CONCURRING OPINION OF JUDGE VUČINIĆ

With considerable hesitation, I voted to find no violation in this case. I am prepared to accept that the House of Lords could be considered to have applied properly, in a technical sense, the test developed by the Court in its Osman v. the United Kingdom judgment to determine whether, in the instant case, there was a real and imminent risk to the life of the applicants’ son. That being said, I am still concerned by the fact that it should have been very clear from the start that Mr Brougham was violent and dangerous. The incident which took place in September 1999 - in which Mr Brougham, having been asked about his national insurance number, raised his voice and pinned Giles Van Colle against the wall - should have been seen as an early warning sign to the police that Mr Brougham deserved their particular attention. In this connection, it cannot be overlooked that Giles Van Colle was a witness, albeit not a key one, in the criminal proceedings against Mr Brougham.

Leaving aside the issue of a possible overly technical application by the House of Lords of the Osman test, the case gives rise to a further and very important legal issue of a more general character, namely the protection of the life of a witness in criminal proceedings in the face of intimidation by the accused. In my opinion, this issue is just as important as the matter of the correct application of the Osman test. The Police Disciplinary Panel in the proceedings against DC Ridley (paragraphs 29-31), as well as the High Court and the Court of Appeal in the civil proceedings brought by the applicants, were alert to the importance of the fact that Mr Brougham had killed a witness who was due to testify for the prosecution at Mr Brougham’s trial. For me, it is a matter of some regret that the House of Lords did not give similar weight to this important aspect of the case, and nor did our Court.

The protection of witnesses from intimidation by the accused is important, not only in the context of the State’s positive obligations under Article 2 of the Convention, but also when it comes to the proper administration of criminal justice and the rule of law within the framework of Article 6. Every witness is, in principle, obliged to testify in criminal proceedings under pain of criminal sanction. For that reason, a witness requires to be adequately protected by the State whenever he or she is confronted with threats, acts of intimidation and other sorts of pressure emanating from the accused. In such situations, including the situation in which Giles Van Colle found himself, the authorities must address the necessity of witness protection, not only by the police officer handling the case, but also by the institution of the police as a whole.

A review of the case-law following the Court’s Osman judgment would appear to indicate that the Court has not yet been called upon to examine the protection of witnesses from the standpoint of Article 2 of the Convention. I do not wish to give the impression that the instant case is a suitable one for taking up the matter: nor am I suggesting that every witness in criminal proceedings should be given constant police protection. My point is that sooner or later the Court will have to come to grips with this key issue, possibly in the context of the fight against terrorism, organised crime and corruption.