The Supreme Court judgment in Commissioner of Police of the Metropolis v DSD and another  UKSC 11 makes it clear that the police have a positive duty to investigate serious offences committed by an individual perpetrator under Article 3 of the European Convention on Human Rights. Significantly, the judgment unanimously confirms that breach of this duty by an investigating police force can trigger a human rights claim which could result in a compensation award if successful. The level of criminal severity to engage the duty and the extent to which investigative failings alone could trigger a claim are not at this stage clear and will require careful analysis by affected parties in the future.
The case stems from earlier decisions to award and uphold damages under Section 7 and 8 of the Human Rights Act to two victims of John Worboys, the black cab driver who committed a series of sexual offences against women, following accepted failings by the Metropolitan Police arising during the course of its investigation.
Inhumane or degrading treatment in breach of Article 3
Lord Hughes considered that the type of crime which could engage an Article 3 duty to victims by investigating police forces as having to pass ‘a minimum of severity’ test (paragraph 128) which will be dependent on all the circumstances of the case. The severity of crime suggested by Lord Hughes appeared to be a low one and stands in contrast to Lord Kerr’s belief that there is no serious possibility that low level crimes will become subject to claims under the Human Rights Act (paragraph 53).
Whilst the vast majority of violent and sexual offences will undoubtedly fall within the Article 3 duty to investigate, Lord Hughes went much further and left open the prospect that less serious crimes like burglary, car theft and fraud could become subject to claims should police forces fail to investigate. Lord Mance accepted that it would not be easy to predict where the minimum level of severity falls within any individual case (paragraph 151).
The judgement rebuts arguments that an avalanche of human rights-based claims will now follow on the basis that only ‘egregious and significant’ (paragraph 29) errors in an investigation will give rise to a claim for breach of Article 3. There is no requirement for any systemic defects to be present to constitute a breach and simple investigative errors or isolated omissions will not be sufficient to support claimants. Lord Hughes considered that applications for summary judgement be obtained for spurious claims (paragraph 132).
The duty to investigate credible reports of crime by victims caused by individuals and not just state agents is cemented in the Supreme Court’s decision. Lord Mance considered that the victims of crime may not necessarily be confined to those who have directly suffered but can extend to third persons who suffer foreseeably as a result of a failure to properly investigate paving the way for claims brought by victims’ families and countless other categories of people capable of satisfying the foreseeability test.
Negligence and Hill
The long held common law view that the police are exempt from liability for negligent investigation, as supported in Hill v Chief Constable of West Yorkshire  AC 53 remains intact, just. There is no direct criticism in the Supreme Court decision and claims for personal injury damages by victims against police forces appear to remain defendable for reasons of public policy.
However, the Supreme Court decision refers to a lack of evidence to support the authority in Hill with Lord Hughes considering that it is the action of not carrying out the requisite investigation which will likely lead to a diversion of resources (paragraph 132) with Lord Kerr considering the duties under Article 3 will only improve policing (paragraph 72).
The Supreme Court rejected entirely the argument that liability under common law and liability under the Human Rights Act ought to run in harmony.
It is stressed in the judgment that ‘compensation is by no means automatically payable for breach of the article 3 duty to investigate and prosecute crime’ (paragraph 63). Investigative failures, the likes of which were catalogued and accepted by the police in the Worboys investigation, do warrant the award of damages to victims. The level of damages to be awarded is not based on established tortious principles as can be observed by the relatively low sums of £22,250 and £19,000 awarded respectively to the two victims of Worboys by the High Court. Compensation is instead geared towards ‘the upholding of standards’ concerning the discharge of the state’s duty to conduct proper investigations into criminal conduct which falls foul of article 3’ (paragraph 65).
The Supreme Court decision will have far reaching implications for police forces in both historic and future investigations into serious crime. The competence of investigations into crimes committed by the likes of Barry Bennell and following the Rochdale grooming scandal may well come to be re-examined via human rights litigation. Whilst the Lords do not appear to anticipate a wave of human rights claims being made against police forces, the positive duty to investigate serious crime and risk of liability in substandard investigations may lead to a re-think of how police forces categorise and commit resources to the investigation of crime. This is, of course, all set against a background of well reported public funding cuts and budget restrictions.
It is, unfortunately, inevitable that future litigation designed to expand on this judgment – and particularly the words of Lords Hughes and Mance – will follow.
This decision follows hot on the heels of the Robinson judgment last week. Plexus Law regularly provides bespoke training to police forces. Given that both decisions may significantly affect civil actions against the police in the future, together with the need to adequately budget for any changes, should you require specific training on these issues, one of our Partners would be happy to assist. Our contact details are below.
Andrew Steel, Partner
T: 0161 2457 965 | E: firstname.lastname@example.org
Matt Smith, Partner
T: 0161 2457 966 | E: email@example.com
Simon Hills, Partner
T: 0113 4681 633 | firstname.lastname@example.org
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