Scope of the obligation to protect life

Van Colle v United Kingdom [2012] ECHR, Application No 7678/09 (13 November 2012) Summary

This decision of the European Court of Human Rights considered the scope of a state's obligation to protect life, which is contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court re-stated that authorities have a positive obligation to take action where they know, or ought to know, that there is a “real and immediate risk” to the life of an identified individual from the criminal acts of another. However, in this case, the Court found that the circumstances did not establish such an obligation.

Facts

The applicants' son, Giles Van Colle, was an optometrist working at Alpha Optical who had hired Mr Brougham. During his employment, Mr Van Colle queried Mr Brougham about his national insurance number, after which Mr Brougham became violent and trapped Mr Van Colle against a wall.

Mr Brougham was later arrested by Detective Constable Ridley on suspicion of theft, unrelated to his employment, and optical equipment belonging to Mr Van Colle was found in Mr Brougham's shed. As a result, Mr Brougham was charged and Mr Van Colle was going to be required to attend court as a witness in the case against Mr Brougham, along with a number of other witnesses.

In the following few months, a number of events transpired, which were not able to be unequivocally linked to Mr Brougham. In particular:

• Mr Van Colle's car was set on fire, although the fire was believed to have started accidentally so was not reported to DC Ridley;
• Mr Van Colle received a phone call (which he believed to be from Mr Brougham) where the caller said “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.” Mr Van Colle reported this threat to DC Ridley;
• Mr Brougham attempted to bribe another victim not to give evidence. This was also reported to DC Ridley; and
• The car of another victim's wife and that victim's business were set alight. The victim reported both fires to DC Ridley. The initial finding was that the fires were accidental, although they were later found to have been started deliberately.

Mr Brougham then phoned Mr Van Colle and said “Give Alpha Optical a call and get them to drop the charges, you motherf***er. … Do you hear me? Do you hear me?” Mr Van Colle contacted DC Ridley about this phone call and provided DC Ridley with a written account of the call. DC Ridley called Mr Van Colle on 22 November and arranged to meet him the next day so that DC Ridley could take a statement.

On 22 November 2000, Mr Van Colle was shot dead by Mr Brougham as he left work.

The matter was referred to the Police Disciplinary Panel, who found that DC Ridley had failed to perform his duties to the required standard in relation to the incident.

The applicants then brought a claim in the High Court against the police claiming damages for a breach of articles 2 and 8 of the Convention.

The High Court found that the police acted in violation of articles 2 and 8 of the Convention by failing to discharge the positive obligation on the police to protect Mr Van Colle's life. The High Court referred to the test in Osman v the United Kingdom (28 October 1998, Reports of Judgements and Decisions 1998 – VIII). This imposes a positive obligation on authorities to take action where they know, or ought to know, that there is a “real and immediate risk” to the life of an identified individual from the criminal acts of another, and that the authorities failed to take reasonable measures within the scope of their powers to avoid that risk.

However, the High Court also drew on more recent cases to find that where persons are required by a state to perform certain duties on its behalf, which may expose them to risk, the Osman threshold is too high.

The High Court found that:

• DC Ridley should have contacted or arrested Mr Brougham after the initial intimidating phone calls;
• DC Ridley failed to assess the information about the two fires in the context of the past threats and intimidation; and
• a disturbing pattern of behaviour had emerged which required immediate action.

The police appealed to the Court of Appeal which unanimously rejected the appeal. They then appealed to the House of Lords, who upheld the appeal both in relation to article 2 and article 8 of the Convention.

The applicants then applied to the Court.

Legislative Framework

Article 2 of the Convention states:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Article 8 of the Convention states:

Everyone has the right to respect for his private and family life, his home and his correspondence.

Decision

The Court held that there had been no violation of articles 2 or 8 of the Convention.

The Court noted that article 2 may imply a positive obligation on authorities to take preventive measures to protect an individual whose life is at risk from the criminal acts of another.  In doing so, the Court found that the appropriate test is to be found in Osman.

The Court also found that the fact that a state placed the individual in a vulnerable position is only one of the relevant circumstances of the case to be assessed, and does not lower the threshold of the Osman test.

The Court found that there were not sufficient circumstances to indicate that Mr Van Colle had a reason to fear for his life, and the authorities did not know, or ought to have known, of a “real and immediate risk” to Mr Van Colle's life. This was particularly due to the varied nature of the threatening behaviour displayed by Mr Brougham which, while threatening, did not indicate he would be likely to kill a witness.

The Court noted that the applicants did not complain about acts directed against them and the application did not give rise to issues relevant to Mr Van Colle's article 8 rights which were substantially distinct from the matters considered under article 2. Accordingly, the Court's finding regarding article 2 supported a finding that there was no breach of article 8.

Relevance to the Victorian Charter

This case has relevance to the Victorian Charter of Human Rights and Responsibilities Act 2006 because the Charter also contains a right to life (section 9). The wording of article 2 of the Convention is slightly different to section 9 of the Charter, which states “Every person has the right to life and has the right not to be arbitrarily deprived of life”. However, the rights set out in the Charter are rights that Parliament specifically seeks to protect and promote, and public authorities including Victoria Police must not act in a way that is incompatible with a human right (section 38(1)).

This case could therefore provide some guidance as to the scope of section 9 of the Charter and, more specifically, the correct test to be applied in determining whether public authorities such as the police have fulfilled their obligation to act consistently with the right to life.

This decision is available online at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114473

Tamsin Webster is a lawyer at Maddocks.