2.1.2.4. The Decisions of the European Court of Human Rights

Public authority liability would probably not immediately strike one as an area of law to be exposed to the rigours of the new human rights law dimension.¹⁰⁴ Nonetheless, this is exactly what has occurred, due to the influence of two specific decisions, Osman v United Kingdom¹⁰⁵ and Z v United Kingdom¹⁰⁶

The European Court of Human Rights' (ECtHR) decision in Osman arose from an application of the Hill rule,¹⁰⁷ precluding actions against the police for alleged negligence in the investigation and suppression of crime. A teacher had become obsessed with his pupil, and proceeded to harass the boy, his family, and friends. Tragically, this course of events resulted in the teacher shooting and injuring two people, including the pupil, and killing two others. The police had been contacted on several occasions about the teacher's seriously aberrant behaviour, but failed to (p.72) act adequately upon the information they received. A claim in negligence against the police was struck out by the Court of Appeal¹⁰⁸ on the basis of the public policy considerations established in the earlier case of Hill.¹⁰⁹ The claim then proceeded to Strasbourg. The ECtHR found that the application of the Hill exclusionary rule in this case was contrary to the right of access to court enshrined in Article 6(1) of the European Convention on Human Rights (ECHR).¹¹⁰ The Court of Appeal in Osman had proceeded on the basis that the rule in Hill provided a watertight defence to the police. It was held that the application of the rule in this manner, without further enquiry into the existence of competing public interest considerations, amounted to an unjustifiable restriction on an applicant's right to have a determination on the merits of his claim in deserving cases. The court considered that domestic courts must examine ‘on the merits’ the weight of other public interest considerations which pull in the opposite direction, such as the gravity of the defendant's fault and seriousness of injury. Otherwise, ‘there will be no distinction made between degrees of negligence or of harm suffered or any consideration of the justice of a particular case’.¹¹¹

Surveying academic reaction to the Osman decision, the commentary was generally critical of the ECtHR's reasoning.¹¹² Certain commentators saw a jurisdictional problem with the ECtHR's decision in the sense that an essentially procedural protection had been transformed into a power to challenge the scope of substantive rights within contracting states, (p.73) rights which were not protected independently under the Convention.¹¹³ Others suggested that the court had misconceived the rules for determining duties of care in English law,¹¹⁴ or that the procedure of striking out claims at an early stage might itself be threatened.¹¹⁵ Gearty has suggested that ‘European lawyers’ were misled into thinking that the Hill exclusionary rule represented an immunity for public authorities due to the fact that they were used to ‘the notion of a general liability on the part of public authorities for wrongs done to third parties’.¹¹⁶ Broader concerns were also raised about the appropriateness of human rights law influence. Weir argued:

Nations should decide for themselves whether public funds should be directed to victims of past malfunction in public services or used to reduce the number of such malfunctions in the future…. In any case, to answer this question in terms of ‘human rights’ is frankly absurd.¹¹⁷

Writing extrajudicially, Lord Hoffmann was particularly hostile to the Osman decision, admitting that it filled him ‘with apprehension’.¹¹⁸ Categorizing the Court of Appeal's decision in Osman as one of an established line of cases denying financial compensation for claimants who had failed to receive a benefit from public services,¹¹⁹ he declared that the facts of Osman were ‘as far as one could imagine from basic human rights’. His Lordship considered that, under the cover of a provision ensuring a fair hearing, the ECtHR had in fact challenged the autonomy of the courts and Parliament of the United Kingdom to decide what were essentially social welfare questions involving budgetary limits and efficient public administration.¹²⁰

In their judicial role, however, judges were statutorily obliged under the Human Rights Act 1998 to take account of the ECtHR's interpretation of the convention rights.¹²¹ So how was account taken of this decision? Some members of the senior judiciary were openly critical of Osman in their judicial role. In Barrett, Lord Browne-Wilkinson admitted that he found the decision ‘extremely difficult to understand’,¹²² and described (p.74) the position of English law after that judgment as ‘very unsatisfactory’.¹²³ Otherwise, the Law Lords appeared somewhat reticent to give their view of Osman, despite the fact that the issue was extensively raised by counsel in a series of cases before the House of Lords,¹²⁴ and that the issue was clearly bubbling below the surface.¹²⁵

In the Court of Appeal, however, the judges were more expansive.¹²⁶ In S v Gloucestershire CC,¹²⁷ concerning two joined appeals in which claimants alleged that the local authorities had acted negligently in placing them with inappropriate foster parents and in failing properly to monitor their placements, May LJ read Barrett in the light of the European cases,¹²⁸ as entailing that it was ‘unlikely that claims of the kind presently before this court will be seen as non-justiciable or ones where it is not just and reasonable to impose a duty of care without a proper examination of the individual facts’. In Kent v Griffiths,¹²⁹ Lord Woolf took a pragmatic and largely positive view of Osman. Whilst initially cautioning that the Osman decision should not be allowed to affect the new procedural approach of dismissing cases at an early stage which had no real prospect of success, Lord Woolf identified positive consequences flowing from this case. His Lordship felt that Osman served to underline the dangers of taking a blanket approach to deciding duties of care. He observed that statements relating to duties of care should not be applied more widely and more rigidly than was in fact intended, and emphasized the importance of courts taking a more fact-sensitive approach to establishing duties of care, underlining that ‘[b]efore you can apply one case by analogy to another you need to be clear as to the facts to which you are applying it’.¹³⁰

Although it may be only the Court of Appeal which openly acknowledged the effects of the Osman decision, it is difficult to believe that Osman did not also have some influence on the House of Lords, in its shift (p.75) to a more liberal view of public authority liability.¹³¹ Indeed, the judgment of the ECtHR has been described as hovering like Banquo's ghost over their Lordships in Barrett.¹³² In one of the rare comments on the case in the House of Lords, Lord Browne-Wilkinson in Barrett, after having criticized the reasoning in Osman, indicated that one of the reasons for refusing to strike out the claim in Barrett was that otherwise the claimant would simply take his or her case to the ECtHR.¹³³

The effects of the Osman decision were remarked upon elsewhere. Lord Hamilton commented in a decision of the Outer House of the Court of Session, Gibson v Chief Constable of Strathclyde Police, that he thought the Osman decision might ‘lead to some reconsideration of the scope of the public policy immunity accorded to the police in some of the English decisions’.¹³⁴ The UK Government also accepted that Osman should have a substantive impact. In a submission to the Committee of Ministers of the Council of Europe, it anticipated that, as a result of the Osman decision, ‘the rule established by the Hill case would be applied with more circumspection in the future…. The government further considers that the courts will not fail to take into account the European Court's judgment in the Osman case…so as not to confer automatically a total immunity on the police, but rather make a judgment on the proportionality of the immunity sought, considering all the circumstances of the case.’¹³⁵ The Government also reassured the Committee of Ministers that a circular had been sent to public bodies advising them to exercise considerable caution before applying for striking-out in these cases.

The second important ECtHR decision is that in Z v UK.¹³⁶ Z v UK arose out of the House of Lords' decision in X (Minors) v Bedfordshire CC, (p.76) concerning the manner in which local authorities dealt with child abuse. It had been argued in X (Minors) that the local authority had failed to take children into care quickly enough and left them with abusive and neglectful parents for too long. The House of Lords struck out the claim in negligence on the basis that it was not fair, just, and reasonable to admit a duty of care.¹³⁷ When this case itself went to Strasbourg, the ECtHR concluded that the United Kingdom was in breach of Article 3 ECHR as the local authority had failed to provide the claimants with appropriate protection against serious long-term neglect and abuse, and was also in breach of Article 13 as the applicants had not been afforded an effective remedy for the breach of Article 3.

The ECtHR decided, however, that Article 6 had not been violated.¹³⁸ It was held that its own reasoning in Osman had to be ‘reviewed’ in the light of the ‘clarifications’ made by domestic courts that the fair, just, and reasonable criterion was indeed an intrinsic element of the duty of care. In X (Minors), the applicants were not prevented in any practical manner from bringing their claims before the domestic courts. The House of Lords had undertaken a careful balancing of the policy concerns at the fair, just, and reasonable level. The inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. The striking-out procedure did not per se offend the principle of access to court.

Before an analysis of the impact of these recent cases is undertaken, one preliminary point should be made. It should be noted that the decision in Z v UK is remarkable in that it provides some satisfaction to all parties to the litigation.¹³⁹ The applicants established the breach of important Articles of the Convention, and obtained significant compensation.¹⁴⁰ The Government can be satisfied by the fact that they avoided the breach of Article 6 ECHR, their main contention in the case.¹⁴¹ Likewise, those commentators who had been most vociferous in their critique of Osman will be pleased by this latest decision.¹⁴²

(p.77) In a similar manner, both the European Court and the English judiciary may also extract a measure of satisfaction from the overall developments on a broader level.¹⁴³ In its decision, the ECtHR pointed out that there had been an evolution in the tort of negligence as applied to public bodies, as witnessed by the decisions in Barrett¹⁴⁴ and W v Essex CC,¹⁴⁵ with a more cautious approach to striking out. Thus satisfaction may be derived by the European Court from the fact that this evolution can in part be attributed to the influence of the earlier decision in Osman. The English judiciary, on the other hand, may in turn be justified in considering that ‘their expressions of concern have in all probability contributed to the restrained interpretation of Osman’.¹⁴⁶