The decision
In the less-publicised John Worboys-related case of recent weeks, Metropolitan Police Commissioner v DSD [2018] UKSC 11 (available here), the Supreme Court has made a decision with potentially much further-reaching implications. They upheld the High Court’s award of damages to Worboys’ victims for investigatory failings by the Metropolitan Police under Article 3 of the European Convention on Human Rights. The ancillary investigative duty under Article 3 even where there was no state involvement in the offending was previously well-established in human rights law, but the individual actionability of it by victims of crime in the courts of England and Wales was not.
The reasons of the majority
The result was unanimous, but the Court was deeply divided on the principles to be applied to future such cases. The reasons of the majority were principally given by Lord Kerr, with whom Lord Neuberger and Lady Hale agreed. They found, based on the Strasbourg caselaw, that certain failings in individual investigations could amount to breaches of Article 3, even if there were no structural problems. This was perhaps not necessary to dispose of the case – Lord Hughes considered that only structural failings were enough to amount to a breach, but that they were clearly present here: the Metropolitan Police Service did not, for example, actually implement their sensible policies on investigating drug-induced rape across the organisation, rather than just in this case.
However, there were also a number of failings which the trial judge had classified as being operational – for example, failures to interview relevant witnesses known to the police, failures to collect relevant CCTV evidence, and an individual failure to follow published procedures. Without these, Lord Kerr said, the police would actually have been able to arrest Worboys much sooner, notwithstanding the systemic failings that also hampered the various investigation teams.
The European Court of Human Rights has always been clear that its role, as a supranational court, is not to consider the factual background to alleged simple errors or isolated omissions; it often states that it is not a “court of fourth instance”. Lord Kerr said that just because that Court was unwilling to examine investigations closely did not mean that national courts ought to make awards on the basis of minor failings – rather, only “conspicuous or substantial” or “egregious and significant” errors give rise to a breach. This is a significant limitation to the right to make a claim for breach of the ancillary obligation, and it remains to be seen if the Strasbourg court will actually adhere to this distinction.
The Supreme Court rejected the Metropolitan Police’s assertion that the common law protection of the police from negligence claims relating to investigations applied here too. It held that the rule was simply a reflection of whether the Court found it “fair, just and reasonable” to impose a duty on the police in the circumstances, which is impermissible reasoning where human rights are concerned, since the police either have and have violated a duty to protect people or they do not and have not – there can be no middle ground where the imposition of the duty depends on whether it is fair and reasonable in the circumstances.
Of broader interest to lawyers is likely to be the Supreme Court’s resiling from the principle set down by Lord Bingham in Ullah [2004] UKHL 26 (available here) that the courts in the UK merely ought to keep pace with the decisions of the Strasbourg court in human rights matters rather than being in the vanguard. Even Lord Mance, whose judgment in this case was very critical of what he said was legally unsupported overreach by the ECtHR, agreed that the courts’ obligation to act in accordance with human rights (just like any other public authority) must mean that in some cases of ambiguity it might be required to go further than the Court in Strasbourg had previously done, if that was what they felt the correct interpretation of the Convention required.
Issues to be determined in the future
The Supreme Court’s judgment arguably raises more questions than it answers, particularly because the Court was so starkly divided. In particular:
- It is not clear how the ancillary duty will be applied to investigations concerning offences which were committed prior to the coming into force of the Human Rights Act 1998, or indeed in relation to offences which pre-date the entry into force of the European Convention on Human Rights in September 1953. Such situations are especially likely to arise with the current number of allegations of historic sexual abuse, and following the Independent Inquiry into Child Sexual Abuse’s investigation into how such allegations have historically been handled by the authorities.
- Even where there is what the Strasbourg court calls jurisdiction ratione temporis of the Convention, it is not yet clear what kinds of police defaults in practice will amount to breaches of the ancillary duty to Article 3.
- Even when those breaches are found, it is not at all clear which will be serious enough that just satisfaction for the breach demands payment of compensation by the police for its failings as opposed to mere declarations of the breach.
What the decision means in practice
Lord Kerr said that this will not herald an “avalanche” of “claims for every retrospectively detected error in police investigations of minor crime” (at [53]). He may be right that it will not herald a flood of successful such claims. However, until the various uncertainties identified above are resolved, the opening up of this new frontier of litigation will undoubtedly attract claims (and consequent appeals) from claimants who have experienced a wide array of different failings in their dealings with the police. Lord Kerr confidently asserts that “there is no reason to suppose that the existence of a right under article 3 to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and to deter, indeed eliminate, the making of such grievous mistakes” but, however correct the decision is as a matter of law, the impact of it on the number and scope of claims against the police in practice remains to be seen.