Octoberbrochure - (Page 2) risk to the life of an identified individual or individuals from the criminal acts of a 3rd party and they failed to take the necessary measures within the scope of their powers which, if judged reasonably, might had been expected to avoid that risk”. First, that paragraph has to be judged without the benefit of hindsight but upon what the authorities knew at the time. Secondly, the fact that the deceased was a prosecution witness in a forthcoming trial against his assailant did not place him in a special or distinctive category from the normal potential victim of crime. Thirdly, “ought to have known” means (according to Lord Phillips) “ought to have appreciated on the information available to them” and not what they could or should have acquired had they performed their duties with due diligence. In broad terms, the question of real and immediate risk needs to be answered by making a reasonable and informed judgment on the facts and circumstances known to police. In this case it produced a negative answer. Lord Hope commented that the test was “not easily satisfied, the threshold being high” and that the murder was the action of a seriously disturbed and unpredictable individual such that the police could not have anticipated it. continue from page 1 the police were slow to look at or respond to. The majority of the House of Lords reaffirmed the principle in Hill in a modern day context. They said that negligence claims should not be brought against the police because: • This would inhibit the police in their function of investigating crime; • It would impede them because they would have to treat every report from a member of the public as giving rise to a duty of care; • It would lead to defensive policing; • It would make the police unwilling to take risks; • There would be no reason why such a principle would not extend to property damage claims which would be wrong; • It would divert police resources away from investigation; • It would be difficult to analyse whether a complainant (preattack) could be said to be credible and whether a threat was imminent. That is not to say that exceptional cases will never succeed, however, such a case will have to be truly exceptional especially as Lord Brown stated, “There is nothing exceptional here unless it be said that this case appears exceptionally meritorious on its own particular facts – plainly not in itself a sufficient basis upon which to exclude a whole class of cases from the Hill principle”. Comment On any viewing, a successful Article 2 claim will be a tall order. Both the facts of Osman and Van Colle showed strong cases to suggest at least, a real and immediate risk yet both failed. Even more extreme cases will be unusual. They may only arise in cases where, for example, a victim is in police protection before he is attacked. Comment Negligence cases against the police in an operational context will now be difficult. It will be hard to imagine many cases stronger than Smith on their pleaded facts. Claims brought by the victims of crime (or their loved ones) will fall to be struck out at an early stage. Hill has been restated and is now stronger as there is even more reason why a duty of care should not be imposed for the benefit of those who complain to the police that they are under threat. Edwin Buckett Duty of care? The Smith case required the Court to revisit the core principle of police immunity arising from Hill v Chief Constable of West Yorkshire (1989) AC 53. It was said on Mr Smith’s behalf that a duty of care could be imposed, because Mr Smith had made it clear on a number of occasions that he was being threatened by the assailant who was his former partner. He had clear evidence of this which APIL Appointments Andrew Ritchie was elected to be secretary of the Brain Injury SIG of the Association of Personal Injury Lawyers in September 2008. Andrew was an executive committee member of APIL from 1996-1999 and has been active in APIL since the early 1990s. He is delighted to be involved once more in the day to day training of lawyers on brain injury litigation. Simon Carr was elected Co-ordinator of the Occupational Health SIG of the Association of Personal Injury Lawyers in September 2008 and recently elected a member of the Executive Committee of PIBA. Simon hopes that the two organisations can work together closely in the future and looks forward to his continuing involvement and assistance in the promotion and development of expertise in personal injury law. Andrew Ritchie Simon Carr 9 Gough Square has been nominated Barristers Chambers of the Year, and Andrew Ritchie Barrister of the Year, for the 2008 Personal Injury Awards. 2 View our news online at www.9goughsquare.co.uk http://www.9goughsquare.co.uk
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