HRA damages awarded in rape cases

27 July 2014 by David Hart KC

DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 2493 (QB), Green J  – read judgment

This is an important summary of the principles applicable to HR damages, particularly in circumstances where there have been other payments already made arguably in respect  of the acts in question. So it should be first port of call if you have an HR damages problem, not least because it gathers all the learning together.

Green J decided in March 2014 that the police had a duty to conduct investigations into particularly severe violent acts in timely and efficient manner, and that 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”, one John Worboys. This amounted to a breach of the of the victims’ rights under Article 3 of the ECHR. See Rosalind English’s post on the liability judgment here

After a systematic and exhaustive review of the cases on liability in March 2014, Green J had 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 current judgement on damages is equally exhaustive, both in the terms of the general principles of HR damages and how the Strasbourg Court has gone about assessing those damages in Article 3.

The complications in these two cases were that the victims had recovered some sums directly from Worboys, and also additional sums by way of criminal compensation. How should those be accounted for, given that, as the police argued, the award of damages for HR violations was very much a secondary purpose of both Strasbourg and the HRA?

Principle

On principle, Green J makes the following points

• there are reasons why Strasbourg has not articulated clear principles for HR damages, including the multiple and divergent approaches of the ECHR’s 47 member states to awarding damages: Faulkner [2013] UKSC 23
• section 8(3)(a) HRA tells the court, in deciding whether it is necessary to make a damages award  to have regard to other relief granted “in relation to the act in question”. “In relation to” is broader than “directly attributable to”: see Dobson v. Thames Water here – one of mine
• Strasbourg case law takes domestic awards into account,but the way it does so varies from case to case: [55], summarising Strasbourg cases at [50]-[54]
• although the HRA is not a tort statute; the Strasbourg Court has applied the principle of compensating for pecuniary loss (restitutio in integrum, as it calls it) as well as awarding damages for non-pecuniary harm on a broad brush basis – justified simply by the broadest of references to equity, as Green J puts it at [17]
• such equitable awards are made even when the alleged harm seems on the face of the facts “remote or speculative” [21]
• lack of contrition or apology by a defendant may exacerbate: [29]; so may intent or bad faith [40]
• a claimant’s conduct may preclude or substantially reduce damages [37].

Two additional points are worth dwelling on.

The first is that a domestic court should look to Strasbourg, as best it can. But in time domestic courts will evolve their own case law on damages, and so this dependence may dwindle: [32]. Strasbourg takes account of the purchasing power of its awards, and so, e.g., an Azerbaijani case may give little guidance to a UK court, though even that can be adjusted to reflect differences in the cost of living. And indeed there is some symbiosis between the courts; Strasbourg regards awards in domestic cases as “relevant” albeit not decisive [33], not least because it reflects the cost of living in that country.

The second is that damages are habitually awarded for an Article 3 violation, whether or not there is expert medical evidence in support: [68]. Hence, distress, anxiety, frustration and powerlessness may be compensated, short of established mental injury.

In a very substantial part of his judgment ([69]-[108], Green J sets out Article 3 comparator cases both in the UK and in Strasbourg. But at [68](vii), he seeks to summarise what they mean in money terms – having corrected for cost of living and inflation

(a) Euros 1,000 – 8,000 where the Court wishes to make a nominal or low award.

(b) Euros 8,000 – 20,000 for a routine violation of Article 3 with no serious long-term mental health issues and no unusual aggravating factors.

(c) Euros 20,000-100,000+ for cases where there are aggravating factors such as: (i) medical evidence of material psychological harm; (ii) mental harm amounting to a recognised medical condition; (iii) where the victim has also been the victim of physical harm or a crime caused in part by the State; (iv) long-term systemic or endemic failings by the State; (v) morally reprehensible conduct by the State. This list is by no means exhaustive.

 Their application

DSD

The evidence accepted by the judge was that the police would not have apprehended Worboys before he raped DSD; so her only compensation can be for the failings in the police process thereafter and their effects upon her, not least in her state of mind that the police thought she was a liar or promiscuous or a drug addict or all three. The judge took into account elements of the other awards made to her, though no exact netting off process could be performed. He awarded DSD £22,500, with £20,000 for non-pecuniary harm to judgment and £2,500 for future treatment costs: [131].

NBV

The judge accepted that Worboys should have been apprehended before he raped NBV. NBV could therefore recover for the rape from the police. But there was however, because of this fact, a greater degree of overlap between the payments already made (damages from Worboys and the CICA payment). He awarded NBV £19,000, £17,000 for non-pecuniary and £2,000 for some treatment costs.

Conclusion

Do read this judgment if you can. It is quite long, but well worth it, particularly up to about [68] – and thereafter if you have a specific Article 3 problem. It does say pretty much all that there has to be said about HR damages.

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Read more:

• Police have “Osman” duty to investigate in date rape cases 
• Guidance from the Supreme Court on human rights damages
• Smells and mosquitoes but no extra damages under the Human Rights Act
• Damning indictment of police following death of Azelle Rodney
• The duty to investigate deaths under human rights law