Michael v the Chief Constable of South Wales Police
Duncan Fairgrieve, 1COR Door tenant, acted for the appellants in this high profile Supreme Court case concerning a damages claim against the police for alleged systemic and individual police failings which led to a critical delay in the 999 system and the failure to stop the murder of Cardiff mother of two by her ex-partner. The appeal and cross appeal in the Supreme Court concerned a series of important legal issues, including (1) whether and in what circumstances the police can assume responsibility when they accept a 999 call; (2) the limits of the non-actionability principle regarding the negligence of the police; (3) whether there is a legal obligation on the police when responding to a 999 call not to make the position of the person in peril worse; and (4) whether the combined faults of separate public bodies can be aggregated to establish a breach of Article 2 of the European Convention on Human Rights.
The case was heard by a specially-convened seven-judge panel of the Supreme Court.
On the issue of negligence, the Court found by a majority of 5 to 2 in favour of the Respondent police forces, holding that the police did not owe a duty of care to Ms Michael on receiving her 999 call. Re-affirming the non-actionability rule in the case of Hill Constable of West Yorkshire, Lord Toulson – who delivered the judgment for the majority- denied a private law duty on the police to take reasonable steps to prevent injury or death at the hands of a third party. Lord Toulson held that this principle was consistent with: (i) the common law rule that liability will generally not be imposed where a Defendant fails to prevent injury caused by the conduct of a third party; (ii) the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. The Court did not consider that the police had in the circumstances assumed responsibility to take reasonable care for Ms Michael’s safety.
The majority also rejected the argument that the common law should be developed in harmony with the obligations under the Human Rights Act 1998. If liability was to arise in cases of pure omission by the police to perform their duty for the prevention of violence, then it was for Parliament to legislate.
Lord Kerr and Lady Hale dissented on the issue of negligence. In a powerful passage of his judgment, Lord Kerr took issue with the current state of the law on police liability, holding that “the notion that (liability) can only arise where there has been an express assumption of responsibility by unambiguous undertakings on the part of the police and explicit reliance on those by the claimant or victim is not only arbitrary, it fails to reflect the practical realities of life.” (para 167) Lord Kerr went on to hold that “To find that no duty arises on the facts of the present case requires us to squarely confront the consequence of such a finding. If the police force had not negligently downgraded the urgency of Ms Michael’s call, on the facts as they are known at present, it is probable that she would still be alive. While the police are not responsible for the actions of her murderer, if allegations made against them are established, police played a direct, causative role in her death as a result of their negligence.” (para 181)
As concerns the issues of potential liability for damages under the Human Rights Act, all seven members of the Court dismissed the police’s cross-appeal on Article 2 and the case will thus now proceed to trial under the Human Rights Act.
Duncan Fairgrieve, 1COR Door tenant, appeared alongside Nicholas Bowen QC and Jude Bunting of Doughty Street Chambers for the appellants. They were instructed by Hywel Davies of Martyn Prowel solicitors.
The Supreme Court Judgment can be accessed here.
