Emergency response time - how long is too long?

I am currently employed by the firm of solicitors that represented Mr Sarjantson. I write in an entirely personal capacity. As such, nothing in this post should be deemed to reflect the view(s) of the firm.

Sarjantson v Humberside Police

In a deceptively short ruling, the Court of Appeal has said that there is an arguable case against the police for taking too long to respond to a 999 call contrary to their obligations under Articles 2 and 3 of the European Convention of Human Rights.This was the first case of its kind, one that raised issues of such importance that the judgment was given by the Master of the Rolls. However, the impact of this decision will extend beyond the police. It has important consequences for all emergency services but also represents a re-assuring outcome for members of the public, who would be surprised not to have the protection of the Convention in the stark circumstances of this case.

The facts

Sarjantson was attacked by a group of young men armed with baseball bats, in the early hours of 9 September 2012, and suffered serious head injuries which caused short and long-term memory loss.The police received 3 separate 999 calls within three minutes from terrified local residents as a gang ran amock in Grimsby, vandalising properties and assaulting other victims before launching the most vociferous attack on the claimant. He was not specifically identified until seven minutes into the second of those phone calls and the extent of the assault and the need for an ambulance came after 8 minutes. That third caller  told the police:

"there's a big gang of them down there….can you send the riot van, we're running upstairs now". "Fucking hell, stop it. Stop it. Fucking leave it. I'm sorry Chris, fucking hell you evil bastards". 

The perpetrators of the attack were convicted of causing grievous bodily harm and of causing violent disorder and are currently serving lengthy prison sentences.

An internal police investigation was critical of the police. It found that there had been an 11 minute delay before the police officers were deployed to the scene. This meant that they did not arrive until almost half and hour after the first 999 call was made, almost twice the target response time of 15 minutes. This was all the more significant because, consistent with their procedure, the ambulance service refused to attend without a police escort.

The first ruling

It had been argued for the Claimant that this failure was a breach of the duty imposed upon the police to take measures to avert a real and immediate risks to life and to avert a real and immediate risk of injury as required by Articles 2 (the right to life) and 3 (the prohibition on inhuman and degrading treatment.

The police initially succeeded in an application for summary judgment as the claim was struck out as having no reasonable prospect of success. The claim against the police was unarguable. The judge reached that conclusion for two reasons. Firstly, she held that, according to the case law of the European Court of Human Rights, a duty could only arise in this context under Art 2 ECHR where the immediate risk to life is posed to is to an identified person(s) i.e. 7/8 minutes into the second phone call. Second and relatedley:

"even if a duty could arise in relation to an unidentified person(s), it could not arise on the acts of this case because there was insufficient time between the first call and the time of the assault for the police to attend the incident."  

 A third, new, argument advanced in the Court of Appeal was that the duty of the state to protect against an imminent risk to life could not arise where that risk had already materialised. Once the risk has materialised the duty of the police in this context ceased.

The Court of Appeal's Judgment
Is it a condition that there is a real and immediate risk to an identified or indentfiable person?

The Claimant appealed successfully that each three of these reasons was wrong in law. The leading authority comes from the Grand Chamber judgment in Osman v United Kingdom, which held that the duty  to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual arose when:

" the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk"

Whilst there is a reference to "identified individual or individuals" it would be wrong to view this as delimiting the scope of the duty. The Grand Chamber also emphasised that Article 2 is drafted in broad terms. It was for that reason they rejected an argument that the failure to offer sufficient protection must amount to gross negligence:

"Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2."

For that reason:

" it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge."  

As counsel for the claimant demonstrated by reference to several subsequent cases that applied the "Osman Duty" (as to which, see paras [15] - [23]), it is for this broader proposition that Osman is the authority. It is not a condition of the duty under Article 2 that the person at risk be identified, only identifiable.

Was there no breach of the duty because there was insufficient time for the police to attend the incident?

The judge's second ground for striking out the claim was also wrong. The fact that the police response would have made no difference is not relevant to liability. In Kilic v Turkey (2000) 33 EHRR 58 for example, the court found a violation of Art 2 ECHR in a case where the applicant's brother complained that his brother had been killed by or with the complicity of the State security forces because they failed to take preventative steps that would have "assisted in minimising the risk". As the court here noted:

"It is noteworth that there was no consideration of whether the steps that should have been taken would in fact have saved the brother's life"

Can the duty arise once the risk has materialised?

Counsel for the police argued that the Osman duty was confined to taking measures that stopped a risk/threat from materialising. This was dismissed very shortly (see para [30]) on the basis that in this case, the authorities were dealing with an ongoing incident. Therefore, there was still a duty to prevent further violence.

Comment

The Osman duty takes account of:

 "the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources"

And further that:

"such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. [So that] not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. 

Even so, there is no doubt that the existence of a duty in this context will add to the operational workload of the police. Counsel for the police doubtlessly had this in mind in resisting the appeal and particularly in attempting to argue (however hopelessly) that no duty existed where a risk had arisen that could not have been avoided, even where a risk was continuing and the police would be called upon to take further actions.

To that extent, it is fair to say that this case does indeed raise issues of considerable importance for the police, but many practitioners feel the impact of the decision is broader still. There is no reason why an Osman duty could no arise in comparable circumstances against other emergency services who unreasonably fail to respond promptly to an emergency call. Tweak the facts of this case for example, where a delayed response from the ambulance service was not justified . And what about dilatory fire services responding to an arson attack? Moving beyond the traditional emergency services, this judgment will have consequences for child-protection services, mental health services and a range of other public services that have responsibility for responding to may-day calls.There is much more to come from this judgment and not just for the police.