Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police

Jul 08

[2008] UKHL 50

The House of Lords has given judgment in these conjoined appeals concerning the liability of the police under the Human Rights Act 1998 and at common law for negligently failing to prevent violent crimes.

In Van Colle, the House reaffirmed and applied the test set out by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245, namely that there will be a breach of the positive obligation under Article 2 ECHR if 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 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.

However, in Smith, the House held (Lord Bingham dissenting) that the police do not owe a common law duty of care to protect individuals against harm caused by criminals, reaffirming the ‘core principle’ laid down in Hill v Chief Constable of West Yorkshire [1989] AC 53 that such a duty of care would cause ‘defensive policing’ and would divert police resources away from combating crime in order to deal with litigation.

Monica Carss-Frisk QC and Iain Steele acted for the claimants in Van Colle. Dinah Rose QC acted for INQUEST, JUSTICE, Liberty and Mind as Interveners.

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Monica Carss-Frisk QC, Dinah Rose QC, Iain Steele

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