|Judgments - Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) V Van Colle
HOUSE OF LORDS
 UKHL 50
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Chief Constable of the Hertfordshire Police (Original Appellant and Cross-respondent) v Van Colle (administrator of the estate of GC (deceased)) and another (Original Respondents and Cross-appellants)
Smith (FC) (Respondent) v Chief Constable of Sussex Police (Appellant)
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Phillips of Worth Matravers
Lord Brown of Eaton-under-Heywood
Original Appellant in first appeal:
Edward Faulks QC
(Instructed by Weightmans LLP)
Appellant in second appeal:
Edward Faulks QC
(Instructed by Weightmans LLP)
Original Respondents in first appeal:
Monica Carss-Frisk QC
(Instructed by Lynch Hall Hornby )
Respondent in second appeal:
Heather Williams QC
(Instructed by Griffith Smith Farrington Webb)
Interveners (in both cases)
First Intervener (Secretary of State for the Home Department)
Nigel Giffin QC
(Instructed by Treasury Solicitors)
Second Interveners (Inquest, Justice, Liberty & Mind)
Dinah Rose QC
Paul Bowen, Richard Hermer
Alison Gerry, Anna Edmundson
(Instructed by Bhatt Murphy)
Third Interveners (Equality & Human Rights Commission)
Tim Owen QC
(Instructed by Equality & Human Rights Commission)
19, 20, 21 and 22 MAY 2008
WEDNESDAY 30 JULY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Chief Constable of the Hertfordshire Police (Original Appellant) and Cross-respondent) v Van Colle (administrator of the estate of GC (deceased)) and another (Original Respondents and Cross-appellants)
Smith (FC) (Respondent) v Chief Constable of Sussex Police (Appellant)
 UKHL 50
LORD BINGHAM OF CORNHILL
(1) In the first (Van Colle) case the threat was made by a man known in the case as Daniel Brougham against Giles Van Colle ("Giles") and culminated in the murder of Giles by Brougham. In the second (Smith) case, the threat was made against the respondent (Stephen Paul Smith) by his former partner (Gareth Jeffrey) and culminated in the infliction of serious injury on Mr Smith by Jeffrey.
(2) In the Van Colle case the claimants are Giles' parents, suing on behalf of his estate and on their own behalf. In the Smith case, Mr Smith is the only claimant, suing on his own behalf.
(3) In the Van Colle case, the claim is brought under sections 6 and 7 of the Human Rights Act 1998, in reliance on articles 2 and 8 of the European Convention on Human Rights, and no claim is made under the common law. In the Smith case the claim is made under the common law alone, and no claim is made under the Human Rights Act.
(4) In the Van Colle case there has been a full trial in which judgment was given for the claimants and damages awarded, and the Court of Appeal has upheld that judgment subject to a reduction in the damages. In the Smith case there has been no trial: Mr Smith's proceedings were struck out at first instance on the application of the appellant Chief Constable but were restored and remitted for trial on Mr Smith's successful appeal to the Court of Appeal. Thus in Van Colle there has been a finding of violation of article 2. In Smith the question of violation or breach does not at this stage arise: the only question is whether the Chief Constable owes a duty; only if it is held that he does or may will the question of breach arise, but that is not a question now before the House in Smith. Thus the House must consider the susceptibility of the police to claims for civil redress both at common law and under the 1998 Act.
Van Colle: the facts
"the caller said words very like the following: Drop the charges, we know where you live and where your parents live and where your business is. You'll be in trouble (might have said danger) if you don't The voice sounded to the victim like a former thieving employee [Brougham] currently under investigation by Dave Ridley of CID at Hitchin ... "
DC Campbell advised Giles to report the call to DC Ridley, which he did at some point around 16 - 18 October 2000. On 19 October DC Ridley took statements from Giles and Mr Panayiotou.
Smith: the facts
Van Colle: the law
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally ..."
According to what has become a conventional analysis, this provision enjoins each member state not only to refrain from the intentional and unlawful taking of life ("Thou shalt not kill") but also to take appropriate steps to safeguard the lives of those within its jurisdiction: Osman v United Kingdom (1998) 29 EHRR 245, para 115. The state's duty in this respect (as this para of the judgment of the Strasbourg court in Osman makes clear) includes but extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 may also, "in certain well-defined 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. The scope of this last obligation was the subject of dispute in Osman, and lies at the heart of this appeal.
"... 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."
Every ingredient of this carefully drafted ruling is, I think, of importance.
"Where it is the conduct of the state authorities which has itself exposed an individual to the risk to his life, including for example where the individual is in a special category of vulnerable persons, or of persons required by the state to perform certain duties on its behalf which may expose them to risk, and who is therefore entitled to expect a reasonable level of protection as a result, the Osman v UK threshold of a real and immediate risk in such circumstances is too high."
This led the judge to regard Giles (para 91) as being, by virtue of his status as a witness, in a special category of persons separate and apart from members of the public generally or from a broad section of the general public. As a prosecution witness who was threatened and intimidated by a defendant he was someone at special and distinctive risk of harm. She paid much attention to the Chief Constable's protocol on witness intimidation, which had not been brought to DC Ridley's attention. The Court of Appeal quoted and approved the judge's statement of principle (paras 75-76) and also attached importance (para 76) to the fact that Giles was not simply a member of the community, like Mr Osman, but was to be a witness for the prosecution at a criminal trial.
"Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context."
While I have no doubt that the Court of Appeal's decision in that case was correct, I would respectfully question whether that observation was correct.
(1) The offence of theft from an employer, Giles, with which Brougham was charged was, in the catalogue of acquisitive crime, minor. The other two offences, although involving goods of greater value, were also minor. An experienced detective constable would not see this as a big case, or as in any way unusual. He would see custody as a possible, but improbable, penalty if Brougham were convicted.
(2) Brougham's record was that of a petty offender, the only hint of violence in his record a seven year-old conviction of common assault. He could not have appeared to be a man given to violence. There was nothing before Giles' death to suggest that Brougham was a member of any gang or had criminal associates.
(3) Brougham's first approach to a witness, to Mr Heward of Southern Counties, was not reported to DC Ridley. It is thus, as the Court of Appeal held (para 19), "irrelevant for present purposes".
(4) Brougham's approach to Mr Panayiotou on 10 August, offering to pay for the equipment he had taken and arranging to do so, was reported to DC Ridley. But this approach, if irregular, was not sinister, and not suggestive of violence to Mr Panayiotou, let alone Giles.
(5) The fire which damaged Giles' car on 24 September was not reported to DC Ridley. It was thus entirely irrelevant to his state of mind at the time.
(6) The bribe offered by Brougham to Mr Panayiotou on 13 October 2000 was serious criminal conduct, suggesting that Brougham was willing to go to some lengths to avoid conviction. But it did not suggest, and might well have appeared inconsistent with, a resort to violence. It could not have been interpreted as any threat to the life or security of Giles.
(7) Brougham's telephone call to Giles on 13 October 2000 was on any showing an attempt to intimidate Giles into dropping the charges. Brougham was thought to be, although not positively identified as, the caller, and although there was no explicit death threat it is not surprising that Giles took it as such. However, having telephoned the local police station at once and been advised to call DC Ridley, Giles took some days to do so. DC Ridley then took a statement. In the context of this case, the prospect of the threat being implemented could reasonably be seen as remote.
(8) Brougham's offer of a bribe to Mr Atkinson, a witness in the Southern Counties case, on about 17 October was not reported to DC Ridley, and was thus irrelevant to his state of mind at the time.
(9) The fire which damaged Mrs Panayiotou's car on 28 October was thought by Mr Panayiotou at the time to have been possibly accidental and by an AA inspector to have been possibly caused by a firework. If the fire were thought to have been malicious, and were attributed to Brougham, it would again have suggested that Brougham was willing to go to some lengths to avoid conviction, but could scarcely have suggested a threat to the life or security of Giles.
(10) The fire at Mr Panayiotou's business premises on 29 October was investigated by fire officers and the Metropolitan Police, none of whom concluded at the time that the fire had been started deliberately. Even if the fire had been thought to have been malicious, and to have been started by Brougham, the burning of an unlocked outbuilding used to store old equipment and spare parts could scarcely have been seen as a threat to the life of anyone, and certainly not Giles.
(11) The telephone call made by Brougham to Giles on 9 November 2000 was unpleasant in content and aggressive in tone, but it contained no threat. This was the last contact between Brougham and Giles before their fatal encounter.
Smith: the law
"But the core principle of Hill's case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill's case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence: see section 29 of the Police Act 1996, read with Schedule 4 as substituted by section 83 of the Police Reform Act 2002; section 17 of the Police (Scotland) Act 1967; Halsbury's Laws of England, 4th ed reissue (1999), vol 36(I), para 524; The Laws of Scotland, Stair Memorial Encyclopaedia, vol 16, (1995), para 1784; Moylan, Scotland Yard and the Metropolitan Police, (1929), p 34. A retreat from the 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. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combating crime."
"There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns  1 WLR 349 and Rigby v Chief Constable of Northamptonshire  1 WLR 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg v Dytham  QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene."
The cases cited by Lord Keith are instructive. In Knightley v Johns  1 WLR 349 a police inspector was held by the Court of Appeal to be liable when he failed to close a tunnel after an accident and negligently ordered a constable to ride his motor cycle through the tunnel against the flow of traffic, with the result that the constable was injured. The inspector was held liable to the constable, and to that extent the decision is comparable with the later decision in Costello v Chief Constable of the Northumbria Police  1 All ER 550, but it can scarcely be supposed that police officers owe duties of care only to each other. Such was not the case in Gibson v Orr 1999 SC 420, where the defendant was held vicariously liable to a member of the public. In Rigby v Chief Constable of Northamptonshire  1 WLR 1242, a decision of Taylor J, the Chief Constable was held to be negligent where officers used CS gas without readily available fire-fighting equipment. This decision would be inconsistent with a rule that operational decisions are immune from scrutiny. In R v Dytham  QB 722 the charge against the constable, tried and convicted on indictment, was that he had wilfully omitted to take any steps to preserve the Queen's peace or to protect a man beaten to death before his eyes. It would suggest a defect in our law if a constable were criminally liable in such circumstances but owed the victim no common law duty of care.
"[The defendants] are the police authority and have to make proper police arrangements to maintain the peace. If one party to a dispute is threatened with violence by the other party he is entitled to protection from such violence whether his contention in the dispute be right or wrong ..."
This statement was expressly approved by Viscount Cave LC (pp 277-278), Lord Shaw of Dunfermline (p 288) and Lord Carson (p 291) in Glasbrook Brothers Ltd v Glamorgan County Council  AC 270, but their Lordships in that case went further. The Lord Chancellor (p 277) said:
"No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; ... "
Viscount Finlay (at pp 285, 287) spoke to similar effect:
"There is no doubt that it is the duty of the police to give adequate protection to all persons and to their property ... Beyond all question it is the duty of the police to give protection to the persons and property of all His Majesty's subjects."
Lord Carson (at p 292) agreed with the Lord Chancellor's formulation, although preferring to lay down that it was the duty of the police to take all steps that were necessary for the purposes mentioned by the Lord Chancellor. Lord Blanesburgh (at p 306) referred to the absolute duty of the police to afford protection to life and property, limited only by the extent of their available resources and by the urgency of competing claims upon their services.
LORD HOPE OF CRAIGHEAD
"For the court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities."
The court might have said that the question whether to impose the obligation would be impossible or disproportionate was a matter to be decided on the facts of each case. It chose not to do that. The solution which it adopted was to define the limits of the obligation. Those limits must be observed in every case where it is alleged that a public authority has violated its positive obligation under the article. Of course the answer to the question whether the positive obligation was breached will always depend on the individual facts of the case, as the judge said. But the test itself is invariable.
"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."
"While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence."
LORD PHILLIPS OF WORTH MATRAVERS
i) To take reasonable steps to assess whether he was a victim of crime and then to accord him reasonably appropriate protection or support, assistance and treatment;
ii) To take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence;
iii) To afford reasonable weight to the account that he gave and to act upon it.
"It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the principle in Hill's case. It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise. But such exceptional cases on the margins of the principle in Hill's case will have to be considered and determined if and when they occur."
LORD BROWN OF EATON-UNDER-HEYWOOD