Court of Appeal

Published May 10, 2007

Van Colle and Another v Chief Constable of Hertfordshire Constabulary

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Sedley and Lord Justice Lloyd

Judgment April 24, 2007

Police who failed to take appropriate action to protect a vulnerable prosecution witness, when they should have known there was a risk to his life, were in breach of their duty for which they were liable in damages.

The Court of Appeal so held when: (i) dismissing the appeal of the defendant, the Chief Constable of Hertfordshire Constabulary, against the decision of Mrs Justice Cox ([2006] 3 All ER 963) that he had acted unlawfully in violation of articles 2, right to life. and 8, right to family life, of the European Convention on Human Rights by failing to discharge the positive obligation of the police to protect the life of Giles Van Colle who was murdered, and (ii) allowing in part the chief constable’s appeal, reducing the award of damages from £50,000 to £25,000 to the deceased’s parents, Irwin Van Colle, as administrator of his son’s estate, and Corinne Van Colle.

Mr Edward Faulks, QC and Mr Edward Bishop for the chief constable; Miss Monica Carss-Frisk, QC and Mr Julian Waters for Mr and Mrs Van Colle.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that on November 22, 2000 Giles Van Colle was shot dead. He was aged 25. On March 4, 2002, Daniel Brougham was convicted of his murder and sentenced to life imprisonment. Giles Van Colle was murdered just days before he was due to give evidence for the prosecution at Brougham’s trial on charges of theft.

The central issue was the nature and extent of the positive obligation imposed by article 2 in some circumstances to take preventive, operation-al measures to protect a person whose life was at risk from the criminal acts of another. That obligation had to be interpreted so as not to impose an impossible or disproportionate burden on the authorities.

It was 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, judged reasonably, might have been expected 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 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.

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 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.

The police were under a duty to take preventive measures in relation to Giles Van Colle. They were in breach of that duty and therefore acted incompatibly with his right to life under article 2.

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.

That obligation should help to engender the exercise of care and skill to be expected of the police in appropriate cases to protect vulnerable witnesses.

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.

There was no clear basis in the Human Rights Court decisions for an award to the claimants in their personal capacity, as opposed to an award to Mr Irwin Van Colle as personal representative of his son, which was clearly justified.

The appropriate awards were £10,000 to Mr Van Colle as personal representative and £7,500 each to Mr and Mrs Van Colle personally.

Solicitors: Weightmans, Holborn; Lynch Hall & Hornby, Harrow.

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