Lexploria

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 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 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

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 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 have therefore

an arguable cause that as between 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 would be a sort of Hungerford".

The applicants submit that on each of these 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. They also contend

that it would have been possible to arrange for Paget-Lewis to have

been subject to an emergency application or admission for assessment

under the provisions of the Mental Health Act 1956 and thus secured his

admittance to hospital.

85. The applicants also refer to the lack of any detailed records

made by the police as to steps taken or information received in the

case, which shows a casual and careless approach, inappropriate to an

investigation involving the protection of a child. The failure to keep

proper documentary records inevitably resulted in a situation where the

police officers responded to each incident as it occurred without the

benefit of a file of records against which to judge the offence in the

proper context. When the information was finally consolidated in

mid-December 1987, an attempt was made to arrest Paget-Lewis but this

was badly mishandled due to incompetent planning and execution. The

applicants further submit that Article 2 (Art. 2) requires a State to

afford a legal procedure for determining whether a victim's right to

life was afforded adequate protection and the exclusion of liability

for negligence by the police discloses a failure in legal protection.

86. 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 relation to the

investigation or suppression of crime. Protection by law is still

provided notwithstanding the exclusion of negligence actions against

the police since it applies only to a narrow category of cases and even

within that category it is not absolute but may be overridden by other

considerations.

87. 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, submitting 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. The Government deny that there was any failure by the

police to make contemporaneous notes on the investigation but that

despite extensive searches the Metropolitan Police Solicitors'

Department has been unable to trace such records that were brought into

existence. 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 Ahmed Osman.

General considerations

88. Article 2 (Art. 2) of the Convention, which safeguards the right

to life, ranks as one of the most fundamental provisions in the

Convention, and together with Article 3 (Art. 3) of the Convention

enshrines one of the basic values of the democratic societies making

up the Council of Europe. It must be interpreted in light of the

principle that the provisions of the Convention be applied so as to

make its safeguards practical and effective (Eur. Court HR, McCann and

others judgment of 27 September 1995, Series A no. 324,

paras. 146-147).

89. Article 2 (Art. 2) extends to but is not exclusively concerned

with intentional killing resulting from the use of force by agents of

the State. The first sentence of Article 2 para. 1 (Art. 2-1) also

imposes a positive obligation on Contracting States that the right to

life be protected by law. In earlier cases, the Commission considered

that this may include an obligation to take appropriate steps to

safeguard life (see e.g. No. 7154/75 Dec. 12.7.78 D.R. 14 p. 31). As

regarded any duty of protection in respect of violence or threats of

violence, the Commission held, in a case concerning the killing of the

applicant's husband by the Provisional IRA, that Article 2 (Art. 2)

could not give rise to a positive obligation on the part of the State

to protect from any possible violence and in a case where a person,

subject to the threat of terrorist violence, complained of the

withdrawal of a police bodyguard, the Commission held that Article 2

(Art. 2) could not be interpreted as imposing a duty on a State to give

protection of this nature, at least not for an indefinite period

(Nos. 9438/81, Dec. 28.2.83, D.R. 32 p. 190, and 6040/73 Coll. 44

p. 121).

90. As a minimum, the Commission considers that a Contracting State

is under an obligation to provide a framework of law which generally

prohibits the taking of life and to ensure the necessary structures to

enforce these prohibitions, including the provision of a police force

with responsibility for investigating and suppressing infringements.

While it cannot be a requirement of Article 2 (Art. 2) that a State

must necessarily succeed in locating and prosecuting perpetrators of

fatal or life-threatening attacks, the case-law of the Convention

organs has established a requirement that the investigation undertaken

be effective:

"The obligation to protect the right to life under this

provision, read in conjunction with the State's general duty

under Article 1 (Art. 1) of the Convention to 'secure to everyone

within their jurisdiction the rights and freedoms defined in

[the] Convention', requires by implication that there should be

some form of effective official investigation when individuals

have been killed as a result of the use of force by, inter alios,

agents of the State." (Eur. Court HR, McCann and others op. cit.

para. 161)

91. While effective investigation procedures and enforcement of

criminal law prohibitions in respect of events which have occurred

provide an indispensable safeguard and the protective effect of

deterrence, the Commission is of the opinion that for Article 2

(Art. 2) to be given practical force it must be interpreted also as

requiring preventive steps to be taken to protect life from known and

avoidable dangers. However, the extent of this obligation will vary

inevitably having regard to the source and degree of danger and the

means available to combat it. Whether risk to life derives from

disease, environmental factors or from the intentional activities of

those acting outside the law, there will be a range of policy

decisions, relating, inter alia, to the use of State resources, which

it will be for Contracting States to assess on the basis of their aims

and priorities, subject to these being compatible with the values of

democratic societies and the fundamental rights guaranteed in the

Convention. Thus, where an applicant alleged a risk to her life from

the threat of terrorist attack in Northern Ireland, her husband and

brother having been killed, the Commission considered that it was not

its task to consider in detail the appropriateness or efficiency of the

measures taken to counter terrorism and that the United Kingdom could

not be required by the Convention to take measures going beyond those

already being taken to protect the lives of the inhabitants in Northern

Ireland. It referred to the fact that the army strength had been

increased to 10 500 and that several hundred members of the security

forces had lost their lives in combating terrorism (No. 9348/81

op. cit.).

92. The extent of the obligation to take preventive steps may however

increase in relation to the immediacy of the risk to life. Where there

is a real and imminent risk to life to an identified person or group

of persons, a failure by State authorities to take appropriate steps

may disclose a violation of the right to protection of life by law. In

order to establish such a failure, it will not be sufficient to point

to mistakes, oversights or that more effective steps might have been

taken. In the Commission's view, there must be an element of gross

dereliction or wilful disregard of the duties imposed by law such as

to conflict fundamentally with the essence of the guarantee secured by

Article 2 (Art. 2) of the Convention.

Application to the present case

93. The Commission has examined, in light of the above

considerations, whether there has been a failure to comply with the

obligation to protect the lives of Ali and Ahmed Osman, firstly through

the alleged omissions of the police and, secondly, as a result of the

alleged lack of accountability of the police in domestic law.

94. As a preliminary point, it would observe that, while as a general

rule for a complaint to fall within the scope of Article 2 (Art. 2)

there must have been a loss of life, it is not excluded that acts or

events of a life-threatening character could properly be dealt with

under this provision, in particular where the threat is real and

immediate and the risk of death occurring is high (see mutatis

mutandis, Bahaddar v. the Netherlands, No. 25894/94, Comm. Report

13.9.96 pending before the Court). In the present case, the events

disclose that serious violence was inflicted on Ahmed and Ali Osman,

with an apparent intention of causing death, or reckless disregard as

to whether death occurred. In these circumstances, the Commission

considers the incident may be properly considered under Article 2

(Art. 2), it being inappropriate and artificial to examine the same

facts under one provision for Ali Osman, who tragically died, and under

other provisions (Articles 3 or 8) (Art. 3, 8) for Ahmed Osman, who,

by fortunate circumstance, did not.

As to the alleged failure of the police to take steps to protect

the lives of Ali and Ahmed Osman

95. The Commission recalls that the facts concerning the events

leading up to the shooting of Ali and Ahmed Osman are in dispute

between the parties in relation to the state of knowledge of the police

of events and the intentions of the police as expressed to the Osman

family and the school authorities. It regrets that this has not been

subject to a detailed factfinding exercise by the domestic courts,

which, it observes, is the subject of additional complaints by the

applicants.

96. The Commission has examined the submissions and materials of the

parties. It finds the following:

a. By mid-March 1987, the conduct of Paget-Lewis was a concern to

the school and it was known that he was showing a disturbing

attachment to Ahmed Osman and exhibiting worrying conduct in

relation to another boy, Leslie, including an admission that he

had followed Leslie home and was accusing him of deviant sexual

conduct, in a context of jealousy of the friendship with Ahmed.

Ali Osman was sufficiently worried about these developments to

express his wish for Ahmed to transfer to another school.

b. In March 1987, the school was in contact with the police on four

occasions. No record was made, or now exists, as to what

information was conveyed to the police. The Commission finds no

reason to doubt that the substance of events was passed on to the

police officer who attended the school. It is an element

indicating the seriousness with which the school viewed events

that they involved the police. Even though the school made no

request for steps to be taken and dealt with the developments as

a matter of internal school discipline, the Commission is

satisfied that the police must have been made aware of the

concerns of the school and the Osman family and the seriousness

with which they were regarded.

c. In the period March-April 1987, obscene graffiti appeared near

the school referring to Ahmed and Leslie; the files relating to

the boys were discovered to have disappeared from the school

office and Paget-Lewis changed his name to Paul Ahmed Yildirim

Osman. On 4 May 1987, the Head Master of the school had a meeting

with the police and the Commission is satisfied that in all

probability he informed the police of these developments. There

is an undated note from an ILEA official in which it is recorded

that the police intended to search Paget-Lewis' home and

requested to be informed if Ahmed was missing for more than an

hour and that Ahmed's father should be advised that the change

of name might be a device to enable him to remove the boy from

the country. A further note of 8 May 1987 referred to the police

investigating the missing files. While the Government state that

there is doubt as to what the police were told, the two police

officers having no recollection of being told of the missing

files or the graffiti, the Commission finds that in the absence

of any police notes of the interview, this is of dubious weight.

As to whether the police informed the school authorities that

they would carry out a search and requested to be told if Ahmed

went missing for an hour, the Commission recalls that the ILEA

notes are not based on direct contact with the police but on what

the school passed on to them from their contacts. It is not

improbable that during the meeting between the Head Master and

the two police officers, a range of possibilities were canvassed

and that these could have been inaccurately transformed into

undertakings or ascribed to the police. The Commission is

therefore not satisfied that at this stage the police had made

any commitment to carry out a search of Paget-Lewis' home or were

seriously concerned as to the possibility of any kidnapping.

d. From May-November, the Osman family were subject to a series of

vandalising attacks on their home and car, which could be

categorised as offences of criminal damage. The police were

informed of all these incidents. It appears that throughout this

period the only step taken by the police in response to events

was for a police officer PC Adams to make contact with Paget-

Lewis. It would therefore appear that the Osman family had

informed the police of their concern that Paget-Lewis was

involved. The date of the contact is not known. The police

officer made no detailed notes and no other records have been

traced. The Commission is unable to assess what might have

occurred in this interview. It considers that in the

circumstances little reliance can be placed on the statement of

Paget-Lewis himself who later stated to the police that he had

told PC Adams that he was in danger of doing something criminally

insane. Nor can it place weight on his other statements after the

tragic events that during this time he gave clear warnings that

he was about to do something terrible.

e. On 7 December 1987, Paget-Lewis drove his car into a van in which

Leslie Green was a passenger. This act of overt violence led the

police to take a number of steps within a short period of time.

Interviews were conducted with Leslie Green and his mother on

9 December, the Osman family on 15 December and with the Head

Master and Deputy Head Master on 16 December. Photographs were

taken of the graffiti.

f. Following a meeting by Paget-Lewis with two ILEA officials on

15 December, contact was made by ILEA with the police. From the

text of a telex, it appears that the police were told that Paget-

Lewis had made vague threats against the Deputy Head and that the

school authorities were very concerned. There is a dispute

between the parties as to what other information about the

exchange with Paget-Lewis was passed on to the police. The

statements later made by the two ILEA officers and the notes of

the meeting are concordant on the fact that he talked in a

disturbing, self-destructive manner. The only reference to his

alleged threat to commit a "Hungerford" massacre appears in one

ILEA officer's statement several months later. The notes taken

at the time refer to his stating that he would not do "a

Hungerford" at the school but would see the Deputy at home. This

would appear to be a more accurate record and tally with the fact

that the police took action in respect of having the house of the

Deputy watched casually by the local police. The Commission

agrees with the Government that there is no evidence that Paget-

Lewis made any direct or indirect threat against the Osmans or

that the police were informed of such. The evidence supporting

the assertion that the police undertook or promised protection

of the Osman family are two notes: an ILEA memorandum of

8 December which stated that families were being protected and

a note in the Head Master's diary following his meeting with the

police on 16 December, which is cryptic and unexplained. There

are no police records of what was said either to ILEA or at the

meeting to clarify matters. It would however seem unlikely that

the police referred to or promised police protection to the Osman

family by way of a constant police presence, particularly when

it is clear that such was never envisaged or given. The school

authorities may have received the impression that protection had

been arranged but it may be that this was based on re-assurances

by the police that the necessary measures were being taken,

namely, that enquiries were now being pursued actively, that a

casual watch had been placed on the Deputy Head's house and the

likelihood that an arrest was about to be made.

g. On 16 December 1987 DS Boardman took the decision to arrest

Paget-Lewis on suspicion of criminal damage. DS Boardman's

undated report stated that Paget-Lewis was believed by everyone

to be behind the graffiti and attacks on the Osman home but that

there was as yet no evidence. Nonetheless the Commission notes

that police must have taken the view that Paget-Lewis was

presenting sufficient threat that formal steps should be taken

against him.

h. The police attempted to carry out the arrest at Paget Lewis' home

on 17 December 1987 having found out his address from ILEA. When

he was absent they took no steps to discover his whereabouts at

school, where he was in fact teaching that day. From

18 December 1987, Paget-Lewis failed to appear at school, leaving

the area for a time. While ILEA, as requested by the police, had

sent a letter to him dated the same day putting him on notice

that the police wanted to talk to him, it is not established that

this letter in fact caused him to disappear.

i. From 18 December 1987 to March 1988, while Paget-Lewis' name was

placed in the Police National Computer in January 1988 as wanted

for criminal damage offences, no further active steps were taken

by the police to trace Paget-Lewis' whereabouts.

j. Paget-Lewis was seen near the Osmans' home on 1, 4 and

5 March 1988 by Leslie Green. Mrs Green contacted the police on

at least one occasion. There are no contemporaneous records to

support the assertion that she informed the police about Paget-

Lewis. If she had, it would seem probable that, in light of the

previous concern the police had shown in the case, the matter

would have come to the attention of DS Boardman and there would

have been a reaction of some kind. If, as appears most likely,

Mrs Green merely left a message that DS Boardman should call her

back, the Commission does not find it surprising that DS Boardman

would not be able to make the connection between a Mrs Green and

the Paget-Lewis case almost three months after the case had been

dormant and that accordingly no police response was forthcoming.

97. The Commission finds that the risk posed by Paget-Lewis to the

Osman family was not of such a nature or immediacy that the police

were, or should have been on notice, that their lives were in danger.

While there were acts of criminal damage against the Osman family which

could be characterised as a form of violence, it appeared that Paget-

Lewis' threats of violence were rather in connection with the Deputy

Head and his collision with a car involved Leslie Green. The Commission

recognises that the families, school authorities and ILEA were

increasingly worried as events developed and Paget-Lewis' behaviour

became more bizarre. Nonetheless, there is no factor which in the

Commission's opinion rendered it foreseeable with any degree of

probability that Paget-Lewis would carry out an armed attack on the

Osman family.

98. The police could perhaps have taken steps which may have led to

events turning out otherwise. If they had searched his accommodation,

they may have found evidence that he was involved in the graffiti or

acts of criminal damage and been able to take proceedings against him.

If they had acted more promptly in carrying out their intention to

arrest, or tried to trace him through hire-cars or credit companies

when he disappeared, they might have obtained a confession from him,

enabling minor charges to be brought. These are however hypothetical

considerations and would not, in any event, lead to a conclusion that

Paget-Lewis would have been subject to any form of custodial detention

or other measure which would have diverted him from his course of

vindictive persecution. While reference is made to the option of

seeking to obtain his admittance to hospital under the provisions of

the Mental Health Act, the Commission observes that Paget-Lewis had

already been seen on two occasions by an ILEA psychologist who had not

advised ILEA that he was suffering from a mental condition justifying

compulsory measures.

99. The failings to take additional investigative steps do not, in

the Commission's view, disclose any seriously defective response by the

police to the threat posed by Paget-Lewis as perceived at the time. As

regards the applicants' allegations that the police failed to keep

proper records of events as they developed, disclosing a lack of

appropriate care in a case potentially concerning risk to a child, the

Commission considers it regrettable that the police did not take notes

or preserve notes of meetings by police officers with school and ILEA

officials and Paget-Lewis himself. Nevertheless it does not find it

established that the inability to produce records of these meetings

prevented a proper assessment of the risk to the Osman family or posed

an obstacle to effective steps being taken.

100. The Commission finds therefore that the circumstances fail to

disclose fundamental disregard by the police of the duties imposed by

law in respect of the protection of life.

As to an alleged lack of accountability of the police in domestic

law

101. The Commission recalls that the applicants have complained of the

inability to bring proceedings for negligence against the police in the

courts, their action having been struck out on the basis that public

policy excludes actions against the police in matters relating to the

investigation and suppression of crime.

102. As to whether this exclusion of liability is compatible with the

requirement of Article 2 (Art. 2) that the right to life be protected

by law, the Commission recalls that it has been held that criminal

liability for acts may be required to secure respect for substantive

rights under the Convention (Eur. Court HR, X and Y v. the Netherlands

judgment of 26 March 1985 Series A no. 91, p. 11, paras. 22 and 33).

There are examples also where the possibility of pursuing civil

proceedings has been regarded as a significant element in assessing

whether the procedural elements of other substantive rights have been

respected (see e.g. No. 20357/92 Whiteside v. the United Kingdom of

7.3.94, D.R. 76-A p. 80 and Eur. Court HR, Air Canada judgment of

5 May 1995, No. 316, paras. 35-38). Further the Court has stated that

the question of any right to take civil proceedings for deaths

attributed to security forces would be more appropriately dealt with

under Articles 6 and 13 (Art. 6, 13) (McCann, op. cit. para. 160) but

did not exclude the possibility of issues arising under Article 2

para. 1 (Art. 2-1).

103. In the present case, the Commission would note that a separate

issue might arise under Article 2 para. 1 (Art. 2-1) where the state

of the law failed to accord respect to the right to life as guaranteed

under the Convention. However, the criminal law in the United Kingdom

prohibited the acts of violence carried out in this case, and the

perpetrator was duly tried and sentenced. Civil proceedings would also

have been possible in respect of establishing any liability under civil

law by the perpetrator of the crimes, and potentially any person who

failed in a duty of care to prevent foreseeable damage to the

applicants. The Commission is not satisfied that the exclusion of a

duty of care in civil negligence actions in relation to the police

which is limited to a specific area of operational discretion, namely,

in respect of the suppression and investigation of crime, demonstrates

any lack of protection to the right to life in the law itself.

CONCLUSION

104. The Commission concludes, by 10 votes to 7, that there has been

no violation of Article 2 (Art. 2) of the Convention.

D. As regards Article 8 (Art. 8) of the Convention

105. Article 8 (Art. 8) of the Convention provides as relevant:

"1. Everyone has the right to respect for his private

...life...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

106. The applicants have invoked this provision in respect of the

alleged failure of the police to protect them from persistent

harassment for over a year.

107. The Commission refers to its findings above that it has not been

established that the police failed in any positive obligation to

protect the lives of Ali and Ahmed Osman. As regards any positive

obligations on the State to protect the applicants' right to respect

for private life and home, the Commission notes that insofar as the

applicants refer to the acts of vandalism against their home and

property it was possible for them to pursue an injunction from the

courts to prohibit the tortious acts, failure to comply with which

might constitute a contempt for which committal to prison would be an

available sanction (see, mutatis mutandis, Whiteside v. the

United Kingdom, No. 20357/92 op. cit.).

108. Consequently, the Commission does not find that there has been

any interference with rights protected under Article 8 (Art. 8) in the

present case.

CONCLUSION

109. The Commission concludes, by 10 votes to 7, that there has been

no violation of Article 8 (Art. 8) of the Convention.

E. As regards Article 6 (Art. 6) of the Convention

110. Article 6 para. 1 (Art. 6-1) of the Convention provides, in its

first sentence:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law. ..."

111. 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 argue that the case-law

does not support the view that the exclusion is a component part of

negligence such that no "civil right" can be said to exist in domestic

law. Reference is made to cases which describe the exclusion as an

"immunity" which is a separate and independent ground which is not

reached unless there is a duty of care and as pursuing the public

policy of stopping cases against the police going to trial on the

merits.

112. The applicants 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 or firemen. The argument of prevention of diversion of

manpower from public service would apply equally to other proceedings

against the police or other public servants. They see no force in the

argument that a lack of immunity would lead to a detrimental result to

policing, since in this case defensive policing might have prevented

a tragedy. The fact that the immunity applies regardless of the

seriousness of the damage alleged or the foreseeability of the damage

indicates its disproportionate effect.

113. 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. The existence of negligence as a cause of action does not

establish a legal basis for a civil right without consideration of the

particular claim being made. A duty of care must be established as

existing, which depends not only on the foreseeability of damage and

proximity but additionally on whether it is fair, just and reasonable,

which element establishes that a duty of care is not owed by the police

in relation to matters of the investigation and suppression of crime.

114. The Government add that if Article 6 para. 1 (Art. 6-1) 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 of preventing harm to the effectiveness of

the police who might otherwise be hampered by a detrimentally defensive

approach to their functions or by their resources and time being

diverted into re-traversing old investigations in civil litigation.

This aim is pursued 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 where the police

have not voluntarily assumed responsibility for a particular person and

where there are no countervailing public policy considerations which

outweigh it. Further, the Government note that the applicants could sue

Paget-Lewis himself and apply to the Criminal Injuries Compensation

Board.

Concerning the applicability of Article 6 para. 1 (Art. 6-1) of

the Convention

115. The Commission recalls that Article 6 para. 1 (Art. 6-1) applies

only to disputes ("contestations") over rights and obligations which

can be said, at least on arguable grounds, to be recognised under

domestic law. It does not in itself guarantee any particular content

for "rights and obligations" in the substantive law of Contracting

States (cf. Eur. Court HR, James and others v. the United Kingdom

judgment of 21 February 1986, Series A no. 98, p. 46, para. 81;

Lithgow and others v. the United Kingdom judgment of 8 July 1986,

Series A no. 102, p. 70, para. 192). It is also established case-law

that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims

that an interference with his "civil rights" is unlawful the right to

submit that claim to a tribunal satisfying the requirements of that

provision (Eur. Court HR, Le Compte, Van Leuven and De Meyere judgment

of 23 June 1981, Series A no. 43, p. 20, para. 44). The claim or

dispute, however, must be of a "genuine and serious nature"

(cf. Eur. Court HR, Benthem judgment of 23 October 1985, Series A

no. 97, p. 14, para. 32). Furthermore, in the "contestations" or

disputes contemplated by Article 6 para. 1 (Art. 6-1) it may be the

actual existence of a "civil right" which is at stake (e.g. Eur. Court

HR, Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A

no. 93, para. 55).

116. In order to establish a claim in civil proceedings, an applicant

must generally satisfy a number of conditions: these may be of a

procedural nature (time-bars, personal capacity to act, formal

requirements) and of a substantive nature (i.e. that the ingredients

of the right claimed are proved in the particular case). In the former

category, the Convention organs have treated the effect of the

condition as a restriction on access to court which must be justified

in terms of the Ashingdane criteria (see below para. 124).

117. As regards the latter category, the approach has been to view a

limitation on the content of the right not as concerning a bar on

access to court, but rather as indicating a lack of legal basis of the

right in domestic law, in respect of which Article 6 para. 1 (Art. 6-1)

does not apply. Whether a defence, immunity or exclusion of liability

which takes effect in defined circumstances falls within the latter

category is a difficult question. In Ashingdane itself, the Court found

it unnecessary to decide if exclusion of liability in civil proceedings

which might otherwise lie in respect of acts done in pursuance of the

Mental Health Act provisions defined the content of the right or

imposed a restriction on access. In Fayed (Eur. Court HR, Fayed v. the

United Kingdom judgment of 21 September 1994, Series A no. 294-B), the

Court found it unnecessary to decide if the immunity or privilege in

defamation delimited the content of the right to reputation under

English law or, as the Commission had found, acted as a limitation on

the right to bring defamation proceedings. In Tinnelly and McElduff

(Nos. 20390/92 and 21322/93, Comm. Report 8.4.97, pending before the

Court), where an Act conferring rights against discrimination in

employment did not apply where an act was done for the purpose, inter

alia, of safeguarding national security, the Commission found that the

serving of a certificate by the Secretary of State as conclusive

evidence that national security applied conferred a form of immunity

from action and blocked access to court.

118. On the other hand in Powell and Rayner (Eur. Court HR, judgment

of 21 February 1990, Series A no. 172), where a statute provided that

nuisance and trespass would not lie in respect of the ordinary

incidents of flights of aircraft which conformed with reasonable height

requirements and applicable navigation regulations, the Court found

that as a result of this exclusion of liability the applicant

houseowners could not claim to have a substantive right under English

law to obtain relief for exposure to aircraft noise in those

circumstances. Legislative exclusion of the right of prior option on

purchase in respect of the expropriation of shares in the applicants'

case was not found to raise issues of access to court (No. 14324/88,

Dec. 19.4.91, D.R. 69, p. 227) nor rejection on formal grounds of a

claim for compensation by the applicant seller of land on refusal of

a permit for sale to the buyer, where his claims relied on

expropriation provisions which had been found by the courts to have no

applicability in his case (No. 12810/87, Dec. 18.1.89, D.R. 59 p. 172).

119. The case-law nonetheless identifies the important principle

protected by Article 6 para. 1 (Art. 6-1) that civil claims must be

capable of being submitted to a judge (Eur. Court HR, Golder judgment

of 21 February 1975, Series A no. 18, para. 35). Arbitrary action by

a Contracting State to do away with its courts or remove their

jurisdiction to determine certain classes of civil actions and entrust

them to organs dependent on the Government would be incompatible with

Article 6 para. 1 (Art. 6-1) (Golder loc. cit.; Ashingdane v. the

United Kingdom, Comm. Report 12.5.83, para. 93). This consideration has

been held to apply by the Commission not only to procedural limitations

but also in respect of what was considered to be a substantive immunity

from liability, ie. where a soldier injured in an accident was barred

by legislative provisions from making a claim in tort against the

officer who was driving and the Ministry of Defence (Dyer v. the United

Kingdom, No. 10475/83, Dec. 9.10.83, D.R. 39 p. 246). In that case, the

Commission examined whether there had been an arbitrary limitation of

the applicant's civil claims as a result of the statutory exclusion in

liability. The Court also had regard to this principle in the Fayed

case (op. cit. para. 65):

"... it would not be consistent with the rule of law in a

democratic society or with the basic principle underlying article

6 para. 1 - namely that civil claims must be capable of being

submitted to a judge for adjudication - if, for example, a State

could, without restraint or control by the Convention enforcement

bodies, remove from the jurisdiction of the courts a whole range

of civil claims or confer immunities from civil liability on

large groups or categories of persons."

120. In Fayed (op. cit. para. 67), the Court also commented that

whether or not a limitation is procedural or substantive is not always

an easy matter to trace and may appear to be a question of legislative

technique as to whether the limitation is expressed in terms of the

right or the remedy.

121. In the present case, the limitation has been imposed by the

courts, not the legislature, in their interpretation and development

of the common-law based tort of negligence. As the arguments of the

parties show (paras. 111-114 above), immunities of this kind may be

expressed in either procedural or substantive terms. The Commission

considers that the distinction becomes unhelpful in such circumstances.

There may be cases where a claim clearly has no basis in domestic law,

or there has been a legislative intervention which, as in Powell and

Rayner, defines the act or conduct in respect of which liability

arises. Once it is apparent however that the applicant is relying on

a right which exists in domestic law it is not decisive for the

applicability of Article 6 para. 1 (Art. 6-1) that because of the

operation of a defence, privilege or immunity in favour of a particular

defendant the action is inevitably doomed to failure.

122. The Commission is of the opinion that the following factors are

significant in this case:

- negligence as a cause of action is framed in general terms;

- until the case of Hill in 1989 it was not established that the

general principles of foreseeability and proximity would not

apply in the ordinary way in determining whether the police could

owe a duty of care to a particular person;

- the rejection of the applicants' case in light of Hill was based

purely on considerations of public policy;

- the exclusion of liability is not principally based on

re-qualifying conduct as falling outside the notion of negligence

or as defining the elements of the right but rather operates to

protect a particular group of defendants from suit.

123. Consequently, the Commission finds that the applicants' claim

against the police in negligence was arguably based on an existing

right in domestic law. The courts' development of an immunity for a

particular group of defendants, the police, when acting in a particular

capacity, may be equated to a bar to the applicants' action in this

case and as such amounts to a restriction on their access to court in

the adjudication of their civil claims.

Compliance with the requirements of Article 6 para. 1 (Art. 6-1)

124. The relevant principles to be applied in cases of limitations on

access to court are established as follows:

"(a) The right of access to the courts secured by Article 6

para. 1 (Art. 6-1) is not absolute but may be subject to

limitations; these are permitted by implication since the right

of access 'by its very nature calls for regulation by the State,

regulation which may vary in time and in place according to the

needs and resources of the community and of individuals'.

(b) In laying down such regulations, the Contracting States

enjoy a certain margin of appreciation, but the final decision

as to observance of the Convention's requirements rests with the

Court. It must be satisfied that the limitations applied do not

restrict or reduce the access left to the individual in such a

way or to such an extent that the very essence of the right is

impaired.

(c) Furthermore, a limitation will not be compatible with

Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate

aim and if there is not a reasonable relationship of

proportionality between the means employed and the aim sought to

be achieved."

(Eur. Court HR, Lithgow and Others v. the United Kingdom judgment

of 8 July 1986, Series A no. 102, para. 194 citing Ashingdane

v. the United Kingdom op. cit. para. 57).

Legitimacy of the aims pursued by the limitation

125. The Commission recalls that the exclusion of liability of the

police in the investigation and suppression of crime is stated by the

Government and the domestic courts to be based on considerations of

maintaining the efficacy of the police by avoiding "defensive policing"

and preventing diversion of resources. It accepts that this may be

considered a legitimate aim.

Proportionality of the means employed

126. The Commission notes that the exclusion of liability of the

police is, first of all, limited to alleged negligence in the exercise

of their functions in the investigation and suppression of crime. It

appears that the police remain liable for damage attributable in the

exercise of other functions, whether from failure to take steps to

protect property or life in operational situations or failure to take

care of persons under their responsibility. While as the Government

point out this indicates that there is no blanket immunity to the

police, the Commission observes that the liability to suit of the

police in other areas is not considered as impacting negatively on

their effective functioning. The reference to "defensive policing"

resulting from the liability of suit for failure to prevent crime

appears to reflect the concern that police would alter their procedures

with a view to protecting themselves from actions for negligence. It

is not readily apparent, where the basis of negligence in domestic law

is liability for failure to take reasonable care to prevent foreseeable

damage, that action by the police to respond to these eventualities

would be detrimental to their effective functioning. Nor can the

argument of the impact on resources be of material significance in

itself since the exclusion of liability of public servants from civil

claims on the grounds of costs is difficult to reconcile with the rule

of law.

127. The applicants have also highlighted the fact that arguments of

use of resources and impact of litigation on effective functioning are

not utilised in the context of other crucial public services, such as

the medical profession and firefighters. The Commission has considered

whether the role of the police in the investigation and suppression of

crime is such as to distinguish it from other areas of public service,

where the right to pursue civil claims for damages is regarded as

outweighing any effect on, for example, resources or efficiency. While

the prevention of crime is a task less immediately confined in time and

place than those habitually performed by doctors and firemen rendering

it to a large degree unpredictable and subject to the influence of a

multitude of external and uncontrollable factors, the Commission is not

persuaded that this is a convincing argument on which to found an

exclusion of all liability, whatever the circumstances.

128. The Commission recalls that in the leading case of Hill (see

Relevant domestic law and practice, paras. 73-75), the grounds for

rejecting the applicant's claims of police negligence were not only the

exclusion on public policy grounds but also the consideration that

there was an insufficient proximity between the Yorkshire Ripper and

the victim, such as to reveal that she was at any more risk from him

than any other young female and thus the police could not be said to

owe her a duty of care in respect of their failure to apprehend him.

It would appear that in the vast majority of cases of crime the link

between a potential perpetrator of a crime and the future victim will

rarely be of such concrete kind that the police could anticipate that

their failure in investigation would be likely to result in particular

damage or injury occurring. Before the Commission, it has not been

established that the conduct of the police was in violation of the

standards imposed by Article 2 (Art. 2) of the Convention. However, the

applicants claim in terms of domestic law that the police were in a

relationship of proximity with the applicants and their family such as

to render them liable for the foreseeable damage which occurred. They

were however denied the opportunity of establishing the factual basis

of their claims in adversarial proceedings due to the operation of the

immunity.

129. The Commission has given weight to the applicants' argument that

the right to life is of such paramount importance that an immunity

which does not distinguish between negligence with trivial effects and

that with catastrophic results is disproportionate. It is not persuaded

that the possibility of suing Paget-Lewis as the person directly

responsible for the injury or of applying for compensation to the

Criminal Injuries Compensation Authority mitigates the applicants'

inability to proceed against the police, the essence of their claim

relating to the alleged circumstances that the applicants placed

reliance on the police to protect them against a known threat and the

police misled, and neglected their duty towards, them.

130. The Commission concludes that the application of the exclusion

of liability in this case operated in a disproportionate manner to

restrict the applicants' access to court.

CONCLUSION

131. The Commission concludes, by 12 votes to 5, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

F. As regards Article 13 (Art. 13) of the Convention

132. Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

133. The applicants submit that they have an arguable claim that the

obligation to protect life under Article 2 (Art. 2) has been violated

by the police and thus should enjoy the right to an adjudication on the

merits of this issue by a national authority with the possibility to

provide redress. They submit that the possibility to obtain ex gratia

payment from the Criminal Injuries Compensation Authority does not

afford a right to a remedy or redress in respect of their complaint

against the police. Similarly the possibility to sue Paget-Lewis or the

ILEA doctor was not capable of addressing the central question on which

the application is based, namely, whether the death of Ali Osman and

injury to Ahmed Osman could have been prevented if the police had acted

adequately and appropriately.

134. The Government submit that in the circumstances of this case the

applicants have no arguable claim of a violation of Article 13

(Art. 13) such that they can claim a right to an effective remedy in

respect of those matters. Even assuming there was an arguable claim,

they refer to their arguments which explain the justification for the

immunity to the police under Article 6 (Art. 6) and submit that the

real and serious public policy reasons must also be taken into account

under Article 13 (Art. 13), otherwise the national law would be

required to provide a remedy against the police, notwithstanding the

harm which would be caused, inter alia, to the effective protection of

others. In these circumstances, the opportunity to sue Paget-Lewis and

apply for criminal injuries compensation provides remedies which are

as effective as can be given the serious justification for the "police

immunity".

135. The Commission recalls its findings above (para. 131) that there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Where questions of civil rights and Article 6 (Art. 6) arise it is not

necessary to make a separate examination of the case under Article 13

(Art. 13) of the Convention "because its requirements are less strict

than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1)"

(Eur. Court HR, R. v. the United Kingdom judgment of 8 July 1987,

Series A no. 121, p. 126, para. 90 amongst other authorities).

CONCLUSION

136. The Commission concludes, by 12 votes to 5, that no separate

issue arises under Article 13 (Art. 13) of the Convention.

G. Recapitulation

137. The Commission concludes, by 10 votes to 7, that there has been

no violation of Article 2 (Art. 2) of the Convention (para. 104).

138. The Commission concludes, by 10 votes to 7, that there has been

no violation of Article 8 (Art. 8) of the Convention (para. 109).

139. The Commission concludes, by 12 votes to 5, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention

(para. 131).

140. The Commission concludes, by 12 votes to 5, that no separate

issue arises under Article 13 (Art. 13) of the Convention (para. 136).

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTLY DISSENTING OPINION OF MR. S. TRECHSEL,

JOINED BY MM. E. BUSUTTIL, A. WEITZEL, J.-C. GEUS,

I. CABRAL BARRETO AND I. BÉKÉS

I regret that in the present case I cannot agree with the

majority in finding that there has been no violation of Article 2 of

the Convention. In my view, there was such a large number of extremely

worrying signals that the half-hearted efforts of the police to

exercise control over Paget-Lewis denote a lack of protection

incompatible with the obligation "to secure" the applicants' right to

life.

For the relevant facts I can refer to the summary set out in

para. 96 of the Report. Of course, it is not enough to find that, with

the benefit of hindsight, it was abundantly clear that there existed

a very serious danger of Paget-Lewis becoming lethally violent. Still,

even ex ante it is very difficult to understand the relative unconcern

of the police.

First, I am struck by the degree of negligence in the management

of informations. It appears that there was no file in which every event

concerning the situation was mentioned and no efforts seem to have been

made to complete such a file and to follow the course of events

closely.

Second, I cannot help noticing a certain inconsistency in the

behaviour of the police. At one point it was decided to arrest Paget-

Lewis. He was not found at home. A brief inquiry with the ILEA would

no doubt have disclosed the fact that he was teaching. Yet, no such

inquiry was made. Subsequently Paget-Lewis disappeared - it may well

be that he found out about the attempt at arresting him and was warned

thereby.

Third, I find it difficult to understand why no efforts were made

to find evidence as to the various acts of vandalism which were most

probably committed by Paget-Lewis. Establishing whether he was in fact

the person who had committed them would have further enhanced his

dangerosity.

Fourth, the fact that Paget-Lewis changed his name to Osman

strongly indicated that he was totally obsessed.

Fifth, I attach particular weight to the fact that, on

7 December 1987, Paget-Lewis drove his car on purpose into a van in

which Leslie Green was a passenger. This is, in my view, a highly

alarming behaviour which betrays a complete loss of emotional control

over explosive feelings and desperate aggressivity and the act in

itself also constituted a very dangerous offence.

Sixth, I am not impressed with the fact that an ILEA-psychologist

did not consider Paget-Lewis as dangerous; in my view it was obvious

that at the very least he had serious psychological of not psychiatric

troubles which called for a very careful examination.

Seventh, I am not impressed either with the argument that Paget-

Lewis' aggressiveness was not only directed against the applicant's

family. As long as he was dangerous, and I see no reason which would

ever, after March 1987, have permitted to assume anything else, he

certainly constituted a danger also, if not in the first place, to

Ahmed and Ali Osman.

All in all, and the above list is by no means exhaustive, this

case, presents an extraordinary multitude of signals from which it was

obvious that Paget-Lewis constituted a serious danger to the

applicants' lives.

In my view this danger fave raise to a duty, on behalf of the

authorities, in particular the police, to protect potential victims,

including in particular the applicants. I accept that it was not

poxssible to set up a permanent protection of the endangered persons

by body-guards. I am quite aware that such a protection necessitates

an enormous efforts and is also very costly. However, it would have

been possible, in the present case, to concentrate on the source of the

danger, a single person who does not seem to have shrewdly attempted

to conceal his whereabouts.

The question then arises as to whether seriously watching over,

probably also arresting Paget-Lewis would have saved the applicants.

The majority, without making it explicitly clear, apply a test of

causation which I cannot follow. They seem to assume that, in order to

find a violation of Article 2 due to failure to "secure" the life of

the applicants, a strict link of causation must be established, a

conditio sine qua non. Of course, as the responsability due to omission

is at issue, it would have to be a conditio cum qua non which would be

called for: Would the result not have happened if the police had taken

the necessary steps?

However, this is not a realistic test. In fact, no "real",

factual link of causation can ever be established between an omission

and a result - ex nihilo nihil fit. We can argue only by way of

hypotheses. Here, two tests may be applied. The first one, a test of

probability, would mean that the link is established if there is a very

high probability, bordering on security, that the measures of

protection which were not taken would have avoided the result. I tend

to think that even in applying this test it may be said that arresting

Paget-Lewis, establishing his authorship of the acts of vandalism,

carefully examining his dangerousness etc. would have averted the fatal

shootings.

But I propose a different test, a test which is less strict and

which I would reject if criminal responsability is at issue, but which

I consider called for where the protection of human rights is under

examination. I am referring to the test of "increase of risk".

Responsability is established, under this test, as soon as it can be

said that the action called for would have considerably diminished the

risk of the result, in other words, if the omission considerably

increased that risk.

In the present case, I have no doubts that the answer must be

positive and I therefore reach the conclusion that there has been a

violation of Article 2 due to the fact that the authorities did not

take the necessary steps to secure the lives of the applicants.

As far as Article 8 is concerned I have voted against the

conclusion that there has been no violation because in view of my

opinion on Article 2 no separate issue arises under Article 8.

(Or. English)

PARTLY DISSENTING OPINION OF MR. L. LOUCAIDES

I regret that in the present case I cannot agree with the

majority in finding that there has been no violation of Article 2 of

the Convention.

In my view the duties imposed under Article 2 of the Convention

as regards the right to life include the obligation to provide for and

to take preventive measures through the appropriate authorities, in

this case the police, to avert every real danger to human life in all

those cases where concrete evidence, signalling such danger comes to

the knowledge of the authorities.

In this particular case several pieces of evidence, if taken

together and assessed properly, were clearly giving a signal that

Paget-Lewis was a deranged person with perverse tendencies capable of

becoming dangerously violent. The following pieces of evidence were

indicative of the problem:

- Paget-Lewis was employed as a teacher at the school attended by

the second applicant, a boy called Ahmed Osman, then

14 years old. By mid-March 1987 the conduct of Paget-Lewis was

a concern to the school and it was known that he was showing a

disturbing attachment to Ahmed Osman.

- Paget-Lewis was also exhibiting worrying conduct in relation to

another boy at the school, Leslie Green, accusing him of deviant

sexual practices and spreading rumours to that effect. This was

done in a context of jealousy of the friendship of Leslie with

Ahmed. Paget-Lewis had followed Leslie home from school. Ali

Osman was sufficiently worried about these developments to

express his wish for Ahmed to transfer to another school.

- In March 1987 the school was in contact with the police on four

occasions.

- There followed the change of name of Paget-Lewis to Paul Ahmed

Yildirim Osman and the disappearance from the school office of

the files of the boys. The police were informed of these

developments.

- From May-November, the Osman family were subject to a series of

vandalising attacks on their home and car, which could be

categorised as offences of criminal damage. The police were

informed of all these incidents.

- The Commission was satisfied that the police must have been aware

of the concerns of the school and the Osman family and the

seriousness with which they were regarded.

- On 7 December 1987, Paget-Lewis drove his car on purpose into a

van in which Leslie Green was a passenger.

- Also in December 1987 the police were told that Paget-Lewis had

made vague threats against the Deputy Head of the school and that

the school authorities were very concerned.

The deranged personality of Paget-Lewis should be obvious. This

coupled with his perverse interest towards Ahmed Osman and the

incidents which followed should have been considered as a sufficient

alarm necessitating a close study and watch of the case by police with

a view to taking the necessary action in time in order to secure the

safety of the Osman family and those persons affected by Paget-Lewis's

relevant perversions and obsessions.

Yet, the police did not give to the case the attention it

deserved. They did not keep a close watch of Paget-Lewis, as a

suspect, in the exercise of their duty to prevent the commission of

crimes. Moreover, there is no convincing evidence that the police

tried to investigate properly his bizarre behaviour or even draw his

attention to the fact that his activities were the subject of concern

to the police who were keeping the situation under observation. They

did not even take effective steps to implement a decision to arrest

Paget-Lewis which decision was apparently taken because the police were

convinced that he was presenting sufficient threat justifying his

arrest.

Any who reads as a whole the relevant information of this case

which was within the knowledge of the police has no difficulty to come

to the conclusion that the police should have acted in a quicker, more

concrete and effective way to prevent Paget-Lewis from putting into

danger the lifes of those who eventually were killed by him. Here, it

might be interesting to recall what Paget-Lewis, himself, said when he

was arrested after such killings:

"Why didn't you stop me before I did it. I gave all the warning

signs."

I attach particular importance to the fact that the police did

not keep or maintain proper records of the incoming relevant

information in this case. Such records would have certainly made it

possible to follow the developments of the case which when considered

as a whole and assessed properly would have led to effective,

preventive measures securing the safety of those endangered by the

potentially violent obsessions of Paget-Lewis.

Therefore, I find that in so far as the police authorities of the

respondent Government have failed to take the necessary preventing

measures in order to secure the life of the tragic victims in this case

the respondent Government has acted in breach of Article 2 of the

Convention.

(Or. English)

PARTLY DISSENTING OPINION OF MR. N. BRATZA,

JOINED BY MRS. G.H. THUNE, MRS. J. LIDDY,

MM. P. LORENZEN AND K. HERNDL

I share the opinion and reasoning of the Commission that there

has been no violation of Article 2 or Article 8 of the Convention in

the present case. However, I am unable to agree with the majority that

the facts disclose a violation of Article 6 para. 1 of the Convention

on the grounds that the exclusion of liability of the police operated

in a disproportionate manner to restrict the applicants' access to

court.

As is noted in the Report the Government's principal contention

in respect of the applicants' complaint under Article 6 is that the

Article is inapplicable since the Court of Appeal in the present case

concluded that the applicants had no right recognised under domestic

law to claim damages against the police. It is argued that, in order

to establish the existence of a duty of care in domestic law giving

rise to a cause of action in negligence, it is necessary not only to

establish the elements of proximity of relationship and foreseeability

of damage but additionally to show that in the particular circumstances

of the case it would be fair, just and reasonable to impose such a

duty. It is accordingly contended by the Government that the exclusion

of liability of the police in matters related to the investigation and

suppression of crime operates not as a procedural bar to access to

court but as a limitation on the substantive right recognised under

English law.

The majority of the Commission rejected this argument, concluding

that even though framed as a substantive element of the tort, the

domestic courts' development of an immunity for a particular group of

defendants - in this case, the police - may be equated to a procedural

bar to the applicants' proceedings in negligence and as such amounts

to a restriction on their access to court in the adjudication of their

civil claims.

I have not found it necessary finally to determine whether or not

the applicants' claims were based on civil rights recognised under

domestic law since, even assuming Article 6 to be applicable in the

present case, the requirements of that provision were in my view not

violated.

The relevant principles to be applied in cases of limitations of

access to court are summarised in paragraph 124 of the Report. Such

limitation must pursue a legitimate aim, must be proportionate to the

aim sought to be achieved and must not restrict or reduce the access

left to the individual in such a way or to such an extent that the very

essence of the right is impaired.

In striking out the applicants' claim, the Court of Appeal found

the case to fall squarely within the decision of the House of Lords in

Hill v. Chief Constable of West Yorkshire [1989] A.C. 53, in which the

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 were set out.

The House of Lords, in the leading judgment of Lord Keith,

expressly acknowledged that the potential existence of liability in

negligence may in many instances be in the general public interest as

tending towards the observance of a higher standard of care in the

carrying out of various types of activity. However, it was considered

that the general sense of public duty which motivated police forces was

unlikely to be appreciably reinforced by the imposition of such

liability so far as concerned their function in the investigation and

suppression of crime. It was the view of the House of Lords that, on

the contrary, in some instances the imposition of liability might lead

to the exercise of a function being carried on in a detrimentally

defensive frame of mind.

The House of Lords went on to observe that 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

grounds that they had failed to catch a 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, others would be likely to enter deeply

into the general nature of a police investigation:

"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 a 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."

While contrary views may be held as to the justification for

excluding the tortious liability of the police in such cases, it cannot

in my view be said that the conclusion of the House of Lords that such

limitation is necessary for maintaining the efficacy of the police, by

avoiding defensive policing and preventing the diversion of resources,

is arbitrary or unreasonable. Indeed the difficulties envisaged by the

House of Lords are in my view well illustrated by the facts of the

present case. The Statement of Claim in the domestic proceedings

alleged numerous failures on the part of the police in the handling of

the case, including a failure to apprehend Paget-Lewis on

17 December 1987 or prior to the shootings; a failure to interview him;

a failure to search his home; a failure to charge Paget-Lewis with any

offence more serious than driving without due care and attention; a

failure to exercise the powers to detain Paget-Lewis on the grounds of

mental illness; and a failure to alert Paget-Lewis that the police were

looking for him. These allegations would involve an investigation not

only into issues of fact but into acutely difficult questions of policy

and discretion on the part of the police, faced as they were with a

situation which could as easily be exacerbated as defused by any

inappropriate action by them.

In the opinion of the majority of the Commission it is accepted

that the exclusion of liability of the police may be considered as

pursuing a legitimate aim. It is further accepted that, as evidenced

by the cases referred to in paragraphs 76-80 of the Report, the

exclusion confers no blanket immunity on the police, limited as it is

to alleged negligence in the exercise by the police of their functions

in the investigation and suppression of crime.

The conclusion of the majority that the exclusion of liability

was in the present case disproportionate to the legitimate aim served

is based on three principal grounds: (1) the claimed absence of any

convincing argument that an action in negligence would be detrimental

to the effective functioning of the police, particularly having regard

to the fact that such an argument is not utilised to exclude the

liability of other crucial public services, such as the medical

profession and firefighters; (2) the claim that the removal of the

immunity would not result in a flood of actions against the police

since in the vast majority of cases the line between a potential

perpetrator of a crime and the future victim would not be of such a

concrete kind that the damage or injury would be the foreseeable result

of a failure of investigation; and (3) the alleged disproportionate

nature of an immunity which fails to distinguish between negligence

with trivial effects and that with catastrophic results, such as the

loss of life.

None of these considerations is in my view sufficient to suggest

a lack of proportionality between the exclusion of tortious liability

of the police and the aim thereby sought to be achieved. As to the

comparison between the police and other public services, the role of

the police in the prevention of crime is, as acknowledged by the

majority of the Commission, significantly different in nature from that

of the firefighter or medical practitioner, involving as it does the

making of assessments about human conduct which is to a large degree

unpredictable and influenced by numerous external, uncontrollable

factors, and the taking of policy decisions in the light of such

assessments.

As to the second ground relied on by the majority of the

Commission, while it may be true that it will be a comparatively rare

case in which a plaintiff is able to show a sufficient degree of

proximity and foreseeability to establish the foundations of a claim

in negligence against the police, this does not in my view undermine

the reasoning of the House of Lords as to the need for a general

exclusion of tortious liability of the police in matters relating to

the investigation and suppression of crime.

As to the third ground relied on, having regard to the special

considerations affecting the role of the police, I do not find it

unreasonable or arbitrary that the domestic courts have based the

exclusion on the character of the police role without differentiating

between cases by reference to the seriousness of the damage alleged to

have resulted.

The applicants in the present case complain of a violation of one

of the most fundamental rights guaranteed by the Convention - the right

to life. It is true that, in consequence of the decision of the House

of Lords, as applied to their case by the Court of Appeal, they have

been denied the right to an examination by the domestic courts of the

actions of the police leading up to the death of Ali Osman with a view

to obtaining an award of damages against the police in respect of the

death. Nevertheless, it is I consider of importance that the

applicants were not thereby left without any remedy. As noted by the

majority of the Commission, an action lay against Paget-Lewis as the

person directly responsible for causing the death. More importantly,

a claim lay for an award of compensation for the death under the

Criminal Injuries Compensation Scheme, which was expressly set up for

the purpose of compensating the victims of crimes of violence.

In these circumstances, I consider that the exclusion of tortious

liability of the police in the present case was not disproportionate

and did not restrict or reduce access to court in such a way or to such

an extent that the very essence of the right guaranteed by Article 6

was impaired.

For substantially the same reasons, namely that remedies were in

my view available to the applicants under domestic law in respect of

the deprivation of life of Ali Osman, I have concluded that there was

no violation in the present case of Article 13 of the Convention.

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OSMAN v. THE UNITED KINGDOM

OSMAN v. THE UNITED KINGDOM