A Success story thanks to Lord Bingham

Lord Bingham is the author of The Rule of Law and looks to be a fair Judge in this case below:-

Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex Police: Judgment given by House of Lords
The House of Lords has given judgment in the related appeals of Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of Sussex Police [2008] UKHL 50.

Both appeals involved allegations that police officers had failed to provide appropriate protection for members of the public who had reported threats. In both cases the Chief Constables succeeded in overturning unanimous decisions of the Court of Appeal.

In Van Colle, the claimants were the parents of a 25-year-old man (Giles Van Colle) who had been shot dead shortly before he was due to give evidence in a criminal trial. The defendant in the trial (now serving life imprisonment) was charged with relatively minor theft offences, but had attempted to bribe, intimidate and threaten various prosecution witnesses (including Giles). Some of these activities, which included two threatening telephone calls to Giles, had been reported to the police.

The claim – the first of its kind in the UK – was brought under sections 6 and 7 of the Human Rights Act 1998 (“HRA”), alleging violations of articles 2 and 8 of the European Convention on Human Rights (“ECHR”).

The judge and the Court of Appeal had found for the claimants. The starting point was the test laid down in Osman v United Kingdom (1998) 29 EHRR 245, namely that for a state to be in violation of article 2 of the ECHR it must be shown 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 that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”. However, relying on earlier Court of Appeal authorities it was held that a lower theshold of risk was appropriate where the state had exposed an individual to a risk to his life (in this case by asking Giles to be a witnesss in a criminal prosecution). The courts below concluded that on this basis the Chief Constable was liable under the HRA, and awarded damages.

Lord Bingham, citing Lord Carswell’s recent opinion in In re Officer L [2007] UKHL 36, [2007] 1 WLR 2135, said that the test laid down in Osman was constant, and that the standard to be applied was not “variable with the type of act in contemplation”. He concluded (as did Lords Carswell, Phillips, Hope and Brown) that the courts below had misdirected themselves, that the facts did not reach the Osman threshold and that the appeal should be allowed.

In Smith, the claimant was attacked and seriously injured by a former partner, who had previoiusly made a succession of violent and lurid threats by internet and text message. The threats had been reported to police who allegedly failed to take sufficient steps to protect the claimant.

The claimant alleged negligence and did not rely on the HRA. The claim was struck out by the judge (the defendant relying on the public policy reasons for denying the existence of a duty of care established in Hill v Chief Constable of West Yorkshire [1989] AC 53 and Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495), but re-instated by the Court of Appeal. The claimant argued that the pleaded facts took the case beyond the Hill and Brooks principles, but that in any event those principles should be revised following the introduction of the HRA.

By a majority of four to one (Lord Bingham dissenting) the House reaffirmed and applied the core principles of Hill and Brooks, allowed the appeal and restored the judge’s order.

Edward Faulks QC and Edward Bishop represented the appellant Chief Constables in both cases, instructed by Weightmans. Julian Waters was junior counsel for the claimants in Van Colle, instructed by Lynch Hall and Hornby.


4 responses to “A Success story thanks to Lord Bingham

  1. Dear All.
    It,s about time chief constables were exposed for their Misconduct in a Public Office.

    For to-long they have been given immunity for their gross negligence, omissions, and total failure to apply a Duty of Care they owe to the Public re: allowing white collar crime to flourish, mortgage frauds, illegal repossessions, bogus bankruptcies on & on

    The Home Secretary Teresa May has announced a “shake-up” of the police service and the appointment of elected persons to control chief constables.

    Another point recently raised was for the creation of an FBI style police force presumably to police the corrupt lot of police we now have.

    If this is true we should start campaigning Now! to ensure there is no Masonic connection by ensuring no Freemasons will be engaged in this new law enforcement agency.

    Anyone who has sworn a freemasons oath cannot owe allegiance to any other oath ! they may need to swear, their loyalty is divided for ever.

    Regards Peter Oakes

  2. Dare we hope this is a sign of things to come?

    Let’s hope the shake up promised will indeed clean out the Augean ox stalls we have been used to mis-naming ‘justice’ in this country of ours.

  3. The rule of law as it stands in England is not the problem, it is the administartion of the law that is the issue. We (society) already have all of the law we need including bringing a complaint against the police such as an abuse of authority in a public office. The masons and the club culture (protectionsim) have been around for many years and until society understands the enourmous cost at our expence, we will never have justice, and niether will our children. One of the major probelems is the fact that we no longer have a free press, proceedings should now be heard in public via television, which would be an instrument for education and force the legal profession to act professionally. If it’s good enough for our law makers it should not be a problem for law administartors.

  4. Very good points, Rodney!

    I’ve come to the conclusion that it’s all a matter of one’s own conscience.

    I just wonder how the perpetrators in these official positions can live with theirs…

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