Commissioner of Police of the Metropolis v DSD and Anor  UKSC 11 – read judgment
Matthew Flinn covered this Supreme Court case in his excellent analysis here. I focus on one point of disagreement between the judges, which is whether a court, before holding that the state owes an investigative duty for the actions of private parties, would require the clearest statement in consistent decisions of the European Court of Human Rights.
In particular, if Strasbourg jurisprudence is “less than clear” on this point, would the appropriate course be to allow the government to stick to the principles of the common law – in this case, no duty of care in tort – and wait until it is called before the Strasbourg judges to deploy its arguments?
The story starts with the House of Lord in R (Ullah) v Special Adjudicator  2 AC 323. Lord Bingham quoted with approval the statement of Lord Slynn the year before in Alconbury regarding the extent to which UK courts should be guided Strasbourg jurisprudence:
Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295 at para 26)
But what in fact constitutes “clear and constant jurisprudence”? Some cases from Strasbourg suggest that the positive duty of the state under Article 3 (and Articles 2, 4 and 8) covers the actions of private parties. Other cases seem to confine the investigative duty to allegations against state agents only. Naturally the appellants in this case relied on the former, the respondents on the latter.
Another closely related question arises out of the respondents’ arguments that the question whether a liability such as that contended for by the appellants was one on which ECtHR should be invited to pronounce. As Lord Kerr said (para 73)
the sub-text to this argument appeared to be that, where Strasbourg has not yet spoken, national courts should not venture forth.
This argument has precedents in high places, such as Lord Brown in R (Al-Skeini) v Secretary of State for Defence  UKHL 26, and Lord Phillips in R (Smith) v Oxfordshire Assistant Deputy Coroner  UKSC 29 1 AC 1.
This is the so-called “mirror principle”, whereby pronouncements by national courts on Convention rights should match those of Strasbourg. It is, as Lord Kerr observes, often attributed to Lord Bingham’s statement in Ullah where he said “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less” (at para 20).
Does the mirror principle reflect the true nature of decision making in the higher courts?
Lord Kerr (with Lord Neuberger and Lady Hale) thinks not, citing a number of authorities, including Rabone v Pennine Care NHS Foundation Trust  UKSC 2. Here it was held that there was a positive obligation to protect the life of a mentally ill young woman who had been admitted to hospital informally because of serious attempts to take her own life. This decision was reached notwithstanding the fact that there was no authority from Strasbourg to that effect.
This seemed to Lord Kerr to be the correct approach.
Reticence by the courts of the UK to decide whether a Convention right has been violated would be an abnegation of our statutory obligation under section 6 of HRA. This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right.
Lords Hughes and Mance (in the minority, albeit obiter as with this whole issue) did not agree.
When combined with the open-ended nature of the positive obligation of the state to protect individual citizens against other individuals, this eagerness to compensate human rights infractions threatens to undermine the basis of tort law. And this has been wrought from the balancing, over decades, of citizens’ rights versus resource allocation. Nor is this approach mandated by the Strasbourg Court, whose reliance on its own case law has contributed, they suggest, to the muddle we’re now in.
in none of these cases has the basis for, and thus the ambit of, any obligation to investigate third party violence ever been addressed. Reference back to MC v Bulgaria, and to its reliance on Assenov, Calvelli and Osman is frequently made, but never examined and the uncertainties mentioned above have not been confronted.
Discussions about the state’s obligation often cite a line of Turkish cases, which are irrelevant as they all involve allegations of serious police torture or ill-treatment of suspects;
the citation of such cases illustrates the manner in which the difference between the first gloss [positive to investigate state agents’ actions] and the second [positive obligation to pursue private parties] has not received attention.
This approach is very close to, if not indistinguishable from, a view that the outcome of the trial was wrong, and moreover that if it was wrong that could itself amount to a breach of article 3. See also Beganović at .
Such instances suggest that Strasbourg may be neglecting its own subsidiarity vows. It has often said that breach of Article 3 is not constituted by a bona fide decision in the course of investigation or law enforcement which is afterwards held to have been an error. It is about systemic failings, which are the only ones that a supranational court can properly assess. This is all the more important because the right to investigation applies not only to Article 3.
This “parasitic” right raises the “prospect … of the response to every complaint of burglary, car theft or fraud becoming the subject of an action under the Human Rights Act” Lord Hughes, para 129), though the majority did not agree with this.
But the absence in English law of a duty of care in tort owed by the police to individual citizens and sounding in damages is not an oversight. It is a “core principle” which has remained unchallenged for since Hill was decided in 1981. The need to respect this principle becomes ever sharper in the light of contemporary terrorist activity:
It is well known that large numbers of possible activists are, to some extent or other, known to the police or security services. The most delicate and difficult decisions have to be made about whom to concentrate upon, whose movements to watch, who to make the subject of potentially intrusive surveillance and so on. [Lord Hughes at ]
It cannot be in the public interest that, in the wake of a terrorist attack, the courts “should become the forum for a review of the information held about different suspects and of the decisions made as to how they were to be dealt with.”
As Lord Hughes points out, the English cases make a clear distinction between the objectives served by a tortious duty to compensate and a Convention-based duty to uphold the prohibition on inhuman or degrading treatment. The distinction remains alive as long as we remain alive to the underlying purpose of human rights law, which is to deter states from abusing their power. You can’t have it both ways by employing a Convention claim to serve substantially the same purpose as an action in tort.
Lord Mance strongly supports Lord Hughes’ critique of the Strasbourg approach. That Court may start from a solidly rationalised principle, he says,
but then extends it to situations to which the rationale does not apply, without overt recognition of the extension, without formulating any fresh rationale and relying on supposed authority which does not actually support the extension. (para 142)
The investigative duty which Strasbourg case law now recognises is getting out of control. It is not tied down by properly formulated restrictions, and now simply arises “from the fact of the offence”. Our international obligations and the Human Rights Act obliges this country to align domestic law with Strasbourg law, with the requisite scrutiny of that court’s jurisprudence. But the converse of Lord Bingham’s dictum in Ullah is that domestic courts should not, at least by way of interpretation of the Convention rights as they apply domestically, forge ahead, without good reason.
This is a very important divergence in the Supreme Court between majority and minority as how to deal with the delicate relations between our courts and Strasbourg. Given the closeness of the result, the issue has a lot more life in it.