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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Q, R (on the application of) v Q Constabulary & Anor [2011] EWHC 592 (Admin) (17 March 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/592.html Cite as: [2011] EWHC 592 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/03/2011

Mrs Justice Rafferty :

1. This is a renewed application by Q in which he seeks to persuade me that I should compel the Defendant Chief Constable of Q Constabulary to place him on the protected witness scheme, provide him and his family with new identities, provide appropriate protection such as 24 hours police protection and/or a new address and carry out a lawful risk assessment. He complains that the Defendant by his failures has breached S6 Human Rights Act 1998 and/or S82 Serious Organised Crime and Police Act 2005. On 17^th May 2010 Ouseley J refused the application on the papers.
2. Q gave evidence for the Crown in the trial of the murderers of Mr and Mrs S in Nottinghamshire. DM, one of two convicted defendants, members of a local gang, is due for release from his term of imprisonment in March 2013 unless he is earlier released on licence.
3. In December 2008 the police received evidence that DM had put a price on the head of Q and of his children. The threat was regarded as real and although the Defendant is careful to point out that he has not discovered evidence corroborative of this, nevertheless Q and his family were relocated to an area within Q Constabulary.
4. In January 2010 the Defendant conducted a risk assessment whose conclusion was that the risk to Q and to his family was real but not immediate.
5. Q, dissatisfied, litigated. On 11^th February 2010 Elias LJ and Calvert Smith J made a consent Order, an application for an interim injunction being withdrawn on the Defendant's undertaking to put in place measures which included relocating the family and maintaining a review of the risk.
6. In February 2010 Q gave evidence in the inquest into the deaths of Mr and Mrs S using special measures to protect his identity. The Deputy Coroner made a number of findings including failure by Nottinghamshire Constabulary to pass on relevant information about the risk to Mr and Mrs S. She found there was neither local nor national policy on "threat to life" risk management though there was guidance on witness support. Nottinghamshire Constabulary had no witness protection policy though it had procedures in place.
7. For Q Mr Bowen sought to rely upon these findings. He was obliged to concede that they related to a different constabulary, were in general directed towards the protection of Mr and Mrs S and any failings arising therefrom, and relate to some years ago. He seeks to establish their relevance by submitting that they consider the danger posed by the same criminal gang from one of whose members originates the threat to Q, and that the lack of national guidance on threats to life policy raises an arguable case that Q Constabulary suffers shortcomings similar to those of Nottinghamshire years ago. He seeks disclosure of Q Constabulary's risk policy practice or procedure to fortify his argument.

The legal framework.

8. This can be taken briefly. Section 82 of SOCPA provides where relevant:

82 Protection of persons involved in investigations or proceedings

i) A protection provider may make such arrangements as he considers appropriate for the purpose of protecting a person of a description specified in Schedule 5 if:

a) The protection provider considers that the person's safety is at risk by virtue of his being a person of a description so specified, and

b) The person is ordinarily resident in the United Kingdom.

ii) A protection provider may vary or cancel any arrangements made by him under subsection (1) if he considers it appropriate to do so.

iii) If a protection provider makes arrangements under subsection (1) or cancels arrangements made under that subsection, he must record that he has done so.

iv) In determining whether to make arrangements under subsection (1), or to vary or cancel arrangements made under that subsection, a protection provider must, in particular, have regard to:

a) The nature and extent of the risk to the person's safety,

b) The likelihood that the person, and any person associated with him, will be able to adjust to any change in their circumstances which may arise from the making of the arrangements or from their variation or cancellation (as the case may be), and

c) If the person is or might be a witness in legal proceedings (whether or not in the United Kingdom), the nature of the proceedings and the importance of this being a witness in those proceedings.

v) A protection provider is:

a) A chief officer of a police force in England and Wales…..

9. Under HRA 1998 S6 Schedule Article 2 the Defendant as a 'public authority' owes the Claimant a duty (a 'positive obligation') to take measures within the scope of its powers which, judged reasonably, might be expected to avoid any real and immediate risk to his life from the criminal acts of a third party of which it knew of or ought to have known: see Van Colle v CC Herts Police; Smith v CC Sussex Police [2008] 3 WLR 593 (HL), applying Osman v United Kingdom (1998) 29 EHRR 245, para 116.
10. Q argues that the Defendant's risk assessment decision, "real but not immediate", is flawed since immediacy is a "hard-edged decision of fact". It is one this court should for itself make rather than reviewing that of the Defendant: R (Al Sweady) v MOD [2009] EWHC 2387 Admin To have any hope of succeeding Mr Bowen must distinguish Van Colle where the conclusion was that nothing in the available material prompted or should have prompted a police officer, investigating a minor theft, to be aware of a named individual's propensity to violence. Q however, Mr Bowen contends, is considered responsible for the conviction of DM, a known gang member whose threat has been termed real. His argument is that violence is likely without warning to occur (the risk is likely to eventuate) so that the first alert to its having been immediate will be the murder of Q or of his child.
11. This is not persuasive. True in Van Colle the court asked itself questions after the event but they were posed about an assessment itself made before the event. Putting it another way, Van Colle looked back at an assessment which looked forward. That is precisely the position here.
12. I was also referred to In Re Officer L et al [2007] UKHL 36 and to Regina (Wilkinson) v Broadmoor Special Hospital Authority et al [2001] EWCA Civ 1545 and to Tysiac v Poland (2007) 45 EHRR 42. None was necessary and though Officer L was of limited help, it was help afforded to the Defendant. There, a public enquiry into criticised actions of the Police Service of Northern Ireland ("PSNI"), had sought assistance from the PSNI, whose help formed part of the information upon which the enquiry ultimately based its decision. It was the finding of the public enquiry which was successfully challenged on appeal, not the procedure or behaviour of the PSNI.
13. Before this court could interfere with the decision of the Defendant it would have to find it irrational or Wednesbury unreasonable, (Van Colle) that is outside a range open to the decision maker. This decision comes nowhere near clearing that hurdle. As Ouseley J set out, there is identified no error of law and this issue is not one of hard-edged fact as identified in Al Sweady
14. Were this court to intervene as Q suggests it would risk usurping the role of the Chief Constable whose resource deployment decisions are best left to him. In any event the detailed information necessary even to begin to grapple with such an issue is neither available to me nor appropriate in judicial review.
15. The comments by the Deputy Coroner are of no assistance. They are far removed from applicability to these facts for all the reasons I set out above.
16. I have no hesitation in rejecting this renewed application.