The duty of state authorities to take positive steps to protect the lives of citizens implicit in Article 2 of the European Convention on Human Rights was first authoritatively defined in Osman v UK (1998) 29 EHRR 245. Since that landmark decision was handed down, similar duties have been held to exist in relation to Articles 3 and 4 of the Convention and the duty to protect life has been applied in a variety of contexts.

Since the Human Rights Act 1998 came into force, the leading domestic decision on the duties of the police to protect life has been Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225. The House of Lords allowed the Chief Constable’s appeal and dismissed the claim of the parents of Giles Van Colle, who was murdered by a defendant facing charges of theft to which he was a witness.

Undaunted by the ultimate failure of their claims in the UK, Mr and Mrs Van Colle made an application to Strasbourg. The fourth section of the Court has now given judgment on their application and dismissed it: Van Colle v UK [2012] unreported, November 12th (application number 7678/09). Its judgment contains a number of points of interest:

  • The Court made it clear that there is no enhanced duty owed under Art 2 to a witness in criminal proceedings: para 91. Nor is any stricter duty owed to any other person who may be in a vulnerable position. The Osman test is applied in all cases. The Court stated: “.... the fact that the deceased may have been in a category of person who may have been particularly vulnerable was but one of the relevant circumstances of the case to be assessed, in the light of all the circumstances, in order to answer the first of the two questions which make up the Osman test of responsibility ....” 
  • The Court acknowledged that while it must examine the case carefully, nevertheless it should “accord a certain margin of appreciation to the legal assessment made by the House of Lords”: para 93. 
  • A subjective failure to consider the taking of measures to protect life does not establish a breach of Article 2 if, objectively speaking, it was not necessary to take such measures: para 95. Thus the fact that the officer in the case had accepted in evidence that measures could have been taken did not automatically give rise to a finding of liability. 
  • The Osman test is not a “but for” test where there is state liability if action could have been taken and was not taken: para 104.
  • The parallel claim under Article 8 added nothing and did not give rise to any wider duty or additional claim: para 108. This is a particularly significant finding, because claimants bringing claims of this nature frequently include an alternative claim under Article 8 which really adds nothing to their case beyond an unnecessary layer of complexity.