Chief Constable of Hertfordshire Police v. Van Colle et al., (2008) 393 N.R. 200 (HL)

• Case Date: July 30, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 393 N.R. 200 (HL)

Hertfordshire Police v. Van Colle (2008), 393 N.R. 200 (HL)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. JL.081

Chief Constable of the Hertfordshire Police (original appellant and cross-respondent) v. Van Colle (administrator of the estate of GC (deceased)) and another (original respondents and cross-appellants)

Smith (FC) (respondent) v. Chief Constable of Sussex Police (appellant)

([2008] UKHL 50)

Indexed As: Chief Constable of Hertfordshire Police v. Van Colle et al.

House of Lords

London, England

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood

July 30, 2008.

Summary:

The issue raised on these two appeals was whether the police owed a duty to potential crime victims, either under human rights legislation (the Van Colle appeal) or at common law (the Smith appeal), in situations where the police were alerted to threats that a criminal might kill or inflict violence on the victims but took no action to prevent that occurrence.

The House of Lords unanimously held that while liability could be imposed on authorities under art. 2 of the European Convention on Human Rights in certain situations, the Van Colle case did not meet the test for imposition of liability. The House, per Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood (i.e., the majority), affirmed the core principle in Hill v. Chief Constable of West Yorkshire (House of Lords, 1998) and Brooks v. Commissioner of Police of the Metropolis (House of Lords, 2005), that there was no common law duty of care on police to protect individuals against harm caused by criminals. Lord Bingham of Cornhill dissented on the duty of care issue, opining that the court should adopt a liability principle which imposed a duty of reasonable performance of a public function.

Police - Topic 2204

Duties - General duties - Common law duties - Hill v. Chief Constable of West Yorkshire (House of Lords, 1998) and Brooks v. Commissioner of Police of the Metropolis (House of Lords, 2005) contained the core principle that in the absence of special circumstances the police owed no common law duty of care to protect individuals against harm caused by criminals (e.g., in combatting and investigating crime) - In a 2009 appeal, Lord Bingham of Cornhill suggested adopting a liability principle which would impose a duty of reasonable performance of a public function - He stated that "... if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed. I shall for convenience of reference call this 'the liability principle'. I do not consider the liability principle to be in any way inconsistent with the ratio of either Hill ... or Brooks ..." - The House of Lords, per Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood (i.e., the majority) reviewed the rationale for the core principle in Hill and Lord Bingham of Cornhill's liability principle - In the result, the majority favoured preserving the core principle in Hill (i.e., no common law duty) - See paragraphs 42 and 61, 72 to 83, 88 to 103, 105 to 110 and 119 to 141.

Police - Topic 2204

Duties - General duties - Common law duties - Smith and Jeffrey lived together as partners - When Smith wanted a few days break from the relationship, he was assaulted by Jeffrey, who was arrested and kept overnight, but no prosecution followed - When Smith ended their relationship permanently, Jeffrey sent a stream of violent, abusive and threatening telephone, text and internet messages, including death threats to Smith - Smith reported this to police, but nothing was done by police to stop the behaviour - Subsequently, Jeffrey attacked Smith with a claw hammer, severely injuring him - Jeffrey was convicted and sentenced to 10 years' imprisonment - Smith sued the Chief Constable of Sussex Police under the common law of negligence, claiming that, based on the information available to them, the Sussex Police owed him a duty to take steps to prevent Jeffrey from causing him injury - The House of Lords, per Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood (i.e., the majority) held that Smith's claim should be struck as there was no duty of care owed by the police in this case which was governed by the core principle in Hill v. Chief Constable of West Yorkshire and affirmed in Brooks v. Commissioner of Police of the Metropolis - That principle being that in the absence of special circumstances the police owed no common law duty of care to protect individuals against harm caused by criminals - Lord Bingham of Cornhill, dissenting on this issue, opined that on the basis of the liability principle he formulated, that the police owed Smith a duty of care where Smith provided the police with credible evidence that an identifiable individual presented a specific and imminent threat to his life or safety - See paragraphs 42 to 61, 72 to 83, 88 to 103, 105 to 110 and 119 to 141.

Police - Topic 2205

Duties - General duties - Statutory duties - Van Colle reported to police (Ridley) that he was verbally threatened over the phone twice by a former thieving employee (Brougham), against whom he was going to testify - Ridley also had a report that Brougham had attempted to bribe another witness - Subsequently, Van Colle was shot dead by Brougham, who was subsequently convicted of murder - Ridley was disciplined and fined for failing to perform his duties conscientiously - Van Colle's parents sued the Chief Constable of the Hertfordshire Police, claiming relief under art. 2 of the European Convention on Human Rights (i.e., because the police failed to discharge a positive obligation to protect the life of their son) - The House of Lords unanimously held that Van Colle had no claim against the Chief Constable under art. 2 - In Osman v. United Kingdom, the Strasbourg court held that in order for there to be a positive obligation on national authorities under art. 2 to take preventative measures to protect an individual whose life was at risk from the criminal acts of another, it had to be established to the court's satisfaction that 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 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 - That test was not met in this case - The warning signs were insufficient to give rise to an apprehension of such violence - See paragraphs 28 to 41, 64 to 71, 84 to 87, 105, 114 to 118.

Police - Topic 2209

Duties - General duties - Duty to take preventive actions and investigate - [See both Police - Topic 2204 and Police - Topic 2205 ].

Police - Topic 5028

Actions against police - Negligence - Failure to warn and protect - [See both Police - Topic 2204 ].

Police - Topic 5030

Actions against police - Negligence - Duty to public - [See both Police - Topic 2204 ].

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation - [See both Police - Topic 2204 ].

Police - Topic 5288

Actions against police - Defences - Immunity (incl. lack of duty of care) - [See first Police - Topic 2204 ].

Torts - Topic 9154

Actions against police - Duty of care - Particular relationships - Claims against public officials, authorities or boards - Police officers and authorities - [See both Police - Topic 2204 ].

Cases Noticed:

Osman v. United Kingdom (1998), 29 E.H.R.R. 245 (E.C.H.R. Strasbourg Ct.), refd to. [paras. 28, 66, 85, 115].

Officer L., Re, [2007] N.R. Uned. 169; [2007] 1 W.L.R. 2135; [2007] UKHL 36, refd to. [paras. 30, 66, 116].

R. et al. v. Lord Saville of Newdigate et al. - see A.R. et al. v. Lord Saville of Newdigate et al.

A.R. et al. v. Lord Saville of Newdigate et al., [2002] 1 W.L.R. 1249; [2001] EWCA Civ. 2048 (C.A.), refd to. [paras. 34, 69, 116].

Edwards v. United Kingdom (2002), 35 E.H.R.R. 487 (E.C.H.R.), refd to. [paras. 35, 121].

Öneryildiz v. Turkey (2002), 39 E.H.R.R. 253, refd to. [para. 35].

Öneryildiz v. Turkey (2005), 41 E.H.R.R. 325, refd to. [para. 35].

Dorset Yacht Co. v. Home Office, [1970] A.C. 1004 (H.L.), refd to. [para. 42].

Smith et al. v. Littlewoods Organisation Ltd., [1987] A.C. 241; 73 N.R. 99 (H.L.), refd to. [para. 42].

Caparo Industries v. Dickman et al., [1990] 2 A.C. 605; 108 N.R. 81 (H.L.), refd to. [paras. 42, 139].

Hill Estate v. Chief Constable of West Yorkshire, [1989] A.C. 53; 102 N.R. 241 (H.L.), refd to. [paras. 45, 72, 89, 106, 123].

Brooks v. Commissioner of Police of the Metropolis et al., [2005] 1 W.L.R. 1495; 338 N.R. 1; [2005] 2 All E.R. 489; [2005] UKHL 24, refd to. [paras. 45, 72, 92, 106, 123].

Clough v. Bussan, [1990] 1 All E.R. 431 (Q.B.), refd to. [para. 50].

Ancell v. McDermott, [1993] 4 All E.R. 355 (C.A.), refd to. [para. 50].

Knightley v. Johns, [1982] 1 W.L.R. 349 (C.A.), refd to. [paras. 53, 79].

Costello v. Chief Constable of the Northumbria Police, [1999] 1 All E.R. 550, refd to. [paras. 53, 120].

Gibson v. Orr, 1999 SC 420 (Scot Ct. of Sess., Outer House), refd to. [paras. 53, 79].

Rigby v. Chief Constable of Northamptonshire, [1985] 1 W.L.R. 1242, refd to. [paras. 53, 79].

Glamorgan Coal Co. v. Glamorganshire Standing Joint Committee, [1916] 2 K.B. 206, refd to. [para. 54].

Glasbrook Brothers Ltd. v. Glamorgan County Council, [1925] A.C. 270 (H.L.), refd to. [paras. 53, 128].

Alexandrou v. Oxford, [1993] 4 All E.R. 328 (C.A.), refd to. [paras. 55, 80].

Kent v. Griffiths, [2001] Q.B. 36 (C.A.), refd to. [paras. 55, 80].

Capital & Counties plc v. Hampshire County Council, [1997] Q.B. 1004 (C.A.), refd to. [paras. 55, 80].

Osman et al. v. Ferguson et al., [1993] 4 All E.R. 344 (C.A.), refd to. [paras. 56, 90, 125].

X (Minors) v. Bedfordshire County Council - see P1 et al. v. Bedfordshire County Council.

P1 et al. v. Bedfordshire County Council, [1995] 2 A.C. 633; 185 N.R. 173 (H.L.), refd to. [para. 56].

OLL Ltd. v. Secretary of State for Transport, [1997] 3 All E.R. 897, refd to. [para. 57].

Wainwright et al. v. Home Office, [2003] N.R. Uned. 246; [2004] 2 A.C. 406; [2003] UKHL 53, refd to. [para. 58].

J.D. v. East Berkshire Community NHS Trust, [2003] EWCA Civ. 1151; [2004] Q.B. 558 (C.A.), refd to. [paras. 58, 98].

Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] Q.B. 335 (C.A.), refd to. [para. 74].

Swinney v. Chief Constable of Northumbria Police Force, [1997] Q.B. 464, refd to. [paras. 75, 120].

Human Rights and the House of Lords, Re (1999), 62 M.L.R. 159, refd to. [para. 81].

Kiliç v. Turkey (2000), 33 E.H.R.R. 1357 (Strasbourg Ct.), refd to. [para. 117].

J.D. v. East Berkshire Community Health NHS Trust et al., [2005] 2 A.C. 373; 337 N.R. 74 (H.L.), refd to. [para. 134].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Greenfield, [2005] N.R. Uned. 6; [2005] 1 W.L.R. 673 (H.L.), refd to. [para. 138].

Statutes Noticed:

European Convention on Human Rights, art. 2 [para. 28].

Authors and Works Noticed:

Macpherson Report - see United Kingdom, Report of the Stephen Lawrence Inquiry.

United Kingdom, Report of the Stephen Lawrence Inquiry (Macpherson Report) (1999), Cm. 4262-I, generally [para. 47].

Counsel:

Edward Faulks, Q.C., and Edward Bishop (Instructed by Weightmans LLP), for the original appellant in first appeal;

Edward Faulks, Q.C., and Edward Bishop (Instructed by Weightmans LLP), for the appellant in second appeal;

Monica Carss-Frisk, Q.C., Julian Waters and Iain Steele (Instructed by Lynch Hall Hornby), for the original respondents in first appeal;

Heather Williams, Q.C., and Guy Vassall-Adams (Instructed by Griffith Smith Farrington Webb), for the respondent in second appeal;

Nigel Giffin, Q.C., and Joanne Clement (Instructed by Treasury Solicitors), for the first intervenor in both cases, Secretary of State for the Home Department;

Dinah Rose, Q.C., Paul Bowen, Richard Hermer, Alison Gerry and Anna Edmundson (Instructed by Bhatt Murphy), for the second intervenors in both cases, Inquest, Justice, Liberty & Mind;

Tim Owen, Q.C., and Jessica Simor (Instructed by Equality & Human Rights Commission), for the third intervenors in both cases, Equality & Human Rights Commission.

Agents:

[Not disclosed.]

These appeals were heard on May 19-22, 2008, by Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood, of the House of Lords. The decision of the House was delivered on July 30, 2008, when the following opinions were filed:

Lord Bingham of Cornhill, dissenting in part - see paragraphs 1 to 61;

Lord Hope of Craighead - see paragraphs 62 to 83;

Lord Phillips of Worth Matravers - see paragraphs 84 to 103;

Lord Carswell - see paragraphs 104 to 110;

Lord Brown of Eaton-under-Heywood - see paragraphs 111 to 141.