D v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lady Hale,Lord Neuberger,Lord Hughes,Lord Mance |
| Judgment Date | 21 February 2018 |
| Neutral Citation | [2018] UKSC 11 |
| Date | 21 February 2018 |
| Court | Supreme Court |
[2018] UKSC 11
Lord Neuberger
Lady Hale
Lord Mance
Lord Kerr
Lord Hughes
Appellant
Lord Pannick QC
Jeremy Johnson QC
(Instructed by Metropolitan Police Directorate of Legal Services)
Respondents
Phillippa Kaufmann QC
Ruth Brander
(Instructed by Birnberg Peirce)
1st Intervener
Karen Steyn QC
Hannah Slarks
(Instructed by Liberty)
2nd Intervener
James Eadie QC
David Pievsky
(Instructed by The Government Legal Department)
3rd – 6th Interveners
Karon Monaghan QC
Helen Law
Kirsten Sjøvoll
(Instructed by Deighton Pierce Glynn)
1 st Intervener — Liberty
2 nd Intervener — Secretary of State for the Home Department
3 rd Intervener — Rape Crisis England and Wales
4 th Intervener — End Violence Against Women Coalition
5 th Intervener — Southall Black Sisters
6 th Intervener — The Nia Project
Heard on 13 and 14 March 2017
(with whom Lady Hale agrees)
Between 2003 and 2008, John Worboys, the driver of a black cab in London, committed a legion of sexual offences on women. The first respondent in these proceedings (who has been referred to throughout as DSD) was among his first victims. She was attacked in 2003. The second respondent (NBV) became Worboys' victim in July 2007. Many others were attacked by him between 2003 and 2007 and, sadly, yet more after NBV was assaulted.
DSD and NBV brought proceedings against the Commissioner of the Metropolitan Police Service (MPS) for the alleged failure of the police to conduct effective investigations into Worboys' crimes. The claims were brought under sections 7 and 8 of the Human Rights Act 1998 ( HRA). The combined effect of these provisions (so far as this case is concerned) is to allow a person who claims that a public authority has acted in a way which is incompatible with their rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) to bring proceedings against the public authority and to be awarded damages.
The kernel of DSD and NBV's claims is that the police failures in the investigation of the crimes committed by Worboys constituted a violation of their rights under article 3 of ECHR. This provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” They succeeded in that claim before Green J, who delivered judgment on the liability issues on 28 February 2014, (Neutral Citation [2014] EWHC 436 (QB)). In a second judgment handed down on 23 July 2014, (Neutral Citation [2014] EWHC 2493 (QB)), Green J awarded compensation to DSD and NBV against MPS. An appeal by MPS was dismissed by the Court of Appeal (Lord Dyson MR, Laws and Kitchin LJJ) on 30 June 2015, (Neutral Citation [2015] EWCA Civ 646): [2016] QB 161). MPS has appealed to this court. The Secretary of State for the Home Department (SSHD) intervened, making written and oral submissions. A number of other parties intervened. Liberty intervened, as did jointly the organisations Rape Crisis, England and Wales, the End Violence Against Women Coalition, Southall Black Sisters and the Nia Project. They made helpful written submissions and valuable oral submissions.
In this appeal MPS accepts that both respondents were subjected to serious sexual assault by Worboys. It further accepts that there were significant errors by the police in each of the investigations into the crimes committed against them. MPS has said that, whatever the outcome of this appeal, MPS will not seek to recoup any of the compensation and consequential costs which have been paid.
DSD and NBV have recovered compensation from Worboys and each of them has received an award from the Criminal Injuries Compensation Authority (CICA).
It is accepted that HRA imposes a general duty to investigate ill-treatment amounting to a violation of article 3 of ECHR. The main area of dispute is the nature of that duty. That issue has a number of themes. They can be summarised as follows:
(i) Is it a public duty or one owed to individual victims of the breach of article 3?
(ii) Is it a systems or an operational duty?
(iii) Does the duty to investigate breaches of article 3 in relation to a particular individual arise only when it is alleged that state authorities are complicit in the breach?
(iv) If the duty comprehends an obligation to investigate breaches of article 3, even if there is no involvement of state agents, is there a right to claim compensation against the state?
(v) Should the fact that a victim can obtain redress against an offender or make a claim under the CICA scheme affect consideration of the availability of a right to compensation under HRA?
(vi) In this context, is it relevant that UK courts have, so far, refused to recognise a common-law duty of care on the police in relation to the manner in which officers prevent and investigate crime?
(vii) Finally, it is suggested that it would require the clearest statement in consistent decisions of the European Court of Human Rights (ECtHR) Grand Chamber to the effect that a positive duty was owed by the state to individuals who suffered treatment contrary to article 3 at the hands of another individual before holding that the investigative duty of the state was animated. If ECtHR jurisprudence is found to be less than clear, the appropriate course was to allow the government to deploy its arguments in Strasbourg — R (Ullah) v Special Adjudicator [2004] 2 AC 323.
Many of these themes overlap and blend into one another and it is impossible to consider them other than compendiously, not least because that is how they are treated in many of the relevant authorities, both domestic and European. It is necessary at the outset, however, to recognise that examination of the nature of the duty is a multi-faceted exercise.
The appellant argues that the duty of the police to investigate, detect and prosecute crime is of a communal nature; one which is owed to the public at large, not to individual citizens. It is submitted that the “general rule” is that no private law duty is owed to victims of crime. This is because it has been deemed that it would not be “fair, just and reasonable” to impose such a duty. The consistent theme of judicial decisions on the liability of the police at common law has been, the appellant suggests, that there are overwhelming public policy reasons that no such liability should be recognised. The Court of Appeal in the present case had emphasised the importance of consistency between the common law and HRA. It would be anomalous, the appellant contends, for there to be different bases of duty owed by the police at common law and under HRA. Many of the public policy considerations which militated against the recognition of such a duty at common law apply with equal force to the duty to investigate that arises under article 3 of HRA.
It is accepted that there is a duty to investigate allegations of ill-treatment which amount to a violation of article 3 but it is suggested that this duty can be enforced through the disciplinary regime, under the independent oversight of the Independent Police Complaints Commission. The existence of this regime, the appellant says, reflects the public nature of that duty.
Insofar as article 3 of ECHR imposes a positive obligation to respond to ill-treatment by a member of the public who is not a state agent, that obligation, the appellant submits, is to put in place the legal structures required to ensure that a proper inquiry can be conducted. It does not extend to the operational content of an individual inquiry. The investigative obligation in relation to individual cases arises only where state agents are complicit in the alleged ill-treatment.
The SSHD submits that the origin of the investigative duty is Assenov v Bulgaria (1998) 28 EHRR 652 where ECtHR stated that an effective official investigation was required where there was an arguable claim of serious ill-treatment “by the police or other such agents of the state unlawfully and in breach of article 3” — para 102. It is therefore argued that the principled foundation for the implication of an investigative duty is to underpin the effectiveness of the express prohibition set out in article 3. That prohibition could only apply, the SSHD argues, to agents of the state, not to private individuals.
The respondents' riposte to these arguments is that the state has a duty under article 3 to conduct an effective investigation into crimes which involve serious violence to an individual. This is a positive, protective obligation to take measures designed to ensure that individuals within its jurisdiction are not subject to the treatment which article 3 prohibits. The duty is not an abstract one owed to the public at large but can be invoked by an individual who demonstrates that the state's failure to fulfil its obligation has led to her or his suffering treatment prohibited by the article.
The respondents submit that the appellant's argument about the need for consistency between the common-law position and the availability of a claim under HRA is, properly analysed, one of justiciability. They point out that the appellant accepts that there is a domestic law duty to investigate effectively serious criminal offences. It is accepted that there were several deficiencies in the investigation...
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