Supreme Court awards damages against the police for failure to conduct an effective investigation

21 February 2018 by Matthew Flinn

Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11 – Read Judgment

In an important decision for UK human rights law, the Supreme Court confirmed on 21st February 2018 that the police have a positive operational duty – owed to the individual victims of certain crimes – to conduct an effective investigation under Article 3 of the European Convention on Human Rights.

The decision stems from a claim brought by two victims of John Worboys, a London black cab driver who committed “a legion of sexual offences on women” between 2003 and 2008.

The victims, identified in the proceedings as DSD and NBV, sought damages from the Metropolitan Police, due to various failures in the course of investigating their complaints. The action was brought under sections 7 and 8 of the Human Rights Act (“HRA”) 1998, which enables claims for damages to be pursued in the English Courts where there has been a breach of an article of the European Convention on Human Rights (“ECHR”). This approach was taken because a “standard” action in the tort of negligence would be doomed to failure. There is a long line of authority, still holding firm (although regularly probed and challenged), which provides that police are immune from suit due to negligent failures in the conduct of many of their public functions, largely for policy reasons.

The structure of the Claimants’ claim can be summarised as follows:

1. Article 3 prohibits torture, and inhuman or degrading treatment or punishment.
2. Aside from prohibiting such treatment when perpetrated by the State and its agents (the negative obligation), Article 3 also requires the State to take certain measures to protect its citizens from such treatment (the positive obligation).
3. That positive obligation has two aspects. First, it involves a duty to have in place a system of laws and procedures whereby such treatment can be investigated, prosecuted, punished, and perhaps thereby also dissuaded (the “systems duty”). Secondly, in any particular case it involves a duty to effectively investigate allegations of crimes involving treatment which is prohibited by Article 3, and take appropriate action thereafter (the “operational duty”).
4. The sexual offences committed by Mr Worboys against DSD and NBV constituted treatment prohibited by Article 3.
5. Accordingly, the positive operational duty under Article 3 was triggered, requiring the police to carry out an effective investigation into their complaints.
6. In this case, there were serious flaws in the way the police had handled and investigated their complaints. Accordingly, the police had breached the positive operational duty under Article 3, and were required to pay damages to DSD and NBV.

Set out in that way, the argument seems clear and logical, with little reason for contentious dispute. However, it did break new ground in UK human rights law.

First, until now, it has been relatively clear that the police have an operational duty to investigate when it is arguable that there has been a breach of Article 3 by the State or its agents. However, until this claim it had never been authoritatively confirmed in the UK courts that the duty could also arise in respect of inhuman/degrading conduct perpetrated by a private citizen.

Second, although there is a line of authority indicating that an operational duty can arise in respect of certain conduct by private citizens in order to prevent such conduct (see e.g. Osman v United Kingdom (1998) 29 EHRR 245 and Van Colle v United Kingdom (2013) 56 EHRR 23), the duty being argued for in this case was not anticipatory. It was a duty to carry out an investigation after the relevant treatment had occurred.

The leading judgment was given by Lord Kerr (with whom Lady Hale and Lord Neuberger agreed). Lords Hughes and Mance agreed with the outcome of the appeal, but for different reasons.

Lord Kerr’s judgment reads confidently. He is clear that recent authorities from Strasbourg (in particular MC v Bulgaria (2005) 40 EHRR 20) confirm that a positive operational duty – owed to individual victims – to properly investigate the conduct of other private citizens which infringes Article 3 does exist, and that breach of such duty could entitle the victims to compensation. Such a line of authority ought to be followed by the UK courts absent special circumstances (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 per Lord Slynn at paragraph 26).

One of the key arguments deployed by the Metropolitan Police was the fact that, at common law, they owed no duty of care to individual members of the public who might suffer injury due to a criminal’s activities (Hill v Chief Constable of West Yorkshire Police [1989] AC 53). It was said that this prohibition in common law militated against there being a positive operational duty owed to private citizens pursuant to the HRA 1998, as contended for by DSD and NBV. It was argued that the two systems ought to be in harmony, and that the strong public policy reasons for not imposing a common law duty of care on the police also applied in the human rights claim context.

The main public policy argument is that the police need to be free to conduct their investigations in a non-defensive manner. Investigative decisions should be based on the facts of the case and the available resources, and not based on any concern as to how those decisions would be viewed by the courts. Similarly, it would be unfortunate if police resources were diverted from its primary crime-fighting function – either to head off such criticism, or to combat claims in the courts after the event.

Lord Hughes, who agreed that the appeal should be dismissed but for different reasons, put great stock on that argument (see paragraphs 131-132 and 134 of his judgment). However, it was rejected by the majority. Lord Kerr said, at paragraph 72:

As I have said, only obvious and significant shortcomings in the conduct of the police and prosecutorial investigation will give rise to the possibility of a claim. There is no reason to support that courts will not be able to forestall challenges to police inquiries based on spurious or speculative claims.

Judges are often loathe to accept floodgates arguments. That is understandable when, on paper, the relevant principles appear sensibly confined and straightforward to apply. What is there to fear when only “obvious and significant shortcomings … will give rise to the possibility of a claim”?

Those of us at the junior end of the bar might point to the flood of cases in which courts have had to consider whether or not a procedural error in civil litigation was “serious or significant” (in the aftermath of Mitchell v News Group Newspapers [2013] EWCA Civ 1537 and Denton v TH White [2014] EWCA Civ 906) or perhaps wryly observe that Lord Kerr’s optimism does not pay due respect to the tenacity of Claimant lawyers in the fearless pursuit of their client’s interests.

In any event, this decision is clear. It is to be hoped, as always, that the principles that have been laid down will protect both the interests of justice in individual cases where things went badly wrong, and the wider societal interest in having a thriving (rather than beleaguered) police force which can effectively protect us all.