CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23452/94                       by Mulkiye OSMAN and Ahmet OSMAN                       against the United Kingdom        The European Commission of Human Rights sitting in private on 17 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  A. WEITZEL                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 10 November 1993 by Mulkiye OSMAN and Ahmet OSMAN against the United Kingdom and registered on 14 February 1994 under file No. 23452/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      31 January 1995 and the observations in reply submitted by the      applicants on 7 June 1995;   -     the parties' written observations of 3 May 1996 and oral      submissions at the hearing of 17 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicants, British citizens, are represented before the Commission by Mr. Ben Emmerson, counsel, and Ms. Nuala Mole, a solicitor at the Aire Centre, London. The first applicant, Mulkiye Osman, born in 1948, and the second applicant, Ahmet Osman, her son born in 1972, are resident in London.   a.    The particular circumstances of the case        The facts as submitted by the parties may be summarised as follows.        In 1987, Ahmet Osman, the second applicant, then 14 years old, was a pupil at Homerton House School, Hackney, London. Paul Paget-Lewis was employed as a teacher at the school.        The mother of another boy at the school and neighbour to the applicants complained to the Deputy Head Master of the school that Paget-Lewis was falsely accusing her son, Leslie Green, of deviant sexual practices and spreading rumours to that effect. Paget-Lewis had followed Leslie home from school on occasion.        The Deputy Head interviewed Leslie Green and Ahmet Osman, while on 3 March 1987 the Head Master of the school informed the police at Hackney Police Station. It emerged that Paget-Lewis had developed an attachment to Ahmet and, jealous, was attempting to sever Ahmet's friendship with Leslie. Paget-Lewis had also given Ahmet money and a pen and taken photographs of him.        It also appeared that Paget-Lewis had locked Ahmet into the classroom with him during meal breaks on the pretext of asking the boy to teach him Turkish. He on occasion followed Ahmet home in his car. The applicants state that this information was passed on to the police on or about 9 March 1987. The Government state that the police officer concerned has no recollection that he was told about the presents or that Paget-Lewis had followed Ahmet home. The Government state that all concerned were satisfied that there was no sexual element to Paget- Lewis' attachment to Ahmet and the matter was left to be dealt with internally by the school.        On 13 March 1987, the Head Master interviewed Paget-Lewis and informed the police.        The Head Master was informed on 16 March 1987 that Paget-Lewis had been spying on Ahmet and had told Leslie that he knew where Ali Osman, Ahmet's father, worked and could find Ahmet even if he left the school.        The Head Master met with Ahmet and his parents, and it was agreed in principle, on 17 March 1987, that Ahmet should be transferred to another school.        In or about April 1987, graffiti appeared near the school referring to Ahmet's alleged sexual relationship with Leslie Green. Paget-Lewis denied that he was responsible.        While attempting to transfer Ahmet elsewhere, it was discovered that the files relating to him and Leslie Green had been stolen from the school office.        On 14 April 1987, Paget-Lewis changed his name by deed-poll to Paul Ahmet Yildirim Osman. The applicants state that the Head Master informed the police of this and preceding incidents on or about 4 May 1987. The applicants allege that by this stage the police considered that Paget-Lewis posed a serious threat to the safety of Ahmet and advised the ILEA (the Inner London Education Authority) that Ahmet's father, Ali Osman (husband of the first applicant), should be warned. The applicants state that the police requested that they be informed if Ahmet should go missing for more than an hour and that they informed ILEA that they intended to search Paget-Lewis' home for the missing files. The Government state that, having considered the information passed to them, the police did not believe that Paget-Lewis posed a serious threat to the safety of Ahmet. They deny that the police asked ILEA to inform them if Ahmet went missing or that they intended to search Paget-Lewis' home.        On 19 May 1987, Paget-Lewis was seen by Dr. Ferguson, the ILEA psychiatrist, who 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 psychotherapy.        On or about 21 May 1987, a brick was thrown through a window of the applicants' house. The police were informed.        On two occasions in June 1987, the tyres of Ali Osman's car were deliberately burst. The police were informed.        On 16 June 1987, following a further interview with Paget-Lewis, Dr. Ferguson recommended that Paget-Lewis should no longer teach at the school and that transfer on medical grounds was strongly and urgently recommended.        On 18 June 1987, Paget-Lewis was suspended pending an ILEA investigation.        On 7 August 1987, ILEA sent a letter to Paget-Lewis officially reprimanding him but lifting the suspension.        In or about August-September 1987, a mixture of engine oil and paraffin was poured on or near the applicants' doorstep. This was reported to the police.        In September 1987, Paget-Lewis resumed teaching at a different school.        On or about 18 October 1987, the windscreen of Ali Osman's car was smashed. In late October/early 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 the light bulb stolen from their porch.        A police officer in October-December 1987 was in contact with Paget-Lewis regarding the acts of vandalism. In later statements to the police, Paget-Lewis stated that he telephoned the officer on at least one occasion leaving his number but his call was not returned.   He also alleges that he told the police officer on one occasion 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.        On 7 December 1987, Paget-Lewis drove his car in such a manner that it collided with   a van in which Leslie Green was a passenger. The police arrived and cautioned him, issuing a form requesting him to produce his driving documents.        On 8 December the police contacted the ILEA stating that they wished to interview Paget-Lewis and the Head Master. The applicants state that the police assured the ILEA that Ahmet's family would be protected. The Government deny that such an assurance was given.        On 9 December 1987, the police interviewed Leslie Green and his mother.        On 10 December 1987, Paget-Lewis attended the police station and produced his driving documents. He failed to produce a road worthiness (MOT) certificate for his car and was cautioned in relation to that.        On 14 December 1987, the police took photographs of the graffiti near the school.        On 15 December 1987, Paget-Lewis was interviewed by officers of the ILEA at his own request. One officer recalled that Paget-Lewis spoke in a manner which was very disturbing, said that he knew where the Deputy Head Master lived and that he was going to do something though not at the school. The other officer recalled that Paget-Lewis had stated that he was going to do something that would be "a sort of Hungerford" (an incident where a man ran amok through the town with an arsenal of weapons, killing and injuring numerous people). The applicants state that 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. However, the police sent a telex to the local police station near the Deputy Head Master's home referring to the fact that vague threats had been made and that the school authorities were very concerned and asked that the local police pay casual attention to the address.        On 16 December 1987, the police contacted the ILEA with a view to tracing Paget-Lewis and were provided with his address. The police officer asked the official at ILEA to ask Paget-Lewis to contact him. On the same day, a police officer met with the Head Master and his Deputy. The applicants state that the police officer assured the Head Master that they would undertake the necessary measures to protect his Deputy (against whom threats had been made) and the applicants. According to the Government, the police officer received the impression from his meetings with the Head Master and Deputy that Paget-Lewis was angry at being removed from the school but that the anger was directed against the Deputy. The Deputy however informed the police officer that he did not feel in any danger.        On 17 December 1987, the police 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 at that time teaching at school.        On 18 December 1987, the ILEA informed the police that Paget- Lewis had not attended school.        On 22 December 1987, the police took a statement from the driver of the van which had been rammed by Paget-Lewis. He recalled that Paget-Lewis had been unconcerned by the incident stating that in a few months he would be serving life imprisonment.        In or about 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 January 1988, Paget-Lewis 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.        Between January and March 1988, Paget-Lewis travelled around in England hiring cars in his adopted name of Osman and being involved in a number of accidents. He spent time at his home address during this period and continued to receive mail there.        On 17 January 1988, Paget-Lewis broke into 3 cars at a clay- pigeon shoot and stole a shotgun. He sawed off both barrels. While the theft was reported to the local police, there was nothing to connect the incident to Paget-Lewis and it did not come to the attention of the Metropolitan police dealing with the case.        On 1, 4 and 5 March 1988, Leslie Green saw Paget-Lewis in a black crash helmet near the applicants' home. According to the applicants, Mrs. Green informed the police on each occasion, but the police officer dealing with the case did not return her call. The Government accept that, on 5 March 1988, the police officer received a message which stated "phone Mrs. Green" but there was no phone number on the note and he did not connect the message with the mother of Leslie Green.        On 7 March 1988, Paget-Lewis was seen near the applicants' home by a number of people. At about 23.00, Paget-Lewis shot and killed Ali Osman and injured Ahmet. He then drove to the home of the Deputy Head Master where he shot and injured the Deputy Head Master and killed his son.        On 8 March 1988, the police stopped and arrested Paget-Lewis on the M1 motorway. He said words to the effect of "Why didn't you stop me before I did it. I gave all the warning signs."        On 28 October 1988, Paget-Lewis was convicted of two charges of manslaughter having pleaded guilty on the grounds of diminished responsibility. 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.        On 28 September 1989, the applicants commenced proceedings against the police alleging negligence in that, inter alia, they had failed to apprehend Paget-Lewis prior to 7 March 1988, failed to interview Paget-Lewis other than in relation to the road traffic offences, failed to charge Paget-Lewis with any offence and failed to trace Paget-Lewis through car hire company records. Orders for discovery of documents were made on 24 April 1990.        On 19 August 1991, the Metropolitan Police Commissioner issued a summons for an order that the statement of claim be struck out on the ground that it disclosed no reasonable cause of action. The High Court judge dismissed the application.        On 7 October 1992, the Court of Appeal upheld the appeal by the Commissioner. In its judgment, it 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.        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."        However, having regard in particular to the judgment of the House of Lords in the case of Hill (see Relevant domestic law and practice below), with which he found no relevant distinction, he considered that the matters in issue were failures in investigation of crime and public policy doomed the action to failure. The second judge in the Court of Appeal, Lord Justice Beldam, also held that on grounds of public policy the claims were not maintainable and Lord Justice Simon Brown agreed with the judgment of Lord Justice McCowan. The applicants' claim was accordingly struck out.        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.   b.    Relevant domestic law and practice        In the case of Dorset Yacht Co. Ltd. v. the Home Office (1970 AC 1004), 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."        In the case of Hill v. Chief Constable of West Yorkshire (1989 AC 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 a      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."        He went on to find that in any case there was another ground for rejecting the case, namely, public policy in preventing a flood of complaints alleging police failure to catch criminals which would result in a significant diversion of police and manpower from their most important function of suppressing crime.        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."   COMPLAINTS   Article 2 of the Convention        The applicants allege that the State breached its positive duty to protect life in that the police failed in the compelling circumstances of this case to avert the death of Ali Osman and injury of Ahmet Osman by taking the appropriate steps.   Article 8 of the Convention        The applicants complain under this provision of the failure of the police to take the necessary steps to prevent the persistent harassment of the applicants for over a year.   Article 6 of the Convention        The applicants complain that the immunity from suit in civil proceedings   of the police where the proximity of the parties gave rise to a duty of care deprives the applicants of their right of access to court in the determination of their civil rights and obligations. The immunity does not, in their submission, pursue a legitimate aim and is disproportionate.   Article 13 of the Convention        The applicants submit that they have not been provided with a remedy before a national authority to have their claim decided and if appropriate to obtain redress. They submit that the possibility of applying to the Criminal Injuries Compensation Board does not constitute an effective remedy.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 November 1993 and registered on 14 February 1994.        On 30 August 1994, the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 31 January 1995 after two extensions of the time-limit fixed for that purpose.   The applicants replied on 7 June 1995, also after two extensions of the time-limit.        On 16 October 1995, the Commission decided to invite the parties to make submissions at an oral hearing at Strasbourg.        The applicant and Government submitted further observations and documents on 3 May 1996.        At the hearing, which took place on 17 May 1996, the Government were represented by Mr. M.R. Eaton, Agent, Mr. J. Eadie, counsel, Mr. S. Freeland, counsel, and Mrs. S. Weston, Mr. G. Edwards, Mrs. S. McDougall and Mr. P. Shawdon, as advisers. The applicants were represented by Mr. B. Emmerson,   counsel, Mr. T. Kerr, counsel, Mrs. N. Mole, solicitor, Mrs. L. Christian, solicitor, Mr.    A. Clapham, counsel, and Mr.       A. Porter, legal assistant.   THE LAW        The applicants complain that the police had failed to take adequate steps to protect the right of life of their family and that they were denied access to court to pursue an action in negligence against the police. They also complain of the failure to take steps in respect of the constant harassment over a period of more than a year and that they have no effective remedies in respect of their complaints. They invoke Article 2 (Art. 2) (the right to life), Article 6 (Art. 6) (the right to access to court), Article 8 (Art. 8) (the right to respect for family life, private life and home) and Article 13 (Art. 13) (the right to effective national remedies for Convention breaches) of the Convention.        The parties' principal submissions may be summarised as follows.        As regards the complaints under Article 2 (Art. 2), the Government point out that domestic law prohibits murder and manslaughter. They argue that there can be no positive duty to exclude any possible violence by third persons. While there may be a positive obligation on a Contracting State to provide   appropriate structures, it will be only in exceptional cases, where there is and is known to be a real, direct and immediate threat to life and an assumption of responsibility to carry out an act or acts, that the police could be under any obligation to take specific actions. In this case, the Government emphasise that at no stage prior to the shooting was a threat to the life of the Osmans made by word or deed and they dispute the applicants' submissions about general threats; that there was no evidence that the acts of vandalism preceding the shooting were committed by Paget-Lewis; that these acts had come to an end four months before the shooting and the police had no reason to suspect that Paget-Lewis had stolen a shotgun. Further, the incidents in which Paget-Lewis was suspected of being involved tended to suggest that his anger was directed equally against a number of other people. It is denied that police officers either knew or should have known that the applicants were at any risk to their lives or that they had given any assurances of safety to the applicants.   Accordingly, the Government submit that sufficient and appropriate steps were taken by the police on the information and evidence available to them to protect Mr. Ali Osman and Ahmet Osman.        The Government submit that Article 6 (Art. 6) is inapplicable since the Court of Appeal in the present case held that the applicants had no right recognised under domestic law to claim damages from the police. If it is in fact applicable the exclusion of a duty of care on the part of the police in a limited area is compatible with Article 6 (Art. 6), as pursuing a legitimate aim in a proportionate manner, in which context they point out, inter alia, that the exclusion applies, not to actions against the police in negligence generally, but only in the limited category of the investigation or suppression of crime; that the applicants could sue Paget-Lewis himself and apply to the Criminal Injuries Compensation Board.        To the extent that there might be any arguable claim of a violation of a substantive provision of the Convention for the purposes of Article 13 (Art. 13), the Government refer to the considerations raised under Article 6 (Art. 6), which they submit must be of equal relevance.        The applicants submit under Article 2 (Art. 2) of the Convention that the United Kingdom were under a positive obligation to protect the right to life of the deceased, Ali Osman, and Ahmet Osman and that this obligation was breached by the failure of the police to take adequate and appropriate steps to protect them. They submit that the facts of the case show that the police were kept well-informed of events and the fears of the school authorities, pointing to statements by, inter alia, school and education authority personnel that the police did consider Paget-Lewis to be a potential threat to the applicants. The applicants submit that on three occasions Paget-Lewis had made threats to commit murder, including on 15 December 1987 talking about "doing something which would be a sort of Hungerford" (a mass killing in the United Kingdom in the 1980's). The applicants submit that on each of the three occasions the threat was communicated to the police. They further submit, inter alia, that inadequate steps were taken to secure evidence against Paget-Lewis in relation to the criminal damage or to ensure that he was taken into custody once the decision to arrest had been taken.        The applicants complain under Article 6 (Art. 6) of the Convention of denial of access to court since their claims against the police were struck out on the basis that public policy conferred an immunity on the police in actions for negligence in relation to the investigation and suppression of crime. They submit that the immunity conferred on the police does not pursue a legitimate aim or, alternatively, is disproportionate to the aim sought to be achieved. There is, for example, no convincing reason why police should be treated differently from any other public body pursuing a public service or other professionals, such as medical practitioners.        The applicants further submit that, even assuming that the Commission accepts the Government's arguments as to the applicability of Article 6, Article 13 (Art. 6, 13) would require that they be provided with an effective remedy in respect of their complaints. In light of their inability to pursue proceedings against the police before a court, such effective remedy is lacking.        The Commission considers, having regard to the parties' submissions, that the case raises complex and serious issues of fact and law under the Convention, the determination of which should depend upon an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Commission             President of the Commission        (H.C. KRÜGER)                             (S. TRECHSEL)