Obligations of Police to Protect Life

Hertfordshire Police v Van Colle [2008] UKHL 50 (30 July 2008) In this case, the House of Lords considered the applicability of the leading right to life case, Osman v United Kingdom (1998) 29 EHRR 245, in which the European Court set out the obligations on member states in relation to the right to life.

Pursuant to the European Court decision, states have a positive obligation to, in certain circumstances, take preventative measures to protect an identified individual whose life is at risk from the criminal acts of a third party.  Under this test, the facts must be examined objectively at the time of the existence of the threat, and the positive obligation is breached only if the authorities knew, or ought to have known at that time, about the threat to life which was both real and immediate and failed to act.

Facts

This case concerned an employee, Brougham, who murdered his former employer, Van Colle, after being charged with theft from Van Colle’s business and other businesses.  Brougham contacted Van Colle and other persons whose property he had allegedly stolen and offered bribes and made threats.  Van Colle’s car, and a car and premises of another witness were set on fire over the next few months, and Van Colle received more threatening phone calls from Brougham.  Van Colle was shot dead soon after and Brougham was convicted of his murder.

A disciplinary tribunal found the police officer responsible for investigating the thefts guilty of failing to perform his duties conscientiously and diligently in connection with the improper approaches to witnesses.

Van Colle’s parents issued proceedings relying on the UK Human Rights Act and the European Convention, arguing that the police acted unlawfully in violation of the right to life by failing to discharge a positive obligation to protect the life of their son.

Decision

Court of Appeal

The case was pleaded in a way that sought to escape from the very high threshold that was laid down in Osman.  The Van Colles argued that the police, through their conduct in involving their son as a prosecution witness, placed him at a special and distinctive risk of harm, which gave rise to a greater obligation to protect Van Colle’s life.

Finding for Van Colle, the Court of Appeal had held that a test lower than the ordinary Osman test was appropriate where a threat to life of an individual derives from the state’s decision to call that individual as a witness.

House of Lords

There were two key issues before the House of Lords:

• whether the Osman test sets different thresholds depending on the type of person whose life was at risk; and
• whether, according to the facts, there existed a real and immediate risk of which the police were aware or ought to have been aware at the time.

Rejecting the Court of Appeal’s test, and finding that the lower courts misdirected themselves by attaching undue significance to Van Colle’s status as a witness and treating the Osman threshold as lowered on that account, the Court noted that while the Osman test is applied to a variety of different situations, the test remains invariable and must be applied to all the circumstances of a particular case.

Applying the Osman test to the facts, the Court found no violation of the right to life.  The fact that Van Colle was to be a witness in a criminal prosecution, while a relevant fact, did not place him in a special category to which a threshold test lower than Osman applied.  The facts did not reveal that Brougham had a propensity towards violence.  The Court opined that if a comparison was be made with Osman, the warning signs in relation to Van Colle were very much less clear and obvious than those in Osman, which were themselves found inadequate to meet the threshold for breach of the right to life.

Relevance for the Victorian Charter

Section 9 of the Charter provides that every person has the right to life and has the right not to be arbitrarily deprived of life.  This case is a useful elucidation by the House of Lords of the invariability of the Osman test and the importance of assessing, on all the facts and circumstances of the case, whether there existed a real and immediate risk to an individual’s life and what the authorities knew or ought to have known at the time the risk arose.

It should be noted that under the UK Human Rights Act, litigants may bring proceedings solely on the basis of a breach of one of the rights set out in the Act.  Under the Charter, one may not bring a case relying solely on the Charter and must rely on another cause of actions, such as tort law.  Also, the UK Act permits the awarding of damages where a violation has been found, while litigants in Victoria currently do not have this opportunity.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/50.html.

Renae Schlock is a Human Rights Lawyer