Van Colle & Anor v Hertfordshire Police

Article 2 may require the police to take preventive operational measures to protect an identified person from criminal acts by a third party. The obligation must not impose an impossible or disproportionate burden, and its application is fact-sensitive.

For a prosecution witness required to give evidence, a present and continuing risk may engage the obligation without applying the particularly high Osman threshold. Police must assess the available information without hindsight, investigate relevant threats and connected events, and take reasonably available protective measures.

For damages under the Human Rights Act 1998, domestic courts must take Strasbourg awards under Article 41 into account. English personal-injury or bereavement awards are not the primary guide.

Cox J held that the Chief Constable had violated Giles Van Colle’s rights under Articles 2 and 8 of the Convention by failing to protect him from threats made by Daniel Brougham, who later murdered him. The claim was brought under sections 6 and 7 of the Human Rights Act 1998, and £50,000 was awarded under section 8.

The Chief Constable appealed on liability, causation and quantum. The Court of Appeal considered whether the police knew or ought to have known of a sufficiently serious and continuing risk to Giles, whether reasonable protective measures were required, whether the failure caused his death, and whether the damages award was appropriate.

1. Liability. The appeal on liability was dismissed. Article 2 imposes a positive obligation in appropriate circumstances to take preventive operational measures to protect an identified person whose life is at risk from criminal acts by a third party. The obligation must be interpreted so as to avoid an impossible or disproportionate burden.
2. The Osman formulation of a real and immediate risk is not an all-purpose threshold. Where the state’s own conduct exposes a person to risk, including a prosecution witness required to give evidence, the court must apply common sense and common humanity to the facts. A risk may be immediate where it is present and continuing during the relevant period.
3. The police had to assess the information available without hindsight and on the assumption that the officer had received appropriate training and guidance. The threats to Giles, the connected intimidation of another witness and the fires created a real and continuing risk to his life. A properly instructed officer should have investigated, assessed the need for protection, acted against Brougham and kept the position under review. The failure to do so breached Article 2. It was unnecessary to determine the Article 8 issue.
4. Although the Strasbourg approach permits a fact-sensitive assessment of whether protective measures had a real prospect of altering the outcome, the court held that causation was established even on the ordinary but-for approach. It was highly likely that arrest, remand, bail conditions or protective accommodation would have prevented the murder.
5. On quantum, section 8 of the Human Rights Act 1998 required regard to the equitable principles and levels of award applied under Article 41. The judge had wrongly taken account of the absence of an adequate apology and of the disciplinary sanction. The appeal on quantum was allowed. The award was substituted by £10,000 to Giles’s estate and £7,500 to each parent.

• Court of Appeal (Civil Division). In [2007] EWCA Civ 325, the court dismissed the appeal on liability and allowed it on quantum, substituting total compensation of £25,000.
• High Court of Justice, Queen’s Bench Division. Cox J held on 10 March 2006 that the police had breached Articles 2 and 8 of the Convention and awarded £50,000 under section 8 of the Human Rights Act 1998.