IVISON v. THE UNITED KINGDOM

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39030/97
by Rebecca IVISON
against the United Kingdom

The European Court of Human Rights (Second Section), sitting on 16 April 2002 as a Chamber composed of

MrJ.-P. Costa, President,
MrA.B. Baka,
SirNicolas Bratza,
MrGaukur Jörundsson,
MrL. Loucaides,
MrC. Bîrsan,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 21 July 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The application was originally introduced by Irene Ivison, a United Kingdom national, born in 1946 and living in Sheffield. Following her death in or about October 2000, her daughter Rebecca Ivison has expressed her intention of continuing the application. She is represented before the Court by Mrs Mary Cunneen, legal director of Liberty, London.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Fiona Ivison, the sister of the applicant, was born in 1976 and killed in 1993.

In 1990, Fiona started associating with two older men, Mr B and Mr T. She had sex with them and smoked cannabis. On 8 November 1990, she took an overdose of paracetamol tablets following an argument with her mother. She was seen by an adolescent psychiatrist who found no ascertained evidence of mental illness and attributed her conduct to “rebellion in the context of a liberal household”.

On 12 December 1990, Fiona was referred to the social services.

The applicant’s mother sought the help of the South Yorkshire Police and the Sheffield Social Services repeatedly in relation in particular to her concerns about Fiona’s contacts with B and T. Though she told the police after each occasion that she was aware that Fiona had passed the night at the men’s flats, she stated that she was told that they could do nothing as Fiona refused to complain.

On 18 November 1991, a case conference was convened by Fiona’s social worker using child protection law. It was attended by four social workers, two police officers from the sexual offences and child abuse unit and the applicant. It was decided that, first, the police officer would liase with the South Yorkshire Police Drug Squad about Fiona’s exposure to drugs and talk to T to reinforce concern about his relationship with Fiona and, secondly, the social worker would continue working with Fiona in the hope that the latter would begin to recognise the risks to which she was exposed because of her relationship with T.

In March 1992 the applicant’s mother wrote to the police and received a reply to the effect that “her comments had been passed on to the officers in the case”. The applicant’s mother was not aware of any action being taken.

In April 1992 Fiona, now aged 16, left home to live with T. However, in spring 1993 she returned home.

In late November 1993 however Fiona began working as a prostitute (unbeknown to her mother) on B’s instructions. On Friday, 17 December 1993, Fiona left home in the evening telling her mother that she would not return that night. When she had not returned by Sunday evening, 19 December, her mother reported her missing to the police. On 20 December, she was taken to the mortuary where she identified the body of a girl found on 18 December 1993 as being Fiona. Fiona had been killed by a client, D, who hit her head repeatedly on the floor.

D was arrested on 23 December 1993.

An inquest into Fiona’s death was opened on 6 January 1994 at the Coroner’s Court in Doncaster. Since the Coroner had been informed that D had been charged with murder, the inquest was adjourned. On 7 January 1994, a death certificate was issued to the effect that Fiona had died of head injuries. The inquest was not resumed in the light of the criminal proceedings.

In February 1995 D pleaded guilty to murder and was sentenced to life imprisonment.

On 1 September 1995, the applicant’s mother wrote to the Chief Constable of the South Yorkshire Police raising various questions about the lack of police action before Fiona’s death, including a specific question as to why the Child Abduction Act had not been used. On 13 November 1995 she received a reply in which a representative of the police referred to the difficulties of applying various provisions of the criminal law in this case, but acknowledged “with the benefit of hindsight that more could have been done to prevent from being drawn into the maelstrom of drugs and vice.”

On 16 December 1996, the applicant’s mother issued a writ in the High Court against the South Yorkshire Police and the Sheffield Social Services claiming damages for negligence. She applied for legal aid, submitting a statement of case in which she alleged that the police and social services had been aware of her daughter’s connection with two men with criminal records and had been warned that she was being led into underage sex and drugs. It was argued that there was no absolute immunity against suing the police, this depending on sufficient proximity existing between the parties, and that in this case the police and social services should have taken decisive action to protect Fiona from these men and prevented her from drifting into prostitution with its inevitable consequences. On the form where it was required to estimate prospects of success of the action, the solicitor indicated that it was not possible to say.

On 17 December 1996, the Legal Aid Board area office refused the applicant’s mother legal aid for these proceedings, stating that “on the information submitted it is considered that you are unlikely to succeed in establishing negligence either in relation to your daughter’s death or in relation to your own post-traumatic stress”.

On 29 January 1997, after a hearing at which the applicant’s mother and her legal representative had attended to make representations as to why legal aid should be granted, the Legal Aid Board area committee rejected her appeal on the ground that it had no reasonable prospects of success.

On 20 February 1997, the applicant’s mother was advised by counsel that the common law position was such as to preclude her from pursuing a claim for damages in the domestic courts.

The applicant’s mother made requests to various authorities for information about the background to and circumstances of Fiona’s death. By letter dated 12 August 1998, Sheffield Social Service informed her that Fiona’s file would have been destroyed in December 1996, pursuant to a three year rule applying to persons who were not on a child protection register or otherwise in the care of the social services.

By letter dated 5 February 1999, the applicant’s mother was informed by the South Yorkshire Police that records existed holding details of the enquiry into Fiona’s murder, but that they were not in a position to give any information additional to the extensive material provided during the police investigation by the Senior Investigating Officer. By letter dated 8 December 1999, the solicitors for the Chief Constable of South Yorkshire Police disputed that they were under an obligation to provide any further information or documents, and stated that the Chief Constable would however do so if ordered by a court.

Following further requests to the social services, documents from the Child Protection Team, including the case conference minutes, were given to the applicant’s mother on 13 December 1999.

B.  Relevant domestic law and practice

In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:

–  that damage to the claimant was foreseeable;

–  that the claimant was in an appropriate relationship of proximity to the defendant; and,

–  that it is fair, just and reasonable to impose liability on the defendant.

These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).

If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.

In Hill v. Chief Constable of West Yorkshire (1989 A.C. 53), the mother of a victim of the Yorkshire Ripper 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 various murders and to protect members of the public who might be his victims. Lord Keith in the House of Lords found that there was no sufficient foreseeability of harm to this victim, there being no general duty of care to protect all young females from a risk at large and that the imposition of liability was also excluded by strong policy reasons relating to the operational efficiency of the police. Exceptions to this approach arose in later cases (e.g. Swinney and another v. the Chief Constable of Northumbria [1997] Q.B. 464).

In X and Others v. Bedfordshire County Council ([1995] 3 AER 353), the House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. In subsequent cases, it was not excluded that in certain circumstances a duty of care might arise (see e.g. Barrett v. the London Borough of Enfield [1999] 3 WLR 79).

COMPLAINTS

1.  In the initial application submitted on 21 July and 13 November 1997, the applicant’s mother complained under Articles 2, 6, 8 and 13 of the Convention. She complained that the authorities failed to protect the life of her daughter Fiona and that this also breached their right to respect for family and private life. In connection with the complaints under Articles 6 and 13 of the Convention, she argued that she had been denied access to court due to the refusal of legal aid and because, under common law, the liability of the social services and the police for negligent failure leading to damage is excluded or greatly restricted.

2.  On 31 January 2000 a revised application was submitted in the name of both the applicant’s mother and Fiona in which, in addition to the above complaints, it was argued that there was a continuing violation of Article 2 because of the authorities’ failure to put into place an effective official investigation into the circumstances leading to Fiona’s death. It was also argued under Articles 2 and 8 of the Convention that the authorities should have provided the applicant’s mother with access to information or documents relevant to the circumstances leading up to Fiona’s death.

THE LAW

The applicant raises numerous complaints concerning the circumstances leading to her sister Fiona’s death and the alleged unavailability of effective investigation or redress afterwards, invoking Articles 2, 6, 8 and 13 of the Convention. These complaints were originally made by the applicant’s mother. However, the Court accepts that the applicant may take them over since her mother’s death.

1.  As concerns the complaints raised on 31 January 2000, the Court notes that this was the first time reference was made to an alleged lack of proper investigation into Fiona’s death.  The applicant and her mother were, or must have been regarded as being aware when first making the application to the Court of the situation as regards the investigation into the death, namely, that nothing had been done after D’s conviction. In those circumstances, the fact that nothing else was done later does not disclose a potential continuing violation. As the final decision in the process of exhausting available domestic remedies pursuant to Article 35 § 1 of the Convention must be regarded, at the latest, as being the refusal of the legal aid appeal on 29 January 1997, this part of the application has been introduced more than six months after that date and must be rejected as being out of time, pursuant to Article 35 §§ 1 and 4 of the Convention.

2.  Insofar as complaints were raised under Article 6 § 1 of the Convention concerning a lack of access to court, this provision provides as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Government submitted that as regards the refusal of legal aid the applicant’s mother did not exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as she did not apply to the High Court for judicial review of the refusal of the Legal Aid Board. Even assuming that there had been exhaustion, they considered that Article 6 § 1 did not guarantee the right to legal aid in civil proceedings. In this case the applicant’s mother had not satisfied the domestic law tests applied to ensure that limited public funds were not squandered on cases which were improperly brought or which stood no chances of success. The applicant’s mother was refused legal aid on the basis that she had no reasonable prospects of success. She did not show that this in any event prevented her from bringing her claims before the courts as it would have been possible to continue, either as a litigant in person or with the assistance of solicitors or bodies prepared to act without legal aid. While the applicant’s mother also argued that her claims could not be pursued because of the alleged immunities of the police and social services, the Government disputed that this was the cause of the rejection of her legal aid application, which rather failed due to lack of any prospects in showing negligence. Even if no duty of care arose in respect of certain police actions or the conduct of certain social service responsibilities, this indicated that no civil right existed attracting the operation of Article 6 § 1 of the Convention (see Z. and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V).

The applicant’s mother argued that she was denied access to court due to the refusal of legal aid and by the operation of the immunities applying to police and social service actions (referring to the case of Hill v. West Yorkshire Police [1989] AC 53 which was in issue in the Osman v. the United Kingdom judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII and to the case of X (minors) v. Bedfordshire CC [1995] 3 All ER 371). The civil proceedings had been the only means by which her mother could have held the relevant authorities accountable for their shortcomings. As regards the refusal of legal aid, she claimed that this effectively terminated the proceedings, as her mother had no means to pursue the action privately. The proceedings were highly complex and involved intimate personal issues which she could not have presented properly without the assistance of a lawyer. Her mother was in the circumstances incapable mentally, physically and emotionally of pursing negligence proceedings without a lawyer. Nor did she have any expectation of being able to obtain pro bono assistance from any other source. The decision that the claim of the applicant’s mother presented no reasonable prospects of success reflected, in her view, the Legal Aid Board’s understanding of the broad immunity from suit enjoyed by such public bodies in the discharge of certain of their functions. Her mother was prevented from challenging the immunity rule or seeking to establish an exception.

The Court notes that the applicant’s mother did not respond to the Government’s claim of non-exhaustion, though it appears to be implied that without legal aid and the assistance of a lawyer no further action in the courts was possible. However, even assuming for the purposes of this application, that the requirements of Article 35 § 1 have been satisfied, the complaints must be rejected for the reasons set out below.

Article 6 § 1 of the Convention embodies the right of access to a court for the determination of civil rights and obligations (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36). There is however no automatic right under the Convention to legal aid to pursue a civil action (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 15, § 26). The Court’s case-law indicates that if an applicant was refused legal aid in a case where there existed reasonable prospects of success and therefore had no legal representation this could, in certain circumstances, indeed deny an applicant effective access to court (see, for example, McTear v. the United Kingdom (dec.), no. 40291/98, (Sect. 3) 7 September 1999). In that context, it may be noted that the right of access to court is not absolute and may be subject to legitimate restrictions. Where an individual’s access is limited either by operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57).

In the present case, the Court observes that the Legal Aid Board rejected the legal aid application of the applicant’s mother on the basis that, given the information provided, it was considered unlikely that she could establish negligence. There was no opinion of counsel supporting the possibility of establishing such a case and the solicitor, in filling in the application form which requested an estimate of the chances of success, had indicated that it was impossible to say. While the statement of case alleged that there was sufficient proximity between the parties such as to establish negligence, the Court notes the lack of any indication of an assertion that the police or social services were in any way aware that Fiona was working as a prostitute for B at the time in question or had been alerted to any specific threat of violence against her. As negligence requires a duty of care with the elements of proximity or foreseeability, as well as a causal connection between the alleged breach of duty of care and the damage suffered, the finding of the Legal Aid Board does not disclose any appearance of arbitrariness. Though the pursuit of the proceedings as a litigant in person by the applicant’s mother would not have been an easy matter with or without other assistance, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice and the manner in which it functioned in this case has not been shown to be disproportionate or to impinge on the essence of the right of access to court (see the judgment Del Sol v. France, no. 46800/99, [former Section 3], of 26 February 2002).

Nor in these circumstances is the Court persuaded that the refusal of legal aid was based on the fact that the police enjoyed a broad immunity such as was in issue in the above-cited Osman case. Even assuming that it was, the Court notes that in the more recent case of Z. and Others (cited above), the Grand Chamber was satisfied that the inability of the applicants to sue on the ground that it would not be fair, just and reasonable to impose a duty of care flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. If it was alleged that the legal aid authorities had misinterpreted domestic law in this respect, this would, as the Government have submitted, furnished a ground for judicial review in the High Court.

The Court concludes that the inability of the applicant’s mother to pursue her civil action did not result from any unreasonable or disproportionate restriction applied in relation to the grant of legal aid nor from the existence of any absolute bar to actions in negligence against the police or social services. The facts of the case do not disclose any unjustifiable restriction on access to court and this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3.  The applicant invoked Article 2 of the Convention, arguing that the authorities failed to protect Fiona’s life.

Article 2 of the Convention provides as relevant:

“1.  Everyone’s right to life shall be protected by law. ...”

The Court recalls that the recent case-law of the Convention organs establishes that Article 2 is not exclusively concerned with intentional killing resulting from the use of force by agents of the State, but also imposes a positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction (see e.g. Osman v. the United Kingdom judgment, cited above, § 115). The scope of the obligation will depend on the circumstances of the case, bearing in mind, amongst other relevant considerations, the operational choices that have to be made in terms of priorities and resources and the necessity of interpreting such an obligation in a way which does not impose an impossible or disproportionate burden on the authorities. For example, in the Osman case (op. cit, § 116), the Court held that Article 2 imposed a positive obligation on the authorities to take preventive measures to protect an individual whose life was at risk from the criminal acts of another individual. This obligation would not be met where it was established 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 they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

Applying that approach in the present case, the Court observes that there is no evidence in the file before it indicating that the authorities knew, or ought to have known, that Fiona was working as a prostitute. The applicant’s mother herself was unaware at that time and therefore had not brought the matter to the knowledge of the authorities. The fact that the applicant’s mother had informed the authorities of her concerns for Fiona’s welfare if continuing to consort with two particular individuals, is not sufficient to show the existence of a specific risk of danger to her life in respect of which the authorities can be held responsible for failing to take preventive measures. Tragic though the circumstances of this case are, the Court does not consider that the scope of Article 2 can be extended to place a general obligation on the authorities to protect persons from falling under harmful influences of a criminal or immoral nature.

The Court finds therefore that the complaints under Article 2 are unsubstantiated and must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4.  The applicant invoked Article 8 of the Convention, firstly, in respect of the allegation that the failure to protect Fiona breached the right to family and private life of both Fiona and her mother and, secondly, in respect of the alleged lack of disclosure of information or documents about the circumstances of Fiona’s death.

Article 8 provides as relevant:

“1.  Everyone has the right to respect for his private and family life ...”

(a)  As regards the alleged failure by the authorities to protect Fiona, it is true that positive obligations can arise under Article 8 requiring authorities to take steps to safeguard private and family life (see e.g. X. and Y. v. the Netherlands judgment of 26 March 1983, Series A no. 91). In that context, the case-law indicates that the notion of “respect” is not clear-cut and will vary considerably from case to case. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention.

In this case, the applicant’s mother had drawn to the attention of the authorities the fact that her daughter, who was under age at that time, was involved in sexual relationships with men who had criminal records and were introducing her to drugs. Some steps had been taken, in particular a case conference had been held and it had been decided to make approaches to the man with whom she was currently involved and for the social worker to discourage Fiona from her destructive lifestyle. It appears that the police felt unable to take any steps to prosecute the men for any alleged sexual offences as Fiona was not prepared to co-operate. The Court would observe that in the absence of any evidence from the purported victim or any other eye-witness to an alleged offence, the prospects of a successful prosecution would have been slim, if not non-existent. While the applicant’s mother raised issues later with the police authorities as to other possibilities existing under criminal law, it is not apparent that these would have had any more likelihood of success where Fiona herself was not a willing participant in the efforts to help her. While it may now be possible, with the benefit of hindsight, to consider that more effective steps could have been taken by the social services to counsel or supervise, it is speculative as to whether this would have had any dissuasive impact on Fiona’s conduct. Though she was under age and thus vulnerable, this did not give the authorities carte blanche with regard to coercive or more draconian care measures. Considerations of her own individual autonomy cannot be excluded.

Finally, the extent of the danger which she was running, when she commenced working as a prostitute, was not known either to the applicant’s mother or to the authorities. The Court concludes that there has been no failure by the authorities in this case to respect the family and private life of Fiona and her mother.

(b)  As regards the alleged failure to disclose documents and information, the Court observes that in August 1998 the applicant’s mother was informed that the file on Fiona had been destroyed according to applicable policies. Such information as was available from the child protection team was provided. The applicant’s mother had been provided with extensive information about the police investigation into Fiona’s death. It appears that the subsequent refusal of the police to provide any further material without a court order related to the request of the applicant’s mother for access to all information about the actions of the police taken in relation to her daughter prior to her death in relation to allegations of their failure to take preventive steps.

The Court notes that the interest of the family in knowing about the circumstances of the death was acknowledged by the disclosure of  considerable materials from the police investigation. It is not alleged that there are any outstanding documents or information relating to the death which are being withheld.

In the circumstances of this case, the Court does not find that there has been any failure to respect private and family life as regards the non-disclosure of information or documents.

(c)  The Court concludes therefore that the complaints under Article 8 are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

5.  The applicant also invoked Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the substantive complaints are manifestly ill-founded, or otherwise inadmissible. For similar reasons, the applicant and her mother did not have an “arguable claim” and Article 13 is therefore inapplicable to their case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. DolléJ.-P. Costa
RegistrarPresident

Full & Egal Universal Law Academy