Case Facts
In this case, Giles Van Colle was called as a prosecution witness in a forthcoming theft trial. Before the trial could take place, the accused, Brougham, approached several witnesses, including Giles, in an attempt to dissuade them from giving evidence. Two telephone calls made to Giles shortly before his murder were reported to the officer in charge of the case. Critically, however, neither of those calls contained an explicit death threat, and the officer did not at the time perceive that there was a real and immediate risk to Giles' life. Giles was subsequently murdered before the trial.
Giles' parents brought a claim against the Chief Constable of Hertfordshire Police, arguing that the police had breached their positive obligation under Article 2 of the European Convention on Human Rights — as incorporated into domestic law by the Human Rights Act 1998 — to take preventive operational measures to protect Giles' life. Mrs Justice Cox at first instance found in favour of the claimants, and the Court of Appeal upheld that finding. The Chief Constable appealed to the House of Lords.
Held
The House of Lords allowed the Chief Constable's appeal, reversing both the Court of Appeal decision and the first instance judgment of Mrs Justice Cox, which had each found a breach of Article 2. All five Law Lords delivered opinions concurring in the result.
The House of Lords held that the stringent "real and immediate risk" test, derived from Osman v United Kingdom (Case No 87/1997/871/1083), had not been satisfied on the facts of this case. Applying that test, the central question was whether the officer in charge, making a reasonable and informed judgement in the circumstances known to him at the time — and not with the benefit of hindsight following the tragic event — ought to have appreciated that there was a real and immediate risk to Giles' life. The House of Lords concluded that he ought not, and accordingly no breach of Article 2 was established.
The House of Lords further rejected the argument that a lower Article 2 threshold should apply in circumstances where the threat to an individual's life derives from the state's own decision to call that person as a prosecution witness. The standard under Article 2 is constant and not variable according to the nature or source of the risk in contemplation.
Ratio Decidendi
The ratio of this decision rests upon the correct application of the positive obligation imposed by Article 2 ECHR, as interpreted by the European Court of Human Rights in Osman v United Kingdom (Case No 87/1997/871/1083) at paragraph 115. Article 2 obliges member states not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard lives within their jurisdiction. In certain well-defined circumstances, this includes a positive obligation to take preventive operational measures to protect an identified individual whose life is at risk from the criminal acts of a third party.
The test, as articulated at paragraph 116 of Osman v United Kingdom (Case No 87/1997/871/1083), requires that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party, and failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. This test is stringent and the threshold is high, as confirmed in In re Officer L [2007] at paragraph 20.
Importantly, the Strasbourg court in Osman v United Kingdom (Case No 87/1997/871/1083) rejected the proposition that a failure to perceive the risk to life, or to take preventive measures, must be tantamount to gross negligence or wilful disregard of the duty to protect life. It is sufficient for an applicant 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.
A significant nuance was added regarding the "ought to have known" limb of the test: stupidity, lack of imagination, and inertia do not excuse a national authority that reasonably ought, in light of what it knew or had been told, to make further enquiries. In such circumstances, the authority is to be treated as knowing what such further steps would have elicited. However, applying this principle on the facts, the two telephone calls reported to the officer — neither of which contained an explicit death threat — did not provide a sufficient foundation for concluding that a reasonable and informed officer ought to have identified a real and immediate risk to Giles' life.
The House of Lords also confirmed that the Article 2 test is not lowered where the risk to a witness's life arises from the state's decision to call that person to give evidence. The same standard applies to witnesses as to all citizens under Article 2.
Obiter Dicta
The House of Lords made clear that courts must guard against interpreting preceding events through the lens of subsequent knowledge of the tragic outcome. The assessment of what the authorities knew or ought to have known must be conducted at the relevant time, without the distorting effect of hindsight. Although this principle formed part of the reasoning applied directly to the facts, it carries broader significance for the proper application of the Human Rights Act 1998 positive obligation framework in future cases involving alleged failures to protect individuals from third-party threats. The decision also implicitly affirms that Osman v Ferguson [1993] — the domestic Court of Appeal decision which preceded the Strasbourg application — is not the governing authority; it is the Strasbourg ruling in Osman v United Kingdom (Case No 87/1997/871/1083) upon which the domestic courts must rely when applying Article 2.