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Van Colle v United Kingdom

The ECHR held unanimously that there had been no violation of Articles 2 and 8 of the European Convention on Human Rights in this leading case.

Executive summary

The European Court of Human Rights held unanimously that there had been no violation of Articles 2 and 8 of the European Convention on Human Rights in this leading case, upholding the 2008 decision of the House of Lords. However, two concurring opinions suggest some appetite to revisit the application of the Osman test promulgated in 1998.

Background

The facts of this case are well known.  Giles Van Colle was killed by a man called Daniel Brougham, whom he had hired in an alias name.  Brougham had a criminal record in his correct name. After an altercation, Brougham stole goods to the value of £500 from Mr Van Colle’s business.  In parallel criminal proceedings, DC Ridley became aware of attempts by Brougham to curtail the criminal prosecutions against him. Brougham then threatened Mr Van Colle in the following terms “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”.  The threat was reported to DC Ridley.  Subsequently, further threatening conduct was also reported but before any protective measures could be put in place, or Brougham could be arrested for witness intimidation, he shot Mr Van Colle dead as he left work.  He was subsequently convicted of his murder.

The decision

The European Court of Human Rights unanimously upheld the decision of the House of Lords in 2008. The claimants (Mr Van Colle’s parents) had failed to establish that the police knew or ought to have known at the time of the existence of a real and immediate risk to Mr Van Colle’s life and/or that the police had failed to take measures within their powers which might have avoided that risk (the Osman test). 

The court observed that “the scope of any such positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.   Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising”.   

The court upheld the earlier domestic decision alleging Article 8 infringements and confirmed that the claims by Mr Van Colle’s parents in their own right were admissible.  Close family members, such as parents of a person whose death is alleged to engage the responsibility of the State, are legitimate as indirect victims of the alleged violation.                

Comment

This case is a useful reinforcement of the high threshold test established in Osman v UK. However, two concurring opinions of Judges Garlicki and Vucinic suggest some appetite for the European Court to revisit Osman.  

Although expressing no doubt that the Osman test had been correctly applied in the House of Lords, Judge Garlicki was troubled by the process of application in 2012 of a test established on the facts of the case considered in 1998. The judge observed that the Convention is a “living instrument” and that the Osman test should be applied in light of present day conditions.  As the judge observed, “that is why I am not convinced that the Chamber was correct to base its finding of no violation on the observation that “the risk factors in the present case cannot be said to have been greater than those in Osman in which no violation of Article 2 was found”. The judge indicated that “a conclusion adopted in 2012 must be based on an updated analysis of the positive obligations and not on a mechanical application of the Osman test in its fixed version”. 

Judge Vucinic also noted his considerable hesitation in finding no violation in this case.  He observed that a review of the case law since Osman suggested that the European Court has not yet been called on to examine the protection of witnesses from the standpoint of Article 2. Although not wishing to give the impression that the current case was a suitable one for that review, nor that “every witness in criminal proceedings should be given constant police protection”, the judge indicated that “sooner or later the court will have to come to grips with this key issue ….”   

The European Court door has certainly been left open for further challenges in this troublesome area.

For further information about Weightmans or to discuss any of the issues in this update please contact Nick Peel at Weightmans on 0151 242 9453 or nick.peel@weightmans.com