Van Colle & Anor v Hertfordshire Police

On 10 March 2006 Cox J handed down a judgment in which she held that the appellant, the Chief Constable of the Hertfordshire Police, acted unlawfully in violation of articles 2 and 8 of the European Convention on Human Rights (‘the Convention’) by failing to discharge the positive obligation of the police to protect the life of Giles Van Colle, who was murdered on 22 November 2000. We will call him ‘Giles’. The respondents are his parents, the first respondent being the administrator of his estate. Their claim was brought in reliance upon section 6(1) of the Human Rights Act 1998 (‘the HRA’) and proceedings were brought under section 7. The judge awarded damages under section 8. She awarded damages in the total sum of £50,000, made up of £15,000 in respect of the distress suffered by Giles in the weeks leading up to his death and £35,000 in respect of his parents’ grief and suffering. She also ordered the appellant to pay the costs, gave permission to appeal and granted a stay of execution pending the appeal. In this appeal the appellant challenges the decisions of the judge on both liability and quantum. We consider liability first.

Just after 7.25 pm on the evening of 22 November 2000 Giles was shot dead near where he worked. He was 25 years of age. On 4 March 2002 Daniel Brougham, whom (like the judge) we will call ‘Brougham’, was convicted of Giles’ murder and sentenced to life imprisonment. Giles was murdered just days before he was due to give evidence for the prosecution at Brougham’s trial on charges of theft. The officer in charge of the investigation of the theft charges for which Brougham was to stand trial was DC Ridley of the Hertfordshire Police. He had been a police officer since 1987 and a detective constable since 1994.

After Brougham’s conviction the respondents made a complaint to the Police Complaints Authority. As a result of the subsequent investigation, disciplinary charges were brought against DC Ridley and dealt with at a disciplinary hearing, which the respondents were allowed to attend in part. On 12 June 2003 he was found guilty of failing to perform his duties conscientiously and diligently in connection with intimidation by Brougham of both Giles and another prosecution witness called Peter Panayiotou.

In this action the respondents alleged, as the judge put it, 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 was taken by him to protect Giles against the risk of serious harm. The respondents’ case before the judge and before us was and is that, by failing Giles in this way the appellant, being vicariously responsible for the acts and omissions of his officers, failed in his duty to act compatibly with Giles’ rights under articles 2 and 8 of the Convention and acted unlawfully. They rely upon section 6(1) of the HRA. The appellant does not rely upon any limitation defence and concedes that the respondents are victims within the meaning of section 7. Moreover, he does not suggest that he is not the appropriate defendant if the case is otherwise made out.

Before the judge the appellant did not seek to challenge the conclusions of the disciplinary tribunal but submitted that they did not amount to an infringement of Giles’ Convention rights. The judge disagreed. Mr Faulks submitted on behalf of the appellant that she was wrong to do so. He also submitted that she was wrong to find a causal link between any infringement of Giles’ rights and his death. He therefore submitted that for one or other or both of those reasons the judge should have dismissed the respondents’ claim.

The matter came before the judge in an unfortunate way. The action originally came on for trial in the summer of 2005 before Wakerley J. He heard evidence over a period of seven days in June 2005 and reserved judgment but, before he gave judgment, he tragically died. As the judge put it, he had been unable to prepare a draft judgment and enquiries revealed no conclusion or partial conclusion that might have been helpful to the parties. It was then sensibly agreed between the parties that the case would be concluded before a new judge on the basis of the transcripts of the evidence given before Wakerley J and otherwise on the basis of the documents, without either party calling oral evidence. The judge accordingly heard detailed submissions on behalf of the parties before giving her judgment. It was agreed before her (and before us) that the case turned largely on the inferences that could properly be drawn from the evidence.

The judge identified four key questions as follows:

The judge answered the first three questions in the affirmative. Mr Faulks submitted that she was wrong to do so. In particular he submitted that she failed to have sufficient regard to the necessity to avoid hindsight. He submitted that the judge’s approach to the facts did not reflect the difference between (as he put it) the perspective available to her as the judge and that which presents itself to a busy police officer. Mr Faulks further submitted that, if she had reflected that difference and avoided the pitfalls of hindsight, she would have reached different conclusions. Finally he submitted that, in the particular circumstances described above, this court is in no worse position than the judge to assess the evidence.

Mr Faulks stressed the fact that the respondents did not frame their claim in negligence before the judge and they have not done so before us. That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of the House of Lords in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 and Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495. Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and, indeed, the judge’s judgment gives the respondents some encouragement, the respondents have never advanced their case on that basis and it seems to us to be fraught with difficulty. We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the respondents.

Mr Faulks further submitted that the judge did not pay sufficient regard to the reasoning of the European Court of Human Rights in Osman v United Kingdom (2000) 29 EHRR 245 and that, if she had, she would have appreciated that, although the unchallenged facts of Osman were more extreme than the facts here, the court in Osman did not find a breach of article 2 and she would have reached a different conclusion on the facts of this case.

Mr Faulks drew our attention to the fact that all the cases before Osman involved deliberate acts on the part of the state and submitted that the courts should limit the type of case in which an infringement of article 2 should be held to have taken place. Threats to witnesses are sadly commonplace. Home Office/ACPO statistics show that 10 per cent of crimes lead to incidents of intimidation. A number of outstanding cases await, it was said, the outcome of this case and to adopt the judge’s approach would have significant resource implications. Mr Faulks submitted that the judge’s approach ignored or paid insufficient regard to the policy considerations in Osman, which included at least some of the same considerations as in the common law cases of Hill and Brooks. In short, he submitted that if the judge is right, the HRA will not so much have brought rights home as have created a parallel system of remedies which involves a real tension between the HRA and the common law.

Before addressing those issues, it seems to us that we should consider the facts found by the judge and the appellant’s criticisms of them in order to have a firm factual basis for sensible conclusions in this appeal.

In considering the facts and the conduct of DC Ridley it is indeed critical to have the dangers of hindsight in mind. As we all know, anyone can be a Monday morning quarterback. Like anyone else, DC Ridley is entitled to be judged without hindsight and on the basis of the information which was available to him or would have been available to him if he had taken all proper steps at the time. We turn therefore to the facts with those considerations in mind.

We take the background facts largely from the judgment. Giles was born on 21 April 1975. He qualified as an optometrist and in August 1999 purchased an optical practice in Mill Hill. He was described by the judge as an exceptional young man with a very promising future. Daniel Brougham, who was convicted of his murder in 2002, was aged 32 in November 2000. His real name was Ali Amelzadeh and he had a number of aliases, one of which was Lee Jordan, which was the name under which he was initially known to Giles. Before his conviction for murder he had two previous convictions, one in 1993 for common assault and one in 2000 for the theft of a vehicle. In March 1999 he was arrested by DC Ridley, who plays an important part in the facts of this case, on suspicion of theft from an optical company known as Southern Counties but there was insufficient evidence to bring charges against him.

In September 1999, using the name Lee Jordan, Brougham obtained employment at Giles’ practice as a technician/dispenser. He provided Giles with a false CV and concealed both his true identity and the fact that he was known to the police. A few weeks after he started work Giles learned from his (Giles’) mother, after enquiries with the tax authorities, that the national insurance number provided by Brougham was incorrect. He first claimed that the authorities were mistaken but, after further enquiries, Giles raised it with him again and, as the judge put it, on this occasion Brougham appears to have reacted in an aggressive manner, raising his voice and trapping Giles against a wall. Shortly before Christmas 1999 Brougham failed to turn up for work, claiming that he was unwell. He never returned to work. Shortly after he left, Giles wrote to him asking him to pay for the cost of repairs to defective equipment which he thought was Brougham’s fault and referring to the possibility of a claim in the small claims court. Brougham did not reply.

On 17 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”. Some of the stolen property found in Brougham’s garage, including pairs of glasses, frames and nose pads, was believed to belong to the Mill Hill practice owned by Giles. It is thought that the total value of these items was of the order of £500. DC Ridley visited Giles for the first time on 28 February and took a statement from him. Brougham was then arrested again and charged with theft from both Giles and others.

On 4 April an additional statement was taken from Giles by DC Ridley, which confirmed ownership of the items found in Brougham’s garage, and on 23 April 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, which was owned and run by Peter Panayiotou. On 26 May 2000 DC Ridley attended Giles’ practice with DC Chandler and took a yet further statement from Giles. The judge noted that Mrs Van Colle recalled having a conversation with the officer who attended with DC Ridley 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. The judge recognised that there was some confusion in the evidence about when exactly this conversation took place and with which police officer, since DC Chandler did not recollect it. She nevertheless accepted that there was such a discussion and noted that Mr. Faulks fairly conceded that some such discussion probably took place. She also noted that no particular reliance was placed on this conversation on behalf of the respondents other than as general background and, as we read the judge’s judgment, the judge herself did no more than treat it in that way.

The judge considered what she called the material facts at [15] to [37] of her judgment. Given the issues of fact between the parties in this appeal it is necessary for us to consider the facts in some detail. Brougham was on unconditional bail. He was committed to Luton Crown Court for trial having indicated that he would plead not guilty. Before the judge the respondents relied upon a number of events from which they said that it ought to have been clear to a reasonably competent police officer in the position of DC Ridley that Brougham was a serious threat to Giles.

The first such event was an attempt made by Brougham during the summer of 2000 to prevent a witness giving evidence against him. He offered John Heward, whose evidence related to the Southern Counties charges, the sum of £1,000 if he did not give evidence. However, as the judge acknowledged, Mr Heward did not report this at the time and it emerged only as a result of investigations carried out after the murder. The judge accordingly held that DC Ridley was unaware of this initial approach to a witness by Brougham. It follows that it is irrelevant for present purposes.

On 10 August, Brougham telephoned Mr Panayiotou and offered to pay him the £650 he owed for the equipment he had taken. An arrangement was made for Brougham to meet a colleague of Mr Panayiotou called Wren on the following day in order to hand over the money. In the event Brougham cancelled the meeting. Mr Panayiotou then contacted DC Ridley, who took statements about these incidents both from him and from Mr Wren on 30 August. The statements were discussed by DC Ridley with prosecution counsel at the pleas and directions hearing held at Luton on 20 September and DC Ridley sent the statements to the Crown Prosecution Service (‘the CPS’).

In the early hours of 24 September someone set fire to Giles’ car, which was parked outside his home address. As a result the car was written off. 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 did not therefore consider that this was suspicious and did not report the fire to DC Ridley at the time. Giles’ insurers subsequently concluded, however, that the fire was consistent with “a malicious vandal attack” and notified Giles of this in a letter dated 10 November 2000. We return to the relevance of this, if any, below.

On 13 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 such offers. With Giles, however, Mr. Brougham adopted, as the judge put it at [18] of her judgment, a different tactic, issuing what DC Ridley accepted in evidence was a serious threat. On the same day, 13 October, Giles telephoned the police about this call and spoke to DC Campbell at Colindale Police Station. He made this note of the call:

“The caller insisted on being put straight through to the victim so the receptionist did so.

The caller then said words very like the following:

Drop the charges, we know where you live and where your parents live and where your business is. You’ll be in trouble (might have said danger) if you don’t.

The victim asked who was calling and the caller did not answer but rang off. The voice sounded to the victim like a former thieving employee Lee Daniel Jordan, also known as Daniel Brougham and various other aliases, who is currently under investigation by Dave Ridley of CID at Hitchin in connection with various acts of dishonesty but as far as the victim knows no charges have been made as yet.”

Giles was told to report the threat to DC Ridley. He did so and DC Ridley also made a contemporary note to much the same effect. It included:

“Mr Van Colle – know where you live, businesses are – parents live if you don’t drop the charges you’ll be in danger – aggressively said

…

Sounded like Lee Jordan – employee – spoke - quietly - malice – intent – foreign accent like Lee J’s.”

As a result of the telephone conversation a meeting was arranged for a statement to be taken. DC Ridley accordingly took statements about these events from both Giles and Mr Panayiotou, separately, on 19 October and sent them to the CPS. In his statement Giles described what was said as noted above and said that he believed the caller was Lee Jordan (that is Brougham) because the accent was the same as his. He said that he truly believed the call related to his court case with Lee Jordan because he had no involvement in any other legal matter. 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.

As the judge observed at [19] of her judgment, a customer called 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 his parents to tell them what had happened.

In a statement made on 25 June 2002 by DC Ridley in connection with disciplinary proceedings against him, he said that he spoke to Giles on 17 or 18 October and arranged to take a statement from him on 19 October. He said that Giles was not definite that the call had been from Brougham. It was only because the accent was similar and Giles had no other involvement in court cases that Giles believed him to be Brougham. Given that they worked together for a period of time he would have expected Giles to have recognised his voice if it had been Brougham. DC Ridley also said that he took a statement from Mr Panayiotou, who did not describe Brougham as being threatening. He tried to speak to someone at the CPS but was simply asked to send the CPS a copy of the statements, which he did.

The judge set out her conclusions with regard to this part of the story at [20] of her judgment as follows:

“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.”

The judge then set out these extracts from the cross-examination of DC Ridley at the trial before Wakerley J:

“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.”

As we said earlier, it is critical to judge the acts and omissions of DC Ridley without the benefit of hindsight. We therefore pause to consider the position at or shortly after he took the statements from Giles and Mr Panayiotou on 19 October. At that time DC Ridley was unaware of the fire to Giles’ car on 24 September. He had taken earlier statements from Mr Panayiotou and Mr Wren but they contained nothing which might alert him to the possibility of Giles being at physical risk from Brougham. However the telephone calls on 13 October put a different complexion on the case and in our judgment the judge was correct so to hold. The judge correctly rejected DC Ridley’s explanation that Giles had not made a sufficiently clear identification of Brougham as the person who threatened him on the telephone. There were clear indications that it was indeed Brougham who rang him and threatened him. DC Ridley ought to have investigated the matter further.

This view is underlined by the conclusions of the police disciplinary panel, which comprised a Deputy Chief Constable and two Superintendents. The panel initially considered four particular allegations against DC Ridley, namely that he:

“1.

failed to investigate thoroughly whether offences of intimidation of witnesses and doing acts tending and intended to pervert the course of public justice had been committed;

2.

failed to analyse the available evidence carefully, both individually and with others through proper channels of line management;

3.

failed to take proper account of the guidance set out in the Hertfordshire Constabulary’s document “Procedures and Guidelines Regarding the Intimidation of Witnesses”; and

4.

failed to consider carefully the power to arrest the said Daniel Brougham.”

The panel’s findings were in these terms:

“Having considered the facts of this case the panel are of the view that the events outlined in the evidence between 30 August 2000 and 22 November 2000 amounted to an escalating situation of intimidation in respect of the witnesses Panayiotou and Van Colle. DC Ridley was in a unique position during this time with the fullest picture of the developing situation.

The panel finds that during this period the officer failed to perform his duties conscientiously and diligently in connection with the improper contacts made with these witnesses.

Considering the three specific elements set out in the charge:

1.

The panel accept that DC Ridley did obtain statements when the inappropriate approaches to witnesses were reported to him by witnesses, however, the panel’s view is that an investigation includes seeing this through to a satisfactory conclusion. On the basis of the evidence presented to the hearing, it was apparent that the 2 phone calls to Panayiotou and Van Colle on 13 October subject of statements taken on the 19 October did amount to substantive offences of witness intimidation and attempting to pervert the course of justice. In a full and proper investigation, the public would at least have expected contact with Brougham in an attempt to prevent recurrences, but more probably he should have been arrested.

Further more on the 29 October when Mr Panayiotou reported the 2 fires in relation to his business premises and his wife’s car a thorough investigation would have taken account of previous incidents and initiated a more detailed examination of the circumstances.

2.

The panel felt that on the evidence presented, the officer failed to adequately analyse and properly identify possible links between events, that would have resulted in a different course of action, had he done so. In particular, he failed to identify on 13 October that the calls to Mr Panayiotou and Mr Van Colle were probably both made by Brougham. Further on 29 October 2000 he failed to analyse and assess the information regarding the two fires in the context of the previous threats and intimidation.

In respect of the final call from Van Colle the officer stated he was happy to wait to make his statement. However, DC Ridley was in possession of additional facts i.e. the fires, which may have affected Van Colle’s level of concern. This issue merited greater urgency.

The panel acknowledged the informality of the line management arrangements presented in the evidence and that none of his immediate line managers contradicted the actions the officer was undertaking and that he drew comfort from this together with discussions he had with counsel at court in respect of this case.

3.

Discharged in the course of the hearing.

4.

On the basis of the 2^nd statement taken from Mr Panayiotou on 19 October the panel are of the view that there was sufficient evidence to arrest for attempting to pervert the course of justice. The panel is also of the view that in the case of Van Colle there was evidence sufficient to justify grounds for arrest. It is the view of the panel that an arrest under these circumstances was both necessary and proportionate and was likely to have been beneficial to the ultimate outcome of the case. It is acknowledged that the officer through his counsel accepted that he did make a wrong decision about not arresting Brougham and the panel accepts that there would have been no guarantee that this would have averted the ultimate tragedy.”

We focus for the moment on the position after the telephone calls of 13 October and after DC Ridley had taken the statements on 19 October. Mr Faulks conceded before the judge and before us that DC Ridley should have contacted Brougham, or arrested him, after having obtained the statements on 19 October. He conceded that his failure to take any such steps was an error of judgment. Like the judge, we would go further. It was in our judgment, not a mere error of judgment, but a failure on the part of DC Ridley as a professional police officer to carry out his duties properly in circumstances in which there was evidence of intimidation of a witness. Mr Faulks stressed in argument that police officers have many pressures on their time and that the court should be slow to blame an officer who may be investigating many different matters at the same time. We accept that those are indeed important matters to take into account. However, there was no suggestion in the evidence that DC Ridley’s inaction was caused by pressure of other work, and we have reached the conclusion that a reasonably competent police officer would have taken action, as the panel in effect found. The panel, which was itself comprised of experienced police officers, was not judging DC Ridley with hindsight but on the basis of the information available to him at the time. We will consider issues of causation below but, if DC Ridley had been giving proper consideration to the information available to him at the time, he would either have taken appropriate action himself or, if he did not have time, would have reported what he had been told to a superior officer so that appropriate action could be taken.

On 25 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 was that he spoke to the barrister representing the prosecution, that he mentioned to her the events of 13 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 to rely upon them in support of the theft prosecution. The judge accepted that such a discussion probably took place but noted that the appellant did 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 judge placed some reliance upon the evidence of Detective Inspector Ian Foster at the misconduct hearing to the effect 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”. DI Foster added that a barrister does not take operational police decisions. Moreover, in answer to questions from Wakerley J, DC Ridley accepted that he had not spoken to the barrister in relation to what ought to be done about protection for Giles. Cox J observed that in these circumstances Mr Faulks properly accepted that this evidence could not assist the respondent and that advice from lawyers could not absolve DC Ridley from making an assessment of the situation, so far as witness protection was concerned.

On 28 October Mrs Panayiotou’s car was set alight. The fire was put out by a neighbour and the damage was minor. Mr Panayiotou was not himself aware of the fire until the next day and believed that it may have been an accident. An AA inspector concluded that it might have been caused by a firework. In the early hours of 29 October Mr Panayiotou’s business premises were set alight and suffered serious damage. Mr. Panayiotou, who (as the judge put it at [24]) was now very concerned, telephoned DC Ridley and reported both fires to him, asking whether Brougham might have been responsible. DC Ridley said that it seemed unlikely. DC Ridley did not take a statement from Mr Panayiotou, although he accepted (as the judge put it at [25]) that Mr. Panayiotou was “extremely upset” when passing on this information. DC Ridley also accepted that he did not contact either the Fire Brigade or the Metropolitan Police. We will return below to what he would or might have found if he had done so. It is not relevant at this stage of the analysis because we are concerned at present with what, if anything, DC Ridley should have done.

Mr Faulks conceded before the judge and before us that DC Ridley made an error of judgment in that he should have initiated a more detailed examination of the circumstances of the Panayiotou fires. The judge expressed her conclusions at [26] and [27] of her judgment as follows:

“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 28 and 29 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. Panayiotou 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 24^th 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 ...

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 5^th 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.”

We agree with the judge and the disciplinary panel. DC Ridley was in “a unique position … with the fullest picture of the developing situation”. He failed to respond to what the panel called the “improper contacts” with the witnesses, as set out in the statements taken on 19 October as set out above. As a result he failed to appreciate that the calls made on 13 October were probably made by Brougham and on 29 October he failed “to analyse and assess the information regarding the two fires in the context of the previous threats and intimidation.” We do not think that this failure to respond to the information about the fires was a mere error of judgment. In the context of what had gone before it was a failure on the part of DC Ridley as a professional police officer to carry out his duties properly by investigating the fires further.

On 9 November the CPS prepared a notice of additional evidence including the statements taken from Mr Panayiotou and Giles on 19 October. However, the judge did not find that Brougham was made aware of the notice before 22 November. She added that, even if he was, mere service of the 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. As the judge pointed out, by this stage the trial had been listed to start during a two week window commencing on the 27 November.

Also on 9 November, Giles received another telephone call which he had no doubt was from Brougham, who 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 at 13.33 on the same day Giles rang and left a voicemail message on DC Ridley’s answerphone at Royston Police Station. The judge found that in the message 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 17 November. The judge noted at [29] that Mr Van Colle believed that there was such contact and Mrs Van Colle had a recollection that an appointment was made to meet DC Ridley before 17 November, which was then cancelled. The judge held that the preponderance of the evidence was that Giles did make mobile contact with DC Ridley before 17 November. She said that Mr Van Colle recalled that Giles had told him he was having trouble getting hold of DC Ridley during this period and DC Ridley’s own evidence was that he was very busy on the murder enquiry at this time. The judge held that, given Brougham’s previous threat, the concern shown by Giles, who had told his father about the call on the evening of 9 November, and the imminence of the trial it was more likely than not that Giles did make contact with DC Ridley on his mobile between 9 and 17 November. She added that, for reasons which are unclear, no meeting took place between them.

On 17 November (as DC Ridley accepted) there was a telephone conversation with Giles and on Sunday 19 November Giles wrote an account of what Brougham had said to him on the telephone. He sent it by fax to Royston Police Station on the following day. DC Newsome collected the fax on 20 November and gave it to DC Ridley on 21 November. At about 15.00 on 22 November DC Ridley spoke to Giles and arranged a meeting for 23 November in order to take a statement from him. DC Ridley’s evidence was that he was intending to arrest Brougham after obtaining Giles’ statement.

At [30] the judge set out this exchange between Wakerley J and DC Ridley during DC Ridley’s evidence at the trial:

“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?

It will be recalled that the disciplinary panel’s opinion of DC Ridley’s response to Giles’ message which was left for DC Ridley at 13.33 on 9 November was in these terms:

“In respect of the final call from Van Colle the officer stated he was happy to wait to make his statement. However, DC Ridley was in possession of additional facts i.e. the fires, which may have affected Van Colle’s level of concern. This issue merited greater urgency.”

We agree. Mr Faulks has always accepted on behalf of the appellant that DC Ridley should have acted with greater urgency after the telephone call of 9 November was reported to him, which on his account was on or about 17 November.

In considering this part of the case, at [33] to [37] the judge had 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. It provided guidance for police officers in dealing with witness intimidation. The judge noted that the introduction to it explained that the protocol complied with advice issued by the Association of Chief Police Officers (ACPO) in their Witness Support Policy, which expressly acknowledged the fundamental duty placed 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”.

The Hertfordshire protocol expressly recognised 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. Although she noted that attention was drawn to the offences of intimidating, harming or threatening to harm a witness created by the 1994 Criminal Justice and Public Order Act, the judge correctly observed at [34] that the clear focus of the document was the protection of witnesses who were being intimidated and the need to ensure an effective response, depending on the nature and degree of intimidation involved. The policy referred not only to community wide intimidation but to case specific intimidation, namely “threats or violence intended to discourage a particular person from helping a particular investigation”, including 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”.

The protocol divided witness intimidation into three tiers, of which the judge held that the second was relevant here. It related 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 protocol added:

“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.”

The protocol described tier 2 witness intimidation as “a Divisional responsibility assisted by HQ Crime Management Department when appropriate.”

At [36] the judge made the point that the level of protection or assistance to be given obviously depended on the circumstances. However, she noted that the fact that the witness was also the victim was recognised as being a factor which “might give rise to an increased likelihood of intimidation”. She added that the policy included these measures which might be taken:

“a)

…

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.”

The judge concluded her consideration of this part of the case at [37] of her judgment as follows:

“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.”

We entirely agree with those conclusions. They highlight the fact that, although DC Ridley was, in our judgment, correctly criticised in a number of respects, he did not have the support to which he was entitled and which the public were entitled to expect him to have. As we see it, the acts or omissions of the police must be judged on the assumption that the officer concerned was provided with all appropriate instruction and guidance. The judge was therefore correct to hold that the acts or omissions of the officer in charge of the case must be judged in the light of the protocol.

Mr Faulks submitted to the judge (as appears from [32] of her judgment) and submitted to us that, whilst DC Ridley acknowledged with the benefit of hindsight that he made errors of judgment or wrong, operational decisions, and whilst he accepted 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 to the judge, “ring that kind of bell”. Further, he submitted that the murder of Giles by Brougham on 22 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. Such an event could not reasonably have been anticipated by a busy police officer, acting reasonably and carrying out his duties as best as he could. Mr Faulks relied upon the evidence of DS Parsons and DI Foster at the disciplinary hearing to the effect 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 22 November.

There is undoubted force in those submissions but they were rejected by the judge. Mr Faulks submitted to us that the judge was wrong to reject them. A key question for decision in this appeal is whether the judge was indeed wrong to reject them. We have reached the conclusion that she was not. However, before giving our reasons for reaching that conclusion and discussing questions of causation, it is convenient to consider the relevant legal principles.

As indicated above, the respondents’ case is that the appellant infringed Giles’ rights under articles 2 and 8 of the Convention. Since it is not in dispute that, if he did infringe either of those rights, he is liable to the respondents under sections 6 and 7 of the HRA and the judge had power to award damages under section 8, it is not necessary to set out the provisions of the HRA in this judgment.

We consider first the respondents’ case under article 2 of the Convention, which provides, so far as relevant:

“Article 2

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.

The judge correctly summarised the approach of the European Court of Human Rights to article 2 at [41] of her judgment. Thus, 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 e.g. McCann v. United Kingdom (1995) 21 EHRR 97, at [150] and [197] and R (Bloggs 61) v. Secretary of State for the Home Department [2003] 1 WLR 2724 per Auld LJ at [62]. The judge correctly identified common ground between the parties as follows. Article 2 imposes on member states a substantive prohibition on the taking of life, a procedural obligation officially to investigate the taking of life in certain situations (see e.g. McCannat [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. As the judge put it, this protective obligation will primarily be discharged by the adoption of an effective system of criminal law, supported by adequate law enforcement machinery, in order to deter the commission of offences against the person and to punish individuals who are guilty of taking the lives of others.

However, in Osman the European Court of Human Rights held that the authorities of a member state, including the police, can also be under a positive obligation imposed by article 2 in some circumstances to take preventive, operational measures to protect a person whose life is at risk from the criminal acts of another. The central issue of principle between the parties, both before the judge and in this court, is the nature and extent of this obligation. Ms Carss-Frisk submitted that on the facts found by the judge the police were in breach of this obligation, whereas Mr Faulks submitted that they were not. The judge accepted Ms Carss-Frisk’s submissions. Mr Faulks submitted that she was wrong to do so.

Much of the debate has centred on the facts of Osman and on the principles stated by the court. We set out the facts in some detail because Mr Faulks placed particular reliance upon them. For present purposes we accept the appellant’s summary of the unchallenged facts. That summary included the following. Ahmet Osman (‘Ahmet’) was wounded in a shooting incident in March 1988, which resulted in the death of his father, Ali Osman, (‘Mr Osman’). Mr Osman was shot by a school teacher, Mr Paget-Lewis (‘PL’) who was subsequently convicted of manslaughter on grounds of diminished responsibility. During 1987 PL had formed an obsessive and unhealthy attachment to Ahmet, who was then a 15 year old pupil at PL’s school. He took photographs of Ahmet and gave him money and other presents. He also became extremely jealous of a friend of Ahmet called Leslie, whose mother reported PL for harassing him. It was suggested that PL seek psychiatric help. Ahmet reported to the school that PL had told him that PL would be able to ‘find’ him if he left the school. In March 1987 the headmaster spoke to the police four times about PL’s behaviour. Included in the reports to the police were the appearance around the school of obscene graffiti involving Ahmet and Leslie and the theft of school files, both of which were thought to have been perpetrated by PL.

PL changed his name by deed poll to Ahmet Osman. He had previously changed his name to that of another pupil at a former school. Two senior police officers were informed of the position. PL was seen by an ILEA psychiatrist, who decided that PL gave cause for concern. It was feared that PL might try to abscond with Ahmet. A brick was thrown through the Osmans’ window and the tyres on Ahmet’s father’s care were deliberately burst. PL was found unfit for work but in August 1987 he returned to a different school.

Between August and December 1987 engine oil and paraffin were poured on an area around the Osmans’ house. Their front door was jammed with super glue, dog excrement was smeared on their doorstep and on their car and on more than one occasion the light bulb was stolen from the outside porch. All of the windows of the family car were also broken. All these incidents were reported to the police. A police officer visited the Osmans’ home and then spoke to PL. In December 1987 a car driven by PL collided with the van in which Leslie was a passenger. PL claimed that accelerator of his car had jammed. The incident was reported to the police. They took a statement from the driver of the van who recalled that PL had said after the collision, “I am not worried because in a few months I’ll be doing life”. Detective Sergeant Boardman (“B”) took a detailed statement from Leslie and his mother. In it, Leslie claimed that PL had threatened to “get him” whether it took “30 days or 30 years”. He had not been to school for two weeks because he was afraid to travel there. B visited the Osman family and discussed the criminal damage and PL’s relationship with Ahmet. B concluded that although there was no direct evidence to implicate PL in the incidents that occurred, there was no doubt in anybody’s mind that he was in fact responsible. PL was interviewed by officers of the ILEA at his own request. Apparently PL felt in a totally destructive mood, stating that “it was all a symphony and the last chord had to be played”. He blamed the deputy head of Ahmet’s school for all his troubles but said he would not do a “Hungerford” in a school but would see him at his home. That information was passed to B whose response was to send the information to the local police station near the deputy head’s home referring to the fact that threats had been made. He asked local police to pay attention to the address giving a brief description of PL and the registration number of his car. Police Officers went to PL’s address on 17 December 1987 in order to arrest him. PL was not there.

On 17 January 1988 PL stole a shot gun from a clay pigeon shoot near Leeds although that was not reported to Metropolitan Police at the time. On 1, 4 and 5 March 1988 Leslie saw PL near the Osmans' house wearing a black crash helmet. Leslie’s mother informed the police. B received a message which stated “phone Mrs Green” but he apparently did not connect the message with the mother of Leslie Green and did not return the call, there being no telephone number on the note. On the 7 March 1988 PL shot and killed Mr Osman and seriously wounded Ahmet. He then drove to the home of the deputy head where he shot and wounded him and killed his son. Early the next morning PL was arrested. On being arrested he stated “why didn’t you stop me before I did it, I gave you all the warning signs?”

Ahmet and his mother (who were also the applicants in the European Court of Human Rights) 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. This court allowed the Commissioner’s appeal, following the decision of the House of Lords in Hill andholding that the police did not owe a duty of care to the respondents. As the judge put it at [44], this court held that it did not follow from the existence of a general duty on the police to suppress crime that a duty of care was owed to the respondents. It would be against public policy to impose such a duty because 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.

There was no judicial investigation of the facts in England because the claim was struck out, PL pleaded guilty to the charges against him and no full inquest had taken place. There was a good deal of dispute between the applicants and the UK as to the events which led up to the shooting, as to the state of knowledge of the police, as to the real danger which P posed and as to the intentions of the police as expressed to the Osman family and the school authorities. On the applicants’ subsequent complaint that UK was in breach of articles 2, 8, 6(1) and 13 of the Convention, the Commission itself made an assessment of the facts. At [95] the Commission expressly regretted the absence of a detailed fact-finding exercise by the domestic courts. As the judge noted at [45], the Commission’s assessment of the facts was subsequently criticised in a number of respects before the Court.

In these circumstances the judge reached this conclusion at [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.”

We agree that little assistance is to be derived from a comparison of the facts of Osman with the facts of this case. That said, on the one hand, we agree with Mr Faulks that Osman was an unusual and, perhaps, exceptional case, whereas, on the other hand, we accept Ms Carss-Frisk’s submission that the Osman family were not threatened in the way that Giles was on the facts of the instant case. For example, at [117] the Court said that PL’s statements could not reasonably imply “that the Osman family were the target of his threats and put the police on notice as such”. In our opinion, the importance of Osman is not as a comparator for the facts of this case, but as a source of the principles to be applied.

The scene was set at [115]:

“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.”

It is the scope of the positive obligation on a state to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual which is at the centre of the present case.

In Osman the Court expressed its conclusions on that question at [116]:

“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.”

It is important to note that in that paragraph the Court stressed that not every claimed risk to life gives rise to a positive obligation under article 2. That is because of policy considerations which are very similar to those which led the House of Lords in Hill and Brooks to conclude that no duty of care is owed by the police to those in the position of Giles. However, unlike the solution so far adopted by the common law, the solution adopted by the Court under the Convention was not to hold that there was no positive obligation actionable at the suit of a victim to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, but to hold that such an obligation must be interpreted so as not to impose an impossible or disproportionate burden on the authorities.

The solution adopted by the Court in the second part of [116] quoted above was to hold that it was sufficient for an applicant to show 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 debate before the judge and before us centred upon whether it was necessary to show a real and immediate risk to life in every case and, if so, on what was meant by a real and immediate risk to life.

The risk must be to an identified individual or individuals. Here that individual was Giles. The Strasbourg jurisprudence has focused on particular classes of person who may be at risk. One such class is that of prisoners because they are in a particularly vulnerable position: see e.g. Keenan v United Kingdom (2001) 10 BHRC 319 discussed by the judge at [48]. The judge accepted Ms Carss-Frisk’s submission that witnesses too may be in need of particular protection. We agree that that is so, although all will depend upon the circumstances of the particular case.

Like the judge, we were referred to four cases in particular. The first was R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249, where this court upheld a decision of the Divisional Court which quashed a decision of the Bloody Sunday Inquiry refusing to permit British soldier witnesses to give their evidence otherwise than in Londonderry. It was held that that decision was incompatible with article 2 of the Convention because of the risk of potentially fatal attack by terrorists. Giving the judgment of the court Lord Phillips MR said at [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.”

Lord Phillips said at [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.”

As the judge observed at [50], the court’s conclusions as to the test to be applied were set out at its [28]:

“28.

In R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 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.”

It follows from that reasoning that the answer to the question whether it is necessary to show a real and immediate risk to life in every case is that it is not. As the court said at [17], each case depends upon its own facts and the question is always one of fact and degree. The relevant degree of risk will depend upon the circumstances of the case. Ms Carss-Frisk accepted that in the Lord Saville case the court recognised that the ‘real and immediate’ test in Osman was, as Lord Phillips put it, a “very high degree of risk calling for positive action to protect life” but she submitted that the test here was lower because this is an example of a case in which “the risk was attendant on some action which an authority is contemplating putting into effect itself”. That action was the calling of Giles to give evidence in a criminal trial, just as the action in the Lord Saville case was the calling of the soldiers to give evidence to the inquiry.

The second case was R (DF) v Chief Constable of Norfolk Police [2002] EWHC 1738 (Admin), where 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 quashed the decision. He held at [35] and [36] that recommendations by the police and subsequent decisions by the prison service were not the kind of actions contemplated in the Lord Saville case and that they were more closely analogous to decisions taken by the police in the course of their duty to protect members of the community. He thus approached the test by reference to Osman but he also recognised at [37] that the situation in prison is not the same as the situation in the community and set out some of the differences between the two. They are described by the judge at her [55].

In the light of those differences, Crane J considered at [38] whether, in the context, the risk must be ‘real and immediate’. He held that it must be real but added:

“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.”

At [121] Crane J expressed his conclusion thus with regard to entry into a witness protection scheme:

“… the question to be asked before entry to a protected witness unit is whether there is a real and immediate risk to the life of the claimant if he is not admitted to a protected witness unit, rather than some alternative regime, for whatever period is being considered. Since a year is the normal period between reviews, that is the relevant period. Immediacy must be considered in that context. Where a prisoner has previously been properly admitted to a protected witness unit, it is in my judgment incumbent on the Prison Service to satisfy itself that the risk is no longer such as to require admission.”

The decision shows that, however it is expressed, the test is fact sensitive.

The third case was R(Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724, where the applicant sought judicial review of a decision of the prison service to remove him from a protected witness unit to return him to the general prison population. His application was on the basis that, if put into effect, the decision would breach his right to life under Article 2. This court dismissed an appeal from a refusal of that application.

At [54], Auld LJ, with whom Mummery and Keene LJJ agreed, said this about the test:

“54.

…. 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 ... 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.”

Auld LJ then quoted part of [115] and [116] from Osman as we have done above and added:

“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 … 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 …, 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.”

At [58] Auld LJ drew attention to the decision and reasoning of Crane J in the DF case as set out above. At [59] he said that in the Lord Saville case this court 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 Bloggs 61. Auld LJ reached these conclusions at [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.”

The judge drew attention to that reasoning and added that Auld LJ emphasised at [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”.

At her [56] the judge distilled these principles from the authorities:

In our judgment, those propositions are supported by the authorities to which we have referred. In the present case Giles was not simply a member of the community, like Mr Osman, but was to be a witness for the prosecution at a criminal trial. In this regard the police wrote to Giles on 10 November saying that his evidence was crucial to the case and asking him to attend court when required. The question whether there was a real and immediate risk to his life must be considered in that context. So judged, the question is whether there was a real risk to Giles’ life and, if so, whether it was immediate in the sense used in the cases. Thus, if there was a real risk the question is essentially whether it existed during the time before he was to give evidence against Brougham. If it did, then it was ‘immediate’ in the sense used in the authorities, especially DF and Bloggs 61, because it existed (or would but for Giles’ death have existed) until the trial.

If there was a real and immediate risk to Giles’ life in that sense, two further questions arise, namely whether the police knew or ought to have known of the nature of the threat and the degree of risk and whether, if so, they did all that could reasonably have been expected of them to avoid the risk. If the answer to the first of those questions is yes and the answer to the second question is no, a yet further question arises, namely whether the failure to take the action the police ought to have taken was, in the relevant sense, causative of Giles’ death.

That last question raises the question what is the relevant test of causation in this context. Mr Faulks submitted that the correct approach is the same as the approach to causation at common law and that the claimant must show that but for the infringement of article 2 the deceased would have survived. He relied upon [121] in Osman:

“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.”

The judge rejected Mr Faulks’ submission. She accepted Ms Carss-Frisk’s submission that the Court was there referring to one of the factors supporting its conclusion that there had, on the facts, been no violation of article 2. She held that to construe them as implying a ‘but for’ test would result in an inconsistency with [116], which was the key paragraph in the Court’s reasoning relating to the nature of the obligation under article 2 and to what a claimant must establish to succeed. The Court there 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, having found a breach of article 6, the Court said at [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.”

The judge further relied upon E v United Kingdom,App No 33218/96, 26 November 2002, in which the applicants alleged that a local authority had failed to protect them from abuse by their step-father, invoking articles 3, 8 and 13 of the Convention. The Court concluded on the facts that the authority had failed to take steps which would have enabled it to discover the extent of the problem and, potentially, to prevent further abuse taking place and held that there had been a breach of article 3. As to causation the Court said at [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.”

The judge further relied upon R (Greenfield) v. Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673 per Lord Bingham at [14], where he said that, even in relation to breaches of article 6, the 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”.

He added that it has done so in cases “where it was persuaded that justice required it to do so” and, as he recognised at [15]:

“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.”

In the light of that approach, the judge concluded at [105] that what she described as a 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. She held that, 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 conclusion she held that on the facts of this case the proper question was 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. We agree with the judge that, in the light of the Strasbourg approach, that was indeed the question to be answered on the facts.

We have set out the material facts above. It is plain from the fact that Brougham was responsible for Giles’ murder that there was in fact a risk to his life. The central questions are whether the police were or ought to have been aware that there was such a risk and that it was in the relevant sense real and immediate and, if so, what they ought to have done. The judge held that the police ought to have been aware that there was such a risk and that it was real and immediate. We have reached the conclusion that she was justified in so holding. Unfortunately, as the passages from his evidence, which were relied upon by the judge and are set out above, show, DC Ridley was not aware of the Hertfordshire police protocol and did not consider whether or not he should take action to protect Giles. In our judgment, a properly instructed police officer should have given due consideration to that question.

Giles was an important prosecution witness in the case against Brougham. It is true that Brougham did not have a history or record of serious or violent crime and that the offences with which he was charged were not serious offences and did not involve violence. The judge fully recognised that that was the case. Her conclusions were based, however, on reports of Brougham’s actions of which the police were or ought to have been aware.

Although we have referred to the events before 13 October, the first key events were the telephone calls on 13 October. Of those, by far the more important was that to Giles, which contained what Giles subsequently described as a death threat. Although it does not appear that the words ‘death threat’ were reported to DC Ridley, the evidence set out above and accepted by the judge in her [20] (set out at [27] above) support the conclusion that it was a serious threat. Indeed DC Ridley accepted in cross-examination that it indicated a risk to Giles’ life. The reason DC Ridley did nothing was not, it seems, that he did not think that there was such a risk but that he did not think that it was Brougham who was making the threat. The judge held (in our view correctly) that DC Ridley should have appreciated that it was indeed Brougham who was threatening Giles. He should have concluded that Giles was at risk of serious harm to life and limb and taken appropriate steps to protect him. Moreover, it was plain from the nature of the threat that it was real and that it was immediate in the sense explained in the cases, especially by Auld LJ in Bloggs 61. It was immediate in the sense that it would be likely to persist until the trial of Brougham because the threat was to Giles and his parents unless he dropped the charges. It was reasonably foreseeable that Brougham might make an attempt on Giles’ life during that period.

The problem throughout was that DC Ridley, perhaps because this important aspect of protecting the public had not been stressed to him through instructions such as the protocol, did not give thought to Giles’ need for protection. As the disciplinary panel put it in this context (quoted at [31] above),

“[i]n a full and proper investigation, the public would at least have expected contact with Brougham in an attempt to prevent recurrences, but more probably he should have been arrested.”

The next key events were the setting alight of Mrs Panayiotou’s car and Mr Panayiotou’s business premises on 28 and 29 October, which was only ten days or so after DC Ridley had taken statements about the threats made on 13 October. We entirely agree with the judge (see her [26] and our [35] above) that, given both the seriousness of these incidents and Mr Panayiotou’s distress and suspicions that Brougham was behind the fires, further and prompt action by DC Ridley was called for. As the disciplinary panel put it, he was in “a unique position … with the fullest picture of the developing situation”.

Finally there came a further threat to Giles on 9 November. This time DC Ridley appreciated that it was from Brougham. However, again, as his answers to Wakerley J quoted at [40] above show, DC Ridley did not give any consideration to the possible need to protect Giles. We agree with the disciplinary panel and the judge that he should have done, especially since by this time he knew about the fires. Proper consideration given to this further threat should have been given in the light of the earlier threat to Giles and his family and should have alerted the police to take action.

We are not persuaded that the judge’s conclusions are based on hindsight or that they are based on applying too high a standard to a busy policeman. DC Ridley should not bear all the blame because he does not appear to have received sufficient instruction as to the importance of witness protection, which the protocol shows was correctly appreciated by the Hertfordshire Police. However, the obligation which the judge held that the police failed to discharge was not an onerous one. It was simply to give consideration to a serious threat to Giles, to take appropriate action in the light of it and thereafter to keep the situation under review in the light of the further information that came to light, viz the fires and the further threat.

As to the fires, it is correct, as Mr Faulks pointed out, that DC DeCadenet, who was the officer from the Metropolitan Police who investigated the fire to Mr Panayiotou’s 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.

It is likely that, if DC Ridley had done what the disciplinary panel said he ought to have done and analysed and assessed the information regarding the two fires in the context of the previous threats and intimidation, he would have learned a good deal more. Thus, as the judge observed at [25], in a witness statement dated 6 April 2001, Terence Hodgens, an officer in the London Fire Brigade who attended the fire at the premises, said 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 April 2001, a forensic scientist called Sarah Griffith concluded that a flammable liquid had deliberately been poured over the exterior of the vehicle and ignited. There was, therefore, as the judge held, evidence to be found, upon reasonable enquiries at the relevant time, that these fires, or at any rate the fire to the business premises, had been started deliberately. If this evidence had been found it should (and perhaps would) have induced DC Ridley to take further action.

We should add that we are not persuaded that the conclusion we have reached will threaten police resources. The discharge of the obligations we have identified would not have involved the use of significant further police resources. All that was required was some further thought by a properly trained and instructed officer and some action to protect Giles. Instead, as was correctly conceded on their behalf, the police did nothing in that regard. In these circumstances we do not accept the submission that to uphold the judge’s decision will open the floodgates to baseless claims against the police. On the contrary, we see no reason why it should not help to engender the exercise of the care and skill to be expected of the police to protect vulnerable witnesses in appropriate cases.

In short we do not disagree with the judge’s conclusion, which was consistent with that of the disciplinary panel, that the police should have taken action to protect Giles. They should have known that there was a real risk to his life and that the risk was and would remain immediate until the date of Brougham’s trial. In these circumstances they should have done all that could reasonably have been expected of them to minimise or avoid the risk. Unfortunately, as the judge held and as DC Ridley himself accepted, the police did nothing to that end. For these reasons, we conclude that, with regard to the questions posed at [7] above, the judge was correct to hold that the police were under a duty to take preventive measures in relation to Giles and that they were in breach of that duty and therefore acted incompatibly with Giles’ right to life under article 2 of the Convention.

We should add that, in reaching those conclusions, we have not embarked on the kind of comparative analysis of the position under article 2 with that at common law which the judge did at [89] to [93]. For the reasons given earlier, we have assumed that, as the common law stands at present, the police would be held to owe no duty to the respondents to exercise care and skill in this regard. The question for decision in this appeal does not depend upon the position at common law. It depends upon the position under article 2 of the Convention.

The judge held that the answer to the question (posed at [84] above) 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 was plainly yes. She noted in this regard that 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. She went further. At [105] she held that it was more likely than not that Giles’ death would have been avoided had the steps identified above been taken.

The judge set out her conclusions on the facts at [106] as follows:

“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.”

Mr Faulks submitted that the judge was wrong to reach those conclusions. However, we do not agree. The judge is an experienced criminal judge. We are not persuaded that she was wrong to hold that, if the police had acted as they should have done, it was highly likely that his bail would have been revoked, that he would have been remanded in custody and that Giles would not have been murdered. As we see it, the judge held that causation was established, even on the ‘but for’ test. We see no reason to disagree with that view.

For these reasons we conclude that the judge was entitled to hold that the police infringed Giles’ right to life under article 2 of the Convention and that Giles lost his life as a result. We therefore dismiss the appeal on liability. In these circumstances it is not necessary for us to consider the position under article 8 and we will not further lengthen this judgment by doing so.

The judge awarded compensation under two different heads: £15,000 to the first respondent on behalf of the estate of Giles, for the fear and distress which he suffered in the period leading up to and immediately before his death, and £17,500 to each of the respondents personally in respect of the grief, anguish and distress suffered by them as a result of his death. The appellant contends that, even if an award of compensation is appropriate, this award is too high.

The award of damages under the HRA is governed by section 8 which, so far as relevant, is as follows:

“8(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.

…

(6)

In this section-

“court” includes a tribunal;

“damages” means damages for an unlawful act of a public authority; and

“unlawful” means unlawful under section 6(1).”

Article 41 requires the European Court of Human Rights to afford “just satisfaction” to an injured party if this is not provided by national law.

In Anufrijeva v. Southwark LBC [2003] EWCA Civ 1406 this court considered section 8 and the question of damages generally at paragraphs [49] onwards. It drew attention to the need to have regard to the approach adopted in Strasbourg, and to the care needed in making comparisons for that purpose and also the difficulty in discerning clear and coherent principles governing the award of damages, particularly where non-pecuniary loss is involved, as here. At paragraph 66 the court said this:

“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 ECtHR 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 ECtHR has awarded compensation consisting of “moral damages”. The Law Commission stated in its report that the ECtHR 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 R (Greenfield) v Home Secretary [2005] UKHL 14, Lord Bingham said at [6]:

“It would seem to be clear that a domestic court may not award damages unless satisfied that it is necessary to do so, but if satisfied that it is necessary to do so it is hard to see how the court could consider it other than just and appropriate to do so. In deciding whether to award damages, and if so how much, the court is not strictly bound by the principles applied by the European Court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It is, therefore, to Strasbourg that British courts must look for guidance on the award of damages.”

Later in his speech, at [19] Lord Bingham rejected the idea that awards should be on the low side, and should be influenced by comparisons with English cases rather than with awards by the Strasbourg court, saying this:

“None of the three English cases cited involved a violation of article 6, and to that extent they have only a limited bearing on the present problem. But there are in my opinion broader reasons why this approach should not be followed. First, the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official. Secondly, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. This intention was clearly expressed in the White Paper “Rights Brought Home: The Human Rights Bill” (Cm 3782, 1 October 1997), para 2.6:

“The Bill provides that, in considering an award of damages on Convention grounds, the courts are to take into account the principles applied by the European Court of Human Rights in awarding compensation, so that people will be able to receive compensation from a domestic court equivalent to what they would have received in Strasbourg.”

Thirdly, section 8(4) requires a domestic court to take into account the principles applied by the European Court under article 41 not only in determining whether to award damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents. The appellant contended that the levels of Strasbourg awards are not “principles” applied by the Court, but this is a legalistic distinction which is contradicted by the White Paper and the language of section 8 and has no place in a decision on the quantum of an award, to which principle has little application. The Court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the Court might be expected to be, in a case where it was willing to make an award at all.”

Accordingly, within the limits of what is available, an English court deciding a claim such as the present must derive assistance from cases in Strasbourg rather than from English decisions in analogous areas.

On this basis we were shown a number of decisions of the European Court of Human Rights under article 2, of which one was an English case, and the others were brought against Turkey. We will summarise them, so far as relevant.

Edwards v UK, Application 46477/99, judgment dated 14 March 2002, concerned a claim by the parents of Christopher Edwards that the prison authorities had failed to protect the life of their son, who had been killed by another detainee while held in prison on remand. Edwards was mentally ill, and was held overnight in the same cell as the other detainee who was also mentally ill. The latter killed Edwards by stamping and kicking him to death, early in the morning, within a period of 17 minutes after a regular patrol of the area. The Court concluded that there had been a breach of the direct obligation under article 2 as well as, for other reasons, a breach of the procedural obligation under the same article to hold an effective investigation into the death, and also a breach of article 13 in not making available an effective remedy under national law.

The applicants claimed compensation for non-pecuniary damage in respect of the anxiety, fear, pain and injury suffered by their son Christopher immediately before his death, and for their own anguish, severe distress and grief suffered at the loss of their son, and the ongoing stress and associated ill-health suffered by the second applicant as a result of the traumatic loss and ongoing frustration at the inability to pursue an effective avenue of redress. The court expressed its award as being in respect both of the pain and suffering which Christopher Edwards must have experienced, and of the anguish and distress suffered by his parents from the circumstances of his death and their inability to obtain an effective investigation or remedy. It made an assessment on an equitable basis and bearing in mind the amounts awarded in other cases. Its award was of a single sum of £20,000, not differentiated as between compensation for the son’s estate and that for the parents in their own right.

In Akkoç v Turkey, 22947/93 and 22948/93, judgment on 10 October 2000, Mrs Akkoç claimed in her own right and in relation to her deceased husband, including for breach of article 2 as regards her husband and for breach of article 3 in relation to the applicant herself, claiming separate compensation for the breaches in respect of her husband and for those in relation to herself. The Court awarded compensation including £40,000 for non-pecuniary damage, of which £15,000 was for the breaches in relation to the deceased, to be held by the applicant as surviving spouse, and £25,000 for those relating to the applicant for her own direct benefit. The applicant was detained unlawfully for 10 days and subjected to treatment which the court found was torture, in breach of article 3. In addition the Court found that she was subjected to intimidation in relation to her application. It is unnecessary for present purposes to go into the details of the facts; suffice it to say that they were on a wholly different scale from the breaches established in the present case, in terms of both seriousness and culpability. The Court explained its award for non-pecuniary damage as being made on an equitable basis, having regard to awards made in comparable cases, and also having regard to the nature and severity of the breaches found.

In Tas v Turkey, application 24396/94, judgment dated 14 November 2000, Turkey was held to be in breach of article 2, both directly and as regards the procedural obligation, in relation to the applicant’s son, who died while in the custody of the security forces in circumstances which were never explained, and also in breach of article 3 as regards the applicant himself, as a victim of the authorities’ conduct in relation to his son. The Court awarded compensation for non-pecuniary damages of £20,000 for the breaches as regards the son, to be held for the benefit of his estate, and £10,000 for the applicant directly. The Court noted expressly that awards had previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings.

In the case of Şemsi Önen v Turkey, application 22876/93, judgment 14 May 2002, the Court found a breach of the procedural obligation under article 2 in relation to the deaths of the applicant’s parents and brother, and a corresponding breach of article 6, but rejected the allegations of breaches of other articles. The applicant’s claim in respect of non-pecuniary damage was, first, for an amount to be paid for the benefit of the estate of each of her three relatives whose deaths gave rise to the proceedings, secondly for the same amount for the applicant and one of her sisters who had both been exposed to a particularly high degree of suffering as they had witnessed the attack and killings during which the applicant had been injured, and thirdly for the same amount for each of her nine other surviving siblings, who had not witnessed the event but had suffered grievously from the loss of their brother and parents. The Court held that it could award compensation under Article 41 not only to the applicant but also to other members of her family who were victims of the violations found and on whose behalf the applicant had brought the application and had sought just satisfaction. It accepted that there was a sufficient causal connection between the breaches proved and the suffering of the applicant and her siblings. On the basis that no breach of the direct obligation under article 2 was established there was no case for an award for the parents’ and the deceased brother’s estates. It held that the applicant and her ten surviving siblings had suffered considerable anguish and distress from the authorities’ failure to investigate effectively the deaths of their mother, father and brother. It made an award of compensation on an equitable basis and having regard to awards made in previous cases from south-east Turkey concerning complaints under articles 2 and 13 related to the death of a close family member. The award was of €16,000 for the applicant and her sister most directly affected, and €13,000 for each of the other siblings.

Thus, in Edwards there was a single award for a number of breaches of which the victims were different: the deceased was the victim of the breach of the direct obligation under article 2, but his parents were the victims of the breaches of the procedural obligation under article 2 and of the breach under article 13. We dare say that if any award had been made to the son’s estate as such it would have gone to the parents in practice, but it seems better in principle to make separate awards to different victims. In Akkoç there were quite separate breaches in relation to the deceased and the applicant, and separate awards were made. It may that it was the fact that the applicant was herself the victim of such a serious breach on the facts of the case that led to the court not considering making an award to her in respect of her suffering as regards her husband’s death. In Tas, also, there were separate awards for separate breaches of which the deceased and the applicant respectively were the victims. In Şemsi Önen there was no breach of which the deceased family members were victims, but there were breaches of which the survivors were victims, and compensation was awarded to those family members, though distinguished according to the extent to which each survivor was directly affected by the circumstances of the deaths.

Thus, these four cases do not provide an example of an award being made to a person who is not found to have been the direct victim of a breach of one or another obligation under the Convention. In those cases where awards were made for the benefit of survivors, there had been breaches of separate obligations owed directly to those survivors, whether article 3 (as in Akkoç and Tas) or the procedural obligation under article 2 or article 13, or both (as in Edwards and Şemsi Önen). References in the Court’s judgments, especially in Tas, show the court accepting the proposition, in general terms, that an award can be made to surviving spouses and children or to surviving parents or siblings, but examination of the facts of the cases cited to us show that the basis for these awards was a breach of an obligation owed directly to the survivors, rather than treating the survivor as an indirect victim of the breach in respect of the deceased.

In the present case, the judge held that the police acted in breach of article 2 (and article 8), by failing to discharge their positive obligation to protect the life of the respondents’ son. The respondents’ case was that they were victims of that breach, as well as their son. The case is not based on a breach of the procedural obligation under article 2, nor of article 13, in respect of which the police would not have been responsible.

Accordingly, it seems to us that there is no clear basis in the Strasbourg decisions for an award to the respondents in their personal capacity, as opposed to an award to the first respondent as personal representative of their son, which is plainly justified. Nevertheless, although on this appeal the appellant contends that the award to the respondents personally was too high, the Appellant’s Notice does not take the point that no award should have been made to them at all, assuming that the court rejects his appeal on liability and causation. In the appellant’s skeleton argument, though the point is noted that no Strasbourg award includes compensation for the applicant’s own suffering except where the applicant was also a direct victim, this is not put as the basis for a contention that no award at all should be made to the respondents personally, if the judge is upheld on liability and causation. We therefore leave this point for possible future consideration.

The appellant’s appeal on quantum is limited to saying that the judge’s award was too high, both in its individual elements and when taken in aggregate. In support of that a number of points are taken, besides saying that a comparison with amounts awarded in Strasbourg shows it to be too high. The detailed points taken were as follows:

As regards the relevance of distress suffered before death, in another case it might be necessary to consider with some care what it is that is to be reflected in the award, not least in order to ensure that it does not take into account matters irrelevant to the breach. On the facts of the present case, however, no substantial point arises in this respect. The Defendant is not answerable for the shock or distress suffered by Giles in response to the original telephone call from Brougham, nor for any other distress suffered by him before the date on which the Defendant ought, if the police had been acting in conformity with article 2, to have protected him from Brougham’s approaches. However, for the reasons given at paragraphs [32], [86] and [87] above, this date was on or soon after 19 October. Thus the period during which Giles was suffering shock and distress from the original telephone call but before the duty under article 2 came into play was not more than about a week, and DC Ridley knew of the phone call from almost as soon as it happened (see paragraph [23] above). In those circumstances it is not necessary to draw a distinction in practice between Giles’ suffering before and after the time when the duty arose.

The judge said at paragraph [114] that she recognised, in relation to Giles’ suffering, that he was concerned and distressed as a result of Brougham’s conduct for a period of several weeks. For the reasons given above, this does not show any error on her part in taking matters into account which were not relevant to her award.

The other factor which is relevant is that, as the judge said later in [114], Giles would have lost consciousness instantly, and died almost at once, and would not have suffered after the shooting. It also seems unlikely that there was more than the briefest period between him becoming aware that he was about to be shot at, and the firing of the first shot. We do not in any respect underestimate the shock and horror of that moment for him, nor the resulting and continuing shock and horror of the death for the respondents, but in that respect the facts are quite unlike the relatively prolonged period involved in the death in Edwards, and even more unlike the days of torture involved in some of the Turkish cases.

In relation to the first of the appellant’s five points listed above, we do not accept that, in considering whether to award compensation, and if so how much, to the estate of someone whose death is attributable to a breach of the direct obligation in article 2, that person’s suffering before the death can only be taken into account if, for example, it would (if it had been at the hands of a public authority) have given rise to a claim for compensation under article 3 if death had not ensued. We agree that suffering during a period before the Defendant was in breach of article 2 should not be the subject of a claim, but we consider that suffering during the period when the Defendant is in breach can be taken into account (subject to the evidence) on the basis that it is the greater because of any previous period of suffering, at any rate if the appellant was or ought to have been aware of the likelihood of such earlier suffering, as it is likely to be from being aware of the facts which give rise to the article 2 duty. This point, therefore, does not justify the court in reducing or eliminating the award to Giles’ estate.

The second such point taken in relation to the award for Giles’ estate is the judge’s failure to have regard to the level of awards for personal injuries in England. It seems to us that the answer to this point lies in the observations already cited, in particular from R (Greenfield), namely that, for the reasons there given, the guide to quantum is to be found in Strasbourg cases rather than in English decisions.

That is also the answer to the first of the points taken as regards the award for the respondents’ own direct benefit, the judge’s failure to have regard to the statutory amount of damages for bereavement.

The second of these points depends on the general point of comparison with the facts of the Strasbourg cases relied on, and the awards made in those cases. We will come back to that which applies to all aspects of the award.

Next there is the question of the lack of any, or a proper, apology. As Mr Faulks submitted, the question of an apology is sensitive for a defendant. Section 2 of the Compensation Act 2006 is intended to alleviate this problem for the future:

“An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.”

We do not wish to cast doubt on the proposition that the absence of more than a very limited apology was upsetting to the respondents. However, it does not seem to us that this is a sufficiently significant fact to warrant being reflected in the quantification of the compensation to be awarded for the breach of article 2.

We also consider that it would be wrong to allow the sanction imposed by the disciplinary panel to influence the amount of the award. That panel has a quite distinct function to perform, to which the consequence of DC Ridley’s misconduct was no doubt relevant, but it was only one factor among many, the main one being the degree of culpability of the misconduct in question. That is itself relevant to the different question of liability for breach of article 2, and compensation, but it seems to us wrong in principle to regard the sanction itself as relevant.

In those two respects, therefore, we disagree with the judge and hold that she took into account matters which she should not have done.

However, the main point taken is that the necessary comparison of the facts of this case with those of Edwards or of the three Turkish cases mentioned shows that the judge’s award was far too high. It seems to us that Mr Faulks is right in this submission. It would be wrong to embark on too meticulous or detailed a comparison. However, in relation to a single award of £20,000 for all aspects of the compensation in Edwards, the award of £50,000 in the present case is a striking contrast, for which, as it seems to us, no adequate explanation is given in the judge’s judgment, nor can Miss Carss-Frisk point to one. The same is true of the award of £40,000 overall in relation to the facts of Akkoç, where the extent, nature and seriousness of the breaches was much worse.

Accepting that an award to each of the respondents personally is appropriate, as well as one for Giles’ estate, we conclude that £50,000 overall is too much, and that the individual elements were also too high, by comparison with Strasbourg cases. It seems to us that, in principle, the award to Giles’ estate ought to be the largest element. Of course, his parents will suffer more, as survivors are bound to, on a continuing basis, but as the direct victim, and having lost his life, it seems to us that the major element in any award ought to be directed to Giles’ estate.

Looking at the amounts of other awards, including that in Edwards, and allowing for the passage of time since the dates of the other cases, it seems to us that the judge could properly have awarded, at most, £10,000 to the first respondent as personal representative of Giles’ estate, and £7,500 to each of the respondents personally, resulting in compensation overall of £25,000. We regard that amount as providing just satisfaction, in the terms used by the European Court of Human Rights, and as being equitable, and proper by comparison with other awards. Of course, money cannot compensate for the respondents’ loss of their son, but this seems to us to be the right level of award, on the basis and for the reasons that we have given.

We therefore allow the appeal in this respect, and substitute an award of £10,000 to the first respondent as personal representative, and £7,500 each to the respondents in their own right.

For the reasons we have given we dismiss the appeal on liability but allow the appeal on quantum to the extent just indicated.