Failure to protect witness breached Human Rights Act

A lawyer has warned that a new judgment by the Court of Appeal could lead to major changes to police witness protection schemes, after the parents of a witness who was murdered by a defendant brought an action against Hertfordshire Constabulary under the Human Rights Act.

In the case of Van Colle v Chief Constable of Hertfordshire Police, the claimants’ son, Giles Van Colle, was due to give evidence for the prosecution at the trial of his former employee Daniel Brougham.

Shortly before the trial Giles Van Colle was shot dead by Brougham, who was subsequently convicted of murder. There was evidence that Brougham had made threats to the claimants’ son in an apparent attempt to persuade him not to give evidence for the prosecution.

Information about the threats was passed to police, but although the force had a witness support policy in place, it was alleged they failed to carry out any steps by way of witness protection. A subsequent police enquiry found there had been operational failures on the part of the officer concerned, who was disciplined.

Mr Van Colle’s parents brought an action against the police under Section 6 of the Human Rights Act 1998, alleging breaches of Article 2 (the right to life) and Article 8 (the right to respect for private and family life).

The Court of Appeal ruled that police could be held liable for the breach of both Articles, and Martin Forshaw of law firm Weightmans, who acted for the Hertfordshire chief constable, said the decision was “unsatisfactory” and had significant implications for police forces nationwide.

“The Court of Appeal acknowledged that the claim would not have succeeded on general common law principles, but found that they were entitled to succeed under the Human Rights Act,” said Mr Forshaw.

“On the face of it this could give rise to inconsistent findings and highlights a tension between the common law and the Human Rights Act, although the Court of Appeal dismissed arguments on public policy stating that they did not feel that the decision ‘would open the floodgates to baseless claims against the police’.

“I am aware of a number of similar claims that have been notified to other police forces and their insurers. Even if these claims can be successfully resisted it involves a further drain on already stretched police resources.

“Threats to witnesses are common, and forces will be compelled to review their witness protection policies and ensure that all officers are familiar with them.”

A spokesman for Hertfordshire Constabulary said the force had appealed the case because of the “wider implications of the original judgement for operational decision making”.

“If the case was left untested, then there would have been a lack of clarity and stability in this area of the law, which could encourage unmeritorious claims from unworthy claimants,” said the spokesman.

The force is now considering whether to take the case to the House of Lords.