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

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33.  In summarising the legal principles applicable to this case the trial judge included (at para 56(5) of her judgment) the following:

“Where it is the conduct of the state authorities which has itself exposed an individual to the risk to his life, including for example where the individual is in a special category of vulnerable persons, or of persons required by the state to perform certain duties on its behalf which may expose them to risk, and who is therefore entitled to expect a reasonable level of protection as a result, the Osman v UK threshold of a real and immediate risk in such circumstances is too high.”

This led the judge to regard Giles (para 91) as being, by virtue of his status as a witness, in a special category of persons separate and apart from members of the public generally or from a broad section of the general public. As a prosecution witness who was threatened and intimidated by a defendant he was someone at special and distinctive risk of harm. She paid much attention to the Chief Constable’s protocol on witness intimidation, which had not been brought to DC Ridley’s attention. The Court of Appeal quoted and approved the judge’s statement of principle (paras 75-76) and also attached importance (para 76) to the fact that Giles was not simply a member of the community, like Mr Osman, but was to be a witness for the prosecution at a criminal trial.

34.  The principle that a test lower than the ordinary Osman test is appropriate where a threat to the life of an individual derives from the state’s decision to call that individual as a witness was based on a passage in the judgment of the Court of Appeal in R(A and others) v Lord Saville of Newdigate and others [2001] EWCA Civ 2048, [2002] 1 WLR 1249. The issue in that case was whether soldiers or former soldiers should be called to give evidence to the “Bloody Sunday” Inquiry in Londonderry, where their lives were at risk from terrorist violence, or in some other place where the risk was smaller. In upholding the Divisional Court’s decision that the witnesses should not be required to testify in Londonderry, the Court of Appeal referred to the Osman test of “real and immediate” risk and said (in para 28 of its judgment):

“Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.”

While I have no doubt that the Court of Appeal’s decision in that case was correct, I would respectfully question whether that observation was correct.

35.  In Osman the Strasbourg court propounded one test, and as Lord Carswell said (with the concurrence of all members of the House) in In re Officer L, above, para 20, “the standard is constant and not variable with the type of act in contemplation ...". As the case law shows, the Osman test falls to be applied in situations widely different from the present, as illustrated by cases such as Edwards v United Kingdom (2002) 35 EHRR 487 and Öneryildiz v Turkey (2002) 39 EHRR 253, (2004) 41 EHRR 325. Thus the Osman test remains the same, but the crucial question is one which can only be answered in the light of all the circumstances of any particular case (Osman, para 116).

36.  The central question to be asked in this case is, I think, this: should DC Ridley, making a reasonable and informed judgment on the facts and in the circumstances known to him at the time, have appreciated that there was a real and immediate risk to the life of Giles? If he should, there was a breach of article 2 since the officer did not take appropriate steps to avert the risk. Since the courts below misdirected themselves in law by attaching undue significance to Giles’ status as a witness, and treating the Osman test as lowered on that account, it is incumbent on the House to answer the central question, and to do that it is necessary to review the facts:

  (1)  The offence of theft from an employer, Giles, with which Brougham was charged was, in the catalogue of acquisitive crime, minor. The other two offences, although involving goods of greater value, were also minor. An experienced detective constable would not see this as a big case, or as in any way unusual. He would see custody as a possible, but improbable, penalty if Brougham were convicted.

  (2)  Brougham’s record was that of a petty offender, the only hint of violence in his record a seven year-old conviction of common assault. He could not have appeared to be a man given to violence. There was nothing before Giles’ death to suggest that Brougham was a member of any gang or had criminal associates.

  (3)  Brougham’s first approach to a witness, to Mr Heward of Southern Counties, was not reported to DC Ridley. It is thus, as the Court of Appeal held (para 19), “irrelevant for present purposes".

  (4)  Brougham’s approach to Mr Panayiotou on 10 August, offering to pay for the equipment he had taken and arranging to do so, was reported to DC Ridley. But this approach, if irregular, was not sinister, and not suggestive of violence to Mr Panayiotou, let alone Giles.

  (5)  The fire which damaged Giles’ car on 24 September was not reported to DC Ridley. It was thus entirely irrelevant to his state of mind at the time.

  (6)  The bribe offered by Brougham to Mr Panayiotou on 13 October 2000 was serious criminal conduct, suggesting that Brougham was willing to go to some lengths to avoid conviction. But it did not suggest, and might well have appeared inconsistent with, a resort to violence. It could not have been interpreted as any threat to the life or security of Giles.

  (7)  Brougham’s telephone call to Giles on 13 October 2000 was on any showing an attempt to intimidate Giles into dropping the charges. Brougham was thought to be, although not positively identified as, the caller, and although there was no explicit death threat it is not surprising that Giles took it as such. However, having telephoned the local police station at once and been advised to call DC Ridley, Giles took some days to do so. DC Ridley then took a statement. In the context of this case, the prospect of the threat being implemented could reasonably be seen as remote.

  (8)  Brougham’s offer of a bribe to Mr Atkinson, a witness in the Southern Counties case, on about 17 October was not reported to DC Ridley, and was thus irrelevant to his state of mind at the time.

  (9)  The fire which damaged Mrs Panayiotou’s car on 28 October was thought by Mr Panayiotou at the time to have been possibly accidental and by an AA inspector to have been possibly caused by a firework. If the fire were thought to have been malicious, and were attributed to Brougham, it would again have suggested that Brougham was willing to go to some lengths to avoid conviction, but could scarcely have suggested a threat to the life or security of Giles.

  (10)  The fire at Mr Panayiotou’s business premises on 29 October was investigated by fire officers and the Metropolitan Police, none of whom concluded at the time that the fire had been started deliberately. Even if the fire had been thought to have been malicious, and to have been started by Brougham, the burning of an unlocked outbuilding used to store old equipment and spare parts could scarcely have been seen as a threat to the life of anyone, and certainly not Giles.

  (11)  The telephone call made by Brougham to Giles on 9 November 2000 was unpleasant in content and aggressive in tone, but it contained no threat. This was the last contact between Brougham and Giles before their fatal encounter.

37.  After Giles’ death a full-blown murder investigation was launched, in the course of which different views were expressed on the cause and significance of the Panayiotou fires. This is information which, it is said, DC Ridley ought to have known since if he had pursued his inquiries into the fires at the time he could have unearthed this material then. He was himself prepared to accept that he should have done so. Any conscientious officer, mindful of the tragedy which ensued, would no doubt have reproached himself for failing to take all the steps which the wisdom of hindsight might suggest. But it is unrealistic to suppose that, at the time, a minor case of theft could have been thought to merit an intensive investigation of the kind which properly follows a murder.

38.  In argument, Ms Carss-Frisk QC, for the Van Colles, laid considerable emphasis on the findings made by the disciplinary panel adverse to DC Ridley. The charge which he faced was that he failed to perform his duties conscientiously and diligently in connection with improper contacts with witnesses by Brougham. It was charged against him that he should have investigated offences of intimidation more fully, analysed the evidence more carefully, taken account of the guidelines on witness intimidation and considered whether to arrest Brougham. The panel found that there was sufficient evidence to justify the arrest of Brougham for attempting to pervert the course of justice and that he should have been arrested. Notably absent is any suggestion that DC Ridley should have apprehended any imminent threat to the life or safety of Giles. That the panel did not regard his delinquency in such a way is evidenced by their reference to his errors of judgment and by their imposition of a very modest penalty.

39.  Both the judge (para 20) and the Court of Appeal (para 28) quoted answers given by DC Ridley in cross-examination before Wakerley J at the trial when he said that the question of the protection of Giles never really came into his mind. The reason for this is plain: that he did not at the time perceive a real and immediate risk to Giles’ life. He was proposing to arrest Brougham on 23 November, but this was because there was evidence to support charges of witness intimidation; it was not to protect Giles against apprehended violence. The question is whether, making a reasonable and informed judgment on the facts and circumstances which were or should have been known to him at the time, he should have apprehended such violence. The fact that Giles was a witness in a forthcoming Crown Court trial was of course a relevant fact, but not one of great weight having regard to the minor character of the charges and the unlikelihood of a severe penalty. Approaching the matter in this way, and applying the standard Osman test, I cannot conclude that the test was met in this case. If a comparison be made with Osman, the warning signs in this case were very much less clear and obvious than those in Osman, which were themselves found inadequate to meet the test.

40.  Ms Carss-Frisk sought to contend that the Van Colles’ claim under article 8 could succeed even if the claim under article 2 failed. But the police did not themselves interfere with Giles’ right to respect for his family life and his personal autonomy. Thus any complaint must, I think, rest on DC Ridley’s failure to prevent the interference by Brougham, and article 2 is clearly the article under which this claim is to lie if it is to lie at all.

41.  Having reached these conclusions, I do not think it necessary or helpful to address, unauthoritatively, a number of other issues which were argued. I would allow the Chief Constable’s appeal, set aside the order of the Court of Appeal, and enter judgment for the Chief Constable. I would invite the parties (other than the interveners) to make written submissions on costs within 14 days.

Smith: the law

42.  The common law of negligence seeks to define the circumstances in which A is held civilly liable for unintended harm suffered by B. Liability turns, in the circumstances of the particular case, on the relationship between A and B. Usually that relationship is a direct one, as where A fails to treat or advise B with the degree of care reasonably to be expected in the circumstances, or where A drives carelessly and collides with B. But the relationship may be more indirect, and in some circumstances A may be liable to B where harm is caused to B by a third party C, if A should have prevented C doing such harm and A failed to do so. Of this indirect source of liability Dorset Yacht Co Ltd v Home Office [1970] AC 1004 is the classic example. In some cases A’s liability has been found to depend on an assumption of responsibility by A towards B, in some on the finding of a special relationship between A and C, by virtue of which A was responsible for controlling C: see Dorset Yacht, above; Smith v Littlewoods Organisation Ltd [1987] AC 241, 272. Currently, however, the most favoured test of liability is the three-fold test laid down by the House in Caparo Industries plc v Dickman [1990] 2 AC 605, by which it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship of A and B was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care on A towards B.

43.  In the present case, Mr Smith’s case is that on the information available to them the Sussex Police owed him a duty to take reasonable steps to prevent Jeffrey causing him injury. The argument has centred on the applicability of the Caparo test. It was not argued by the Chief Constable before the judge that the type of harm suffered by Mr Smith was not reasonably foreseeable. The argument focused on proximity and the threefold Caparo test. The judge held (para 49 of his judgment) that on the proximity issue Mr Smith was certain to fail and that he would certainly fail on public policy grounds. Giving somewhat differing reasons, the three members of the Court of Appeal considered it arguable that, if the pleaded facts were established, the Chief Constable owed a duty of care to Mr Smith, and allowed the appeal on that basis.

44.  Differing with regret from my noble and learned friends, I consider that the Court of Appeal were right, although I would go further: if the pleaded facts are established, the Chief Constable did owe Mr Smith a duty of care. The question whether there was a breach of that duty cannot be addressed until the defence is heard. I would hold that if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed. I shall for convenience of reference call this “the liability principle".

45.  I do not consider the liability principle to be in any way inconsistent with the ratio of either Hill v Chief Constable of West Yorkshire [1989] AC 53 or Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495, the two decisions of the House on which the Chief Constable most strongly relies.

46.  The facts of Hill are very familiar and need not be rehearsed. The plaintiff’s essential complaint was that the West Yorkshire Police had investigated the spate of killings by Peter Sutcliffe in a negligent manner and that if they had performed their duties with appropriate care Sutcliffe would have been detected and detained before he had murdered the plaintiff’s daughter. Thus at the time to which the complaint related, there was no identified suspect (even if there should have been) and no specific threat to the life or physical safety of the plaintiff’s daughter. The facts of the case fell well outside the liability principle.

47.  The facts of Brooks are less well known. Duwayne Brooks was a friend of Stephen Lawrence and was present when the latter was abused and murdered. He also was abused and attacked. He was deeply traumatised by the experience and Sir William Macpherson of Cluny in his Report on the Stephen Lawrence Inquiry (1999)(Cm 4262-I) was very critical of the way in which Brooks had been treated, as he was of the manner in which the investigation had been conducted. But there was at the time to which his complaint related no identified suspect, and there was no evidence of any threat at all to the life or physical safety of Brooks. His pleaded case was that whilst the attackers remained at large he was frightened for his own safety, not least because he lived in the same locality (see [2005] 2 All ER 489, 511), but he did not suggest that anyone had threatened him. The facts of this case also fall well outside the liability principle.

48.  Much attention has rightly been directed to the public policy considerations which weighed heavily with the House in Hill, leading to the decision that no duty of care should be imposed. They were listed by Lord Keith of Kinkel at pages 63-64 of his opinion. His first reason was that although in some situations recognition of a potential duty of care might tend towards a raising of standards, no such incentive was necessary in the case of the police. It is unnecessary to discuss this ground further, since in Brooks Lord Steyn recognised (para 28) that it could not now be supported. Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood agreed with his opinion (paras 37 and 39). I expressed unwillingness to endorse the full breadth of what the House had been understood to decide in Hill (para 3). Lord Nicholls of Birkenhead similarly did not wish to be taken as endorsing the full width of all the observations in Hill (para 6).

49.  Lord Keith’s second reason was that in some instances the imposition of liability might lead to the exercise of a function being carried on in a detrimentally defensive frame of mind, and the possibility of this happening in relation to the investigative operations of the police could not be excluded. This was, with respect, an entirely apt observation on the facts of Hill, where the plaintiff’s complaint was directed to the investigative operations of the police. It is not, however, easy to see how acceptance of the liability principle could induce a detrimentally defensive frame of mind. All that would be called for in the first instance would be a reasonable assessment of the threat posed to an identified potential victim by an identified person.

50.  Lord Keith’s third reason was that if potential liability were to be imposed it would not be uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that the criminal went on to commit further crimes, which might raise issues touching deeply on the conduct of a police investigation. That, as Lord Keith observed, is what the plaintiff in Hill sought to do, and the observation was again apt on the facts of the case. But it has little bearing on the liability principle, which calls for no more than an appropriate response to a specific and apparently credible threat of death or physical injury by an identified person to an identified victim, a situation quite unlike those which fell to be considered in cases such as Clough v Bussan [1990] 1 All ER 431 and Ancell v McDermott [1993] 4 All ER 355.

51.  Lord Keith’s fourth reason, closely linked with the third, was that if actions were allowed to be brought a great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence and the attendance of witnesses at the trial, which would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. This reason was elaborated by Lord Steyn in para 30 of his opinion in Brooks where he said:

“But the core principle of Hill’s case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill’s case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence: see section 29 of the Police Act 1996, read with Schedule 4 as substituted by section 83 of the Police Reform Act 2002; section 17 of the Police (Scotland) Act 1967; Halsbury’s Laws of England, 4th ed reissue (1999), vol 36(I), para 524; The Laws of Scotland, Stair Memorial Encyclopaedia, vol 16, (1995), para 1784; Moylan, Scotland Yard and the Metropolitan Police, (1929), p 34. A retreat from the principle in Hill’s case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill’s case, be bound to lead to an unduly defensive approach in combating crime.”

52.  It is evident that both Lord Keith and Lord Steyn were addressing the situations raised on the facts before the House: in Hill, an ex post facto inquiry into the conduct of a police investigation (see also the observations of Lord Templeman at pp 64-65); in Brooks, a duty to give appropriate protection, support, assistance and treatment to witnesses and alleged victims of crime (see paras 2, 5, 12, 33). Both decisions, on their facts, were in my opinion correct. But neither conflicts with the liability principle, acceptance of which does not distract the police from their primary function of suppressing crime and apprehending criminals but calls for reasonable performance of that function.

53.  Lord Keith did not in Hill absolve the police from liability in negligence. In the course of his opinion (at p 59) he said:

“There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg v Dytham [1979] QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.”

The cases cited by Lord Keith are instructive. In Knightley v Johns [1982] 1 WLR 349 a police inspector was held by the Court of Appeal to be liable when he failed to close a tunnel after an accident and negligently ordered a constable to ride his motor cycle through the tunnel against the flow of traffic, with the result that the constable was injured. The inspector was held liable to the constable, and to that extent the decision is comparable with the later decision in Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550, but it can scarcely be supposed that police officers owe duties of care only to each other. Such was not the case in Gibson v Orr 1999 SC 420, where the defendant was held vicariously liable to a member of the public. In Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242, a decision of Taylor J, the Chief Constable was held to be negligent where officers used CS gas without readily available fire-fighting equipment. This decision would be inconsistent with a rule that operational decisions are immune from scrutiny. In R v Dytham [1979] QB 722 the charge against the constable, tried and convicted on indictment, was that he had wilfully omitted to take any steps to preserve the Queen’s peace or to protect a man beaten to death before his eyes. It would suggest a defect in our law if a constable were criminally liable in such circumstances but owed the victim no common law duty of care.

54.  A general rule of immunity subject to very limited exceptions would be hard to reconcile with earlier statements of high authority, albeit made in a different legal and factual context. Thus in Glamorgan Coal Company Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206, 229, Pickford LJ said:

“[The defendants] are the police authority and have to make proper police arrangements to maintain the peace. If one party to a dispute is threatened with violence by the other party he is entitled to protection from such violence whether his contention in the dispute be right or wrong ...”

This statement was expressly approved by Viscount Cave LC (pp 277-278), Lord Shaw of Dunfermline (p 288) and Lord Carson (p 291) in Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270, but their Lordships in that case went further. The Lord Chancellor (p 277) said:

“No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; ... “

Viscount Finlay (at pp 285, 287) spoke to similar effect:

“There is no doubt that it is the duty of the police to give adequate protection to all persons and to their property ... Beyond all question it is the duty of the police to give protection to the persons and property of all His Majesty’s subjects.”

Lord Carson (at p 292) agreed with the Lord Chancellor’s formulation, although preferring to lay down that it was the duty of the police to take all steps that were necessary for the purposes mentioned by the Lord Chancellor. Lord Blanesburgh (at p 306) referred to the absolute duty of the police to afford protection to life and property, limited only by the extent of their available resources and by the urgency of competing claims upon their services.

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