Van Colle (administrator of the estate of GC (deceased)) and another (Original-Respondents and Cross-appellants) v Chief Constable of the Hertfordshire Police (Original Appellant and Cross-respondent)Smith (Respondent) v Chief Constable of Sussex Police (Appellant)

Article 2 requires the police to take reasonable preventive measures where they know, or ought at the time to know, of a real and immediate risk to an identified person’s life from a third party. The threshold remains constant. A person’s status as a prosecution witness informs the factual assessment but does not lower the test.

At common law, the police generally owe no duty of care to protect an individual from criminal harm while investigating or suppressing crime. Special circumstances, including a specific assumption of responsibility, may fall outside that principle. The existence of a narrower remedy under the Human Rights Act 1998 does not justify creating a broader negligence duty.

Two police-liability appeals were heard together. In Van Colle v Chief Constable of the Hertfordshire Police, the parents of a murdered prosecution witness claimed under the Human Rights Act 1998. Cox J upheld the claim in [2006] EWHC 360 (QB), and the Court of Appeal dismissed the Chief Constable’s appeal in [2007] EWCA Civ 325, while reducing the damages.

In Smith v Chief Constable of Sussex Police, the claimant alleged that officers failed to respond to repeated and explicit death threats from his former partner, who later caused him grave injury. The county court struck out his negligence claim. The Court of Appeal restored it and remitted it for trial in [2008] EWCA Civ 39.

The House considered the threshold for the police’s positive obligation under article 2 and whether the police owed a common-law duty to protect an identified person from an identified criminal threat.

1. Disposition. The House unanimously allowed the Chief Constable’s appeal in Van Colle v Chief Constable of the Hertfordshire Police. It entered judgment for the Chief Constable. By a majority of four to one, it also allowed the Chief Constable’s appeal in Smith v Chief Constable of Sussex Police and restored the order striking out the negligence claim.

2. Article 2. Lord Bingham gave the leading analysis in Van Colle, with which the other Law Lords agreed. The positive operational obligation stated in Osman v United Kingdom applies where the authorities knew or ought to have known at the time of a real and immediate risk to the life of an identified person from a third party, yet failed to take reasonably available measures which might have avoided it. The test is objective and must be applied without hindsight.

   The threshold is constant and does not become lower because the threatened person is a prosecution witness. Witness status may affect the factual assessment of risk, but it creates no separate standard. The information known, or reasonably obtainable, by the investigating officer did not disclose a real and immediate risk to Giles Van Colle’s life. The article 2 claim therefore failed, and article 8 supplied no independent basis for recovery.

3. Common-law negligence. Lord Hope, with whom Lord Carswell expressly agreed, and Lords Phillips and Brown held that the core principle in Hill v Chief Constable of West Yorkshire and Brooks v Commissioner of Police of the Metropolis governed Mr Smith’s case. In the absence of special circumstances, the police owe no private duty of care to protect individuals from criminal harm while investigating and suppressing crime. Such a duty could encourage defensive policing, distort priorities and divert resources into litigation.

   The majority rejected Lord Bingham’s proposed duty arising upon apparently credible evidence of a specific and imminent threat by an identified person. Its threshold would be uncertain and would place operational judgments under retrospective judicial scrutiny. Existing exceptions involving negligent positive acts, operational functions outside crime investigation, or a specific assumption of responsibility remained possible, but Mr Smith’s pleaded facts did not establish such an exception.

4. Relationship with Convention rights. The majority held that the common law should continue alongside the remedy under the Human Rights Act 1998. The narrowly framed article 2 obligation did not remove the policy basis of the common-law rule or require a broader negligence action.

5. Dissent. Lord Bingham would have dismissed the appeal in Smith. He considered that police who receive apparently credible evidence of a specific and imminent threat from a person whose identity and whereabouts are known owe a duty to assess the threat and, where appropriate, take reasonable preventive steps.

1. House of Lords: In Van Colle v Chief Constable of the Hertfordshire Police, the House allowed the Chief Constable’s appeal, set aside the Court of Appeal’s order and entered judgment for the Chief Constable. In Smith v Chief Constable of Sussex Police, it allowed the Chief Constable’s appeal and restored the county court’s strike-out order: [2008] UKHL 50.
2. Court of Appeal — Van Colle: The court dismissed the Chief Constable’s appeal but reduced the total damages from £50,000 to £25,000: [2007] EWCA Civ 325, [2007] 1 WLR 1821.
3. Court of Appeal — Smith: The court allowed Mr Smith’s appeal and remitted his negligence claim to the county court for trial: [2008] EWCA Civ 39.
4. High Court — Van Colle: Cox J found a violation of article 2 and awarded damages totalling £50,000: [2006] EWHC 360 (QB), [2006] 3 All ER 963.
5. Brighton County Court — Smith: His Honour Judge Simpkiss struck out the negligence claim as disclosing no reasonable grounds for bringing it.