disappeared. They took no further steps to trace him, except
for asking ILEA to request him to contact Detective Sergeant Boardman and
putting him in January 1988 on their National Computer. It is most surprising
that they could not get hold of him whilst he was travelling around in hired
cars and getting involved in several accidents (Commission’s report,
§§ 50, 52, 57, 58 and 96 (h)–(i)).
9. Commission’s
report, § 62. See also his statement to Detective Sergeant Boardman on
8 March 1988 (Annex B to Government’s memorial, p. 98).
10. A few months
ago, in another case (McLeod v. the United Kingdom judgment of
23 September 1998, Reports of Judgments and Decisions 1998-V, p.
1964), the representative of the Government of the United Kingdom observed that
“there is a pressing social need to prevent disorder or crime” ant that more
“particularly, in circumstances where there is a genuine and reasonable belief
that there is a risk of disorder or crime, there is then a pressing social need
to take steps to prevent it”. He added that “it is much more desirable to
prevent such disorder or crime than to await its development and only then take
steps to contain it” (see the verbatim record of the hearing held on 18 May
1998, Doc. Cour/Misc(98) 355, at p. 20).
11. See, mutatis
mutandis, the Aerts v. Belgium judgment of 30 July 1998, Reports 1998-V,
p. 1964, § 59, and my separate opinion concerning the Pierre-Bloch v. France
case, judgment of 21 October 1997, Reports 1997-VI, p. 2228.
12. Articles 1,
2 and 8 of the Convention.
13. Articles 1
and 6 of the Convention.
14. The
dismissal of their civil action was also a violation of Article 13 of the
Convention, as they were thereby denied what would have been “an effective
remedy before a national authority” and it has not been shown, or even alleged,
that any other remedy of that kind was available. Such a remedy had indeed to
be ensured to them “notwithstanding that the violation ha[d] been committed by
persons acting in an official capacity”.