Information Note on the Court’s case-law 12

November 1999

Bromiley v. the United Kingdom (dec.) - 33747/96

Decision 23.11.1999 [Section III]

Article 2

Article 2-1

Life

Murder of applicant's daughter by prisoner on home leave: inadmissible

In June 1990 K.W. was convicted of kidnapping and sentenced to 30 months' imprisonment. A psychiatrist’s report addressed to the Parole Board just after his sentence stated tha t he was not suffering from any psychiatric illness but was a recidivist and an anti-social psychopath. At the beginning of 1991, he was allowed a period of home leave on two occasions. Prior to each of them he was examined by a medical practitioner. In Ju ne 1991 he was released on home leave again, but failed to return. The local police force were informed within four hours, in accordance with the Home Office guidelines, and his details were recorded on the Police National Computer and circulated to all po lice forces. In October 1991, however, he killed the applicant’s daughter. In 1994 the applicant initiated proceedings against the Home Office in respect of the psychological damage she had suffered. She relied on the alleged negligence of the authorities in releasing K.W. prematurely. In May 1995 the proceedings were struck out on application by the Home Office, but no record of the reasons for this decision was kept. The applicant alleged that her action was struck out on the basis of a settled line of au thority in English law that a public authority with a duty to detain offenders owes no duty of care at common law to protect the general public from injury by dangerous or violent offenders prematurely discharged or insecurely detained by them. On the othe r hand, the Government stated that the claim had been dismissed because neither the applicant nor her daughter had any reasonable prospect of satisfying the first two stages of the duty of care test, which were foreseeability of harm and proximity. Accordi ng to the Government,  the killing of the applicant’s daughter was too remote and unforeseeable a consequence of the alleged negligence of the authorities in permitting the release of K.W. from prison on home leave and, consequently, no duty of care arose which the authorities could be found liable for breaching. Finally, counsel advised that English law recognised no duty of care on the Home Office to the general public at large to protect them from the foreseeable consequences of a negligent failure to de tain or re-detain a convicted person on grounds of public policy, other than where the particular victim could have been identified before the event.

Inadmissible under Article 2: This provision imposes a positive obligation on the State to take appropriat e steps to safeguard the lives of those within its jurisdiction. The scope of the obligation depends on the circumstances of the case and notably on the operational choices made in terms of priorities and resources and the necessity of interpreting such an obligation in a way which does not impose an impossible or disproportionate burden on the authorities. In the instant case, there was no evidence that the authorities knew, or ought to have known, that K.W. was likely to commit a crime of violence if he w as released for a period of home leave. There was no medical diagnosis of mental illness indicating that K.W. posed a risk to life, and he had previously returned from two periods of home leave without any incident. There were no elements to show that, in the event of K.W.’s failure to return from home leave, the applicant’s daughter would be at foreseeable risk. Nor was it apparent that the authorities had failed to take any step, reasonably available to them, which would have secured K.W.’s capture before he committed a further crime. In the circumstances, the release of K.W. on home leave, shortly before the end of his sentence, did not disclose by itself a failure to protect the life of the applicant’s daughter: manifestly ill-founded.

Inadmissible under Article 6 § 1: The operation of an immunity from an action imposed by domestic courts in respect of damages caused by negligence of public authorities may disclose a restriction on access to court contrary to this provision. In the circumstances of this c ase, the applicant’s claims in negligence against the authorities were struck out as disclosing no reasonable cause of action. Although there is no written record of the judge’s reasons for doing so, the Government’s submissions that this was essentially b ased on the lack of foreseeability or proximity could be regarded as acceptable. It was in line with the general principles set out in domestic case-law and disclosed no operation of a specific immunity from liability on public policy grounds: manifestly i ll-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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