| HUMAN RIGHTS — Right to life — Witness protection — Witness in imminent criminal prosecution seeking protection following threats from accused — Police taking no steps to protect witness — Witness murdered by accused before trial — Whether positive obligation on police to protect witness — Whether police in breach of obligation — Quantum of damages — Human Rights Act 1998, Sch 1, Pt I, art 2
Van Colle and another v Chief Constable of the Hertfordshire Police [2007] EWCA Civ 325
CA: Sir Anthony Clarke MR, Sedley and Lloyd LJJ: 24 April 2007
The police were under a positive obligation under art 2 of the Human Rights Convention to consider a serious threat to a prosecution witness in a criminal trial, to take appropriate action in the light of it and to keep the situation under review where the life of a witness was at risk from the criminal actions of another individual. By failing to take action where they should have known that there was a real risk to the life of a witness, the police were in breach of their duty under art 2 which sounded in damages.
The Court of Appeal so held, (1) dismissing the appeal of the defendant, the Chief Constable of Hertfordshire Police, against the decision of Cox J on 10 March 2006 that the defendant had acted unlawfully contrary to arts 2 and 8 of the Convention by failing to discharge the positive obligation of the police to protect the life of Giles Van Colle who was murdered on 22 November 2000, and (2) allowing in part the defendant’s appeal, reducing the award of damages from £50,000 to £25,000 to the claimants, the deceased’s parents Irwin Van Colle as administrator of his son’s estate, and Corinne Van Colle.
SIR ANTHONY CLARKE MR, giving the judgment of the court, said that the deceased was shot dead just days before he was due to give evidence for the prosecution at the trial of Daniel Brougham, who was convicted of his murder. It was the scope of the positive obligation on a state under art 2 of the Human Rights Convention to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual which was at the centre of the present case. That obligation had to be interpreted so as not to impose an impossible or disproportionate burden on the authorities. It was sufficient for a claimant to show that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Witnesses were a class of person who might be in need of special protection, depending on the circumstances of the particular case. On the facts the police should have taken action to protect the deceased, they should have known that there was a real risk to his life and that the risk was and would remain immediate until the date of the accused’s criminal trial. In those circumstances they should have done all that could reasonably have been expected of them to minimise or avoid the risk. The police did nothing to that end. The police were under a duty to take preventive measures in relation to the deceased, they were in breach of that duty and therefore acted incompatibly with his right to life under art 2. The obligation on the police was not an onerous one. It was simply to give consideration to a serious threat to the deceased, to take appropriate action in the light of it and thereafter to keep the situation under review in the light of further information. That obligation should help to engender the exercise of care and skill to be expected of the police to protect vulnerable witnesses in appropriate cases. Causation was established.In assessing the quantum of an award the court was to derive assistance from cases in Strasbourg rather than from English decisions in analogous areas. There was no clear basis in the Strasbourg decisions for an award to the claimants in their personal capacity, as opposed to an award to the first claimant as personal representative of his son, which was clearly justified. By comparison with other cases the award was too high. A lower award was substituted.
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