Case Facts
The claimants in this action were Mulkiye Yosuf Osman, the widow and administratrix of the estate of Ali Osman (the deceased), who brought her claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, and Ahmed Osman, the son, who claimed damages for personal injuries. The defendant in the appeal was the Commissioner of Police of the Metropolis. A first defendant, Hugh Cameron Ferguson, a consultant psychiatrist, was also named in the original proceedings, but the appeal concerned only the Commissioner and did not touch upon the first defendant at all.
The background to the claim arose from the conduct of a man named Paget-Lewis, a schoolteacher who had formed an unhealthy attachment to Ahmed Osman, then aged approximately fifteen. From April and May 1987 onwards, Paget-Lewis subjected Ahmed and his family to a sustained campaign of harassment. The specific acts pleaded included: changing his surname by deed poll to "Osman" in May 1987; throwing a brick through the front window of the family home; slashing the tyres of the father's car on multiple occasions; pouring engine oil and paraffin outside the front door; breaking the car windscreen; applying superglue to the front door lock; smearing dog excrement on the front door; and, in December 1987, deliberately ramming a vehicle in which Ahmed was a passenger.
The police had been made aware of Paget-Lewis's activities by at least November 1987, when the officer dealing with the matter, PC Adams, knew he was responsible for the acts of vandalism. In the latter part of 1987, Paget-Lewis told PC Adams that losing his job had been so distressing that there was a danger he might do something "criminally insane" unless matters improved. The police laid an information against Paget-Lewis in January 1988 alleging driving without due care and attention, arising from the December 1987 ramming incident, but this information was never served upon him.
In March 1988, Paget-Lewis followed the Osman family to their flat, where he shot and severely injured Ahmed Osman and killed Ali Osman, the father. The negligence alleged against the Commissioner was that, despite the police having been aware of Paget-Lewis's escalating activities since May 1987, they failed to apprehend or interview him, search his home, or charge him with any more serious offence before the shooting took place in March 1988.
The Commissioner applied to strike out the statement of claim under RSC Ord 18, r 19 on the ground that it disclosed no reasonable cause of action. Sir Peter Pain, sitting as a High Court judge, dismissed that application. This was an interlocutory appeal by the Commissioner from that order.
Held
The Court of Appeal allowed the appeal and dismissed the action.
Two of the three judges held that there was an arguable case for a very close degree of proximity amounting to a special relationship between the Osman family and the investigating police officers. This was because the second plaintiff and his family had been exposed to a risk from Paget-Lewis over and above that of the general public, by reason of the sustained and targeted course of harassment directed specifically at them and known to the police.
However, the court held unanimously that the existence of a general duty on the police to suppress crime did not carry with it liability to individuals for damage caused by criminals whom the police had failed to apprehend, even where it might have been possible to do so. The action was accordingly struck out on grounds of public policy. The court followed Hill v West Yorkshire Police [1989] and applied Alexandrou v Oxford [1993] in reaching this conclusion. Imposing a duty of care in these circumstances would not promote a higher standard of care by the police and would result in a significant diversion of police resources away from the investigation and suppression of crime.
Ratio Decidendi
The ratio of this decision is that, notwithstanding that an arguable special relationship of close proximity may exist between the police and identifiable individuals who face a specific and known threat from a third party, public policy considerations preclude the imposition of a duty of care upon the police for their failure to apprehend a known criminal before that person causes harm. The existence of a general duty to suppress crime does not give rise to a private law duty of care owed to individual members of the public in respect of loss caused by criminals whom the police have failed to arrest.
This reasoning followed the public policy rationale articulated in Hill v West Yorkshire Police [1989], namely that imposing such liability: (i) would not lead the police to observe a higher standard of care in the conduct of their operations; and (ii) would result in a substantial diversion of police resources from front-line crime prevention and investigation towards defensive litigation and settlement of claims.
It is important to note that the proximity or special relationship analysis was not the decisive ground of dismissal. The claim failed not because the family lacked a sufficiently close relationship with the police, but because public policy operated as an overriding bar to liability regardless of how proximate that relationship might have been.
Obiter Dicta
The court observed, by way of broader commentary, that the policy concerns identified in Hill v West Yorkshire Police [1989] applied with equal force in circumstances where the police were aware of a specific and identified threat to identifiable individuals. The mere fact that a potential victim is known to the police and the threat against them is particularised does not, of itself, displace the general public policy immunity that protects the police from civil liability for failure to apprehend a dangerous individual. This observation was significant because it suggested that even a seemingly compelling case on proximity would not be sufficient to overcome the public policy bar, a proposition that was later examined critically by the European Court of Human Rights in Osman v United Kingdom (Case No 87/1997/871/1083), where the blanket application of that immunity was found to raise concerns under Article 6 of the European Convention on Human Rights.