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In March 2017, the Supreme Court (sitting in a panel comprising Lord Neuberger, glasson_j_145617_bw_indmemLady Hale, Lord Mance, Lord Kerr and Lord Hughes) heard the appeal of the Metropolitan Police Service (“MPS”) in the case of Commissioner of Police of the Metropolis v DSD & Anor.   It is a critical case in determining the scope of the police’s duties under ECHR, art 3 in relation to acts committed by a private individual without the involvement or complicity of the state.

The factual background

The claimants were both victims of John Worboys, the so called ‘black cab rapist’.  Both were subjected to serious sexual assaults by Worboys.  The claimant in the first case was one of his earlier victims and the claimant in the second case one of the later ones.  Worboys attacked over 100 women before he was finally apprehended.  He was convicted and given an indeterminate sentence of imprisonment.  Both claimants received awards of compensation from the Criminal Injuries Compensation Authority.  Subsequently they each brought actions against the MPS for failure to conduct effective investigations into allegations of crimes committed against them, seeking damages and declarations under the Human Rights Act 1998 (“the HRA”), ss 7 and 8 on the grounds that the police investigations had been so significantly flawed that they constituted violations of the duty to investigate inherent in the right under ECHR, art 3 not to be subjected to inhuman or degrading treatment.

The judgments below

Green J gave judgment for the claimants on the basis of serious systemic failings and operational failures by the police: [2014] EWHC 436 (QB).

In the Court of Appeal ([2015] EWCA Civ 646 [2016] QB 161) Laws LJ (with whom Lord Dyson MR and Kitchin LJ agreed) robustly rejected the MPS’ appeal from Green J’s finding in favour of the claimants.  Laws LJ observed at the outset of his judgment that “[t]he restrictive reading which the MPS would attribute to art 3 allows no real weight to be given to what may be thought of as fundamentals of a civilised constitution: the rule of law, and the security and protection of the people.”. [13]

Whilst emphasising that “[t]he rights which the Convention guarantees are enjoyed against the state, and only the state. It is important to recognise that ill-treatment by a non-state agent, however grave, does not of itself constitute a breach of art 3” [43], Laws LJ went on to comment that “it is surely inherent in the Convention’s purpose that the state is to protect persons within its jurisdiction against such brutalities, whoever inflicts them. It is therefore no surprise that the Strasbourg court has interpreted art 3 so as to provide safeguards that are broader than the bare prohibition of acts of torture or gross ill-treatment by servants of the state.”  He concluded that “there is perhaps a sliding scale: from deliberate torture by state officials to the consequences of negligence by non-state agents. The energy required of the state to combat or redress these ills is no doubt variable, but the same protective principle is always at the root of it. The margin of appreciation enjoyed by the state as to the means of compliance with art 3 widens at the bottom of the scale but narrows at the top. At what may, without belittling the victim, be called the lower end of the scale where injury happens through the negligence of non-state agents, the state’s provision of a judicial system of civil remedies will often suffice: the individual state’s legal traditions will govern the means of compliance in the particular case. Serious violent crime by non-state agents is of a different order: higher up the scale. In these cases, which certainly include D and V, a proper criminal investigation by the state is required.” [45]

The appeal to the Supreme Court

The decision by the MPS to appeal the Court of Appeal’s judgment attracted some criticism –https://www.theguardian.com/uk-news/2017/mar/10/police-appeal-against-ruling-in-favour-of-worboys-survivors.  However, in bringing the appeal, the MPS undertook not to seek the recovery of the damages awarded by the High Court and also to pay the claimants’ costs.

The MPS brought in Lord Pannick QC to lead on the appeal whilst the Home Secretary intervened and instructed James Eadie QC.  The Supreme Court refused the MPS permission to appeal on its initial ground of appeal which was premised on its argument that the positive obligation (which they accepted arose under the ECHR by operation of art 1 in conjunction with art 3) did not arise under the HRA because art 1 is not one of the rights contained in schedule 1 of the HRA.  The MPS however then adopted the arguments advanced by the Home Secretary and the issues for the appeal were:

  1. Whether there is an obligation under the HRA, s 6, read with ECHR, art 3, to investigate ill-treatment which has been perpetrated by a private individual without any complicity of a public authority and/or;
  2. Whether in the case of such ill-treatment any positive obligation is confined to a requirement to put in place the necessary structure to enable such investigation to be conducted but does not extend to the conduct of an individual investigation into a particular alleged crime.

The Home Secretary argued that the appeal should be allowed for policy reasons as otherwise an unreasonable burden would be placed on the police.  Interestingly no evidence was adduced to support that submission.  The Home Secretary also argued that by allowing the appeal, the Supreme Court would maintain conformity the position regarding the liability of the police for investigative failures under the HRA and their liability at common law.  The Government also argued that the Strasbourg jurisprudence was unclear and that therefore it was appropriate for it to be resolved by Strasbourg rather than the Supreme Court.

As well as permitting the Home Secretary to intervene, the Supreme Court gave permission for Liberty, Rape Crisis England and Wales, the End Violence Against Women Coalition, the Southall Black Sisters and the Nia Project to intervene.  Together with the claimants, they argued that the Strasbourg jurisprudence was in fact clear and that the MPS’s appeal should be dismissed.

No indication has as yet been given as to when the Supreme Court will deliver its judgment.