Contrary to what was stated in the Weekly Law Reports, and reflected in an earlier case-note on the Court of Appeal Decision ([2008] C.L.J. 15), the defendant in Van Colle v. Chief Constable of Hertfordshire Police was given leave to appeal; and last July the House of Lords reversed the decisions of the courts below, acquitting the police of liability. In the process they reinserted in the bottle the genie that the Court of Appeal had seemingly allowed to escape from it, and pushed the cork down firmly on top of him as well: see [2008] UKHL 50, [2008] 3 W.L.R 593.
To remind us, this was the case in which a criminal first tried to intimidate the key prosecution witness by a series of mafia-style threats and attacks, and when these tactics failed, silenced him for ever with a bullet. Outraged by what they saw as the culpable failure of the Hertfordshire police to protect their son, the witness's bereaved parents sued the Chief Constable of Hertfordshire for damages under sections 6 and 7 of the Human Rights Act 1998, claiming that the negligence of the police had violated their son's rights under Article 2 of the European Convention on Human Rights (the right to life). At first instance and in the Court of Appeal their claim succeeded: so demonstrating, apparently, that the Human Rights Act might provide a remedy in a situation where, 20 years ago, courts had ruled out claims based on the tort of negligence on grounds of public policy.
In reversing the Court of Appeal decision the House of Lords accepted – as it had to, in the light of the Strasbourg case-law – that the negligent failure of the police to protect its citizens against dangerous criminals can in principle result in the State being in breach of its obligations under Article 2 and hence liable to compensate their bereaved relatives. Indeed, in Osman v. UK (1998) 29 E.H.R.R. the Strasbourg Court had said that this obligation arises where
… the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
To the untutored eye, this test looks much like the sort of test the English courts would apply in deciding if the police were negligent, assuming liability in the tort of negligence existed; and as a police disciplinary panel had found that the detective in charge of the case in which Van Colle junior was the key witness had “failed to perform his duties conscientiously and diligently”, one might also have thought – as the trial judge and the Court of Appeal had thought – that in this case the Van Colle parents were bound to win. But the House of Lords thought otherwise. By implication, though without saying so expressly, they interpreted the Osman test as being considerably more stringent than one of simple negligence; and having done so, then decided that the various bungles committed by the Hertfordshire police did not put them on the wrong side of it. And so, despite having won at first instance and before a unanimous Court of Appeal, in the end the Van Colle parents lost.
This outcome prompts two thoughts. The first is how different the same story can sound when different people tell it. As recounted by the Court of Appeal the facts of the Van Colle case shrieked negligence, but as reinterpreted by the House of Lords, the mistakes of the police emerge as relatively minor. (Lord Bingham's speech, it must be said, reminds one of the ancient joke: “Yes, I did have a love-child once, but it was only a very small one!”) The second thought is that if a Human Rights Act claim failed in the Van Colle case, such claims are likely to fail in most other cases too.
The House of Lords heard the Van Colle case together with a defence appeal in Smith v. Chief Constable of Sussex [2008] EWCA Civ 29 ([2008] C.L.J. 239). In this case, the facts of which were rather similar, the victim, who survived, had sued the police not for damages under the Human Rights Act but in the tort of negligence. His claim was initially struck out as showing no cause of action, but the Court of Appeal, with an approving nod towards their earlier decision in the Van Colle case, had reinstated it. In their view, Hill v. Chief Constable of Sussex [1989] A.C. 53 and the rest of the well-known case-law that rules out negligence claims in cases of this type on grounds of public policy now fell to be reinterpreted in the light of the Human Rights Act. But this line of reasoning the House of Lords, by a majority, rejected. The policy grounds identified in those cases, said the majority, remain valid; and so the Court of Appeal decision in Smith v. Chief Constable of Sussex fell to be reversed as well.
As victims of crimes of violence already receive payment from the public purse via the Criminal Injuries Compensation Commission the outcome in these two cases may be justified in terms of “distributional justice”. But is it for money that people like the Van Colles sue the police in cases of this type? Their real motive, one suspects, is the desire for a proper investigation into what went wrong, with the possibility of a public condemnation at the end. That the law of tort in this area fulfils a “vindicatory function” was recently affirmed by the House of Lords in Ashley v. Chief Constable of Sussex [2008] UKHL 25, [2008] 2 W.L.R. 975 ([2008] C.L.J. 461), where it held that the relatives of man whom the police had shot in mistake for a dangerous criminal could sue them on behalf of his estate for damages in the tort of battery, even though the police were prepared to settle the family's claim for financial loss out of court. The tension between that decision and the present one is obvious.
