VAN COLLE v. THE UNITED KINGDOM

9 February 2010

FOURTH SECTION

Application no. 7678/09
by Irwin VAN COLLE and Corinne VAN COLLE
against the United Kingdom
lodged on 28 January 2009

STATEMENT OF FACTS

THE FACTS

The applicants, Mr and Mrs Van Colle, are British nationals who were born in 1945 and 1946, respectively. They are married. They live in Middlesex, the United Kingdom and are represented before the Court by Mr H. Smith, a solicitor practising in Middlesex. The application concerns the murder in 2000 of their son, Giles Van Colle, who was born in 1975.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The background facts and Giles Van Colle's murder

Giles Van Colle, a qualified optometrist, acquired his own practice in August 1999. In September 1999 he hired a man calling himself Lee Jordan (also known as Daniel Brougham, although his real name appears to have been Ali Amelzadeh, hereinafter referred to as “Brougham”). Brougham had produced a false curriculum vitae and had, in reality, a criminal record under other names (convictions for common assault (1993), disorderly behaviour (1999) and dishonesty (2000)). When Giles Van Colle raised with him a query of the tax authorities about the national insurance number provided by Brougham, the latter reacted in an aggressive manner, raising his voice and trapping Giles Van Colle against a wall. Shortly before Christmas 1999 Brougham did not turn up for work and never returned. Giles Van Colle wrote to him requiring him to pay for repairs to defective equipment and referring to the small claims court. Brougham did not reply.

In March 1999 Detective Constable (“DC”) Ridley had arrested Brougham on suspicion of theft from “Southern Counties” (an optical firm): he was released without charge. On 17 February 2000 DC Ridley re-arrested Brougham on suspicion of theft from Southern Counties and searched his garage. Optical equipment was found and Giles Van Colle confirmed (statements dated 28 February, 4 April and 26 May 2000) that some of it was his and that Brougham did not have leave to take it. A police officer attending with DC Ridley told the second applicant that Brougham was “a nasty piece of work” who was also wanted by the police in Cambridgeshire.

On 23 April 2000 Brougham was charged with three offences of theft and obtaining property by deception. He was bailed unconditionally. The victims were said to be, as well as Giles Van Colle, Southern Counties and “Alpha Optical”, an optical company owned and run by Mr Panayiotou and a supplier of Giles Van Colle. The total amount involved was in the region of £4000 pounds sterling: the equipment allegedly stolen from Giles Van Colle was worth approximately £500.

During the summer of 2000 Brougham offered Mr H (of Southern Counties) the sum of £1000 not to give evidence. Mr H did not report this and it emerged only after the murder of Giles Van Colle.

On 10 August 2000 Brougham telephoned Mr Panayiotou and offered to pay £650 for the equipment he had taken from Alpha Optical. An arrangement was made for Brougham to meet a colleague the next day to hand over the money but Brougham cancelled it. Mr Panayiotou reported this to DC Ridley who took statements from him and his colleague on 30 August 2000. These statements were discussed by DC Ridley with prosecution counsel at a directions hearing held at a Crown Court on 20 September 2000. DC Ridley sent the statements to the CPS.

On 24 September 2000 Giles Van Colle's car was set on fire outside his home. A fire fighter opined that the fire had been started accidentally by an electrical fault. Mr Van Colle did not suspect arson and did not report the incident to DC Ridley.

On 13 October 2000 Brougham telephoned Mr Panayiotou and offered him a bribe not to give evidence. Mr Panayiotou immediately reported this to DC Ridley who advised him to refuse any such offers.

On 13 October 2000 Brougham also telephoned Giles Van Colle at his practice and said words to the effect: “I know where you live. I know where your businesses are and where your parents live. If you don't drop the charges you will be in danger”. A customer of Giles Van Colle gave evidence to the High Court that he was present when the call came through and that Giles Van Colle told him he had just received a “death threat” from a former employee and was quite shocked. Giles Van Colle dialled 999 (the emergency services number) and the police officer recorded:

“the caller said words very like the following: Drop the charges, we know where you live and where your parents live and where your business is. You'll be in trouble (might have said danger) if you don't ... The victim asked who was calling and the caller did not answer but rang off. The voice sounded to the victim like a former thieving employee Lee Daniel Jordan, also known as Daniel Brougham and various other aliases, who is currently under investigation by Dave Ridley ... in connection with various acts of dishonesty but as far as the victim knows no charges have been made as yet.”

Giles Van Colle was told to report the threat to DC Ridley. He did so between 16 and 18 October 2000 and DC Ridley also made a contemporary note to much the same effect:

“Mr Van Colle – know where you live, businesses are – parents live if you don't drop the charges you'll be in danger – aggressively said ...

Sounded like Lee Jordan – employee – spoke - quietly - malice – intent – foreign accent like Lee J's.”

On 19 October 2000 DC Ridley took statements from Giles Van Colle and Mr Panayiotou. In his statement Giles Van Colle said that he believed the caller was Brougham because of the accent and because he had no involvement in any other legal matter whether civil or criminal and he described himself as having been “totally shaken up” by the call. DC Ridley stated during later disciplinary proceedings that, while Giles Van Colle believed it was Brougham, he was not definite and DC Ridley would have expected him to be definite if it really was Brougham since they worked together for a period of time. Mr Panayiotou had not described Brougham as threatening. DC Ridley sent the CPS a copy of the statements.

On about 17 October 2000 Brougham visited a Mr A (a witness in the Southern Counties case) and offered him a bribe of £400 not to give evidence. Mr A refused but did not report the approach to DC Ridley.

On 25 October 2000 DC Ridley attended a hearing at the Crown Court at which Brougham applied unsuccessfully for the various charges against him to be tried separately. DC Ridley spoke to the barrister representing the prosecution and mentioned the events of 13 October 2000 and the statements taken. DC Ridley understood from this discussion that the best use of the statements was for their to be served as additional evidence in support of the theft prosecution.

On 28 October 2000 Mrs Panayiotou's car was set alight and suffered minor damage. The fire was put out by a neighbour and Mr Panayiotou did not learn of the incident until a day later. An Automobile Association inspector concluded that the fire might have been caused by a firework. A forensic scientist later concluded (after Giles Van Colle's death) that the car had been deliberately ignited. In the early hours of 29 October 2000 there was also a fire at Mr Panayiotou's business premises (an unlocked outbuilding used to store material of little value). While Mr Panayiotou was initially given an inconclusive opinion by the fire officer, that officer later indicated (after Giles Van Colle's death) that arson was most likely. Mr Panayiotou was upset and reported the fires to DC Ridley: despite the views he had received up to that point, Mr Panayiotou asked if DC Ridley thought Brougham could be responsible. DC Ridley said that it was unlikely and that, if he had concerns, Mr Panayiotou should contact the Metropolitan Police, which he did. DC Ridley did not contact the fire brigade or the police. The Metropolitan Police later closed the investigation into the fire of the outbuilding, noting that there was no evidence of arson. The fire brigade had had to pull down most of the roof because the structure was unsound, and the evidence was accordingly not preserved.

On 5 November 2000 DC Ridley was seconded to another station on an urgent (unconnected) murder investigation.

In preparation for the theft trial (due to begin on or about 27 November at a Crown Court), on 9 November 2000 the CPS served notices of additional evidence on Brougham which contained the statements of Giles Van Colle and Mr Panayiotou of 19 October 2000. The High Court found that Brougham was unaware of the notice until 22 November and that, in any event, service of the two statements, without more, would have reassured Brougham that no further action was being contemplated by the police in relation to his attempts to prevent the witnesses from testifying.

On 9 November 2000 Brougham telephoned Giles Van Colle again. Giles Van Colle was sure that Brougham was the caller. Brougham said:

“Give Alpha Optical a call and get them to drop the charges, you motherfucker ... Do you hear me? Do you hear me?”.

Giles Van Colle did not respond and Brougham hung up. On the same day Giles Van Colle left a message on DC Ridley's answer phone indicating his concern and that he would contact DC Ridley on his mobile. The High Court later noted that there were no mobile phone records available and held that, while DC Ridley had no recollection of any such conversation before 17 November 2000, the preponderance of the evidence was that Giles Van Colle did make mobile telephone contact with DC Ridley before 17 November: the applicants had given evidence that there was such contact; the first applicant recalled that Giles Van Colle had complained of having trouble getting hold of DC Ridley during this period; and DC Ridley's own evidence was that he was very busy on a murder enquiry elsewhere. Given Brougham's previous threats, the concern shown by Giles Van Colle and the imminence of the trial, it was more likely than not that Giles Van Colle did speak to DC Ridley between 9 and 17 November 2000.

By letter dated 10 November 2000 Giles Van Colle's insurers notified him of an investigator's conclusion that the fire to his car was consistent with a “malicious vandal attack”: still perceiving no link between this and Brougham, Giles Van Colle did not report this result. On the same day the police wrote to Giles Van Colle stating that his evidence was crucial and asking him to attend court when required.

On 17 November 2000 (as DC Ridley accepted) there was a telephone conversation with Giles Van Colle and on 19 November 2000 Giles Van Colle wrote, as requested, an account of what Brougham had said to him on the telephone (on 9 November). He sent it by facsimile to the police station on 20 November, a police officer gave it to DC Ridley on 21 November and, at approximately 15.00 on 22 November, DC Ridley spoke to Giles Van Colle and arranged a meeting for 23 November 2000 in order to take a statement. DC Ridley later stated in the High Court that he was intending to arrest Brougham on witness intimidation charges after obtaining Giles Van Colle's statement.

At 7.25 p.m. on 22 November 2000 Giles Van Colle was shot dead by Brougham as he was leaving work. In March 2002 Brougham was convicted of his murder. The evidence at the trial suggested that Brougham had acted in association with others.

2. The Disciplinary Tribunal

On 12 June 2003 the Police Disciplinary Panel (comprising a Deputy Chief Constable and two Superintendents) found DC Ridley guilty of failing to perform his duties conscientiously and diligently in connection with the intimidation of Giles Van Colle and Mr Panayiotou.

The Panel considered four allegations against DC Ridley, namely that he:

“1. failed to investigate thoroughly whether offences of intimidation of witnesses and doing acts tending and intended to pervert the course of public justice had been committed;

2. failed to analyse the available evidence carefully, both individually and with others, through proper channels of line management;

3. failed to take proper account of the guidance set out in the Hertfordshire Constabulary's document “Procedures and Guidelines Regarding the Intimidation of Witnesses”; and

4. failed to consider carefully the power to arrest the said Daniel Brougham.”

The Panel's findings were as follows:

“Having considered the facts of this case the Panel are of the view that the events outlined in the evidence between 30 August 2000 and 22 November 2000 amounted to an escalating situation of intimidation in respect of the witnesses Panayiotou and Van Colle. DC Ridley was in a unique position during this time with the fullest picture of the developing situation.

The Panel finds that during this period the officer failed to perform his duties conscientiously and diligently in connection with the improper contacts made with these witnesses.

Considering the three specific elements set out in the charge:

1. The Panel accept that DC Ridley did obtain statements when the inappropriate approaches to witnesses were reported to him by witnesses, however, the Panel's view is that an investigation includes seeing this through to a satisfactory conclusion. On the basis of the evidence presented to the hearing, it was apparent that the 2 phone calls to Panayiotou and Van Colle on 13 October subject of statements taken on the 19 October did amount to substantive offences of witness intimidation and attempting to pervert the course of justice. In a full and proper investigation, the public would at least have expected contact with Brougham in an attempt to prevent recurrences, but more probably he should have been arrested.

Furthermore, on the 29 October when Mr Panayiotou reported the 2 fires in relation to his business premises and his wife's car a thorough investigation would have taken account of previous incidents and initiated a more detailed examination of the circumstances.

2. The Panel felt that on the evidence presented, the officer failed to adequately analyse and properly identify possible links between events, that would have resulted in a different course of action, had he done so. In particular, he failed to identify on 13 October that the calls to Mr Panayiotou and Mr Van Colle were probably both made by Brougham. Further on 29 October 2000 he failed to analyse and assess the information regarding the two fires in the context of the previous threats and intimidation.

In respect of the final call from Van Colle the officer stated he was happy to wait to make his statement. However, DC Ridley was in possession of additional facts i.e. the fires, which may have affected Van Colle's level of concern. This issue merited greater urgency.

The Panel acknowledged the informality of the line management arrangements presented in the evidence and that none of his immediate line managers contradicted the actions the officer was undertaking and that he drew comfort from this together with discussions he had with counsel at court in respect of this case.

3. Discharged in the course of the hearing.

4. On the basis of the 2nd statement taken from Mr Panayiotou on 19 October the Panel [is] of the view that there was sufficient evidence to arrest for attempting to pervert the course of justice. The Panel is also of the view that in the case of Van Colle there was evidence sufficient to justify grounds for arrest. It is the view of the Panel that an arrest under these circumstances was both necessary and proportionate and was likely to have been beneficial to the ultimate outcome of the case. It is acknowledged that the officer through his counsel accepted that he did make a wrong decision about not arresting Brougham and the panel accepts that there would have been no guarantee that this would have averted the ultimate tragedy.”

Having noted, inter alia, his excellent service record, that the findings related to errors of judgment and not malicious or dishonest acts and the mitigation given on his behalf, the DC Ridley was fined 5 days' pay.

3. Proceedings under the Human Rights Act 1998 (“HRA”)

The applicants (the first applicant being the administrator of the deceased's estate) brought a claim against the Chief Constable of the Hertfordshire Police under sections 6 and 7 of the HRA claiming damages for a breach of Articles 2 and 8 of the Convention. No claims were made under the common law of negligence.

(a) The High Court (Van Colle v Chief Constable of the Hertfordshire Police [2006] EWHC 360 (QB), [2006] 3 All ER 963)

The trial was held from 7-15 June 2005. Before delivering judgment the trial judge died. It was agreed between the parties and ordered that the case would be conducted by a new judge (Cox J.) on the basis of the evidence contained in the full transcript of the trial and otherwise upon the documents.

On 10 March 2006 the High Court delivered its judgment finding that the respondent acted unlawfully in violation of Articles 2 and 8 of the Convention by failing to discharge the positive obligation on the police to protect the life of Giles Van Colle. It awarded damages under section 8 of the HRA in sum of £50,000 (£15,000 in respect of the distress suffered by Giles Van Colle and £35,000 in respect of the applicants' grief and suffering) and the Chief Constable was ordered to pay costs. Leave to appeal, and a stay of execution pending that appeal, was granted.

The High Court commented on certain material facts as follows.

As to the telephone call of 13 October 2000, the High Court concluded:

“It is accepted by the Defendant both that DC Ridley took no further steps at this time in response to the threat to [Giles Van Colle] made by Brougham, and that he should have done more by contacting or arresting Brougham. His explanation for failing to arrest Brougham, namely that he felt [Giles Van Colle] had not made a sufficiently clear and positive identification of Brougham is, as he now accepts, unsatisfactory in the circumstances. In his evidence at trial he accepted in cross-examination that this had been a serious threat, that it involved the threat of physical danger, that it disclosed an offence of witness intimidation, and that it indicated a risk to [Giles Van Colle's] life. He also conceded that he should have appreciated this at the time. In allowing himself to be dissuaded from a more positive response to this threat by what he regarded as a doubtful identification [Counsel for the Chief Constable] submits, as DC Ridley himself accepted in evidence, that DC Ridley made an error of judgment. The judgment he exercised, however, related only to whether he had reasonable grounds to arrest Brougham, to charge him with criminal offences relating to his interference with witnesses, and to prosecute him successfully in connection with such charges. It is clear on the evidence, and DC Ridley himself accepted it, that he did not give any thought at all to [Giles Van Colle's] safety and to the need for steps to be taken to protect him in the light of the threat which had been made.”

The High Court then set out the following extracts from the cross-examination of DC Ridley during the trial:

“Q. What about providing protection for [Giles van Colle] as a witness who had had a threat, as you have accepted, potentially to his life, what about protecting him? Did you think about that?

A. No, my Lord, no.

Q. You did not think about that. As a very experienced officer – I know you have said that you have not seen the Hertfordshire guidelines on witness protection – but as an experienced officer do you mean to say with a threat like that being made it did not cross your mind that you needed to protect the witness?

A. No, my Lord. ...

Q. Did you consider speaking to Brougham, approaching Brougham, about this, investigating it with him further, even if not arresting him?

A. No, my Lord.

Q. You did not. Did you consider attempting to trace the telephone call to [Giles Van Colle], to link it to Brougham?

A. Not at that stage, my Lord, no.

Q. So at that time you simply take the statement, with evidence of the serious threat made, and you decide to do nothing – absolutely nothing?

A. My decision making process was to make sure that those statements which I obtained on that day were delivered to the Crown Prosecution Service. ...

Q. ... your decision was governed – and these decisions, you say, were governed by the tactical process of the prosecution for the theft charge. The question of protection of [Giles Van Colle] really never came into your mind?

A. It did not, my Lord, yes.”

As to DC Ridley's conversation with a prosecution barrister on 25 October 2000, the High Court noted that it was not suggested that DC Ridley was or should have been relying on counsel to assist him in making operational decisions about the protection of prosecution witnesses. The High Court placed some reliance upon the evidence of a Detective Inspector at the disciplinary hearing to the effect that “witnesses were entitled to protection from such interference and Brougham should have been quickly arrested and placed before a court with a view to securing his remand in custody prior to trial” and that a barrister did not take operational police decisions. DC Ridley had accepted that he had not spoken to the barrister in relation to what ought to be done about protection for Giles Van Colle. Accordingly, Counsel for the Chief Constable accepted that advice from lawyers could not absolve DC Ridley from making an assessment of the witness protection needs.

As to the fire on 28 October 2000, the High Court concluded as follows:

“26. Given the seriousness of these incidents, Mr. Panayiotou's distress and his suspicions that Brougham was behind the fires, further and prompt investigation and action by DC Ridley was called for. In this I find myself in agreement with the [Panel's] conclusions that DC Ridley failed to respond to an escalating picture of intimidation involving two prosecution witnesses in the same case, and in particular that he failed to analyse carefully the available evidence, both individually and with others through proper channels of line management. These conclusions are accepted in this trial as correct and DC Ridley acknowledges that the report to him of these fires should have prompted an immediate response, but that he failed to act and failed to consider protection. These events in my view called for a pro-active approach; an investigation and analysis of the possible links between the various incidents which had, by early November, been reported to him by the witnesses. Questions should have been asked of the other prosecution witnesses [Mr A and Mr H], and information re the fires on 28 and 29 October shared with the Van Colles, all of which would have elicited important information about the nature and extent of Brougham's activities and would then have required an assessment of the need for witness protection for both Mr. Panayiotou and [Giles Van Colle] and the appropriate steps to be taken. If that had been done it is likely in particular, in my view, that [Giles van Colle] would have reported the fire to his own car on 24th September, especially after his insurers reported their findings that it had been started deliberately. Instead, the matter was understandably regarded by [Giles Van Colle] and his parents as wholly unconnected with Brougham. Even when [Giles Van Colle] raised with his mother whether the deliberate fire to his car, as found by the insurers, could be linked to Brougham's threats, she stated in her evidence that she had merely observed to him that they had been watching too much television .... That it was for the officer in the case, and not the witnesses themselves, to evaluate all the material information and make an informed assessment of the risk and the need for protection is clear from the evidence, not least from DC Ridley himself in accepting that it was to him that any witness who had suffered intimidation would primarily look for support ...

27. In these circumstances I do not accept [the Chief Constable's Counsel's] submission that, whilst DC Ridley was not as curious as he should have been, it was understandable that he did not connect the fires with Brougham's previous approaches to Mr. Panayiotou and his threats to [Giles Van Colle]. Viewed objectively, at the time these events were unfolding, by late October or early November a disturbing pattern of behaviour was emerging, which was capable of being identified with appropriate and reasonable enquiries by the officer in the case. It called for immediate action. There was none. Meanwhile, it appears that on 5th November DC Ridley was seconded to an urgent murder inquiry, wholly unconnected with this case, which meant that he was based at Letchworth and was no longer working at Royston Police Station. He left a message on his answer phone to that effect.”

As to the telephone call of 9 November 2000 and DC Ridley's planning to arrest Brougham after taking a statement (set for 23 November 2000), the trial judge had the following exchange with DC Ridley:

“Q. Why were you going to arrest him?

A. Because of the next step in relation to that call. I discussed the matter with my Detective Sergeant and we decided that following taking the statement we would then arrest him.

Q. With a view to?

A. With a view to processing him through the criminal justice system.

Q. For?

A. For witness intimidation.

Q. So what was in your mind was due process again and charging him with a criminal offence?

A. Yes, my Lord.

Q. It is a question of whether you needed to act to protect, avoid a risk to the safety, or life, of [Giles van Colle], you did not think of that?

A. No, not at that stage, no..........

Q ... that aspect of protecting [Giles Van Colle] was really not in your mind?

A. No, my Lord.”

In considering this part of the case, the High Court had regard to the special position of those required to be prosecution witnesses at criminal trials and, in this respect, noted in some detail the contents of the Hertfordshire Constabulary's Witness Protection Policy (“the Protocol”). In this context the High Court noted that the level of protection or assistance to be given obviously depended on the circumstances although the fact that the witness was also the victim was a factor which “might give rise to an increased likelihood of intimidation”. In this respect, it concluded:

“37. Whilst particular measures are clearly a matter of judgment for the individual officer in any given situation the essential requirement, reading this policy as a whole, is for police officers to consider and assess all the circumstances and the risk in any particular case, in order to reach an informed decision as to the need for protection and the level of protection required for the witness or witnesses affected. The very existence of this policy indicates that the Defendant recognised that the police had a duty to protect witnesses who are the victims of intimidation. It is therefore a matter of regret, as is clear from DC Ridley's evidence at this trial, that he had throughout been wholly unaware of the policy and the guidance contained within it. In reply to questions from the judge he also agreed that he had had no training in relation to the contents of the policy or about witness protection generally. It appears that the policy was placed on the Hertfordshire Constabulary intranet but DC Ridley had received no instructions about it or about following the guidance it contained. He therefore accepted that he had not had regard to its contents when dealing with this case. The fact that he was unaware of it also explains why the disciplinary charge relating to his failure to take proper account of the guidance in this policy was withdrawn at the Misconduct Hearing.”

(b) The Court of Appeal (ColIe v Chief Constable of the Hertfordshire Police [2007) EWCA Civ 325, [2007] 1 WLR 1821

On 24 April 2007 the Court of Appeal (Sir Anthony Clarke MR, Lord Justice Sedley and Lord Justice Lloyd) unanimously rejected the Chief Constable's appeal. Before reviewing the facts, the Court of Appeal recalled that DC Ridley's actions were to be judged without hindsight and on the basis of the information which was available to him or would have been available to him if he had taken all proper steps at the time.

As regards the telephone call on 13 October 2000, the Court of Appeal considered the position at or shortly after DC Ridley took the statements from Giles Van Colle and Mr Panayiotou on 19 October 2000. It was true that DC Ridley was unaware at that point of the fire to Giles Van Colle's car and that the earlier statements from Mr Panayiotou and his colleague (the latter concerning the August 2000 incident) contained nothing which could have alerted him to the possibility of Giles Van Colle being at physical risk from Brougham. However, the Court of Appeal agreed with the High Court that the telephone calls on 13 October put “a different complexion on the case” and that Giles Van Colle had made a sufficiently clear identification of Brougham as the person who threatened him on the telephone and DC Ridley ought to have investigated the matter further. This conclusion was underlined by the findings of the Panel. Moreover, the Chief Constable's Counsel conceded before the High Court and the Court of Appeal that DC Ridley should have contacted Brougham, or arrested him, after taking the statements on 19 October 2000 and that his failure to do so was an error of judgment. The Court of Appeal went further (as did the High Court): it was not a “mere error of judgment, but a failure on the part of DC Ridley as a professional police officer to carry out his duties properly in circumstances in which there was evidence of intimidation of a witness”; a reasonably competent police officer would have taken action and there was no suggestion that his inaction was caused by pressure of other work. The Panel, itself comprising experienced police officers, was not judging DC Ridley with hindsight but on the basis of the information available to him at the time. “If DC Ridley had been giving proper consideration to the information available to him at the time, he would either have taken appropriate action himself or, if he did not have time, would have reported what he had been told to a superior officer so that appropriate action could be taken.”

As regards the fire on 28 October 2000, the Court of Appeal again agreed with the High Court and the Panel. DC Ridley was in “a unique position ... with the fullest picture of the developing situation” and he failed to respond to what the Panel called “improper contacts” with witnesses. He failed to appreciate that the calls of 13 October were probably made by Brougham and on 29 October he failed “to analyse and assess the information regarding the two fires in the context of the previous threats and intimidation.” This failure to respond to the information about the fires was not a mere error of judgment, but “it was a failure on the part of DC Ridley as a professional police officer to carry out his duties properly by investigating the fires further.”

As to the failure to act after the threatening phone call (of 9 November 2000) had been reported to him (at the latest by 17 November), the Court of Appeal agreed with the Panel's position, noting that the Chief Constable's Counsel had always accepted that DC Ridley should have acted with greater urgency after this call was reported to him.

The Court of Appeal also agreed with the High Court's review of and reliance on the Protocol and noted that, while DC Ridley may have been correctly criticised in a number of respects, he did not have the support to which he was entitled and which the public were entitled to expect him to have, in that he had not been informed or trained in use of the Protocol. However, the acts or omissions of the police had to be judged on the assumption that the officer concerned had been provided with appropriate guidance so that the High Court was correct in finding that the acts or omissions of DC Ridley had to be judged in light of the Protocol.

The Court of Appeal went on to identify the relevant legal principles (to be derived from the Osman v. the United Kingdom case (28 October 1998, Reports of Judgments and Decisions 1998‑VIII) under Article 2 governing the scope of the positive obligation to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another. The Court of Appeal adopted the six legal principles of Auld J (R(Bloggs61) v. Secretary of State for the Home Department [2003] 1WLR 2724) by which the Osman test was to be applied:

“i) The positive obligation to protect life in article 2 is unqualified and self-evidently fundamental, so that any alleged breach or potential breach of that obligation by the state authorities requires the most anxious scrutiny by the Court. The right to life in article 2 is in that sense different in nature from the qualified rights, for example, in articles 8 to 11, which enable the state in certain circumstances to justify an interference with the right requiring the court to conduct a balancing exercise between the individual's rights and the public interest.

ii) Nevertheless, article 2 is not to be interpreted so as to impose an impossible or disproportionate burden on the state authorities. This reflects the need for a fair balance between the rights of the individual and the general interests of the community recognised to be inherent in the whole of the Convention: ...

iii) The state's positive obligation to protect life includes a positive obligation in certain circumstances to take preventive, operational measures to protect an identified individual whose life is at risk as a result of the criminal acts of a third party. That obligation arises where it is established that the state authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of that individual and yet failed to take such measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

iv) To determine, where it is so established, whether there was a breach of that obligation it is not necessary for the claimant to establish that the failure to perceive the risk to life in the circumstances known at the time or the failure to take preventive measures to avoid that risk amounted to gross negligence or to a wilful disregard of the duty to protect life. It is sufficient 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. The answer to this question will always depend upon the individual facts of the case.

v) 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 threshold of a real and immediate risk in such circumstances is too high. If there is a risk on the facts, then it is a real risk, and "immediate" can mean just that the risk is present and continuing at the material time, depending on the circumstances. If a risk to the life of such an individual is established, the Court should therefore apply principles of common sense and common humanity in determining whether, in the particular factual circumstances of each case, the threshold of risk has been crossed for the positive obligation in Article 2 to protect life to be engaged.

vi) Whether the obligation arose in any particular case and whether the state authorities were in breach of that obligation will therefore depend not only upon the nature of the threat and the degree of risk to the individual, of which the authorities knew or ought to have known, but also upon the extent to which there were appropriate measures, reasonably available to the authorities, to alleviate or obviate that risk. The greater the failure to take such measures as were reasonably open to them to alleviate a risk to human life, the greater the likelihood that the authorities will be held to have failed to comply with their Article 2 obligation.”

Applying those principles to the facts of the case, the Court of Appeal found that there was indeed a real and immediate risk of which DC Ridley ought to have been aware given, notably, the telephone calls of 13 October (he should have appreciated that it was Brougham who was threatening); the fires in Mr Panayiotou's car and premises (given the previous connected events, reasonable enquiries at the time could have yielded the later forensic confirmation that it was arson); the threat to Giles Van Colle on 9 November 2000 (given the existing threats and events); the fact that DC Ridley accepted that throughout the relevant time he did not give any thought to the need to protect Giles Van Colle; and the failure to give DC Ridley proper instruction on the Protocol. The Court of Appeal rejected the argument that this put an excessive burden on the police and concluded that:

“94. In short we do not disagree with the judge's conclusion, which was consistent with that of the [Panel], that 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 trial. In these circumstances they should have done all that could reasonably have been expected of them to minimise or avoid the risk. Unfortunately, as the judge held and as DC Ridley himself accepted, the police did nothing to that end. For these reasons, we conclude that ... the judge was correct to hold that the police were under a duty to take preventive measures in relation to [Giles Van Colle] and that they were in breach of that duty and therefore acted incompatibly with [Giles Van Colle's] right to life under Article 2 of the Convention.”

The Court of Appeal again agreed with the High Court that the protective measures that were reasonably open to DC Ridley could have had a real prospect of altering the outcome and avoiding Giles Van Colle's death. DC Ridley had accepted that, if he had complied with the Protocol, there would have been a real prospect that Giles Van Colle's life would have been saved and, indeed, that it was more likely than not that his death would have been avoided had the relevant steps been taken. 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.

In the circumstances, the police had been in breach of the duty by failing to do so, the failure was incompatible with the right to life under Article 2 of the Convention, and as a result of this infringement, Giles Van Colle had lost his life. Accordingly, the Court of Appeal found it unnecessary to deal with the applicants' claim under Article 8 of the Convention.

The Court of Appeal partially allowed the appeal against damages. In awarding damages under Article 2 of the Convention, it was required to apply the principles in this Court's case-law rather than domestic law. In making an award to the deceased's estate, account had to be taken of the deceased's suffering during the period when the defendant had been in breach of Article 2 but not of the lack of any apology nor the light sanction imposed by the Panel. Taking all circumstances and this Court's jurisprudence into account, the overall award was too high so that £10,000 was awarded to the deceased's estate (his pain and suffering) and £7,500 to each of the applicants for their pain and suffering.

(c) The House of Lords (Van Colle v Chief Constable of the Hertfordshire Police (2008) UKHL 50, [2008] 3 WLR 593)

On 30 July 2008 the House of Lords (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of Worth Matravers CJ, Lord Carswell and Lord Brown of Eaton-Under-Heywood) unanimously allowed the appeal of the Chief Constable. By the same judgment they also decided a parallel appeal concerning reported threats to the police where the victim had not taken proceedings under the HRA but had claimed damages under the common law alleging a negligent failure by the police to protect him (Smith (FC) v. Chief Constable of Sussex Police ([2008] UKHL 50).

Lord Bingham reviewed the relevant legal principles from the Osman case and considered that the lower courts had misdirected themselves in considering that a witness was in a special category of vulnerable person at a special and distinctive risk, in attaching weight to the Protocol and in treating the Osman test as lowered in such a case. On the contrary, there was one Osman test of “real and immediate risk” which remained constant and invariable which could only be answered in the light of all of the circumstances of the case and the central question was whether DC Ridley, making a reasonable and informed judgment on the facts and in the circumstances known to him at the time, should have appreciated that there was a real and immediate risk to the life of Giles Van Colle.

Since the lower courts had misdirected themselves, Lord Bingham reviewed the facts and noted the following 11 factual matters: Brougham was charged with minor offences; Brougham's record was that of a petty offender and, with only a hint of violence in his record, he could not have appeared to be prone to violence; there was nothing to suggest at the time that he had criminal associates; Brougham's first approach to Mr H was not reported to DC Ridley (it was thus irrelevant); Brougham's approach to Mr Panayiotou on 10 August was reported to DC Ridley and, while an irregular approach, it was not suggestive of violence to Mr Panayiotou, let alone Giles Van Colle; the fire which damaged Giles Van Colle's car on 24 September was not reported to DC Ridley (it was thus irrelevant); the bribe offered by Brougham to Mr Panayiotou on 13 October was serious criminal conduct but it did not suggest, and might well have appeared inconsistent with, violence and could not have been interpreted as any threat to the life or security of Giles Van Colle; as to the telephone call to Giles Van Colle on 13 October, Giles Van Colle took some days to call DC Ridley and DC Ridley then took a statement: in the context of the case, the prospect of the threat being implemented could reasonably be seen as remote; Brougham's offer of a bribe to Mr A on about 17 October was not reported to DC Ridley (it was thus irrelevant); the burning of Mr Panayiotou's premises and his wife's car was considered to have been accidental and, even if it was attributed to Brougham, it would have suggested that he was willing to go to some lengths to avoid conviction but hardly a threat to the life or security of anyone, let alone Giles Van Colle. While the post-murder investigation found that those fires were deliberate, it was 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 followed a murder; the telephone call made by Brougham on 9 November 2000 was unpleasant in content and aggressive in tone, but it contained no threat.

Lord Bingham noted that the Panel's conclusions lacked any suggestion that DC Ridley should have apprehended any imminent threat to the life or safety of Giles Van Colle and this is underlined by the Panel's references to errors of judgment and the modest penalty. Moreover, the fact that DC Ridley confirmed in evidence that the question of witness protection never came to his mind was plainly explained by the fact that he did not perceive a real and immediate threat to Giles Van Colle's life and he was proposing to arrest Brougham on 23 November on witness intimidation charges only. Lord Bingham continued:

“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 Van Colle] 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.”

As to the applicants' complaint under Article 8, Lord Bingham noted that the police did not themselves interfere with Giles Van Colle's right to respect for his family life and his personal autonomy so that any complaint had to rest on DC Ridley's failure to prevent the interference by Brougham, and Article 2 was clearly the Article under which this claim was to lie.

Lord Hope recognised that the Osman case defined the extent of the relevant positive obligation and considered that the murder was the action of a seriously disturbed and unpredictable person so that it could not reasonably be said that DC Ridley should have anticipated, from the information available to him at the time, that Brougham constituted a “real and imminent” risk to Giles Van Colle's life. Adopting the reasons of Lord Bingham and noting that the question depended on the facts of each case, he considered that the Osman test had not been met. He rejected the idea that Giles Van Colle was in a special category to whom a lower threshold applied: the Osman test was constant and not variable and the first sentence of paragraph 116 of the Osman judgment (that the obligation must not impose an impossible or disproportionate burden on the authorities) defined the limits of the positive obligation on States to be observed in every case.

Lord Phillips concurred with Lord Bingham, adding that one matter was left unclear by Osman which was the test to be applied when deciding whether the police “ought to have known” of the risk to life. There were at least two possibilities: the first was that they “ought to have appreciated on the information available to them” and the second is that it means “ought, had they carried out their duties with due diligence, to have acquired information that would have made them aware of the risk”. Lord Phillips considered that the former was the meaning intended but, even applying the latter, there was no valid basis for concluding that the police ought to have known that there was a real and immediate risk to the life of Giles Van Colle.

Lord Brown began by pointing out that threats to witnesses were a problem for the criminal justice system: the Court of Appeal had noted Home Office/Association of Chief Police Officers (“ACPO”) statistics showing that 10% of crimes led to incidents of intimidation. A recent press article had stated that in 2007 the police had warned over a thousand people “that they were the subject of a murder plot”, “at serious risk of being killed by individuals with the resources to arrange their death”, these being inappropriately described as “so-called Osman warnings”.

However, Lord Brown was in full agreement with Lord Bingham's judgment and added that the Osman test was “clearly a stringent one” as recognised by the Osman judgment itself; that the Osman test was a constant one and did not vary depending on the circumstances so that the fact that Giles Van Colle was a witness was undoubtedly relevant but only to the extent that realistically it increased the likelihood that Brougham would actually carry out his threat to kill or seriously injure him. Nothing on the facts compared to the increased risk to life of political journalists considered in Kiliç v. Turkey (no. 22492/93, ECHR 2000‑III) and, indeed, Lord Brown found the present case to be less convincing than the facts of the Osman case itself.

Lord Carswell agreed with Lord Bingham's and Lord Hope's judgments.

B. Relevant domestic law and practice

1.Human Rights Act 1998 (“HRA”)

The HRA came into force in England, Wales and Northern Ireland on 2 October 2002.

Section 3 of the HRA provides that “so far as it is possible” primary and secondary legislation must be read and given effect in a Convention compatible manner. Section 6 of the HRA makes it unlawful for a public authority (which includes the police and a local authority) to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 would render the relevant public authority liable to the plaintiff under section 7 of the HRA and a judge will have power to award damages under section 8 of the HRA.

2. The Hertfordshire Constabulary's Procedures and Guidelines regarding the Intimidation of Witnesses (“the Protocol”)

The Protocol was approved in May 1999 and was in operation at the relevant time. It provided guidance for police officers in dealing with witness intimidation. The introduction explained the serious problems posed by witness intimidation, including undermining public confidence in the criminal justice system and the effectiveness of that system, in that trials might not go ahead or would have to be abandoned. While attention was drawn to the offences of intimidating, harming or threatening to harm a witness (the Criminal Justice and Public Order Act 1994), the focus of the Protocol was the protection of witnesses who were being intimidated and the need to ensure an effective response, depending on the nature and degree of intimidation involved. The Protocol referred not only to “Community wide” intimidation but to Case Specific intimidation (“threats or violence intended to discourage a particular person from helping a particular investigation” including both “those who are actually put in fear in a life threatening way” and “those who are actually put in fear but not necessarily in a life threatening way”). The Protocol noted that it complied with advice issued by the ACPO.

The Protocol divided witness intimidation into three 'Tiers', the second of which related to case specific intimidation “involving actual threats to a witness or to his/her family in an attempt to prevent that person from supporting a prosecution or giving evidence”. The Protocol added:

“The threats must have been made although not life threatening. Judgement is needed in such cases in order to assess the actual risk presented by the threat made. Action which can be taken includes the temporary removal of the witness from his or her home or a number of other measures which are listed in this policy. Tier 2 Witness Intimidation is a Divisional responsibility assisted by HQ Crime Management Department when appropriate.”

The level of protection or assistance to be given to a witness obviously depended on the circumstances although the fact that a witness was also the victim was recognised as a factor which “might give rise to an increased likelihood of intimidation”.

The Protocol included “prompts” as to measures which might be taken for Tier 2 witness intimidation “to deal with the perpetrator”:

“- proceedings should be initiated, where possible, against those carrying out the intimidation.

- Courts considering bail applications from defendants should be supplied by the police and CPS with full information about actual or potential witness intimidation.

- Where witness intimidation is a possibility, courts should consider imposing conditions which restrict the defendant's contact with the witnesses (which is already possible under the existing bail legislation) ...

Where witness intimidation is considered likely, breaches of bail conditions should be reported and acted upon immediately.

Where appropriate, consideration should be given to applying for the new anti social behaviour order in the Crime and Disorder Bill, or other civil remedies such as under the Housing Act 1996 to take appropriate action against perpetrators. Also action under the Protection from Harassment Act 1997 might be appropriate.

The Protocol also includes prompts to Protect and Support witnesses:

“- The witness should be provided with information about intimidation and what action they should take if confronted by such circumstances, as detailed on the attached Witness and Victim Information Sheet.

- The witness will also need information about any court bail conditions imposed on the defendant and what to do if these are breached and also on the civil orders available. But it is important to provide balanced information and to avoid the risk of frightening the witness unnecessarily when witness intimidation is unlikely.

-The installation of panic alarms by the Police Service should avoid the need for the witness to have to dial 999 and allows the wearing of the alarm around ones neck.

- One contact point for witnesses when an immediate response is not required.

- Installing outside security lighting or home-based CCTV.

- Operating a mobile closed circuit television system where available.

- Consider offering a transfer to alternative temporary accommodation ... .

- Utilising the support offered by Neighbourhood Watch residents groups or other community based schemes.

- The cooperation of other agencies within the Criminal Justice System to fast-track the case to and through court.

- The use of Witness Forms or Witness Support packages, which may include a selection of leaflets from varying agencies including Police, Court Service, Victim Support and Mediation should be encouraged.”

COMPLAINTS

The applicants argue that the failure of the Chief Constable and his officers to take reasonable steps to protect Giles Van Colle from the risk posed to his life by Brougham violated Giles Van Colle's right to life guaranteed by Article 2 of the Convention, of which the applicants are also victims, and further violated his and the applicants' right to respect for their private and family life guaranteed by Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a failure to protect the life of the applicants' son, Giles Van Colle, as guaranteed by Article 2 of the Convention?

In particular, did the police know or ought they to have known of the existence of a real and immediate risk to the applicants' son's life and did they fail to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk?

2. Has there been a violation of the deceased's and the applicants' right to private and family life guaranteed by Article 8 of the Convention?

 

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