Police have “Osman” duty to investigate in date rape cases

7 March 2014 by Rosalind English

DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) – read judgment

The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.

The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire [1989] AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; and Smith v Chief Constable of Sussex [2009] 1 AC 225.

The issue was whether the Human Rights Act 1998 imposed a duty on a public authority, such as the police, not to act in a way which was incompatible with a convention right. The defendant Commissioner maintained that the Act did not provide a remedy to victims of crimes committed by private parties where the allegation was that the police had failed properly to investigate,  and  in the absence of any direct or indirect police responsibility or complicity there was no liability. The claimants contended to the contrary that according to a line of clear authority from both the Strasbourg and English courts in some situations at least where the police bear no culpability for the actual violence perpetrated the police could nonetheless still be liable for a failure to investigate.

Factual background

The administering of drugs of sedation and alcohol as an integral part of  W’s technique substantially reduced the likelihood of his apprehension and arrest. His chosen modus operandi left his victims confused and disoriented and, frequently, with only a partial memory of their ordeal. It was precisely because the police recognised that a woman presenting in an incapacitated state or with a wholly imperfect recollection of her attack might, in actual fact, be a victim of serious crime that the Metropolitan Police had issued detailed guidelines on rape and sexual assault which includes an important section on drug facilitated sexual assault or “DFSA”. However, there was evidence before the court to the effect that the police officers had never received training in its contents, that it was simply one of a number of guides that were available on the internet and that they were largely ignored. One witness, a police inspector, said that in his opinion the guides were adopted to protect the MPS from litigation. In direct consequence of this, officers on the ground, including those especially allocated to work on sexual assaults, did not follow the procedures in the guidance. When its protocols were adopted, the guidance was successful in tracing and prosecuting cases of DFSA; in fact  it was a “striking feature of this case that within 8 days of this routine search being conducted W had been arrested and remanded in custody.”

Green J held that the defendant police service was liable to the claimants for breach of the Human Rights Act. There was, according to “well established case law”, a duty imposed upon the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. But the judge emphasised that the conditions laid down in law pursuant to which the police may be liable were “relatively stringent”.

It is not the case that every act or omission by the police which may be categorised as a failing will give rise to damages nor is it the case that every failure to adhere to the police’s own operating standards and procedures triggers liability. A series of exacting hurdles must be overcome before liability may be imposed.

Reasoning behind the judgment

Green J declared that he had  been unable to locate in either case law or literature any “systematic synthesis” of Article 3 case law on the duty of the police to investigate in circumstances such as the present. He therefore started his assessment of the law with an analysis, chronologically, of the main decided jurisprudence of the Strasbourg Court in relation to the duty under Article 3 as it applies to the duties of public authorities, and in particular the police, in relation to the unlawful acts of third (private) parties. At the end of this analysis, he concluded that Article 3 did indeed impose a duty upon the police to investigate, the purpose of which was to secure confidence in the rule of law in a democratic society.

The cases he considered included:

Osman v United Kingdom 29 EHRR 245 (28th October 1998)

The Court, in the context of Article 2 (right to life) and not Article 3, held that the State had a responsibility to protect citizens from the threat posed by private parties. It accordingly focused upon situations where the State was not complicit in any way in the underlying threat to life. The importance of the case is that the principle laid down in Osman was, subsequently, applied in the context of Article 3. It was further relevant that the Court was concerned with the scope of the preventive duty which Article 2 imposed. Nothing in this judgment addressed the question of the duty to investigate.

Z & Others v United Kingdom 34 EHRR 3 (10th May 2001)

The Court, citing Osman paragraph [116] (supra), extended the duty of effective protection under Article 2 to situations arising under Article 3. The Court emphasised the fundamental importance of Article 3 in a democratic society.

Edwards v United Kingdom 35 EHRR 19 (14th March 2002)

The case concerned the extension of the duty to investigate under Article 2 to cases where a person was killed by a private party whilst in the custody of the State. It addressed the scope of the duty (means not results). It identified the policy reason underlying the duty to investigate (to secure accountability in practice as well as in theory). It explains that civil proceedings which might lie at the initiative of a victim’s relatives do not satisfy the State’s obligation under Article 2.

Menson v United Kingdom [2003] EHRR CD220 – 6th May 2003

The Commissioner in the instant case contended that this decision showed that where conviction ultimately occurred  there could be no duty and/or breach arising from earlier operational failings. By contrast, in the judge’s view, it showed that a conviction could be a relevant consideration on breach, but it was not decisive.

MC v Bulgaria (2005) 40 EHRR 20 (4th December 2003)

This judgment, also concerning rape, drew together the jurisprudence on Article 3 as it was evolving. It identified and described the duty on the police to investigate and explains the substantive content of that duty. It concerned errors which are both systemic, and, operational. It had been cited with approval by the Strasbourg and English Courts on a number of occasions. The Strasbourg Court also considered the extent to which Article 8 (private life) was engaged.

Szula v United Kingdom (2007) 44 EHRR SE19

The Strasbourg Court, whilst rejecting the allegations on the facts, nonetheless held that cases such as Osman  and MC v Bulgaria established the existence of a duty on police to investigate certain types of violence perpetrated by private parties. The case concerned rape. It also concerned Article 8. The Court analysed the case under Article 3 and Article 1. The Court also considered the position under Article 8.

Secic v Croatia (2009) 49 EHRR 408 (31st May 2007)

This case relied exclusively upon Article 3. It concerned physical assaults of vulnerable ethnic groups. It confirmed earlier authorities establishing the existence of a free standing duty upon police to investigate conduct perpetrated by private parties.

Ali and Ayse Duran v Turkey Application No 42942/08 (8th April 2008)

In this case the Court clarified that the duty in Article 3 was not confined to the official investigation but extended to “the proceedings as a whole, including the trial stage”. The Court did, however, recognise that there would not necessarily be a violation of Article 3 if a prosecution did not result in a conviction or in a particular sentence.

Beganovic v Croatia Application No. 46423/06 (25th September 2009)

The Strasbourg Court focussed upon the adequacy of ultimate criminal proceedings in the light of Article 3.

Denis Vasilyev v Russia App No 32704/04 (17th December 2009)

By 2009 the law was being treated as settled. The court identified a clear duty on police to investigate. This was a duty of means not result. The duty was the same regardless of whether police were complicit or not. The investigation must be effective and prompt and reasonable.

Milanovic v Serbia App No 44614/07 (14th December 2010)

The Court emphasised the fundamental importance of Article 3. Its application to the police had to be proportionate and not unreasonable, i.e. not such as to impose impossible burdens on the police force. The Court treated the duty to investigate as settled law, including in respect of violence committed by private parties. The Court justified these conclusions by reference to 2 considerations well established in case law: (a) the need to maintain confidence in the rule of law and (b) the need to prevent any appearance of tolerance or collusion in unlawful acts.

CAS & CS v Romania App No 26692/05 (20th March 2012)

This case illustrated that by 2012 the principles were well established. It addressed also Article 8 but in terms which suggest that there is no material difference with Article 3.

Koky & Others v Slovakia App. No. 13624/03 (12th June 2012)

This case was significant only in that it showed the Strasbourg Court, in a routine manner, finding violations of the duty to investigate violence by private parties. It highlighted how facts involving particularly vulnerable victims may lead more readily to a conclusion of breach.

Sizarev v Ukraine App. No. 17116/04 (17th January 2013)

A recent illustration of what was, by 2013, established case law.

At the end of this exhaustive analysis, Green J concluded that there was established case law to show that Article 3 of the Convention imposes a duty upon the police to investigate which covers the entire span of a case from investigation to trial. The purpose behind this duty was to secure confidence in the rule of law in a democratic society, to demonstrate that the State is not colluding with or consenting to criminality, and, to provide learning to the police with a view to increasing future detection levels and preventing future crime. The investigation must be independent, impartial and subject to independent scrutiny. He interpreted the HRA as imposing a duty on the police in these circumstances for the following reasons:

  (i) Strasbourg case law which I must take account of is consistent settled and mature; (ii) it articulates a test which does not open the Pandora’s Box of liability for the police and when applied rigorously by the domestic courts should not be such as to create a disproportionate burden on the police; (iii) the duty which is acknowledged by Strasbourg case law (to investigate efficiently) is not one which jars with common law traditions but, on the contrary, is consistent with domestic law; (iv) the conclusion is one which the domestic courts have not (in their admittedly brief encounters with the principle) objected to. In all these circumstances I conclude that the duty contended for by the Claimants exists.

The duty was not conditional upon the state being guilty, directly or indirectly, of misconduct itself. It was triggered where there was a credible or arguable claim, by the victim or a third party, that a person had been subjected to treatment at the hands of a private party which met the description of torture or degrading or inhuman treatment under Article 3.  Allegations of crime that were “grave” or “serious” amounted to torture or degrading or inhuman treatment; rape and serious sexual assault fell within that category. Where a credible allegation of a grave or serious crime was made, the police had to investigate in an efficient and reasonable manner, which was capable of leading to the perpetrator’s identification and punishment. The duty was one of means, and not results and the breach could occur regardless of whether the investigation lead to an arrest, charge and conviction. Whether a breach had occurred was measured by viewing the police’s conduct over a relevant timeframe. The assessment of the efficiency and reasonableness of an investigation took account of its promptitude and whether an offender was adequately prosecuted. A successful prosecution within a reasonable time would render operational failures irrelevant and non-justiciable.

Not every failing attracted liability. The process of determining whether an investigation was reasonable or capable of leading to a result was a fact sensitive exercise. The law must not impose a heavy burden on the police. This was a point emphasised in Osman (para [116]), in relation to the right to life (under Article 2), and there was no reason why it should not apply equally to Article 3 cases. It was a reason for adopting a cautious approach to the law and in not setting the bar for liability at too low a level. It was also a point which underscores the statement made on a number of occasions that not every allegation of error or isolated omission in an investigation triggers liability.

 In my view when confronted with a claim under the HRA that the police have not investigated properly up to the requisite standard the domestic court should not take a sweeping and generalised view either for or against, but should examine the case in detail and with care. A finding of breach is a serious finding and should not be arrived at lightly. Since capability is the gravamen of the test it seems to me that it is consistent with the common law’s evidence based approach to the protection of rights that before the police can be said to be liable for an omission it must be possible to identify the causal connections which are innate in capability.

The Commissioner was nevertheless liable to the claimants for breach of the 1998 Act. That breach arose in relation to the period between 2003, which coincided with the complaint to the police, and 2009 when W was tried. There had been a series of systemic failings which went to the heart of the failure to apprehend W and to cut short his five to six year spree of violent attacks. The systemic failings could be accounted for in five different areas:

(i) failure properly to provide training

(ii) failure to supervise and manage;

(iii) failure properly to use available intelligence sources;

(iv) failure to have in place proper systems to ensure victim confidence; and

(v) failure to allocate adequate resources.

In addition to those systemic failures, there were numerous individual omissions in the specific cases of DSD and NVB which reflected the wider systemic failings but which, when viewed in isolation could also be said be of sufficient seriousness such that had they not occurred, the police would have been capable of capturing W earlier. 

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