On 28 January the SC, by a 5-2 majority, dismissed the claim in negligence but unanimously allowed the European Court Human Rights (ECHR) case to proceed to trial.
In the lead majority judgment, Lord Toulson alluded to the long-standing public policy grounds for not imposing liability of this kind, saying that “it is hard to see that it would be in the public interest for the determination of police priorities to be affected by the risk of being sued … the imposition of liability on the police to compensate victims of violence on the basis that the police should have prevented it would have potentially significant financial implications”.
The case, which surrounds the murder of Ms Michael in 2009 despite two urgent 999 calls and a request for police to protect her from her ex-partner, saw the relatives of Ms Michaels bring a claim against the police, both in negligence and under the ECHR (breach of right to life).
For the minority, Lord Kerr and Lady Hale would have found the police liable in negligence and articulated the scope of such liability, the imposition of which would have troubled the majority. Lord Kerr said that the extra ingredient of proximity, necessary to impose liability in negligence here, should have four elements:
- a closeness of association, which could arise from communicating information (eg the 999 calls)
- the information indicating that serious harm was likely unless urgent action was taken
- the defendant might reasonably be expected to provide protection
- without unnecessary danger to himself
Lord Kerr very clearly preferred the fundamental principle that legal wrongs should be remedied over what, in his words, was “the poverty – or complete absence – of evidence to support the claims of dire consequences should liability for police negligence be recognised”.
The judgement can be read here.
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).