Van Colle and Another v Chief Constable of the Hertfordshire Police
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE COX DBE,The Hon. Mrs. Justice Cox |
| Judgment Date | 30 July 2008 |
| Neutral Citation | [2006] EWHC 360 (QB) |
| Docket Number | Case No: HQ03X03534 |
| Court | Queen's Bench Division |
| Date | 30 July 2008 |
[2006] EWHC 360 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Cox DBE
Case No: HQ03X03534
(1) Irwin Van Colle (administrator Of The Estate Of Giles Van Colle Deceased)
(2. Corinne Van Colle
MONICA CARSS-FRISK QC and JULIAN WATERS (instructed by Lynch, Hall & Hornby, Solicitors, Middlesex) for the Claimants
EDWARD FAULKS QC and EDWARD BISHOP (instructed by Weightmans, Solicitors, 52–54 High Holborn, London) for the Defendant
Hearing dates: 13 th and 14 th December 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
Just after 7.25 p.m. on the evening of 22 nd November 2000, just days before he was due to give evidence for the Prosecution at the trial of Daniel Brougham on charges of dishonesty, the Claimants' son, Giles Van Colle (Giles), was shot dead near to his place of work. He was just 25 years old. Subsequently, after a trial ending on 4 th March 2002, Brougham was convicted of Giles' murder. He is currently serving the sentence of life imprisonment imposed upon him as a result of the jury's unanimous verdict.
The police officer in charge of the investigation and prosecution of theft charges brought against Brougham, in connection with which Giles was to give evidence for the Crown, was DC Ridley of the Hertfordshire Police, who had been a police officer with Hertfordshire since 1987 and a detective constable since 1994. After Brougham's conviction for murder the Claimants made a complaint to the Police Complaints Authority and an investigation took place into the circumstances in which the murder had occurred. As a result disciplinary charges were brought against DC Ridley and dealt with at a Misconduct Hearing. On 12 th June 2003 he was found guilty by the Disciplinary Panel of failing to perform his duties conscientiously and diligently in connection with intimidation by Brougham of both Giles and another Prosecution witness in the same trial, Peter Panayiotou. The Panel found that the evidence revealed "an escalating situation of intimidation" in respect of both Giles and the other witness; that DC Ridley was in "a unique position … with the fullest picture of the developing situation"; and that Brougham's arrest "under these circumstances was both necessary and proportionate and was likely to have been beneficial to the ultimate outcome of the case".
As a result of the evidence concerning their son's death that emerged at the disciplinary hearing, which they were permitted to attend in part, the Claimants sought legal advice. In November 2003 they commenced these proceedings, which are brought under section 7(1) of the Human Rights Act 1998. They allege, essentially, 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 whatsoever was taken by him to protect Giles against the risk of serious harm. They contend that, by failing to protect Giles in these circumstances the Defendant, as vicariously liable for the acts and omissions of officers in the Hertfordshire Constabulary, failed in his duty to act compatibly with Giles' rights under Articles 2 and 8 of the European Convention on Human Rights (the Convention) and thereby acted unlawfully contrary to section 6(1) of the 1998 Act. They seek both a declaration to that effect and an award of damages, contending that the appropriate protective measures which were reasonably required in the circumstances would have been likely to save Giles' life, or would have had a real prospect of avoiding the tragic outcome.
No limitation point arises under section 7(5), the Defendant having indicated his consent in the circumstances to an order that the time for bringing the proceedings should be extended, and this court having made the order dated 14 th July 2004 acknowledging the Defendant's abandonment of the limitation defence. Nor is any point taken on the victim status of the Claimants for the purposes of bringing these proceedings, the Defendant accepting both that the parents of a deceased are victims for the purposes of bringing a complaint on their own behalf that Article 2 and Article 8 rights have been violated, and that the Claimant's father, as Administrator, can bring a claim on behalf of Giles' estate.
As is clear from the Amended Defence and the skeleton arguments prepared on his behalf, the Defendant also accepts and agrees with the findings of the Disciplinary Panel, and accepts that DC Ridley gave inadequate consideration to the steps he could have taken in response to the threats reported to him. He resists the claim, however, on the basis that the criticisms of DC Ridley's conduct in failing to act have all been made with the benefit of hindsight; that at the time of the murder no-one could reasonably have predicted that Brougham would take such a drastic step; and that the circumstances surrounding DC Ridley's admitted "errors of judgment" or "operational errors" cannot be said to be so exceptional as to be incompatible with Giles' Convention rights and unlawful under the Act. Further, the Defendant contends that the Claimants cannot prove a causative link between any violation of Convention rights found and the damage sustained; that is, they cannot show, even if DC Ridley had taken appropriate, protective steps, that any action taken by him would probably have prevented Giles' death. In these circumstances he contends that the Claimants are not entitled to declaratory relief or to damages and that their claim should be dismissed.
The matter came on for trial in the summer of 2005 before Mr. Justice Wakerley, who allowed an application to amend the Particulars of Claim at the start of the hearing and who then heard evidence and submissions over the course of seven days, between the 7 th and 15 th June, before reserving judgment. Tragically, he died shortly afterwards and before he was able to give his judgment. He had been unable to prepare any draft and enquiries revealed no conclusion or partial conclusion that might have been helpful for the parties.
In these unusual circumstances, at a directions hearing before Mr. Justice Eady on 5 th October 2005, it was agreed between the parties and ordered that the case would be concluded by a new trial judge, on the basis of the evidence contained in the full transcript of the trial and otherwise upon the documents. The matter therefore came before me on 13 th December 2005 when, over the course of two days, I heard detailed submissions on the facts and the law from counsel for both parties, for whose assistance I am extremely grateful. I have read the trial documents and the transcripts with care. Fortunately, this is a case where, as both counsel observed, there was in the event little dispute on the facts; and what factual dispute there was did not need to be resolved in order to determine the agreed issues. This was not, therefore, a case which turned on the credibility of a particular witness or witnesses, so as to disadvantage a judge who had not seen or heard them give evidence. It involved, rather, the interpretation of those facts and the inferences legitimately to be drawn from them, together with determination of the applicable legal principles and conclusions on the following issues:
) 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?
) On those facts did DC Ridley act in breach of that duty and therefore incompatibly with Giles' right to life under Article 2?
) On those facts did DC Ridley act incompatibly with Giles' and or the Claimants' rights to respect for family and private life under Article 8?
) If the answers to these questions are in the affirmative, what is the appropriate test for causation and quantification of loss and what remedy, if any, should be granted?
THE FACTS
Background
Giles Van Colle was born on 21 st April 1975. After leaving school he qualified as an optometrist and, after working for a number of other optical practices, he then purchased an optical practice at Mill Hill in August 1999. His mother worked there for a period, between April and September 2000, assisting in reception and generally with administration. That Giles was an adored son and brother, an able optometrist with a successful practice and a greatly respected member of his community, whilst not directly relevant to the issues to be determined in this case, are nevertheless acknowledged facts. From all I have seen, and there is no dispute about it, Giles was an exceptional young man with a very promising future. His parents' grief and anguish at his untimely death and the circumstances in which it occurred were fairly acknowledged by Mr. Faulks QC, appearing for the Defendant, in his submissions.
Daniel Brougham was 32 years of age in November 2000. His real name is apparently Ali Amelzadeh and he came to this country from Iran in about 1991, thereafter using a number of aliases, including the name Lee Jordan, by which name he was known initially to Giles, and Daniel Brougham. Prior to his conviction for Giles' murder in 2002 he had two other convictions, one in 1993 for an offence of common assault and one in 2000 for theft of a vehicle. In March 1999 DC Ridley had arrested him for suspected theft of equipment from an optical company...
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