Two women, anonymised as DSD and NBV, who had been sexually assaulted by the London black-cab driver John Worboys, sued the Metropolitan Police for failing to investigate those crimes effectively. The Supreme Court dismissed the police’s appeal. A majority held that article 3 of the European Convention on Human Rights requires an effective investigation into serious ill-treatment by a private individual, and that serious operational failures can breach that duty even if they are not part of a wider systemic defect.
DSD and NBV were among the victims of a series of sexual assaults by John Worboys. The trial judge identified serious failures in how the Metropolitan Police investigated the allegations. The claim was brought under the Human Rights Act 1998.
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Green J held the Commissioner liable on 28 February 2014 and awarded compensation on 23 July 2014. The Court of Appeal, Lord Dyson MR, Laws and Kitchin LJJ, dismissed the Commissioner’s appeal. In the Supreme Court the Commissioner accepted that both women had suffered serious sexual assault and that there had been significant errors in each investigation. The Commissioner also said that the compensation and costs already paid would not be reclaimed, whatever the result. Each woman had already recovered compensation from Worboys and an award from the Criminal Injuries Compensation Authority.
The duty in dispute
The Commissioner accepted that the state had to maintain an effective legal system for dealing with serious ill-treatment. The narrower question was whether serious operational failures in an individual investigation of violence by a private person could themselves breach article 3.
DSD and NBV said that the duty is a positive obligation to investigate crimes involving serious violence, owed to an individual who can show that the state’s failure caused her to suffer treatment forbidden by article 3. They said that enacting the Human Rights Act had made that remedy available, and that the policy reasons for refusing a common-law duty of care do not govern a Convention claim.
The majority: serious operational failures can be enough
Lord Kerr, with whom Lady Hale agreed, held that there is a clear and constant line of Strasbourg authority for a duty to investigate serious violence whether the perpetrator is a state agent or a private individual. In MC v Bulgaria the European Court had said that the positive obligation to investigate is not confined to ill-treatment by state agents, and that states must both enact criminal law which effectively punishes rape and apply it through effective investigation and prosecution. Later cases treated a failure to take reasonable steps, to act promptly and to secure evidence as capable of breaching article 3, including where the attacker was a private individual, and compensation had been awarded to the person affected.
Lord Kerr distinguished serious failures from isolated errors of judgment. On the majority approach, victims did not also have to identify a defect in the structure of the police service. The duty required an effective investigation, without guaranteeing that it would succeed.
Compensation, Lord Kerr held, is not automatic. Its purpose is different from damages in a civil action. As the Court of Appeal had said, the inquiry is concerned first with the investigative steps the state should have taken. The catalogue of systemic and operational failures justified compensation even though the women had already been compensated by Worboys and by the Criminal Injuries Compensation Authority. The common-law refusal to recognise a duty of care did not control the Convention claim. The liabilities have different bases, and the article 3 duty does not depend on whether imposing it seems fair, just and reasonable. Lord Kerr also rejected the argument that the Supreme Court should wait for Strasbourg. Under section 6 of the Human Rights Act a court, as a public authority, must give effect to Convention rights as domestic rights.
Lord Neuberger, with whom Lady Hale also agreed, decided the point on which the Court was divided, although he said it was not strictly necessary to the result. Serious, purely operational defects can infringe an investigative duty under article 3, and equally under article 2. A duty to investigate would be of little value unless it required an effective investigation, so long as courts remember the difficulties of policing and do not impose an impossible or disproportionate burden. Only serious defects suffice. He also thought a systems-only test would force courts into difficult questions about which failures were operational, which were structural, and how far one investigation had to be compared with others. The common-law cases, including Hill v Chief Constable of West Yorkshire Police, were not a reason to narrow the human-rights test so as to match the tort test.
Lord Hughes: this case turned on structural failure
Lord Hughes agreed that the appeal should be dismissed, but not because purely operational negligence is enough. He treated article 3 as primarily a prohibition on the state itself subjecting someone to torture or inhuman or degrading treatment. Obligations concerning violence by private individuals are, in his analysis, judicial extensions of that duty. The extension to investigation of past third-party violence was, he considered, unclear in its source and extent. The practical constraints on policing, priorities and finite resources pointed, in his view, to a narrower test: whether the state has a proper structure of legal and policing provision designed to punish the violence, and has administered that structure in good faith and with proper regard to its gravity. He warned that a wider duty could expose the investigation of most violent and sexual offences to litigation and divert resources into re-examining past inquiries.
On the facts, he held that the case nevertheless fell within that narrower duty. The judge’s findings, largely grounded in the police’s own critical reports, showed plain structural errors. There was a written policy for drug-induced rape, but it was institutionally treated as mere form and there was no proper training in applying it. The complaints were not given the weight they demanded because of generic failures, and there was internal pressure to write off cases of this kind. The detailed failings were, as he saw them, largely attributable to that flawed structural approach. There was no appeal against the amount of compensation.
Lord Mance
Lord Mance agreed that the Commissioner’s appeal should fail. He stressed the limits of the obligation and the level of seriousness required before an investigative failure could breach article 3.
Verdict: The Court unanimously dismissed the Commissioner’s appeal. The findings of liability and the awards to DSD and NBV stood. The majority accepted that sufficiently serious operational failings could breach article 3. The amount of compensation was outside the appeal.
Source: Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11
