Van Colle v Hertfordshire Police [2006] EWHC 360 (QB)

Case No HQ03X03534[2006] EWHC 360 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 th March 2006
Before
THE HONOURABLE MRS JUSTICE COX DBE
Between
IRWIN VAN COLLEClaimants2. CORINNE VAN COLLEClaimantCHIEF CONSTABLE OF THE HERTFORDSHIRE POLICEDefendant
MONICA CARSS-FRISK QC and JULIAN WATERS (instructed by Lynch, Hall & Hornby, Solicitors, Middlesex) for ClaimantsEDWARD FAULKS QC and EDWARD BISHOP (instructed by Weightmans, Solicitors, 52-54 High Holborn, London) for DefendantHearing Hearing dates: 13 th and 14 th December 2005
Judgment

The Hon. Mrs. Justice Cox :

[1]Just after 7.25 p.m. on the evening of 22nd 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 4th 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.[2]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 12th 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”.[3]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.[4]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 14th 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.[5]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.[6]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 7th and 15th 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.[7]In these unusual circumstances, at a directions hearing before Mr. Justice Eady on 5th 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 13th 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: 1) 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? 2) On those facts did DC Ridley act in breach of that duty and therefore incompatibly with Giles’ right to life under Article 2? 3) 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? 4) 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?[8]THE FACTS Background Giles Van Colle was born on 21st 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.[9]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 known as Southern Counties, but there was insufficient evidence to bring charges and he was apparently released without charge at that time.[10]In September 1999 Brougham, then calling himself Lee Jordan, obtained employment at Giles’ practice as a technician dispenser, providing Giles with a false CV and concealing his true identity and the fact that he was known to the police. His employment there was short lived. A few weeks after he started work Giles learned from his mother, after enquiries with the tax authorities, that the national insurance number provided by Brougham was incorrect. Brougham first claimed that the authorities were mistaken but, after further enquiries had elicited the same information, Giles raised it with him again and on this occasion Brougham appears to have reacted in an aggressive manner, raising his voice and trapping Giles against the wall. Brougham then failed to turn up for work shortly before Christmas 1999, claiming that he was unwell, but he did not return to work again. Shortly afterwards Giles wrote to him, asking to be reimbursed for the cost of repairs to equipment, found to have been faulty at the time of his departure, and referring to bringing proceedings against him in the small claims court, but there was no reply and the claim was then overtaken by events.[11]On 17th February 2000 DC Ridley searched Brougham’s premises and, on the following day, Brougham was rearrested for the original offence of theft from Southern Counties. On the same day DC Ridley took a witness statement from Lee Atkinson, a former employee of Southern Counties, who attended Hitchin Police Station to identify stock allegedly stolen by Brougham from the premises. DS Parsons, who allocated this fresh investigation of Brougham to DC Ridley to deal with, recalls that he was not very happy about it, regarding Brougham as a “very difficult individual to deal with… a very awkward individual”(Trial Bundle B, 225).[12]Some of the stolen property found in Brougham’s garage, including pairs of glasses and frames, was believed to belong to the Mill Hill practice owned by Giles, who was therefore informed of events and asked to provide witness statements. DC Ridley visited Giles for the first time on 28th February 2000 and took a statement. Brougham was then arrested again and charged with theft from both Giles and others.[13]On 4th April 2000 an additional statement was taken from Giles by DC Ridley and on 23rd April 2000 Brougham was arrested again for further offences of theft or obtaining property by deception. The total value of the property stolen from the various businesses was around £4,000. The other victims of the thefts, apart from Giles, were Southern Counties and Alpha Optical (owned and run by Peter Panayiotou).[14]On 26th May 2000 DC Ridley took an additional statement from Giles, attending his practice, in order to do so, with DC Chandler. Mrs. Van Colle recalls having a conversation with this officer about Brougham, during which he told her about the various aliases used by Brougham and referred to him as “a nasty piece of work” who was also wanted by the police in Cambridgeshire. Whilst there was some confusion in the evidence about when exactly this conversation took place and with which police officer (DC Chandler not recollecting it) I accept that there was such a discussion and Mr. Faulks fairly conceded that some such discussion probably took place. However, no particular reliance is placed on this by those representing the Claimants, other than as general background to the material facts in this case, to which I now turn.[15]Material Facts Brougham had indicated that he intended to plead not guilty to the various charges and he was committed to Luton Crown Court for trial. His bail was unconditional. At some point during the summer of 2000 he made his first attempt to prevent a witness giving evidence against him by offering John Heward, whose evidence related to the Southern Counties charges, the sum of £1,000 if he did not give evidence. It seems that Mr. Heward did not report this at the time and it emerged only as a result of investigations carried out after the murder. DC Ridley was, therefore, unaware of this initial approach to a witness by Brougham.[16]On 10th August 2000, in a further attempt to interfere with witnesses, Brougham telephoned Mr. Panayiotou and offered to pay him the sum he owed for the equipment he had stolen. An arrangement was made for Brougham to meet a colleague of Mr. Panayiotou, namely Mr. Wren, on the following day in order to hand over the money. In the event, however, Brougham cancelled this meeting.[17]Mr. Panayiotou then contacted DC Ridley, who took statements about these incidents from both him and Mr. Wren on 30th August 2000. These statements were discussed by DC Ridley with prosecution counsel at the pleas and directions hearing held at Luton on 20th September and DC Ridley sent the statements to the Crown Prosecution Service.[18]Time progressed and Brougham then adopted a different strategy. In the early hours of 24th September Brougham, or somebody acting on his behalf, set fire to Giles’ car, which was parked outside his home address. The car was written off completely. At the time of this incident none of the Van Colle family considered that there might be any connection with Brougham and they did not suspect arson. They were unaware of the approaches that Brougham had made to the other witnesses in the case, and they were told by a firefighter attending at the time that he thought the fire had started accidentally, due to an electrical fault. Giles, therefore, did not consider that this was suspicious and did not report the fire to DC Ridley at the time. The insurers subsequently concluded, however, that the fire was consistent with “a malicious vandal attack” and notified Giles of this in a letter dated 10th November 2000. I shall return to this later.[19]On 13th October 2000 Brougham made telephone calls to both Mr. Panayiotou and Giles. With Mr. Panayiotou he adopted the same approach as before, offering him money in return for his silence. Mr. Panayiotou immediately reported this to DC Ridley who advised him to refuse any offers. With Giles, however, Mr. Brougham adopted a different tactic, issuing what DC Ridley accepted in evidence was a serious threat, telling him:
“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.”
On the same day, 13th October, Giles telephoned the police about this call and spoke to an officer at Colindale Police Station. He informed the officer that he thought the caller might be Brougham, that is the voice sounded like a “former thieving employee”, and he was told to report the threat to DC Ridley. He did so within a short time of the call, although the exact date is unclear, and a meeting was arranged for a statement to be taken. DC Ridley then took statements about these recent events from both Giles and Mr. Panayiotou, separately, on 19th October and sent them to the CPS. In his statement Giles stated that he believed the caller was Lee Jordan, that is Brougham, and that he truly believed the call related to his court case with Lee Jordan. He pointed out that he, Giles, was not involved in any other court cases, whether civil or criminal. He described himself as having been “totally shaken up” by the call, which had prompted him to call 999. A customer, James Woodward, gave unchallenged evidence at trial that he was present when this call came through. He referred to Giles telling him afterwards that he had just received a “death threat” from a former employee and described him as appearing to be quite shocked. In his presence Giles had telephoned both the police and then his parents to tell them what had happened.[20]It is accepted by the Defendant both that DC Ridley took no further steps at this time in response to the threat to Giles made by Brougham, and that he should have done more by contacting or arresting Brougham. His explanation for failing to arrest Brougham, namely that he felt Giles had not made a sufficiently clear and positive identification of Brougham is, as he now accepts, unsatisfactory in the circumstances. In his evidence at trial he accepted in cross-examination that this had been a serious threat, that it involved the threat of physical danger, that it disclosed an offence of witness intimidation, and that it indicated a risk to Giles’ life. He also conceded that he should have appreciated this at the time. In allowing himself to be dissuaded from a more positive response to this threat by what he regarded as a doubtful identification Mr. Faulks submits, as DC Ridley himself accepted in evidence, that DC Ridley made an error of judgment. The judgment he exercised, however, related only to whether he had reasonable grounds to arrest Brougham, to charge him with criminal offences relating to his interference with witnesses, and to prosecute him successfully in connection with such charges. It is clear on the evidence, and DC Ridley himself accepted it, that he did not give any thought at all to Giles’ safety and to the need for steps to be taken to protect him in the light of the threat which had been made. I refer to the following relevant extracts from the cross-examination of DC Ridley, on pages 31-32 of the Transcript for the 10th June:
“Q. What about providing protection for Giles as a witness who had had a threat, as you have accepted, potentially to his life, what about protecting him? Did you think about that? A. No, my Lord, no Q. You did not think about that. As a very experienced officer – I know you have said that you have not seen the Hertfordshire guidelines on witness protection – but as an experienced officer do you mean to say with a threat like that being made it did not cross your mind that you needed to protect the witness? A. No, my Lord………….. Q. Did you consider speaking to Brougham, approaching Brougham, about this, investigating it with him further, even if not arresting him? A. No, my Lord Q. You did not. Did you consider attempting to trace the telephone call to Giles, to link it to Brougham? A. Not at that stage, my Lord, no Q. So at that time you simply take the statement, with evidence of the serious threat made, and you decide to do nothing – absolutely nothing? A. My decision making process was to make sure that those statements which I obtained on that day were delivered to the Crown Prosecution Service………. Q…your decision was governed – and these decisions, you say, were governed by the tactical process of the prosecution for the theft charge. The question of protection of Giles really never came into your mind? A. It did not, my Lord, yes.”
A. No, my Lord, no A. No, my Lord A. Not at that stage, my Lord, no A. It did not, my Lord, yes.”

A. Not at that stage, my Lord, no

[21]On or about 17th October Brougham approached Lee Atkinson (Southern Counties) and offered him £400 in return for his not giving evidence. Mr. Atkinson was confused because, due to the police having an incorrect address for him, he had not received the formal notification that he was in fact required to give evidence. He therefore did not report the contact, which came to light only as a result of investigations carried out after Giles’ murder and when protective custody was then being considered for the other witnesses. Mr. Atkinson’s account of Brougham’s approach to him is in a statement dated 24th November 2000. He refers in that statement to the fact that Brougham pleaded with him to drop his statement; told him that the police had been after him for a very long time and were out to get him; and said that the case “would ruin him”. He stated that Brougham appeared to have an air of desperation about him.[22]On 25th October DC Ridley attended a hearing in Luton Crown Court at which Brougham applied unsuccessfully for the various charges against him to be tried separately. DC Ridley’s evidence is that he spoke to the barrister representing the Prosecution and mentioned the events of 13th October and the statements he had taken; and that he understood from her that the best use of the statements would be to serve them as additional evidence and rely upon them in support of the theft prosecution. Counsel herself, unsurprisingly, now has no recollection of the hearing or of any discussion with DC Ridley but, even if this discussion took place, and I accept that it probably did, the Defendant does not suggest that DC Ridley was or should have been relying on counsel to assist him in making operational decisions, as the officer in the case, about the protection of prosecution witnesses. The evidence of Detective Inspector Ian Foster at the Misconduct Hearing was that, notwithstanding the barrister’s advice, “…the witnesses were entitled to protection from such interference and BROUGHAM should have been quickly arrested and placed before a court with a view to securing his remand in custody prior to trial. A barrister does not take operational police decisions.” (Trial Bundle B at page 190). In answer to questions from the trial judge, DC Ridley accepted that he had not spoken to the barrister in relation to what they ought to do about protection for Giles (Transcript 10/6 at page 40). Mr. Faulks properly accepts, therefore, that this evidence cannot assist him and that advice from lawyers could not absolve him from making an assessment of the situation, so far as witness protection was concerned.[23]At the end of October Brougham’s attempts to deter Mr. Panayiotou from giving evidence took a very serious turn. On 28th October the car belonging to Mr. Panayiotou’s wife was set alight outside their home. Fortunately, the fire was seen and put out by a neighbour, Mr. Karagozlou, before any serious damage was done and Mr. Panayiotou himself only became aware of the incident on the following day. At that stage he believed that it may have been an accident. In the early hours of 29th October, however, Mr. Panayiotou’s business premises in Palace Road, N.11 were also set alight and severe damage was caused to one of the buildings.[24]Mr. Panayiotou, who was now very concerned, telephoned DC Ridley and reported both fires to him, asking whether Brougham might have been responsible. Whilst it is correct that, at this point, Mr. Panayiotou did not know that the fires had been started deliberately and that he had no evidence to this effect, it is accepted by DC Ridley that, on this occasion, he did not even arrange to take a statement about the incidents from Mr. Panayiotou, observing on the telephone to him only that it seemed unlikely that Brougham was involved. DC Ridley also accepts that he did not contact either the Fire Brigade or the Metropolitan Police, in order to investigate further two unexplained fires connected with a prosecution witness in a forthcoming trial from whom he had already received reports of an improper approach by the Defendant; and when that same Defendant was also reported to have issued threats against another prosecution witness (Giles) in the same case.[25]It is correct, as Mr. Faulks points out, that DC DeCadenet, the officer from the Metropolitan Police who investigated the fire to the premises, considered that there was no evidence that the fire had been started maliciously. However, this officer, unlike DC Ridley, was considering the fire to the premises in isolation, without knowing that Mrs. Panayiotou’s car had been set alight the previous day, without any knowledge of the previous threat to Giles and without understanding the connection between Mr. Panayiotou and Giles and Brougham’s previous attempts to interfere with Mr. Panayiotou’s evidence. Further, in a witness statement dated 6/4/01 (Bundle B at page 39), Terence Hodgens, an officer in the London Fire Brigade who attended the fire at the premises, states that after his examination of the premises he determined “the most likely cause of the fire to be deliberate ignition”. He reported his findings to Wood Green police station and was subsequently contacted by DC DeCadenet, to whom he reported the conclusions of the investigation. In relation to the car, in a witness statement dated 10/4/01, the forensic scientist Sarah Griffith (Bundle L at page 18) concluded that a flammable liquid had deliberately been poured over the exterior of the vehicle and ignited. There was, therefore, evidence to be found, upon reasonable enquiries at the material time, that these fires, or at any rate the fire to the business premises, had been started deliberately. Mr. Panayiotou also suspected that Brougham was behind them. DC Ridley accepted that Mr. Panayiotou was “extremely upset” when passing on this information; and the extent of his distress is clear from the evidence of Mr. Wren who was present at the time, and whose evidence was not disputed, that he had seen Mr. Panayiotou crying as he spoke on the telephone.[26]Given the seriousness of these incidents, Mr. Panayiotou’s distress and his suspicions that Brougham was behind the fires, further and prompt investigation and action by DC Ridley was called for. In this I find myself in agreement with the Disciplinary Panel’s conclusions that DC Ridley failed to respond to an escalating picture of intimidation involving two prosecution witnesses in the same case, and in particular that he failed to analyse carefully the available evidence, both individually and with others through proper channels of line management. These conclusions are accepted in this trial as correct and DC Ridley acknowledges that the report to him of these fires should have prompted an immediate response, but that he failed to act and failed to consider protection. These events in my view called for a pro-active approach; an investigation and analysis of the possible links between the various incidents which had, by early November, been reported to him by the witnesses. Questions should have been asked of the other prosecution witnesses (Lee Atkinson and John Heward), and information re the fires on 28th and 29th October shared with the Van Colles, all of which would have elicited important information about the nature and extent of Brougham’s activities and would then have required an assessment of the need for witness protection for both Mr. Panyiotou and Giles and the appropriate steps to be taken. If that had been done it is likely in particular, in my view, that Giles would have reported the fire to his own car on 24th September, especially after his insurers reported their findings that it had been started deliberately. Instead, the matter was understandably regarded by Giles and his parents as wholly unconnected with Brougham. Even when Giles raised with his mother whether the deliberate fire to his car, as found by the insurers, could be linked to Brougham’s threats, she stated in her evidence that she had merely observed to him that they had been watching too much television (Transcript 9/6 at page 19). That it was for the officer in the case, and not the witnesses themselves, to evaluate all the material information and make an informed assessment of the risk and the need for protection is clear from the evidence, not least from DC Ridley himself in accepting that it was to him that any witness who had suffered intimidation would primarily look for support (Transcript 10/6 at page 17).[27]In these circumstances I do not accept Mr. Faulks’ submission that, whilst DC Ridley was not as curious as he should have been, it was understandable that he did not connect the fires with Brougham’s previous approaches to Mr. Panayiotou and his threats to Giles. Viewed objectively, at the time these events were unfolding, by late October or early November a disturbing pattern of behaviour was emerging, which was capable of being identified with appropriate and reasonable enquiries by the officer in the case. It called for immediate action. There was none. Meanwhile, it appears that on 5th November DC Ridley was seconded to an urgent murder inquiry, wholly unconnected with this case, which meant that he was based at Letchworth and was no longer working at Royston Police Station. He left a message on his answer phone to that effect.[28]On 9th November 2000 the Crown Prosecution Service prepared a notice of additional evidence including the statements taken from Mr. Panayiotou and Giles, dated 19th October 2000, dealing with Brougham’s unlawful contact with them on 13th October. There is, however, no evidence that the notice of additional evidence was actually served on this date or showing when it was received by Brougham’s solicitors. I do not find on the available evidence that Brougham was made aware of it before 22nd November. Even if he was, however, I agree with Ms. Carss-Frisk that mere service of these two statements, without more, would have tended to reassure Brougham that no further action was being contemplated by the police and the authorities in relation to his attempts to prevent the witnesses from testifying at all. By this stage the trial had been listed to start during a two week window commencing on the 27th November.[29]On 9th November Giles received another telephone call which he had no doubt was from Brougham, who on this occasion said “Give Alpha Optical a call and get them to drop the charges you motherfucker … Do you hear me? Do you hear me?” Brougham then put the phone down. There is no dispute that, on the same day, Giles rang and left a voicemail message on DC Ridley’s answerphone at Royston Police Station. A phone record (B30) shows that this call was made at 13.33 and in it I find that Giles indicated both his concern and the fact that he would contact DC Ridley on his mobile. There are no mobile phone records available to confirm whether or not Giles did in fact contact DC Ridley, who has no recollection of any such call before the 17th November. Mr. Van Colle believes that there was such contact and Mrs. Van Colle has a recollection that an appointment was made to meet DC Ridley before the 17th, which was then cancelled. The preponderance of the evidence in my view is that Giles did make mobile contact with DC Ridley before the 17th. Mr. Van Colle recalls that Giles had told him he was having trouble getting hold of DC Ridley during this period and DC Ridley’s own evidence is that he was very busy on the murder enquiry at this time. Given Brougham’s previous threat, Giles’ concern (he told his father about the call on the evening of the 9th ) and the imminence of the trial it is more likely than not, in my view, that Giles did make contact with DC Ridley on his mobile between the 9th and 17th November. For reasons which are unclear however, no meeting took place between them at this time.[30]On 17th November DC Ridley accepts that there was a telephone conversation with Giles and on 19th November, a Sunday, Giles wrote an account of what Brougham had said to him on the telephone and sent it by fax to Royston Police Station on the following day. DC Newsome collected the fax on 20th November and gave it to DC Ridley on 21st. On 22nd of November at around 3 p.m. DC Ridley spoke to Giles and arranged a meeting for 23rd November in order to take a statement from him. DC Ridley’s evidence is that he was intending to arrest Brougham after obtaining Giles’ statement. In response to questions from

the judge DC Ridley said as follows (Transcript 10/6 at pages 55 - 56):

“Q. Why were you going to arrest him? A.Because of the next step in relation to that call. I discussed the matter with my Detective Sergeant and we decided that following taking the statement we would then arrest him. Q. With a view to? A. With a view to processing him through the criminal justice system. Q. For? A. For witness intimidation. Q. So what was in your mind was due process again and charging him with a criminal offence. A. Yes, my Lord. Q. It is a question of whether you needed to act to protect, avoid a risk to the safety, or life, of Giles, you did not think of that? A. No, not at that stage, no………. Q…….that aspect of protecting Mr. Van Colle was really not in your mind. A.No, my Lord.”
Q. With a view to? Q. For? A.No, my Lord.”

Q. For?

[31]Before that statement could be taken however Giles was murdered by Brougham on the evening of 22nd November. The Defence have always accepted (see paragraph 1 of the opening skeleton argument) that DC Ridley should have acted with greater urgency after the telephone call of 9th November was reported to him, on his account, on or about the 17th November.[32]Mr. Faulks submits on behalf of the Defendant that, whilst DC Ridley acknowledges with the benefit of hindsight that he made errors of judgment or wrong, operational decisions, and whilst he accepts the findings of the Disciplinary Panel, it was understandable at the time and as these events were unfolding that he did not see this as a case where witness protection was an issue or where he needed to take positive steps to protect Giles or Mr. Panayiotou. It did not, as Mr. Faulks expressed it, “ring that kind of bell”. Further, he submits that the murder of Giles by Brougham on 22nd November was a wholly disproportionate, irrational and unexpected event against the background of what had previously occurred and the nature of the trial shortly to take place; and it could not reasonably have been anticipated by a busy police officer, acting reasonably and carrying out his duties as best as he could. The evidence of DS Parsons and DI Foster at the disciplinary hearing was that such threats are regrettably commonplace and yet they do not lead, usually, to acts of physical violence of the kind perpetrated by Brougham on 22nd November.[33]In considering these submissions and the adequacy of DC Ridley’s response to events (and I shall return to the parties’ submissions later on), it is relevant to have regard to the special position of members of the public who are required to be prosecution witnesses at criminal trials and, in this respect, to the Hertfordshire Constabulary’s Witness Protection Policy or Protocol, which was approved in May 1999 and was in operation at the time of these events; and which provides guidance for police officers in dealing with witness intimidation. As the introduction to this protocol explains, the advice contained within it complies with advice issued by the Association of Chief Police Officers (ACPO) in their Witness Support Policy, also included in the trial bundle, which expressly acknowledges the fundamental duty on the Police Service to protect life, to recognise the provisions contained within the European Convention on Human Rights and to ensure that all activities carried out within the policy “… adhere to the content and spirit of the Convention”.[34]The Hertfordshire policy expressly recognises the serious problems posed by witness intimidation and its serious consequences, if unchecked, in undermining public confidence in the criminal justice system and its effectiveness, as a result of witnesses being discouraged from reporting crime; or from coming forward with other evidence; or as a result of trials that do go ahead then having to be abandoned. Attention is drawn to the offences of intimidating, harming or threatening to harm a witness created by the 1994 Criminal Justice and Public Order Act, but the clear focus of the document is the protection of witnesses who are being intimidated and the need to ensure an effective response, depending on the nature and degree of intimidation involved. The policy refers to both community wide and case specific intimidation, the latter category involving “threats or violence intended to discourage a particular person from helping a particular investigation”, and which includes both “those who are actually put in fear in a life threatening way” and “those who are actually put in fear but not necessarily in a life threatening way”.[35]The policy divides witness intimidation into three tiers and provides for procedures appropriate to witnesses who require protection in each tier. Tier 1 is aimed at witnesses in cases of serious crime, who can provide essential evidence generally in relation to “the most serious of offences” or against a “targeted criminal”, defined as a persistent criminal who is causing long-term, serious problems. Tier 1 witness intimidation is to be handled in its entirety by officers from the Hertfordshire Special Branch, who have received appropriate training, and is to be independent from the investigation. Tier 3 relates to witnesses or complainants who are reluctant to report crime or support action due to a perceived threat of reprisal from neighbours or others in the community. Neither tier, in my view, could properly be said to apply to the present case. Tier 2, however, relates expressly to case specific intimidation “involving actual threats to a witness or to his/her family in an attempt to prevent that person from supporting a prosecution or giving evidence. The threats must have been made although not life threatening. Judgement is needed in such cases in order to assess the actual risk presented by the threat made. Action which can be taken includes the temporary removal of the witness from his or her home or a number of other measures which are listed in this policy. Tier 2 Witness Intimidation is a Divisional responsibility assisted by HQ Crime Management Department when appropriate.”[36]The level of protection or assistance to be given to witnesses or complainants will obviously depend on the circumstances, as the policy makes clear, but the measures listed include the following relevant features: a) Identifying the need to protect a witness from factors other than direct questions to the witness, including for example where the witness himself “tells the police officer … that intimidation has occurred”; or where the incident “occurred in or around the witness’s home” or “is one of a series of incidents and there might be evidence of repeat victimisation”; and “the defendant and/or their relatives or associates have the intention and ability to influence or interfere with the witness”. The fact that the witness is also the victim is recognised as being a factor which “might give rise to an increased likelihood of intimidation”. b) Measures to deal with the perpetrator which include initiating proceedings against the perpetrator, where possible, and supplying courts with “full information about actual or potential witness intimidation” to enable courts when considering the question of bail to “consider imposing conditions which restrict the defendant’s contact with the witnesses”. c) Measures to protect and support witnesses including, for example, the provision of information about intimidation or about any relevant bail conditions and about what action they should take, “as detailed on a Witness and Victim Information Sheet”; establishing one contact point for witnesses; the supply of panic alarms to be worn by the witness to avoid the need to dial 999; and considering an offer to transfer the witness to alternative temporary accommodation.[37]Whilst particular measures are clearly a matter of judgment for the individual officer in any given situation the essential requirement, reading this policy as a whole, is for police officers to consider and assess all the circumstances and the risk in any particular case, in order to reach an informed decision as to the need for protection and the level of protection required for the witness or witnesses affected. The very existence of this policy indicates that the Defendant recognised that the police had a duty to protect witnesses who are the victims of intimidation. It is therefore a matter of regret, as is clear from DC Ridley’s evidence at this trial, that he had throughout been wholly unaware of the policy and the guidance contained within it. In reply to questions from the judge he also agreed that he had had no training in relation to the contents of the policy or about witness protection generally. It appears that the policy was placed on the Hertfordshire Constabulary intranet but DC Ridley had received no instructions about it or about following the guidance it contained. He therefore accepted that he had not had regard to its contents when dealing with this case. The fact that he was unaware of it also explains why the disciplinary charge relating to his failure to take proper account of the guidance in this policy was withdrawn at the Misconduct Hearing.[38]THE LAW The Human Rights Act 1998, pursuant to the provisions of which this claim is brought, provides, so far as is relevant as follows. “Section 6 Acts of Public Authorities(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. … (3) In this section ‘public authority” includes a) A Court or Tribunal, and b) Any person certain of whose functions are functions of a public nature …” a) A Court or Tribunal, and b) Any person certain of whose functions are functions of a public nature …” By virtue of section 6(6) an “act” includes a “failure to act” and, by section 1(1), Convention rights include Articles 2 and 8 of the European Convention on Human Rights. There is no dispute that the Hertfordshire police are a public authority. “Section 2 Interpretation of Convention Rights. (1) A Court or Tribunal determining a question which has arisen in connection with a Convention right must take into account any – a) Judgment, decision, declaration or advisory opinion of the European Court of Human Rights, b) Opinion of the Commission given in a report adopted under Article 31 of the Convention, c) Decision of the Commission in connection with Article 26 or 27(2) of the Convention, or d) Decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the Court or Tribunal, it is relevant to the proceedings in which that question has arisen. Section 7 Proceedings (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may – a) Bring proceedings against the authority under this Act in the appropriate Court or Tribunal, or b) Rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. Section 8 Judicial Remedies (1) In relation to any act (or proposed act) of a public authority which the Court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.(2) But damages may be awarded only by a Court which has power to award damages, or to order the payment of compensation, in civil proceedings.(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including – a) Any other relief or remedy granted, or order made, in relation to the act in question (by that or any other Court) and b) The consequences of any decision (of that or any other Court) in respect of that act, The Court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.(4) In determining – a) Whether to award damages, or b) The amount of an award, The Court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.” a) Judgment, decision, declaration or advisory opinion of the European Court of Human Rights, b) Opinion of the Commission given in a report adopted under Article 31 of the Convention, c) Decision of the Commission in connection with Article 26 or 27(2) of the Convention, or d) Decision of the Committee of Ministers taken under Article 46 of the Convention, Section 7 Proceedings a) Bring proceedings against the authority under this Act in the appropriate Court or Tribunal, or b) Rely on the Convention right or rights concerned in any legal proceedings, Section 8 Judicial Remedies a) Any other relief or remedy granted, or order made, in relation to the act in question (by that or any other Court) and b) The consequences of any decision (of that or any other Court) in respect of that act, The Court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. a) Whether to award damages, or b) The amount of an award, The Court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.”

Section 8 Judicial Remedies

[39]The Convention Rights “Article 2 Right to Life Right to Life 1. Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a Court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:a. In defence of any person from unlawful violence;b. In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;c. In action lawfully taken for the purpose of quelling a riot or insurrection.” Article 8 Right to Respect for Private and Family Life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Right to Life

[40]The general principles which underpin the issues in this case are not in dispute and can be summarised as follows. The principal aim of the Convention is to protect the rights of individuals from infringement by states. Thus Article 8(2) imposes a “negative” obligation on states, requiring them to refrain from interference with the right to respect for private and family life enshrined in Article 8(1). However, Article 1 of the Convention requires states to “secure to everyone within their jurisdiction” the rights and freedoms contained in the Convention; and it is common ground that the principle frequently repeated in the case law of the Court of Human Rights is that protection of rights is intended to be “practical and effective” and not merely theoretical. These factors, combined with the right in Article 13 to an effective remedy for an individual whose rights have been violated and the mandatory requirements in some Articles, such as Article 2 where the right to life “shall” be protected by law, are recognised as imposing positive obligations on states to take certain positive and protective steps in order to guarantee the rights from violation by both state and non-state actors.[41]Article 2 is one of the most fundamental provisions in the Convention and Courts must, when called upon to make their assessment in any particular case, subject deprivations of life to the most anxious scrutiny (see McCannv. United Kingdom [1995] 21 EHRR 97, at paragraphs 150 and 197; and R (Bloggs 61) v. Secretary of State for the Home Department [2003] 1 WLR 2724, per Auld LJ at paragraph 62). It is common ground that this Article imposes on states a substantive prohibition on the taking of life; a “procedural” obligation officially to investigate the taking of life in situations where death has resulted from the state’s use of force (see the McCann case at paragraph 161); and a substantive obligation to protect the right to life, that is to take appropriate steps to safeguard the lives of those within their jurisdiction. Primarily, this protective obligation will be discharged by the adoption of an effective system of criminal law, supported by adequate law enforcement machinery, to deter the commission of offences against the person and to punish individuals who are guilty of taking the lives of others.[42]However, in Osman v. United Kingdom [2000] 29 EHRR 245, the Court of Human Rights held that the authorities of a Contracting State, including their police force, can also be under a positive obligation pursuant to Article 2, in certain circumstances, to take preventive, operational measures to protect an individual whose life is at risk from the criminal acts of another individual. It is the nature and extent of this positive obligation which lies at the heart of this case, Ms. Carss-Frisk contending primarily that, on its particular facts, the Defendant was in breach of this obligation and failed to act compatibly with Giles’ rights under Article 2.[43]The Case Law Article 2 In Osman v. United Kingdom the factual background to the Court’s decision has been referred to by both parties in this case and it is necessary to refer to it in some detail. The second Applicant Ahmet Osman was wounded in a shooting incident in March 1988, which resulted in the death of his father, Ali Osman, the first Applicant’s husband. The perpetrator was a school teacher (P), who was convicted of manslaughter on grounds of diminished responsibility. During 1987 P had formed an unhealthy attachment to Ahmet, then a 15 year old pupil at P’s school and harassed him in a series of very unpleasant incidents, which continued after his dismissal from the school and included an incident in which P told a police officer that there was a danger that he would do something criminally insane. In March 1988 P followed Ahmet and his family to their flat where he shot and injured him and killed his father.[44]The Applicants brought proceedings against the Metropolitan Police Commissioner alleging negligence by the police in failing, despite their knowledge of the facts, to apprehend or interview P, to search his home or charge him with an offence before March 1988. The Commissioner applied unsuccessfully to strike out the claim on the ground that it disclosed no reasonable cause of action. The Court of Appeal then allowed the Commissioner’s appeal, following the decision of the House of Lords in Hill v. Chief Constable of West Yorkshire [1988] 2 All ER 238, holding that the existence of a general duty on the police to suppress crime did not carry with it liability to individuals for damage caused to them by criminals whom the police had failed to apprehend when it was possible to do so. It would be against public policy to impose such a duty as it would not promote the observance of a higher standard of care by the police and would result in the significant diversion of police resources from the investigation and suppression of crime. The House of Lords refused leave to appeal.[45]Since the claim had been struck out, since P had pleaded guilty to the charges against him and no full inquest had been conducted into Mr. Osman’s death, there was never any independent, judicial determination at the domestic level of the facts of the case. This is significant because, unlike the situation in the present case, the facts concerning the events which led up to the shooting of Ali and Ahmet Osman were a matter of considerable dispute between the parties, in relation to the state of knowledge of the police of events, the real danger which P posed and the intentions of the police as expressed to the Osman family and the school authorities. On the Applicants’ subsequent complaint to the European Court of the State’s violation of Articles 2, 8, 6(1) and 13 of the Convention, the Commission therefore had themselves to assess the facts in accordance with the (then) usual practice, in the light of all the material placed before them or obtained of their own motion. This comprised essentially the pleadings of the parties and information elicited from counsel at the oral hearing and the Commission expressly regretted, at paragraph 95, the absence of a detailed fact-finding exercise by the domestic courts. The Commission’s assessment of the facts was then criticised, in a number of respects, before the Court and the Court therefore also had regard to the parties’ respective contentions on the facts and to the Commission’s assessment in arriving at their own conclusions.[46]The absence of clear findings of fact at the domestic level, in a case where there was considerable dispute on the material facts and which is, on its facts, very different from the present case, in which there is very little factual dispute between the parties, means that little assistance is to be derived in my judgment from the Court’s conclusions on the particular complaints raised. It is clear, however, and Mr. Faulks does not dispute it, that the Court took the opportunity to affirm some statements of principle in relation to the breach of Article 2, which are of general application and upon which Ms. Carss-Frisk relies. The relevant passages appear at paragraphs 115 and 116 of the Court’s judgment, as follows:
“115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to 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. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”
[47]It is relevant to note, from paragraph 107 of the judgment, that the UK Government, in their submissions, did not dispute that Article 2 may imply a positive obligation on the authorities of a Contracting State to take preventive measures to protect the life of an individual from the danger posed by another individual. The Government submitted, however, that this obligation could only arise in exceptional circumstances, where there is “a known risk of a real, direct and immediate threat” to that individual’s life and where the authorities have assumed responsibility for his or her safety. The Court in paragraph 116 accepted this submission only in part, extending the obligation to one where it is established, looked at objectively on the evidence available to them, that the authorities ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual. The Court also rejected the Government’s further submission that it had to be shown, in addition, that their failure to take preventive action amounted to “gross dereliction or wilful disregard” of their duty to protect life, regarding such a rigid standard to be incompatible with the requirements of Article 1 and the obligations of Contracting States to secure the practical and effective protection of the rights therein, including Article 2; and holding that it is sufficient for an Applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. As the Court emphasised, this is a question which can only be answered in the light of all the circumstances of any particular case.[48]Since the Osman decision, the Strasbourg Court has recognised that the state’s obligation is enhanced in respect of individuals who are in state custody and therefore in a particularly vulnerable position. Thus in Keenan v. United Kingdom [2001] 10 BHRC 319, where the Applicant’s mentally ill son committed suicide whilst in prison, the Court had to consider to what extent the Osman obligation applies where the risk to a person derives from self-harm. At paragraph 90 the Court noted:
“90. In the context of prisoners, the court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the state to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies (see eg Salman v Turkey [2000] ECHR 21986/93 at para 99). It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody.”
The Court, therefore, applied to the particular facts of the case the test set out at paragraph 92, namely:
“Whether the authorities knew or ought to have known that Mark Keenan posed a real and immediate risk of suicide and, if so, whether they did all that reasonably could have been expected of them to prevent that risk.”
[49]Whilst prisoners in state custody are, for obvious reasons, a particularly vulnerable category of persons, Ms. Carss-Frisk submits that lay witnesses required to give evidence for the Crown at a criminal trial are also in a special category, which renders them more vulnerable than ordinary members of the public. Given their importance to the criminal justice process and to the state authorities, who require them to attend and give evidence, I agree that such witnesses are in a special category of persons and entitled to greater protection from the authorities than members of the public generally. The existence and extent of any vulnerability, however, will in my view always depend upon the facts in any particular case. I return to this matter later on in this judgment, when dealing with the parties’ submissions.[50]Article 2, in the context of witness protection and safety, has been considered recently by the domestic courts in the following cases, on which Ms. Carss-Frisk also relies. Firstly, in R (A and others) v. Lord Saville of Newdigate and others [2002] 1WLR 1249, the British soldier witnesses to the Bloody Sunday Inquiry, sitting in Londonderry, successfully challenged in the Divisional Court as incompatible with Article 2, the Tribunal’s refusal to permit them to give their oral evidence elsewhere, because of the risk of potentially fatal attack by terrorists. The Court of Appeal dismissed the Tribunal’s appeal, remitting the matter to the Tribunal with a direction that their evidence should not be taken in Londonderry. Giving the judgment of the Court Lord Phillips of Worth Matravers MR said at paragraph 13:
“13 We consider that the Osman duty is directly engaged in the present case. The majority in Londonderry, and that majority includes the families of those who were killed or injured on Bloody Sunday, wish the inquiry well and are anxious that it should continue to be peacefully held in Londonderry. It is, however, common ground that there are, in Londonderry in particular but also elsewhere, dissident republican elements who are not prepared to observe the ceasefire, but are anxious to disrupt the peace process. In particular, the republican group that describes itself as the Continuity IRA is not observing the ceasefire. These elements pose a threat to the inquiry and those who are or will be taking part in it, and in particular the soldier witnesses. The security agencies consider that this threat is, and will be, sufficiently real and imminent to call for precautionary measures to safeguard those taking part in the inquiry. We consider that they are plainly right to do so.”
And at paragraph 17:
“The soldier witnesses’ application raises the issue of whether, and in what circumstances, article 2 can require a public authority to desist from a lawful and peaceful activity because of a terrorist threat. We are not aware of any Strasbourg jurisprudence which bears directly on this question, but we think that its answer must turn on matters of fact and degree.”
The Court’s conclusions as to the test to be applied were set out at paragraph 28:
“28 In R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1WLR 987, after adumbrating the various phrases which he considered expressed the same degree of likelihood of risk, Lord Diplock referred, at p 994, to the alternative of “applying, untrammelled by semantics, principles of common sense and common humanity”
. We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera. The phrases advanced by Mr Clarke were all taken from decisions involving contexts quite different from the present. These decisions provide no authoritative basis for adopting the phrases as a threshold test for article 2 purposes. Of one thing we are quite clear. The degree of risk described as “real and immediate” in Osman v United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was “a real and immediate risk to the life an identified individual or individuals from the criminal acts of a third party” which was, or ought to have been, known to the authorities: p 305, para 116. Such degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.” And at paragraph 31:
“31 We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of article 2 and the common law requirement that the procedure should be fair.”
[51]In the particular circumstances of that case, therefore, the Court adopted broader principles of “common sense and common humanity” in considering the threshold of risk that had to be passed. The subjective fears of the soldiers, the extent to which they were objectively justified and the extent to which they could be alleviated if they gave their evidence elsewhere was to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and common humanity. The answers to such questions, as was recognised, would always turn on “matters of fact and degree”.[52]Subsequently, in R (Bloggs 61) v. Secretary of State for the Home Department [2003] 1WLR 2724, the Claimant was sentenced to seven years’ imprisonment in December 2000 for conspiring to supply a large quantity of cannabis resin. He had pleaded guilty and given evidence against a co-defendant at trial and he subsequently gave further assistance to the police, as an informer, against a suspected drug trafficker. He was, therefore, accepted into a witness protection unit on the recommendation of the police in 2001. In the event, however, the Crown Prosecution Service decided that they did not wish to rely on the Claimant’s evidence and the drug trafficker was not prosecuted. The Prison Service, therefore, reviewed his status as a protected witness and, in January 2002, decided to remove him from the scheme and to return him to the general prison population. His claim for Judicial Review of that decision, on the basis that it would breach his right to life under Article 2, was refused and his appeal was dismissed.[53]At paragraphs 54 and 55 of his judgment, Auld LJ, with whom the other members of the Court agreed, held as follows:
“… there is no single or all-purpose formulation of the test to be applied when considering what steps a public body should take in order to protect a person from a threat to his life from a third party or parties. It all depends on the facts of the case. As to general guidance on how to approach each case on its own particular facts, the starting point is the decision of the European Court of Human Rights in Osman v United Kingdom [1998] 29 EHRR 245. There, the court held, at paragraphs 115 and 116, that article 2(1) may, depending on the facts, impose a duty on a public authority to take all reasonable steps to protect a person from a real and immediate risk to his life. … “55 The critical words in that passage, “a real and immediate risk” to life were considered by the Court of Appeal in R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249, which concerned the risk to the lives of soldiers if they were required to give evidence to the Bloody Sunday Inquiry at the inquiry tribunal’s place of sitting in Londonderry. The court upheld the Divisional Court’s grant of judicial review quashing the tribunal’s decision requiring the soldiers to give their evidence to it in Londonderry. In doing so, the court sought, at pp 1261-1262, paras 28-31, to avoid any all-purpose formula of the threshold of risk required to engage the article 2 duty, preferring a common sense and humane approach tailored to the circumstance of each individual case. Thus, it considered, at paragraph 28, that the test applied in Osman v United Kingdom 29 EHRR 245, of a real and immediate risk, while apt for a case where there was a known and very high degree of risk to life from criminal acts of a third party, was “well above the threshold” that would engage article 2 where the risk attended an action that the authority itself was contemplating, as in the case before it. The court applied what it regarded as a lower threshold of risk, taking into account both the soldier applicants’ subjective fears and their objective justification.”
[54]Observing, at paragraph 59, that the Court of Appeal in the Londonderry case did not expressly endorse the Osman formulation of “a real and immediate risk” as one of general application or even as an appropriate tool for cases calling for police protection for persons in the community, but simply regarded it as not appropriate for the facts of the case in that appeal, Auld LJ held as follows, at paragraphs 60 and 61:
“60 Whatever the risk to a person’s life and whatever the mechanism that may give rise to it, the approach of Lord Diplock in R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 987, adopted by the court in R (A) v Lord Saville of Newdigate [2002] 1WLR 1249 seems to me, with respect, to be entirely logical and of general application. If a risk to life is not “real”, it is not a risk to life. If a risk to life is not “immediate” in the sense that it is not present at the time or during the period when it is claimed that a protective duty is owned by a public body, it is not a risk that can engage article 2. It is a future risk that may, at some later date, do so. To be a candidate for engaging article 2, all that is needed is “a risk to life”
. To engage it depends, in the circumstances of each case, on the degree of risk, which necessarily includes consideration of the nature of the threat, the protective means in being or proposed to counter it and the adequacy of those means. 61 The word “risk” in the general context of risk to life engaging article 2 is, as Lord Phillips of Worth Matravers MR said, one of common sense application to individual circumstances. In that general sense, it can and should be used without a qualifying adjective.” This reflects the reasoning of the Court of Appeal in the Londonderry case at paragraph 31 set out above. And Lord Justice Auld emphasised, at paragraph 62, that “Any potential interference with the right to life requires the most anxious scrutiny by the Court, since it is the most fundamental of human rights”.[55]Finally, in R (DF) v Chief Constable of Norfolk Police and Secretary of State for Home Department [2002] EWHC 1738 (Admin), a prisoner serving a life sentence challenged the decision of the Prison Service to refuse to admit him to a witness protection unit and contended that the Norfolk Police had failed in their duty to provide appropriate information to the Prison Service. Crane J., quashing the decision on the facts, held that the duty to protect the life of a prisoner against the risk of attacks by fellow prisoners involved different considerations from that owed to persons out in the community and, by inference, from that owed to a potentially suicidal prisoner. He identified those considerations by reference to the Osman requirements as follows:
“First, the requirement that the authorities knew or ought to have known of the risk will usually be satisfied much more readily in relation to a prisoner, particularly one who has assisted the authorities, than in relation to a member of the community in general. Secondly, the authorities are in position to take measures to avoid any risk to an extent much greater than are the police in relation to a member of the community. Thirdly, the authorities are likely to be less inhibited by restraints imposed on the scope of their actions by the need to respect the human rights of others, since providing a protective regime is unlikely to affect the rights of others. 38 In the light of these differences, it is necessary to decide whether in this context the risk must be “real and immediate”
. It must in my judgment be real. However, the word “immediate” should not be understood, in the context of decisions on admission to a protective regime, to mean that the threat will necessarily materialise in the very near future. That would be appropriate if a particular threat required urgent measures. However, the kind of risk to be assessed in this context is of harm to the prisoner as and when those wishing him harm find an opportunity. This case concerns a decision whether the risk is sufficient to justify entry to an available protective regime. That implies an assessment of the risk of harm within a period until the decision is reviewed. In my view the question to be asked is whether there is a real risk to the life of the prisoner if he is not admitted to a PWU, rather than some alternative regime, for whatever period is being considered. However, immediacy requires that the risk must be present and continuing. A real risk is one that is not simply a fear felt by the prisoner, but is disclosed by all the information available.”[56]From all these authorities it is possible to distil the following principles, which in my judgment should guide the Court’s approach to a claim under section 7 of the Human Rights Act 1998 for breach of the positive obligation to protect life in Article 2.(1) The positive obligation to protect life in Article 2 is unqualified and self-evidently fundamental, so that any alleged breach or potential breach of that obligation by the state authorities requires the most anxious scrutiny by the Court. The right to life in Article 2 is in that sense different in nature from the qualified rights, for example, in Articles 8 to 11, which enable the state in certain circumstances to justify an interference with the right requiring the Court to conduct a balancing exercise between the individual’s rights and the public interest.(2) Nevertheless, Article 2 is not to be interpreted so as to impose an impossible or disproportionate burden on the state authorities. This reflects the need for a fair balance between the rights of the individual and the general interests of the community recognised to be inherent in the whole of the Convention (see, for example, Goodwin v. UK [2002] 35 EHRR 18 and Lord Bingham in Brown v. Stott [2003] 1 AC 681 at 704F).(3) The state’s positive obligation to protect life includes a positive obligation in certain circumstances to take preventive, operational measures to protect an identified individual whose life is at risk as a result of the criminal acts of a third party. That obligation arises where it is established that the state authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of that individual and yet failed to take such measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.(4) To determine, where it is so established, whether there was a breach of that obligation it is not necessary for the Claimant to establish that the failure to perceive the risk to life in the circumstances known at the time or the failure to take preventive measures to avoid that risk amounted to gross negligence or to a wilful disregard of the duty to protect life. It is sufficient to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life, of which they had or ought to have had knowledge. The answer to this question will always depend upon the individual facts of the case.(5) Where it is the conduct of the state authorities which has itself exposed an individual to the risk to his life, including for example where the individual is in a special category of vulnerable persons, or of persons required by the state to perform certain duties on its behalf which may expose them to risk, and who is therefore entitled to expect a reasonable level of protection as a result, the Osman threshold of a real and immediate risk in such circumstances is too high. If there is a risk on the facts, then it is a real risk, and “immediate” can mean just that the risk is present and continuing at the material time, depending on the circumstances. If a risk to the life of such an individual is established, the Court should therefore apply principles of common sense and common humanity in determining whether, in the particular factual circumstances of each case, the threshold of risk has been crossed for the positive obligation in Article 2 to protect life to be engaged.(6) Whether the obligation arose in any particular case and whether the state authorities were in breach of that obligation will therefore depend not only upon the nature of the threat and the degree of risk to the individual, of which the authorities knew or ought to have known, but also upon the extent to which there were appropriate measures, reasonably available to the authorities, to alleviate or obviate that risk. The greater the failure to take such measures as were reasonably open to them to alleviate a risk to human life, the greater the likelihood that the authorities will be held to have failed to comply with their Article 2 obligation.[57]Article 8 It is well established that Article 8, although a qualified right, also imposes positive obligations on the state, requiring the state not just to refrain from interference with an individual’s Article 8 rights, but to take steps to provide for effective respect for private and family life. Thus in Glaser v. UK [2001] 33 EHRR 1, the Court of Human Rights held, at paragraph 63:
“63 The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective ‘respect’ for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals' rights and the implementation, where appropriate, of specific steps. In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the state's margin of appreciation.”
[58]In Anufrijeva and Others v. Southwark London Borough Council and Secretary of State for the Home Department [2004] 2 WLR 603, the Claimants were asylum seekers who claimed damages under section 8 of the 1998 Act for breaches of their Article 8 rights, on the grounds, variously, that the council had failed to discharge their statutory duty to provide them with accommodation that met the special needs of a family member, substantially impairing the quality of their family life; or, in other cases, that maladministration and lack of adequate financial support in the handling of their asylum claims had infringed their rights to respect for private and family life. Giving the judgment of the Court, Lord Woolf CJ noted, at paragraph 12, the link between the right to private life and the right to family life, observing that “… If members of a family are prevented from sharing family life together, Article 8(1) is likely to be infringed”. He also noted, at paragraphs 16 and 17 the existence of positive obligations upon a state under Article 8 and the Glaser case and the “… wide variety of situations [recognized by the Court of Human Rights] in which states are under a positive obligation to introduce systems to preserve respect for family life”. At paragraphs 45 and 48 the Court held:
“45 In so far as article 8 imposes positive obligations, these are not absolute. Before inaction can mount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant's private and family life were at risk: see the approach of the Court of Human Rights to the positive obligation in relation to article 2 in Osman v United Kingdom (1998) 29 EHRR 245 and the discussion of Silber J in N [2003] EWHC 207 (Admin) at [126]-[148]. Where the domestic law of a state imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of article 8, provided that the impact on private or family life is sufficiently serious and was foreseeable. … “48 Newman J suggested in Anufrijeva that it is likely, that the acts of a public authority will have to have so far departed from the performance of its duty as to amount to a denial or contradiction of thatduty before article 8 will be infringed. We think that this puts the position somewhat too high, for in considering whether the threshold of article 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for article 8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice.”
[59]There is in this respect an obvious overlap between Articles 2 and 8. If the state authorities are found to have failed to comply with their obligation under Article 2 to protect an individual’s life it is almost inevitable that they would also be in breach of their positive obligation under Article 8 to safeguard that individual’s physical integrity and family life, although the questions to be determined are different and the emphasis is on the culpability of the authorities.[60]The Parties’ Submissions on Liability Ms. Carss-Frisk submits essentially that, on the particular facts of this case, the Claimants succeed both under Article 2 and Article 8 and therefore under section 7 of the Act. Giles had been required by the Defendant to give evidence for the Prosecution at Brougham’s trial and was thereby exposed by the state authorities to particular risks. Brougham murdered him shortly before that trial took place, but did so only after a series of threats and incidents of interference with witnesses and witness intimidation by Brougham involving Giles and other Prosecution witnesses, of which DC Ridley was or ought to have been aware, but in respect of which no action whatsoever was taken to protect Giles. There was, as the Disciplinary Panel found, an “escalating situation of intimidation” to which DC Ridley entirely failed to respond. She relied in particular on DC Ridley’s concessions in his evidence that he should have appreciated at the time that there was a risk to Giles’ life; that he had not followed the guidelines in the Defendant’s witness protection policy of which he was completely unaware; and that he had not considered at any stage the need for protection for Giles. There was a real risk to his life, which was present and continuing as the trial approached.[61]She contends that on the facts, and as a matter of common sense and common humanity, the Defendant police force were under a duty to take appropriate measures, which were reasonably open to them, to protect the risk to Giles’ life and yet failed to do so. Article 2 was therefore engaged and breached. They could properly be expected to have acted in accordance with their own witness protection protocol. They could and should, for example, have arrested Brougham and applied to the Court for his bail to be revoked or should have considered moving Giles to a temporary place of safety until the trial. Even if it were held to be necessary for the risk in this case to be found to be “real and immediate” in Osman terms, on the facts of this case it clearly was. There was an escalating set of circumstances which DC Ridley ignored. The threats targeted Giles and were immediate, being manifestly linked to the impending trial and made with a view to preventing it from proceeding. There was also, therefore, a violation of Article 8 in that there was a risk both to Giles’ physical integrity and to his family life, of which DC Ridley knew or ought to have known, and his conduct was highly culpable in the circumstances.[62]Mr. Faulks, both in his written and oral submissions, conceded on the Defendant’s behalf, that DC Ridley had made mistakes when responding to the events reported to him by Giles in October and November 2000. He openly expressed the Defendant’s regret that there were departures from a good standard of policing on this occasion; and he emphasised that the Defendant accepts and agrees with the findings of the Disciplinary Panel in June 2003, and accepts that DC Ridley made a wrong decision in not arresting Brougham before 22nd November.[63]He contends, however, that the guidance in the witness protection policy offers no more than general assistance to police officers and a requirement that they exercise their judgment in order to assess the risk to any particular witness. He submits that this is what DC Ridley in fact did, albeit that he exercised that judgment wrongly. The criticisms of DC Ridley have been brought into sharper relief with the benefit of hindsight and no-one could reasonably have predicted at the time that Brougham would kill Giles, which was a wholly disproportionate response to the fact that Giles was to be a Prosecution witness on theft charges and give evidence against him at his trial. The Defendant, therefore, does not accept that DC Ridley’s errors amounted to behaviour which was incompatible with Articles 2 or 8 of the Convention.[64]Whilst the claim is brought under section 7 of the Human Rights Act Mr. Faulks, in resisting it, places considerable reliance on the common law. He submits that, had Giles’ murder occurred before October 2000, this claim could not have been brought because the Act has no retrospective effect (see In Re McKerr [2004] UKHL 12); and the common law authorities establish that the Claimants would have no claim against the Defendant in negligence or indeed in any other tort. He relies mainly, in support of these submissions, on the decisions of the House of Lords in Hill v. Chief Constable of West Yorkshire [1989] AC 53 and, more recently, in Brooks v. Commissioner of Police for the Metropolis [2005] UKHL 24, in submitting that the present claim would fail at common law. In these circumstances he submits that, in determining this claim under the Human Rights Act, the Court should “set the bar high” so as to ensure that domestic human rights jurisprudence runs consistently with the common law. To conclude otherwise would result in the undesirable, if not absurd, position that the important public policy considerations which led the Courts to decide not to impose a duty of care on the police, in circumstances such as exist in the present case, could simply be swept aside by the decision that the Claimants have a remedy under the Act. This would be contrary to the real thrust of human rights law, namely its concern with the overarching rights and freedoms that are of real importance in a modern democracy, and not with negligent operational decisions taken by busy police officers. Mr. Faulks also contends that, if this claim succeeded, it would have some surprising consequences, the floodgates then being opened to an almost limitless prospect of possible claims by alleged victims of operational decisions by police officers acting in the execution of their duty. Misjudgments will inevitably occur in everyday, operational matters and, even under the Human Rights Act, the approach should be that such misjudgments remain, for good reason, non-justiciable save in the most exceptional circumstances.[65]He therefore contends that the threshold of risk for such a claim as this must be set high. The UK Government’s submissions in Osman, that the positive obligation to take preventive measures to protect life can arise only in exceptional circumstances, was accepted by the Court. Such circumstances, he submits, might include, for example, a failure to respond to a terrorist threat or in a hostage situation where specific and credible threats to life had been made, but would not include circumstances such as those in the present case where there could not be said on the facts to be a real and immediate risk to Giles’ life. Further, Mr. Faulks submits that the domestic authorities relied on by the Claimants as establishing a lower threshold of risk are of limited assistance, because Giles’ status as a witness should not place him in any special category, so far as protection is concerned, and witnesses do not fall within the categories of those to whom any duty of care is owed at common law. This case is not concerned with a failure to protect a person in state custody or an informer, but a prosecution witness living in the community. In these circumstances the threshold should be set at least as high as knowledge or constructive knowledge of a risk to life that was real and immediate. On the facts in this case the Claimant has failed to establish such a risk and Article 2 is therefore not engaged. The claim under Article 8 adds nothing of significance and the same arguments apply, so that the claim fails under that Article in addition.[66]Ms. Carss-Frisk, in response, submits that none of the common law cases referred to is of any direct relevance to this claim, which must be decided under the Human Rights Act and in accordance with human rights principles. However, she also submits that success for these Claimants would not result in any event in any inconsistency between human rights jurisprudence and the common law. The authorities relied upon by Mr. Faulks themselves recognised that there would be exceptions to the policy of police immunity from suit at common law and, on the facts of this case, given the highly culpable conduct in respect of an identified individual in a category of persons at special risk, the Claimants would be likely to have succeeded in a claim against the Defendant for negligence. To the extent that it is considered that they would not or might not have succeeded at common law however, that can have no bearing on the claim under the Act, given the fundamental and unqualified nature of the human rights in play in this case.[67]My Conclusions It is necessary first to consider the common law cases on which Mr. Faulks relies and to analyse the factual basis for the decisions with care, given the emphasis placed on them by the parties in their submissions. In Hill v. The Chief Constable of West Yorkshire, the Claimant’s daughter was attacked and killed by the Yorkshire Ripper and the Claimant brought proceedings alleging that her death occurred because the police had been negligent in their conduct of investigations into earlier similar crimes against young women committed by the same man. The claim was struck out as disclosing no cause of action and the Claimant failed in her appeals to the Court of Appeal and the House of Lords. Assuming the facts averred in the statement of claim to be true Lord Keith, with whom the other members of the House agreed, identified the question of law at page 59A as “… whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty”.[68]On the facts of the case he held that there was no general duty of care owed by police officers to identify or apprehend an unknown criminal, nor did they owe a duty of care to members of the public who might suffer injury through the criminal’s activities, save where their failure to apprehend him had created an exceptional added risk, different in incidence from the general public at large from criminal activities, so as to establish sufficient proximity of relationship between the police officers and the victims of the crime. Although, it could have been reasonably foreseen that the criminal, if not apprehended, would be likely to harm young female members of the public, the fact that the Claimant’s daughter had been young and female did not of itself place her at any special distinctive risk. There being no other additional characteristics capable of establishing a duty of care owed towards her by the Defendant in relation to the apprehension of the criminal, it would not be fair, just and reasonable for such a duty to be imposed and the judge had been right to strike out the statement of claim as disclosing no cause of action. Further, whilst this ruling was sufficient to dispose of the appeal the House of Lords held that, as a matter of public policy, the police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime, applying the case of Rondel v. Worsley [1969] 1 AC 191.[69]In Brooks v. Metropolitan Police Commissioner the House recently reconsidered the decision in Hill and the question of police immunity from suit in negligence. The Claimant, a friend of Stephen Lawrence, was present when the racist and fatal attack took place in April 1993 and was himself abused and attacked. Following the findings of the Macpherson Inquiry that the police investigation was badly conducted and that the Claimant was not treated as he should have been, the Claimant issued proceedings against the Commissioner in April 1999 alleging negligence and seeking damages for psychiatric injury suffered as a result of the inappropriate and unacceptable treatment of him by the police. The judge at first instance acceded to an application to strike out the claim, but the Court of Appeal allowed his appeal. On the Commissioner’s appeal, the House of Lords, whilst reluctant to endorse the full breadth of the decision in Hill, concluded that the decision had been correct on its own facts. Further, the facts which arose in the Brooks appeal had already been exhaustively investigated in the course of the Inquiry, so as to render any further exploration of the facts unlikely to reveal anything new and of assistance to the Claimant in establishing that a duty of care had been owed to him and had been broken. In any event, the duties alleged by the Claimant, namely failing to take reasonable steps to assess whether he was a victim of crime; to afford him the protection, assistance and support commonly afforded to a key eye-witness of a serious crime, and to afford reasonable weight to his account of events and act upon it, were duties which could not even arguably be imposed on police officers charged in the public interest with the investigation of a very serious crime and the apprehension of those responsible. No modification of the ratio in Hill would accommodate the duties alleged in this case, which were inextricably bound up with the police function of investigating crime and therefore could not survive. The claim had rightly been struck out and the appeal was allowed.[70]Recognising the importance of the Hill decision Lord Steyn, with whom the other members of the House agreed, drew attention to the case law developments since that decision which affected its reasoning in part, including, for example, the reliance placed by the House on the barrister’s immunity in Rondel v. Worsley, which no longer exists, and recognition generally that nowadays a “more sceptical approach to the carrying out of all public functions” is necessary. More fundamentally Lord Steyn said at paragraph 27:
“Since the decision of the European Court of Human Rights in Z v. UK [2001] 34 EHRR 97 at 138 (para 100), it would be best for the principle in Hill’s case to be reformulated in terms of the absence of a duty of care rather than a blanket immunity.”
[71]At paragraphs 30 to 31, however, Lord Steyn said: “[30] But the core principle of Hill's case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill's case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004, SI 2004 / 645. But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence: see s 29 of the Police Act 1996, read with Sch 4 as substituted by s 83 of the Police Reform Act 2002; s 17 of the Police (Scotland) Act 1967; 36(1) Halsbury's Laws (4th edn reissue) para 524; The Laws of Scotland, Stair Memorial Encyclopaedia (1995) vol 16, para 1784; Moylan Scotland Yard and the Metropolitan Police (1929) p 34. A retreat from the principle in Hill's case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combating crime. [31] It is true, of course, that the application of the Hill principle will sometimes leave citizens, who are entitled to feel aggrieved by negligent conduct of the police, without a private law remedy for psychiatric harm. But domestic legal policy, and the Human Rights Act 1998, sometimes compel this result. In Brown v Stott (Procurator Fiscal, Dunfermline) [200] 2 All ER 97 at 114, [2003] 1AC 681 at 703, Lord Bingham of Cornhill observed: ‘The convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from "The heart-ache and the thousand natural shocks that flesh is heir to”.’ I added ([2001] 2 All ER 97 at 118, [2003] 1 AC 681 at 707-708): `In the first real test of the Human Rights Act 1998 it is opportune to stand back and consider what the basic aims of the convention are ... The inspirers of the convention, among whom Winston Churchill played an important role, and the framers of the convention, ably assisted by English draftsmen, realised that from time-to-time the fundamental right of one individual may conflict with the human right of another ... They also realised only too well that a single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: the convention is the descendant of the Universal Declaration of Human Rights (Paris, 10 December 1948; UN TS 2 (1949); Cmd 7226) which in art 29 expressly recognised the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others.' Unfortunately, when other specific torts and the 1976 Act (as amended) are inapplicable, an aggrieved citizen may in cases such as those under consideration have to be content with pursuing a complaint under the constantly improved police complaints procedure: see the Police Reform Act 2002, the Police (Conduct) Regulations 2004 and Police (Complaints and Misconduct) Regulations 2004, SI 2004/643. For all these reasons, I am satisfied that the decision in Hill's case must stand.” ‘The convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from "The heart-ache and the thousand natural shocks that flesh is heir to”.’ `In the first real test of the Human Rights Act 1998 it is opportune to stand back and consider what the basic aims of the convention are ... The inspirers of the convention, among whom Winston Churchill played an important role, and the framers of the convention, ably assisted by English draftsmen, realised that from time-to-time the fundamental right of one individual may conflict with the human right of another ... They also realised only too well that a single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: the convention is the descendant of the Universal Declaration of Human Rights (Paris, 10 December 1948; UN TS 2 (1949); Cmd 7226) which in art 29 expressly recognised the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others.'[72]Nevertheless, even in Hill the House had recognised that, applying the proximity test, there might be exceptional circumstances where a Claimant would be able to demonstrate that she or he was at a “special distinctive risk” or that there were other additional characteristics capable of establishing a duty of care owed to a particular victim of crime, in circumstances where it would be fair, just and reasonable for such a duty to be held to exist. Similarly, whilst deciding that the duties of care pleaded in the case could not survive Hill’s core principle, Lord Steyn recognised in Brooks that exceptional cases could arise, observing both, at paragraph 29, that cases of assumption of responsibility under the extended Hedley Byrne doctrine fall outside the Hill principle and render it unnecessary to consider if it was fair, just and reasonable to impose liability; and, at paragraph 34, that:
“[34]It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the Hill principle. It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise. But such exceptional cases on the margins of the Hill principle will have to be considered and determined if and when they occur.”

Lord Nicholls also recognised that:

“There may be exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law. Then the decision in Hill's case should not stand in the way of granting an appropriate remedy.”
[73]It is correct, as Ms. Carss-Frisk points out, that the claim in Brooks relied solely on common law negligence and was not a claim brought under the Human Rights Act. The speeches contain no analysis of the case of Osman or of any other authority dealing with the right to life or any other Convention right. Further, Lord Steyn’s observations at paragraph 31 as to the limits, on occasions, of domestic legal policy and of the Human Rights Act were made in the context of a private law claim, the essence of which was that the police had treated the claimant with disdain and with less than appropriate respect, causing him to sustain psychiatric injury. There were clear, public policy concerns in such circumstances as to the police being diverted from their prime law enforcement functions by fear of causing psychiatric harm to potential witnesses or complainants.[74]It is also correct, as Mr. Faulks submits, that the House of Lords in both Hill and Brooks were having to balance competing public interests, in seeking to address the rights of injured individuals to seek redress for injury inflicted as a result of police negligence, and the need not to impede the ability of the police to perform their public functions in the interests of the general community fearlessly and with despatch, and the detrimental effects for law enforcement if a general duty of care to victims and witnesses was imposed.[75]Yet it is the same, competing policy considerations which the Court of Human Rights had in mind in Osman, and which led them to formulate the positive obligation on the police authorities under Article 2 in the way that they did. The conclusion was that in every case where a breach of that obligation was alleged, the Court, in determining the matter on the particular facts before it, should do so having regard both to the fundamental nature of the Article 2 obligation and to the need not to impose a disproportionate or impossible burden upon the authorities, given the demands and pressures posed by modern policing methods and requirements.[76]There is no conflict, in my judgment, between the common law and human rights jurisprudence in this area. Those cases in which, on their particular facts, the existence of the Article 2 positive obligation to protect life would impose a disproportionate or impossible burden on the police, would inevitably be cases where no duty of care would be held to exist at common law. Those cases in which the claimant succeeds could well be cases in which, as Lord Nicholls observed in Brooks, the absence of a common law remedy in negligence, sounding in damages, would be regarded as an “affront to the principles which underlie the common law.”[77]Ms Carss-Frisk however is correct in my judgment in submitting that this case is to be determined in accordance with the statutory provisions and human rights principles. The court is involved in a different exercise in a section 7 claim for breach of the Article 2 obligation, at the heart of which is recognition of the fundamental human right to life. This is the inevitable consequence of incorporation of the Convention.[78]It follows from the above that I do not accept Mr. Faulks’s submission that it is necessary, having regard to the policy considerations referred to in Hill and Brooks, to “set the bar high” in relation to the Article 2 positive obligation. This in my view would result in an artificial and arbitrary cap on the fact-sensitive nature of the obligation upon states to take appropriate steps to safeguard the lives of those within its bounds. The Court of Human Rights in Osman expressly rejected, as imposing too rigid a standard, the UK Government’s submissions as to the need to establish that there had been gross negligence by the police or a wilful disregard of their duty. Nor did they endorse the need for “exceptional circumstances” to be shown in every case, expressing it rather in terms of a “real and immediate” risk of which the police knew or ought to have known.[79]The domestic authorities, analysed correctly, do not in any sense lower the Osman threshold. Rather the Courts have recognised the need, on the particular facts in those cases, to approach the issues more broadly because the existence of the Article 2 obligation will be a question of fact and degree in every case. This, in my judgment, does not negate but rather embraces the public policy considerations in Hill and Brooks whilst viewing them, as is now required, through the human rights lens.[80]Nor do I consider that this will inevitably result in open season for limitless claims against the police or other state authorities for breaches of the Article 2 obligation, as Mr. Faulks suggested. The essential point is that there will always be the most careful examination by the Court of the particular circumstances in which the obligation is said to arise and to have been breached. Mr. Faulks’ attempts to indicate the factual scenarios where the obligation might arise in future demonstrates, with respect, the futility of such an exercise. In the specific example he gave, where hostages had been taken by terrorists who made specific and credible threats to kill, a positive obligation to take preventive and protective measures to protect the life of such hostages might well be held to impose an unduly onerous or impossible burden upon police officers, if it were found on the facts that there were no appropriate, protective measures reasonably available to them in all the circumstances. On the other hand, police officers who deliberately ignored reliable information that a known criminal was intending to murder a vital witness at a specified time and place and who could readily have arrested the criminal or removed the witness to a place of safety, might well be found to be in breach of the Article 2 obligation if the information proved to be correct.[81]I turn then to my conclusion on the particular facts of this case which, for the following reasons, is in favour of the Claimants. In the first place, as DC Ridley accepted in evidence, Giles was an important Prosecution witness in Brougham’s trial. The letter sent to him (Bundle B, 227) was in mandatory terms, informing him that he was an “absolute” witness, whose evidence was “crucial to the case” and that he “must attend”. DC Ridley accepted in cross-examination that Giles was one of a number of crucial witnesses in the case and that, as the officer in the case, he was the person to whom witnesses would look for support and protection. I accept Ms Carss-Frisk’s submission that Giles was therefore in a category of persons separate and apart from ordinary members of the public, exposed by the state to potential risks as a witness and entitled to look to the state for a reasonable level of protection from such risks, depending on the degree of risk and the extent to which it was realised.[82]Members of the public who are complainants or prosecution witnesses in a criminal investigation and who are required to give material evidence at trial are in a special situation, as the existence of the Defendant’s witness protection policy recognises. Quite apart from a judge’s general powers to issue a warrant for the arrest of a witness who fails to attend court pursuant to a witness order, to remand him or her in custody and to punish such a witness for contempt, Parliament has recognised the need for witnesses to be protected from defendants in criminal proceedings, with specific provision in the Bail Act 1976 for the risk of interference with witnesses to be dealt with by the imposition of bail conditions or even by the withholding of bail. Various, special measures (giving evidence through live TV link or from behind screens, for example) exist for witnesses whose evidence at trial is likely to be diminished due to a number of factors including intimidation, fear or distress. There are a number of pre-trial arrangements now in place to familiarise witnesses with the court procedures and to ensure that appropriate witness support is available at court, where needed. All of these provisions recognise the special position of people who are witnesses and who are required to attend our courts and give evidence in criminal trials.[83]DC Ridley, an experienced police officer and the officer in the case, was in possession of all the facts relating both to the investigation of the offences for which Brougham was to stand trial and to the witnesses required by the Prosecution to give evidence; or he was in a position to acquire knowledge of all those facts through appropriate enquiries. It was therefore for DC Ridley, and not for Giles or the Claimants, to investigate the reported instances of threats and witness interference, to analyse the available information and evaluate the risk, and to consider whether, and if so what, protective measures would be required to reduce or remove it. The Defendant’s own witness protection policy envisages some form of response in all cases where witness intimidation has occurred and not simply in those cases involving the most serious crimes of violence or targeted criminals. In Tier 2 cases, involving a threat of danger, the policy contemplates that some protective action should be taken. DC Ridley’s lack of awareness of the policy and its contents perhaps explains, in part, his failure to respond to the signs of what, in my view, was at the time an escalating pattern of intimidation, involving both Giles and other Prosecution witnesses, in the weeks leading up to the trial and the fatal attack.[84]Part of this escalating pattern was the improper approach to Mr. Panayiotou made by Brougham on two occasions, on 10th August and 13th October, of which DC Ridley was aware. His discussions with Prosecution counsel re the first of these approaches at the pleas and directions hearing on 20th September were not about Giles and not about protection. His discussions at the subsequent severance hearing on 25th October related to the possibility of prosecuting Brougham for interfering with witnesses and did not raise any issue of protection for them. In any event Mr. Faulks has made clear on the Defendant’s behalf that he places no reliance on DC Ridley’s evidence of advice received from prosecuting counsel, since witness protection is an operational matter.[85]The threat by Brougham on the telephone to Giles on 13th October led DC Ridley to consider only the bringing of criminal charges against Brougham and not the need for any protection for Giles. When Mr. Panayiotou suffered the two fires at the end of October and suggested that Brougham was behind them DC Ridley failed to take any steps beyond suggesting that if Mr. Panayiotou was concerned he could get in touch with the Metropolitan Police. Inquiries with the local police or the Fire Brigade would have elicited the information from Mr. Hodgens that the fire to the premises was deliberately started. They were inquiries which ought to have been made, as DC Ridley accepts. Further, whilst it was not known at the time when it occurred that Giles’ car had also deliberately been set on fire, inquiries with Giles and sensible exchange of information after the fires suffered by Mr. Panayiotou would have been likely to elicit information about the fire to his car a month earlier.[86]This failure at any stage to consider and evaluate the risk to Giles and to think about his protection continued into November when, even after the report of Brougham’s further telephone call to Giles reached him, DC Ridley failed to appreciate the urgency of the situation and was intending to deal with the matter by arresting Brougham only after having obtained a formal statement from Giles with a view to prosecution. An appointment was made for this purpose on 23rd November because he was too busy on the other inquiry to see Giles before then.[87]I agree with Ms. Carss-Frisk that on these facts, the positive obligation in Article 2 was engaged and was breached. A specific and serious threat was made to Giles by an identified individual, which DC Ridley accepted carried with it a risk to life that he should have appreciated at the time, namely 13th October. Fires to Mr. Panayiotou’s property at the end of October and a further threat made to Giles on 9th November and subsequently conveyed to DC Ridley failed to result in any response by him to these escalating incidents. I do not accept Mr. Faulks’s submission that DC Ridley exercised his judgment as to the need for protective measures and, understandably, reached what was in fact the wrong conclusion that none was required. This is not in my view a permissible interpretation of the facts. The evidence establishes to my satisfaction that he did not exercise his judgment at all so far as protection was concerned. The obvious measure, readily available to him, was to arrest Brougham before 22nd November and to ask the Court to revoke his bail; or Giles could have been advised about protection and placed in temporary accommodation pending the conclusion of the trial. The following passages from the transcript of DC Ridley’s evidence at trial are illuminating in this respect, commencing with some questions from the judge:
“Q……Have you not had the experience of going to a judge and saying, “Judge, you gave this chap bail and here he is interfering with witnesses”? A. Not in those circumstances, my Lord, no. Q. Have you not? A. I have dealt with breaches and people who are breaching bail conditions. In relation to Mr. Brougham it was the witness intimidation. He had actually been arrested for witness intimidation. He had actually been arrested for witness intimidation and perverting the course of justice. That is the way I was trying to explain the reasons post Giles’ murder. He was arrested for those particular offences. The custody sergeant was not happy. Q. You see the difference? A. Yes, I do, my Lord, yes. Q. In order to justify a charge you have got to have the prospect of a conviction for a particular offence? A. That is right. Q. To deny a chap bail when he was awaiting trial all you have to do is show to the judge that there is a risk that he might commit another offence, i.e. do something to a witness or interfere with the course of justice to try and persuade a witness not to give evidence. That is all he has got to do. A. I understand that, my Lord. ………… Ms. Carss-Frisk: ……it did not occur to you to take measures to ensure that that did happen, that a judge would indeed look at the question of Brougham’s bail? A. That is right, my Lord, yes. Q. Yes, because you just did not think of the need to protect Giles? A. That is right, my Lord, yes. Q. ……it did not occur to you to take any other measures that might have served to protect Giles either, such as providing him with alternative temporary accommodation pending the trial? I assume that did not occur to you? A. No, my Lord. Q. No. Nor even speaking to Brougham at that stage, fingering him, as his Lordship put it earlier today. That does not seem to have occurred to you either? A. No, my Lord.”
Q. Have you not? Q. You see the difference?

Q. Yes, because you just did not think of the need to protect Giles?

[88]There was on the particular facts of this case a real risk of harm to Giles as a prosecution witness in a trial, the date for which was rapidly approaching; it was a risk of which DC Ridley knew or ought to have known; and there were appropriate measures reasonably available to him to alleviate or obviate that risk. The appropriate threshold of risk was therefore passed in order for the Article 2 obligation to be engaged. Mr. Faulks does not suggest, if the obligation is engaged, that there was no breach and on the facts, in my view, there clearly was. In fact I am also satisfied that the risk to Giles on these facts was immediate, in Osman terms. The threats made to him and the acts of intimidation during October and November were all manifestly linked to the impending trial and were clearly made with a view to preventing that trial from taking place.[89]I should add, for completeness, that I am not persuaded, as Mr. Faulks submitted, that the decisions in Hill and Brooks would have led inevitably to a claim brought by these Claimants in negligence being dismissed on the basis that there was no duty of care owed to Giles by the police. The Claimant’s daughter in Hill was one of “a vast number of the female general public” who might be at risk from the activities of a serial rapist, but was “at no special distinctive risk” in relation to them, and at the relevant time the identity of the rapist/murderer was unknown. Nor had any action by the police or prosecution authorities created a potentially dangerous situation for the victim or resulted in the victim being in a special category of individuals entitled to look to the state for protection as a result. There were, in addition, particular concerns about such claims requiring the court to “enter deeply into the general nature of a police investigation”, when the manner or conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example, as to which particular line of inquiry is most advantageous to be pursued and what is the most advantageous way to deploy the available resources (see Lord Keith at page 63E-G). In Brooks the Claimant alleged, essentially, an exacerbation of his post traumatic stress disorder as a result of the police treatment of him as a victim and potential witness.[90]Neither claim therefore was concerned with the far more serious situation, both in terms of the conduct complained of and its consequences, of the failure to protect the life of a crucial witness in a criminal prosecution, who had reported threats to his safety by a Defendant and when that Defendant had also intimidated and interfered with other Prosecution witnesses in the same case.[91]In the present case it seems to me that Giles was, by virtue of his status as a witness, in a special category of persons separate and apart from members of the public generally or from a broad section of the general public. As a prosecution witness who was threatened and intimidated by a defendant he was someone at special and distinctive risk of harm. The Hertfordshire witness protection policy recognised the entitlement of Prosecution witnesses to protection from intimidation and established guidelines and procedures for police officers to follow in arriving at operational decisions about protection in such cases, thus acknowledging the existence of a special relationship between police officers and witnesses, which would involve an assumption of responsibility by them, which responsibility increased once threats had been made. As the Defendant accepts, the identity of Brougham as the person from whom Giles required protection was known at the relevant time.[92]Nor is this a case which calls into question the nature of a police investigation or the deployment of resources and determination of priorities. By imposing a duty of care on the facts of this case DC Ridley would not be required to be diverted from his prime function as a police officer in preventing crime and protecting life and property. On the contrary, he would be required to act in accordance with it. In terms of the public interest such a decision would seem to me to strike a reasonable balance between the need to avoid overly defensive policing, on the one hand, and the need to ensure that individual witnesses are prepared to come forward and give evidence at criminal trials, on the other.[93]Further support for this approach is to be found in the decision of the Court of Appeal in Swinney v. Chief Constable of Northumbria Police Force [1997] QB 464, in which the Claimants as police informers alleged a breach of the duty of care and breach of confidence by the police in failing to store their personal details (name and address etc) safely, so that the information came into the hands of the individual about whom they had given information, who then threatened them with both violence and arson. In dismissing the Chief Constable’s appeal from the High Court decision not to strike out the claim the Court of Appeal considered it arguable that a duty of care arose on these facts, Hirst LJ holding at page 478H-479B, that the case at least arguably fell into the Dorset Yacht category rather than the Hill category on proximity. He considered it arguable on the facts that a special relationship did exist, which rendered the Claimants distinguishable from the general public as being particularly at risk. The Court so held, having regard in particular to the public policy considerations in favour of finding a duty of care referred to by Hirst LJ at page 484B:
“As Laws J. pointed out in his judgment, there are here other considerations of public policy which also have weight, namely, the need to preserve the springs of information, to protect informers, and to encourage them to come forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates. In my judgment, public policy in this field must be assessed in the round, which in this case means assessing the applicable considerations advanced in the Hill case [1989] A.C 53, which are, of course, of great importance, together with the considerations just mentioned in relation to informers, in order to reach a fair and just decision on public policy.”
And by Ward LJ at page 487C-D as follows:
“The public interest will not accept that good citizens should be expected to entrust information to the police, without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected. The welfare of the community at large demands the encouragement of the free flow of information without inhibition. Accordingly, it is arguable that there is a duty of care, and that no consideration of public policy precludes the prosecution of the plaintiffs’ claim, which will be judged on its merits later.”
[94]In the circumstances I also find, in addition, that there was a violation of Article 8. The culpable failure to protect Giles’ life and the subsequent loss of his life obviously led to the complete destruction of his family life. Mr. Faulks does not suggest in this case that a violation of Article 2, if found, would not result also in a violation of Article 8. I so find.[95]Causation Mr. Faulks submits that, in order to obtain a declaration and damages the Claimants must establish a causative link between the violations of Articles 2 and 8 and the murder of Giles. Alternatively, if the Claimants are entitled to a declaration without proof of causation, they must still establish causation on the usual common law principles in order to obtain damages. In this way human rights jurisprudence will run in tandem with the common law. Mr. Faulks suggests that the Court of Human Rights impliedly recognised in the Osman case that a causative link would have been necessary in order to establish liability. Further, given the recognised lack of coherence on the question of remedy in the Strasbourg case law, there being little by way of principle in the Court’s decisions relating to causation and quantification of loss, this Court should hold that the proper approach is to apply a “but for” test. Applying that test to the facts of this case it cannot be said that, but for the police failures and mistakes, Giles would not have lost his life; or that anything DC Ridley might have done would probably have altered the eventual, tragic outcome.[96]In considering these submissions I recognise, in the first place, that section 7 of the Human Rights Act created a new cause of action, which can found a claim for relief, including damages, against a public authority which has acted unlawfully in breach of Convention rights. Section 8(1) authorises a court which has found that an act or acts of a public authority were unlawful to grant “such relief or remedy, or make such order, within its powers as it considers just and appropriate”. As the Law Commission said in their report, Damages under the Human Rights Act (Law Commission No 266(2000)) at paragraph 4.20:
“Sections 6 and 7 of the HRA create a new cause of action, which is in effect a form of action for breach of statutory duty, but with the difference that the remedy is discretionary rather than of right.”
[97]The principles on which damages in respect of a breach of a Convention right may be awarded are set out in sections 8(3) and (4). By section 8(3) damages are to be awarded only when the Court is satisfied that they are necessary to afford just satisfaction to the victim, taking account of all the circumstances of the case, including any other remedy granted by the Court. Section 8(4) requires the Court to take into account the principles applied by the Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. I accept Mr. Faulks’ submission, however, that it is difficult to identify a concrete set of principles from the case law on Article 41. Further, it is not uncommon for the Strasbourg Court to decline to award any compensation in some cases, on the basis either that a declaration of unlawful conduct is found to provide a sufficient remedy for an Applicant in the particular circumstances, or that the Applicant is considered to be undeserving in some way.[98]However, the absence of clear principles is not surprising since the Strasbourg Court always decides questions of remedy according to the particular facts before them and to what they consider to be the justice of the individual case. Damage is not a necessary ingredient of a Convention violation. It is possible, therefore, for there to be a violation of a Convention right that has not caused an Applicant any damage, in which case the Court does not award any remedy beyond declaring that the Applicant’s right has been violated. For these reasons, in my view, Claimants who bring a claim under section 7 of the Human Rights Act do not have to show damage in order to seek a declaration that Convention rights have been violated.[99]Mr. Faulks’ main point is the need, in his submission, for a Claimant to establish causation of damage on common law principles in order to obtain damages for any such violation. Ms. Carss-Frisk, whilst accepting that a Claimant must establish that the violation has caused him loss, submits that Convention jurisprudence has tended to adopt a more flexible approach to causation of loss than the “but for” or “balance of probabilities” test applied in our common law and that I should adopt the same approach in this case.[100]The particular passage in the Osman case, upon which Mr. Faulks relied, is paragraph 121, where the Court said:
“121. In the view of the Court the applicants have failed to point to any decisive stage in the sequence of the events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. While the applicants have pointed to a series of missed opportunities which would have enabled the police to neutralise the threat posed by Paget-Lewis, for example by searching his home for evidence to link him with the graffiti incident or by having him detained under the Mental Health Act 1983 or by taking more active investigative steps following his disappearance, it cannot be said that these measures, judged reasonably, would in fact have produced that result or that a domestic court would have convicted him or ordered his detention in a psychiatric hospital on the basis of the evidence adduced before it.”
I agree with Ms. Carss-Frisk that these words cannot be construed as implying a requirement for a “but for” causation test. The Court is referring in that paragraph to one of the factors supporting their conclusion that there had, on the facts, been no violation of Article 2. To construe them as implying a “but for” test would result in an inconsistency with the key paragraph in the Court’s reasoning relating to the nature of the obligation under Article 2 and what a Claimant must establish to succeed. In this paragraph, namely, paragraph 116, the Court held that it was necessary to consider whether the state had failed to take measures which, judged reasonably, “might have been expected” to avoid the risk. In addition, in relation to Article 6 and to causation of loss, the Court having found a breach of Article 6, then held at paragraph 164:
“… the Court cannot speculate as to the outcome of the domestic proceedings had the applicants' statement of claim not been struck out. It considers nevertheless that the applicants were denied the opportunity to obtain a ruling on the merits of their claim for damages against the police. Deciding on an equitable basis it awards each of the applicants the sum of £ 10,000.”
[101]Further, considerable assistance is provided by the recent case of E v. United Kingdom, App No. 33218/96, judgment 26 November 2002, in which the Applicants alleged that the Dumfries and Galloway Regional Council (the local authority) had failed to protect them from abuse by their step-father, invoking Articles 3, 8 and 13 of the Convention. The Strasbourg Court concluded on the facts that the authority had failed to take steps which would have enabled them to discover the extent of the problem and, potentially, to prevent further abuse taking place and that there had been a breach of Article 3. In relation to causation of damage the Court held as follows at paragraphs 99-100:
“99. The Court recalls that the Government argued that notwithstanding any acknowledged shortcomings it has not been shown that matters would have turned out any differently, in other words, that fuller co-operation and communication between the authorities under the duty to protect the applicants and closer monitoring and supervision of the family would not necessarily have either uncovered the abuse or prevented it. The test under Article 3 however does not require it to be shown that "but for" the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State. 100. The Court is satisfied that the pattern of lack of investigation, communication and co-operation by the relevant authorities disclosed in this case must be regarded as having had a significant influence on the course of events and that proper and effective management of their responsibilities, might, judged reasonably, have been expected to avoid, or at least, minimise the risk or the damage suffered.”
[102]Whilst I accept Mr. Faulks’ submission that there is a risk of error if decisions of the Strasbourg Court given in relation to one Article of the Convention are simply read across as applicable to another, I am satisfied that such a risk is not realised here in concluding, as I do, that no greater burden should be imposed upon a Claimant, in engaging the responsibility of the state authorities for a failure to comply with their positive obligation to protect life under Article 2, than that which is imposed under Article 3.[103]Mr. Faulks relied on the decision of the House of Lords in R (Greenfield) v. Secretary of State for the Home Department [2005] 1 WLR 673, in support of his submissions and on the observations of Lord Bingham at paragraph 7 as to the risks of error. At paragraph 7 he said:
“7 It is desirable for present purposes to concentrate on the Strasbourg approach to the award of damages on finding that article 6 has been violated. Article 6 seeks to ensure that everyone, in the determination of their civil rights and obligations or of any criminal charge against them, shall enjoy a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law with judgment given in public. Criminal charges entail additional rights: the presumption of innocence, the right to be informed of the charge, the right of a person to defend the charge himself or through legal assistance of his own choosing. These are important rights, and significant violations are not to be lightly regarded. But they have one feature which distinguishes them from violations of articles such as article 3, where an applicant has been tortured, or article 4, where he has been enslaved, or article 8, where a child has been unjustifiably removed from its family; that it does not follow from a finding that the trial process has involved a breach of an article 6 right that the outcome of the trial process was wrong or would have been otherwise had the breach not occurred. There is an obvious contrast with article 5, guaranteeing the right to liberty and security of the person, which provides in paragraph 5: ‘Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.’ There is a risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another.”
It is clear, however, that Lord Bingham’s remarks related to the different considerations which arise in relation to breaches of Article 6, which do not arise, of course, in the present case.[104]Lord Bingham also observed, however, at page 681g that, even in relation to breaches of Article 6, the Strasbourg Court has “on occasion been willing in appropriate cases to make an award if of the opinion that the Applicant has been deprived of a real chance of a better outcome”. It has done so in cases “where it was persuaded that

justice required it to do so” and, as he recognised at page 682b:

“Wisely, in my opinion, the Court has not sought to lay down hard and fast rules in a field which pre-eminently calls for a case by case judgment and the Court’s language may be taken to reflect its assessment of the differing levels of probability held to attach to the causal connection found in individual cases.”
[105]In my judgment that fact-sensitive approach, having regard to the justice of a particular case, should guide the domestic courts in exercising the discretion given to them under the Act as to the appropriate remedy for a Claimant who has established a violation by the state of its obligation to take protective measures to protect his life from the criminal acts of a third party. In order for the Court to be satisfied that an award of damages is necessary to afford just satisfaction to a victim of the state’s breach of Article 2, the victim does not have to prove causation of damage on the “but for” test. In this case the proper question, in my view, is whether the protective measures that were reasonably open to DC Ridley in the circumstances could have had a real prospect of altering the outcome and avoiding Giles’ death. The answer to that question is plainly yes. Indeed, on the evidence, I consider it to be more likely than not that Giles’ death would have been avoided had these steps been taken. DC Ridley fairly accepted in cross-examination that, if he had complied with the witness protection policy, there would have been a real prospect that Giles’ life would have been saved.[106]I do not accept Mr. Faulks’ submissions that it is unlikely that Brougham’s bail would have been revoked if he had been returned to court; or that, if conditions had been attached to his bail, they would not have prevented the murder; or that even if Brougham had been remanded in custody, he was capable of getting others to act on his behalf and the murder might well still have taken place. This latter suggestion is, in my judgment, fanciful on the evidence in this case, notwithstanding that others may well have been involved with Brougham in the arson attacks or in the murder itself. If Brougham had been arrested and if DC Ridley had taken steps to discover the extent of his activities and the Court was informed of the approaches and threats which had been made to both Giles and Mr. Panayiotou, and indeed the other witnesses Lee Atkinson and John Heward, I consider it is highly likely that his bail would have been revoked and Brougham remanded into custody. Even if bail was continued but made conditional, upon Brougham’s not interfering with Prosecution witnesses and/or not entering within specified areas where Giles’ lived and worked, the very fact of his arrest, his court appearance and the risk of custody upon breach of the conditions would be likely in my judgment to have resulted in a cessation of the intimidation and Giles’ death would not have occurred. Clearly, if Giles had been placed in temporary safe accommodation pending the trial, as was considered in the case of the witness Lee Atkinson after Giles’ death, it is very unlikely that the murder would have taken place. There was, for all these reasons, at the very least a real prospect of avoiding this tragedy.[107]Remedy I therefore grant the declaration sought that the Defendant has acted unlawfully, in violation of both Article 2 and Article 8, by failing to discharge their positive obligation to protect Giles’ life.[108]I am also satisfied that, in all the circumstances and in order to do justice in this case, the Claimants should receive an award of damages, because they are necessary to afford just satisfaction to them. In my view damages are the most appropriate remedy in this case and it is common ground that the Strasbourg Court normally awards damages in cases where there has been a violation of Article 2.[109]In relation to the measure of damages it is clear that the sections of the Human Rights Act referred to above establish a code for the award of damages, which has to be applied with due regard to the Strasbourg jurisprudence. In the Anufrijeva case (referred to earlier in this judgment) the Court of Appeal held as follows at paragraphs 55-56: “55 The code recognises the different role played by damages in human rights litigation and has significant features which distinguish it from the approach to the award of damages in a private law contract or tort action. The following points need to be noted.(a) The award of damages under the HRA is confined to the class of unlawful acts of public authorities identified by section 6(1): see section 8(1) and (6).(b) The court has a discretion as to whether to make an award (it must be ‘just and appropriate’ to do so) by contrast to the position in relation to common law claims where there is a right to damages: see section 8(1).(c) The award must be necessary to achieve ‘just satisfaction’; language that is distinct from the approach at common law where a claimant is invariably entitled, so far as money can achieve this, to be restored to the position he would have been in if he had not suffered the injury of which complaint is made. The concept of damages being ‘necessary to afford just satisfaction’ provides a link with the approach to compensation of the Court of Human Rights under article 41.(d) The court is required to take into account in determining whether damages are payable and the amount of damages payable the different principles applied by the Court of Human Rights in awarding compensation.(e) Exemplary damages are not awarded. 56 In considering whether to award compensation and, if so, how much, there is a balance to be drawn between the interests of the victim and those of the public as a whole. The requirement to adopt a balanced approach was recognised in the White Paper (Rights Brought Home: The Human Rights Bill (1997) (Cm 3782)) where the following comments were made, at para 2.6, under the heading ‘Remedies for a failure to comply with the Convention’: ‘A public authority which is found to have acted unlawfully by failing to comply with the Convention will not be exposed to criminal penalties. But the court or tribunal will be able to grant the injured person any remedy which is within its normal powers to grant and which it considers appropriate and just in the circumstances. What remedy is appropriate will of course depend both on the facts of the case and on a proper balance between the rights of the individual and the public interest. In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages.’ (Emphasis added.) The court has a wide discretion in respect of the award of damages for breach of human rights. Scorey & Eicke, Human Rights Damages, Principles and Practice, looseleaf ed, do not view this wide discretion as problematic. Instead, at para A4-035, they consider it to derive from the nature of the new approach created by the HRA: ‘Given that it is anticipated that the majority of cases in which civil claims will be brought under the HRA will be by way of judicial review which has always been discretionary, it is appropriate that section 8(1) of the HRA also has a broad discretionary nature ... Also, the language of a 'just and appropriate' remedy is not novel, either to the United Kingdom nor to other human rights instruments.’ In their analysis of the phrase ‘just and appropriate’, Scorey & Eicke consider the case law in respect of similarly phrased statutes in Canada and South Africa and conclude that it would not be surprising if the English courts took an approach similar to that of those jurisdictions. In essence this involves determining the ‘appropriate’ remedy in the light of the particular circumstances of an individual victim whose rights have been violated, having regard to what would be ‘just’, not only for that individual victim, but also for the wider public who have an interest in the continued funding of a public service: para A4-036. Damages are not an automatic entitlement but, as I also indicate, a remedy of ‘last resort’: para A4-040.” ‘A public authority which is found to have acted unlawfully by failing to comply with the Convention will not be exposed to criminal penalties. But the court or tribunal will be able to grant the injured person any remedy which is within its normal powers to grant and which it considers appropriate and just in the circumstances. What remedy is appropriate will of course depend both on the facts of the case and on a proper balance between the rights of the individual and the public interest. In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages.’ (Emphasis added.) ‘Given that it is anticipated that the majority of cases in which civil claims will be brought under the HRA will be by way of judicial review which has always been discretionary, it is appropriate that section 8(1) of the HRA also has a broad discretionary nature ... Also, the language of a 'just and appropriate' remedy is not novel, either to the United Kingdom nor to other human rights instruments.’[110]After warning against attempting to identify principles in the Strasbourg jurisprudence which simply do not exist, the Court said at paragraph 59:
“59 Despite these warnings it is possible to identify some basic principles the Court of Human Rights applies. The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitutio in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded.”
The problem, as the Court noted, arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.[111]In paragraph 66 the Court held:
“66 In determining whether damages should be awarded, in the absence of any clear guidance from Strasbourg, principles clearly laid down by the HRA may give the greatest assistance. The critical message is that the remedy has to be ‘just and appropriate’ and ‘necessary’ to afford ‘just satisfaction’. The approach is an equitable one. The ‘equitable basis’ has been cited by the Court of Human Rights both as a reason for awarding damages and as a basis upon which to calculate them. There have been cases where the seriousness or the manner of the violation has meant that as a matter of fairness, the Court of Human Rights has awarded compensation consisting of ‘moral damages’. The Law Commission stated in its report (Law Com No 266) (Cm 4853), para 4.96, that the Court of Human Rights took account of ‘a range of factors including the character and conduct of the parties, to an extent which is hitherto unknown in English law'.”
In relation to injury which is not quantifiable in financial terms, whilst in this jurisdiction the principles governing awards of “general damages” are well established by case precedent, the same is not true of the Strasbourg jurisprudence, which is guided by the particular circumstances in every case having regard to equitable considerations. The relevant factors appear to be the character and conduct of the parties and the extent and seriousness of the breach; and, as the Court recognised in Anufrijeva at paragraph 72, an infringement of a Convention right may sometimes have similar consequences to a tort giving rise to a claim under our domestic law, for example, a breach of Article 5(1) and the right to liberty and the tort of false imprisonment.[112]At paragraph 74 the Court held: “74 We have made plain that the discretionary exercise of deciding whether to award compensation under the HRA is not to be compared to the approach adopted where damages are claimed for breach of an obligation under civil law. Where, however, in a claim under the HRA, the court decides that it is appropriate to award damages, the levels of damages awarded in respect of torts as reflected in the guidelines issued by the Judicial Studies Board, the levels of awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman may all provide some rough guidance where the consequences of the infringement of human rights are similar to that being considered in the comparator selected. “ The Court also endorsed Sullivan J’s observation in Bernard’s case [2003] LGR 42, that an award of damages should not be minimal, since this would undermine the respect for Convention rights, but that a “restrained or moderate approach to quantum would provide the necessary degree of encouragement to public authorities, whilst not unduly depleting welfare funds”.[113]Ms. Carss-Frisk seeks an award of “substantial” damages for non-pecuniary loss, in respect of the fear and distress that Giles inevitably suffered himself in the period leading up to and immediately before his death; and for the grief, anguish and distress suffered by his parents as a result of their son’s untimely death. She referred me to a number of decisions by the Court of Human Rights involving breaches of Article 2 including Akkoc v. Turkey [2002] 34 EHRR 51; Tas v. Turkey [2001] 33 EHRR 15; Semsi Onen v. Turkey – 22876/93,14th May 2002; and Edwards v. United Kingdom [2002] 35 EHRR 19. All of these cases naturally turn upon their own individual facts, but they establish that the Court has awarded non-pecuniary damages for both the estate of the deceased and for the distress of surviving spouses or relatives, including parents or siblings.[114]In considering Giles’ own suffering, I recognise that he was both concerned and distressed as a result of Brougham’s conduct for a period of several weeks. When he was murdered the evidence is that he was shot three times, at close range. The wounds would inevitably have resulted in massive internal bleeding and thus to his rapid collapse, death being almost instantaneous. Certainly, the paramedics attending the scene were unable to revive him. The horror of such an attack, resulting in the loss of his life, needs no further elucidation, but it has I hope been of some small comfort to the Claimants that their son would have lost consciousness instantly and did not therefore suffer any pain.[115]Having regard to the extent and seriousness of the breaches in this case and to the character and conduct of the parties, I take into account DC Ridley’s own concession that he failed to appreciate the escalating pattern of intimidation by Brougham and the risk to Giles’ life; and that he failed to consider at any stage the need for protection for Giles. I also have regard, more generally, to what Ms, Carss-Frisk referred to as the systemic failures by the Hertfordshire Police, namely the fact that the witness protection protocol had not been brought to DC Ridley’s attention and that he had received no instructions or training on witness protection issues. These were all serious failings which resulted in the loss of an innocent life.[116]I do not however take into account the broader failures alleged against the Defendant to take any steps since this tragic event to ensure the effective implementation of the protocol, Ms. Carss-Fisk submitting that nothing had been learned. The Defendant did not accept these criticisms, Mr. Faulks informing the court that the Defendant took these matters extremely seriously and that there is currently an on-going review of the issues raised. I agree with him that there was in any event insufficient evidence before the Court on these alleged general failings to enable a view fairly to be taken about them.[117]I do have regard however to the fact that no suitable apology was offered to the Claimants prior to the hearing, the expression of regret contained in the Assistant Chief Constable’s letter of 2nd September 2003 being made almost three years after Giles’ death and written in response to the Claimants’ request to be informed as to the outcome of the disciplinary proceedings. The Claimants have been particularly upset by the lack of any apology, even by letter, from DC Ridley himself which, even though the Defendant was denying liability, is regrettable in the circumstances. I accept that this has exacerbated the Claimants’ distress, as did the sanction imposed by the Disciplinary Panel at the Misconduct Hearing which they regarded, with some justification, as having diminished the seriousness of their son’s death, in particular given their findings as to the extent and seriousness of the officer’s failings and their fatal consequences. He was fined 5 days pay.[118]The Claimants’ own distress is clear from their witness statements and evidence at trial. It is aptly summarised in their victim impact statement of June 2004 (Bundle B,196) where they describe being left with an enormous void and to their grief resembling an incurable illness, mentally and physically painful, and which will not go away. This was, without doubt, an extremely close family.[119]Having regard to the equity of the case, to the need not to undermine respect for Convention rights and to the need to achieve a proper balance between the individual rights and the public interest, I award the sum of £15,000 in respect of Giles’ distress in the weeks leading up to his death and £35,000 for the Claimants’ own grief and suffering. The total award of £50,000, in my judgment, affords just satisfaction for the loss of life in this case.

Cited in 3 later judgments