Smith v Chief Constable of Sussex Police [2008] UKHL 50

Introduction

Smith v Chief Constable of Sussex Police [2008] UKHL 50 confirmed that the police do not owe a duty of care to protect an individual from harm threatened by a third party, even where that third party may pose a known criminal risk. The claimant, Stephen Smith, made numerous reports to Sussex Police about his former partner, Gareth Jeffrey, who threatened to kill him after their relationship ended in December 2000. Jeffrey had previously been violent toward Smith, and the renewed threats arrived by text message and email, leaving Smith fearing for his safety.

Despite these warnings, the police declined to examine the evidence Smith offered and instead asked him to complete forms so an investigation could proceed. Smith was later attacked in his own home with a claw hammer by Jeffrey, and he subsequently sued Sussex Police for negligence, arguing that the force owed him a duty of care given how repeatedly he had raised the threat.

Facts of the Case

In early 2003, Smith telephoned Brighton Police to report that Jeffrey was threatening to kill him. He explained that Jeffrey had already been violent toward him in December 2000, when he first tried to end the relationship, and that fresh threats were now arriving by text message and email.

Smith had kept this correspondence and tried to show it to the two constables who attended his address, but they declined to look at it. No notes or reports were taken. Instead, Smith was advised to attend the police station to complete paperwork so the calls could be traced; he was later told the trace would take around four weeks.

The threatening messages continued. For his own safety, Smith relocated temporarily to London, where he visited Savile Row Police Station; officers there contacted Brighton Police for an update. On 10 March 2003, Jeffrey attacked Smith at his home with a claw hammer, causing multiple skull fractures, brain damage, and other serious and lasting injury. Jeffrey was subsequently arrested and convicted of making threats to kill and causing grievous bodily harm with intent.

Between February and March 2003, Smith made repeated attempts to present evidence of the threats against him. On each occasion, the police recorded only limited details, such as Jeffrey’s address and phone number, for the purposes of their inquiry, rather than treating the matter with urgency.

Smith sued Sussex Police for negligence, arguing that as a public authority, the police owed a duty of care to a member of the public who had presented credible evidence of a serious threat to his life.

Legal Issues

The central issue was whether the police owed Smith a duty of care in negligence once he had supplied evidence that a named individual posed a serious threat to his safety.¹

A secondary issue concerned whether the police’s failure to act breached Smith’s rights under the European Convention on Human Rights (ECHR) — specifically Article 2 (the right to life), Article 3 (freedom from torture and inhuman or degrading treatment), and Article 8 (the right to respect for private and family life).

Arguments Presented

Smith was represented by Heather Williams QC. The claimants argued that he had given the Brighton Police more than enough evidence to warrant a proper investigation,² including the text messages and emails documenting Jeffrey’s threats and his prior history of violence. They relied on Articles 2, 3, and 8 of the ECHR, with particular emphasis on Articles 2 and 3. On this basis, the claimants submitted that the police, as a public authority, held a positive obligation to take protective measures and to treat the threat to Smith’s life as a priority.

Sussex Police was represented by Edward Faulks QC. The respondents relied on the principle from Hill v Chief Constable of West Yorkshire³ [1989] AC 53, which holds that the police do not generally owe a duty of care to members of the public to apprehend or prevent the actions of a potential criminal.

Building on this principle, the respondents argued that imposing such a duty would encourage defensive policing,⁴ diverting police resources toward avoiding civil liability rather than fulfilling their core functions.⁵

On the question of proximity, the respondents argued that no special relationship existed between Smith and the police.⁶ Had such a relationship existed, it would have amounted to an assurance to Smith regarding his safety from Jeffrey.

Court’s Reasoning and Analysis

The House of Lords ruled in favour of Sussex Police, holding that the police did not owe Smith a duty of care simply because he had reported threats from a person who might be a criminal.

The House applied the Hill principle, reaffirming that the police do not owe individual members of the public a duty of care to identify or apprehend potential offenders. It reasoned that if the police were required to focus on avoiding civil liability, they would be pushed toward defensive policing at the expense of their broader public functions.

The court also found that there was no relationship of proximity between Smith and the police: no special relationship had been established that would have amounted to an assumption of responsibility for his safety.

On the Article 2 claim, the House considered the approach taken in the companion case of Van Colle v Chief Constable of Hertfordshire⁷ [2008] UKHL 50, decided together with Smith. Adapting the Osman test from Osman v United Kingdom⁸, the House confirmed that an Article 2 claim requires proof of a real and immediate risk to life — one known, or which ought to have been known, to the authorities — and a failure by the police to take reasonable steps within the scope of their powers to avert that risk.

The House dismissed Smith’s negligence claim and held that any complaint about a breach of his Convention rights fell to be brought under the Human Rights Act 1998, not under the common law of negligence.

Judgment and Ratio Decidendi

The House of Lords found in favour of Sussex Police, holding that the police do not owe a duty of care to protect an individual from harm inflicted by a third party, even where that third party poses a known threat.

The ratio decidendi rests on the Hill principle: concerns about defensive policing and the absence of a special relationship of proximity between Smith and the police were central to the decision. The House also weighed the practical effect that expanding liability would have on police resources and exposure to civil claims.

The House further held that the threshold for an Article 2 claim under the ECHR does not apply to a common law claim in negligence; the two causes of action are governed by different standards.

Critical Analysis

The House of Lords’ decision in Smith turns heavily on the Hill principle and its underlying policy rationale. The court’s central concern was that recognising a duty of care in these circumstances would push police resources toward defensive practices aimed at avoiding litigation, rather than toward protecting the public.

The absence of a special relationship of proximity was decisive: the police had not assumed responsibility for Smith’s safety in any way that would satisfy the proximity requirement for a duty of care in negligence.

The judgment also draws a clear line between negligence claims and human rights claims. Because the Article 2 threshold (the Osman test) is distinct from, and higher than, the ordinary negligence standard, Smith’s Convention-based arguments could not succeed as part of a common law claim; any such claim would need to be brought, and brought in time, under the Human Rights Act 1998.

The case has attracted criticism for leaving victims of credible, reported threats without a civil remedy against the police in negligence, even where the police’s own investigative failures appear to have contributed to the harm suffered.

Conclusion

Smith v Chief Constable of Sussex Police confirms that the police do not owe a general duty of care to protect an individual from harm inflicted by a third party, even after repeated warnings. Smith was attacked in his home by his former partner, Jeffrey, despite having made several attempts to alert Sussex Police to the danger he faced. Although an investigation was opened and some details were recorded, no protective action was taken before the attack occurred, and the evidence Smith tried to present was never examined.

The House of Lords resolved the claim by applying the Hill principle, weighing the risk of defensive policing and the absence of proximity between Smith and the police, while also confirming that Smith’s Article 2 arguments belonged under the Human Rights Act 1998 rather than a claim in common law negligence.

Notes

1. Smith v Chief Constable of Sussex Police [2008] UKHL 50, [3].

2. Smith v Chief Constable of Sussex Police [2008] UKHL 50, [5].

3. Hill v Chief Constable of West Yorkshire [1989] AC 53.

4. Smith v Chief Constable of Sussex Police [2008] UKHL 50, [8].

5. Smith v Chief Constable of Sussex Police [2008] UKHL 50, [9].

6. Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2].

7. Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50.

8. Osman v United Kingdom (1998) 29 EHRR 245.

Reference(S):

Cases

• Hill v Chief Constable of West Yorkshire [1989] AC 53
• Osman v United Kingdom (1998) 29 EHRR 245
• Smith v Chief Constable of Sussex Police [2008] UKHL 50
• Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50

Legislation

• Human Rights Act 1998