DSD and NBV v Commissioner of Police of the Metropolis
Article 3 of the ECHR imposed a positive duty on police forces to investigate allegations of inhuman or degrading treatment by third parties.
High Court (Mr Justice Green)  EWHC 463
28 February 2014
Article 3 of the European Convention on Human Rights (ECHR) imposed a positive duty on police forces to investigate allegations of inhuman or degrading treatment by third parties in a timely and efficient manner capable of leading to the identification and punishment of the perpetrator. Whether an investigation fell short of the requirements of Article 3 could only be established following a detailed forensic analysis of the particular facts of the case.
The case concerned a claim for declarations and damages brought by two victims of the infamous “black cab rapist” John Worboys, who between 2002 and 2008 committed in excess of 100 rapes and sexual assaults on women passengers. Worboys targeted single females to whom he administered drugs and alcohol with a view to incapacitating them so he could assault them. Many of the women did not report those crimes and because of the drugs and alcohol used by Worboys many of those who did only had a partial recollection of the events.
Worboys was eventually convicted on 12 March 2009 of one count of rape, five sexual assaults, one attempted assault and 12 drugging charges, committed from July 2007 to February 2008.
The police investigation has been subject to extensive review by the Independent Police Complaints Commission (IPCC) and the Metropolitan Police (MPS) itself. A number of individual and systemic failings have been identified during the course of those reviews.
DSM was one of Worboys’ first victims in May 2002 and NBV one of the last in 2007. They represented test cases for other women whose facts sit elsewhere in the spectrum and it is anticipated that further claims will follow.
Mr Justice Green acknowledged that under the common law there was no duty of care in negligence in relation to the investigation of crime.
He went on to conduct an analysis of the European case law in this area and concluded that Article 3 imposed a positive duty on the police to investigate cases, even where the police are entirely clear of any responsibility for the infliction of the violence. He drew the following conclusions:
- The duty is triggered where there is a credible or arguable claim that a person has been subject to torture or degrading or inhuman treatment.
- Allegations of a crime that are grave or serious will amount to torture or degrading or inhuman treatment and fall within the definition of Article 3. Such crimes include rape and sexual assault.
- Police must investigate in an efficient and reasonable manner which is capable of leading to the identification and punishment of the perpetrator.
- The duty to investigate is one of means not results, although an assessment of the efficiency and reasonableness of the investigation should take into account whether the offender was adequately prosecuted and so a successful prosecution within a reasonable period of time could render any operational failures irrelevant.
- Not every operational failing is actionable and the police are only liable for failing to meet an operational standard that is capable of leading to the apprehension and prosecution of an offender.
- The investigative failings may be systemic or operational. Systemic failures include legislative or policy failings; operational failings would include the omissions of individual officers during the course of an investigation.
- What is reasonable or capable of leading to the apprehension, charge and conviction of a suspect is subject to a margin of appreciation and to proportionality. The police have discretion as to how they conduct an investigation. The judge was clear that the law must not impose an excessive burden on the police and factors which may in a particular case be relevant include the resources available and the nature of the offence.
In these cases the judge identified a number of serious of systemic failings which he said went to the heart of the failure of the police to apprehend Worboys and cut short his five to six year spree of violent attacks. Those failures included:
- Failure to train relevant officers in the intricacies of sexual assault and in particular drug-facilitated sexual assaults;
- Failures on the ground by senior officers to supervise investigations by more junior officers properly and to ensure that those investigations were conducted as set out in MPS operating procedures;
- Failures in the collection and use of intelligence sources to cross-check complaints to establish linkages;
- Failure to allocate proper resources to sexual assaults.
In addition he identified individual failings included not interviewing vital witnesses, collecting key evidence and preparing properly for interviews with the suspect.
It is doubtful that those engaged in drafting the wording of Article 3 of the ECHR in 1950 could have envisaged that, over 60 years later, it would be read to include a positive obligation on the state (including the police and prosecuting authorities) to conduct a reasonable and efficient investigation into Article 3 allegations of inhuman and degrading treatment. As the judge highlighted in his analysis of the law, there is now a well-established line of European case law which supports that proposition.
The common law public policy arguments advanced in such cases as Hill v The Chief Constable of West Yorkshire Police  AC, Brooks v MPS  1 WLR 1495 and more recently Smith v The Chief Constable of Sussex Police  1 AC no longer hold sway in claims brought under Article 3.
Mr Justice Green was clear in his view that the circumstances in which the police may be held liable are relatively stringent and a number of serious and exacting hurdles must be overcome before a liability may be imposed. In these cases, he held that the hurdles were cleared by some margin. In other cases the position remains to be seen.
What is clear is that investigating and responding to claims of this type will prove to be a significant additional burden at a time when resources are already extremely stretched.
For further information about Weightmans or to discuss any of the issues in this update, please contact Martin Forshaw Partner, on 0151 242 7949 or email firstname.lastname@example.org.