Scottish Human Rights Law Group

The first claimant’s son was to be a Crown witness against an accused who had approached witnesses (including the claimant’s son) prior to the trial, attempting to dissuade them from giving evidence against him.  The accused also made two telephone calls to the claimant’s son, one of which was threatening but contained no explicit death threat.  These calls were reported to the defendant’s force which took no steps to protect the claimant’s son.  Shortly after the second telephone call, the claimant’s son was shot dead by the accused.

The claimant raised proceedings against the defendant arguing that the failure to protect his son amounted to a breach of the duty imposed by article 2 of the European Convention of Human Rights as scheduled to the Human Rights Act 1998, and therefore that he had acted unlawfully. The judge at first instance held that the defendant had breached article 2, and the defendant’s appeal was dismissed by the Court of Appeal.

On appeal to the House of Lords, it was held that to establish a violation of the positive obligation under article 2, it had to be shown that a public authority had, or ought to have, known at the time of the existence of a real and immediate risk to life of an identified individual from the criminal acts of a third party; and that it had failed to take measures within the scope of its powers which, judged reasonably, might have been expected to avoid that risk.  No lower test applied where the risk to an individual’s life arose from the state’s decision to call the individual as a witness.  In the present case, the charges faced by the accused were minor in character and he was not known to be given to violence.  Since the reported incidents had not involved specific death threats, it could not reasonably have been anticipated from the information available that there was a real and immediate risk to the claimant’s son’s life.  Accordingly, the positive obligation under article 2 had not been violated, and appeal allowed.

Full report here