A judgment in a case looking at whether the police failed in their duty to protect victims in the case of ‘black cab rapist’, John Worboys, is expected imminently. The outcome will have major implications for victims of serious crime and the accountability of the police where there has been a failure to investigate.
In March 2017, the Supreme Court heard the appeal Commissioner of the Police of the Metropolis v DSD and another (respondents). The case concerns two victims of John Worboys, anonymised as DSD and NBV.
DSD was attacked by Worboys in 2003 after being drugged in his taxi whilst being driven home. After the attack, Worboys asked a local man to help him take her to the police station because she was vomiting and slurring her words. On arrival, the police mischaracterised her as drunk, a drug addict or both, not as a victim of a crime. The next day DSD realised what had happened to her and attended the police station. During this investigation, the police failed to take Worboys or the witness’s contact details, to obtain any CCTV footage, to record entries in the Evidence and Actions book, to collect vital forensic evidence or to make contact with any other witnesses. The investigation was closed nine months later.
NBV was attacked in 2007 after she was drugged in his taxi. Worboys took her home to her university campus. The next morning, NBV realised what had happened to her and went to watch the CCTV footage outside her house. The registration number of the taxi was given to the police. Throughout the investigation, the police failed to take immediate blood samples from NBV to test for drugs, failed to take intimate bodily samples from NBV, did not conduct a search of Worboys house or taxi or take samples from Worboys clothing, consider the CCTV from the club where NBV had been or re-interview Worboys after more evidence was collected. The investigation was closed five months later.
There were reports of similar attacks after 2003 and Worboys was known to have attacked 74 other women. After NBV’s investigation, Worboys went on to attack 29 other women before his arrest in February 2008. Worboys was eventually convicted of 19 counts of rape, sexual assaults and 12 offences of administering a substance with intent to rape.
DSD suffered from a depressive disorder as a result of her treatment by officers while NBV suffered serious distress, anxiety, guilt, exacerbation of PTSD and depression.
The claims were brought under Articles 3, 7 and 8 of the ECHR; the appeal focused on Article 3.
The High Court in 2014 found that DSD and NBV’s right to protection against inhumane or degrading treatment under Article 3 ECHR had been violated by the force’s multiple failures in the investigations of Worboys.
The Commissioner of Police of the Metropolis (the MPS) appealed to the Court of Appeal in 2015 on the grounds that Article 3 did not impose any positive obligation on the MPS to investigate allegations of ill-treatment that were serious enough to amount to torture or inhumane and degrading treatment and that any duty did not apply where the state was not itself implicated in the allegation. They further argued that even if this duty did exist, on the facts of the case above, there was no breach. The MPS failed in all these arguments.
The MPS appealed to the Supreme Court; the appeal was heard on 13 and 14 March 2017. The government belatedly intervened in support of the MPS. The issues to be decided were (1) whether, under section 6 HRA 1998, read in line with Article 3 ECHR, there is an obligation to investigate ill-treatment perpetrated by an individual without any involvement of a public authority and (2) whether that obligation is confined to solely putting in a structure to enable the investigation to just take place or whether it expands to the conduct of the individual investigation into a particular crime. Judgment is awaited.
The outcome of the appeal will have major implications for the victims of serious crimes. We along with other practitioners in this field fervently hope that it will confirm that there is a duty under Article 3 of the ECHR for the state proactively to investigate serious crimes committed by non-state agents and that the parameters imposed by the High Court and Court of Appeal need not be further limited.
The MPS, supported by government, has made clear how onerous such a duty is, and how public policy mitigates against opening the floodgates by enabling the victims of crime to sue in this context, preventing the police from focusing on doing the job of investigating crime and diverting resources into litigation.
In our view, the policy objections are misconceived; the High Court and Court of Appeal have already made clear that an exceptionally high bar applies in terms of when the investigative duty will be triggered and that the state is afforded a varying degree of discretion in how to investigate crime which is very broad at the lower level. The Court of Appeal has done no more than to confirm that it is possible to sue, within very limited circumstances, where the state very seriously fails in its obligations in a way which falls outside the margin of appreciation afforded to it.
The Court of Appeal has made very clear that the investigative obligation under Article 3 only applies where an extremely high threshold is met and that in cases only just meeting that threshold, the breadth of the margin of appreciation given to the police will make it very difficult for claimants to succeed.
Alio Koraou v The Chief Constable of Greater Manchester Police  proceeded alongside that of DSD and NBV to the Court of Appeal. Mr Koraou was assaulted in a nightclub and his ear was partly bitten off in the attack. There were numerous failings in the investigation; statements were not taken from door staff, statements were not taken from officers at the scene in order to clarify matters, a press release was not issued, relevant CCTV was not sought and other important evidence was overlooked.
Mr Korau’s claim was dismissed by the High Court. Judge Platts held that the case was “on the margin of what might properly be described to amount to inhuman or degrading treatment” and stated “[T]here is a need to avoid an unacceptable burden being imposed on the police and that is a reason for adopting a cautious approach to the law and not setting the bar for liability at too low a level”. The judge posed the question whether “in all the circumstances the investigation carried out by the police [was] reasonable”; and concluded that, notwithstanding the multiple failings he found to have occurred, it was. The Court of Appeal did not fault the judgment, dismissing the appeal. It is therefore simply not the case, as the MPS would seemingly have us believe, that anyone who reports a crime would, if the Supreme Court dismissed the appeal, be able to sue the police for not investigating properly.
In terms of what the police are required to do to comply with the investigative obligation, the High Court and Court of Appeal have not specified any new, onerous or prescriptive set of requirements about how they should investigate crime. Rather, the courts have endorsed a pyramidal scale, depending on the severity of the crime, with a wider margin of appreciation at the bottom (the less serious end) as to what the state must to do comply with the investigative obligation. Even where the case involves a particularly serious crime, discretion is afforded as to how an investigation is approached and the totality of the investigative steps that were taken or not taken adequately is considered. The courts have been clear that one cannot impose an excessive burden on the police; resources available may be considered, together with the nature of the offence and whether the victim was particularly vulnerable.
In our view, far from placing an additional burden on the police and diverting them from investigating serious crime, the threat of litigation and the financial consequences if they fail properly to investigate serious crime, are a vitally important way of ensuring that the investigation of serious crime is adequately resourced and supervised.
The risk to the public is far greater if there is no legal redress and if the individual victims of violent crime are left with no remedy where the police fail to effectively investigate the crimes they report. It is also vitally important that the bar is not raised so high, or the margin of appreciation widened so much that it becomes impossible in practice to bring claims.