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Judgments - Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) V Van Colle

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 50

on appeal from: [2007]EWCA Civ 325 and [2008] EWCA Civ 39

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Chief Constable of the Hertfordshire Police (Original Appellant and Cross-respondent) v Van Colle (administrator of the estate of GC (deceased)) and another (Original Respondents and Cross-appellants)

Smith (FC) (Respondent) v Chief Constable of Sussex Police (Appellant)

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Phillips of Worth Matravers

Lord Carswell

Lord Brown of Eaton-under-Heywood

Counsel

Original Appellant in first appeal:

Edward Faulks QC

Edward Bishop

(Instructed by Weightmans LLP)

Appellant in second appeal:

Edward Faulks QC

Edward Bishop

(Instructed by Weightmans LLP)

Original Respondents in first appeal:

Monica Carss-Frisk QC

Julian Waters

Iain Steele

(Instructed by Lynch Hall Hornby )

Respondent in second appeal:

Heather Williams QC

Guy Vassall-Adams

(Instructed by Griffith Smith Farrington Webb)

Interveners (in both cases)

First Intervener (Secretary of State for the Home Department)

Nigel Giffin QC

Joanne Clement

(Instructed by Treasury Solicitors)

Second Interveners (Inquest, Justice, Liberty & Mind)

Dinah Rose QC

Paul Bowen, Richard Hermer

Alison Gerry, Anna Edmundson

(Instructed by Bhatt Murphy)

Third Interveners (Equality & Human Rights Commission)

Tim Owen QC

Jessica Simor

(Instructed by Equality & Human Rights Commission)

Hearing dates:

19, 20, 21 and 22 MAY 2008

ON

WEDNESDAY 30 JULY 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Chief Constable of the Hertfordshire Police (Original Appellant) and Cross-respondent) v Van Colle (administrator of the estate of GC (deceased)) and another (Original Respondents and Cross-appellants)

Smith (FC) (Respondent) v Chief Constable of Sussex Police (Appellant)

[2008] UKHL 50

LORD BINGHAM OF CORNHILL

My Lords,

1.  In these two appeals, heard together, there is a common underlying problem: if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?

2.  The two appeals arise on different facts and in a different way:

  (1)  In the first (Van Colle) case the threat was made by a man known in the case as Daniel Brougham against Giles Van Colle (“Giles”) and culminated in the murder of Giles by Brougham. In the second (Smith) case, the threat was made against the respondent (Stephen Paul Smith) by his former partner (Gareth Jeffrey) and culminated in the infliction of serious injury on Mr Smith by Jeffrey.

  (2)  In the Van Colle case the claimants are Giles’ parents, suing on behalf of his estate and on their own behalf. In the Smith case, Mr Smith is the only claimant, suing on his own behalf.

  (3)  In the Van Colle case, the claim is brought 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 is made under the common law. In the Smith case the claim is made under the common law alone, and no claim is made under the Human Rights Act.

  (4)  In the Van Colle case there has been a full trial in which judgment was given for the claimants and damages awarded, and the Court of Appeal has upheld that judgment subject to a reduction in the damages. In the Smith case there has been no trial: Mr Smith’s proceedings were struck out at first instance on the application of the appellant Chief Constable but were restored and remitted for trial on Mr Smith’s successful appeal to the Court of Appeal. Thus in Van Colle there has been a finding of violation of article 2. In Smith the question of violation or breach does not at this stage arise: the only question is whether the Chief Constable owes a duty; only if it is held that he does or may will the question of breach arise, but that is not a question now before the House in Smith. Thus the House must consider the susceptibility of the police to claims for civil redress both at common law and under the 1998 Act.

Van Colle: the facts

3.  In March 1999 DC Ridley of the Hertfordshire Police arrested Brougham (under another name) on suspicion of theft from an optical firm called “Southern Counties". Brougham was released without charge.

4.  From September to December 1999 Giles employed Brougham as a technician dispenser at his optical practice in Mill Hill. After Brougham had been working for Giles for some weeks they had an argument which culminated in a physical confrontation. On Christmas Eve 1999 Brougham did not report for work, claiming to be unwell, and never returned. His departure was followed by some contentious correspondence.

5.  On 17 February 2000 DC Ridley re-arrested Brougham on suspicion of theft from Southern Counties and searched Brougham’s garage. He found a number of items of optical equipment which he suspected of being stolen. He showed these to Giles who confirmed that some of them were his and that he had not given Brougham permission to take them. He made statements to this effect. On 23 April 2000 Brougham was again arrested and was charged with three offences of theft and obtaining property by deception. He was bailed unconditionally to attend Stevenage Magistrates’ Court. The victims were said to be Southern Counties, Giles and Alpha Optical, a company owned and run by Mr Peter Panayiotou. The total amount involved in the charges was about £4000. The items stolen from Giles were worth about £500.

6.  On 10 August 2000 Brougham telephoned Mr Panayiotou and offered to pay for the equipment he had taken from Alpha. An arrangement was made for Brougham to meet a representative of Alpha the next day to hand over the money but Brougham cancelled it. Mr Panayiotou reported this to DC Ridley who took statements. Somewhat earlier Brougham offered a Mr Heward of Southern Counties £1000 not to give evidence, but Mr Heward did not report this approach and DC Ridley did not learn of it at the time.

7.  On 24 September 2000 Giles’ car was set on fire outside his parents’ home in Wembley. A firefighter who attended told the family that the fire had been started accidentally by an electrical fault and the local police did not regard the fire as suspicious. Mr Van Colle did not report the incident to DC Ridley. In a letter dated 10 November 2000 the Van Colles’ insurers passed on an investigator’s conclusion that the fire was consistent with a malicious vandal attack, but the Van Colles did not pass on this information to DC Ridley.

8.  On 13 October 2000 Brougham telephoned Mr Panayiotou and offered him a bribe not to give evidence. Mr Panayiotou immediately reported this to DC Ridley.

9.  Also on 13 October Brougham telephoned Giles at his practice and said words to the effect: “I know where you live. I know where your businesses are and where your parents live. If you don't drop the charges you will be in danger". Giles was shocked by the call and told a customer he had just received a death threat. He dialled 999 and spoke to DC Campbell at Colindale Police Station who recorded:

“the caller said words very like the following: Drop the charges, we know where you live and where your parents live and where your business is. You'll be in trouble (might have said danger) if you don't … The voice sounded to the victim like a former thieving employee [Brougham] … currently under investigation by Dave Ridley of CID at Hitchin ... “

DC Campbell advised Giles to report the call to DC Ridley, which he did at some point around 16 - 18 October 2000. On 19 October DC Ridley took statements from Giles and Mr Panayiotou.

10.  On about 17 October Brougham visited a Mr Atkinson who was a witness in the Southern Counties case and offered him a bribe of £400 not to give evidence. Mr Atkinson refused, but did not report the approach, of which DC Ridley was unaware at the time.

11.  On 28 October 2000 Mrs Panayiotou’s car was set alight and suffered minor damage. The fire was put out by a neighbour and Mr Panayiotou did not learn of the incident until a day later. An AA inspector concluded the fire might have been caused by a firework.

12.  In the early hours of 29 October 2000 there was a fire at Mr Panayiotou’s business premises. The fire was in an outbuilding used to store old equipment and spare parts. Mr Panayiotou told the police that the key was often left in the door as there was nothing of value inside. Mr Panayiotou was told by fire officers who attended that this fire and that affecting his wife’s car were accidental, and his understanding remained that there was no evidence of arson. But Mr Panayiotou was upset and reported the fires to DC Ridley. He told DC Ridley of the fire officers’ view that the fires were accidental, but asked if DC Ridley thought Brougham could be responsible. DC Ridley said that if he had concerns Mr Panayiotou should contact the Metropolitan Police, which he did. He told the officer investigating the fire at his business premises that there was nothing of value in the building and that “he could think of nobody who would do this or any reason for it to be done". A fire officer (Mr Hodgens) attended the scene. According to contemporaneous records made by the police, Mr Hodgens was unable to confirm that the fire was a deliberate attack but said that it was possibly arson. The fire brigade had had to pull down most of the roof because the structure was unsound, and the evidence was accordingly not preserved. He repeated his opinion that he could not say whether the fire had been started deliberately. The Metropolitan Police officer in charge closed the investigation, noting that there was no evidence the fire had been started maliciously.

13.  Mr Hodgens later made a statement inconsistent with his opinion recorded at the time. Later also, a forensic scientist with the Metropolitan Laboratory Forensic Science Service concluded that Mrs Panayiotou’s car had been deliberately ignited, and that two wheel arches of Giles’ car had been separately ignited. These opinions were not available at the time.

14.  In preparation for the trial, due to begin on or about 27 November at Luton Crown Court, the Crown Prosecution Service, on 9 November 2000, served notices of additional evidence on Brougham. These contained the statements taken from Giles and Mr Panayiotou on 19 October.

15.  Also on 9 November, Brougham telephoned Giles again. On this occasion Giles had no doubt that Brougham was the caller. Brougham said: “Give Alpha Optical a call and get them to drop the charges, you motherfucker ... Do you hear me? Do you hear me?". Giles did not respond and Brougham put the phone down. Giles then rang and left a message on DC Ridley’s answerphone.

16.  On 19 November 2000 Giles wrote an account of this call by Brougham and faxed it to DC Ridley on 20 November. DC Ridley saw it on 21 November and on 22 November spoke to Giles, arranging to meet him the next day, 23 November. At this meeting DC Ridley was intending to take a full statement from Giles and arrest Brougham.

17.  At 7.25 pm on 22 November, as Giles was leaving work, he was shot dead by Brougham, who was later convicted of murder. The evidence at the trial suggested that Brougham had acted in association with others. Before his conviction of murder Brougham had three relatively minor convictions: for common assault (1993), disorderly behaviour (1999) and dishonesty (2000). He had been fined and ordered to undertake community service.

18.  A disciplinary tribunal found DC Ridley guilty of failing to perform his duties conscientiously and diligently in connection with improper approaches to witnesses. It found that “the events ... amounted to an escalating situation of intimidation in respect of the witnesses Panayiotou and Van Colle. DC Ridley was in a unique position during this time with the fullest picture of the developing situation". DC Ridley was fined 5 days’ pay.

19.  Giles’ parents issued these proceedings in November 2003, relying (as has been said) on the 1998 Act and the European Convention alone. A trial took place before Wakerley J in June 2005 and judgment was reserved. The judge, however, died before composing or delivering a judgment. There was little dispute on the evidence, and the parties sensibly agreed to conclude the trial before a new judge on the basis of the existing transcripts. This hearing took place before Cox J, who heard no fresh evidence, in December 2005 and on 10 March 2006 she gave judgment in favour of the claimants: [2006] EWHC 360 (QB), [2006] 3 All ER 963. She found for the claimants on all disputed points of law and ordered the Chief Constable to pay compensation in a total sum of £50,000, made up of £15,000 in respect of Giles’ distress in the weeks leading up to his death and £35,000 for the claimants’ own grief and suffering. The Chief Constable’s appeal to the Court of Appeal (Sir Anthony Clarke MR, Sedley and Lloyd LJJ) was dismissed for reasons given in a judgment of the court delivered by the Master of the Rolls: [2007] EWCA Civ 325, [2007] 1 WLR 1821. But the award to the first claimant as administrator of Giles’ estate was reduced to £10,000, and the award to the claimants to £7,500 each, a total of £25,000.

Smith: the facts

20.  Since the issue in this case has arisen on an application to strike out, the facts pleaded by the claimant (Mr Smith) are to be treated as proved. They are, in summary, as follows.

21.  Mr Smith and Gareth Jeffrey lived together as partners. On 21 December 2000 Jeffrey assaulted Mr Smith at Abingdon, after Mr Smith had asked for a few days’ break from their relationship. The assault was reported to the police, who arrested Jeffrey and detained him overnight. No prosecution followed.

22.  After a time apart, during which Mr Smith moved to Brighton, Jeffrey renewed contact and stayed with Mr Smith on about two occasions in December 2002. Jeffrey wanted to resume their relationship. Mr Smith did not.

23.  From January 2003 onwards Jeffrey sent Mr Smith a stream of violent, abusive and threatening telephone, text and internet messages, including death threats. There were sometimes ten to fifteen text messages in a single day. During February 2003 alone there were some 130 text messages. Some of these messages were very explicit: “U are dead"; “look out for yourself psycho is coming"; “I am looking to kill you and no compromises"; “I was in the Bulldog last night with a carving knife. It’s a shame I missed you".

24.  On 24 February 2003 Mr Smith contacted Brighton police by dialling 999. He reported his earlier relationship with Jeffrey, the previous history of violence and Jeffrey’s recent threats to kill him. Two officers were assigned to the case and they visited Mr Smith that afternoon. He again reported his previous relationship with Jeffrey (including the earlier violence) and the threats. The officers declined to look at the messages (which Mr Smith offered to show them), made no entry in their notebooks, took no statement from Mr Smith and completed no crime form. They told Mr Smith that it would be necessary to trace the calls and that he should attend at Brighton Police Station to fill in the appropriate forms. Later that evening Mr Smith received several more messages from Jeffrey threatening to kill him.

25.  Mr Smith filled in the forms the next day. The information he provided to the police included Jeffrey’s home address and reference to the death threats he had received. Mr Smith then went to London, since Jeffrey had said he was coming to Brighton. He contacted the Brighton Police from London to check on progress, but was told it would take four weeks for the calls to be traced. The messages continued. One read “I'm close to u now and I am gonna track u down and I'm not gonna stop until I've driven this knife into u repeatedly". Mr Smith went to Saville Row Police Station to report his concern. An officer there contacted the Brighton Police and advised Mr Smith that the case was being dealt with from Brighton and he should speak to an inspector there when he returned home. On return to Brighton on 2 March 2003 Mr Smith told an inspector that he thought his life was in danger and asked about the progress of the investigation. He offered to show the inspector the threatening messages he had received, but the inspector declined to look at them and made no note of the meeting. He told Mr Smith the investigation was progressing well, and he should call 999 if he was concerned about his safety in the interim. On 10 March 2003 Mr Smith replied to a communication he had received from the police that day, giving the telephone numbers from which Jeffrey had been sending the text messages. He received a further text message from Jeffrey saying “Revenge will be mine".

26.  Also on 10 March Jeffrey attacked Mr Smith at his home address with a claw hammer. He suffered three fractures of the skull and associated brain damage, and has suffered continuing injury, both physical and psychological. Jeffrey was arrested at his home address (provided by Mr Smith to the police) on 10 March. He was charged and in March 2004 he was convicted of making threats to kill and causing grievous bodily harm with intent. He was sentenced to 10 years’ imprisonment with an extended period on licence.

27.  Mr Smith issued proceedings against the Chief Constable in the Brighton County Court on 2 March 2006. Following service of a defence the Chief Constable applied to strike out the claim as disclosing no reasonable grounds for bringing it or alternatively for summary judgment against Mr Smith on the ground that he had no real prospect of succeeding on the claim. For reasons given in a considered judgment delivered on 31 January 2007, His Honour Judge Simpkiss acceded to the first of these applications and struck out the claim. Mr Smith appealed, and on 5 February 2008 the Court of Appeal (Pill, Sedley and Rimer LJJ) allowed his appeal and remitted the case to the county court for hearing: [2008] EWCA Civ 39.

Van Colle: the law

28.  Article 2 of the European Convention provides, in paragraph 1:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”

According to what has become a conventional analysis, this provision enjoins each member state not only to refrain from the intentional and unlawful taking of life (“Thou shalt not kill”) but also to take appropriate steps to safeguard the lives of those within its jurisdiction: Osman v United Kingdom (1998) 29 EHRR 245, para 115. The state’s duty in this respect (as this para of the judgment of the Strasbourg court in Osman makes clear) includes but extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 may also, “in certain well-defined circumstances", imply a positive obligation on national authorities to take preventative measures to protect an individual whose life is at risk from the criminal acts of another. The scope of this last obligation was the subject of dispute in Osman, and lies at the heart of this appeal.

29.  In Osman, para 116, the court defined the circumstances in which the obligation arises:

“... it must be established to [the court’s] satisfaction 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 or individuals 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.”

Every ingredient of this carefully drafted ruling is, I think, of importance.

30.  The appellant Chief Constable, and the Secretary of State, relied on the ruling of my noble and learned friend Lord Carswell in In re Officer L [2007] UKHL 36, [2007] 1 WLR 2135, para 20, that the test of real and immediate risk is one not easily satisfied, the threshold being high, and I would for my part accept that a court should not lightly find that a public authority has violated one of an individual’s fundamental rights or freedoms, thereby ruling, as such a finding necessarily does, that the United Kingdom has violated an important international convention. But I see force in the submission of Mr Owen QC, for the Equality and Human Rights Commission, that the test formulated by the Strasbourg court in Osman and cited on many occasions since is clear and calls for no judicial exegesis. It is moreover clear that the Strasbourg court in Osman, para 116, roundly rejected the submission of Her Majesty’s Government that the failure to perceive the risk to life in the circumstances known at the time or to take preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard would be incompatible with the obligation of member states to secure the practical and effective protection of the right laid down in article 2. That article protected a right fundamental in the scheme of the Convention and it was sufficient for an applicant to show that the authorities 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.

31.  It is plain from Osman and later cases that article 2 may be invoked where there has been a systemic failure by member states to enact laws or provide procedures reasonably needed to protect the right to life. But the article may also be invoked where, although there has been no systemic failure of that kind, a real and immediate risk to life is demonstrated and individual agents of the state have reprehensibly failed to exercise the powers available to them for the purpose of protecting life. Kontrová v Slovakia (Appn no 7510/04, 24 September 2007, unreported) is such a case. It was acknowledged that the domestic authorities had failed to take appropriate positive action to protect the lives of the applicant’s children (para 47) and the court agreed with the government that there had been a violation of article 2 (para 55).

32.  In its formulation of the “real and immediate risk” test the Strasbourg court, in para 116 of its Osman judgment, laid emphasis on what the authorities knew or ought to have known “at the time". This is a crucial part of the test, since where (as here) a tragic killing has occurred it is all too easy to interpret the events which preceded it in the light of that knowledge and not as they appeared at the time. In the present case the Court of Appeal expressly warned itself against the dangers of hindsight (in para 13 of their judgment) but I do not think that the judge, in the course of her lengthy judgment, did so. Mr Faulks QC, for the Chief Constable, was in my view right to submit that the court should endeavour to place itself in the chair of DC Ridley and assess events as they unfolded through his eyes. But the application of the test depends not only on what the authorities knew, but also on what they ought to have known. Thus stupidity, lack of imagination and inertia do not afford an excuse to a national authority which reasonably ought, in the light of what it knew or was told, to make further enquiries or investigations: it is then to be treated as knowing what such further enquiries or investigations would have elicited.

 
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