Q, R (on the application of) v Q Constabulary & Anor

Under Article 2, a police authority’s positive obligation is to take measures which, judged reasonably, might be expected to avoid a real and immediate risk to life from criminal acts of a third party known, or which ought to be known, to the authority.

A risk assessment involving the prediction of future danger is generally reviewable on ordinary public law grounds. The court does not substitute its own assessment unless the decision is irrational or Wednesbury unreasonable. Whether danger is “real but not immediate” is not necessarily a hard-edged question of fact for the court to determine afresh. Resource and operational decisions concerning police protection are ordinarily for the chief constable.

The claimant had given evidence for the Crown at the trial of two men convicted of murder. One convicted defendant, a gang member, was due for release in 2013. The police had received information that a price had been put on the claimant’s head and had relocated the claimant and his family.

A police risk assessment concluded that the risk was real but not immediate. Following earlier proceedings and a consent order, the claimant renewed an application for judicial review. He sought placement on a protected witness scheme, new identities, police protection or a new address, and a lawful risk assessment. The central issues were whether the assessment was legally flawed and whether the defendant had breached section 6 of the Human Rights Act 1998 or section 82 of the Serious Organised Crime and Police Act 2005.

1. The renewed application was refused. The claimant failed to establish any error of law or irrationality in the conclusion that the risk was real but not immediate.

2. Section 82 of the Serious Organised Crime and Police Act 2005 conferred a discretionary power on a protection provider to make, vary or cancel protective arrangements. The provision required regard to the nature and extent of the risk, the ability of the person and associated persons to adjust to changed circumstances, and the nature and importance of any legal proceedings. It did not entitle the claimant to require a particular protective arrangement.

3. Under section 6 of the Human Rights Act 1998 and Article 2, the defendant owed a positive obligation to take measures which, judged reasonably, might be expected to avoid any real and immediate risk to life from criminal acts of a third party of which it knew or ought to have known. That principle was drawn from Van Colle v CC Herts Police, Smith v CC Sussex Police [2008] 3 WLR 593 (HL), and Osman v United Kingdom (1998) 29 EHRR 245.

4. The court rejected the submission that “immediacy” was a hard-edged question of fact requiring the court to substitute its own view. The assessment looked forward from the time it was made, and the court’s task was to review it retrospectively on public law grounds. The decision was within the range open to the defendant and came nowhere near the irrationality threshold. The approach in R (Al Sweady) v MOD [2009] EWHC 2387 (Admin) did not alter that conclusion.

5. The court also declined to rely on findings concerning another constabulary and earlier circumstances. Operational decisions about the deployment of police resources were best left to the chief constable, and the detailed information required for the claimant’s proposed alternative assessment was neither available nor appropriate for determination in judicial review.

The renewed application was dismissed.

The application was initially refused on the papers by Ouseley J on 17 May 2010. The present court heard the claimant’s renewed application and dismissed it.