Commissioner of Police of the Metropolis v DSD (1) NBV (2) & Alio Koraou v Chief Constable of Greater Manchester [2015] EWCA Civ 646

Facts

The Claimants DSD and NBV were two of the victims of a serial rapist. At first instance the Judge found that that

there had been failures by the Metropolitan Police in their investigation into the sexual assaults committed against them. These failures constituted a breach of the ECHR Article 3 rights (prohibition on torture, and inhuman or degrading treatment or punishment).

The Police appealed on the basis that the duty to investigate under Article 3 arose only in respect of cases where the state was complicit in the breach of Article 3.

The case of Koraou concerned a man who had been assaulted in a bar. He had provided inconsistent accounts about the identity of his attacker. The Judge at first instance found that although there had been investigative negligence, his claim for an Article 3 breach was dismissed. The Claimant appealed against this finding.

Held

The Court of Appeal found that there was a positive duty under Article 3 to investigate crimes committed by non-state persons in order to ensure that individuals are protected against ill-treatment of the seriousness envisaged by Article 3.

It found that there is a sliding scale, ranging from deliberate torture by state officials at the top, to negligence of non-state officials at the bottom. There is a wider margin of appreciation at the bottom than the top; however, violent crime such as that experienced by DSD and NBV was higher up the scale and a proper criminal investigation was required.

The Court also stated that not every failure to investigate will lead to liability under Article 3, as can be seen in the case of Koraou. Although the first instance judge’s question of whether in all the circumstances the police investigation had been reasonable had been a ‘loose’ approach, his overall treatment of the case had been in line with the scope and nature of the Article 3 duty.

What can we learn?

  • The Court of Appeal found that there was a positive duty under Article 3 to investigate crimes committed by non-state persons in order to ensure that individuals are protected against ill-treatment of the seriousness envisaged by Article 3
  • It found that there is a sliding scale, ranging from deliberate torture by state officials at the top, to negligence of non-state officials at the bottom. There is a wider margin of appreciation at the bottom than the top; however, violent crime such as that experienced by DSD and NBV was higher up the scale and a proper criminal investigation was required
  • The Court also stated that not every failure to investigate will lead to liability under Article 3, as can be seen in the case of Koraou. Although the first instance judge’s question of whether in all the circumstances the police investigation had been reasonable had been a ‘loose’ approach, his overall treatment of the case had been in line with the scope and nature of the Article 3 duty