MENSON & Ors v United Kingdom - 47916/99 [1998] ECHR 107 (16 September 1998)

judgment , cited above, §§ 108, 136-140). Although there was no State involvement in the death of Michael Menson, the Court considers that the above-mentioned basic procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual regardless of whether or not death results. The Court would add that, where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence. Against this background, the Court must have regard at the outset to the fact that the police investigation into the death of Michael Menson ultimately led to the identification and arrest of the culprits between March 1999 and May 1999. They were all convicted and received heavy prison sentences later that same year. It is also to be observed that a public inquest into the cause of Michael Menson’s death was held shortly after he died and a Coroner’s jury returned a verdict of unlawful killing in September 1998. The Court cannot but note that the first findings of the official inquiry into the police’s handling of the case in the early stages appear to be critical of the way in which certain officers of the MPS reacted to the attack on Michael Menson. Indeed, the evidence advanced before the Coroner’s jury and at the trial of the accused clearly indicates that they were very serious defects in the handling of the attack on Michael Menson and which were entirely at odds with the requirements of an effective investigation as outlined above. The applicants maintain that these defects have their basis in racism within the MPS, in particular the refusal of certain police officers to deal with an attack on a black victim with an open and independent mind as regards the cause of his injuries. However, it is not for the Court, in the context of Article 2 and in the circumstances of this case, to pronounce on these claims, including the applicants’ allegations of an institutional cover-up of police misconduct and harassment of them at various stages of the investigation. It would make three points in this connection. In the first place, the legal system of the respondent State ably demonstrated, in the final analysis and with reasonable expedition, its capacity to enforce the criminal law against those who unlawfully took the life of another, irrespective of the victim’s racial origin. For the Court, this must be considered decisive when deciding whether the authorities complied with their positive and procedural obligations under Article 2. Secondly, the inquiry into the applicants’ complaints has not yet terminated. It appears from the communication of the PCA to the applicants’ solicitor, dated 31 December 2002, that the report prepared by the Chief Constable of Cambridgeshire Constabulary into the applicants’ complaints has been forwarded to the Crown Prosecution Service (“CPS”) for consideration. Thirdly, although the applicants’ stress the authorities’ failure to secure the accountability of the police for the alleged discriminatory approach to the investigation, this is a matter which falls to be examined, if at all, under Article 6 of the Convention and, since they are close family members of the deceased, under Article 13. Article 2 is primarily concerned with the assessment of a Contracting State’s compliance with its substantive and procedural obligations to protect the right to life. That Article does not guarantee as such an applicant a right to a remedy in respect of any alleged defects occurring in the discharge of those obligations. Having regard to the above considerations, the Court concludes that the applicants’ complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 2. The applicants complain that they have been unable to secure access to a court to have an independent assessment of the police authorities negligent and racist conduct during the investigation of the death of Michael Menson. They rely on Article 6 of the Convention, which states as relevant: “ In the determination of his civil rights and obligations .... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...” In the applicants’ submission, the combined effect of the common law rules on negligence actions against the police and, in particular, the principle of immunity from suit, coupled with the exclusion at the relevant time of police investigations of crime from the definition of “services” within section 20 of the Race Relations Act 1976, is to deprive them of an independent judicial assessment of the extent to which the authorities complied with their positive obligation to carry out a proper and comprehensive investigation of Michael Menson’s death. The applicants also highlight the fact that the decision to adopt the Race Relations (Amendment) Act in November 2000 confirmed the inadequacy of the Race Relations Act 1976 to secure redress for individuals who are discriminated against by the police on grounds of race. In addition, they maintain that the combined effect of the common law and statutory rules concerning death as a cause of action is to deny them their right of effective access to court to bring civil proceedings in respect of their brother’s death. As to the applicants’ contention that the rule on police immunity prevented them from bringing a claim against the police, the Court observes that on 8 October 1998 the Committee of Ministers of the Council of Europe adopted Resolution DH (99)720 concerning the measures taken by the United Kingdom Government to comply with the Court’s finding of breach of Article 6 of the Convention in the above-mentioned Osman judgment. In the appendix to that Resolution, the respondent Government stated, inter alia : “ The government anticipates that the rule established by the Hill case will be applied with more circumspection in the future. (...) In addition, the judgment has been circulated to civil servants and, by means of a circular letter, to all Chief Officers of Police. The government notes that it is for the latter officers to decide, in any given case alleging negligence against the police in the conduct of their investigations, whether to seek to have such an action struck out on grounds of public policy immunity. The circular letter urges them, in the light of the Osman judgment, to exercise considerable caution before applying for a strike-out on these grounds. The circular letter also points out that a claim of immunity may require full consideration of the facts of the case so that the strike-out hearing will be virtually indistinguishable from a full hearing on the merits. Following these measures, the competent authorities will ensure in cases of alleged police negligence that all the material necessary will be put before the courts. The government further considers that the courts will not fail to take into account the European Court’s judgment in the Osman case (...) so as not to confer automatically a total immunity on the police, but rather make a judgment on the proportionality of the immunity sought, considering all the circumstances of the case.” It would appear to the Court that, notwithstanding the advice which the applicants received from Counsel, this change of practice would have allowed the applicants to take a civil action against the police and to argue that, in the circumstances alleged, it was fair, just and reasonable to allow their claim to be decided on its merits. The applicants cannot maintain, therefore, that were prevented from having access to a court by reason of the existence of a doctrine of absolute police immunity in respect of acts and omissions in the investigation and suppression of criminal offences. As regards the applicants’ claim that they are unable to sue the police for their racially motivated behaviour during the investigation on account of the operation of the Race Relations Act 1976 (“the 1976 Act”) and the non-retroactivity of the Race Relations (Amendment) Act 2000 (“the 2000 Act”), the Court is not entirely persuaded that the applicants can be excused from at least attempting an action under the 1976 Act at least against the individual police officers who, they alleged, acted in a racially discriminatory manner during the investigation. It would have been open to them to invite a court to broaden the scope of the Court of Appeal’s 1997 judgment in the case of Farah v. Commissioner of Police for the Metropolis as regards the notion of “provision of services”. It recalls in this connection that mere doubts about the prospects of success of an action do not in themselves suffice to displace the exhaustion rule contained in Article 35 § 1 of the Convention. In any event, it observes that the alleged inability of the applicants to sue individual police officers and the Metropolitan Police Commissioner flowed not from an immunity from suit but from the applicable principles laid down in the 1976 Act governing the substantive right of action. If it is the case that Parliament intended at that time to exclude from the ambit of the 1976 Act the statutory liability of police officers for the behaviour alleged, it is not for the Court to create a right of action in their favour. It recalls that Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States (see, for example, Z and Others v. the United Kingdom and the case-law referred to therein, [GC], no. 29392/95, § 87, ECHR 2001-V). The same reasoning must apply to their complaints concerning the combined effect of the existing common law and statutory rules concerning death as a cause of action. The Court concludes, accordingly, that the applicants’ complaints under Article 6 are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 3. The applicants further maintain that the facts of their case disclose a breach of Article 8 of the Convention, which provides, so far as material: “ Everyone has the right to respect for his (...) family life, (...).” The applicants state that the lack of a right of access to court for the deceased’s siblings to bring civil proceedings in connection with the deprivation of the life of their brother, Michael Menson, and the lack of any other independent investigative mechanism for their claim that the MPS handled the investigation of his death incompetently and in a racist manner, is a failure to respect their right to respect for family life. The Court considers that the applicants’ complaints under this head, assuming the applicability of Article 8, are a restatement of their case under Articles 2 and 6 of the Convention and do not require any separate examination. 4. The applicants complain of a breach of Article 13 in conjunction with Articles 2 and 8 in that they have had no proper and comprehensive investigation of Michael Menson’s death and that they have no effective remedy in national law enabling them to have an independent adjudication of their claim that the MPS did not do all that was required of them to carry out the procedural obligation of a proper and comprehensive investigation into Michael Menson’s death, or to enable the applicants to obtain redress in respect of his death. Article 13 provides, so far as material: “ Everyone whose rights and freedoms as set forth in this 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.” The Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). The Court has found above that the applicants’ complaints under Articles 2, 6 and 8 are manifestly ill-founded. For similar reasons, the applicants 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. 5. The applicants complain of a breach of Article 14 in that their rights under Article 2 to a proper and effective investigation of their brother’s death have not been obtained due to the racially discriminatory way in which the MPS approached and carried out the investigation into their brother’s death. Article 14 provides, so far as material: “ The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a notional minority, property, birth or other status.” The applicants submit that the only reasonable inference from the facts in this case coupled with the findings of the Stephen Lawrence Inquiry was that the investigation into Michael Menson’s death was infected by racial discrimination. The Court reiterates at the outset that the applicants’ complaints of police misconduct and racism during the investigation of the attack on Michael Menson are still under consideration. It further recalls that, even assuming the validity of these complaints, the obligations devolving on the authorities by virtue of Article 2 were in the final analysis fulfilled. The alleged discriminatory treatment to which they were subjected during a particular phase of the procedure did not ultimately affect the assurance of their or their deceased brother’s rights under Article 2. 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. T. L. Early J.-P. Costa Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII