The Supreme Court judgement in The Commissioner of Police of the Metropolis v DSD & another  UKSC 11 (DSD) has come as a huge and welcome relief for the victims of serious violent crime, civil liberties lawyers who represent them and many others. This case considered whether there is an obligation under the Human Rights Act 1998 for the State to investigate ill-treatment.
While it took an inexplicably long time for judgment to be handed down causing widespread of anxiety as to what could be causing such a delay, it was definitely worth waiting for. The state lost an appeal against a case brought by two of the victims of John Worboys.
Facts of the case
Between the period of 2003 and 2008, John Worboys who was a black cab driver in London committed a series of sexual offences against women. The respondents in this case were two victims of Worboys who had reported their assault to the police. The first victim was unable to identify him as her assailant, whilst after the second victim’s attack, he was quickly arrested but released without charge. After a review and a police media appeal, Worboys was eventually convicted of 19 accounts of sexual assault. Both women sued the police alleging they failed to conduct an effective investigation into Worboys’ crimes, and this failure was a violation against their right to not be subject to torture or inhuman or degrading treatment or punishment (Article 3 of the European Convention on Human Rights).
Supreme Court Judgement
The judges held unanimously that the state (in this case the Metropolitan Police Service) does have a duty to investigate serious violent crimes which amount to arguably inhuman and degrading treatment (in breach of Article 3 of the ECHR) effectively, independently and promptly. It does not matter whether the crime is committed by a third party, therefore, can be sued where it fails to do so.
The police’s attempts to argue the immunity principle was not supported by Lord Kerr. He made explicit that while the law of negligence does not allow such claims to be brought (due to the immunity principle, as set out in Hill), the Human Rights Act 1998 does. The police also failed to persuade him that the duty of the state under Article 3 is limited to putting in place legal structures to ensure a proper inquiry can be conducted (ie, provided the state has done so the police cannot be sued).
The police sought to argue that this was not an issue the Supreme Court should rule on, deferring instead to the wisdom of the European Court of Human Rights on this novel issue. Lord Kerr dismissed this argument outright, making clear that the Lords were not only entitled but obliged under s6 of the Human Rights Act 1998 to rule upon such issues, and that any less would be “an abnegation” of their duties under the Act.
Systematic vs operational failure
The judges were split on the important issue of whether a failure must be systemic in nature before a victim can sue, or whether operational failures (eg failings of individual police officers in a particular investigation) are also actionable.
Lord Hughes was of the view that only systematic breaches should give rise to the right to sue due to the risks of police resources being diverted into defending claims rather than investigating crimes. He was concerned that “the public duty would be inhibited by a private duty of such a kind”. He also made sweeping assertions and floodgates arguments regarding what the imposition of an operational duty would in his view mean in practice.
He analysed the Court of Appeal’s judgement in DSD as finding that failings in the conduct of the enquiry were largely attributable to a flawed structural approach. He also, controversially, suggested that the state’s duty in respect of operational breaches was to put in place “a proper structure of legal provision designed to punish it [past violence under article 3] when it occurs and has administered [it] in good faith and with pro per regard for the gravity of the behaviour under consideration”.
Lord Kerr, for the majority, did not agree with this analysis in any regard. As he rightly said, the ability for victims to sue where the police fail seriously in their duties should actually encourage the police to investigate properly, and should not divert resources away from investigating crime, but rather focus efforts.
He made plain that while not every investigative error should give rise to a breach of Article 3, it was not necessary for there to be some kind of “structural deficiency” before failures can amount to an Article 3 breach. A claimant need only establish serious defects in the investigation, be they operational or systemic. However, he was clear that only “conspicuous or substantial”, “really serious”, “egregious” or “obvious and significant” operational failings should be actionable. He rightly pointed out that Green J had, in the court of appeal, identified a large number of significant operational failings, not part of systemic failings, and found these to be actionable. He also challenged the troubling conclusion reached by Lord Hughes as to the need for bad faith before the state was required to do any more as regards operational actions than putting in place a proper structure of legal provision, stating: “This places an obvious limitation on the scope of any review of the operational actions and decisions of the police.” He also highlighted that there had been no suggestion of bad faith in DSD, meaning that even here it would fall foul of the test.
Lord Neuberger was in agreement with Lord Kerr, setting out persuasively his reasons for favouring a ‘wide approach’.
“First, it is rightly accepted on all sides that the authorities have an investigatory duty, it would be of little value unless it was a duty to investigate effectively.” He also stated that provided the courts are live to the difficulties in policing modern societies, priorities and resource constraints so as not to impose a disproportionate duty, “I find it hard to understand why an investigation which is seriously defective in purely operational terms should, in effect, be held to satisfy the investigatory duty.”
Lord Mance was in agreement with Lord Hughes about the need for systemic rather than purely operational breaches before an actionable duty arose. Interestingly Lord Mance also expressed a view, obiter, that if an investigative duty exists, then it should not be confined to the victim of the offence, if they suffer foreseeably as a result of a failure properly to investigate, seeing this as a means to “deter and prevent the occurrence of further such offences”.
The level of crime that has to be committed
The issue of threshold before the Article 3 duty kicks in, something that was given considerable attention when the claims were before the High Court and Court of Appeal, was left well alone by the majority. This was a relief, as there had been some concern that the Supreme Court might raise the threshold to such a level that only a tiny minority of the most serious crimes could pass it, limiting still further who can sue.
The only judge to address the issue, which he did obiter, was Lord Hughes. In an attempt to illustrate his concerns that the floodgates would open if it was held that the state could be sued for operational failings. If this happened, he stated, “the prospect may exist of the response to every complaint of burglary, car theft or fraud becoming the subject of an action under the Human Rights Act”.
Lord Kerr’s response was clear: “I do not believe that this is a serious possibility…..The recognition that really serious operational failures by police in the investigation of offences can give rise to a breach of article 3 cannot realistically be said to herald an avalanche of claims for every retrospectively detected error in police investigations of minor crime.”
Lord Hughes floodgates warning is not a true reflection of the incredibly high threshold that in reality applies. So, in my case of MLIA & CLEL v The Chief Constable of Hampshire  EWHC 292 (QB) heard by the High Court in February 2017, it was not enough that the claimants had been subjected to threats to kill, assaults (including spitting at the First Claimant, throwing things at her, pinning her against walls, hitting her hard repeatedly and causing bruising, threatening her with serious injury and murder), criminal damage and harassment. And in Koraou, linked to DSD & NBV when the case was before the High court and Court of Appeal, biting off part of an ear was only just serious enough. Lord Hughes can rest assured that the vast majority of the victims of crime cannot currently sue, and there is little likelihood of the threshold being significantly lowered or eroded in the foreseeable future.
In addition, it needs to be borne in mind that not every successful claim brought under article 3 will attract damages. As explained by Lord Brown in Van Colle “Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights”. The corollary is that in many cases a finding of a violation itself can be treated as ‘just satisfaction’ under the Human Rights Act 1998, without the need for any payment of compensation, where a court finds that that is sufficient to vindicate the right in question. Lord’s Hughes seriously misstates the true position in his judgment.
My Legal Comments
It is very good news that the Supreme Court has confirmed the ability of the victims of violent crime to sue the police and other state bodies, where they fail woefully to adhere to fulfil their duty to investigate a crime. However, this by no means enables all victims of crime to sue the police, even where they have been catastrophically let down. The crime must pass a very high threshold before there will be any ability to sue, and even then it will only be where there are serious system errors or egregious and clear-cut operational failings that a claim will be successful and even then they may not recover damages.
Civil liberties lawyers and claimants have been watching with interest to see how the Supreme Court decision will affect failure to investigate claims, many of which had been stayed pending the judgment. In my experience, Defendants are cherry picking aspects of the judgment and relying on comments made to effectively exclude all operational decisions, seeking to impose an impossibly high hurdle on what will satisfy the test. Hopefully, further guidance will be given by the court in due course on the types of operational failings that are actionable since the threshold Defendants would argue applies would neuter the Supreme Court’s judgment.
It remains the fact that even where there is a very serious violent crime and series of bad systemic or operational failings, Claimant’s cannot sue the police under the common law of negligence; their only remedy lies under the Human Rights Act 1998. The Human Rights Act 1998 has a significantly shorter timeframe for bringing claims, compensation is by no means guaranteed and where it is awarded, a more broad brush approach is taken to damages (which can result in less compensation). While it declined the opportunity to do so in Michael, it is essential that the Supreme Court re-visits the common law position and gives claimants a corresponding right to sue in negligence. It cannot be right that where the police fail totally to implement the duties imposed on them by parliament, they cannot be sued in negligence. A common law duty will no more encourage defensive policing in negligence than it will under the Human Rights Act 1998; rather it will focus minds and resources on properly and effectively investigating a crime. In the meantime, however, it makes it all the more important that we preserve the Human Rights Act 1998 and strongly resist any political attempt to undermine.