Van Colle v Hertfordshire Police

Article 2 may require the police to take preventive operational measures where they knew, or ought to have known, of a real and immediate risk to an identified person’s life from criminal acts by a third party. The court must assess the facts carefully, without imposing an impossible or disproportionate burden on the authorities.

Where the state has exposed a person to particular risks, including a prosecution witness required to give evidence, the relevant threshold may be assessed through common sense and common humanity. A claimant need not prove gross negligence or establish causation on a strict “but for” basis. A real prospect that protective measures could have altered the outcome may suffice for damages under the Human Rights Act 1998.

The claimants were the parents and estate representative of Giles Van Colle, who was murdered shortly before he was due to give evidence in a criminal trial. They alleged that Hertfordshire Police had failed to respond adequately to repeated threats and incidents of witness intimidation by the defendant in that trial.

The defendant accepted that the investigating officer had made serious operational errors, but disputed liability under Articles 2 and 8 of the Convention and disputed causation and damages. The issues were whether a positive protective duty arose, whether it was breached, and what remedy was appropriate.

1. Article 2 duty. The positive obligation to protect life requires anxious scrutiny but must not impose an impossible or disproportionate burden on public authorities. In the ordinary case, the Osman v United Kingdom test applies: the authorities must have known or ought to have known of a real and immediate risk to the life of an identified individual from criminal acts, and must have failed to take measures within their powers which might reasonably have been expected to avoid it.
2. Special vulnerability. Where state conduct exposes an individual to risk, or the individual is required to perform duties for the state, the Osman threshold is not necessarily determinative. Prosecution witnesses are a special category requiring protection assessed by common sense and common humanity, having regard to the threat, the degree of risk and reasonably available protective measures.
3. Breach. Giles was a crucial prosecution witness. The investigating officer knew, or ought to have known, of a serious threat, repeated intimidation of witnesses and deliberately started fires. He failed to investigate the developing pattern, assess the risk or consider arrest, bail restrictions, or temporary safe accommodation. Article 2 was engaged and breached. The same failure violated Article 8.
4. Causation and remedy. A declaration under sections 7 and 8 of the Human Rights Act 1998 does not require proof of damage. For damages, the appropriate question was whether reasonably available protective measures could have had a real prospect of altering the outcome or avoiding the death, rather than whether death would probably have occurred but for the breach. That test was satisfied.
5. The court declared the defendant’s conduct unlawful and awarded £15,000 for Giles’s distress and £35,000 for the claimants’ grief and suffering.

First-instance decision. The judgment records that an earlier trial before Mr Justice Wakerley could not be concluded because he died before delivering judgment. The parties agreed that the case should be determined by a new trial judge on the existing transcript and documents.