The Claimant’s son Giles Van Colle (G) was shot dead near to his place of work by a man named Brougham (B) who was later convicted of his murder. After B’s conviction for murder, the Claimants made a complaint to the Police Complaints Authority and an investigation took place into the circumstances in which the murder had occurred. As a result, disciplinary charges were brought against the officer in the case, DC Ridley (R). The officer was found guilty of failing to perform his duties conscientiously and diligently in connection with intimidation by B of G and another prosecution witness. The Claimants alleged that their son’s murder occurred after witness intimidation which R was, or ought to have been aware of, and yet no action was taken by him to protect G against the risk of serious harm. They alleged that the Defendants, Hertfordshire Police (H), were under a duty to take appropriate measures to protect the risk to G’s life, since G had been exposed to potential risks as a witness and was therefore in a category of persons separate from ordinary members of the public, and as H had failed to take appropriate measures or follow the guidelines in H’s witness protection policy, Article 2 had been engaged and breached. H had also violated Article 8 in that there was a risk both to G’s bodily integrity and to his family life of which R knew or ought to have known. Whilst the Claimants had to prove that the violation had caused them loss, Convention jurisprudence had adopted a flexible approach to causation of loss and therefore the “but for” or “balance of probabilities” tests did not apply.
H resisted the claim, submitting that at the time of the murder no-one could have reasonably predicted the murder and R’s ‘error of judgement’ or ‘operational errors’ could not be said to be so exceptional as to be incompatible with G’s Convention rights. Further, that the Claimants could not prove a causative link between any violation of Convention rights and the damage sustained ie they could not show that even if R had taken protective steps, any action taken by him would probably have prevented G’s death.
B had been arrested and charged by R for stealing property from G, his former employer, and was on unconditional bail whilst awaiting trial. During this period he attempted to interfere with one witness (P) by offering to repay him for the property that he had stolen. He later set on fire P’s business and his wife’s car. He adopted a different strategy for G and arranged for his car to be set on fire and followed this up with a telephone call in which he made a serious threat to him. R took statements from G and the other witness and passed them to the CPS but B was not arrested. R later admitted that he had not considered the threat to G’s safety, and was more concerned with building up the case for the theft charge. Neither did R consider utilising H’s witness protection policy, (which envisaged action to be taken in the case of a witness such as G) since he had no knowledge or training on the policy.
The court examined in detail the judgments in Osman v United Kingdom (2000), Hill v Chief Constable of West Yorkshire (1988) and Brooks v Commissioner of Police for the Metropolis (2005) and distilled the following principles. (i) Article 2 is an unqualified or absolute right and any alleged breach of it by state authorities requires the most “anxious scrutiny” by the courts. (ii) Article 2 should not impose an impossible or disproportionate burden on the state authorities, thereby reflecting the need to strike a fair balance between the rights of individuals and the general interests of the community. (iii) The state’s obligation under Article 2 includes a positive duty to take preventative operational measures to protect an identified individual whose life is at risk as a result of the criminal acts of a third party, where 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 individual and yet failed to take such measures within the scope of their powers which judged reasonably might have been expected to avoid that risk.” (iv) It was not necessary to establish gross negligence on the part of the authority, merely that they did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. (v) The Osman threshold of a “real and immediate” risk in relation to special categories of witness ie vulnerable persons such as G, was too high, and instead the principles of “common sense and humanity” should be applied in determining whether the threshold had been crossed. (vi) Whether the authorities were in breach will therefore depend not only on the nature of the threat and degree of risk, but the extent to which there were appropriate measures reasonably available to alleviate that risk. The greater the failure to take such measures, the greater the likelihood that the authorities will be held to have failed to comply with Article 2.
The court held that G was exposed by the state to potential risks as a witness and entitled to look for a reasonable level of protection from such risks. G was an important witness in B’s trial and as B had threatened and intimidated him he was at a special and distinctive risk of harm. It was a risk of which R knew or ought to have known and there had been appropriate measures reasonably available to him to alleviate or obviate that risk; the Article 2 threshold had been reached. There was also a violation of Article 8, since the culpable failure to protect G’s life and the subsequent loss of his life had led to the complete destruction of his family life. In order for the court to be satisfied that an award of damages was necessary to afford just satisfaction to a victim of the state’s breach of Article 2, the victim did not have to prove causation of damage on the “but for” test. The proper question was whether the protective measures that were reasonably open to R in the circumstances could have had a real prospect of altering the outcome and avoiding G’s death. On the evidence, it was more likely than not that G’s death would have been avoided had those steps been taken. R had accepted in cross-examination that if he had complied with the witness protection policy, there would have been a real prospect that G’s life would have been saved. In order to decide the level of damages the court had to consider the character and conduct of the parties and the extent and seriousness of the breach. Factors taken into account included R’s failure to appreciate the escalating pattern of intimidation or to consider the need to protect G, D’s failure to implement the witness protection protocol. Neither had C received a suitable apology from the H before the hearing, and none at all from R. Also relevant was the minor disciplinary sanction imposed on R (fine of 5 days’ pay) and C’s enormous distress and grief. C was awarded of damages of £15,000 for G’s distress leading up to the murder and £35,000 for C’s own grief and suffering. Judgment for the Claimants.
Comment: Social care and NHS authorities will no doubt see the significance of this case for their own defaults in relation to adult protection. If – knowing that someone is a regular victim of inhuman or degrading treatment, or threats of physical harm, and lacks capacity to be choosing to put up with it or do anything about it – the state does nothing, ie refuses to consider declaratory relief, or guardianship, or fails to refer the person to the Official Solicitor in relation to actions that could potentially be taken on behalf of the client – and death results, there could be liability on the basis of this case, even when operational reasons have constrained the size or nature of the care package that everybody hoped would be adequate to prevent harm. At the very least the coroner or the ombudsman will want to investigate whether there was system failure, or maladministration, and an authority’s documenting of its weighing up of the pros and cons of intervention, via the protective measures that are available, will be critical to its fate.