CHIEF CONSTABLE OF HERTFORDSHIRE POLICE V VAN COLLE [2008] UKHL 50
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 Van Colle 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, as well as a witness’ business premises. These incidents were 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 member 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.
Smith
The reasons that were given the case of Hill (see above) for saying that an action for damages for negligence should not lie against the police on grounds of public policy did not all stand up to critical examination today. However the more important case was that of Brooks where it was held that a retreat from the core priniciple in Hill would have detrimental effects for law enforcement. Brooks laid down a principle of public policy that was to be applied generally. Lord Hope also referred to two other cases, Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 where it was held that policy factors argued against the recognition of a duty of care on the Crown Prosecution Service, and Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 where it was held that the greater public good outweighed any individual hardship.
In Lord Hope’s opinion the balance of advantage in this difficult area lay in preserving the principle in Hill. There might be exceptional cases where the balance of advantage in this difficult area lay in preserving the Hill principle but the absence of a remedy would be an affront to the principles that underlay the common law.
Such cases did exist, Gibson v Orr 1999 SC 420, Knightley v Johns [1982] 1 WLR 349, Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Lord Hope also considered other cases Alexandrou v Oxford [1993] 4 All ER 328, Kent v Griffiths [2001] QB 36, Ancell v McDermott [1993] 4 All ER 355, Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 and Capital & Counties plc v Hampshire County Council [1997] QB 1004.
Lord Hoffman had said extra judicially that the maintenance of police efficiency is better secured by other methods than having the question of whether the police had acted reasonably in a given case expensively investigated in civil proceedings. In a case brought under sections 6 and 7 of the Human Rights Act 1998, the relevant principle was contained in the case of Osman. However common law should be allowed to stand on its own two feet with the alternative remedy. Lord Hope would not express any opinion on whether Mr Smith could have brought such a claim under the Human Rights Act.
Therefore Lord Hope would uphold the order of the trial judge and strike out the proceedings.
Lord Phillips agreed with Lord Hope and Lord Bingham that in relation to Van Colle, there was no valid basis for concluding that the police ought to have known that there was a real and immediate risk to the life of Giles Van Colle. The fact that he was to be a witness in a criminal prosecution did not place him in a category to which the test in Osman did not apply.
In relation to Mr Smith, Lord Phillips considered the case of Osman where the facts were very different from those in Hill. In relation to the case of Brooks the context was again very different. However the basic principle was that in the absence of special circumstances, the police owed no common law duty of care to protect individuals against harm caused by criminals. The two relevant justifications were that (i) a private law duty of care would distort the manner in which the police deployed, and (ii) resources would be diverted from the performance of their public duties.
The Claimant’s counsel had relied on the case of D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151. Lord Phillips was not persuaded that this case provided a close analogy. The Strasbourg Court had so restricted the circumstances where a positive duty arose under Article 2, that was far from co-extensive with the duty that the police would be under if a common law duty of care were applicable.
Lord Phillips could not accept the liability principle formulated by Lord Bingham. He was reluctant to reject that principle, because the assumed facts of this case came close to constituting the “outrageous negligence” that Lord Steyn had contemplated as being potentially outside the reach of the principle in the case of Brooks. He commented that he was pleased to see that the Law Commission had just published a Consultation Paper No.187 on “Administrative Redress: Public Bodies and the Citizen” that directly addressed the issue raised by this appeal.
Lord Carswell said that in relation to Van Colle’s case, he agreed with the reasons and conclusion of Lord Hope and Lord Bingham. In relation to the case of Smith he was of the view that the appeal should be allowed. The principles laid down in Hill had been affirmed in Brooks and he did not think it necessary to depart from them.
Lord Brown said that he also agreed with Lord Bingham on the case of Van Colle. The test in the case of Osman was a constant, to be applied whatever the particular circumstances of the case. That had been the decision of the House of Lords in In re Officer L [2007] 1 WLR 2135. This case did not satisfy the Osman test.
In relation to the case of Smith, there were cases where a common law duty would be found in relation to the police. Such cases were Swinney (see above), Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550 and Reg v Dytham (see above). A common law duty might arise in a case such as Edwards v United Kingdom (2002) 35 EHRR 487 where the Applicants’ son was killed by his cell mate.
Lord Brown drew a distinction between cases where the police had assumed a particular responsibility towards the eventual victim, and cases where the police were engaged in discharging their more general duty of combating and investigating crime. The facts in this case were very strong but Lord Brown could not agree with Lord Bingham. There were a number of policy considerations, which had informed the House of Lords not only in Hill and Brooks but also D v East Berkshire (see above).
The apparent strength of this case might well have brought it within the Osman principle so as to make a Human Rights Act claim. However Lord Brown did not think that the common law should not be developed to reflect the Strasbourg jurisprudence. It was unnecessary to develop the common law to provide a parallel cause of action. The liability principle proposed by Lord Bingham would go further than the Strasbourg principle, and this would appear undesirable and to give insufficient weight to the public policy considerations already referred to. That was why the Osman test was so narrowly drawn.
As Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, Convention claims had very different objective from civil actions. Civil actions were designed to compensate Claimants for their losses whereas Convention claims were intended to uphold minimum human rights standards and to vindicate those rights. That was why the time limits were shorter.
Therefore Lord Brown would allow the appeal of the Chief Constable.
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 Van Colle 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, as well as a witness’ business premises. These incidents were 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 member 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.
Smith
The reasons that were given the case of Hill (see above) for saying that an action for damages for negligence should not lie against the police on grounds of public policy did not all stand up to critical examination today. However the more important case was that of Brooks where it was held that a retreat from the core priniciple in Hill would have detrimental effects for law enforcement. Brooks laid down a principle of public policy that was to be applied generally. Lord Hope also referred to two other cases, Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 where it was held that policy factors argued against the recognition of a duty of care on the Crown Prosecution Service, and Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 where it was held that the greater public good outweighed any individual hardship.
In Lord Hope’s opinion the balance of advantage in this difficult area lay in preserving the principle in Hill. There might be exceptional cases where the balance of advantage in this difficult area lay in preserving the Hill principle but the absence of a remedy would be an affront to the principles that underlay the common law.
Such cases did exist, Gibson v Orr 1999 SC 420, Knightley v Johns [1982] 1 WLR 349, Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Lord Hope also considered other cases Alexandrou v Oxford [1993] 4 All ER 328, Kent v Griffiths [2001] QB 36, Ancell v McDermott [1993] 4 All ER 355, Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 and Capital & Counties plc v Hampshire County Council [1997] QB 1004.
Lord Hoffman had said extra judicially that the maintenance of police efficiency is better secured by other methods than having the question of whether the police had acted reasonably in a given case expensively investigated in civil proceedings. In a case brought under sections 6 and 7 of the Human Rights Act 1998, the relevant principle was contained in the case of Osman. However common law should be allowed to stand on its own two feet with the alternative remedy. Lord Hope would not express any opinion on whether Mr Smith could have brought such a claim under the Human Rights Act.
Therefore Lord Hope would uphold the order of the trial judge and strike out the proceedings.
Lord Phillips agreed with Lord Hope and Lord Bingham that in relation to Van Colle, there was no valid basis for concluding that the police ought to have known that there was a real and immediate risk to the life of Giles Van Colle. The fact that he was to be a witness in a criminal prosecution did not place him in a category to which the test in Osman did not apply.
In relation to Mr Smith, Lord Phillips considered the case of Osman where the facts were very different from those in Hill. In relation to the case of Brooks the context was again very different. However the basic principle was that in the absence of special circumstances, the police owed no common law duty of care to protect individuals against harm caused by criminals. The two relevant justifications were that (i) a private law duty of care would distort the manner in which the police deployed, and (ii) resources would be diverted from the performance of their public duties.
The Claimant’s counsel had relied on the case of D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151. Lord Phillips was not persuaded that this case provided a close analogy. The Strasbourg Court had so restricted the circumstances where a positive duty arose under Article 2, that was far from co-extensive with the duty that the police would be under if a common law duty of care were applicable.
Lord Phillips could not accept the liability principle formulated by Lord Bingham. He was reluctant to reject that principle, because the assumed facts of this case came close to constituting the “outrageous negligence” that Lord Steyn had contemplated as being potentially outside the reach of the principle in the case of Brooks. He commented that he was pleased to see that the Law Commission had just published a Consultation Paper No.187 on “Administrative Redress: Public Bodies and the Citizen” that directly addressed the issue raised by this appeal.
Lord Carswell said that in relation to Van Colle’s case, he agreed with the reasons and conclusion of Lord Hope and Lord Bingham. In relation to the case of Smith he was of the view that the appeal should be allowed. The principles laid down in Hill had been affirmed in Brooks and he did not think it necessary to depart from them.
Lord Brown said that he also agreed with Lord Bingham on the case of Van Colle. The test in the case of Osman was a constant, to be applied whatever the particular circumstances of the case. That had been the decision of the House of Lords in In re Officer L [2007] 1 WLR 2135. This case did not satisfy the Osman test.
In relation to the case of Smith, there were cases where a common law duty would be found in relation to the police. Such cases were Swinney (see above), Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550 and Reg v Dytham (see above). A common law duty might arise in a case such as Edwards v United Kingdom (2002) 35 EHRR 487 where the Applicants’ son was killed by his cell mate.
Lord Brown drew a distinction between cases where the police had assumed a particular responsibility towards the eventual victim, and cases where the police were engaged in discharging their more general duty of combating and investigating crime. The facts in this case were very strong but Lord Brown could not agree with Lord Bingham. There were a number of policy considerations, which had informed the House of Lords not only in Hill and Brooks but also D v East Berkshire (see above).
The apparent strength of this case might well have brought it within the Osman principle so as to make a Human Rights Act claim. However Lord Brown did not think that the common law should not be developed to reflect the Strasbourg jurisprudence. It was unnecessary to develop the common law to provide a parallel cause of action. The liability principle proposed by Lord Bingham would go further than the Strasbourg principle, and this would appear undesirable and to give insufficient weight to the public policy considerations already referred to. That was why the Osman test was so narrowly drawn.
As Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, Convention claims had very different objective from civil actions. Civil actions were designed to compensate Claimants for their losses whereas Convention claims were intended to uphold minimum human rights standards and to vindicate those rights. That was why the time limits were shorter.
Therefore Lord Brown would allow the appeal of the Chief Constable.