CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 novembre 1999

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Costa, President ,   Sir   Nicolas Bratza,   Mr   L. Loucaides,   Mr   P. Kūris,   Mr   W. Fuhrmann,   Mrs   H.S. Greve,   Mr   K. Traja, judges ,   and   Mrs   S. Dollé, Section Registrar ;     Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     Having regard to the application introduced on 14 November 1995 by Dawn Bromiley against the United Kingdom and registered on 12 November 1996 under file no. 33747/96;     Having regard to the reports provided for in Rule 49 of the Rules of Court;     Having regard to the observations submitted by the respondent Government on 19   December 1997 and the observations in reply submitted by the applicant on 30 March 1998;     Having deliberated;     Decides as follows: THE FACTS     The applicant is a British citizen and the mother of Suzanne Bromiley who was murdered on 29 October 1991. The applicant is represented before the Court by Mr   A.   McCooey, a solicitor practising in Sittingbourne, Kent.     The facts of the case as they have been submitted by the parties may be summarised as follows.   A.   The particular circumstances of the case     On 28 October 1991 the applicant's daughter was murdered by K.W., a prisoner serving a sentence of imprisonment for kidnapping a woman at knife point, after he had absconded whilst on home leave.     K.W. had been convicted in June of 1990 of kidnapping and was sentenced to a period of imprisonment of 30 months. No application had been made for him to be dealt with under the Mental Health Act 1983. He was classified as a category C prisoner, which is a relatively low security risk. No mention was made of dangerousness in his sentencing report.     A psychiatrist’s report dated 18 July 1990 addressed to the Parole Board just after his sentence described K.W. as follows:     “In my opinion, <K.W.> is not suffering from any psychiatric illness. He is articulate, intelligent and plausible. He is a recidivist and an anti social psychopath who has made a positive choice to live a life of crime. He is not likely to benefit from any psychiatric intervention and has no motivation to do so.”     K.W. was originally detained at Featherstone prison. In January 1991 he was allowed home for a period of 3 days’ leave. In the spring of 1991 he was transferred to Lancaster prison, and was again allowed a period of home leave. Prior to each period of home leave K.W. was examined by a medical practitioner. On both these occasions he returned to prison at the end of the period of home leave.     In May 1991 K.W. was transferred to Risley prison. On 6 June 1991 he was released on home leave, and was due to return on 11 June. He failed to return. K.W. would have been finally released on 29 August 1991, but had not been recaptured by that date. On 28 October 1991, K.W. killed Susan Bromiley.     The Government state that the local police force was informed that K.W. had failed to return within four hours, and that this is in accordance with the relevant Home Office guidelines. They state that details of K.W. were recorded on the Police National Computer, and that his details were circulated to all police forces as an absconder.     At Hove Crown Court on 27 November 1992 K.W. pleaded guilty to manslaughter on the grounds of diminished responsibility. Domestic law only allows such a plea where there is “clear evidence of mental instability”.     Consequent on the loss of her daughter in horrific circumstances, the applicant suffered psychological damage associated with symptoms of continuing depression, nightmares and suicidal thoughts.   She has been incapable of working following her daughter's murder, and as a consequence her home has been repossessed.     In 1994 the applicant commenced proceedings in the High Court against the Home Office in respect of the psychological damage she had suffered, alleging negligence on the part of the prison authorities in releasing K.W., when there was evidence available to the prison authorities that he was a psychopath and a danger to the public; in failing to take adequate steps to see that he returned from home leave; and thereafter in failing to take adequate steps to ensure his recapture, principally in failing to notify the police that K.W. had absconded or to see that the same was recorded on the Police National Computer.     On 18 May 1995, the proceedings were struck out by a Master of the High Court on application by the Home Office as showing no reasonable cause of action.   The skeleton argument placed before the Master on behalf of the Home Office argued that there was no duty of care owed by the police to individual members of the public in respect of criminals at large, and that as a matter of public policy the police were immune from such actions.     There is no written court record of the reasons given by Master Murray in striking out the case. The applicant states that the action was struck out on the basis of a settled line of authority within English law that a public authority with a duty to detain offenders owes no duty of care at common law to protect the general public from injury by dangerous or violent offenders prematurely discharged or insecurely detained by them.     The Government state that “it appears … the claim was dismissed because neither the applicant nor her daughter had any reasonable prospect of satisfying the first two stages of the duty of care test: foreseeability of harm and proximity”. They have provided a note by the Government lawyer who attended the hearing, which stated that the Master in striking out the claim accepted the submission that there was no duty of care on the part of the Home Office in these circumstances and took into account other difficulties in that the action should vest in the deceased’s estate and was time-barred. Though no judgment as such was delivered, it was thought that the Master was impressed by the arguments on remoteness and public policy.     On 10 July 1996 counsel advised that English law recognises no duty of care on the part of the Home Office to the general public at large to protect them from the foreseeable consequences of a negligent failure to detain or re-detain a convicted prisoner on grounds of public policy, other than where the particular victim could have been identified before the event.   B.   Relevant domestic law and practice     1. Criminal Law     Manslaughter     The offence of manslaughter is committed if the victim is unlawfully killed by a person who, by reason of abnormality of mind, suffered from diminished responsibility – i.e. who suffered from such abnormality of mind as substantially impaired his mental responsibility for his acts. The sentence of manslaughter is imprisonment for life or for any shorter term.     2. The Mental Health Act 1983     Following conviction for an offence punishable with imprisonment, both the Magistrates’ Court and the Crown Court have the power under section 38(1) to make an interim hospital order, where:   “… the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners:   (a) that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and   (b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case … .”     Pursuant to section 37(2), both the Magistrates’ Court and the Crown Court may also admit an offender to a hospital if:   “(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that …   (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition …   (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”     3. Actions against the police for negligence     In the case of Dorset Yacht Co. Ltd. v. the Home Office (1970 A.C. 1004), the 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 A.C. 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 various 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.”     While he considered this sufficient to dispose of the appeal, Lord Keith went on to set out public policy objections to the existence of an action in negligence against the police in the performance of their duties in the investigation and suppression of crime.   “Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that a police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.”   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.”     In Swinney and another v. the Chief Constable of Northumbria [1997] Q.B. 464, 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 by 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 judgment Lord Justice Hirst referring to the cases of Dorset Yacht and Hill stated that he could not accept a claim of blanket immunity for the police, but that there were other considerations of public policy in that 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 a responsibility of confidentiality towards the plaintiff. The case should therefore proceed to trial.     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.   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 and their associates. 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 ... .”     The 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 Queen’s Bench Reports 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 committed suicide in the remand prison. The police, which had assumed responsibility for the man, had owed a duty of care, which they had breached with the result that his death had ensued.     In Rigby and another v. Chief Constable of Northamptonshire ([1985] 2 All E.R. 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 fire-fighting 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 All E.R. 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.     In R. v. Dytham (1979) 1 Q.B. 722, where a police officer stood by while a man died outside a club in a murderous assault, the conviction of the officer for wilful neglect to perform a duty was upheld.     4. Prisoners’ home Leave     The system of home leave that was in operation at the time was governed by rule 6 of the Prison Rules 1964 (S.I. 1964/388). At the relevant time, rule 6 provided as follows:   “(1)   A prisoner to whom this rule applies may be temporarily released for any period or periods and subject to any conditions. (2) A prisoner may be temporarily released under this rule for any special purpose or to enable him to engage in employment to receive instruction or training or to assist him in his transition from prison life to freedom. (3) A prisoner released under this rule may be recalled to prison at any time whether the conditions of his release have been broken or not. (4) This rule applies to prisoners other than persons committed to custody for trial or to be sentenced or otherwise dealt with before or by the Crown Court or remanded in custody by any court.”     A prison governor exercising his discretion under rule 6, and considering an application for home leave, had to do so in accordance with the relevant circular instruction to governors. The relevant circular instruction states that prisoners considered to be mentally ill or suffering from mental disorder were ineligible for home leave; that the prisoner’s behaviour was “an important factor” in deciding whether to grant leave and that applications were to be judged in the light of whether the prisoner could be trusted not to commit further offences and to return on time.     COMPLAINTS   1.   The applicant complains of a violation of Article 2 of the Convention.   She submits that the action of the prison authorities in permitting K.W., who was known to be violent and a risk to the public, out on home leave and thereafter in failing to take any adequate steps to see that he was recaptured following his failure to return, amount to a failure by the State to take appropriate steps to safeguard her daughter's life.   The applicant further submits that the deprivation of her right to pursue civil proceedings amounts to a violation of Article 2 of the Convention.   2.   The applicant also complains under Article 6 § 1 of the Convention that she has been deprived of her right to a fair and public hearing in the determination of her civil rights in that, in circumstances such as her claim, the Home Office is immune from liability.   3.   Finally, the applicant complains that the deprivation of her right to pursue civil proceedings amounts to a violation of Article 8 of the Convention.     PROCEDURE     The application was introduced on 14 November 1995 and registered on 12   November 1996.     On 8 September 1997, the European Commission of Human Rights decided to communicate the application to the respondent Government.     The Government’s written observations were submitted on 19 December 1997 after an extension in the time-limit fixed for that purpose. The applicant replied on 30 March 1997, also after an extension of the time-limit.     On 13 March 1998, the Commission granted the applicant legal aid.     On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.     On 14 December 1998, the Government provided a document.     THE LAW   1.   The applicant complains that State failed to protect her daughter’s life, invoking Article 2 of the Convention, which provides in its first sentence:     “1.   Everyone's right to life shall be protected by law. ...”   The Government have submitted that any positive obligation to take preventive steps to protect life is not absolute but depends on the nature and imminence of the risk and the means available to combat that risk. In this case, there was no specific person or group of persons who could have been identified as being at risk from K.W. and no indication that the applicant’s daughter was in any foreseeable danger from him. They emphasise that K.W. had not been found to be suffering from any mental illness at his trial or prior to the home leave in June 1991. He had also returned to prison after two previous periods of home leave and no incidents had occurred to suggest that he presented a continued serious threat to the public. When K.W. failed to return on 11 June 1991 immediate steps were taken in accordance with the guidelines, including notification of the police and the inclusion of his details in the Police National Computer, which would have reached every police force in the country. In these circumstances, the authorities did not fail to comply with any obligation imposed on them under this provision of the Convention.     The applicant submits that there was a positive duty on the State to protect her daughter’s life, which included the duty not to release prematurely those who constituted a risk to the life and limb of the public in general. In her submission, any citizen who died because of a failure to perform that duty suffered an interference with his or her right to life. K.W. was serving a sentence for a serious offence and was clearly a violent and dangerous offender. Evidence was available at the time of his release which showed that he was a psychopath and a danger to the public. The applicant further submits that the deprivation of her right to pursue civil proceedings amounts to a violation of Article 2 of the Convention.     The Court recalls that the recent case-law of the Convention organs establishes that Article 2 is not exclusively concerned with intentional killing resulting from the use of force by agents of the State, but also imposes a positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction (see eg. Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, § 115).   The scope of the obligation will depend on the circumstances of the case, bearing in mind, amongst other relevant considerations, the operational choices that have to be made in terms of priorities and resources and the necessity of interpreting such an obligation in a way which does not impose an impossible or disproportionate burden on the authorities. For example, in the Osman case ( op. cit , § 116), the Court held that Article 2 imposed a positive obligation on the authorities to take preventive measures to protect an individual whose life was at risk from the criminal acts of another individual. This obligation would not be met where it was established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.     Applying that approach in the present case, the Court observes that there is no evidence in the file before it indicating that the authorities knew, or ought to have known, that K.W. was likely to commit a crime of violence if he was released for a period of home leave. It notes in that regard the absence of any medical diagnosis of mental illness indicating that K.W. posed a risk to life and the fact that he had previously returned from two periods of home leave without incident.   Equally, there were no elements which would have put the authorities on notice that, in the event of K.W.’s failure to return from home leave, the applicant’s daughter would have been at foreseeable risk. Nor is it apparent that the authorities failed to take any step, reasonably available to them, which would have secured K.W.’s capture before he committed a further crime. The Court does not find, in the circumstances of this case, that the release of K.W. on home leave, shortly before the end of his sentence, discloses by itself a failure to protect the life of the applicant’s daughter.     Insofar as the applicant complains of lack of access to court for taking civil proceedings in respect of her daughter’s death, the Court considers that this falls to be examined under Article 6 § 1 of the Convention.     The Court finds therefore that the applicant’s complaints under Article 2 are unsubstantiated and must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.   2.   The applicant complains that she has been unable to bring civil proceedings against the authorities in respect of their alleged responsibility for the death of her daughter, invoking Article 6 § 1 of the Convention which provides as relevant in its first sentence:   “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”     The Government argue that the applicant has not been denied access to court in the determination of any civil right existing in domestic law. They submit that the applicant’s case was dismissed by the courts on the basis of ordinary principles of negligence law. Her claim was struck out by reference, in particular, to its failure to fulfil the requirements of proximity and foreseeability, which are necessary to establish a duty of care on the part of the authorities. Any restriction on access to court deriving from such considerations pursued both a legitimate aim and was proportionate.     The applicant submits that there has been a limitation on her access to court as the Home Office is only liable in negligence when a foreseeable individual is injured or killed as a result of a dangerous prisoner’s premature discharge. This restricts the liability of the Home Officer even when its negligence is clear and causative of loss. Though the reason for the court striking out the applicant’s claim in this case is not clear, it appears to be based on the fact that it was unprecedented to hold the authorities liable in such circumstances. To the extent that this protects the state from liability for inappropriate release decisions, this confers an immunity on the State which violates Article 6 of the Convention.     The Court recalls that the operation of an immunity from action imposed by domestic courts in respect of damage caused by the negligence of public authorities may disclose a restriction on access to court contrary to Article 6 of the Convention (see Osman v. the United Kingdom judgment, op. cit. , §§ 138-139). In the Osman case ( op. cit. ) a restriction on liability in negligence arising out of an alleged failure of the police to protect the applicants from death and serious injury was found to disclose such a breach, where the applicants’ claims were struck out due to a public policy immunity attaching to the police in respect of their investigative and preventative functions. In the present case, the Court notes that the applicant’s claims in negligence against the prison authorities and Home Office were struck out as disclosing no reasonable cause of action. Though there is no written record of the judge’s reasons for doing so, the Court accepts the Government’s submissions that this was based, principally, on the lack of foreseeability or proximity, namely, that the killing of the applicant’s daughter was too remote and unforeseeable a consequence of the alleged negligence of the authorities in permitting the release of K.W. from prison on home leave, and that consequently no duty of care arose which those authorities could be found liable for breaching. This accords with the general principles set out in domestic case-law and discloses no operation of a specific immunity from liability on public policy grounds as was in issue in the Osman case.     Accordingly, the Court finds that the applicant cannot claim that she was denied access to court in the determination of any of her civil rights by the operation of an immunity or other bar. This part of the application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.   3.   Finally, the applicant has invoked Article 8 of the Convention, which guarantees, inter alia , the right to respect for private and family life, submitting that this provision is infringed by her inability to pursue civil proceedings. Having regard to its findings above under Articles 2 and 6 of the Convention, the Court finds that this part of the application is also manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.     For these reasons, the Court, unanimously,   DECLARES THE APPLICATION INADMISSIBLE.               S. Dollé               J.-P. Costa Registrar               President