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Met Police lose 'landmark' Supreme Court appeal

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Increased sentences considered for assaults on emergency workers

Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents) [2018] UKSC 11

On appeal from [2015] EWCA Civ 646

Justices: Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Hughes

The Supreme Court has today given judgement in the above case. The Commissioner of Police of the Metropolis, or Commissioner of the Metropolitan Police, has today lost an appeal against a case brought by two of the victims of John Worboys. They brought a claim for compensation for the alleged breach of their rights, as protected by Article 3 of the European Convention of Human Rights.

The decision will no doubt have a significant effect on Police forces across the country, with the Metropolitan Police already releasing a statement;

“We will now have to consider how we balance our resources effectively to investigate certain crimes. For example, we may need to consider moving extra resources into an Article 3 investigation from other areas, such as fraud”.

Background to the appeal

Between 2003 and 2008, John Worboys, the driver of a black cab in London, committed sexual offences against many women. The respondents were two of his victims and both reported their assault to the police. DSD was one of Worboys’ first victims. She was attacked in 2003. After her assault Worboys was not identified as her assailant. In NBV’s case, following an attack in 2007, Worboys was quickly arrested as a suspect but released without charge. Following a review of sexual assault cases by police in February 2008, cases were identified which involved a particular modus operandi by the perpetrator. This resulted in a police media appeal. This led to DSD and NBV being identified as his victims. Many other women were also identified as being victims of his attack. Worboys was eventually convicted of 19 counts of sexual assault, including the assault on NBV.

Both women brought proceedings against the police, alleging failure to conduct effective investigations into Worboys’ crimes. They claimed that these failures constituted a violation of their rights under article 3 of the European Convention on Human Rights (ECHR), which provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment.

The High Court and the Court of Appeal held that a positive obligation to investigate did exist and that, in this case, this obligation had been breached. Compensation was awarded to the respondents. The Commissioner of Police of the Metropolis appealed to the UK Supreme Court, although it was accepted that, whatever the outcome of the appeal, recoupment of any of the compensation paid would not be sought.

Today's decision

The Supreme Court have unanimously dismissed the appeal by the Metropolitan Police, upholding the original decision that a positive obligation does exist and in these circumstances, compensation was correctly awarded.

However, one of the more interesting points that was considered was whether such a positive obligation applied equally to systematic failings as well as operational failings?

Lord Mance in his judgement suggested that the distinction between operational and systemic failures has been replaced by a distinction between simple errors/isolated omissions and more serious failings. It was irrelevant for the purposes of the decision in this case, as each Judge agreed that the failings in this case were systematic.

However, each Judge considered the point more generally, which will of course have an effect for future claims. Lord Kerr, who gave the lead Judgement, examined the case of MC V Bulgaria (which appears to have been relied upon by the Metropolitan Police, as authority for this issue). Lord Kerr disagreed with the Metropolitan Police interpretation of this and suggested that the positive obligation under Article 3, extends to operational failings as well as systematic failings.

Lord Neuberger and Lady Hale agreed with this decision. Furthermore, Lord Neuberger confirmed that this decision does not undermine the principles established in Hill and Michael (Police immunity). Of course, this has been further considered by the Supreme Court last week in the case of Robinson.

In contrast, Lord Hughes, whilst also dismissing the appeal, had a different view on this question. Lord Hughes disagreed with the interpretation given by Lord Kerr and confirmed that in his view, there was a difference between systematic and operational failings. The Supreme Court summarised the findings in its overview of the case:

“Lord Hughes differs from this view in that he considers there is a positive obligation to ensure that there are appropriate legal structures in place but that there is no operational obligation. ECtHR case law leaves uncertainty as to the source and extent of the investigative duty [117]. The proper test for the positive obligation under article 3 to investigate reports of past violence is whether the state has a proper structure of legal and policing provision designed to punish it when it occurs and has administered that structure in good faith and with proper regard for the gravity of the behaviour under consideration. The test is not whether the investigation was careless or involved mistakes which ought not to have been made [127]. There is a breach of the positive obligation in this case as there were plain structural errors [140].”

Lord Mance, as noted above, in some sense agreed with the approach adopted by Lord Hughes and in short, suggesting that the obligations imposed by Article 3 should be saved for the most serious of failings. Of course, in this case, all 5 Judges agreed that the failings were sufficiently serious in any event.

My thoughts

This is a very important case and the decision will no doubt have a profound effect on the way in which Police forces in this country treat victims of such serious crimes.

When considering this decision alongside the decision in Robinson last week, there can be no doubt that the obligation on Police to investigate crimes seriously has heightened. No longer can the Police seek to hide behind, what was perceived to be a general immunity (see Hill). The ‘Hill immunity’ has been further placed into a very small box and whilst an immunity still exists, it is certainly not at the level that it was once perceived to be.

Of course, for the purposes of this case, the decision focused on significant allegations of rape and sexual assault. These are the ‘type’ of crimes that seemingly now invoke Article 3 of the European Convention of Human Rights. It is in those cases that the Police will now find themselves under much more scrutiny. Examples of similar ‘types’ of cases is difficult to determine but it is likely that allegations of Rape, Murder/death (Although this will be considered as a breach of Article 2), False Imprisonment, Kidnap or even serious/significant assault allegations may suffice.

It is only fair, just and reasonable that in this case, such an obligation was imposed. This will no doubt give belief to the Public that such crimes must be treated seriously by the Police. The fact that Lord Kerr, Lady Hale and Lord Neuberger also confirmed that the obligation will be imposed for operational failings, as well as systematic, will ensure that Officers who are involved with these cases, treat with them with the care, attention and seriousness that they require.

Stephensons Solicitors LLP are a nationally renowned law firm dealing with civil claims for compensation against the Police. If you require help or assistance, speak to our specialist actions against the police and public authorities team on 01616 966 229.