Van Colle v CC of Hertfordshire Police [2008] UKHL 50

Giles Van Colle was murdered by a suspect he was due to testify against. The police knew of prior intimidation. His family sued the police. The House of Lords held there was no common law negligence liability but considered the police's positive obligations under Article 2 of the ECHR, clarifying the 'real and immediate risk' test.

Facts

Giles Van Colle was a key prosecution witness in a theft trial against his former employee, Daniel Brougham. In the months preceding the trial, Brougham engaged in a campaign of intimidation against Van Colle, including threatening phone calls and setting his car on fire. The police were made aware of these incidents. A few days before the trial was due to start, Brougham shot and killed Van Colle. Mr Van Colle’s parents brought a claim against the police for failing to protect their son’s life, arguing both under common law negligence and Article 2 of the European Convention on Human Rights (the right to life).

Issues

The House of Lords considered two primary legal issues:
1. Did the police owe a duty of care to Giles Van Colle at common law to protect him from the actions of Daniel Brougham? This involved considering the ‘police immunity’ principle established in Hill v Chief Constable of West Yorkshire.
2. Did the police have a positive operational obligation under Article 2 of the ECHR to take preventative measures to protect the life of Giles Van Colle from a ‘real and immediate’ risk posed by Brougham, and if so, was that obligation breached?

Judgment

The House of Lords unanimously dismissed the appeal. The judgment, led by Lord Bingham of Cornhill, drew a sharp distinction between liability in domestic law (negligence) and liability under the Human Rights Act 1998 for breach of an ECHR Convention right.

Common Law Negligence

The court reaffirmed the principle from Hill v Chief Constable of West Yorkshire, which generally exempts the police from a common law duty of care for failures in the investigation and suppression of crime. It was held that imposing such a duty would lead to defensive policing and divert resources from the primary police function. The claim in negligence was therefore rejected.

Article 2 ECHR

The central part of the judgment focused on the positive obligation on state authorities, including the police, under Article 2 ECHR to protect life. The court applied the test established by the European Court of Human Rights in Osman v United Kingdom. This test imposes a duty on authorities to act where they knew, or ought to have known, of a ‘real and immediate risk’ to the life of an identified individual from the criminal acts of a third party. Lord Bingham clarified the stringent nature of this test:

The obligation is to take reasonable measures to avert a real and immediate risk to life. Neither the imminence nor the reality of the risk should be understated.

Applying this high-threshold test to the facts, the court found that the police were not in breach of their Article 2 obligation. Although Brougham’s actions were threatening and criminal, the information available to the police at the time did not suggest that the risk to Van Colle’s life was ‘real and immediate’. The threats, whilst serious, were not explicitly threats to kill.

Lord Bingham concluded:

I do not, for my part, consider that the police could be said to have known or ought to have known of a real and immediate risk to the life of Giles Van Colle. What the police knew was that Brougham was a proven thief, possibly a purveyor of drugs and a person capable of behaving in a threatening and intimidating manner. But there was nothing to suggest that he was a murderer, or a person who would use lethal violence.

Implications

The decision in Van Colle is significant for clarifying the scope of police liability. It confirms that while the police generally remain immune from common law negligence claims for operational failures, they can be held liable under the Human Rights Act 1998 for breaching the positive obligation to protect life under Article 2 ECHR. However, the case establishes that the threshold for proving such a breach is very high, requiring clear evidence that the police knew or ought to have known of a ‘real and immediate’ risk to the life of a specific individual. This balances the need for accountability with the operational realities and resource constraints of policing.

Verdict: The appeal was dismissed. The claim against the Hertfordshire Police failed.

Source: Van Colle v CC of Hertfordshire Police [2008] UKHL 50