UK Court of Appeal Considers Positive Obligations Arising from Right to Life

Van Colle & Anor v Hertfordshire Police [2007] EWCA Civ 325 (24 April 2007)

The UK Court of Appeal has held that the right to life imposes a positive obligation on responsible authorities to take reasonable steps to safeguard the lives of those in their jurisdiction as against known and immediate risks.

Facts This was an appeal from a decision of the UK High Court to the UK Court of Appeal. The High Court held that the appellant, the Chief Constable of the Hertfordshire Police, acted unlawfully in violation of arts 2 and 8 of the European Convention on Human Rights. It was held that the appellant had failed to discharge the positive obligation of the police to protect the life of a witness, Giles Van Colle. Giles was murdered in November 2000 by Daniel Brougham after a number of threats and incidents of witness intimidation by Brougham. Giles was supposed to give evidence for the prosecution at Brougham’s trial on charges of theft. It was alleged that Brougham had stolen from Giles’ optometrist store when he was employed by Giles. The respondents were the victim’s parents who were the administrators of his estate. The respondents’ case was that the appellant infringed Giles’ rights under arts 2 and 8 of the Convention. Their claim was brought in reliance upon s 6(1) of the Human Rights Act 1998 (UK) and proceedings were brought under s 7. The judge at first instance awarded damages of £50,000, made up of £15,000 in respect of the distress suffered by Giles in the weeks leading up to his death and £35,000 in respect of his parents’ grief and suffering. In this appeal the appellant challenged the decisions of the judge on both liability and quantum. Legal Principles There was no dispute that if the appellant did infringe Giles’ rights under arts 2 and 8 of the Convention, then the appellant would be liable to the respondents under sections 6 and 7 of the HRA and the Court of Appeal had power to award damages under s 8 of the HRA. Article 2(1) of the Convention states: 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. The Court referred to Osman v United Kingdom (2000) 29 EHRR 245 as a source of the principles to be applied in this case. In Osman, the European Court of Human Rights held that the authorities of a Member State, including the police, can be under a positive obligation imposed by art 2 in some circumstances to take preventive, operational measures to protect a person whose life is at risk from the criminal acts of another. Issue The central issue in this case was the scope, nature and extent of the positive obligation on a State to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. Findings The Court of Appeal upheld the decision of the judge at first instance in relation to liability. It was held that art 2(1) of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It was accepted that art 2 of the Convention may imply, in certain well-defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The Court of Appeal held that it was sufficient for an applicant to show that: • there was a real and immediate risk to life; • the risk was to an identified individual or individuals; • the authorities knew or ought to have know about the risk; and • the authorities failed to take measures within the scope of their powers which, judged reasonably, they might have been expected to take to avoid the risk. On the facts in this case, the Court of Appeal agreed with the trial judge, holding that the numerous threats and incidences of intimidation by Brougham created a risk to the life of Giles. That risk was found to be immediate and likely to persist up until Giles was to give evidence at trial. Giles was clearly identified as an individual and not simply a member of the community. He was to be a witness for the prosecution at a criminal trial. It was upheld that the authorities ought to have been aware that there was a risk to Giles’ life and that they ought to have given consideration to the possible need to protect Giles. The Court therefore concluded that the police infringed Giles’ right to life under art 2 of the Convention and dismissed the appeal in regards to liability. Quantum The Court of Appeal held that the amount of damages awarded by the trial judge was too great by comparison with amount of other awards granted by UK courts and the European Court of Human Rights. The Court accordingly reduced the amount of damages awarded to £25,000 overall, made up of £10,000 to the first respondent as personal representative of Giles’ estate and £7,500 to each of the respondents personally. Implications for the Victorian Charter Section 32(2) of the Charter allows the judgments of foreign courts to be used in interpreting Charter rights. This judgment will be relevant to future consideration of the right to life contained in s 9 of the Charter. Particularly relevant is the finding that the right to life imposes a positive obligation on governments to take reasonable steps to safeguard the lives of those in their jurisdiction as against known and immediate risks. The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2007/325.html. Robert Kovacs, Human Rights Law Group, Mallesons Stephen Jaques