Case Facts
The applicants were Mrs Mulkiye Osman (widow) and her son Ahmet Osman, two British nationals. The application was lodged with the European Commission of Human Rights on 10 November 1993 (App. no. 23452/94) against the United Kingdom, and was referred to the Court by the Commission on 22 September 1997. The Chamber relinquished jurisdiction to a Grand Chamber on 26 June 1998, and the Grand Chamber delivered its judgment on 28 October 1998 following a hearing on 22 June 1998.
The background to the case concerned a teacher, referred to throughout the proceedings as Paget-Lewis, who had taught Ahmet Osman at school and had developed an obsessive attachment to him. His conduct attracted complaints from the parents of Ahmet's friend L, whom Paget-Lewis had begun to victimise. The school's headmaster involved both the police and the Inner London Education Authority out of concern that Paget-Lewis posed a psychological disturbance and a potential threat to Ahmet's safety. Paget-Lewis subsequently left the school but continued to commit acts of vandalism at the applicants' home, which were reported to the police. The police visited Paget-Lewis's home address with the intention of arresting him, but he was absent. Paget-Lewis later appeared at the applicants' home, shot and killed Ahmet's father, Ali Osman, and seriously wounded Ahmet. Paget-Lewis subsequently pleaded guilty to two counts of manslaughter on the basis of diminished responsibility.
The applicants brought a negligence claim against the police, arguing that the authorities had failed to protect Ali Osman's life despite being aware of the risk posed by Paget-Lewis. That claim was struck out by the Court of Appeal on public policy grounds, applying the exclusionary rule derived from Hill v West Yorkshire Police [1989], which held that the police owed no duty of care to members of the public in the investigation and suppression of crime. The applicants then brought proceedings before the European Court of Human Rights, complaining of violations of Article 2 (right to life), Article 6 (right of access to a court), Article 8 (right to respect for private and family life), and Article 13 (right to an effective remedy) of the European Convention on Human Rights.
Held
The Grand Chamber, composed of Bernhardt (President), Vilhjálmsson, De Meyer, Foighel, Pekkanen, Morenilla, Sir John Freeland, Baka, Lopes Rocha, Wildhaber, Mifsud Bonnici, Makarczyk, Gotchev, Jambrek, Jungwiert, Kûris, Lôhmus, Casadevall, Pantiru, and Toumanov, held as follows.
Article 2 — No violation (by majority). The Court found that the police's positive obligation under Article 2 to take preventive operational measures arises only where the authorities knew or ought to have been aware of a real and immediate risk to the life of an identified individual from the criminal acts of a third party, yet failed to take measures within their scope which, judged reasonably, might have been expected to avoid that risk. On the facts, there was nothing in Paget-Lewis's conduct to indicate that he was about to act lethally. His acts of criminal damage were not life-threatening in character. The decision to arrest him had been based solely on suspicion relating to minor acts of damage. Crucially, any threats that Paget-Lewis had made were directed towards L (Ahmet's friend) and towards the deputy headmaster of the school — whom Paget-Lewis held responsible for his dismissal — and not towards the Osman family. There was accordingly no sufficient basis for the police to have supposed that Paget-Lewis would direct his activities against the applicants. The Court therefore found no violation of Article 2.
Article 8 — No violation (by majority). The Court applied the same reasoning as it had in respect of Article 2. On the facts, the positive obligation under Article 8 to secure the second applicant's physical integrity had not been breached. No violation of Article 8 was found.
Article 6(1) — Violation (by majority). The Court accepted that the restriction on bringing proceedings against the police in respect of their investigative and operational decisions served the legitimate aim of protecting police resources and preventing officers from being deterred from pursuing their functions by the threat of tortious liability. However, the principle of proportionality required the domestic courts to weigh competing public interest considerations rather than apply the exclusionary rule as an absolute bar. The Court found that the close relationship of proximity between the police and the Osman family, and the fact that the harm suffered was of the most serious nature — the loss of life and serious physical injury — were considerations of sufficient gravity to warrant examination of the claim on its merits. The automatic application of the Hill v West Yorkshire Police [1989] exclusionary rule to strike out the applicants' negligence claim, without any assessment of whether the particular circumstances of the case might justify imposing liability, constituted a disproportionate restriction on the applicants' right of access to a court. There was accordingly a violation of Article 6(1).
Article 13 — Not examined separately. In view of the finding of a violation under Article 6(1), the Court did not consider it necessary to examine the complaint under Article 13 separately.
Just satisfaction under Article 50 (now Article 41). The applicants were awarded compensation under Article 50 of the Convention for having been denied the opportunity to have their negligence claim examined on its merits. This award was not intended as compensation for the underlying harm — the death of Ali Osman or the wounding of Ahmet — but rather for the loss of the opportunity to pursue the claim.
Ratio Decidendi
The central ratio on Article 6(1) is that a blanket or automatic exclusionary rule — one that operates to strike out a negligence claim against the police regardless of the specific circumstances — may constitute a disproportionate restriction on the right of access to a court guaranteed by Article 6(1) of the European Convention on Human Rights. The legitimate aim of protecting the police from tortious liability does not automatically justify the application of an absolute immunity. Domestic courts are required to engage in a proportionality assessment, weighing the general public interest served by the immunity against the gravity of the competing interests of the individual claimant. Where the relationship between the claimant and the public authority is sufficiently proximate and the harm suffered is of a particularly serious nature, the automatic application of an exclusionary rule without examination of the merits will violate Article 6(1).
The ratio on Article 2 establishes the positive obligation test for the right to life in the context of threats from third parties. A state will be in breach of its positive obligation under Article 2 only where its authorities knew or ought to have been aware of a real and immediate risk to the life of an identified individual from the criminal acts of a third party, yet failed to take measures within their scope which, judged reasonably, might have been expected to avoid that risk. This formulation — commonly referred to as the "Osman test" — imposes a high threshold and has been widely applied in subsequent English and European case law. It remains authoritative.
These two strands of the ratio must be read together with the factual finding that, on the specific facts of this case, the threshold for a violation of Article 2 was not met: the risk to the Osman family was not sufficiently foreseeable or immediate at the relevant time for the police to have been under a duty to act differently.
Obiter Dicta
The Court's reasoning concerning Article 6(1) was subsequently qualified in important respects. In Z v UK (2002), the European Court of Human Rights effectively departed from the analysis adopted in this case, acknowledging that the English law position — that the police owe no duty of care to members of the public in the investigation of crime — represents a substantive rule of law going to the existence of the right of action itself, rather than a procedural immunity restricting access to a court. Where there is no substantive right in domestic law, Article 6(1) is not engaged, because that provision guarantees access to a court to determine civil rights and obligations, but does not itself create those rights. The Osman v UK reasoning on Article 6 was therefore significantly narrowed by this subsequent development, and it is now generally accepted that the Hill v West Yorkshire Police [1989] principle does not in itself violate Article 6(1).
Notwithstanding this qualification, the Article 2 positive obligation test — the "Osman test" — retains its full authority and continues to be applied in cases concerning the duty of public authorities to protect individuals from risks to their lives posed by third parties. The domestic courts have applied and refined this test in a number of subsequent cases, including Osman v Ferguson [1993], Van Colle v Chief Constable of Hertfordshire Police [2008], and Smith v Sussex Police [2008].