Duty to protect witness

Van Colle and another v Chief Constable of Hertfordshire Constabulary CA TLR 10 May

Article 2 of the European Convention on Human Rights, the right to life, imposes on the police an obligation in some circumstances to take preventative operational measures to protect a person whose life is at risk from the criminal acts of another. That obligation has to be interpreted so as not to impose an impossible or disproportionate burden on the authorities. It is sufficient for a claimant to show 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 a third party’s criminal acts and that they failed to take measures within the scope of their powers, which they might have been expected to take to avoid that risk. The jurisprudence of the European Court of Human Rights focused on particular classes of person who might be at risk. Witnesses might be in need of a special protection, depending on the circumstances of the particular case. It was not necessary in every case to show a real and immediate risk to life. The obligation had to be interpreted so as not to impose an impossible or disproportionate burden on the authorities. Giles Van Colle was murdered by Daniel Brougham just days before he was due to give evidence for the prosecution at Brougham’s trial on charges of theft. In this case, the police should have taken action to protect Giles Van Colle, they should have known that there was a real risk to his life and that the risk was real and would remain immediate until the date of Brougham’s criminal trial. In those circumstances, they should have done all that could reasonably have been expected of them to minimise or avoid the risk. The police did nothing to achieve that end. If the police had acted as they should have done, it was highly likely that Brougham’s bail would have been revoked, that he would have been remanded in custody and that Giles Van Colle would not have been murdered. Causation was established. The obligation on the police was not an onerous one. It was simply to give consideration to a serious threat to Giles Van Colle, to take appropriate action in the light of it and thereafter to keep the situation under review in the light of further information. The police were in breach of their duty to take preventative measures and therefore acted incompatibly with the right to life under article 2.