DSD and NBV v The Commissioner of Police of the Metropolis [30.06.15]

In DSD and NBV v The Commissioner of Police of the Metropolis [30.06.15], the Court of Appeal has upheld a decision that the police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner.

In this high profile case, at first instance, Mr Justice Green found that there were systematic failings by the police investigating a large number of rapes and sexual assaults perpetrated by the so-called ‘black cab rapist’ amounting to a breach of the victims’ rights under Article 3 of the European Convention on Human Rights (ECHR). 

Comment 

At first glance this decision appears at odds with the Supreme Court ruling earlier this year in Michael v Chief Constable of South Wales Police and another [2015] which upheld the common law ‘Hill’ principle that the police do not owe a duty of care to individuals to investigate crimes unless specific criteria are fulfilled. So how can these findings sit with each other, particularly when Michael allowed the Article 2 ECHR claim to remain in issue? 

Claims brought under the ECHR and the domestic Human Rights Act 1998 (HRA) have a different purpose from civil claims, namely to vindicate rights and not to secure compensation for loss. This is not a tortious claim. Although the HRA creates a cause of action, this in itself is not sufficient reason for the common law to duplicate or extend it. 

In this case the Court of Appeal held that the observations of Green J were sound, namely there was a positive investigatory obligation where credible arguments of mistreatment had been made. Green J set out 13 main principles for liability. 

This is important since Strasbourg case law repeatedly emphasises that “the police must be accorded a broad margin of appreciation in the choice of means of investigation”. 

In the original judgment, Green J found a number of “systematic failings” which led to serious operational failures. He emphasised an excessive burden should not be placed on the police. The court needs to consider:

  • The resources available to the police.
  • The nature of the offence.
  • Whether the victim fell into an especially vulnerable category.
  • Whether the operational failures were caused by systemic failings in the law or the practices by the police.

If it was found that the failings were sufficient and systematic this could be constructed in the domestic court to be a violation of the Article 3 investigative duty in the case of both Claimants. Accordingly the Court of Appeal upheld the original decision. It is not clear whether this will be appealed. 

Lessons learned 

Although we have some certainty in terms of the negligence issues, the finding in this case causes continuing concerns in terms of risk for police forces, which may be heightened in times of austerity. Lessons to be learned include the following:

  • Although Michael has provided some certainty in terms of the Supreme Court’s upholding their approach with regard to the Hill principle in relation to negligence, police forces failing to investigate ‘grave’ or ‘serious’ cases may, depending on the facts, be vulnerable to claims under Article 3 ECHR.
  • A great deal of care needs to be taken where there is a sequence of victims. Later victims may be able to recover damages, not only for a failure to investigate their report of Article 3 harm, but also for the harm caused by failings in relation to earlier victims.
  • Forces need to have documented rigorous procedures for the investigation of serious crimes, which are followed. Officers should be trained in these procedures and there should be adequate supervision.
  • When investigating a claim it is important to distinguish between systemic failures and individual failings.
  • In terms of compensation this is a secondary result under the ECHR. Damages should only be awarded for “just satisfaction” (Article 41 ECHR). These would not include a claim for exemplary or aggravated damages.

A word of caution: there appears to be a misunderstanding by some claimant solicitor firms in terms of bringing a claim under the HRA within the one year limitation period, what constitutes a breach and the ability to seek compensation.