Van Colle v Chief Constable Hertfordshire Police - Mrs
Justice Cox, High Court of Justice, Queens Bench, 10th March 2006 -
under (2006 EWCH 3 60 (QB))
As far as we are aware, this is the first case in which a police
force have been found to have breached Article 2 of the European
Convention on Human Rights (the right to life). The action against
the police force was brought by Mr Van Colle's parents as the
administrators of his estate and in their own right. They
maintained that the force had failed to take sufficient steps to
protect Mr Van Colle, who was a witness in a criminal case, and as
a result he was murdered by the accused before the case could come
to trial.
In terms of the law the previous position had been set out by
the House of Lords in Hill -v- Chief Constable West Yorkshire (1988
2 All ER 238) where it was stated that the existence of a general
duty on the police to suppress crime did not carry with it a
liability to individuals for damage caused to them by criminals
whom the police had failed to apprehend when it was possible to do
so. This situation had been refined by the decision of the Court of
Human Rights in the case of Osman v United Kingdom (2000 29 EHRR
245). They suggested state authorities, including police forces,
could be under a positive obligation under Article 2, Protection of
Right to Life, in certain circumstances, to take preventative
operational measures to protect an individual whose life is at risk
from the criminal acts of another individual.
In deciding what the extent of the duty owed by the police force
was in this situation and whether it had been breached, Mrs Justice
Cox identified six guiding principles which can be summarised as
follows:-
(1) The obligation to protect life under Article 2 is positive,
unqualified and self evidently fundamental. Any alleged breach by a
state authority requires to be carefully considered by the
courts;
(2) Article 2 is not to be interpreted as imposing an impossible
or disproportionate burden on state authorities. A fair balance
requires to be struck between the rights of individuals and the
general interests of the community;
(3) The state's obligation to protect life includes a positive
obligation in certain circumstances to take preventative
operational measures to protect an identified individual whose life
is at risk as a result of the criminal acts of a third party. The
obligation arises where it is established that the state
authorities knew or ought to have known at the time of the
existence of a real and immediate risk to the life of that
individual and yet failed to take such measures within the scope of
their powers which, reasonably, might have been expected to avoid
that risk;
(4) It is not necessary for the claimant to establish that the
state's failures amount to gross negligence or wilful disregard of
the duty to protect life. In order to succeed the claimant requires
to establish that the authority did not do all that could
reasonably have been expected of them to avoid a real and immediate
risk for life of which they had or ought to have had knowledge.
Success or failure will always depend upon the individual facts of
each case;
(5) Where the risk to life of the individual has been created by
the state, for example someone in a special category of vulnerable
person (prisoner) or a person required to perform certain duties on
behalf of the state which may expose them to risk (a witness in
criminal trial) the threshold test of real and immediate risk
(paragraph 4) is too high. In such circumstances the court should
apply principles of common sense and common humanity in determining
whether the threshold of risk has been crossed for the obligation
in Article 2 to apply;
(6) Liability will depend not only on the nature of the threat
and the degree of risk to the individual of which the authorities
knew or ought to have known but also upon the extent to which there
were appropriate measures reasonably available to the authorities
to deal with the risk. The greater the failure to take such
measures as were reasonably open to them to avoid the risk, the
greater the likelihood that the authorities will be held to have
failed to comply with their Article 2 obligation.
Applying the principles she had identified to the facts of this
case, Mrs Justice Cox had no difficulty in finding that the police
force had failed in their duty. Verbal threats on Mr Van Colle's
life had been made by the accused on at least two occasions. His
car had been set on fire. A number of other witnesses in the case
had also been approached by the accused and offered bribes to
withdraw their evidence. Mr Van Colle was described as a principal
witness and another of the principal witnesses had both his
business premises and his wife's car set on fire.
Details of all of the incidents had been passed on to the
investigating police officer but he had not taken any steps to
either detain the accused or offer Mr Van Colle protective custody.
The officer had subsequently been subjected to disciplinary
proceedings and accepted that he had made an error of judgement
and/or incorrect operational decision in not responding to the
witness threats by having the accused locked up until his trial. He
accepted that the threats had been serious, that they involved
physical danger, that they disclosed the offence of witness
intimidation and that they indicated a risk to Mr Van Colle's life.
Interestingly the detective accepted that he had not given any
thought at all to the possibility of providing protection for Mr
Van Colle. In fairness although he was experienced he had not
received any training on the force's witness protection policy
which, it transpired at the disciplinary hearing, had been placed
in the force's intranet but perhaps not specifically brought to the
attention of officers.
Mrs Justice Cox made an award of damages of £50,000 to Mr Van
Colle's parents. £15,000 of the award was paid to his executors for
Mr Van Colle's own distress in the weeks leading up to his death
and £35,000 awarded for his family's grief and suffering as a
result of this loss.
Although the factors of this case are pretty extreme, the
principles identified have wider implications. This is undoubtedly
a developing area of law.