Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex Police: Judgment given by House of Lords

The House of Lords has given judgment in the related appeals of Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of Sussex Police [2008] UKHL 50.

Both appeals involved allegations that police officers had failed to provide appropriate protection for members of the public who had reported threats.  In both cases the Chief Constables succeeded in overturning unanimous decisions of the Court of Appeal.

In Van Colle, the claimants were the parents of a 25-year-old man (Giles Van Colle) who had been shot dead shortly before he was due to give evidence in a criminal trial.  The defendant in the trial (now serving life imprisonment) was charged with relatively minor theft offences, but had attempted to bribe, intimidate and threaten various prosecution witnesses (including Giles).  Some of these activities, which included two threatening telephone calls to Giles, had been reported to the police.

The claim - the first of its kind in the UK - was brought under sections 6 and 7 of the Human Rights Act 1998 ("HRA"), alleging violations of articles 2 and 8 of the European Convention on Human Rights ("ECHR").

The judge and the Court of Appeal had found for the claimants.  The starting point was the test laid down in Osman v United Kingdom (1998) 29 EHRR 245, namely that for a state to be in violation of article 2 of the ECHR it must be shown 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".  However, relying on earlier Court of Appeal authorities it was held that a lower theshold of risk was appropriate where the state had exposed an individual to a risk to his life (in this case by asking Giles to be a witnesss in a criminal prosecution).  The courts below concluded that on this basis the Chief Constable was liable under the HRA, and awarded damages.

Lord Bingham, citing Lord Carswell's recent opinion in In re Officer L [2007] UKHL 36, [2007] 1 WLR 2135, said that the test laid down in Osman was constant, and that the standard to be applied was not "variable with the type of act in contemplation".  He concluded (as did Lords Carswell, Phillips, Hope and Brown) that the courts below had misdirected themselves, that the facts did not reach the Osman threshold and that the appeal should be allowed.

In Smith, the claimant was attacked and seriously injured by a former partner, who had previoiusly made a succession of violent and lurid threats by internet and text message.  The threats had been reported to police who allegedly failed to take sufficient steps to protect the claimant.

The claimant alleged negligence and did not rely on the HRA.  The claim was struck out by the judge (the defendant relying on the public policy reasons for denying the existence of a duty of care established in Hill v Chief Constable of West Yorkshire [1989] AC 53 and Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495), but re-instated by the Court of Appeal.  The claimant argued that the pleaded facts took the case beyond the Hill and Brooks principles, but that in any event those principles should be revised following the introduction of the HRA.

By a majority of four to one (Lord Bingham dissenting) the House reaffirmed and applied the core principles of Hill and Brooks, allowed the appeal and restored the judge's order. 

Edward Faulks QC and Edward Bishop represented the appellant Chief Constables in both cases, instructed by Weightmans.  Julian Waters was junior counsel for the claimants in Van Colle, instructed by Lynch Hall and Hornby.