An Essay on Tort Law and Group Immunity

Groups that have special immunities are such as the police, diplomats and other esteemed persons. This essay will discuss tort law and the question of special group immunities. These immunities protect these groups from the penalties and liabilities that are subject to special persons and circumstances. The essay will in this regard examine Article 6 of the European Convention on Human Rights and its application in Osman Versus UK (1998). (Harlow, 2005)

The law of tort covers several legal areas. It is a legal body looks at issues of civil wrongdoings. These offences must not have been laid out by contractual obligations. There are several categories of torts. These include statutory torts, defamation, nuisance, economic torts, intentional torts, competition law and negligence. This essay will look at the tort of negligence. This is the case in Osman Versus UK (1998). This tort is known as the avoidance of a legal duty of reasonable care. (Harlow, 2005) This negligence leads to damage. The defendant did not desire the harm that has occurred. The harm occurs to the plaintiff and he is allowed to sue the offender. Negligence relies on the reality of a contravention of a duty of care. This is owed by an individual to another. An example is when a person buys a defective product that unintentionally harms the buyer. In the Osman V UK (1998) trial, the police were accused of negligence in the performance of their duty. The specific duty was the protection of the right to life. Article 2 of the European Convention on Human Rights states that the “right to life shall be protected by law.” (Harlow, 2005) The applicants in Osman V UK (1998) were Mrs. Mulkiye Osman and her son Ahmet Osman. Their father had been shot dead by Ahmet’s teacher. The teachers name was Paget-Lewis. Ahmet was seriously injured in the incident. The police acted inadequately despite reports on the teachers aggressiveness. The complainants added that police did not act as required despite the presence of sufficient indicators that the family was in imminent danger. The police argued that there never was sufficient evidence that would necessitate such protective action. The police argued that there were no reasonable grounds for them to take further measures than they already had. The case lacked support in the English judicial system. These courts decided that the police were not bound to the applicants by the duty of care. (Harlow, 2005) This supported the earlier ruling in Hill v Chief Constable of South Yorkshire Police. This decision by the English courts led the case to the European Court of Human Rights.

The European Court of Human Rights decided that immunity to special groups was in defiance of article 6 of the European Convention of Human Rights. They ruled that it was however in compliance with article 2 and article 8. Article 6 entitles each person to a fair trial. “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.” (Harlow, 2005) It also holds that persons should be informed of their legal accusations and be “presumed innocent until proved guilty according to law.” (Rehman, 2009) Article 2 enshrines the right to life. In the Osman v UK (1998) the police were accused of failing to protect this right. Article 8 protects privacy, family and private property. “Everyone has the right to respect for his private and family life, his home and his correspondence.” (Rehman, 2009) It protects this right from interference unless in special circumstances. Blanket immunity was considered a breach of article 6. This is because it prejudiced the right to a fair trial. Article 6 profoundly protects this right. (Rehman, 2009)

The European Court of Human Rights confirmed that the police and other authorities have a duty to take action to stop an individual from harming another individual. The human rights Court however concluded that the evidence before them did not prove that the police should have or had known that the Osman family was in imminent danger from Paget-Lewis. (Rehman, 2009)

The Osman v UK (1998) has several actual and potential implications for the law of tort. The English courts concluded that the police did not owe the complainants the duty of care. Duty of care was first suggested in the legal system by Lord Atkin. Christian principles were the basis for this law. The English courts judgements have the implication that it will not be possible for a person to sue the police in case he is the victim of an event such as a violent attack that could possibly have been prevented. They cannot be accused of engaging in an omission that led to the occurrence of injury. The police can therefore never be found guilty of negligence. (Gay, 1993)

In considering the issue of immunity, the governments plea that article 6 could not be referenced in the case was not accepted. The civil cause was thus deemed to show cause of action. The court however agreed with the defendant that the exclusionary rule did not doom such cases to failure. The domestic courts allowed the case to proceed while they decided whether this rule was relevant. The European Court of Human Rights noted that the exclusionary rule could not be applied in this case. The court concluded that the case was never judged on its merits or facts. This is true since the Court of Appeal threw out the application because of the policy formulated in the Hill case. The court noted the importance of this rule to public security and order. It was decided that the court’s decision must be proportional. (Gay, 1993) The court argued that such decisions by the court of appeal created blanket immunity. This was without regard to the interests of the public. This was seen as amounting to denial of rights. This occurs whenever an individual tries to sue the police for negligent behaviour. (Lustick, 1979) Domestic courts should put public interests into consideration when prejudicing over such matters. The applicants had faulted the police for failing to protect the life of a child. The injury that occurred was the most grievous nature. The court concluded that the exclusionary rule and its immunity amounted to a restriction on the right to a fair trial. This was seen as against the principle of justice. (Owen, 1997)

The law of tort is regularly applied in civil suits in the United Kingdom. It bounds people to a duty of care to other people. Special group immunities have caused different verdicts that concern this law to occur. The exclusionary rule limits certain special groups from liability in a court of law. In the Osman v UK (1998) case the police were released from obligation because of this rule. It was decided that the police owed no compensation to the Osman family. (Lustick, 1979) The European Court of Human Rights however ruled that this went against the principle of the right to a fair trial. (Owen, 1997) This is spelled out by article 6 of the European Convention on Human Rights. The Osman v UK (1998) case had several implications. The fact that the Court decided that the exclusionary rule violated the right to a fair trial enabled other cases that were barred by this rule to be filed. This altered the law of tort. Special group immunities protect people such as the police from persecution as they carry out their activities. It was noted in the Osman case that the applicants had passed the rather narrow proximity cause. This proximity cause is very narrow so that it protects the police as much as possible from liability. The facts that the Osman family had already passed this hurdle showed that the police were quite liable either for omission or negligence of their duties. The police were in the process of arresting Paget-Lewis when he commited the murder and assault. (Lustick, 1979)

Reference List

Harlow, Carol. (2005) Understanding tort law. London, Sweet & Maxwell.

Rehman, Javaid. (2009) International Human Rights Law. London, Longman.

Owen, David G. (1997) Philosophical Foundations of Tort Law. Oxford, Oxford University Press.

Lustick, Ian. (1979) Stability in deeply divided societies. London, Princeton University, 8(2).

Gay, Geneva. (1993) Building cultural bridges. London, Sage Social Science Collections, 5(4).