Smith v Chief Constable of Sussex Police
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR,Lord Justice Sedley,Lord Justice Rimer,Lord Justice Pill |
| Judgment Date | 05 February 2008 |
| Neutral Citation | [2007] EWCA Civ 325,[2008] EWCA Civ 39 |
| Docket Number | Case No: B2/2007/0646,Case No: A2/2006/0640 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2008 |
[2007] EWCA Civ 325
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mrs Justice Cox
Sir Anthony Clarke Mr
Lord Justice Sedley and
Lord Justice Lloyd
Case No: A2/2006/0640
Monica Carss-Frisk QC and Julian Waters (instructed by Lynch, Hall & Hornby) for the Claimants
Edward Faulks QC and Edward Bishop (instructed by Weightmans) for the Defendant
Hearing dates: 11 to 13 December 2006
This is the judgment of the court to which all members have contributed.
Introduction
On 10 March 2006 Cox J handed down a judgment in which she held that the appellant, the Chief Constable of the Hertfordshire Police, acted unlawfully in violation of articles 2 and 8 of the European Convention on Human Rights ('the Convention') by failing to discharge the positive obligation of the police to protect the life of Giles Van Colle, who was murdered on 22 November 2000. We will call him 'Giles'. The respondents are his parents, the first respondent being the administrator of his estate. Their claim was brought in reliance upon section 6(1) of the Human Rights Act 1998 ('the HRA') and proceedings were brought under section 7. The judge awarded damages under section 8. She awarded damages in the total sum 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. She also ordered the appellant to pay the costs, gave permission to appeal and granted a stay of execution pending the appeal. In this appeal the appellant challenges the decisions of the judge on both liability and quantum. We consider liability first.
Liability
Background
Just after 7.25 pm on the evening of 22 November 2000 Giles was shot dead near where he worked. He was 25 years of age. On 4 March 2002 Daniel Brougham, whom (like the judge) we will call 'Brougham', was convicted of Giles' murder and sentenced to life imprisonment. Giles was murdered just days before he was due to give evidence for the prosecution at Brougham's trial on charges of theft. The officer in charge of the investigation of the theft charges for which Brougham was to stand trial was DC Ridley of the Hertfordshire Police. He had been a police officer since 1987 and a detective constable since 1994.
After Brougham's conviction the respondents made a complaint to the Police Complaints Authority. As a result of the subsequent investigation, disciplinary charges were brought against DC Ridley and dealt with at a disciplinary hearing, which the respondents were allowed to attend in part. On 12 June 2003 he was found guilty of failing to perform his duties conscientiously and diligently in connection with intimidation by Brougham of both Giles and another prosecution witness called Peter Panayiotou.
In this action the respondents alleged, as the judge put it, that Giles' murder occurred after a number of threats and incidents of witness intimidation by Brougham against both Giles and other witnesses during the autumn of 2000 of which DC Ridley was or ought to have been aware and yet no action was taken by him to protect Giles against the risk of serious harm. The respondents' case before the judge and before us was and is that, by failing Giles in this way the appellant, being vicariously responsible for the acts and omissions of his officers, failed in his duty to act compatibly with Giles' rights under articles 2 and 8 of the Convention and acted unlawfully. They rely upon section 6(1) of the HRA. The appellant does not rely upon any limitation defence and concedes that the respondents are victims within the meaning of section 7. Moreover, he does not suggest that he is not the appropriate defendant if the case is otherwise made out.
Before the judge the appellant did not seek to challenge the conclusions of the disciplinary tribunal but submitted that they did not amount to an infringement of Giles' Convention rights. The judge disagreed. Mr Faulks submitted on behalf of the appellant that she was wrong to do so. He also submitted that she was wrong to find a causal link between any infringement of Giles' rights and his death. He therefore submitted that for one or other or both of those reasons the judge should have dismissed the respondents' claim.
The matter came before the judge in an unfortunate way. The action originally came on for trial in the summer of 2005 before Wakerley J. He heard evidence over a period of seven days in June 2005 and reserved judgment but, before he gave judgment, he tragically died. As the judge put it, he had been unable to prepare a draft judgment and enquiries revealed no conclusion or partial conclusion that might have been helpful to the parties. It was then sensibly agreed between the parties that the case would be concluded before a new judge on the basis of the transcripts of the evidence given before Wakerley J and otherwise on the basis of the documents, without either party calling oral evidence. The judge accordingly heard detailed submissions on behalf of the parties before giving her judgment. It was agreed before her (and before us) that the case turned largely on the inferences that could properly be drawn from the evidence.
The judge identified four key questions as follows:
i) On the particular facts of this case were the circumstances such that DC Ridley was under a duty, pursuant to article 2 of the Convention, to take preventive protective measures in relation to Giles?
ii) On those facts did DC Ridley act in breach of that duty and therefore incompatibly with Giles' right to life under article 2?
iii) On those facts did DC Ridley act in breach of that duty and therefore incompatibly with Giles' right to respect for family and private life under article 8?
iv) If the answers to those questions are all in the affirmative, what is the appropriate test for causation and quantification of loss and what remedy, if any, should be granted?
The judge answered the first three questions in the affirmative. Mr Faulks submitted that she was wrong to do so. In particular he submitted that she failed to have sufficient regard to the necessity to avoid hindsight. He submitted that the judge's approach to the facts did not reflect the difference between (as he put it) the perspective available to her as the judge and that which presents itself to a busy police officer. Mr Faulks further submitted that, if she had reflected that difference and avoided the pitfalls of hindsight, she would have reached different conclusions. Finally he submitted that, in the particular circumstances described above, this court is in no worse position than the judge to assess the evidence.
Mr Faulks stressed the fact that the respondents did not frame their claim in negligence before the judge and they have not done so before us. That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of the House of Lords in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 and Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495. Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and, indeed, the judge's judgment gives the respondents some encouragement, the respondents have never advanced their case on that basis and it seems to us to be fraught with difficulty. We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the respondents.
Mr Faulks further submitted that the judge did not pay sufficient regard to the reasoning of the European Court of Human Rights in Osman v United Kingdom (2000) 29 EHRR 245 and that, if she had, she would have appreciated that, although the unchallenged facts of Osman were more extreme than the facts here, the court in Osman did not find a breach of article 2 and she would have reached a different conclusion on the facts of this case.
Mr Faulks drew our attention to the fact that all the cases before Osman involved deliberate acts on the part of the state and submitted that the courts should limit the type of case in which an infringement of article 2 should be held to have taken place. Threats to witnesses are sadly commonplace. Home Office/ACPO statistics show that 10 per cent of crimes lead to incidents of intimidation. A number of outstanding cases await, it was said, the outcome of this case and to adopt the judge's approach would have significant resource implications. Mr Faulks submitted that the judge's approach ignored or paid insufficient regard to the policy considerations in Osman, which included at least some of the same considerations as in the common law cases of Hill and Brooks. In short, he submitted that if the judge is right, the HRA will not so much have brought rights home as have created a parallel system of remedies which involves a real tension between the HRA and the common law.
Before addressing those issues, it seems to us that we should consider the facts found by the judge and the appellant's criticisms of them in order to have a firm factual basis for sensible conclusions in this appeal.
The facts
In considering the facts and the conduct of DC...
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