QB-2022-002447 - [2025] EWHC 2803 (KB)

It is possible to take this section of the judgment more shortly. In spite of Mr Lemer’s intricate and interesting submissions on this area (by skeleton argument, orally and by several later written notes), for which I was grateful, I have come to the clear conclusion that the Human Rights Act claims that D1 here seeks to strike out or obtain summary judgment in, do not survive scrutiny.

This is essentially for those reasons advanced by Mr Weston as set out above. The issue is a straight forward one: no matter the theory behind avenues of potential liability under the various Articles, even were those frameworks to be made out, the factual position in this case just does not support the positions advanced.

The ill-treatment here does not reach the threshold in my judgement of engaging Articles 2 and 3, but in any event, the operational obligations inherent in the Article 3 claim or the same claim but phrased in terms of Articles 2 or 8, do not get off the ground because the nature of the obligation that falls upon the state in such cases is incapable of being made out here.

As it was said in Osman v United Kingdom (1998) 29 EHRR 245 as to Article 2

“In the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of the above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that 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.

…

For the court, and having regard to the nature of the right protected by article 2, a right fundamental to the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.”

As to C2, C3’s sister who is not mentioned in the notes – and one note indeed suggests no risk to anyone but to C1 - there is in my judgement nothing that shows that D1 ought to have known of her and have been put on notice such as to incur the obligations set out in the relevant case law.

Even on the imposition of a less stringent testin breach of positive obligations under Article 8, namely to take the necessary steps to ensure effective protection of the applicants right to respect for private and family life, the Claimants cannot show (as is argued by Mr Lemer) that D1 knew or ought to have known that C3 presented a real and immediate risk of harming himself or acting as he did – whether so as to affect others or indeed himself. The evidence at its highest, and which is pleaded, does not show any feature of his behaviour that prefigures the events of 23 December 2018 or suggests that he was at the time of the alleged breach in such a position.

I would also point to a passage in the judgment of Green J inDSD v Commissioner of Police of the Metropolis [2014] EWHC 436 (QB)where he said

“I cannot see any circumstances in which Article 8 would provide a broader level of protection than is accorded by Article 3. In none of the Strasbourg authorities has the Court treated Article 8 as having an effect extending beyond Article 3. This is logical. Article 8 is a circumscribed obligation which is subject to competing interests. It has, by its very nature, a more limited ambit than Article 3 which is clear unequivocal and brooks of no exception. I take comfort in this conclusion from the trenchant observations of Lord Justice Gross in Allen (ibid) at paragraphs [56] and [57]. He took the view that in the absence of success under Article 3 it would not be possible to succeed under Article 8. He added this more generally (with which I concur):

“I add only this: it would be necessary to think long and hard before acceding to any claim raising the prospect of some generalised positive obligation on the State to intervene under Art. 8, without the closest scrutiny of the limits of any such postulated obligation. The ramifications otherwise could be most unfortunate – not least, the unhappy prospect of widening the scope of Art. 8 still further”.

However as I say, the factual matrix is in any event insufficient to place the obligations on D1.

As was stated byLord Dyson in Rabone v Pennine Care NHS Trust, at para 15,

“As the ECtHR said at para 115 of the Osman case, the operational duty exists in ‘certain well-defined circumstances’. The court has held that there is a duty on the state to take reasonable steps to protect prisoners from being harmed by others including fellow prisoners (Edwards v United Kingdom (2002) 35 EHRR 487) and from suicide(Keenan v United Kingdom (2001) 33 EHRR 913). The same duty exists to protect others who are detained by the state, such as immigrants who are kept in administrative detention (Slimani v France (2004) 43 EHRR 1068) and psychiatric patients who are detained in a public hospital (Savage v South Essex Partnership NHS Foundation Trust (MIND intervening)) [2009] AC 681) …”

All other matters being equal, I do not accept as was pressed by Mr Lemer that the present case falls into a similar category. C3 was here not detained by D1, he was not a case like Ms Rabone, nor on facts similar to those cases where state failures have taken place and founded a claim.

Whether the case is put in respect of Article 2, 3 or 8 in respect of C3 it seems to me that in each case this claim fails on the basis it is not possible to characterise what happened to C3 vis a vis the local authority in the sense required under the HRA. Nothing was actually done to C3 and his situation is a very long way away from that of Ms Rabone or an incarcerated person or any category of persons to whom the duty to prevent self-harm arises – and this is far from being a case of that order.

As to victim status, I agree with Mr Weston,a direct victim must be directly affected by the breach complained of but the cases show that indirect victim status can apply to close family members in those circumstances where the direct victim has died or gone missing in order not to render the rights of the deceased a nullity. That is far from this case. In circumstances where each Claimant can bring their own claim for any breach of their rights, it is I accept undesirable for members of the family to remain a party to the proceedings as indirect or additional victims of the same alleged breach. The indirect claims would fail for this reason also.

I conclude that the submissions of the local authority are to be accepted in their entirety. Both as to strike out and as to summary judgment.