Round Up: Worboys, air pollution, and Germany’s social media law

In the News:

Commissioner of Police of the Metropolis v DSD

The Supreme Court ruled that the police have a positive obligation to conduct an effective investigation into crimes involving serious violence to victims, in line with Article 3 of the ECHR.  In this case the obligation had been breached.

The case concerned the police’s investigation into the ‘black cab rapist’, John Worboys. Two of his victims brought a claim for damages against the Commissioner of the Metropolitan Police Service (MPS), on the basis of an alleged failure of the police to conduct an effective investigation into Worbys’ crimes. The victims were awarded compensation in the first instance. The Court of Appeal dismissed the MPS’ appeal, and the case came before the Supreme Court.

It was held there were two relevant duties arising from Article 3. The first is the “systems duty”. In Lord Kerr’s opinion (paragraph 24):

Laws which prohibit conduct constituting a breach of article 3 must be rigorously enforced and complaints of such conduct must be properly investigated. There is a clear line of Strasbourg authority for the duty to properly investigate reported offences and allegations of ill-treatment

The second duty was an “operational duty”, involving an obligation to thoroughly investigate crimes alleging treatment contrary to Article 3. Lord Kerr held breaches of this second “operational” duty could not be minor, but rather egregious and significant.

Both Lords Kerr and Neuberger held the claimant need only establish serious defects into the investigation of their cases, regardless of whether they were operational or systemic failings. By contrast, Lord Hughes preferred a narrower approach, holding failings of a purely operational nature will not suffice.

The MPS accepted there were serious errors in its investigation. However, they submitted that their duty to properly investigate crimes potentially breaching Article 3 is limited to crimes alleged to have been committed by a State agent. This argument was rejected.

The MPS also made a floodgates argument, suggesting even minor crimes could become the subject of an action under the Human Rights Act 1998. This argument, too, was rejected on the basis that Article 3 related only to serious crimes. The appellants suggested it would not be ‘fair, just and reasonable’ to impose liability for failings in individual cases. While Lord Hughes entertained this argument (despite dismissing the appeal overall), in view of the limited scope of Article 3 both Lords Kerr and Neuberger rejected it.

In Other News….

• The High Court found keeping a seriously ill child on life support would be against his “future dignity”. The parents of Alfie Evans, a child with an undiagnosed degenerative neurological condition, wanted to take him abroad for treatment. An appeal has been set for the 1^st March, and doctors will continue to give treatment until a decision is made. The Guardian reports here.
• David Davis MP, the Brexit Secretary, reassured business leaders in Austria that the UK would not become a “Mad-Max style world borrowed from dystopian fiction” (the Independent reports). He stated there would not be a ‘race to the bottom’ through deregulation and cuts in standards.

In the Courts:

• R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs- for the third time, the Government’s plans to tackle air pollution were found to be unlawful. DEFRA had already produced two plans to deal with nitrogen dioxide, the first in 2011 and the second in 2015. Both had previously been found deficient. This judgement found its third plan did not meet the required standard either. The relevant framework as outlined in EU Directive 2008/ 50, requires Member States to limit levels of nitrogen dioxide (Article 13). Where those levels are exceeded, Article 23 requires the production of an Air Quality Plan to ensure the “exceedance period can be kept as short as possible.”  Garnham J held: (i) the latest Air Quality Plan does not contain measures sufficient to ensure compliance with the 2008 Directive (ii) it does not include the information required (iii) and it contains no compliant Plan for Wales. Unusually, his Lordship invited submissions on the matter of whether the Claimants, Client Earth, should be given ‘a continuing liberty to apply’ to the Court if there is evidence of further non-compliance.
• DN (Rwanda) v Secretary of State for the Home Department – overlooking relevant authority does not amount to per incuriam. A Rwandan national appealed against the dismissal of: (a) his claim for judicial review of a deportation order (b) his claim for damages following unlawful detention. It was held the detention was lawful because the Secretary of State did not exercise her power to detain was not exercised until the Appellant’s claim for judicial review of a deportation order was dismissed. This followed the earlier Court of Appeal case of R(o/a Draga) v Secretary of State for the Home Department (2012), which was not made per incuriam. Any exception to the doctrine of precedent must directly involve the liberty of the subject, so it did not apply where the appellant is seeking a remedy after the event for a past deprivation of liberty.

On the UKHRB

Rosalind English has written an article on social services liability, considering how CN and Anor v Poole Borough Council might be affected by the recent decision in Robinson.

Stephen Theil takes a look at the new social media law in Germany, whilst Rosalind English considers how the need for open justice can be balanced with the ‘right to be forgotten’.

Matthew Flinn considers Commissioner of Police of the Metropolis v DSD and Anor (outlined above), where the Supreme Court held that the police have a duty to conduct effective investigations of certain crimes.

David Hart QC has commented on the most recent judgement outlining the Government’s failure to address nitrogen dioxide in the air (outlined above), and Martin Downs outlines the forthcoming Court of Appeal in Northern Ireland case on same-sex marriage.

Dominic Ruck Keene examines a decision of the High Court in which the Ministry of Justice was held not to be liable for clinical negligence in prison.

Events:

• The HRLA (Human Rights Lawyers Association) are holding an event entitled ‘Disability in Legal Professions’ on Tuesday 27^th Details may be found here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com