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CA suggest no need for causation in HRA claims?

The Court of Appeal has given judgment in Sarjantson v The Chief Constable of Humberside Police [2013] EWCA Civ 1252, an important and interesting decision on the operation of police officers’ duties to protect citizens under the Human Rights Act 1998 (“HRA”).

 

Mr Sarjantson (“C”) was attacked and injured by a group of young men armed with baseball bats and bricks in the early hours of 9th September 2006.  Several members of the public made 999 calls to the police, describing the group as violent and dangerous and reporting that they were attacking various people.  The first time that C’s name was mentioned - as a victim of the attacks - was about seven minutes after the first 999 call.  The police (“D”) arrived, but only after a delay of some eleven minutes; this delay was later criticised in an internal police investigation.  The assailants were convicted of assault and violent disorder and sentenced to lengthy terms of imprisonment.

 

C alleged that D had violated his article 2 and/or 3 rights under the European Convention on Human Rights (“ECHR”), by failing to attend the scene of the attacks as quickly as they should. D responded by seeking to strike the claim out, arguing (a) that C was not – adopting the words of used in Osman v United Kingdom (2000) 29 EHRR 245 - an “identified individual or individuals” and the duty to protect under articles 2/3 therefore did not arise and/or (b) that even if D had attended as soon as possible, the assault on C would not have been prevented, as it occurred before D could reasonably have been present at the scene.

 

The circuit judge struck the claim out.  The CA has re-instated it, holding (a) that D’s duty to protect citizens under the HRA is not limited to identified individuals or groups but can extend to the public at large and (b) causation is not a necessary ingredient of a claim under the HRA, so that even if D’s earlier attendance would have made no difference C can still succeed.  As Lord Dyson MR put it: “A finding that a response would have made no difference may mean that there is no right to damages.  But it is not relevant to liability”.

 

The case seems to mark a significant extension of the scope of the HRA to provide redress for those injured by the criminal acts of third parties.  The fact that a duty to protect may arise under the HRA to the public at large may, for example, mean that the claimant in a case such as Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (the final victim of the “Yorkshire Ripper”), would now have a claim under the HRA (whereas a common law claim would fail on proximity).

 

And on causation the case seems to sit uneasily with Lord Brown’s remarks in Van Colle v Chief Constable of Hampshire Police [2009] 1 AC 225, in which His Lordship indicated that proving causation – albeit on the basis of the loss of a “substantial chance” of making a difference – was needed to establish a cause of action under the HRA (see paragraph 138).

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