Van Colle v Chief Constable of Hertfordshire Police

This decision addresses (1) the Article 2 positive obligation under the European Convention on Human Rights, applied via the Human Rights Act 1998 (sections 6 and 7), and (2) the availability of a common-law negligence duty of care against the police for harm caused by third parties. The Strasbourg test in Osman — that the authorities knew or ought to have known "at the time" of a real and immediate risk to the life of an identified individual — was applied strictly: on the facts of Van Colle the test was not met and Article 2 was not breached. In the companion case (Smith) the majority held that the common-law position remains governed by Hill and Brooks and that, absent special circumstances or an assumption of responsibility, no general duty of care to protect individuals from third-party criminal acts should be imposed on the police.

This judgment comprises two linked appeals heard together. Van Colle: the claimants (parents and administrator of the estate of Giles Van Colle) sued the Chief Constable of Hertfordshire under sections 6 and 7 of the Human Rights Act 1998 relying on Article 2 ECHR after their son, threatened by a former employee, was murdered. There had been an earlier trial and a damages award in the High Court, with the Court of Appeal upholding liability but reducing damages. The central issue was whether the police knew or ought to have known of a "real and immediate" risk to life within the Osman formulation and failed to take reasonable measures.

Smith: Mr Smith sued the Chief Constable of Sussex in negligence after prolonged threats by a known individual culminated in grievous injury. His claim was struck out at first instance, restored by the Court of Appeal and remitted for trial. The issue before the House was whether the police owed a common-law duty to take reasonable steps to assess and, if appropriate, prevent an imminent and specific threat to an individual.

• Nature of the claims: (i) Van Colle — HRA/Article 2 positive obligation claim seeking damages under sections 6 and 7 HRA 1998; (ii) Smith — common-law negligence claim seeking damages for personal injury.
• Issues framed: application of the Osman "real and immediate risk" test to Article 2 (Van Colle); and whether the common law should recognise a duty of care on the police to individuals threatened with criminal violence (Smith), reconciling Caparo proximity analysis with public policy in Hill and Brooks.
• Reasoning in brief: the House applied Osman strictly and concluded in Van Colle that, judged by what the officer knew or ought to have appreciated at the time, there was no real and immediate risk to life; the Article 2 claim therefore failed. On the Smith appeal a majority concluded that imposing a general common-law duty in the circumstances would conflict with the public-policy "core principle" developed in Hill and affirmed in Brooks; exceptional cases remain possible where responsibility is assumed or other special features exist, but Smith did not fall within such exceptions.

Appeal allowed. In Van Colle the House allowed the Chief Constable's appeal: the Article 2 positive obligation under Osman was not engaged because the authorities did not know and ought not, on the information reasonably available to them at the time, to have known of a real and immediate risk to the life of the identified individual. In the companion Smith appeal the majority allowed the Chief Constable's appeal and restored the strike-out: the common law, governed by the principles in Hill and Brooks, does not recognise a general duty of care to members of the public to prevent harm by third parties absent special circumstances or an assumption of responsibility.

On appeal from the Court of Appeal decisions: Van Colle from [2007] EWCA Civ 325 (following the High Court judgment [2006] EWHC 360 (QB)); Smith from [2008] EWCA Civ 39 (having been struck out at first instance in the Brighton County Court and remitted by the Court of Appeal). The House of Lords ([2008] UKHL 50) allowed the Chief Constable's appeal in Van Colle and, by a majority, allowed the Chief Constable's appeal in Smith.