CONCURRING OPINION OF JUDGE FOIGHEL

I agree with the conclusion of the majority that there has been no violation of Article 2 of the Convention in this case.

I also agree with that there has been a violation of Article 6 § 1 on account of the disproportionate impact of the restriction on the applicants’ rights of access to a court guaranteed by that Convention provision (see paragraph 154 of the judgment). However, as regards the prior issue of the applicability of Article 6 § 1, I have based myself on a different line of reasoning to that used by the Court.

In the first place, and irrespective of whether the domestic rule which defeated the applicants’ civil action in this case is framed in terms of a substantive or procedural bar, the applicants had first and foremost a Convention right under domestic law to submit their claim to a court and to have a determination on it. The fact that the applicants’ claim failed to get off the ground does not displace the right guaranteed them by Article 6 § 1 of the Convention. In my view, what is decisive for the applicability of Article 6 § 1 in this case is that the applicants had a right to a determination on their claim that their rights to life should have been protected by the police, which claim could not be considered devoid of merit from the outset. In my opinion, the fact that they were adjudged by the Court of Appeal in application of the rule in the Hill case to have no cause of action, or as the Government have formulated it, no substantive right to sue the police, is irrelevant for the purposes of the applicability of Article 6 § 1. That decision is an issue which is independent of the question of the applicability of Article 6 § 1.

I am of course aware that the Court up until now has understood the expression “civil rights” in Article 6 § 1 as rights which exist under domestic law. For me, however, this does not exclude other rights whose existence cannot be a matter of doubt. The fundamental nature of an applicant’s right to submit a civil claim to a court cannot be determined exclusively by domestic-law considerations on whether or not such a right exists in a particular set of circumstances. In this respect, I would recall that the Court has stressed on occasions that it is sufficient for an applicant to show that there are at least arguable grounds which point to the recognition of the right at issue under domestic law (see, inter alia , the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, p. 49, § 65), and in the final analysis it is for the Court in the exercise of its supervisory jurisdiction and on the basis of Convention criteria to rule on whether the applicant has shown this to be the case. I would also note that the requirement that there be a dispute ( contestation ) over a civil right in order to bring Article 6 § 1 into play has been construed by the Court in its case-law to cover not only disputes concerning the scope of a right but also its very existence under domestic law (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, § 55).

Furthermore, and of even greater importance, is the fact that the domestic law of the Contracting States must secure the enjoyment of the rights and freedoms laid down in the Convention and its Protocols (see Article 1 of the Convention). This includes the right to life. In the instant case, the applicants have relied on a civil action against the police to establish that their right to life was breached on account of the culpable failure of the police to prevent the tragedy which befell them. In my view that right, derived from the Convention, secures them in consequence their right to the protection of Article 6 § 1 of the Convention.

For the above reasons, I have been led to conclude that Article 6 § 1 is applicable in this case.

CONCURRING OPINION OF JUDGE Sir John FREELAND

1. To the reasons given in the judgment for the finding of a violation of Article 6 § 1, I would add only briefly in explanation of my own vote in that sense.

2. I so voted because of the way in which, in practice, the public-policy exception from liability enunciated by the House of Lords in Hill v. Chief Constable of West Yorkshire (see paragraphs 90–92 of the judgment) operated in this case to block the claims of the applicants in their actions against the police in negligence. I accept, as indeed does paragraph 150 of the judgment, that the aim of the exception is legitimate in terms of the Convention; and I also accept that the exception may in other cases be applied proportionately to that aim. The difficulty for me arises primarily from the fact that in the present case it appears to have been applied as if conferring on the police a blanket exemption from liability in negligence so far as concerns their function in the investigation and suppression of crime, to the exclusion of any examination by the court of considerations which might pull in another direction.

3. In this latter respect the present case stands in marked contrast to the later Court of Appeal case of Swinney and another v. Chief Constable of Northumbria Police Force (see paragraphs 93 and 94 of the judgment), where the court had regard to the possible existence of other, and countervailing, considerations of public policy – in particular, as relevant in the circumstances of that case, the need to preserve the springs of information, to protect informers, and to encourage them to come forward. The court also considered it arguable, on the facts pleaded in that case, that there had been a voluntary assumption of responsibility by the police (a similar argument has been advanced by the applicants in the present case).

4. I also note that in the Hill case the plaintiff lost her action on two grounds, either of which would have been enough to defeat it – first, the absence of the necessary proximity and, secondly, the public-policy exception. In the present case, however, McCowan LJ, with whom Simon Brown LJ agreed, expressed the view that the plaintiffs had an arguable case that there existed a very close degree of proximity amounting to a special relationship (the third member, Beldam LJ, preferred to express no opinion on the point at that stage); and the court proceeded to strike out the claim against the police on the sole ground of the public-policy exception.

5. The weight thus attached to the exception in this case, together with its broad reach and the exclusive application given to it, combined in my view to produce a disproportionate limitation on the applicants’ right of access to court. I therefore concurred in the conclusion stated in paragraph 154 of the judgment. For me the exception, operating in this way, is an inappropriately blunt instrument for the disposal of claims raising human rights issues such as those of the present case.