Anti-social Behaviour, Crime and Policing Bill

Written evidence from Irwin Van Colle (ASB 21)

 

Background for this submission

 

1 On 22 November 2000 my son Giles was murdered, to stop him being a witness in a trial of a former employee, who had stolen some of his stock.

2 Since that time my wife and I has been through every court in the UK and in the Court of Human Rights in Strasburg.

3 Our son’s murderer is in jail and will remain there for several more years.

4 As a result of information learnt at the trial we complained to the then Police Complaints Authority about the Hertfordshire policeman in the case.

5 This led to a disciplinary hearing at which the policeman was disciplined with the punishment of loss of five day’s pay, which we learnt much later.

6 Because of the failure to advise us of the punishment and the failure to provide us with an apology, we instituted proceedings under the Human Rights Act – Van Colle v The Chief Constable of Hertfordshire Police.

7 In the High Court we were successful.

8 The police appeal to the Court of Appeal was unsuccessful but the damages award was reduced.

9 The second police appeal to the House of Lords led to the judgement being reversed in favour of Hertfordshire Police.

10 Because of the reasoning in the House of Lords judgement, we took our case to Europe where, under the margin of appreciation rule, we were unsuccessful.

11 Our subsequent appeal to The Grand Chamber was also unsuccessful.

The legal principles at stake in our case

12 Our case is one of the two most significant Article 2 cases that have been considered by the UK Courts in relation to policing in the UK. The other case was the Osman case.

13 Our case included

A) whether the police were subject to Human Rights law;

B) whether witnesses should have special consideration under Human Rights law, which they did in the period between the High Court judgement and the House of Lords judgement;

C) whether Witness Protection Protocols had legal significance; and

D) whether the Osman judgement had been infringed sufficiently to find that Article 2 of the Convention had been breached. Four judges had found unanimously for us but five in the House of Lords rejected their colleagues’ judgements.

14 The Courts have long protected the police, as a matter of public policy, from claims under common and statute law. Our case was precedent setting. It was the first case to be found against the police under Human Rights law.

15 The judgement in the House of Lords was that because the policeman had "not perceived the risk", (despite being found guilty of failing to do his job properly at his disciplinary) the "knew and ought to have known" part of the Osman judgement did not apply. This judgement created the best excuse anyone working in the public sector will ever need to avoid legal challenge in any case which involves a death of, or injury to, anyone with whom they are dealing. The judgement returned witnesses to the previous status quo – they were not a special category in law. That the Witness Protection Protocol had been breached, but did not affect the outcome of the case, meant the Protocol was without legal significance.

16 The threats that were made to our son were communicated to the experienced policeman, who took no action even though his ordinary job function could have been used to provide some protection. Police powers ordinarily include the power to inform an arrested person that his behaviour had been reported to the police, which can cause that person to desist from threatening a witness. Police powers also include arresting a person, subject to unconditional bail conditions, and taking them before a magistrate to vary the conditions as a result of reported witness intimidation. The policeman could not be disciplined for failure to enact the Hertfordshire Witness Protection Protocol because he had not received training about it and had never seen it.

17 The House of Lords heard our case together with a common law case in which the litigant was challenging the police for failing to protect him from a vicious attack by a former friend and established legal principles were applied. The judgement in that case was for the police. When we learnt that both cases were to be heard together, we knew that it would be surprising to expect the Court to find for us in our Human Rights case.

18 There have now been two Human Rights cases decided by the House of Lords/Supreme Court in favour of litigants bringing actions against the NHS involving fatalities – the Savage case and the Rabone case. The NHS is routinely subject to claims for negligence. There is now huge hypocrisy in the law as it affects the NHS and the police, both equally important organs of the state. The police appear to be above both common and Human Rights law, when it is clearly obvious that they have failed to do their job properly. That is both wrong and unacceptable.

19 It remains a fact that the police have no duty to protect in law, other than the Osman judgement. The UK Courts in our case have now rendered that meaningless in relation to the police. The public does not understand that the duty to protect is not backed up by statute law in any Act of Parliament.

Conclusion

20 This submission is written without any firm recommendations as to what Parliament may wish to do about this, as I have not had time to collect advice as to how exactly the bill before the committee may be amended to reverse the judgement in our case. That the judgement does need to be reversed by parliament is absolutely necessary. Clearly parliamentary draughtman skill is required to effect that objective.

21 Witness Protection Protocols need to be given legal significance so that the failure to engage one automatically gives rise to fault if death or injury results to a witness.

22 The state provides its citizens with a range of personal services under different laws and the provision of policing should be no more or less significant in law than, say, the provision of social services or the NHS. All are absolutely necessary for the proper functioning of society. That one branch of the state is completely protected from legal challenge if at fault does not seem to be sensible in the twenty first century. As seen in the NHS recently, all parts of the state are subject to fault or error. This must be expected from time to time because services are provided by people, and people are fallible.

23 Human Rights law provides a cheap method of redress because damages are tiny and it is case specific. The apology in the form of a declaration costs nothing other than drafting time. If greater use was made of this type of legal resolution, significant savings can be made to the state budget for legal costs.

24 The bill before you provides an opportunity to introduce into law some strengthening of the law in relation to policing for the benefit of those who they serve.

25 Any change in the law will have no effect on our case, which is lost. We seek no sympathy, despite losing our son and bearing significant legal costs in our action. Our legal legacy, through no fault of our own appears to be appalling law. This submission is for those that come after us, who may be similarly affected, and is our attempt to right the legal wrong that now exists.

26 I am willing to attend your committee to speak on this further if you wish to ask me.

27 Thank you for considering my submission.

June 2013