Van Colle & Anor v Hertfordshire Police

The positive obligation under Article 2 may require the authorities to take preventive operational measures where they knew or ought to have known of a real and immediate risk to the life of an identified person; courts assess that obligation by reference to what could reasonably have been expected of the authorities in all the circumstances, not by imposing a strict common-law but-for test for causation.

The claimants, parents and administrator of the estate of a murdered prosecution witness, sued the Chief Constable under the Human Rights Act 1998 alleging breach of the positive obligation in Article 2 to protect life. The action was tried on the documentary record and transcripts of a previous hearing. The judge found the police had failed to take steps to protect the witness and awarded damages. The force appealed liability and quantum. The Court of Appeal dismissed the appeal on liability, finding the officer in charge should have appreciated the risk and taken steps under the force's witness-protection protocol, but allowed the appeal on quantum, reducing the award as excessive compared with Strasbourg authority.

Disposition: Appeal dismissed on liability and allowed in part on quantum (damages reduced).

1. Article 2 may impose a positive obligation to take preventive operational measures to protect an identified person where the authorities knew or ought to have known of a real and immediate risk to life from a third party and failed to take reasonably available measures which might have been expected to avoid that risk. The obligation must be interpreted so as not to impose an impossible or disproportionate burden on the state. [116]
2. The degree of risk required to engage Article 2 is a matter of fact and degree; the Osman formula ("real and immediate") is the Strasbourg formulation but the threshold will vary with context and is to be applied by common-sense assessment in light of the particular circumstances and vulnerability of the person (for example, witnesses). The court adopted the distilled principles at [75] as guidance. [62]; [75]
[26]; [31]; [84]-[94] [82]; [96]-[99] [121]-[129] [37]; [42]-[46]; [75]

• Court of Appeal (Civil Division): Appeal from the Queen's Bench Division (Cox J). The Court of Appeal (Sir Anthony Clarke MR, Sedley LJ, Lloyd LJ) dismissed the appeal on liability but allowed it in part on quantum, substituting reduced damages (£10,000 to the estate; £7,500 to each parent).
• High Court (Queen's Bench Division): Cox J (first-instance judgment) found breach of Articles 2 and 8 and awarded damages totalling £50,000; permission to appeal was granted. (This is the immediate decision under appeal.)