The right to life – and the duty this places on the police to protect life; and the right not be subjected to inhuman or degrading treatment – along with the corresponding duty on the police to investigate serious crimes which engage this right, and to protect would-be victims – are contained in the European Convention on Human Rights (Articles 2 and 3 respectively). But is it only thanks to the Human Rights Act 1998 that these rights can be enforced in UK courts; otherwise claimants would have to wait years to get their cases heard in Strasbourg, as they used to do before the law came in to force.
The recent Court of Appeal decision in Commissioner of Police of the Metropolis -v- DSD and NBV and Alio Koraou -v- Chief Constable of Greater Manchester Police is significant for the victims of crime, confirming that the police have a duty to investigate serious violent crimes and to protect would-be victims from attacks, and that they can be sued for damages if they fail in these duties. In this case the victims had been raped by the black cab driver John Worboys, a serial rapist who, due to a catalogue of police errors had remained at large and able to rape over 105 women.
The case reinforces the decision of the Supreme Court in Michael that the only legal way of challenging the police for such failures (in that case a failure to protect a young mother from a brutal stabbing by her ex-partner) is under the European Convention on Human Rights; claims cannot be brought in negligence under UK law for such failings.
The government’s manifesto pledge to scrap the Human Rights Act therefore, and recent discussions about re-negotiation of how the European Convention is interpreted and enforced in the UK, is a matter of extreme concern.
These concerning political statements cast a spotlight on all those cases which can be brought now but which could not be, or at least not in the same way, if the situation changed; cases which can only be brought because of the substantive rights in the European Convention, and enforceable in UK solely because of the Human Rights Act. Radical changes of the type proposed would potentially leave the victims of the most serious violent crimes – rape victims and the victims of brutal killings – where crimes are not investigated at all or properly by the police or where they could have been prevented but were not – without any legal remedy.
We regularly represent claimants in cases where the Human Rights Act 1998 offers the only legal avenue to bring a claim; a few cases in particular stand out as stark examples:
One young adult male was threatened by his landlord that he would stab him and kill him and so he called the police in terror to report this. Officers attended but only the Police Community Support Officer (PCSO) made a contemporaneous report of what had occurred. The other officers dismissed the report as a landlord-tenant dispute and did nothing to protect him. Hours later he was brutally stabbed to death. The more senior officers, who had prepared notes after the event, and after the victim had been stabbed (and in the knowledge of their serious failure), recorded an entirely different version of events to the PCSO; that the adult male had refused to give them any information when they attended (despite having called the police in a panic) and had been evasive and unforthcoming with information.
His murderer was convicted, the judge in the criminal court finding the PCSO’s evidence convincing and that of officers lacking in credibility. The victim’s mother and siblings were devastated by what had happened and wanted justice regarding the police failure to protect a preventable death.
Initially they pursued claims in negligence and under Article 2 of the European Convention on Human Rights, for the police failure to protect the victim. However, while the case was ongoing, judgment in the case of Smith & Van Colle was given by the House of Lords, making clear that their claim could only be advanced under the European Convention, and that they could not run their claim in common law (negligence). Ultimately the case settled; it did not bring back their son and sibling, but it did give them some sense that justice had been done.
In another case which only recently settled, the claimant, a Kosovan male, called the police to report that he had been threatened by an unknown Albanian male, at gunpoint, demanding the sum of £2,000. Police attended and conducted a cursory search for the suspect, who by this point had driven off, but did nothing more. They did not record it as a crime, did not get an interpreter to interview the victim, or take any statement and did not interview his wife and son who had also witnessed part of the incident.
A few days later, the claimant received a call and a text message from the suspect, making a further threat, that if he did not pay the money he would be killed. He again reported this to the police, showing them the text message and making his fear about his life clear. This time a statement was belatedly taken, but by an interpreter alone without any police involvement, a half-hearted search was conducted for the man (whose details they now had) but nothing further done. The victim, his wife and four young children lived in fear that the threat would be carried out. A few months later, two Albanian men were shot and killed, both having received similar threats. One of them was found dead by the police (the other only later) and they linked the details to the report made by the claimant. The police then called the Kosovan complainant to find out if he had heard from the suspect again; they offered no warning that his life may be at risk and did nothing to protect him. The following day the claimant was shot in the spine, a bullet lodging between two of his vertebrae. He suffered serious physical injury and has been unable to work since in his manual job as a self-employed mechanic. He suffered very serious psychiatric injury.
The perpetrator was convicted by a criminal court, the claimant giving evidence as the sole live victim/witness. However, he wanted the police held to account for the months of anxiety caused to him when he lived under threat of death without the police taking him seriously or doing anything to protect him, and for the shooting itself, which had they done their job properly he would never have been the victim of. The case eventually settled.
We also represent many victims of rape and sexual assault in ongoing cases against the police, brought under Articles 3 and 8 of the ECHR. In each case the police have failed to investigate properly and in some cases at all. We see the same catalogue of errors again and again: officers with no experience of sexual or domestic violence, or of interviewing vulnerable victims, conducting first interviews; challenging victims’ accounts and making clear they are not believed from the start; writing them off as being drunk or incoherent and not credible – when in fact they cannot construct a chronological account due to trauma. Further, we see officers accepting the suspects’ accounts at face value without giving the victims an opportunity to comment, clarify or provide evidence which supports their version of events; forming immediate judgements on their credibility due to their sexual or personal history and not offering them any victim support.
The primary goal of each and every one of these victims is justice. They want their attacker behind bars, but all too often, due to the failure by the police to do a proper investigation at the outset, vital evidence has been lost, and often too long has passed for a conviction to be realistic or a prosecution possible. They also want the police officers who have let them down – leaving them feeling worthless, to blame for what happened, and utterly alone and disbelieved – held to account. And yes, some compensation to pay for the months or years they have been unable to earn an income from employment due to their trauma, and to pay for the psychiatric treatment they need, would be helpful.
Such cases are vitally important; and it would shock these victims, and the public at large, if there was no legal avenue available to challenge these serious and sometimes prolonged police failures.
It is probably not helpful, and is deeply depressing, to hypothesize to any great extent about the changes that will be proposed to the current system on enforcing the European Convention on Human Rights. At the moment the commitment is vague and so legally flawed that it is difficult to see with any degree of clarity what is proposed.
What is clear is that the government does not want to be told what to do by the European Court on Human Rights; the problem with this is that this isn’t really the current position and therefore the proposed solutions address a problem which, analysed with any degree of legal accuracy, does not exist. We are not forced to implement judgments of the European Court; the prisoner right to vote being a case in point – despite the court’s finding that the UK’s ban on prisoners voting is unlawful, the UK has got away for years now without doing a thing to remedy the situation. Secondly the Court gives the UK and other member states a wide margin of appreciation, particularly on issues that relate to important national issues like crime and national security. With prisoner voting, the Court did not, as David Cameron would have us believe, try and force the UK to let all prisoners, have the right to vote. All the Court said was that the UK should address the blanket ban – so for example, that those serving a sentence of a matter of weeks, should not be treated exactly the same as those serving mandatory life sentences for the most serious crimes.
It is hard to imagine how the government will renegotiate the UK’s relationship with the European Court on Human Rights and the initial response from Europe is that this is impossible. If it can’t, Cameron promises, we may have to pull out of the European Convention. This opens up a huge minefield of issues – not least because the rights in the Convention overlap with rights in other European Conventions, Charters and Treaties and we’d have to renegotiate each and every one to be free from European “interference”.
The government has talked about introducing a British Bill of Rights, which would make clear which rights we uphold as a nation, and prevent certain more “questionable rights” from being relied on. It would also make clear how certain qualified rights (for example, the right to private life, the right to liberty) should be balanced against other rights – limiting the powers of the courts to make controversial judgments by drawing the balance in a way which is abhorrent to the government. But it’s hard to see how that will operate in practice because it isn’t the rights themselves that the government seems to take issue with, or even how the court weighs up qualified rights against others, but rather who is the one trying to exercise the rights. So, as it seems, an Englishman who works hard, pays his taxes, does the ‘right thing’ and recognises that rights go hand in hand with responsibilities, should unquestionably have the right to live in his mansion without arbitrary searches, surveillance or interference with his privacy. Yet, the same cannot be said for the criminal or immigrant who seeks to exercise his qualified rights; there the balance should be weighed altogether differently.
So, looking back at the cases above, if the Human Rights Act 1998 were to be repealed, each of the serious traumatised and vulnerable victims who have been through years of anxiety, would have to wait years for their cases to get to the European Court of Human Rights, and even then the UK may refuse to implement the judgment. On a worst-case scenario some of them – or others wishing to bring claims of this kind – may not be able to pursue their claims at all. One can well imagine a situation where the Kosovan claimant for example, or a similar claimant who is a new arrival in the country (one need only consider the government’s unlawful attempt – to limit legal aid to those who had been lawfully in the country for over a year), or someone who suffers exactly as the above victims has but who has a criminal conviction – could be deprived from bringing a claim at all.
Human Rights must be universal and in a democratic country which believes in upholding these rights, there must be an efficient, effective and timely mechanism for enforcing them.