Failure To Remove Claims - The Osman Test In The Context Of Domestic Violence

• Published date: 02 March 2022
• Law Firm: 1 Chancery Lane
• Author: Mr Jack Harding

1. In a claim for a violation of the operational duty under articles 2 or 3¹ of the European Convention of Human Rights, the applicant must satisfy the 'Osman'² Where it is alleged that the victim was killed, or subjected to inhumane or degrading treatment, by third parties, as distinct from agents of the state, it must be shown 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 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"

2. This is unquestionably a high threshold, reflecting as it does the need for clear evidence before the imposition of liability on the state for the criminal acts of persons for whom they have no direct responsibility. In R (on the application of A) v Lord Saville of Newdigate [2002] 1 WLR 1249, Lord Phillips of Worth Matravers MR observed that:

"The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera . . . Of one thing we are clear. The degree of risk described as 'real and immediate' in Osman v United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was 'a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party' which was, or ought to have been, known to the authorities . . . Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself".

3. It is also well established that the assessment of this risk must be based exclusively upon what is known or ought to have been known at the time, without the benefit of hindsight. Thus, Lord Hope in Mitchell v Glasgow City Council[2009] 1 AC 874 stated: "The court must try to put itself in the same situation as those who are criticised were in as events unfolded before them. These events must, of course, be in their whole context"

4. The majority of the leading cases in which the Osman test has been analysed and applied domestically, and at Strasbourg, have involved article 2 (as distinct from article 3) and have arisen out of specific, self-contained incidents leading directly to the death of the victim. Thus, for example, Osman itself concerned a teacher who had injured a student to whom he had developed an inappropriate attachment, and who had killed the student's father. Prior to this incident he had carried out attacks on the family's property and threatened the deputy head teacher who had expressed strong concerns regarding his behaviour.

5. The application of the test to situations of domestic violence and abuse (whether or not leading to death) which have developed over a longer period of time, rather than as part of defined incident or series of short incidents, has always been more problematic. In those cases where claims arising out of alleged mistreatment or abuse have reached the European Court, the immediate risk of death or mistreatment has either been conceded (see...