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)

The Osman "real and immediate risk" test is the constant test for article 2 positive obligations. It requires that the authorities knew or ought to have known at the time of a real and immediate risk to an identified person and failed to take reasonable measures to avert it ([29]). The common-law rule that the police generally owe no private-law duty to protect individuals from third-party crime remains intact, subject only to rare and well-defined exceptions (the "Hill/Brooks" core principle) ([51]).

This House heard two conjoined appeals about police liability for third-party violence. In Van Colle claimants relied on sections 6 and 7 of the Human Rights Act 1998 and article 2 ECHR after their son was murdered following threats. The trial judge found a breach and the Court of Appeal upheld liability. The House reviewed whether the Osman test for a positive article 2 obligation was satisfied on the facts. In Smith the claimant alleged a common-law negligence duty after serious assault following repeated threats. The Court of Appeal reinstated the claim after an interlocutory strike-out. The House determined the applicable article 2 test and the scope of any common-law duty owed by the police.

(1) Overall disposition: Appeals allowed. The House allowed the Chief Constable's appeal in Van Colle and allowed the Chief Constable's appeal in Smith, restoring the lower judge's orders where appropriate.

(2) Article 2 and the Osman test: The Strasbourg formulation in Osman v United Kingdom is the proper and constant test for the positive obligation under article 2. It requires an objective finding 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 and that they failed to take measures within their powers which might reasonably have been expected to avert that risk. The test must be applied without lowering its threshold for particular categories of person merely because the authority's conduct exposed them to risk (see paras [29], [35], [41]).

(3) Application to Van Colle: On an objective assessment of what DC Ridley knew or ought to have known at the time, the House concluded the Osman threshold was not met. The factual indicia known to the officer did not show a real and immediate risk to life. Hindsight and post-event information cannot be used to lower the required threshold. Accordingly the article 2 claim failed and the Chief Constable's appeal succeeded (see paras [36]–[41]).

(4) Common law duty in Smith: The House reaffirmed the core principle in Hill v Chief Constable of West Yorkshire and Brooks v Commissioner of Police of the Metropolis that, in general, the police owe no private-law duty to protect individuals from the tortious acts of third parties where doing so would undermine their public functions. The majority held that this principle remains applicable and that no general common-law duty as proposed by one speech (the "liability principle") should be recognised. Claims must be evaluated against established delictual tests and public-policy constraints (see paras [51]–[81]).

(5) Practical guidance: Courts must apply the Osman test objectively and guard against hindsight. The existence of a Convention remedy does not automatically require parallel expansion of common-law duties. Exceptional factual cases where the police have assumed responsibility or where operational decisions create direct exposure may still attract liability, but such exceptions are rare (see paras [41], [77], [129]).

(6) Orders: In Van Colle the Chief Constable's appeal is allowed and the Court of Appeal's order is set aside; judgment entered for the Chief Constable. In Smith the Chief Constable's appeal is allowed; the Court of Appeal's order is set aside and the strike-out below is restored. Parties (other than interveners) to provide written submissions on costs within 14 days (see paras [41], [136]).

1. House of Lords: Appeal heard and judgment given, [2008] UKHL 50 (this judgment).
2. Court of Appeal (Civil Division): Van Colle – judgment upholding claimant, [2007] EWCA Civ 325.
   Smith – appeal allowed, remitted for trial, [2008] EWCA Civ 39.
3. High Court (Queen's Bench): Trial and judgment for claimants in Van Colle, [2006] EWHC 360 (QB).