The Supreme Court confirmed last week that compensation may be payable by public bodies where rights under the European Convention on Human Rights (the “Convention”) are infringed, and harm is caused as a result. Although the case related to the most distressing of possible invasions in the Convention rights against individuals, it is established that the principles in question mean that such compensation is potentially available for commercial claimants as well, when their Convention rights are infringed.

In contrast to the general position that public bodies will not be liable for damages arising from public law failings, allowing them to carry out their duties without fear of civil claims against them, the Supreme Court reaffirmed that, in the context of infringement of Convention rights, damages may be payable. Further, public authorities can be required to pay compensation even where claimants have already recovered some damages from separate sources.

In this instance (Commissioner of Police of the Metropolis v DSD & Another [2018] UKSC 11), discrete harm was shown to be caused by the public authority’s infringement of Convention rights. Section 8 of the Human Rights Act 1998 therefore gave the court power to award damages as, having taken account of all of the circumstances, the court was satisfied that the award against the public authority was necessary to afford “just satisfaction” to the individuals in question.

The decision related specifically to principles underpinning an earlier decision of the High Court awarding damages to two victims of John Worboys, payable by the Met Police following significant failings in their investigation of complaints of serious crimes. Whilst the Met Police was not seeking recovery of the sums already paid to the victims, it did challenge the principles of the High Court decision. In particular, much of the argument centred on the scope of the duty owed under Article 3 of the Convention – prohibition of torture. One of the questions considered was whether the duty to investigate ill-treatment can give rise to a right to claim compensation, and if so whether that is impacted by the ability to seek redress elsewhere.

Whilst the justices differed on their analysis of the positive duties of the Met Police arising under Article 3 of the Convention, the High Court decision was unanimously upheld. In reaching its decision, the Supreme Court held that:

  • compensation is by no means automatically payable for breaches of the duty under Article 3 to investigate and prosecute crime;
  • an award of compensation for breach of Convention rights serves a distinctly different purpose to that of an order for recovery of civil damages - Convention claims are intended to uphold human rights standards and to vindicate those rights; and
  • no damages are to be awarded unless necessary for just satisfaction.

In this case, the catalogue of failures was considered to warrant the award of compensation, irrespective of the fact that the individuals had received damages from both the perpetrator and the Criminal Injuries Compensation Authority.

Whilst this case was determined in the context of infringement of rights under Article 3, the decision provides greater clarity on this important area of law, relating to the recoverability of damages from public bodies more generally, outside of the appalling facts of this case.

By way of example, the decision in respect of just satisfaction is consistent with the principles established in the Court of Appeal decision in Infinis, providing for damages to be paid to a plc by a regulator for infringement of property rights under Article 1, Protocol 1 of the Convention.

The full judgment is available here.