Case alert - Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents)  UKSC 11
The Supreme Court has held Article 3 of the European Convention on Human Rights (ECHR) imposes an operational duty on the police force to conduct a proper investigation into allegations of ill-treatment. As a consequence of this ruling, it is expected that there will be an increase in claims against police forces alleging ‘serious failings in investigations’, which could be impacted by ongoing cuts to policing budgets and resources.
The Claimants, DSD and NBV, were victims of serial rapist, John Worboys. DSD was attacked in 2003 and NBV was attacked in 2007. Both Claimants reported their assaults to the police. Worboys was arrested and charged with the assaults in 2008. The Claimants each received compensation from Worboys and an award from the Criminal Injuries Compensation Authority (CICA).
Both claimants issued proceedings for the alleged failure of the police to conduct effective investigations into Worboys.
The claims were brought under section 7 and 8 of the Human Rights Act 1998. These provisions allow a person to bring a claim against a public authority for acting in a way which breached their rights under the European Convention on Human Rights (ECHR).
At first instance the Judge found that there had been failures by the Metropolitan Police in their investigation into the sexual assaults committed against the Claimants. These failures constituted a breach of the Claimants' 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 Court of Appeal
The Court of Appeal found 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. 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.
The police appealed the decision and explicitly stated, regardless of the outcome of the Supreme Court, they would not seek to recoup the compensation and costs already paid to the Claimants.
The Supreme Court
The Supreme Court unanimously dismissed the appeal and held:
- The positive obligation to investigate allegations of ill-treatment effectively is not solely confined to cases where allegations have been made against state agents;
- Article 3 provides a positive duty upon the police 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 is a duty which is owed to individual victims and not a public duty;
- In order to be an effective deterrent and serve its purpose, the law prohibiting ill-treatment must be 'rigorously enforced and complaints of such conduct must be properly investigated';
- The omission of a flawed structural system does not mean deficiencies in the conduct of the investigation cannot of themselves constitute a violation of Article 3;
- An award of compensation for breach of a Convention Right is entirely different to an award of damages in a civil action as a Convention claim and a civil claim have different purposes. A civil claim is to compensate the claimant for their loss and put them back in the position if the wrong had not occurred. A Convention claim is to award damages to acknowledge an individual's fundamental right(s) has been breached and are intended to uphold minimum human rights standards;
- The public policy reasons which exempt the police from a common law duty of care do not extend to claims under the Human Rights Act 1998. It is wrong to consider the fair just and reasonable test when considering whether a duty to investigate under Article 3 should exist. Under the Convention the police either have a protective duty or they do not.
What can we learn?
- There are both systemic and operational duties to conduct an effective investigation. Serious failures when conducting an investigation which are purely operational will give rise to a claim. There does not need to be some form of structural deficiency with the law in order to bring a claim under Article 3.
- Simple errors, mistakes or omissions will not give rise to a claim under Article 3. Lord Kerr stated "errors in investigation, to give rise to a breach of Article 3, must be egregious and significant".
- An individual is entitled to bring a claim for compensation for breach under the Human Rights Act 1998 even where there are other available means of obtaining redress e.g. compensation from the offender and/or the CICA.
- Common law principles do not have to align with Convention principles as claims are issued under each system for very different purposes.
- The judgment appears to set a new precedent and it is likely there will be a rise in claims where there are considered to be serious failings in an investigation. Lord Kerr indicated that that "only obvious and significant shortcomings" in the conduct of the police will result in the possibility of a claim.
- As a consequence, it is expected that there will be satellite litigation which considers precisely what constitutes an 'obvious and significant shortcoming', in a similar manner to those cases addressing whether or not a procedural error in civil litigation was 'serious or significant' in the aftermath of Mitchell v News Group Newspapers and Denton v TH White.
- Coupled with the decisions of the Supreme Court in this case and Robinson, ongoing cuts to budgets and resources may lead to increasingly defensive practices and influence how the police resource and priorities their investigations.