CEDH · CASELAW;REPORTS;ENG — 1 juillet 1997

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 23452/94                        Mulkiye Osman and Ahmed Osman                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                          (adopted on 1 July 1997)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-14). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 20-80). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Particular circumstances of the case            (paras. 20-71) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law and practice            (paras. 72-80) . . . . . . . . . . . . . . . . . . . . .10   III.   OPINION OF THE COMMISSION       (paras. 81-140) . . . . . . . . . . . . . . . . . . . . . . .13         A.    Complaints declared admissible            (para. 81) . . . . . . . . . . . . . . . . . . . . . . .13         B.    Points at issue            (para. 82) . . . . . . . . . . . . . . . . . . . . . . .13         C.    As regards Article 2 of the Convention            (paras. 83-103). . . . . . . . . . . . . . . . . . . . .13              CONCLUSION            (para. 104). . . . . . . . . . . . . . . . . . . . . . .21         D.    As regards Article 8 of the Convention            (paras. 105-108) . . . . . . . . . . . . . . . . . . . .21              CONCLUSION            (para. 109). . . . . . . . . . . . . . . . . . . . . . .22         E.    As regards Article 6 of the Convention            (paras. 110-130) . . . . . . . . . . . . . . . . . . . .22              CONCLUSION            (para. 131). . . . . . . . . . . . . . . . . . . . . . .28                              TABLE OF CONTENTS                                                                    page         F.    As regards Article 13 of the Convention            (paras. 132-135) . . . . . . . . . . . . . . . . . . . .28              CONCLUSION            (para. 136). . . . . . . . . . . . . . . . . . . . . . .28         G.    Recapitulation            (paras. 137-140) . . . . . . . . . . . . . . . . . . . .29   PARTLY DISSENTING OPINION OF MR. S. TRECHSEL, JOINED BY MM. E. BUSUTTIL, A. WEITZEL, J.-C. GEUS, I. CABRAL BARRETO AND I. BÉKÉS... . . . . . . . . . . . . . . . . .30   PARTLY DISSENTING OPINION OF MR. L. LOUCAIDES . . . . . . . . . . .33   PARTLY DISSENTING OPINION OF MR. N. BRATZA, JOINED BY MRS. G.H. THUNE, MRS. J. LIDDY, MM. P. LORENZEN AND K. HERNDL . . . . . . . . . . . . . . . . . . .35   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION .   . . . . . . . . . . 39   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicants are British citizens resident in London. The first applicant, born in 1948, was married to Ali Osman who was killed on 7 March 1988. The second applicant born in 1972 is their son. They are represented by Mr Ben Emmerson, counsel, and Ms. Nuala Mole, a solicitor at the Aire Centre in London.   3.     The application is directed against the United Kingdom. The respondent Government are represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office.   4.     The case concerns the complaints of the applicants that the police failed to protect the lives of Ali and Ahmed Osman and that they have no access to court or effective remedy in respect of this failure. It raises issues under Articles 2, 6, 8 and 13 of the Convention.   B.     The proceedings   5.     The application was introduced on 10 November 1993 and registered on 14 February 1994.   6.     On 30 August 1994, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits.   7.     On 31 January 1995, after two extensions in the time-limit, the Government submitted their observations and on 7 June 1995, the applicants submitted their observations in reply, also after two extensions in the time-limit.   8.     On 16 October 1995, the Commission decided to invite the parties to make submissions at an oral hearing at Strasbourg.   9.     On 3 May 1996, the parties submitted further observations and documents.   10.    At the oral hearing, held on 17 May 1996, the Government were represented 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, Ms. N. Mole, solicitor, Mrs L. Christian, solicitor, Mr A. Clapham, counsel, and Mr A. Porter, legal assistant.   11.    On 17 May 1996, the Commission declared the application admissible.   12.    The parties were then invited to submit any additional observations on the merits of the application.   13.    On 13 August 1996, the Government submitted further observations and on 21 August 1996, the applicants submitted observations on the merits. The applicants submitted further information on 31 January 1997.   14.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   15.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  A. WEITZEL                  H. DANELIUS                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  P. LORENZEN                  K. HERNDL   16.    The text of the Report was adopted by the Commission on 1 July 1997 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   17.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   18.    The Commission's decision on the admissibility of the application is annexed hereto.   19.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   20.    In 1987, Ahmed 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.   21.    On or about 2 March 1987, the mother of another boy at the school and neighbour to the applicants complained to 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.   22.    The Deputy Head, Mr Perkins, interviewed Leslie Green. Another teacher, Mr Fleming, interviewed Ahmed Osman. An entry on 3 March 1987 in the diary of the Head Master, Mr Prince, records that contact was made with a PC Williams. In a typed note signed by Ahmed Osman and dated 6 March 1987, taken from the interview with Mr Fleming, it was stated that Paget-Lewis had warned Ahmed about Leslie, ascribing various sexual conduct to Leslie. Paget-Lewis asked Ahmed to come and see him in the class-room at lunchtimes, apparently to learn Turkish from him. He had given him money and a pen and taken photographs of him.   He had followed Ahmed home in his car. The diary notes of the Head Master recorded that PC Williams came to the school on 9 March 1987. The applicants state that on this occasion information concerning Paget-Lewis' conduct towards Ahmed was passed on to the police. The Government state that the police officer concerned has no recollection that he was told about the presents or that Paget-Lewis had followed Ahmed home. The Government state that all concerned were satisfied that there was no sexual element to Paget-Lewis' attachment to Ahmed and the matter was left to be dealt with internally by the school.   23.    The Deputy Head interviewed Paget-Lewis about these matters on two occasions. In a note dated 13 March 1987, he records Paget-Lewis as stating that he had a special relationship with Ahmed, that Leslie was trying to disrupt it; that he was so upset on one occasion that he confronted Leslie and accused the boy of being a sexual deviant; that he had followed Ahmed home on one occasion and waited outside for 45 minutes. The note referred to a second interview being conducted with Leslie Green after another complaint that Paget-Lewis had been seen driving his car past the Green's house.   24.    On 13 March 1987, the Head Master formally interviewed Paget-Lewis. Notes of the meeting indicate that Paget-Lewis admitted that he had become attached to Ahmed, that he had accused Leslie Green of trying to turn Ahmed against him and had parked outside Leslie Green's house to show that he was not to be scared away. The diary notes of the Head Master recorded that PC Williams came to the school.   25.    The Head Master was informed on 16 March 1987 in an interview with Mrs Green and Leslie Green that Paget-Lewis had been spying on Ahmed. Ahmed had told Leslie that Paget-Lewis had said that he knew where Ahmed's mother worked and could find Ahmed even if he left the school.   26.    On 17 March 1987, the Head Master met with Ahmed and his parents to explain his concerns. Ali Osman expressed his wish that Ahmed should be transferred to another school. The diary of the Head Master recorded a contact that day with PC Williams. Another meeting took place at the school on 19 March 1987 and further discussion took place about a possible transfer of Ahmed to another school.   27.    During or about March-April 1987, graffiti appeared in different places near the school referring to Ahmed's alleged sexual relationship with Leslie Green. Paget-Lewis denied that he was responsible when questioned by the Deputy Head, who however noted in a report dated 5 May 1987 that Paget-Lewis knew the exact wording and the exact locations of all the graffiti.   28.    While attempting to transfer Ahmed elsewhere, it was discovered that the files relating to him and Leslie Green had been stolen from the school office. The file relating to staff disciplinary matters was also found to be missing. Paget-Lewis was questioned about this by the Deputy Head, but denied any involvement.   29.    On 14 April 1987, Paget-Lewis changed his name by deed-poll to Paul Ahmed Yildirim Osman. On 1 May 1987, the Head Master wrote to ILEA (the Inner London Education Authority) stating that Paget-Lewis had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of the pupil Ahmed Osman. The applicants state that the Head Master informed the police of the name-change and preceding incidents on or about 4 May 1987. A note in the Head Master's diary refers to a meeting with two police officers, DS Newman and DS Clarke, on 4 May 1987.         The applicants allege that by this stage the police considered that Paget-Lewis posed a serious threat to the safety of Ahmed and advised the ILEA that Ahmed's father, Ali Osman (husband of the first applicant), should be warned. The applicants state that the police requested that they be informed if Ahmed 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. Undated manuscript notes by an ILEA official, Ian Honeyset, which appear to have been made after Paget-Lewis' change of name and before other events occurred in May, refer, inter alia, to "fear boy may be harmed", "police are investigating missing files and his <Paget-Lewis> bkgrd", "files- on boys- with police. They will search home", "why is he changing his name? fear he might abscond with boy", "police advise inform boy's father re poss device to take boy out of country" "police have said if boy is missing more than an hour HT <headteacher> to alert them" and "priority: protect boy; show we have acted". A manuscript note of 8 May 1987 by Ian Honeyset makes reference to " a fear that <Paget- Lewis> might seek to take the boy out of the country" and "a complaint which I understand the police are investigating that he has removed certain files about the matter from the school".         The Government state that there is doubt as to the information which was passed on to the police, in particular that DS Newman and DS Clarke have no recollection of being informed of the graffiti or the missing files. The Government submit that, having considered the information passed to them, the police did not believe that Paget-Lewis posed a serious threat to the safety of Ahmed. They deny that the police asked ILEA to inform them if Ahmed went missing or that they intended to search Paget-Lewis' home.   30.    By letter dated 8 May 1987, the Head Master wrote to ILEA, enclosing reports concerning Paget-Lewis, stating that while he believed Paget-Lewis needed medical help, his continued presence in the school jeopardised the welfare, safety and education of the pupils.   31.    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.   32.    On or about 21 May 1987, a brick was thrown through a window of the applicants' house. The police were informed.   33.    On two occasions in June 1987, the tyres of Ali Osman's car were deliberately burst. The police were informed.   34.    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.   35.    On 18 June 1987, Paget-Lewis was suspended pending an ILEA investigation. He submitted a statement dated 6 July 1987 in which, inter alia, he admitted taking photographs of Ahmed and giving him money but denied stealing files or painting graffiti. He accused Mr Perkins of lying about him and stated that Mr Perkins has stated his intention of breaking him.   36.    On 7 August 1987, ILEA sent a letter to Paget-Lewis officially reprimanding him but lifting the suspension.   37.    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.   38.    In September 1987, Paget-Lewis resumed teaching at a different school.   39.    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. These incidents were reported to the police.   40.    A police officer, PC Adams, at a date unknown 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 alleged 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. No detailed records were made by the police officer of his contacts with Paget-Lewis or the Osman family, who he also visited at this time. Any entries in notebooks or duty registers (crime reports or parade books) could not later be traced by the Metropolitan Police Solicitor's Department.   41.    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.   42.    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 Ahmed's family would be protected. The Government deny that such an assurance was given.   43.    An ILEA memorandum dated 8 December 1987   referred to acts of harassment of the Osman family, the van collision and that Paget-Lewis had allegedly admitted responsibility for the collision saying that Leslie Green has lured Ahmed Osman away from his affections. It noted that the police were pursuing enquiries but that if nothing was heard the matter should be chased. It included with the note "Families getting police protection".   44.    On 9 December 1987, the police interviewed Leslie Green and his mother.   45.    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.   46.    On 14 December 1987, the police took photographs of the graffiti near the school.   47.    On 15 December 1987, Paget-Lewis was interviewed by officers of the ILEA at his own request. An ILEA memorandum dated 15 December 1987 recorded that Paget-Lewis felt in a totally self-destructive mood, stating that it was all a symphony and the last chord had to be played. He was selling all his possessions. It noted that he said that he would not do a "Hungerford" in a school but would see the Deputy Head Master at home. The note stated agreement that this caused worry and should be passed on to the police. A call was made to DS Boardman, who was unavailable but a detailed message was left with the above information.       One of the ILEA officers recalled later in a statement dated 9 March 1988 that Paget-Lewis spoke in a manner which was very disturbing, said that he blamed the Deputy Head Master, that he knew where he lived and that he was going to do something though not at the school. The other officer recalled in her statement of 9 March 1988 that Paget-Lewis had stated that he was going to do something that would be "a sort of Hungerford". She   recalled that as a result of this conversation she caused the police and the school to be alerted that she considered the Head Master and Deputy Head to be at risk of violence.         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.   48. On 15 December 1987, after contact with ILEA,   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, giving a brief description of Paget-Lewis and the registration number of his car.   49.    On or about 15 December 1987, DS Boardman visited the Osman family and discussed the criminal damage and Paget-Lewis' relationship with Ahmed.   50.    By 16 December 1987, DS Boardman had concluded that Paget-Lewis should be arrested on suspicion of criminal damage. He contacted ILEA with a view to tracing Paget-Lewis and was provided with his address. He requested the official at ILEA to ask Paget-Lewis to contact the police. On the same day, DS Boardman 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, no assurance of protection was given. 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.   51.    The diary note of the Head Master for 16 December 1987 refers to DS Boardman, contains a heading "OSMAN/PERKINS/POLICE PRESENCE* ARRANGED" and a note that ILEA had called to finalise arrangements re protection for Perkins/Osman families.   52.    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 teaching at school that day. On 18 December 1987, pursuant to the request of the police, ILEA sent a letter to Paget-Lewis requesting him to contact DS Boardman.   53.    On 18 December 1987, the ILEA informed the police that Paget-Lewis had not attended school. He did not return to the school again.   54.    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.   55.    In an undated unsigned report outlining events leading up to the collision, stated to have been prepared by DS Boardman in December 1987, it is recorded   "it should be pointed out that   at this stage there is no evidence to implicate Paget-Lewis in either of these offences <the obscene graffiti near the school> or the acts of vandalism against Osman's address although there is no doubt in every body's mind that he was in fact responsible and that this was just another example of his spite".   56.    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.   57.    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.   58.    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.   59.    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.   60.    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.   61.    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 Ahmed. He then drove to the home of the Deputy Head Master where he shot and injured the Deputy Head Master and killed his son.   62.    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."   63.    In a record of interview with the police on 8 March 1988, Paget- Lewis stated that he had planned the attacks for two weeks, and for the previous week he had been watching the Osmans' house. He had been hoping in the back of his mind that the police would stop him. He regarded Ali and Ahmed Osman as responsible for making him lose his position at school. He admitted holding the family at gunpoint as they returned to the house, making Ali and Ahmed Osman kneel down in the kitchen, turning out the light and shooting at them. He denied that on earlier occasions he had damaged the windows but admitted that he had let down his tyres as a prank. PC Adams had talked to him about paint and other things but it was not him and it had made him angry. He stated that the Deputy Head was his main target. He denied responsibility for the graffiti and taking files from the school office.   64.    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.   65.    An inquest was held into the death of Ali Osman after the conclusion of the criminal proceedings. Since a person had been convicted in connection with the death, the Coroner did not hold a full inquest (section 16 of the Coroner's Act 1988).   66.    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.   67.    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.   68.    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.   69.    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."   70.    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. He rejected the argument that where the class of victim was sufficiently proximate and sufficiently small the public policy argument might not apply. He found that Lord Keith in the Hill case had treated public policy as a separate point which is not reached unless there is a duty of care.   The second judge in the Court of Appeal, Lord Justice Beldam, also held that on grounds of public policy the claims were not maintainable but refrained from expressing an opinion as to whether the facts, if proved, were sufficient to establish a relationship sufficiently proximate to found a duty of care. Lord Justice Simon Brown agreed with the judgment of Lord Justice McCowan. The applicants' claim was accordingly struck out.   71.    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   72.    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."   73.    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 an       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."   74.    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.   75.    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."   76.    In Swinney and another v. the Chief Constable of Northumbria (1996 3 AER 449), the plaintiff had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to be traced back to her. The information was recorded, naming the plaintiff, in a document which was left in an unattended police vehicle, which was broken into with the result that the document was stolen, came into the possession of the person implicated and the plaintiff was threatened with violence and arson and suffered psychiatric damage. The plaintiff's claim in negligence against the police was struck out but   allowed on appeal to the High Court judge. The Chief Constable appealed contending that the police owed no duty of care or alternatively that public policy precluded the prosecution of the claim since the police were immune for claims arising out of their activities in the investigation or suppression of crime. The Court of Appeal dismissed the appeal. In his judgement Lord Justice Hirst referring to the cases of Dorset Yacht and Hill (see above) stated that he could not accept a claim of blanket immunity for the police in this case, but that there were other considerations of public policy in this case, namely, the need to protect springs of information, to protect informers and to encourage them to come forward. On the facts of the case, it was arguable that the police had assumed responsibility of confidentiality to the plaintiff. The case should therefore proceed to trial.   77.    Lord Justice Ward held that it was arguable that:         "there is a special relationship between the plaintiffs and the       defendant, which is sufficiently proximate. Proximity is shown       by the police assuming responsibility, and the plaintiffs relying       upon that assumption of responsibility, for preserving the       confidentiality of the information which, if it fell into the       wrong hands, was likely to expose the first plaintiff and members       of her family to a special risk of damage from the criminal acts       of others, greater than the general risk which ordinary members       of the public must endure with phlegmatic fortitude;... and it       is fair, just and reasonable that the law should impose a duty,       there being no overwhelming dictate of public policy to exclude       the prosecution of this claim. On the one hand there is, as more       fully set out in Hill v. the Chief Constable ... an important       public interest that the police should carry out their difficult       duties to the best of their endeavours without being fettered by,       or even influenced by, the spectre of litigation looming over       every judgment they make, every discretion they exercise, every       act they undertake or omit to perform, in their ceaseless battle       to investigate and suppress crime. The greater good rightly       outweighs any individual hardship. On the other hand it is       incontrovertible that the fight against crime is daily dependent       upon information fed to the police by members of the public,       often at real risk of villainous retribution from the       criminals... The public interest will not accept that good       citizens should be expected to entrust information to the police       without also expecting that they are entrusting their safety to       the police. The public interest would be affronted were it to be       the law that members of the public should be expected, in the       execution of public service, to undertake the risk of harm to       themselves without the police, in return, being expected to take       no more than reasonable care to ensure that the confidential       information imparted to them is protected..."   78.    Police have been held liable in negligence or failure in their duties in other cases. In Kirkham v. the Chief Constable of Manchester (1989 2.QB p. 283), the Court of Appeal upheld a finding of liability in negligence under the Fatal Accidents Act 1976 where the police had taken a man into custody, knew he was a suicide risk but did not communicate that information to the prison authorities. The man, diagnosed as suffering from clinical depression had committed suicide in remand prison. The police, who had assumed responsibility for the man, had owed a duty of care, which they had breached with the result that his death had ensued.   79.    In Rigby and another v. Chief Constable of Northamptonshire (1985 2 AER p. 986), the High Court found the police liable to pay damages for negligence in that they had fired a gas canister into the plaintiffs' premises in order to flush out a dangerous psychopath. There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was firefighting equipment available to put the fire out at an early stage. No equipment had been present at the time and the fire had broken out and spread very quickly. Negligence was also found in Knightley v. Johns and others (1982 1 AER 301) where a police inspector at the site of an accident failed to close a tunnel and ordered officers to go back through the tunnel in the face of traffic, thereby leading to a further accident.   80.    In R. v. Dytham (1979 1 QB 722), where a police officer stood by while a man died outside a club in a murderous assault, the Court of Appeal upheld the conviction of the officer for wilful neglect to perform a duty.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   81.    The Commission has declared admissible the applicants' complaints that there was a failure to protect the lives of Ali and Ahmed Osman and to prevent the harassment of their family and that the applicants had no access to court or effective remedy in respect of that failure.   B.     Points at issue   82.    The issues to be determined in the present case are:         - whether there was a   failure to protect the lives of Ali and       Ahmed Osman contrary to Article 2 (Art. 2) of the Convention;         - whether there was a failure to protect the applicants from       harassment contrary to Article 8 (Art. 8) of the Convention;         - whether the applicants were denied access to court for the       determination of their civil rights contrary to Article 6 para. 1       (Art. 6-1) of the Convention;         - whether there has been a violation of Article 13 (Art. 13) of       the Convention in relation to their allegations of lack of an       effective remedy in respect of their complaints.   C.     As regards Article 2 (Art. 2) of the Convention   83.    Article 2 (Art. 2) of the Convention, as relevant, provides:         "1.   Everyone's right to life shall be protected by law.   No one       shall be deprived of his life intentionally save in the execution       of a sentence of a court following his conviction of a crime for       which this penalty is provided by law."   84.    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 Ahmed Osman and that this obligation was breached by the failure of the police to take adequate and appropriate steps to provide them with effective protection. Effective protection means not only that laws and structures are in place to prohibit attacks but that operational procedures must be adapted to meet the needs of individuals in danger. 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 w