West Law Report

State’s Convention duty to protect witnesses is same as that to all citizens

Posted in House of Lords (case), Times Law Report by mrkooenglish on August 1, 2008

From The TimesAugust 1, 2008

State’s Convention duty to protect witnesses is same as that to all citizens
House of Lords
Published August 1, 2008
Van Colle and Another v Chief Constable of Hertfordshire Constabulary
Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood
Judgment July 30, 2008

The test for considering whether the state had violated its obligation to protect life under article 2 of the European Convention on Human Rights was stringent and remained constant; no lower standard applied where the threat to an individual’s life arose from the state’s decision to call him as a witness.

The House of Lords so held when allowing an appeal by the Chief Constable of the Hertfordshire Constabulary from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Sedley and Lord Justice Lloyd) (The Times May 10, 2007; [2007] 1 WLR 1821) upholding in part Mrs Justice Cox ([2006] 3 All ER 963) who gave judgment for the claimants, Irwin Van Colle, suing on his own behalf and that of the estate of his son, Giles, and Corinne Van Colle, that the police authorities were in breach of their obligation under article 2 of the Convention, as scheduled to the Human Rights Act 1998, to protect the life of their son who was murdered by a person accused of theft offences at whose trial Giles was to have been a prosecution witness.

The accused, prior to his trial, approached witnesses, including Giles, attempting to dissuade them from giving evidence. Some of the incidents were reported to the police officer in charge of the case, including two phone calls to Giles made shortly before his murder. Neither contained explicit death threats. At the time the officer did not perceive a real and immediate risk to Giles’ life.

Mr Edward Faulks, QC and Mr Edward Bishop for the chief constable; Ms Monica Carrs-Frisk, QC, Mr Julian Waters and Mr Iain Steel for Mr and Mrs Van Colle; Mr Nigel Giffin, QC and Ms Joanne Clement for the Secretary of State for the Home Department, intervening; Ms Dinah Rose, QC, Mr Paul Bowen, Mr Richard Hermer, Ms Alison Gerry and Ms Anna Edmundson for Inquest, Justice, Liberty and Mind, intervening; Mr Tim Owen, QC and Ms Jessica Simor for the Equality and Human Rights Commission, intervening.

LORD BINGHAM said that according to what became a conventional analysis, article 2 enjoined each member state not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the lives of those within its jurisdiction: see Osman v United Kingdom(Application No 23452/94) ((1998) 29 EHRR 245, paragraph 115).

The state’s duty, as Osman made clear, included but extended beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter 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 might also, in certain well defined circumstances, imply a positive obligation on national authorities to take preventive measures to protect an individual whose life was at risk from the criminal acts of another.

In Osman, the Strasbourg court defined (at paragraph 116) the circumstances in which the obligation arose: where it was established 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 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 that carefully crafted ruling was important.

The chief constable and the Home Secretary relied on the ruling in In re Officer L (The Times August 1, 2007; [2007] 1 WLR 2135, paragraph 20) that the test of real and immediate risk was one not easily satisfied, the threshold being high.

His Lordship accepted that a court should not lightly find that a public authority had violated one of an individual’s fundamental rights or freedoms, thereby ruling that the United Kingdom had violated an important international Convention. But he saw force in Mr Owen’s submission that the test was clear and called for no judicial exegesis.

It was also clear that the Strasbourg court roundly rejected the Government’s submission in Osman that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid it, had to be tantamount to gross negligence or wilful disregard of the duty to protect life.

Such a rigid standard would be incompatible with member states’ obligation to secure practical and effective protection. Article 2 protected a right fundamental to 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.

It was plain from Osman and later cases that article 2 might be invoked where there had been systemic failure by member states to enact laws or provide procedures reasonably needed to protect the right to life.

But the article might also be invoked where, although there had been no systemic failure of that kind, a real and immediate risk to life was demonstrated and individual agents of the state had reprehensibly failed to exercise the powers available to them for the purpose of protecting life.

In its formulation of the “real and immediate risk” test, the Strasbourg court in Osman laid emphasis on what the authorities knew or ought to have known “at the time”. That was a crucial part of the test, since where, as here, a tragic killing had occurred, it was all too easy to interpret the events preceding it in the light of that knowledge, not as they appeared at the time.

Stupidity, lack of imagination and inertia did not afford an excuse to a national authority which reasonably ought, in the light of what it knew or had been told, to make further inquiries or investigations: it was then to be treated as knowing what such further steps would have elicited.

His Lordship rejected the principle, based on R (A) v Lord Saville of Newdigate (The Times December 21, 2001; [2002] 1 WLR 1249, paragraph 28), stated by the judge and approved by the Court of Appeal, that a lower test was appropriate where a threat to an individual’s life derived from the state’s decision to call him as a witness.

In Osman the Strasbourg court propounded one test: the standard was constant and not variable with the type of act in contemplation: see In re Officer L (paragraph 20).

As the case law showed, the test fell to be applied in situations widely different from the present and remained the same. But the crucial question was one which could be answered only in the light of all the circumstances of the particular case.

The central question here was: should the officer in charge of the case, making a reasonable and informed judgment in the circumstances known to him at the time, have appreciated the real and immediate risk to Giles’ life?

If he should, there was a breach of article 2 since he did not take appropriate steps to avert it.

Having reviewed the facts, his Lordship concluded that the Osman test was not met.

Lord Hope, Lord Phillips, Lord Carswell and Lord Brown delivered concurring opinions.

Solicitors: Weightmans LLP; Lynch Hall Hornby, Harrow; Treasury Solicitor; Bhatt Murphy, Hoxton; Mr John Wadham.


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