CHIEF CONSTABLE OF HERTFORDSHIRE POLICE V VAN COLLE [2007] EWCA Civ 325 AND [2008] EWCA Civ 39
FACTS:-
These were two linked cases. In Van Colle, a threat was made by a man known in the case as Daniel Brougham against Giles Van Colle and culminated in the murder of Mr Giles by Mr Brougham. Brougham had been arrested in relation to theft of optical equipment, and he made a number of attempts to either threaten or bribe witnesses not to give evidence against him. These attempts included making direct threats against Mr Colle as well as setting light to his and other witnesses’ cars, and a witness’ business premises and they were reported to the police. In the end Mr Van Colle was shot dead by Mr Brougham. A disciplinary tribunal found one policeman guilty of failing to perform his duties, in relation to improper approach to witnesses.
The parents of Mr Van Colle brought a claim under sections 6 and 7 of the Human Rights Act 1998, in reliance on Articles 2 and 8 of the European Convention on Human Rights, and no claim was made under the common law. They received at first instance the sum of £15,000 in respect of Mr Van Colle’s distress in the weeks leading up to his death and £35,000 for their own grief and suffering. This was later reduced by the Court of Appeal to £10,000 in relation to Mr Van Colle’s estate and £7500 to the parents.
In the second (Smith) case, the threat was made against Stephen Smith by his former partner, Gareth Jeffrey and culminated in the infliction of serious injury on Mr Smith. Again there was a history of serious threats made prior to the incident, and reports made to the police, which were not taken seriously. Mr Jeffrey was later convicted of making threats to kill and causing grievous bodily harm.
In the Smith case, the claim was made under the common law alone. The proceedings were struck out at first instance, but were then restored and remitted for trial by the Court of Appeal. The case now came to the House of Lords. In effect the Lords had to consider the susceptibility of the police to claims for civil redress both at common law and under the 1998 Act.
HELD:-
Mr Van Colle
Lord Bingham considered Article 2 of the European Convention, which provided at paragraph 1:-
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally….”
It was plain from the case of Osman v United Kingdom (1998) 29 EHRR 245 that Article 2 might be invoked where there had been a systemic failure by members states to enact laws or provide procedures reasonably needed to protect the right to life. The Article might also be invoked, where, although there had been no systemic failure of that kind, a real and immediate risk to life was demonstrated and individual agents of the state had reprehensibly failed to exercise the powers available to them for the purpose of protecting life.
The central question in this case was whether the policeman, making a reasonable and informed judgment on the facts and in the circumstances known to him at the time, should have appreciated that there was a real and immediate risk to the life of Mr Van Colle.
Lord Bingham considered all of the facts, and the various warnings and incidents leading up to the death of Mr Van Colle. In his view there was no reprehensible failure on the part of the police to exercise their powers.
Mr Smith
Lord Bingham said that the most favoured test of liability was Caparo Industries plc v Dickman [1990] 2 AC 605. It had to be shown that harm to a person, was of a reasonably foreseeable consequence of what another person failed to do, that the relationship between the two persons was one of sufficient proximity and that in all the circumstances, it was fair, just and reasonable to impose a duty of care on one person towards the other. Lord Bingham said that in his view, there was a duty of care.
Lord Bingham referred to two other cases, Hill v Chief Constable of West Yorkshire [1989] AC 53 and Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24. In Hill the complaint was that West Yorkshire Police had failed to investigate the spate of killing perpetrated by the Yorkshire Ripper, and as a result the Claimant’s daughter had been murdered. However there was no specific threat to the life of physical safety of the Claimant’s daughter and the facts of the case fell well outside the liability principle. In Brooks the Claimant was the friend of Stephen Lawrence, and his complaint was that whilst the attackers of Stephen remained at large, he was frightened for his safety because he lived in the same locality. The facts of that case also fell well outside the liability principle.
There were cases where liability had been imposed on the police, such as Knightley v Johns [1982] 1 WLR 349, Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 and Reg v Dytham [1979] QB 722. In Lord Bingham’s view, there was no general rule of immunity subject to very limited exceptions, and he quoted from two older cases, Glamorgan Coal Company Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206 and Glasbrook Brothers Limited v Glamorgan County Council [1925] AC 270.
Lord Bingham also referred to the case of Osman. He said that he found the decision of the Court of Appeal, to the effect that the decision in Hill precluded any duty of care, unsatisfactory. He also considered another case, OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897. Four children were drowned during a canoeing trip. Proceedings were brought against the organisers of the trip, who sought redress against the Secretary of State as the Minister responsible for HM Coastguard. Again the claim was struck out on the basis that no duty of care was owed. Again Lord Bingham said that he would criticise this judgment also.
Lord Bingham said that the existence of a Convention right should not call for instant manufacture of a corresponding common law right. However there was a strong case for developing the common law action for negligence in the light of Convention rights.
He was satisfied that the liability principle was satisfied and that the Brighton Police owed Mr Smith a duty of care.
Lord Hope said that normally the law did not attach responsibility to any individual for harm caused to another by the tortuous acts of a third party. For reasons of public policy, the law set a threshold which had to be surmounted before civil liability would attached to the police for the harmful acts of third parties.
Van Colle
Lord Hope considered the case of Osman and another case, In re Officer L [2007] 1 WLR 2135 where Lord Carswell had said that the real and immediate test was not one that was immediately satisfied. The court in Strasbourg had already provided a clear and objective test. Lord Hope agreed with Lord Bingham that the test was not satisfied in this case.
However it had been held in R (A and others) v Lord Saville of Newdigate and others [2002[ 1 WLR 1249 that it was not appropriate to apply the Osman test in the case of soldiers and former soldiers who were to be called by the authorities to give evidence in circumstances where their lives would be at risk. The judge in that case had said that the Osman test would not be appropriate in such a case. This was supported by the Court of Appeal in [2007] 1 WLR 1821.
Lord Hope would confine the decision in this case to its own facts. There might be situations where the Osman test would be met, such as where an apprehended person was placed in the same cell as a person known to have a tendency to violence. This case fell well short, and the appeal would be allowed.
FACTS:-
These were two linked cases. In Van Colle, a threat was made by a man known in the case as Daniel Brougham against Giles Van Colle and culminated in the murder of Mr Giles by Mr Brougham. Brougham had been arrested in relation to theft of optical equipment, and he made a number of attempts to either threaten or bribe witnesses not to give evidence against him. These attempts included making direct threats against Mr Colle as well as setting light to his and other witnesses’ cars, and a witness’ business premises and they were reported to the police. In the end Mr Van Colle was shot dead by Mr Brougham. A disciplinary tribunal found one policeman guilty of failing to perform his duties, in relation to improper approach to witnesses.
The parents of Mr Van Colle brought a claim under sections 6 and 7 of the Human Rights Act 1998, in reliance on Articles 2 and 8 of the European Convention on Human Rights, and no claim was made under the common law. They received at first instance the sum of £15,000 in respect of Mr Van Colle’s distress in the weeks leading up to his death and £35,000 for their own grief and suffering. This was later reduced by the Court of Appeal to £10,000 in relation to Mr Van Colle’s estate and £7500 to the parents.
In the second (Smith) case, the threat was made against Stephen Smith by his former partner, Gareth Jeffrey and culminated in the infliction of serious injury on Mr Smith. Again there was a history of serious threats made prior to the incident, and reports made to the police, which were not taken seriously. Mr Jeffrey was later convicted of making threats to kill and causing grievous bodily harm.
In the Smith case, the claim was made under the common law alone. The proceedings were struck out at first instance, but were then restored and remitted for trial by the Court of Appeal. The case now came to the House of Lords. In effect the Lords had to consider the susceptibility of the police to claims for civil redress both at common law and under the 1998 Act.
HELD:-
Mr Van Colle
Lord Bingham considered Article 2 of the European Convention, which provided at paragraph 1:-
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally….”
It was plain from the case of Osman v United Kingdom (1998) 29 EHRR 245 that Article 2 might be invoked where there had been a systemic failure by members states to enact laws or provide procedures reasonably needed to protect the right to life. The Article might also be invoked, where, although there had been no systemic failure of that kind, a real and immediate risk to life was demonstrated and individual agents of the state had reprehensibly failed to exercise the powers available to them for the purpose of protecting life.
The central question in this case was whether the policeman, making a reasonable and informed judgment on the facts and in the circumstances known to him at the time, should have appreciated that there was a real and immediate risk to the life of Mr Van Colle.
Lord Bingham considered all of the facts, and the various warnings and incidents leading up to the death of Mr Van Colle. In his view there was no reprehensible failure on the part of the police to exercise their powers.
Mr Smith
Lord Bingham said that the most favoured test of liability was Caparo Industries plc v Dickman [1990] 2 AC 605. It had to be shown that harm to a person, was of a reasonably foreseeable consequence of what another person failed to do, that the relationship between the two persons was one of sufficient proximity and that in all the circumstances, it was fair, just and reasonable to impose a duty of care on one person towards the other. Lord Bingham said that in his view, there was a duty of care.
Lord Bingham referred to two other cases, Hill v Chief Constable of West Yorkshire [1989] AC 53 and Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24. In Hill the complaint was that West Yorkshire Police had failed to investigate the spate of killing perpetrated by the Yorkshire Ripper, and as a result the Claimant’s daughter had been murdered. However there was no specific threat to the life of physical safety of the Claimant’s daughter and the facts of the case fell well outside the liability principle. In Brooks the Claimant was the friend of Stephen Lawrence, and his complaint was that whilst the attackers of Stephen remained at large, he was frightened for his safety because he lived in the same locality. The facts of that case also fell well outside the liability principle.
There were cases where liability had been imposed on the police, such as Knightley v Johns [1982] 1 WLR 349, Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 and Reg v Dytham [1979] QB 722. In Lord Bingham’s view, there was no general rule of immunity subject to very limited exceptions, and he quoted from two older cases, Glamorgan Coal Company Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206 and Glasbrook Brothers Limited v Glamorgan County Council [1925] AC 270.
Lord Bingham also referred to the case of Osman. He said that he found the decision of the Court of Appeal, to the effect that the decision in Hill precluded any duty of care, unsatisfactory. He also considered another case, OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897. Four children were drowned during a canoeing trip. Proceedings were brought against the organisers of the trip, who sought redress against the Secretary of State as the Minister responsible for HM Coastguard. Again the claim was struck out on the basis that no duty of care was owed. Again Lord Bingham said that he would criticise this judgment also.
Lord Bingham said that the existence of a Convention right should not call for instant manufacture of a corresponding common law right. However there was a strong case for developing the common law action for negligence in the light of Convention rights.
He was satisfied that the liability principle was satisfied and that the Brighton Police owed Mr Smith a duty of care.
Lord Hope said that normally the law did not attach responsibility to any individual for harm caused to another by the tortuous acts of a third party. For reasons of public policy, the law set a threshold which had to be surmounted before civil liability would attached to the police for the harmful acts of third parties.
Van Colle
Lord Hope considered the case of Osman and another case, In re Officer L [2007] 1 WLR 2135 where Lord Carswell had said that the real and immediate test was not one that was immediately satisfied. The court in Strasbourg had already provided a clear and objective test. Lord Hope agreed with Lord Bingham that the test was not satisfied in this case.
However it had been held in R (A and others) v Lord Saville of Newdigate and others [2002[ 1 WLR 1249 that it was not appropriate to apply the Osman test in the case of soldiers and former soldiers who were to be called by the authorities to give evidence in circumstances where their lives would be at risk. The judge in that case had said that the Osman test would not be appropriate in such a case. This was supported by the Court of Appeal in [2007] 1 WLR 1821.
Lord Hope would confine the decision in this case to its own facts. There might be situations where the Osman test would be met, such as where an apprehended person was placed in the same cell as a person known to have a tendency to violence. This case fell well short, and the appeal would be allowed.