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

The House of Lords held that police had not breached Article 2 by failing to protect a threatened witness, Giles Van Colle, because the stringent Osman "real and immediate" risk test was not met, and that, generally, police owe no common law duty of care to protect individuals from criminal attacks.

Facts

Van Colle

Daniel Brougham, a former employee of optician Giles Van Colle (“Giles”), was charged with theft and related offences involving equipment from Giles and others. Giles was a key prosecution witness. Before trial Brougham attempted to bribe witnesses and made threatening calls to Giles. Giles reported a death threat by telephone and later an abusive call to the police. Various fires damaged vehicles and premises connected with witnesses, although contemporaneous investigations did not clearly establish arson or link them to Brougham.

Detective Constable Ridley, who had carriage of the criminal investigation, was aware of the witness intimidation by bribes and threats and planned to arrest Brougham for attempting to pervert the course of justice. On 22 November 2000, the evening before that planned arrest, Brougham shot Giles dead. A disciplinary tribunal later found DC Ridley guilty of failures in dealing with the intimidation, but imposed only a modest financial penalty.

Giles’s parents brought proceedings under sections 6 and 7 of the Human Rights Act 1998, alleging violation of Articles 2 and 8 of the European Convention on Human Rights. Cox J held that Article 2 had been breached and awarded damages. The Court of Appeal largely upheld liability but reduced damages. The Chief Constable appealed.

Smith

Stephen Smith had been in a relationship with Gareth Jeffrey. After earlier violence in 2000, in early 2003 Jeffrey mounted a sustained campaign of threats by telephone, text and internet, including explicit death threats such as:

“U are dead”; “look out for yourself psycho is coming”; “I am looking to kill you and no compromises”; “I was in the Bulldog last night with a carving knife. It’s a shame I missed you”.

Mr Smith repeatedly contacted Sussex Police, both via 999 and at the station, reporting the history of violence, the new threats, Jeffrey’s identity, address and telephone numbers, and offering to show the officers the messages. Officers did not take statements, make notebook entries or examine the messages, and instead initiated a slow call-tracing process. An inspector again declined to look at the messages and reassured Mr Smith that the investigation was progressing.

On 10 March 2003 Jeffrey attacked Mr Smith at his home with a claw hammer, causing skull fractures and brain damage. Jeffrey was later convicted of threats to kill and causing grievous bodily harm with intent and sentenced to 10 years’ imprisonment. Mr Smith sued the Chief Constable in negligence. The claim was struck out at first instance but reinstated by the Court of Appeal. The Chief Constable appealed.

Issues

Van Colle

• What is the scope of the State’s positive obligation under Article 2 ECHR to take preventive operational measures to protect life against criminal acts of third parties?
• Did the police “know or ought to have known” of a real and immediate risk to Giles’s life, and fail to take reasonable measures to avert that risk, within the meaning of the Osman test?
• Did Giles’s status as a prosecution witness place him in a special category attracting a lower threshold than the usual Osman “real and immediate” risk standard?
• Could a separate claim under Article 8 (respect for private and family life) succeed if the Article 2 claim failed?

Smith

• Do the police owe a common law duty of care to an individual who provides apparently credible information that an identified person presents a specific and imminent threat to his life or physical safety?
• Is such a duty precluded by the “core principle” from Hill v Chief Constable of West Yorkshire and reaffirmed in Brooks v Commissioner of Police of the Metropolis, which limits negligence liability for the way police investigate and suppress crime?
• Should the common law of negligence be developed, in light of the Human Rights Act and Article 2, to recognise such a duty?

Judgment

Van Colle

Article 2 framework

Article 2(1) provides:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally …”

The House applied the well-known Strasbourg formulation in Osman v United Kingdom, as quoted at paragraph 29 of Lord Bingham’s opinion:

“… 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.”

Lord Bingham and Lord Hope emphasised that this is a single, constant test, applicable irrespective of the context, and that it should not be judicially diluted or reformulated. Lord Carswell had previously described the test as “one not easily satisfied, the threshold being high”, a comment endorsed as descriptive but not as a gloss on Osman.

Application to the facts

The House unanimously held that, judged on what DC Ridley knew or reasonably ought to have known “at the time” (without hindsight), the Osman test was not met:

• The underlying theft and deception charges were relatively minor and unlikely to attract a severe custodial sentence.
• Brougham’s criminal record was petty, with only one dated common assault conviction, and nothing then known suggesting a propensity to serious violence or gang involvement.
• Several relevant incidents (such as certain bribe offers and the fire at Giles’s car) were never reported to, or known by, DC Ridley, and could not be used to establish his knowledge.
• The bribery offers showed willingness to avoid conviction but did not in themselves point to lethal violence.
• The first threatening call to Giles was properly recorded and a statement taken; although Giles understandably perceived a death threat, the objective indications of an imminent lethal attack were weak.
• The subsequent fires at the Panayiotou car and business premises were, on the contemporaneous evidence available to the police and fire services, regarded as possibly or probably accidental; even had they been attributed to Brougham, they did not clearly signal a threat to life.
• The 9 November call was abusive and intimidatory but contained no explicit threat and was the last contact before the murder.

The disciplinary findings against DC Ridley focused on failures regarding witness intimidation procedures and the absence of an arrest for perverting the course of justice, not on failure to perceive an imminent threat to life. Lord Bingham noted that the modest penalty imposed reflected that perspective.

The House rejected the approach of Cox J and the Court of Appeal, which had treated Giles’s status as a prosecution witness as placing him in a “special category” warranting a lower threshold than the ordinary Osman test. Reliance on R (A) v Lord Saville of Newdigate for a modified test for called witnesses was disapproved. Lord Bingham stated that the Osman test “remains the same, but the crucial question is one which can only be answered in the light of all the circumstances of any particular case”.

Article 8

Lord Bingham held that Article 8 could not found an independent claim on these facts. The police had not themselves interfered with Giles’s private or family life; any allegation was essentially about failure to protect life from a third party, which properly fell to be analysed solely under Article 2.

Outcome in Van Colle

The House held that the Chief Constable had not violated Article 2 or Article 8. Lord Bingham concluded:

“I would allow the Chief Constable’s appeal, set aside the order of the Court of Appeal, and enter judgment for the Chief Constable.”

Smith

Lord Bingham’s proposed duty of care

In the companion appeal, Lord Bingham (dissenting on this issue) would have recognised a narrow common law duty of care. He formulated a “liability principle” (paragraph 44): if a member of the public provides a police officer with apparently credible evidence that an identified third party, whose identity and whereabouts are known, presents a specific and imminent threat to that person’s life or physical safety, the officer owes a duty to take reasonable steps to assess the threat and, if appropriate, to take reasonable steps to prevent its execution.

He considered this principle consistent with common law negligence (including the Caparo test), distinguished it from the facts of Hill and Brooks, and thought that public policy favoured recognition of such a duty. On the pleaded facts, he would have held that Sussex Police owed Mr Smith such a duty and would have dismissed the Chief Constable’s appeal, allowing the action to proceed to trial.

Majority reasoning rejecting a duty

The majority (Lords Hope, Phillips, Carswell and Brown) disagreed and allowed the appeal, restoring the strike-out. They reaffirmed the “core principle” from Hill, as explained by Lord Steyn in Brooks: the police generally owe no common law duty of care in respect of how they investigate crime, treat witnesses and alleged victims, or allocate resources, because imposing such duties would detrimentally affect law enforcement in the interests of the wider community.

Lord Hope highlighted Lord Steyn’s statement in Brooks that:

“A retreat from the [core] principle in Hill’s case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit 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 the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded.”

In the majority’s view, Mr Smith’s claim fell within the sphere of the police function of investigating and suppressing crime and thus within the Hill/Brooks principle. They accepted that the facts were disturbing and that police failures were serious on the assumed case, but concluded that, as a matter of policy, the law should not impose a common law duty in such cases.

Key strands of the majority reasoning included:

• Recognising a duty of care based on “apparently credible” evidence of a “specific and imminent” threat would be difficult to apply in practice and would invite ex post facto judicial second-guessing of on-the-spot police judgments (Lord Hope and Lord Carswell).
• Such a duty risked “defensive policing” by encouraging officers to overreact to threats, divert resources from other priorities, and inhibit robust decision-making (Lords Hope, Phillips, Carswell and Brown).
• The proposed liability principle could not be convincingly confined to threats to life or physical safety and sat uneasily with the broader Hill principle (Lords Phillips and Brown).
• The existence of Article 2 ECHR and the Human Rights Act already provided a route to challenge egregious failures; it was neither necessary nor desirable to fashion an overlapping or broader common law duty in this narrow class of case, particularly given differences in limitation, remedies and causation standards (Lords Hope and Brown).

Lord Carswell accepted that there might be exceptional cases outside the core principle (for example, certain operational decisions or clear assumptions of responsibility), but considered that Mr Smith’s case was not one of them. Lord Brown accepted that there are situations (such as custody, or cases like Swinney or Costello) where a common law duty may arise, typically based on assumption of responsibility or specific operational acts, but held that this did not extend to the present context of general crime prevention and investigation.

Outcome in Smith

The majority therefore held that it was not fair, just and reasonable to impose a duty of care on the police on the pleaded facts. Lord Hope stated:

“I would allow the appeal, set aside the order of the Court of Appeal and restore the order made by the judge by which the proceedings were struck out.”

Lords Phillips, Carswell and Brown agreed, so the Chief Constable’s appeal was allowed and Mr Smith’s negligence claim was struck out. Lord Bingham dissented, favouring recognition of the duty and dismissal of the appeal.

Implications

This decision has important consequences for both human rights and tort law.

Clarification of Article 2 operational duty

• The House confirmed that the Osman “real and immediate” risk test is stringent and constant. It applies in all contexts, including threats to prosecution witnesses, and should not be relaxed by domestic courts.
• The assessment must be made on what the authorities knew or ought reasonably to have known “at the time”, without the benefit of hindsight.
• Being a witness does not automatically place an individual in a special category warranting a lower threshold. Giles’s murder, though tragic, did not retrospectively show that a real and immediate risk had existed as a matter of Article 2.
• Article 8 adds nothing where the gravamen of the complaint is failure to protect life from third-party criminal acts; such claims must be considered under Article 2.

Police liability in negligence

• The majority reaffirmed and strengthened the Hill/Brooks “core principle” that, in general, the police owe no common law duty of care in respect of the way they investigate crime, respond to reports of crime, or allocate operational resources, even where individuals have provided specific warnings of risk.
• Exceptions remain for cases involving assumption of responsibility or distinct operational acts (for example, failures in direct control of dangerous situations or persons, or negligent acts creating new dangers), but the House declined to carve out a general exception for threats reported by potential victims.
• The House declined to develop the common law of negligence in tandem with Article 2 where that would extend liability beyond the limits carefully drawn by Strasbourg, particularly given the Human Rights Act already provides a tailored public law remedy with different limitation periods, remedial aims and causation principles.
• The ruling underlines that, save in exceptional situations, failures to protect individuals from third-party crime will be addressed, if at all, through the Human Rights Act rather than through ordinary negligence claims.

Overall, the combined decisions in Van Colle and Smith emphasise a strict threshold for State responsibility to protect life under Article 2 and preserve a broad immunity from common law negligence claims for the operational decisions of the police in preventing and investigating crime, subject to limited and fact-specific exceptions.

Verdict: In Van Colle, the House of Lords allowed the Chief Constable's appeal, set aside the Court of Appeal's order, and entered judgment for the Chief Constable, holding that Article 2 was not violated. In Smith, by majority, the House allowed the Chief Constable's appeal and restored the first-instance order striking out Mr Smith's negligence claim, holding that no common law duty of care arose.

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