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The Human Rights Act allows victims of serial rapist John Worboys to succeed in claim for Met failings

The Court of Appeal issued judgment in Commissioner of Police of the Metropolis -v- DSD and NBV and Alio Koraou -v- Chief Constable of Greater Manchester Police [2015] EWCA CIV 646 on 30 June 2015. These were joined appeals concerning the duty of the police to investigate credible complaints of serious violent offences, following the high profile decisions of the High Court last year which resulted in victims of the notorious ‘Black Cab Rapist’ John Worboys obtaining compensation for failings in the police investigation.

Between 2002 and 2008 Worboys committed over 105 rapes and sexual assaults on women using his black cab late at night to pick women up, offer them alcohol spiked with drugs and then rape or sexually assault them.

The woman known as DSD was the first of Worboy’s victims to report her attack, which occurred in 2003, to the Metropolitan Police. There were several further reports to the Metropolitan Police of similar attacks before the woman known as NBV reported the attack she suffered in 2007.

During this intervening period Worboys attacked 74 other women. After the 2007 attack on NBV, Worboys was arrested but subsequently released and went on to attack another 29 women before he was finally arrested in February 2008 and prosecuted. The effects of the attacks on DSD and NBV were profound, manifesting themselves in depression, guilt, anxiety and an inability to sustain relationships.

The lower court had found that DSD and NBV’s human rights had been breached by the failure to conduct effective police investigations into their complaints, and in a subsequent judgment they were both awarded damages. The Metropolitan Police appealed the first of these judgments, arguing that the police did not owe an enforceable duty to citizens to efficiently and reasonably investigate allegations of ill treatment by other private individuals serious enough to amount to torture, inhuman or degrading treatment. They also argued in the alternative that if this duty did exist, it was not breached on the facts of the case.

Fortunately, the Court of Appeal was unconvinced by the arguments of the Metropolitan Police on the absence of an enforceable investigative duty. It found that Article 3 of the Human Rights Act, which protects against torture and ill treatment, is clearly and consistently interpreted by the European Court of Human Rights as conferring a duty on States to ensure that serious violent offences are properly investigated. As a result of the Human Rights Act, this interpretation of the duty to investigate is incorporated into UK law.

This does not, however, mean that any minor omission or failure to follow procedure in a police investigation is capable of amounting to a breach of duty; the courts are keen to ensure that a disproportionate burden is not placed on the police and that where appropriate they are accorded a reasonable degree of autonomy in their choice of investigative methods. The Court of Appeal described a “sliding scale” of mistreatment starting with deliberate state torture at the top and going down to negligence by private citizens not linked to the state at the bottom.

It found that while the same principle is at the root of the prevention of any form of torture or serious ill treatment, the requirements on the State in addressing this vary according to where in the scale the incident falls. At the top of the scale a prompt and thorough criminal investigation meeting key conditions would be necessary; further down the scale a number of investigative possibilities may be open to the police, and the court would give them leeway on which path they chose. There may be cases particularly towards the lower end of the scale where the investigative obligation can be discharged by other means or where a criminal investigation is not a suitable response to the alleged ill treatment, but there is a mandatory requirement of a proper criminal investigation in a typical or paradigm case of serious violence.

The Metropolitan Police had also argued that if a duty to investigate were found to exist (which it was), given the proper scope of the duty there was no breach in this case. This was not accepted by the Court in DSD and NBV and a breach was found. There were a series of “systemic failings” by the police which included a failure to provide training to relevant officers, inappropriate ‘clearup’ pressures and failure to consult the Crown Prosecution Service, failure to use intelligence resources, failure to maintain confidence with victims and failure to allocate appropriate resources.

There were also operational failings in the cases, including failures to collect intelligence, to conduct proper searches, to conduct proper interviews of Worboys, to follow up on CCTV evidence and to properly record in the case of NBV that a serious sexual offence had occurred.

The Metropolitan Police had further sought to argue that an eventual successful prosecution, as occurred in this case, demonstrates in itself that there has been an effective investigation. The Court disagreed, finding that prior operational failures are not expunged by a successful prosecution.

The outcome was, however, different in the linked appeal of Koraou. Here it is worth noting that the treatment of the claimant, who was the victim of an assault in a nightclub where his ear was partly bitten off, was found by the Court of Appeal to be on the margin of what might properly be described as amounting to inhuman and degrading treatment. As such, in accordance with the principle of a “sliding scale” of mistreatment, the requirements of the police in addressing the offence were not as stringent as in DSD and NBV. Although there were some shortcomings in the police investigation, the judge at first instance found that in all the circumstances the investigation was reasonable. The Court of Appeal found the formulation to be ‘loose’ but that the judge’s overall treatment of the case had been in line with the proper scope and nature of the Article 3 duty.

A further issue raised in the DSD and NBV appeal was whether the police owed a duty to NBV before the offence took place, given that the attack on her occurred late in the period of Worboys’ string of sexual offences when there had already been many missed opportunities for the police to identify Worboys. It was found that it was properly open to the judge to take into account failings which occurred before the assault on NBV, and the appeal by the police on this point is rejected on fairly short consideration.

These duties on the police to investigate serious offences such as serial rape derive from the Human Rights Act. At present, no equivalent duty under the common law has been recognised by the courts.

In the case of Hill v Chief Constable of West Yorkshire [1989] AC 53, brought by the mother of a victim of the ‘Yorkshire Ripper’ Peter Sutcliffe, it was found that the police had no duty towards the murder victim because she was not at any greater risk than other potential victims of Sutcliffe. Thus there was not a relationship of sufficient proximity between the police and the victim, which is a requirement for a duty of care to arise under the common law in negligence, and without which a claim cannot proceed. This case was subsequently broadly interpreted as bestowing immunity on the police in relation to the investigation and prevention of crime. It has been a longstanding barrier to the success of negligence claims in cases where the police have not adequately investigated serious crimes.

Claimants bringing actions against the police have sought recognition of a modified common law duty which reflects the duties of the police under the Human Rights Act in cases such as Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2. However, the courts have consistently upheld Hill and no such equivalent rights under the common law have been recognised.

The issue was not directly before the Court in DSD and NBV, though the apparent discrepancy between the Article 3 investigative duties and the absence of such a duty under the common law was addressed in some detail, with the Court finding that the common law and the Human Rights Act should cohere as far as possible and that neither should undermine the other. This was achieved by stressing their different aims; the strategic purpose of the rights contained in the Human Rights Act to secure minimum standards of human rights protection, and the English private law purpose of compensation for loss. The focus is on state compliance with proper standards of protection in a Human Rights Act claim, and thus compliance centres not on the effect on the claimant but rather the overall nature of the investigative steps taken by the State. Other differences flow from this observation; for example, damages are awarded as of right in common law claims, whereas in human rights claims they are at the court’s discretion. As such, human rights and the common law of negligence have different aims, and so can live together.

If this is the approach which is now to be adopted by the courts, this underlines the centrality of the Human Rights Act in bestowing protection to vulnerable victims of serious offences where this protection is not available under the common law. This is particularly poignant given recent criticism, partly arising from the circumstances of the Worboys case and the comparable case of another serial rapist, Kirk Reid, of the ongoing inadequacy of rape investigations and the culture of disbelief which persists among elements within the police.

The Metropolitan Police was criticised in the recent report by Dame Elish Angiolini, which raised issues including failures at the early stages of reporting and investigation of sexual offences, as well as stereotyping of complainants and low levels of convictions.

As was pointed out by the lower court in DSD and NBV, a particularly troubling aspect of the case was that so few of Worboys’ victims complained to the police until after Worboys was arrested; of the more than 80 victims who contacted the police after Worboys’ arrest, over 60 had never reported the incident to the police. The protection offered by Article 3 of the Human Rights Act will in many cases be the only effective means by which rape victims, who have been subject to the dual horror of the ordeal of the attack itself being then compounded by not being believed or taken seriously, can challenge investigative failings by the police.