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

supreme courtCommissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11Read 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.

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The right to be forgotten before the Courts again

NT 1 & Anor v Google LLC [2018] EWHC 261 (QB) (15 February 2018) – read judgment

This was a Pre Trial Review of an application by the claimants to have details about an old criminal conviction and other information removed from Google and associated websites under the “right to be forgotten”. Each of the claimants sought orders prohibiting the defendant (Google) from continuing to return internet search reports which included information about the claimant which he claimed was inaccurate, stale, irrelevant, and thereby infringed his data protection and privacy rights.  The “right to be forgotten” is, in this context,  also referred to as “de-listing”. The two cases are due to be tried by Warby J at the end of February. In order to avoid an own goal at trial, where those very names and convictions would be made public, the parties sought to come up with forms of pseudonym or cipher that would protect them. One proposal was that

 in the NT1 case a co-defendant of the claimant at his criminal trial in the late 1990s should be referred to as “Mr A”, and that certain offshore companies used by NT1 should be referred to as “Companies A and B”. There are also references to “Businesses A, B, C, D, E, F, G and H”. In the NT2 case, the claimant also had a co-defendant, and the proposal is to call him “Mr A”. This is not the same person as the “Mr A” in the NT1 case. “Company A” in the NT2 case is a cipher for “The business in which the claimant [NT2] previously had an interest.” It is not the same as Company A in the NT1 case. The Confidential schedule in the NT2 case also features “Companies F, G, H, I, J, K and H” which are all different from any of those that feature in the NT1 claim.

Warby J was unimpressed with this alphabet soup. He did not relish the prospect of preparing a judgment, or two judgments, using these ciphers. Continue reading

The new German social media law – a risk worth taking? An ‘extended look’ by Stefan Theil

social media.pngThe German Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz) (literally: Law on the improvement of law enforcement in social networks and known as ‘NetzDG’) has attracted much media attention, e.g. here and here, since fully entering into force on 1 January 2018. This was sparked to a significant extent by a few high profile deletions, including a tweet from the responsible Minister for Justice.

This contribution will give an overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence. In any case, it appears reasonable to let this regulatory experiment play out and observe whether fears over a ‘chilling effect’ on free expression are borne out by the evidence. A review of the law and its effects are is planned after an initial three year operation period, which should deliver ample data and regulatory experience while limiting the scope for potential harm.

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Where are we now on social services liability?

CN and Anor v Pool Borough Council [2017] EWCA Civ 2185, 21 December 2017 – read judgment

Just over six weeks before the Supreme Court ruled that the police owed the public a duty of care in Robinson (see our post here) the Court of Appeal had unanimously rejected the existence of such a duty in the context of social services and vulnerable children. Giving the leading judgment, Irwin LJ said that there were two strong reasons for rejecting the claimants’ case.

 [F]irst is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.

In his concurring judgement, Davis LJ observed that “nothing in this case as pleaded requires or justifies it going to a full trial.”

The claimants have sought permission to appeal to the Supreme Court. Continue reading

The Round up: Assange’s arrest warrant, victims of human traffickers, and a Convention Right victory for salmon fisherman

Eleanor Leydon brings us the latest developments in rights law.

In The News:

A Senior District Judge has ruled that upholding the warrant for Julian Assange’s arrest is both in the public interest and proportionate, albeit that Assange has already restricted his own freedom for several years. In determining the proportionality of the proceedings the judge had regard to the seriousness of the failure to surrender, the level of culpability at this stage of the proceedings, and the harm caused, including impact on the community.

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Two new podcasts on Law Pod UK

The second in Professor Catherine Barnard’s series on the legal milestones of the Brexit process is now up on iTunes and Audioboom. And today we have posted Isabel McArdle talking to Rosalind English about the Supreme Court ruling on police liability in Robinson v West Yorkshire Police. All episodes are freely available for download to your devices.

“Genetic affinity” an actionable head of damage against IVF clinic

ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal  [2017] SGCA 20 – read judgment

It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology.  This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest  in the area of medical science,

where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.

Background facts

The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred  to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed  to discard the disposable pipettes that had been used after each step of the IVF process.  This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s. Continue reading