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Chief Constable of the Hertfordshire Police v Van Colle and Smith v Chief Constable of Sussex Police, House of Lords, 30 July 2008

15 August 2008
The issues

Duty of care owed to police – Human Rights Act – Article 2 – Article 8 European Convention of Human Rights – extent of duty of care owed by police to members of the public in the investigation of crime.

The facts

Van Colle
Brougham was arrested by DC Ridley of the Hertforshire police in March 1999 under suspicion of theft, but was released without charge. From September to December 1999 Giles Van Colle employed Brougham as a technician at an optical practice in Mill Hill. After some weeks they had an argument, culminating in a physical confrontation. On Christmas Eve 1999 Brougham did not report for work, claiming to be unwell, and never returned. In February 2000 DC Ridley re-arrested Brougham on suspicion of theft and searched his garage. He found a number of items of optical equipment which he suspected was stolen. He showed these to Giles Van Colle who confirmed that they were his and that he had not given Brougham permission to take them. In April 2000 Brougham was arrested again and charged with 3 offences of theft and obtaining property by deception. He was bailed unconditionally. The incident was not reported to DC Ridley anf although, subsequently, the insurers’ investigator concluded that the fire was consistent with a malicious attack, this information was not passed on to DC Ridley by the Van Colles. In October 2000 Brougham telephoned Giles Van Colle at his practice and threatened him, saying “I know where you live. I know where your businesses are and where your parents live. If you don’t drop the charges you will be in danger.” He reported the call to the Colindale Police Station. In November 2000 Brougham telephoned Giles Van Colle again with threats. This was also reported by a message on an answer phone to DC Ridley. On the 22nd November 2000, as Giles Van Colle was leaving work, he was shot dead by Brougham, who was later convicted of murder. A Disciplinary Tribunal found DC Ridley guilty of failing to perform his duties conscientiously and diligently in connection with improper approaches to witnesses.

In November 2003 the parents of Giles Van Colle issued proceedings relying on the Human Rights Act and the European Convention alone. At Trial (the Judgment was given in favour of the Claimant).

On the 24th February 2003 Mr Smith made a 999 call to report that his former partner, who had been violent towards him in the past, was threatening to kill him. Two Constables went to the Claimant’s home in Brighton, where the Claimant told them that Gareth Jeffrey, his former partner, had attacked him in December 2000 when he tried to end the relationship and that since January he had received a stream of abusive and threatening text messages and emails containing messages such as “I am looking to kill you and no compromises”, “u r dead fucking meat” and “I was in the Bull Dog last night with a carving knife, it’s a shame I missed you”. The officers took no notes. No statement was taken. No crime report was filed. He was told to go to the police station to complete forms to let the calls be traced and he did so the next day. The death threats continued to come. On the 27th February he was told by the police that it would take 4 weeks to complete the trace. The next day, having received another series of explicit death threats from Jeffrey went to a London police station (staying in London for safety) when officers contacted the Brighton police. He went back to Brighton and, on the 6th March again visited the police station, seeing an Inspector. The Inspector refused to look at the messages Mr Smith had brought with him, took no notes and told him that the investigation was progressing and that he would hear from the police in about 3 weeks. 4 days later a Constable asked the Claimant for Jeffrey’s telephone numbers, which he was given. Later that morning Jeffrey arrived at Mr Smith’s house and attacked him with a claw hammer causing him serious and lasting injuries. The following day the police arrested Jeffrey at the London address which Mr Smith had set out on the form he filled in at the police station on the 25th February. Mr Smith was out of time for suing for breach of his convention rights pursuant to Section 7 of the Human Rights Act 1998 and instead brought a claim in negligence in the Brighton County court against the Sussex Police. The Judge, at first instance, on the Application of the Police Constable, struck the claim out on the ground that there was no sufficient relationship of proximity between Mr Smith and the police and that his claim should not be entertained on grounds of public policy.

The Judge, granting permission to appeal directed that the appeal be transferred to the Court of Appeal because it raised an important point of principle, namely, whether a negligence claim of this kind was now reinforced by the Human Rights Act.

The decision

Van Colle
Article 2 of the European Convention provided “everyone’s right to life will be protected by law. No one shall be deprived of his life intentionally…”. The duty extends, not merely to refrain from taking life but to take appropriate steps to safeguard the lives of those within its jurisdiction: Osman v United Kingdom. It may, in certain circumstances, imply a positive obligation on National Authorities to take preventative measures to protect an individual whose life is at risk from the criminal acts of another. In Osman, the Court defined those circumstances:-

“It must be established to (the Court’s) satisfaction 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 or individuals 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.”

The Courts below had proceeded, relying on R v Lord Saville or Newdigate & Ors, that a test lower than the ordinary Osman test was appropriate where a threat to the life of an individual derived from the State’s decision to call that individual as a witness. Whilst the decision of the Court of Appeal in R was correct, it was doubtful that the Court of Appeal were correct in their reference to the “real and immediate” test in Osman being “well above the threshold…. when the risk is attendant upon some action that an authority is contemplating putting into effect itself”.

The Courts below had misdirected themselves by attaching undue significance to Gile Van Colles’ status as a witness and treating the Osman test as lowered on that account.

After consideration of the facts, the test had not been met. DC Ridley had not perceived a real and immediate risk to Giles Van Colles’ life. The warning signs in this case were very much less clear and obvious than those in Osman, which were themselves found inadequate to meet the test. Their Lordships were agreed that there was one standard applicable and that it was not a variable one. According to Lord Hope, the decision in Lord Saville’s case was confined to its own facts. He preferred to follow re Officer L in finding the standard constant and not variable with the type of act in contemplation. Lord Phillips agreed that the fact that Giles Van Colle was to be a witness in a criminal prosecution did not place him in a category to which the test in Osman did not apply. Lord Carswell agreed wholly with Lord Hope. Lord Brown made it clear that the Osman test was a constant, to be applied whatever the particular circumstances of the case and that, insofar as Lord Saville’s case had been understood to the contrary, it should not be followed.

(Lord Bingham dissenting)
There were two competing principles – Lord Bingham’s “liability principle” and the principle in Hill v Chief Constable of West Yorkshire and Brookes v Commissioner of Police of the Metropolis. The reasons given in Hill for saying that an action for damages for negligence should not lie against the police on grounds of public policy, did not stand up to critic examination today. The more important authority was the decision of the House of Lords in Brookes. In Brookes, Lord Steyn, with which Lord Rodger and Lord Brown had expressed unqualified agreement, had said that it was important not to retreat from the principle in Hill’s case since to do so would mean that police officers would be required, whilst focusing on investigating crime, to ensure that in every contact with a potential witness resources were deployed to avoid the risk of causing harm or offence and such duties would tend to prohibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses, Lord Steyn felt that the police’s ability to perform their public functions in the interest of the community, fearlessly and with despatch, would be impeded. Lord Bingham’s liability principle, if adopted, would lead to uncertainty in its application and to the detrimental affect that Lord Steyn had warned against. To introduce Lord Bingham’s liability principle would be to deny the police the freedom they need, to act as the occasion requires in the public interest and the balance of advantage in this difficult area lay in preserving the Hill principle. Applying the reasoning in Brookes, Mr Smith’s case could not succeed, were it to go to Trial.

In cases brought under Section 6 and 7 of the Human Rights Act 1998, where the Article 2 positive obligation is said to have been breached by a public authority, the relevant principle was that described by the Strasburg Court in Osman. However, the common law with its own system of limitation periods and remedies should be allowed to stand on its own feet, side by side with the alternative remedy.

Appeal allowed; Order of the Judge striking out proceedings restored.


Lord Bingham dissented with regard to the Smith case. He put forward what he described as “the liability principle” namely:-

“If a member of the public furnishes a police officer with apparently credible evidence of a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, the police officer owes a member of the public a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.”

He took the view that, generally, with regard to the separates regimes under the convention and in common law, there was no simply universally applicable answer as to whether the two regimes should remain entirely separate, but there was a strong case for developing the common law in the light of convention rights. In Smith’s case, since there had been no reliance on the convention, Lord Bingham did not think it “profitable” to consider whether he could have established a breach of Article 2 on the facts of his case.

Lord Phillips took the view, whilst agreeing with Lord Hope, that this was an area where the law could better be determined by Parliament than by the Courts and he noted, with pleasure, that the Law Commission had just published a consultation paper (number 187) on “Administrative Redress: Public Bodies and the Citizen”.

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