One of the most important recent domestic cases on the extent to which the state has a positive duty to protect life was the case of Van Colle,[1] where the House of Lords held that there was no breach of duty by the police in failing to protect the life of a witness to a crime because the police did not know, nor should they have known, that there was a real and immediate risk to his life.
The European Court has now agreed with the House of Lords’ approach.[2] They agreed with the test being applied, and on the facts there was nothing to suggest to the police that there was a real and immediate risk to the life of the victim. The offences to which the victim was a witness were relatively minor, the accused did not have a history of violence, and the fact that the victim was a witness of crime did not of itself give rise to a fear for his life.
Van Colle in the House of Lords remains a leading case on the interaction between negligence and causes of action under the Human Rights Act so it is useful that its approach has not been cast into any doubt. This also confirms that the Act doesn’t create broader duties on public officials – there needs to be an appropriately foreseeable risk for liability under the Act, and there is no breach of the Act that there is no greater liability at common law.