The Commissioner of Police of the Metropolis v DSD and NBV
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Kitchin,The Master of the Rolls |
| Judgment Date | 30 June 2015 |
| Neutral Citation | [2015] EWCA Civ 646 |
| Docket Number | Case No: B2/2014/1643, A2/2014/2662 & A2/2014/2731 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 2015 |
[2015] EWCA Civ 646
The Master of the Rolls
Lord Justice Laws
and
Lord Justice Kitchin
Case No: B2/2014/1643, A2/2014/2662 & A2/2014/2731
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The County Court at Manchester
ON APPEAL FROM The High Court of Justice
His Honour Judge Platts and
Mr Justice Green
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Johnson QC and Mr Mark Thomas (instructed by Directorate of Legal Services) for The Commissioner of Police of the Metropolis and Phillippa KaufmanQC (instructed by Birnberg Peirce and Partners) for DSD and NBV
Mr Hugh Burton (instructed by Tuckers Solicitors) for Alio Koraou and Dijen BasuQC (instructed by GMP Legal Services Department) for The Chief Constable of Greater Manchester Police
Hearing dates: 11, 12 & 13 May 2015
INTRODUCTION
These conjoined appeals are brought in two actions for damages and declarations arising out of alleged failures by two police forces, the Metropolitan Police Service (MPS) and the Greater Manchester Police (GMP), to conduct effective investigations into allegations of crimes committed against the claimants. The claims were brought under ss.7 and 8 of the Human Rights Act 1998 ( HRA). Their essence is that the failures of which the claimants accuse the police constitute violations of a duty to investigate said to be inherent in the right guaranteed by Article 3 of the European Convention on Human Rights (ECHR). As is well known Article 3 provides:
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
It will make for clarity in explaining the argument if at this stage I also set out Article 1 and the first sentence of Article 2(1):
"1. The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. [Section I includes Article 3.]
2(1) Everyone's right to life shall be protected by law…"
The first of these claims to be decided was brought by two women, DSD and NBV, who were victims of the "black cab rapist", a man called John Worboys. Between 2002 and 2008 Worboys committed over 105 rapes and sexual assaults on women who were passengers in his cab. On 28 February 2014 Green J gave judgment in favour of the claimants against the MPS. The second claim was brought by Alio Koraou, who alleged that on 23 December 2011 he was the victim of an assault at the Bar Rogue, part of the Britannia Hotel in Manchester, and part of his ear was bitten off. On 17 April 2014 HHJ Platts at the Manchester County Court dismissed the claim and gave judgment in favour of the GMP. In DSD/NBV Green J gave the MPS permission to appeal on 23 July 2014. In Koraou Lewison LJ gave the claimant permission on 30 June 2014.
THE ISSUES OUTLINED
In DSD/NBV the MPS assault Green J's judgment on four grounds. (1) ECHR Article 3 does not of itself impose any obligation to investigate. To the extent that the Strasbourg court has found there to be a duty to investigate allegations of inhuman or degrading treatment, the duty springs from the positive obligation imposed by Article 1; but Article 1 forms no part of our domestic law, not being a Convention right within the meaning of the HRA. Accordingly there is no duty, cognizable in English law, to investigate alleged substantive breaches of Article 3. (2) If Ground 1 is wrong and Article 3 indeed creates a duty to investigate enforceable in our domestic law, the duty only arises where the State (or, to use the language of the HRA, a public authority) is complicit in an alleged substantive breach of the Article. (3) If Grounds 1 and 2 are both wrong and there is a duty to investigate allegations of inhuman or degrading treatment by non-State actors, then given the proper scope of the duty, there was no breach on the facts of DSD/NBV. (4) If all of Grounds 1 – 3 are wrong, Green J nevertheless erred in holding that the MPS owed a duty to NBV to investigate the perpetrator Worboys even before he attacked NBV.
In Koraou the appellant raises four grounds which in various respects attack Judge Platts' approach to the facts. I will not enumerate them at this introductory stage. Essentially he seeks to advance a Wednesbury case ( [1948] 1 KB 223): "[t]he nub of this appeal is [that] the decision to dismiss the claim in its entirety while at the same time finding a series of clear shortcomings/failings in DC Walters' [the investigating officer] investigation is perverse" (skeleton argument, paragraph 11). The GMP of course take issue with that. They also support the MPS' Grounds 1 and 2 in DSD/NBV.
THE ARTICLE 3 ALLEGATIONS OUTLINED
I shall have to say more about the facts in confronting the issues, not least as regards the steps taken (and not taken) by the police in both cases. At this stage I will give a brief account of the accusations of substantive violations of Article 3 advanced by the claimants.
DSD/NBV
As Green J said at paragraph 2 of his judgment, DSD was one of Worboys' earlier victims. She was attacked in 2003. NBV was attacked in July 2007; but there were many more victims after that. Green J proceeded to make these observations:
"6. Between 2002 and 2008, Worboys committed in excess of 105 rapes and sexual assaults upon women whom he was carrying late at night in the back of his black cab. Over these years he developed an ever more refined methodology for administering drugs and alcohol to these women with a view to incapacitating them so that he could then assault them… The effect upon these vulnerable women was profound. In the cases of DSD and NBV… the effects of the assaults have stayed with them in a variety of ways over the ensuing years manifesting themselves in depression, feelings of guilt, anxiety, and an inability to sustain relationships…
7. The administering of drugs of sedation and alcohol as an integral part of Worboys' technique substantially reduced the likelihood of his apprehension and arrest. One troubling aspect of these cases is that so few of Worboys' victims complained to police. This was partly for the reason that Worboys' chosen modus operandi left his victims confused and disorientated and, frequently, with only a partial memory of their ordeal. The case of DSD is on point. Immediately following her attack, she was disorientated, incapacitated and vomiting. When she first came into contact with police very shortly after the assault, she appeared to be a drunk or a drug addict or both; and the police assumed as much. In an extraordinary twist of fate, she was in fact transported to the police station by Worboys himself, who had been persuaded to take DSD to the police station by a Good Samaritan third party [Kevin: he is referred to in the judgment by his first name], who also accompanied both Worboys and DSD to the station. But because she was mischaracterised as a drunk, she was not treated as a victim of crime, no-one took the name or address of Worboys or his vehicle registration. He was treated as a model citizen. And no-one took the name or address of [Kevin]."
Worboys was charged on 15 February 2008. He was tried in January 2009, convicted on 13 March 2009, and received an indeterminate sentence of imprisonment.
Koraou
Koraou's case was that he was assaulted by two men in the Bar Rogue in the early hours of 24 December 2011. He was to describe both of them as white males. One head-butted him, the other punched him in the head and neck. Both kicked him when he was on the floor. Security staff took hold of him; but as they held him, one of the men bit his ear, so that it was partially detached. Outside, he was again attacked by one of them whom the police detained. Koraou told the police that the man who attacked him in the street (subsequently identified as Wayne Maguire) was not the one who had bitten his ear. When he was taken to hospital, Koraou (on his account) told the officers who saw him there that the man who had been detained in the street had assaulted him in the bar. At length DC Walters was appointed investigating officer.
It will be convenient to address the facts of the investigations in both cases when I confront Grounds 3 and 4 in DSD/NBV, and the overall case in Koraou. I turn now to Ground 1 in DSD/NBV.
DSD/NBV – GROUND 1: ECHR ARTICLE 3 OF ITSELF IMPOSES NO DUTY OF INVESTIGATION
Under Ground 1 Mr Johnson QC for the MPS advances three propositions. (a) Article 3 is expressed in purely negative terms. (b) Authority shows that to the extent that there exists under the ECHR any duty to investigate substantive violations of Article 3, it arises only by force of the positive obligation to "secure… the rights and freedoms defined in Section I of this Convention" imposed by Article 1. (c) But Article 1 is not stipulated as a Convention right in the HRA. Accordingly the duty to investigate does not run in our domestic law.
Preliminary
Before turning to these individual propositions, there is a broader point to be made. The restrictive reading which the MPS would attribute to Article 3 allows no real weight to be given to what may be thought of as fundamentals of a civilised constitution: the rule of law, and the security and protection of the people. In the last analysis Grounds 1 and 2 in the MPS' appeal raise issues as to the means and extent by which Article 3 gives effect to these interlocking values. It is of course not inevitable that an...
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