Van Colle and Another v Chief Constable of the Hertfordshire Police

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HOPE OF CRAIGHEAD,LORD PHILLIPS OF WORTH MATRAVERS,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date30 July 2008
Neutral Citation[2008] UKHL 50

[2008] UKHL 50

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Phillips of Worth Matravers

Lord Carswell

Lord Brown of Eaton-under-Heywood

Chief Constable of the Hertfordshire Police
(Original Appellant and Cross-respondent)
and
Van Colle (administrator of the estate of GC (deceased))

and another

(Original Respondents and Cross-appellants)
Smith (FC)
(Respondent)
and
Chief Constable of Sussex Police
(Appellant)

Original Appellant in first appeal:

Edward Faulks QC

Edward Bishop

(Instructed by Weightmans LLP)

Appellant in second appeal:

Edward Faulks QC

Edward Bishop

(Instructed by Weightmans LLP)

Original Respondents in first appeal:

Monica Carss-Frisk QC

Julian Waters

Iain Steele

(Instructed by Lynch Hall Hornby)

Respondent in second appeal:

Heather Williams QC

Guy Vassall-Adams

(Instructed by Griffith Smith Farrington Webb)

Interveners (in both cases)

First Intervener (Secretary of State for the Home Department)

Nigel Giffin QC

Joanne Clement

(Instructed by Treasury Solicitors)

Second Interveners (Inquest, Justice, Liberty & Mind)

Dinah Rose QC

Paul Bowen, Richard Hermer

Alison Gerry, Anna Edmundson

(Instructed by Bhatt Murphy)

Third Interveners (Equality & Human Rights Commission)

Tim Owen QC

Jessica Simor

(Instructed by Equality & Human Rights Commission)

LORD BINGHAM OF CORNHILL

My Lords,

1

In these two appeals, heard together, there is a common underlying problem: if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?

2

The two appeals arise on different facts and in a different way:

(1) In the first (Van Colle) case the threat was made by a man known in the case as Daniel Brougham against Giles Van Colle ("Giles") and culminated in the murder of Giles by Brougham. In the second (Smith) case, the threat was made against the respondent (Stephen Paul Smith) by his former partner (Gareth Jeffrey) and culminated in the infliction of serious injury on Mr Smith by Jeffrey.

(2) In the Van Colle case the claimants are Giles' parents, suing on behalf of his estate and on their own behalf. In the Smith case, Mr Smith is the only claimant, suing on his own behalf.

(3) In the Van Colle case, the claim is brought under sections 6 and 7 of the Human Rights Act 1998, in reliance on articles 2 and 8 of the European Convention on Human Rights, and no claim is made under the common law. In the Smith case the claim is made under the common law alone, and no claim is made under the Human Rights Act.

(4) In the Van Colle case there has been a full trial in which judgment was given for the claimants and damages awarded, and the Court of Appeal has upheld that judgment subject to a reduction in the damages. In the Smith case there has been no trial: Mr Smith's proceedings were struck out at first instance on the application of the appellant Chief Constable but were restored and remitted for trial on Mr Smith's successful appeal to the Court of Appeal. Thus in Van Colle there has been a finding of violation of article 2. In Smith the question of violation or breach does not at this stage arise: the only question is whether the Chief Constable owes a duty; only if it is held that he does or may will the question of breach arise, but that is not a question now before the House in Smith. Thus the House must consider the susceptibility of the police to claims for civil redress both at common law and under the 1998 Act.

Van Colle: the facts

3

In March 1999 DC Ridley of the Hertfordshire Police arrested Brougham (under another name) on suspicion of theft from an optical firm called "Southern Counties". Brougham was released without charge.

4

From September to December 1999 Giles employed Brougham as a technician dispenser at his optical practice in Mill Hill. After Brougham had been working for Giles for some weeks they had an argument which culminated in a physical confrontation. On Christmas Eve 1999 Brougham did not report for work, claiming to be unwell, and never returned. His departure was followed by some contentious correspondence.

5

On 17 February 2000 DC Ridley re-arrested Brougham on suspicion of theft from Southern Counties and searched Brougham's garage. He found a number of items of optical equipment which he suspected of being stolen. He showed these to Giles who confirmed that some of them were his and that he had not given Brougham permission to take them. He made statements to this effect. On 23 April 2000 Brougham was again arrested and was charged with three offences of theft and obtaining property by deception. He was bailed unconditionally to attend Stevenage Magistrates' Court. The victims were said to be Southern Counties, Giles and Alpha Optical, a company owned and run by Mr Peter Panayiotou. The total amount involved in the charges was about £4000. The items stolen from Giles were worth about £500.

6

On 10 August 2000 Brougham telephoned Mr Panayiotou and offered to pay for the equipment he had taken from Alpha. An arrangement was made for Brougham to meet a representative of Alpha the next day to hand over the money but Brougham cancelled it. Mr Panayiotou reported this to DC Ridley who took statements. Somewhat earlier Brougham offered a Mr Heward of Southern Counties £1000 not to give evidence, but Mr Heward did not report this approach and DC Ridley did not learn of it at the time.

7

On 24 September 2000 Giles' car was set on fire outside his parents' home in Wembley. A firefighter who attended told the family that the fire had been started accidentally by an electrical fault and the local police did not regard the fire as suspicious. Mr Van Colle did not report the incident to DC Ridley. In a letter dated 10 November 2000 the Van Colles' insurers passed on an investigator's conclusion that the fire was consistent with a malicious vandal attack, but the Van Colles did not pass on this information to DC Ridley.

8

On 13 October 2000 Brougham telephoned Mr Panayiotou and offered him a bribe not to give evidence. Mr Panayiotou immediately reported this to DC Ridley.

9

Also on 13 October Brougham telephoned Giles at his practice and said words to the effect: "I know where you live. I know where your businesses are and where your parents live. If you don't drop the charges you will be in danger". Giles was shocked by the call and told a customer he had just received a death threat. He dialled 999 and spoke to DC Campbell at Colindale Police Station who recorded:

"the caller said words very like the following: Drop the charges, we know where you live and where your parents live and where your business is. You'll be in trouble (might have said danger) if you don't … The voice sounded to the victim like a former thieving employee [Brougham] … currently under investigation by Dave Ridley of CID at Hitchin …"

DC Campbell advised Giles to report the call to DC Ridley, which he did at some point around 16 - 18 October 2000. On 19 October DC Ridley took statements from Giles and Mr Panayiotou.

10

On about 17 October Brougham visited a Mr Atkinson who was a witness in the Southern Counties case and offered him a bribe of £400 not to give evidence. Mr Atkinson refused, but did not report the approach, of which DC Ridley was unaware at the time.

11

On 28 October 2000 Mrs Panayiotou's car was set alight and suffered minor damage. The fire was put out by a neighbour and Mr Panayiotou did not learn of the incident until a day later. An AA inspector concluded the fire might have been caused by a firework.

12

In the early hours of 29 October 2000 there was a fire at Mr Panayiotou's business premises. The fire was in an outbuilding used to store old equipment and spare parts. Mr Panayiotou told the police that the key was often left in the door as there was nothing of value inside. Mr Panayiotou was told by fire officers who attended that this fire and that affecting his wife's car were accidental, and his understanding remained that there was no evidence of arson. But Mr Panayiotou was upset and reported the fires to DC Ridley. He told DC Ridley of the fire officers' view that the fires were accidental, but asked if DC Ridley thought Brougham could be responsible. DC Ridley said that if he had concerns Mr Panayiotou should contact the Metropolitan Police, which he did. He told the officer investigating the fire at his business premises that there was nothing of value in the building and that "he could think of nobody who would do this or any reason for it to be done". A fire officer (Mr Hodgens) attended the scene. According to contemporaneous records made by the police, Mr Hodgens was unable to confirm that the fire was a deliberate attack but said that it was possibly arson. The fire brigade had had to pull down most of the roof because the structure was unsound, and the evidence was accordingly not preserved. He repeated his opinion that he could not say whether the fire had been started deliberately. The Metropolitan Police officer in charge closed the investigation, noting that there was no evidence the fire had been started maliciously.

13

Mr Hodgens later made a statement inconsistent with his opinion recorded at the time. Later also, a forensic scientist with the Metropolitan Laboratory Forensic Science Service concluded that Mrs Panayiotou's car had been deliberately ignited, and that two wheel arches of Giles' car had been separately ignited. These opinions were not available at the time.

14

In preparation for the trial, due to begin on or about 27 November at Luton Crown Court, the Crown Prosecution Service, on 9 November...

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