No violation of Art. 2;No violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Franz Matscher;John Freeland;R. Pekkanen;Simon Brown

The applicants are NORP citizens resident in GPE . The first applicant , PERSON , was born in GPE in DATE . She is the widow of Mr PERSON who was shot dead by Mr PERSON on DATE . The second applicant , PERSON , is her son , born in GPE in DATE . He was a former pupil of PERSON at ORG . PERSON was wounded in the shooting incident which led to the death of his father .

The applicants complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that PERSON represented a serious threat to the physical safety of PERSON and his family . There is disagreement between the applicants and the respondent ORG on essential aspects of the circumstances leading to the tragedy . The applicants have disputed in this respect the completeness of the facts as found by the ORG .

In DATE the headmaster of ORG , PERSON PERSON , noticed that one of his teaching staff , PERSON , had developed an attachment to PERSON , a pupil at the school . According to a statement which he made to the police on DATE , Mr Prince indicated that he “ made a point of personally keeping an eye on the situation ” . As a result of this attachment , ORG informed Mr Prince that he intended to leave the school and become a supply teacher . Mr PERSON , a deputy head teacher , spoke with ORG and managed to persuade him to remain at the school .

NORP In DATE Mrs Green , the mother of PERSON , another pupil at the school and the ORG neighbour , telephoned Mr Fleming – another deputy head teacher – to complain that ORG had been following her son home after school and harassing him . She alleged that ORG had been spreading rumours that her son had engaged in deviant sexual practices and that he objected to her son ’s friendship with PERSON . Mrs Green made a formal complaint to this effect to Mr Prince on DATE .

On DATE Mr Perkins interviewed PERSON , who confirmed that ORG had been following him and had been spreading rumours of a sexual nature about him because of his friendship with PERSON PERSON .

Also on DATE Mr ORG interviewed PERSON . In the typed record of this interview dated DATE , PERSON confirmed that ORG had warned him about PERSON , accusing PERSON of sexual misconduct with another boy at the school . PERSON also reported to Mr ORG during the interview that on CARDINAL occasion ORG had followed PERSON and himself home in his car . He also stated that ORG had asked him to come and see him in his classroom at lunch times , apparently to learn NORP , and that ORG had taken photographs of him and given him money , a pen and a NORP dictionary . However , he later took the pen and deliberately snapped it in half during a lesson .

On DATE Mr Perkins interviewed ORG . In the course of the interview ORG stated that he had a special relationship with PERSON which had developed over a period of a year and which PERSON was trying to disrupt and that he was so upset on CARDINAL occasion that he confronted PERSON and accused the boy of being a sexual deviant . He admitted that he had followed PERSON home on CARDINAL occasion and had waited outside his GPE house for TIME . ORG mentioned to PERSON Perkins that he had told PERSON that he would become “ very angry ” if anything happened to his relationship with PERSON , although he indicated to PERSON Perkins that this was not to be seen as a threat . He also acknowledged that he had given PERSON money and presents , and had taken photographs of him for “ sentimental reasons ” . In a later memorandum dated CARDINAL DATE , Mr PERSON described PERSON as having been in a highly irrational state during this interview and unwilling to admit that his behaviour displayed a serious lack of wisdom and professionalism .

On DATE ORG submitted a written statement to Mr PERSON regarding the complaint made by PERSON Green . In his memorandum of CARDINAL DATE ( see paragraph CARDINAL above ) Mr PERSON stated that he found the statement “ disturbing ” since it showed clearly that PERSON - Lewis was “ overpoweringly jealous ” of the friendship between PERSON PERSON and PERSON and provided clear evidence that he “ was not in control of his emotions ” . PERSON was presented as devious , malicious and an evil influence .

Mr PERSON again interviewed PERSON - Lewis on his written statement during which he pointed out his concerns about the content of the statement and suggested to ORG that he seek psychiatric help . Mr Perkins informed Mr Prince of everything which had happened up until DATE .

Prior to CARDINAL DATE Mr Prince had an informal discussion with ORG in which he admitted telling pupils at the school that Leslie Green had engaged in acts of oral sex with PERSON in revenge for rumours spread by PERSON concerning his relationship with PERSON .

On CARDINAL DATE PERSON formally interviewed PERSON on the basis of the notes of the interview between ORG and PERSON Perkins . The contemporaneous notes taken of the meeting reveal that ORG admitted that he had become attached to PERSON ; that he had accused PERSON of trying to turn PERSON against him ; and that he had parked outside PERSON ’s house to show that he was not to be scared away . ORG denied that he had accused PERSON of deviant sexual practices . The notes of the meeting conclude with the sentence “ the situation has now escalated and PERSON has no confidence in his own ability to contain it ” .

Mr Prince was informed on DATE in an interview with PERSON and his mother that ORG had been spying on PERSON PERSON and that ORG had told PERSON that “ he knew where his mother worked and how much money she earned and that if PERSON left school , he would find him ” .

During this period another deputy head teacher , Mr GPE , also interviewed PERSON on a number of occasions . These interviews revealed that ORG had told PERSON that he would be able to find him if he left the school . ORG claimed to have discovered PERSON ’s previous address and the name of his previous school and said he had visited the area and had spoken to his former neighbours .

On DATE Mr Prince met with the PERSON family to explain his concerns about the interest ORG had taken in PERSON . He explained that the school was quite satisfied that nothing improper had taken place between ORG and PERSON . He told them that the school would monitor the situation closely to ensure that PERSON would be safe . PERSON was told never to be alone with ORG . During this meeting PERSON ’s mother expressed her wish that her son should be transferred to another school .

According to the diary of Mr Prince between DATE and CARDINAL DATE he met with PC PERSON on CARDINAL occasions . The applicants state that during these meetings information concerning PERSON - Lewis’ conduct towards PERSON was passed on to the police . The Government state that PC PERSON had no recollection of being told about the presents which ORG had given to PERSON or that ORG had followed PERSON home . PC PERSON did not keep any record of the meetings , nor did he make any report concerning the nature and extent of the information that was communicated to him , or if he did no such record now exists . The Government stress that all concerned were satisfied that there was no sexual element to PERSON - Lewis’ attachment to PERSON and the matter could be dealt with internally by the school .

By DATE graffiti had appeared at CARDINAL locations around the school which read “ PERSON , do not forget to wear a condom when you screw PERSON or he will get Aids . ” The words had been written with spray paint and a stencil .

Following the discovery of the graffiti , Mr Perkins interviewed ORG and asked him if he was responsible . He denied this . However , PERSON PERSON noted in his report that PERSON - Lewis knew the precise wording and the exact locations of all the graffiti .

On DATE a further discussion took place between Mr Prince and the PERSON family regarding PERSON ’s transfer to another school . For his safety Mr PERSON told PERSON not to give his new school address to anyone from ORG . While attempting to arrange his transfer , Mr GPE discovered that the files relating to PERSON and PERSON Green had been stolen from the school office . The file relating to staff disciplinary matters was also found to be missing .

Mr ORG considered that the stolen files were the likely source of the information that ORG had acquired about PERSON previous address and school ( see paragraph DATE above ) . He subsequently questioned ORG , who denied any involvement in the theft and denied having made any comments about PERSON ’s previous address and school or visiting the area in which PERSON used to live .

On DATE PERSON was transferred to a different school , but owing to curriculum difficulties he had to return to ORG DATE .

On DATE , ORG changed his name by deed poll to PERSON . On CARDINAL DATE , Mr PERSON wrote to ORG ( ORG ) informing them that ORG had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of PERSON . He also stated that he was of the opinion that ORG should be removed from the school as soon as possible .

On CARDINAL DATE Mr Prince spoke with CARDINAL police officers , Detective Chief Inspector PERSON and Detective Inspector PERSON . According to the applicants during this meeting the headmaster informed them of the missing files and the graffiti incident and discussed the fact that PERSON - Lewis’ real name was PERSON . He had previously changed his name by deed poll to name himself after a pupil called ORG whom he had taught at ORG . The Government state that the CARDINAL police officers have no recollection of having been informed of these matters .

Following his letter of CARDINAL DATE ( see paragraph CARDINAL above ) , Mr Prince wrote to ORG at ORG in a letter dated CARDINAL DATE stating that while he believed PERSON needed medical help , his continued presence in the school jeopardised the welfare , safety and education of the pupils . An internal memorandum from ORG at ORG dated DATE makes reference to “ a fear that [ ORG ] might seek to take the boy out of the country ” and that the police are investigating the complaint that “ he has removed certain files about the matter from the school ” .

ORG notes written by the same official DATE indicate that it was feared that PERSON may be harmed and that by changing his name ORG may abscond with the boy . The notes refer to the fact that the police had stated that PERSON should contact them if PERSON goes missing for TIME . In addition , the police would investigate the disappearance of the missing files , search PERSON - Lewis’ home and check up on his background .

The Government deny that the police said that they should be contacted if PERSON went missing or that they intended to search PERSON - Lewis’ house .

On DATE ORG was seen by PERSON , the ORG psychiatrist . PERSON was provided with , inter alia , the documents showing PERSON - Lewis’ change of name ; the records of the interviews conducted in DATE ; and the memorandum prepared by PERSON on CARDINAL DATE ( see paragraph CARDINAL above ) . PERSON reported :

“ This teacher must indeed give cause for concern . He does not present ill in formal terms , nor does he seem sexually deviant . He does have personality problems , and his judgment regarding his friendship with a pupil is reprehensibly suspect . ”

Dr ORG recommended that ORG remain teaching at the school but that he should receive some form of counselling and psychotherapy .

On or CARDINAL DATE , a brick was thrown through a window of the applicants’ house . The police were informed and a police officer was sent to the house and completed a crime report . On CARDINAL occasions in DATE the tyres of PERSON car were deliberately burst . Both incidents were reported to the police , but no police records relating to the offences can be found .

On DATE Mr Prince requested ORG to take sick - leave . On DATE ORG was examined again by Dr ORG . He described a continuing strong urge to speak with PERSON and said that he felt angry that PERSON seemed content with the situation of non - contact . PERSON concluded that under the circumstances , PERSON should remain away from ORG and was designated temporarily unfit to work .

ORG subsequently informed PERSON that he would be taking medical leave for the remainder of the school term . He then left ORG and did not return again .

On DATE , following a further interview with ORG , Dr ORG recommended that he should no longer teach at ORG and that transfer on medical grounds was strongly and urgently recommended .

On DATE PERSON telephoned Mr Perkins making further complaints about ORG following her son . She also informed him that she had sent her son to stay with her sister .

On DATE , ORG was suspended pending an ORG investigation for “ unprofessional behaviour ” towards PERSON . He submitted a statement dated CARDINAL DATE in which , inter alia , he admitted taking photographs of PERSON and giving him money but denied stealing files or painting graffiti . He accused PERSON PERSON of lying about him and said that Mr PERSON has stated his intention of breaking him .

On DATE , ORG sent a letter to ORG officially reprimanding and severely warning him but lifting the suspension . The letter also stated that he was not to return to ORG . Shortly afterwards he began working as a supply teacher at CARDINAL other local schools , ORG .

In DATE or DATE , a mixture of engine oil and paraffin was poured on the area outside the PERSON family home . On DATE , the windscreen of PERSON car was smashed . During DATE , in a series of incidents , the applicants’ front door lock was jammed with superglue , dog excrement was smeared on their doorstep and on their car , and on CARDINAL occasion the light bulb was stolen from the light in the outside porch . Around this time all the windows of their car were also broken . All these incidents were reported to the police and on CARDINAL occasions PERSON visited GPE police station to discuss the vandalism and criminal damage to his property .

At some point during DATE , PC PERSON visited the LOC home and then spoke to ORG about the acts of vandalism . In a later statement to the police , ORG alleged that he told PC PERSON that the loss of his job was so distressing that he felt that he was in danger of doing something criminally insane . The Government deny that this was said , and refer to the fact that during the interview with PC PERSON denied any involvement in the acts of vandalism and criminal damage . No detailed records were made by PC PERSON of his contacts with ORG or the PERSON family . Any entries in notebooks or duty registers ( crime reports or parade books ) could not later be traced by ORG .

On DATE a car driven by ORG collided with a van in which PERSON was a passenger . According to the driver of the van , ORG claimed that his accelerator had jammed and that he could not help what happened . After the police arrived at the scene of the accident they cautioned ORG , and provided him with a form requesting him to produce his driving documents .

On DATE ORG attended GPE police station and produced his driving documents for inspection . Since he failed to produce a road worthiness ( MOT ) certificate for his car he was cautioned by the police .

NORP In a statement taken by the police on CARDINAL DATE from the driver of the van that had been allegedly rammed by ORG , the driver recalled that after the accident ORG had said : “ I ’m not worried because in DATE I ’ll be doing life . ”

On DATE , following the collision incident , Detective ORG contacted ORG stating that he wished to interview ORG and the headmaster . The applicants state that Detective ORG assured ORG that the PERSON family would be protected . The Government deny that such an assurance was given .

An ORG memorandum dated CARDINAL DATE referred to the harassment of the PERSON family and PERSON - Lewis’ alleged admission of responsibility for the van collision saying that PERSON had lured PERSON away from his affections . It noted that the police were pursuing enquiries but that if nothing was heard the matter should be “ chased ” . It concluded with the note “ Families getting police protection ” .

On DATE Detective PERSON took a detailed statement from PERSON and his mother concerning , inter alia , the fact that ORG had followed PERSON home , the acts of harassment and the ORG graffiti which had appeared at the school . In his statement PERSON claimed that ORG had threatened to “ get him ” whether it took “ DATE or DATE ” . He also said that he had not been to school for DATE as he was afraid to travel there and that he had moved in with his aunt , so as to be safe from ORG .

On DATE Detective PERSON visited ORG and inspected the graffiti . A police photographer took photographs of the graffiti .

On or CARDINAL DATE Detective ORG visited the PERSON family and discussed the criminal damage and PERSON - Lewis’ relationship with PERSON . The applicants allege that Detective ORG told the family that he knew ORG was responsible for the acts of vandalism , and gave them assurances that he would cause the incidents to stop . The Government deny that Detective ORG said that he knew ORG was responsible , and that he gave assurances as to the family ’s safety .

In his report on the case which was completed on or CARDINAL DATE , ORG observed :

“ It should be pointed out at this stage that there is no evidence to implicate PERSON in either of these offences [ the graffiti at the school ] or the acts of vandalism against ORG address , although there is no doubt in everybody ’s mind that he was in fact responsible and this was just another example of his spite . ”

On DATE ORG was interviewed by officers of ORG at his own request . An ORG memorandum dated DATE recorded that ORG felt in a totally self - destructive mood , stating that it was all a symphony and the last chord had to be played . He admitted being deeply in debt and as a result was selling all his possessions . He blamed PERSON for all his troubles but would not do a “ PERSON ” in a school but would see him at his home . The memorandum stated that the concerns of ORG should be passed on to the police and noted that a call was made to ORG , who was unavailable . Nevertheless , a detailed message was left with the receptionist .

CARDINAL of the officers of ORG recalled later in a statement dated DATE that ORG spoke in a manner which was very disturbing , said that he blamed Mr PERSON for the loss of his job , that he knew where he lived and that he was going to do something though not at the school . The ORG other officer recalled in her statement of DATE that ORG had stated that he was going to do something that would be “ a sort of PERSON ” . She recalled that as a result of this conversation she informed the police and the school that she considered that the head and deputy head were at risk of violence .

Although the applicants state that the content of the interview was passed on to the police , the Government deny that mention was made of the “ PERSON ” reference or that there was any suggestion that the NORP might be in danger .

On DATE after receiving the message of the officer of ORG ( see paragraph CARDINAL above ) , Detective PERSON sent a telex to the local police station near Mr Perkins’ home referring to the fact that vague threats had been made and that the school authorities were very concerned . He asked them to pay casual attention to the address , giving a brief description of ORG and the registration number of his car .

On DATE Detective PERSON contacted ORG with a view to tracing ORG and was provided with his address . He requested the official at ORG to ask PERSON to contact the police . On DATE , Detective PERSON met with Mr Prince and Mr Perkins . The applicants state that he assured Mr Prince that the police would undertake the necessary measures to protect both Mr Perkins and the applicants . A diary entry of Mr Prince dated DATE refers to ORG and contains a heading “ PERSON / PERKINS / POLICE PRESENCE ARRANGED ” and a note that ORG had called “ to finalise arrangements re protection for ORG families ” . According to the Government no assurance of protection was given . Detective PERSON received the impression from his meetings with Mr Prince and Mr Perkins that ORG was angry at being removed from the school but that the anger was directed against the deputy head , who in any case did not feel in danger .

DATE . On DATE Detective PERSON and other police officers arrived at ORG house with the intention of arresting him on suspicion of criminal damage . ORG was absent . The police were unaware that he was teaching at ORG DATE .

On DATE pursuant to the request of the police , ORG sent a letter to ORG requesting him to contact ORG . The same day ORG informed the police that ORG had not attended ORG . He did not return to the school again .

In DATE the police commenced the procedure of laying an information before ORG with a view to prosecuting ORG for driving without due care and attention . In addition , PERSON - Lewis’ name was put on ORG as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage .

On DATE an officer of ORG rang Detective PERSON for an update on the case but he was unavailable . DATE he returned her call saying there had been no progress .

DATE ORG travelled around GPE hiring cars in his adopted name of PERSON and was involved in a number of accidents . He spent time at his home address during this period and continued to receive mail there .

On DATE ORG broke into a car parked near a clay - pigeon shoot near GPE in GPE and stole a shotgun . He sawed off both barrels . While the theft was reported to the local police , because there was nothing to connect the incident to ORG the theft did not come to the attention of the GPE police dealing with the case .

On DATE PERSON saw ORG wearing a black crash helmet near the ORG home . According to the applicants , PERSON Green informed the police on each occasion , but her calls were not returned . The Government accept that , on DATE , Detective Sergeant ORG received a message which stated “ phone PERSON Green ” but since there was no phone number on the note he did not connect the message with the mother of PERSON .

On DATE ORG was seen near the applicants’ home by a number of people . At TIME and killed PERSON PERSON and seriously wounded PERSON . He then drove to the home of PERSON Perkins where he shot and wounded him and killed his son .

Early the next morning ORG was arrested . On being arrested he stated “ why did n’t you stop me before I did it , I gave you all the warning signs ? ”

DATE Paget - Lewis was interviewed by the police . According to the record of the interview , ORG said that he had been planning the attacks ever since he lost his job , and for DATE he had been watching the Osmans’ house . Although he considered Mr Perkins as his main target , he also regarded PERSON and PERSON as being responsible for his losing his position at ORG . ORG stated that he had been hoping in the back of his mind that the police would stop him . He admitted holding the family at gunpoint as they returned to the house , making PERSON and PERSON kneel down in the kitchen , turning out the light and shooting at them . He denied that on earlier occasions he had damaged the windows of the Osmans’ house but admitted that he had let down the tyres of their car as a prank . He also denied responsibility for the graffiti and taking the files from the school office .

On DATE ORG was convicted of CARDINAL charges of manslaughter having pleaded guilty on grounds of diminished responsibility ( see paragraph CARDINAL below ) . He was sentenced to be detained in a secure mental hospital without limit of time pursuant to section CARDINAL of LAW DATE .

An inquest was held into the death of PERSON after the conclusion of the criminal proceedings . Since a person had been convicted in connection with the death , the Coroner did not hold a full inquest ( section CARDINAL of the Coroner ’s Act DATE ) .

On DATE the applicants commenced proceedings against , inter alios , the Commissioner of Police of the LOC alleging negligence in that although the police were aware of PERSON - Lewis’ activities since DATE they failed to apprehend or interview him , search his home or charge him with an offence before DATE . Orders for discovery of documents were made on DATE .

On DATE the ORG Commissioner issued an application to strike out the statement of claim on the ground that it disclosed no reasonable cause of action . ORG judge dismissed the application .

On DATE ORG upheld the appeal by the Commissioner ( PERSON and another v. PERSON and another [ DATE ] CARDINAL All England Law Reports at p. CARDINAL ) . In its judgment , the court held that in light of previous authorities no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required an immunity from suit .

Lord Justice GPE found , inter alia :

“ In my judgment the plaintiffs [ the applicants ] have therefore an arguable cause that as between [ the second applicant ] and his family , on the one hand and the investigating officers , on the other , there existed a very close degree of proximity amounting to a special relationship . ”

However , having regard to the judgment of ORG in the case of PERSON v. Chief Constable of GPE ( see paragraphs CARDINAL–CARDINAL below ) , from which he found no relevant distinction , he considered that the matters in issue were failures in investigation of crime and thus public policy doomed the action to failure . He rejected the argument that where the class of victim was sufficiently proximate and sufficiently small the public policy argument might not apply . He found that Lord PERSON in the LOC case had treated public policy as a separate point that is not reached unless there is a duty of care .

The second judge in ORG , Lord Justice PERSON , also held that on grounds of public policy the claims were not maintainable but refrained from expressing an opinion as to whether the facts , if proved , were sufficient to establish a relationship sufficiently proximate to found a duty of care . Lord Justice PERSON agreed with the judgment of Lord Justice PERSON . The applicants’ claim was accordingly struck out .

ORG refused leave to appeal to ORG and the application to ORG for leave to appeal was refused on DATE .

The domestic courts had not established the full facts of the case since ORG pleaded guilty to the charges against him and a full inquest was not conducted into the death of PERSON ( see paragraph CARDINAL above ) . Furthermore , the applicants’ civil action against the police was struck out as showing no reasonable cause of action ( see paragraph CARDINAL above ) . Having examined the submissions and materials of the parties especially as regards the facts in dispute the Commission proceeded to the establishment of the facts of the case . Its findings may be summarised as follows .

DATE . As to the CARDINAL meetings which took place between the police and the school DATE and DATE ( see paragraph CARDINAL above ) , the Commission was satisfied that the police were made aware of the substance of the events and of the school ’s concerns about the disturbing attachment which ORG was showing towards PERSON as well as PERSON - Lewis’ worrying reaction towards PERSON .

Furthermore , Mr Prince had in all probability informed ORG PERSON and PERSON on DATE ( see paragraph CARDINAL above ) about the graffiti incident , the theft of the school files and PERSON - Lewis’ change of name , even if both officers had no recollection of having been told CARDINAL matters . Like the meetings between PC PERSON and PERSON , no police notes appear to have been taken . However , the Commission did not find it established that at this stage the police had made any commitment to searching PERSON - Lewis’ home or were seriously concerned about the possibility of ORG kidnapping PERSON . These hypotheses emerge from the memoranda drawn up by ORG officers around this time ( see paragraph CARDINAL above ) and were probably based on the contacts which the officers had with Mr Prince and not on any direct contact between the officers and the police .

While all the vandalism on the Osmans’ home and property DATE had been reported to the police and the family had informed the police of its concern that ORG was behind the attacks , the only step taken during that period was to invite ORG to the police station for an interview ( see paragraph CARDINAL above ) . In the Commission ’s opinion , little reliance could be placed on PERSON - Lewis’ later assertions that he told PC PERSON during the interview that he was in danger of doing something criminally insane . No police notes or records of this meeting which took place on an unspecified date could be traced .

Following the alleged ramming incident ( see paragraph CARDINAL above ) , the police immediately interviewed the NORP and the NORP and photographed the graffiti at the school ( see paragraphs CARDINAL and CARDINAL above ) . Although Detective PERSON in his undated report ( see paragraph CARDINAL above ) had stated that there was no evidence that ORG was responsible for the graffiti and the attacks on the Osmans’ home the police had nevertheless taken the view that he was presenting a sufficient threat that formal steps should be taken against him . Thus the decision was taken on CARDINAL DATE to arrest ORG on suspicion of criminal damage .

The ORG was also satisfied that there was no evidence that ORG had made any direct or indirect threats against the NORP during his meeting with ORG officers on CARDINAL DATE ( see paragraph CARDINAL above ) . It placed greater weight on the contemporaneous notes of the meeting rather than on the statement of CARDINAL of the officers taken DATE that ORG threatened at the meeting to commit a “ PERSON massacre ” . According to the notes of the meeting , ORG is reported as having stated that he would not do a “ PERSON ” at the school but would see the deputy at home . In the ORG ’s view , this would explain why the police requested that a casual watch should be kept on Mr ORG address . Furthermore , despite the wording of the ORG memorandum of CARDINAL DATE and of Mr Prince ’s rather cryptic diary entry on CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) it seemed unlikely PERSON that the police had referred to or promised police protection to the PERSON family especially since none was in fact envisaged or provided . The school authorities had probably received this impression from the assurances given by the police that the necessary measures were being taken to deal with the situation including the vague threats made against Mr PERSON .

The Commission did not find it established that the letter sent by the ORG to ORG at the request of the police following the failed arrest attempt on CARDINAL DATE caused ORG to disappear ( see paragraph CARDINAL above ) . It was also satisfied that the police took no further active steps to trace the whereabouts of ORG from DATE apart from placing his name on ORG in DATE . In addition , there were no contemporaneous records to support the assertion that ORG had informed the police about ORG being seen by her son around the PERSON home in DATE ( see paragraph CARDINAL above ) . It may have been the case that PERSON Green merely left a message with the police station that ORG should ring her back . In that event , it was not surprising that ORG had not been able to make a connection between a PERSON and the ORG file since the case had been dormant for DATE .

The offence of murder is committed if a person of sound mind unlawfully kills any human being with malice aforethought . The mental element of murder , “ malice aforethought ” , is established if it is proved that there was , on the part of the accused , an intention to kill , an intention to cause grievous bodily harm or an intention to do an act knowing it to be highly probable that the act will cause death or grievous bodily harm . The sentence for murder is life imprisonment .

The offence of manslaughter is committed if the victim is unlawfully killed by a person who , by reason of abnormality of mind , suffered from diminished responsibility – i.e. who suffered from such abnormality of mind as substantially impaired his mental responsibility for his acts . The sentence of manslaughter is imprisonment for life or for any shorter term .

The power to obtain a warrant to search for items that have been used , or are intended for use , in committing criminal damage is governed by section CARDINAL ) of LAW DATE which provides :

“ If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse –

( a ) to destroy or damage property belonging to another ; or

( b ) to destroy or damage any property in a way likely to endanger the life of another ,

the Justice of the ORG may grant a warrant authorising any constable to search for and seize that thing . ”

NORP In order for an arrest to be lawful it must first satisfy either section CARDINAL or CARDINAL of the Police and Criminal Evidence Act DATE ( “ the DATE LAW ) .

DATE . Under section CARDINAL a police officer may arrest any person whom he has reasonable grounds to believe is guilty of an arrestable offence . All offences which carry a maximum sentence of CARDINAL years’ imprisonment or more are considered arrestable offences ( section CARDINAL ) ) .

Under LAW a police officer may arrest without warrant any person whom he has reasonable grounds to suspect is guilty of a non - arrestable offence provided that CARDINAL of the general interest conditions apply . These include :

( a ) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as a name is in fact his real name ( section CARDINAL(CARDINAL)(a ) ) ;

( b ) that the constable has reasonable grounds to believe that an arrest is necessary to prevent the relevant person causing physical injury to any person or causing loss or damage to property ( section CARDINAL(CARDINAL)(d)(i ) and ( ii ) ) ;

( c ) that the constable has reasonable grounds to believe that an arrest is necessary to protect a child or other vulnerable person from the relevant person ( section GPE ) ) .

In determining whether the available information is sufficient to give rise to a reasonable suspicion , the test to be applied is that laid down by ORG in PERSON v. PERSON [ DATE ] Appeal Cases at p. CARDINAL :

“ Suspicion in its ordinary meaning is a state of conjuncture or surmise where proof is lacking : ‘ I suspect but I can not ORG . Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end . ”

Where a person is arrested for an offence without a warrant , or under a warrant not endorsed for bail , the custody officer at the police station where he is detained after his arrest must determine whether he has sufficient evidence to charge the person for the offence for which he has been arrested ( section ORG ) of the CARDINAL Act ) . In reaching this decision the custody officer must have “ reasonable and probable ” cause to prosecute . In PERSON v. PERSON [ DATE ] CARDINAL Queen ’s Bench Division at p. CARDINAL , Judge Hawkins interpreted this requirement to mean :

“ … an honest belief in the guilt of the accused based upon a full conviction , founded upon reasonable grounds , of the existence of a state of circumstances , which , assuming them to be true , would reasonably lead any ordinary prudent and cautious man , placed in the position of the accuser to the conclusion that the person was probably guilty of the crime imputed . ”

NORP The custody officer is not required to be sure that the accused person is guilty before charging him ( Tempest v. PERSON [ DATE ] CARDINAL ORG Bench Reports at p. CARDINAL ) . Nor is it necessary for a charging officer to believe that the prosecution will result in a conviction ( PERSON v. PERSON [ DATE ] CARDINAL Weekly Reporter at p. CARDINAL ) . The charging officer is simply required to make an assessment of whether there is sufficient evidence to withstand examination in the course of “ a fair and impartial trial ” ( PERSON v. McIver [ DATE ] Appeal Cases at p. CARDINAL ) .

If the custody officer does not have sufficient evidence to charge , the arrested person must be released either on bail or without bail . However , if the custody officer has reasonable grounds to believe that the suspect ’s detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him , the custody officer may authorise the suspect ’s further detention ( section CARDINAL ) of the CARDINAL Act ) .

In determining whether to bring criminal charges against a person , the custody officer may take into account evidence disclosing a pattern of ORG offending . However , in ORG v. P. [ DATE ] CARDINAL Appeal Cases at p. CARDINAL ORG stated that admissibility of such evidence is to be determined by the degree of its probative worth . The Lord Chancellor , Lord ORG , said :

“ … the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime … Once the principle is recognised that what has to be assessed is the probative force of the evidence in question , the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved . Whether the evidence has sufficient probative weight to outweigh its prejudicial effect must in each case be a question of fact and degree . ” ( at p. CARDINAL )

He continued :

“ Where the identity of the perpetrator is in issue , and evidence of this kind is important in that connection , obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary . To transpose this requirement to other situations where the question is whether a crime has been committed , rather than who did commit it , is to impose an unnecessary and improper restriction upon the application of the principle . ” ( at p. CARDINAL )

Section CARDINAL of the DATE Act provides that where an arrested person is charged with an offence , the custody officer shall order his release from police detention , either on bail or without bail , unless , inter alia , his name or address can not be ascertained ; detention is necessary for the person ’s own protection or to prevent him causing physical injury to any other person or damage to property ; or the person arrested will fail to appear in court to answer bail .

If the custody officer decides not to release the defendant , he must be produced before a ORG within TIME after his arrest who shall either commit him in custody or release him on bail . Pursuant to section QUANTITY of Schedule CARDINAL Part CARDINAL to LAW DATE :

“ The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant , if released on bail ( whether subject to conditions or not ) would –

( a ) fail to surrender to custody , or

( b ) commit an offence while on bail , or

( c ) interfere with witnesses or otherwise obstruct the course of justice , either in relation to himself or any other person . ”

In taking this decision ORG is required , pursuant to section CARDINAL of Schedule CARDINAL Part CARDINAL , to have regard to such of the following considerations as appear to it to be relevant , namely :

“ ( a ) the nature and seriousness of the offence … ;

( b ) the character , antecedents , associations and community ties of the defendant ;

( c ) the defendant ’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings ;

( d ) except in the case of a defendant whose case is adjourned for inquiries or a report , the strength of the evidence of his having committed the offence or having defaulted . ”

Section CARDINAL of LAW DATE provides :

“ ( CARDINAL ) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control , the constable may , if he thinks it necessary to do so in the interests of that person , or for the protection of other persons , remove that person to a place of safety …

( CARDINAL ) A person removed to a place of safety under this section may be detained there for a period not exceeding CARDINAL TIME for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care . ”

Both ORG and ORG have the power to remand an accused person to a specified hospital for the preparation of a report on his mental condition . Section CARDINAL(CARDINAL ) defines an accused person as follows :

“ ( a ) in relation to ORG , any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence on which he has been arraigned ;

( b ) in relation to a ORG any person who has been convicted by the court of an offence punishable on summary conviction with imprisonment and any person charged with such an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise by the court of the powers conferred by this section . ”

If these requirements are met the court may , pursuant to section CARDINAL(CARDINAL ) , remand the accused person to a hospital for a report if :

“ ( a ) the court is satisfied on the written or oral evidence of a registered medical practitioner , that there is reason to suspect that the accused person is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment ; and

( b ) the court is of the opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail … ”

ORG may remand an accused person to a specified hospital for treatment , if it is satisfied on the evidence of CARDINAL medical practitioners that he is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be so detained ( section CARDINAL ) ) .

Following conviction for an offence punishable with imprisonment , both ORG and ORG have the power under section ORG ) to make an interim hospital order , where :

“ … the court before or by which he is convicted is satisfied , on the written or oral evidence of CARDINAL registered medical practitioners

( a ) that the offender is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment ; and

( b ) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case … ”

Pursuant to section CARDINAL ) both ORG and ORG may also admit an offender to a hospital if :

“ ( a ) NORP the court is satisfied , on the written or oral evidence of CARDINAL registered medical practitioners , that the offender is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment and that …

( i ) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and , in the case of psychopathic disorder or mental impairment , that such treatment is likely to alleviate or prevent a deterioration of his condition …

( b ) the court is of the opinion , having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender , and to the other available methods of dealing with him , that the most suitable method of disposing of the case is by means of an order under this section . ”

In the case of ORG v. ORG ( [ DATE ] Appeal Cases at p. CARDINAL ) , the owners of a yacht damaged by borstal boys who had escaped from the supervision of prison officers sought to sue ORG alleging negligence by the prison officers . ORG held that in the particular case a duty of care could arise . Lord PERSON said :

“ I should therefore hold that any duty of a borstal officer to use reasonable care to prevent a borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situated in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and capture . ”

In the case of PERSON v. Chief Constable of GPE ( [ DATE ] Appeal Cases at p. CARDINAL ) , the mother of a victim of the PERSON instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members of the public who might be his victims . Lord PERSON in ORG found :

While he considered this sufficient to dispose of the appeal , Lord PERSON went on to set out public - policy objections to the existence of an action in negligence against the police in the performance of their duties in the investigation and suppression of crime .

“ Potential existence of such liability may in many instances be in the general public interest , as tending towards the observance of a higher standard of care in the carrying on of various different types of activity . I do not , however , consider that this can be said of police activities . The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime . From time to time they make mistakes in the exercise of that function , but it is not to be doubted that they apply their best endeavours to the performance of it . In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind . The possibility of this happening in relation to the investigative operations of the police can not be excluded . Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had ORG failed to catch some criminal as soon as they might have done , with the result that he went on to commit further crimes . While some such actions might involve allegations of a simple and straightforward type of failure DATE for example that a police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation , as indeed the present action would seek to do . The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion , for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources . Many such decisions would not be regarded by the courts as appropriate to be called in question , yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so . A great deal of police time , trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial . The result would be significant diversion of police manpower and attention from their most important function , that of the suppression of crime . Closed investigations would require to be reopened and retraversed , not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted . ”

Lord PERSON commented :

“ ... if this action lies , every citizen will be able to require the court to investigate the performance of every policeman . If the policeman concentrates on CARDINAL crime , he may be accused of neglecting others . If the policeman does not arrest on suspicion a suspect with previous convictions , the police force may be held liable for subsequent crimes . The threat of litigation against a police force would not make a policeman more efficient . The necessity for defending proceedings , successfully or unsuccessfully , would distract the policeman from his duties .

This action is misconceived and will do more harm than good . ”

In Swinney and another v. the Chief Constable of GPE ( [ DATE ] Queen ’s Bench Reports at p. CARDINAL ) , the plaintiff had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer , expressing her concern that she did not want the source of the information to be traced back to her . The information was recorded , naming the plaintiff , in a document which was left in an unattended police vehicle , which was broken into with the result that the document was stolen , came into the possession of the person implicated and the plaintiff was threatened with violence and arson and suffered psychiatric damage . The plaintiff ’s claim in negligence against the police was struck out but allowed on appeal by ORG judge . The Chief Constable appealed contending that the police owed no duty of care or alternatively that public policy precluded the prosecution of the claim since the police were immune for claims arising out of their activities in the investigation or suppression of crime . ORG dismissed the appeal .

In his judgment Lord Justice PERSON referring to the cases of ORG and PERSON ( see paragraphs CARDINAL–CARDINAL above ) stated that he could not accept a claim of blanket immunity for the police in this case , but that there were other considerations of public policy in this case , namely , the need to protect springs of information , to protect informers and to encourage them to come forward . On the facts of the case , it was arguable that the police had assumed a responsibility of confidentiality towards the plaintiff . The case should therefore proceed to trial .

Lord Justice Ward held that it was arguable that :

“ There is a special relationship between the plaintiffs and the defendant , which is sufficiently proximate . ORG is shown by the police assuming responsibility , and the plaintiffs relying upon that assumption of responsibility , for preserving the confidentiality of the information which , if it fell into the wrong hands , was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others , greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude .

It is fair , just and reasonable that the law should impose a duty , there being no overwhelming dictate of public policy to exclude the prosecution of this claim . On the one hand there is , as more fully set out in GPE v. the Chief Constable ... an important public interest that the police should carry out their difficult duties to the best of their endeavours without being fettered by , or even influenced by , the spectre of litigation looming over every judgment they make , every discretion they exercise , every act they undertake or omit to perform , in their ceaseless battle to investigate and suppress crime . The greater good rightly outweighs any individual hardship . On the other hand it is incontrovertible that the fight against crime is DATE dependent upon information fed to the police by members of the public , often at real risk of villainous retribution from the criminals and their associates . The public interest will not accept that good citizens should be expected to entrust information to the police without also expecting that they are entrusting their safety to the police . The public interest would be affronted were it to be the law that members of the public should be expected , in the execution of public service , to undertake the risk of harm to themselves without the police , in return , being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected ... ”

The police have been held liable in negligence or failure in their duties in other cases . In GPE v. the Chief Constable of GPE ( [ DATE ] CARDINAL Queen ’s Bench Reports at p. CARDINAL ) , ORG upheld a finding of liability in negligence under LAW DATE where the police had taken a man into custody , knew he was a suicide risk but did not communicate that information to the prison authorities . The man , diagnosed as suffering from clinical depression had committed suicide in remand prison . The police , which had assumed responsibility for the man , had owed a duty of care , which they had breached with the result that his death had ensued .

In PERSON and another v. Chief Constable of GPE ( [ DATE ] CARDINAL All England Law Reports at p. CARDINAL ) , ORG found the police liable to pay damages for negligence in that they had fired a gas canister into the plaintiffs’ premises in order to flush out a dangerous psychopath . There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was firefighting equipment available to put the fire out at an early stage . No equipment had been present at the time and the fire had broken out and spread very quickly . Negligence was also found in GPE v. PERSON and others ( [ DATE ] CARDINAL All England Law Reports at p. CARDINAL ) where a police inspector at the site of an accident failed to close a tunnel and ordered officers to go back through the tunnel in the face of traffic , thereby leading to a further accident .

In NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Reports at p. CARDINAL ) , where a police officer stood by while a man died outside a club in a murderous assault , ORG upheld the conviction of the officer for wilful neglect to perform a duty .