Family loses appeal over 999 delay
The family of a young mother brutally killed by her ex-boyfriend cannot sue the police for negligence - but its members can bring a claim under European human rights laws over an alleged police failure to protect her life, the Supreme Court has ruled.
The decision of the highest court in the land has both disappointed and given hope to campaigners against domestic violence.
Joanna Michael, 25, from St Mellons, Cardiff, was stabbed 72 times in "a mad fit of jealous rage" in August 2009 by ex-boyfriend Cyron Williams, 19.
There was a history of domestic abuse, and Williams discovered she was in a new relationship some weeks after they had finished seeing each other, judges heard.
Williams is now serving life with a 20-year tariff, which means that he will remain in prison at least to 2030.
Ms Michael had dialled 999 twice, but ''individual and systemic failures'' by police meant the emergency services arrived too late to save her life.
The Independent Police Complaints Commission (IPCC) has already ruled that Ms Michael was failed by both South Wales and Gwent police.
Ms Michael's parents and children won permission to seek damages against both police forces in 2011, but the Court of Appeal blocked the case the following year when it ruled police officers had immunity from negligence claims under the common law.
The Michael family asked the the Supreme Court to overturn the appeal judges' ruling, but today seven justices dismissed their plea in a 5-2 majority ruling.
However the panel of seven - Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Reed, Lord Toulson and Lord Hodge - ruled at the same time the family was legally entitled to go ahead with a claim that their Article 2 rights under the European Convention on Human Rights were breached by a police failure to protect Joanna's life.
The justices rejected bids by the chief constables of South Wales and Gwent Police to stop the claims proceeding.
Later the anti-domestic violence campaign group Refuge, which had intervened in the case, said it was "deeply disappointed" that the panel majority had decided the police could not be held liable for negligence and called for a public inquiry.
Refuge chief executive Sandra Horley said: "Joanna Michael, the mother of two young children, died a needless death.
"No court ruling will change that. Two women are killed by a current or former partner every week in this country. And just like hundreds of other victims of domestic violence Joanna was failed by the police when she reached out for help."
Ms Horley said: "We are delighted that Joanna's family may now, at least, progress one step further down the long path to justice and that their Article 2 claim, seeking a declaration and compensation from the state, may now proceed."
During the Supreme Court hearing that led to today's rulings, Nicholas Bowen QC, appearing for Ms Michael's family, said the case was ''desperately important''.
He told the justices : ''There is a need for a heightened accountability of the police in the light of recent scandals and investigations which have had a very serious detrimental affect on public and political confidence in police services.''
Ms Michael made her first 999 call on a mobile phone to the police at 2.29am on August 5 2009 and told the Gwent Police operator that Williams had come to the house and found her with someone else.
He had bitten her ear hard and taken the other man away in his car - saying he would return to kill her.
The courts were told the urgency of her call was absolutely plain, and an immediate response could have meant police reaching her in five minutes.
But the call went through Gwent - ''the wrong police force'' - and not South Wales, as it should have done.
The Gwent operator told the mother-of-two to ''stay put'' in the house and keep the phone free as South Wales Police would want to call her back, said Mr Bowen.
The operator spoke to her South Wales Police counterpart and said Williams had threatened to return to ''hit'' Ms Michael but did not refer to ''the threat to kill''.
The call should have continued to be graded as requiring an immediate response, but was instead graded at the next level down.
A further 999 call was received by Gwent Police from Ms Michael at 2.43am. She could be heard screaming before the line went dead.
Police officers arrived at 2.51am. Ms Michael was found to have been stabbed by Williams 72 times.
Lord Toulson rejected the argument that the police should owe a duty of care and face legal action if their negligence results in harm to the life and safety of a member of the public.
He said that would have involved an exception being made to the common law principle that "a defendant will not generally be liable for harm to a claimant caused by the conduct of a third party".
Lord Toulson said: " If it is thought that there should be public compensation for victims of certain types of crime, above that which is provided under the criminal injuries compensation scheme, in cases of pure omission by the police to perform their duty for the prevention of violence, it should be for Parliament to determine whether there should be such a scheme and, if so, what should be its scope as to the types of crime, types of loss and any financial limits."
The introduction of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into domestic law, meant legal action could be taken in "limited circumstances" where the police had negligently in breach of Article 2 or 3 or 8 of the convention - failure to protect life or prevent inhuman and degrading treatment or to protect the right to private and family life.
Lord Toulson said there were good reasons why the "positive obligations" of the state under those articles were limited and there was in sufficient reason "for the common law to duplicate or extend" them.
Disagreeing, Lord Kerr said he would have allowed the appeal.
He said: "If the police force had not negligently downgraded the urgency of Ms Michael's call, on the facts as they are known at present, it is probable that she would still be alive.
"While the police are not responsible for the actions of her murderer, if the allegations made against them are established, police played a direct, causative role in her death as a result of their negligence."
Lord Kerr added: "The police have been empowered to protect the public from harm. They should not be exempted from liability on the general common law ground that members of the public are not required to protect others from third party harm."
It was the duty of the police " to provide precisely the type of protection from the harm that befell Ms Michael".
Lady Hale also said she would have allowed the appeal, adding there was no doubt that the police owed a positive duty "in public law" to protect members of the public from harm caused by third parties.
Lady Hale added the reasons advanced against the imposition of a similar duty in a negligence claim had "largely ceased to apply" in a case like the present, where it was alleged that a tragic death would have been averted had the police reacted appropriately to Ms Michael's emergency call.
After the ruling, Liberty's lawyer Rosie Brighouse said: "Time and time again, police are failing victims of domestic violence - but, thanks to these archaic rules, even the most breathtaking police negligence goes unchallenged."
Sarah Ricca, solicitor for both Refuge and Liberty, said: "The fight to achieve equal protection from the law for women facing domestic violence will continue, inside and outside the courts.
"This case was an important step in that fight. The highest court in the land has had to address and acknowledge the stark reality of police failings in relation to domestic violence. Though part of the battle in this case was lost, the rest of the case proceeds. That is an important victory in itself."