Facts
Joanna Michael called the emergency number and said that her former partner had assaulted and threatened her and that she feared for her life. Her call was taken by one police force and passed to a neighbouring force that covered her address. There were failures in assessing and recording the urgency of the call, and officers did not reach her home in time. Her former partner attacked and killed her. Her family and her estate sued the two chief constables in negligence, and also under the Human Rights Act 1998.
Issue
Whether the police owe a duty of care at common law to protect an individual from criminal harm by a third party when they know or ought to know of a real and immediate threat to her life; and, in particular, whether such a duty arises when the police are told by the individual about the threat and fail to act on it with reasonable care.
Held
By a majority, the negligence claims failed. The police owed no common law duty of care to Ms Michael merely because they knew of a threat and had power to act. No assumption of responsibility arose from the call, and the police had not created the danger. The fair, just and reasonable test did not justify a new duty.
Ratio
- There is in general no liability in negligence for a failure to confer a benefit or to protect another from harm caused by a third party; a public authority is in the same position as a private person, and a duty to protect arises only where the authority has assumed responsibility, created the danger or has control over the third party.
- The police have no special immunity, but the same common law principles apply to them as to others, and the fact that they are public authorities with powers to prevent crime does not itself impose a private law duty to exercise them for the benefit of a particular individual.
The judgments
Lord Toulson (lead)
Gave the leading majority judgment. Caparo is not a general three-stage test to be applied afresh to every case; the court should begin from established principle and develop the law by analogy. Under established principle there is no duty to protect against third parties absent assumption of responsibility or creation of the danger. A public authority is not under a general duty because it has power to act. The police did not assume responsibility by receiving a call, and there was no basis for a duty on policy grounds.
Lord Kerr (dissenting)
Would have held that when the police know of a specific threat to a person's life and have the power to prevent it, there is a sufficient relationship of proximity to ground a duty. He considered that the majority gave too little weight to the foreseeability of harm and to the position of the police.
Key reasoning
- The common law has long distinguished between making things worse, which can give rise to liability, and failing to make them better, which generally does not, and that distinction is applied to public authorities as to private persons.
- The decision in Hill v Chief Constable of West Yorkshire [1989] AC 53 was an application of the ordinary principles, not a free-standing immunity, but the result was the same: the police had no duty to the public at large to protect them from crime.
- The policy of deterring police from defensive behaviour and the availability of a remedy under the Human Rights Act 1998 where Article 2 is engaged supported the conclusion that the common law should not impose liability in these circumstances.
Where it fits in the module
In Administrative Law (FHS), on the Negligence of public bodies topic, Michael shows how far the courts will go in using private law to hold public bodies to account: following Stovin v Wise [1996] AC 923, Gorringe v Calderdale MBC [2004] UKHL 15 and Smith v Chief Constable of Sussex [2008] UKHL 50, the majority said that statutory powers alone do not found a private law duty. In Tort (FHS), on Omissions, acts of third parties and public authorities, it is the central case on the general rule that there is no duty to rescue or protect, and on how Caparo is to be used. Candidates should consider the later narrowing of the principle in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 and Poole BC v GN [2019] UKSC 25, and the contrast with the Osman route under Article 2 of the European Convention on Human Rights.
Criticisms
- The distinction between making matters worse and failing to improve them is hard to apply: the police who take a call and then fail to send help may be said to have induced the caller to rely on their help, so the omission looks like an act.
- The approach leaves a victim who telephones the emergency services with no remedy in tort for gross failures in responding, though the police are the only body able to protect her, which seems inconsistent with accountability.
- Treating the police like any private person ignores the fact that they hold coercive powers and a public duty to protect life, and a private person could not exercise the same control over events.
- The reliance on the Human Rights Act as a substitute for the common law leaves a gap, because the Article 2 threshold is high and the remedy is more limited than damages for negligence.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself on Find Case Law. Spotted an error? Tell us.