This week’s Digest examines two cases. In the first the Supreme Court considered the extent of the police’s positive obligation to investigate crimes reported by individuals. In the second, the Divisional Court considered the lawfulness of the CPS approach to paragraph 9 (iii) of the Victims’ Right to Review Guidance. Finally, the Digest includes a summary of HHJ Goldestone QC’s sentencing of Barry Bennell.
Commissioner of Police of the Metropolis v. DSD and another [2018] UKSC 11
The judgments of the Court are available here and were handed down on 21.02.18. Lord Kerr gives the main judgment.
The issue in this case was the extent to which states are under a positive obligation to investigate reported crimes perpetrated by individuals. The Supreme Court unanimously held that such an obligation existed, but were divided as to its extent. In Lord Kerr’s view, that obligation was operational; in Lord Hughes’, it was structural.
The respondents in this case (DSD and NBV) were victims of John Worboys. They both brought proceedings against the police, alleging failure to conduct effective investigations into his crimes. They claimed these failures amounted to a violation of their article 3 ECHR rights. The issue in this appeal was the extent to which article 3 of the ECHR imposes a positive obligation on states to effectively investigate reported crimes perpetrated by private individuals.
The Supreme Court unanimously held that such an obligation did exist. Lord Kerr gives the main judgment. In his view, the ECHR case law supports the existence of an operational duty to conduct a proper inquiry into behaviour amounting to a breach of article 3 (a point on which Lord Neuberger agrees). To be an effective deterrent, laws which prohibit such conduct must be rigorously enforced and complaints properly investigated. Further, that the police do not owe a common law duty of care to individuals does not extend to claims advanced under the Human Rights Act 1998; the bases of liability are different in terms of policy. Indeed, the existence of an duty to investigate effectively does not depend on whether it is fair just and reasonable to impose such a duty.
Lord Hughes, while agreeing in principle, differs in that he considers the obligation extends only to ensuring there are appropriate legal structures in place to investigate such claims. The proper test is whether the state has a proper structure in legal and policing provisions to deal with such behaviour. The test is not whether the investigation was careless or involved mistakes which ought not to have been made. English law cannot control the operation of the ECHR, but there is a balance to be struck and it is undesirable to permit a detailed review of a particular criminal investigation by way of the ECHR. Hence, in his view, the obligation should be confined to structural failings.
Lord Mance, again concurring in principle, considers the distinction between operational and systematic failures has been replaced by a distinction between simple errors and more serious failings; a positive obligation under article 3 exists only in respect of the latter.
R (Hayes) v. Crown Prosecution Service [2018] EWHC 327 (Admin)
The judgment, available here, was handed down by Holroyde LJ on 22.02.18.
The issue in these judicial review proceedings was whether the CPS’s policy in relation to paragraph 9 (iii) of the Victims’ Right to Review Guidance (“VRRG”) was unlawful. The claim failed; although paragraph 9 (iii) of the VRRG, as operated by the CPS, imposed a restriction upon the scope of the scheme and the victims’ right to review, that restriction is justified and proportionate in its balancing of competing interests.
Louis Mably QC appeared for the defendant.
The claimant in these judicial review proceedings commenced a private prosecution against his ex-wife, Mrs Hayes, which was taken over by the CPS after review. The CPS decided to offer no evidence against Mrs Hayes and, as a result, she was acquitted. The claimant sought review of the CPS’s decision not offer any evidence against Mrs Hayes under paragraph 9 (iii) of the VRRG. Mr Hayes was informed by the CPS that they would, nevertheless, proceed to offer no evidence against Mrs Hayes and would not postpone that action until after the review process had taken place. Mr Hayes accordingly sought judicial review of the CPS’s decision, claiming that the CPS’s approach to paragraph 9 (iii) of the VRRG was unlawful.
The claim was unsuccessful. Holroyde LJ, while recognising that the CPS’s policy imposes a restriction upon the scope of the right to review, that restriction was justified and proportionate. Four things in particular were noted. First, the right to review is not all-embracing and available in all circumstances (R (Chaudhry) v. DPP [2016] EWHC 2447). Second, the VRRG did provide an effective right to a review, albeit this was too late in time for the victim. Third, the operation of the policy by the CPS gave appropriate weight to the interests of the accused (who is entitled to have proceedings terminated as soon after that decision has been taken) and the prosecutorial independence of the CPS. Fourth, the operation of the criminal justice system would be adversely impacted if representations were allowed after a decision not to prosecute and before proceedings were terminated – it would breed inordinate delay.
R v. Richard Jones, AKA Barry Bennell, HHJ Goldstone QC, Liverpool Crown Court 19.02.18
The full remarks are available here.
Barry Bennell was convicted of a total of 43 counts of offences of sexual assault committed between 1979 and 1991 against 11 boys between ages 8 and 14. He further pleaded guilty to 7 counts of indecent assault committed during the same period. The combination of the number of offences, by reference to the number of victims and the extent to which the conduct was in many cases repeated, led the judge to treat all the offences, with the exception of the relatively isolated offences involving digital penetration, as falling within Category 1 (Harm) and Level A (culpability).
The judge declined to impose a discretionary life sentence or an extended sentence, as there was no evidence of a continued risk to young boys or that risk could not be managed in the community. Rather, the sentence imposed was determinate. For those 50 offences, Barry Bennell was sentenced to 31 years, comprising of a custodial term of 30 years and a licence period of 1 year with the sex offenders’ registration requirements applying.
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The full piece can be read here.
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The full piece can be read here.
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According to an investigation conducted by the Observer, two thirds of prisons are providing inmates with inadequate conditions or unacceptable treatment.
The full piece can be read here.
Lithuanian teenager’s death branded ‘appalling’ by ombudsman
A Lithuanian teenager, who was arrested for stealing sweets, was found hanging in the segregation unit of Wandsworth prison. On the day of his death, the prisoner had rung a bell in his cell to attract attention. By the time officers responded, the teenager was found hanging unconscious. The investigation, which condemned the death as ‘appalling’, found that the teenager had been found with a noose around his neck on numerous other occasions.
The full piece can be read here.
