A Fair Cop

Van Colle v Chief Constable of Hertfordshire 2008 3 WLR 593

Smith v Chief Constable of Sussex 2008 HRLR 23

We all recognise that the most important role of the police is to detect and apprehend criminals thereby protecting the public. For some of us this function conjures up images of Regan and Carter of the Sweeney tearing around London in a Ford Granada in pursuit of scary looking villains. What we do not always remember is that informants and witnesses often fell by the wayside after being exposed to danger, either intentionally or unintentionally, by the dynamic duo in order to achieve their ultimate goal.

The question whether operational decisions taken by the police in detection and apprehension should be subject to the scrutiny of the courts and whether damages might be awarded if there are felt to have been mistakes were considered by the House of Lords in July of this year in the joint appeal cases of Chief Constable Hertfordshire v Van Colle and Smith v Chief Constable of Sussex.

Broadly the Lords endorsed the view that it is not in the public interest for the police to be under a common law duty of care to victims or witnesses when investigating crimes. This view was originally proposed by the Lords in the cases of Hill v Chief Constable of West Yorkshire (1989 AC 53) and Brookes v Commissioner of the Police of the Metropolis (2005 1 WLR 1495) which arose respectively out of the Yorkshire Ripper and Stephen Lawrence enquiries. It was said that the Lords' justification for this limitation of the common law duty was best explained by Lord Steyn in the Brookes case when he said "such legal duties would tend to inhibit a robust approach in assessing the person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public function in the interest of the community, fearlessly and with despatch, would be impeded."

This approach was sufficient for the majority of the Lords to reject Mr Smith's claim. Smith had claimed damages from Sussex Police for a breach of an alleged common law duty of care owed to him. His complaint was that they failed to act on information he had passed on to them about threats made by his former partner Mr Jeffrey. The threats were made in a series of messages, which even those who have not mastered the art of texting would have interpreted as serious. The import of "u are dead; I'm looking to kill u and no compromises" is pretty clear.

Smith alleged the police did not properly investigate his complaints and as a result Jeffrey came around to his house and seriously assaulted him with a claw hammer. For the reasons quoted the Lords decided that the police did not owe a duty of care to Mr Smith in those circumstances.

The situation in the Van Colle case was different. His relatives brought a claim against the Metropolitan Police not at common law but under the Human Rights Act 1998. The Act obliges the Metropolitan Police as a public authority to act in a way which is compatible with the European Convention and in particular article 2(1) the right to life being protected by law. The facts were also different in that Mr Van Colle was a witness in a theft case and was shot dead by the accused just prior to trial.

His relatives claimed that the Metropolitan Police in terms of their obligations under the 1998 Act were required to protect Mr Van Colle's right to life and that in allowing him to die they had failed to do so. The Act makes a specific provision for
damages to be awarded in certain circumstances and Mr Van Colle's relatives were successful at first instance and in the Court of Appeal.

The Lords overturned the Court of Appeal and rejected the family's claim on the basis that the appropriate test for liability had been misapplied.

It was agreed that the test had been identified in the case of Osman v United Kingdom (2000 29 EHRR 245) as "it must be established to the courts 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 Lords confirmed that the test was uniform (no pun intended) and objective and required to be applied to the facts and circumstances that the individual, in this case a police officer, was or ought to have been aware of at the material time. They rejected the suggestion of the lower courts that the conduct of the state authority in making Mr Van Colle a witness had specifically put him at risk and therefore that a test lower than that identified in Osman should be applied.

Because the lower courts had misapplied the test the Lords reviewed the evidence afresh themselves and unanimously held that nothing in the conduct of the accused or other facts known prior to the event ought to have alerted the police officer dealing with the matter that there was a real and immediate risk to Mr Van Colle's life.

The upshot of these decisions is that any future cases in similar circumstances are likely to be be brought solely under the Human Rights Act. The Lords made it clear that the Osman test is a very strict one and the circumstances in which a claim would be successful were likely to be fairly extreme.

The Lords also emphasised that police may still be liable at common law for operational decisions taken in other circumstances for example when dealing with a road accident.

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