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Be in no doubt, this was a resounding defeat – particularly the finding that the Commissioner me-individualwanted to avoid most: a duty to effectively investigate individual allegations of ill-treatment reaching the art 3 threshold against whoever is said to have perpetrated it. The Metropolitan Police threw everything it could muster at this appeal and not even one silk was enough. Lord Pannick QC, fresh from his success in Miller, was drafted in to lead Jeremy Johnson QC, who himself had been lead counsel in the courts below. Then the Government joined in, instructing James Eadie QC to intervene in support of the appeal.

The State manfully attempted to pick at the bones of the Strasbourg case law. However, a review of the authorities led to the inexorable conclusion that there was a clear and constant line of Strasbourg jurisprudence which (per Lord Kerr, at [48]):

“[e]stablish[es] that the state is obliged under art 3 to conduct an effective investigation into crimes which involve serious violence to persons, whether that has been carried out by state agents or individual criminals. Further, in order that the protective right should be practical and effective, an individual who has suffered ill-treatment contrary to art 3 has a right to claim compensation against the state where there has been a failure by state authorities to conduct a sufficient investigation into the crime.”

That result “could not be clearer”. It was “incontestably clear” (per Lord Kerr at [59] and [58]). On balance, the Commissioner and the Home Secretary surely knew it. This was about limiting liability to the maximum possible extent or, as they would put it, holding back the “floodgates” of future litigation.

The classic floodgates argument found favour with Lord Hughes, at least to the extent that he would have confined art 3, absent alleged state complicity, to a duty to have effective systems in place to deal with art 3 ill-treatment (which he found had been breached in any event). In considering the severity of ill-treatment required to engage art 3, in the absence of alleged state complicity, he concluded (at [138]) that allegations of the majority of violent and sexual offences would be covered (with the possible exception of indecent assault) – that is surely right. To that list one should add allegations of most “modern slavery” offences which would engage art 4. In addition, there are obvious overlaps with the requirements of art 2.It follows that the potential reach of an operational duty whoever the perpetrator is significant.

In recognition of the policy arguments mounted in support of the appeal, it was repeatedly emphasised that not every failing in an investigation will be actionable and, in my view it is clear that the test for liability is more than mere negligence (but cf Lord Hughes at [135]). The majority were clear that a failing must be “conspicuous or substantial” or “really serious”, “egregious” or “obvious and significant”. Given the inherently factual nature of assessments under the Convention, it is difficult to see what more could be said without making the test for liability overly prescriptive. The suggestion, which Lord Hughes endorsed, that this invites undue examination of “delicate and difficult” decisions is too often exaggerated.  As Lord Kerr put it at [72]:

“… Nothing in [the Strasbourg] case law supports the notion that a charter has been created for the examination of every judgment or choice of strategy made. As I have said, only obvious and significant shortcomings in the conduct of the police and prosecutorial investigation will give rise to the possibility of a claim. There is no reason to suppose that courts will not be able to forestall challenges to police inquiries based on spurious or speculative claims.”

It is well-established that an effective investigation has at least to be capable of identifying and punishing perpetrators. But, as Lord Neuberger acknowledged, it has also been said that the rigour demanded of an art 3-compliant investigation is “similar” to but by definition then, not the same as investigations into state complicity. Laws LJ ([2015] EWCA Civ 646, [45] et seq.) characterised this as a “sliding scale”, where the requirements of an effective investigation are most demanding at the top, e.g. investigations into state-sponsored torture lessening progressively down to negligence at the bottom. It will be for the courts below to work out just where less clearly egregious cases than those of DSD and NVB fall on that scale, but reading the judgment as a whole, the scope for doubt should not be overestimated.

On any view, the protective arm of the law just got a bit longer and once again, that is thanks to the Human Rights Act 1998. The Convention is focused on ensuring that certain minimum standards are adhered to by the State so that citizens are properly protected from really serious harm. It also ensures that proper steps are taken in an effort to bring those responsible to justice. That means not allowing the authorities to play lip-service to their own practices and procedures, as the Metropolitan police did here. Critics will see this as another example of the courts not appreciating the realities of policing. Lord Kerr blew down that particular straw man with gusto when he said (at [71]):

“Carrying out police investigations efficiently should not give rise to a diversion of resources. On the contrary, it should lead to more effective investigation of crime, the enhancement of standards and the saving of resources. There is no reason to suppose that the existence of a right under art 3 to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and to deter, indeed eliminate, the making of such grievous mistakes.”

All told, real questions ought to be asked about the decision to pursue this appeal. Yes, the Metropolitan Police had said early on that they would not seek to recover the damages already paid to DSD and NVB, but the shadow of ongoing litigation remained. Police forces and others around the country have declined meaningfully to engage in pre-action correspondence in relation to similar Convention claims pending the outcome of this appeal. At a time when claimants continue to be refused legal aid for objectively more meritorious claims against the state, the cost of the state continuing with the appeal cannot be ignored either. That is especially so when cost implications were a key part of the case for the appeal. It is undoubtedly right that important questions of law are resolved whoever is asking them. However, this appeal was premised on an uncertainty that did not really exist.

This ruling was a victory, first and foremost, for women by women. DSD and NVB’s case was supported by a coalition of NGO-interveners all specialising in responding to violence against women (Rape Crisis England and Wales, End Violence against Woman Coalition, Southall Black Sisters, and the Nia Project), as well as Liberty. They and the NGO interveners were represented throughout by leading, all-women, legal teams, which included two partners, Harriet Wistrich and Sarah Ricca, as well as two silks, Phillippa Kaufmann QC and Karon Monaghan QC. Everything about this litigation means that those optics matter.

After the judgment, it was reported that London has seen a 20% rise in the number of reported rapes in the last year. The Met has admitted that this is a development it “doesn’t fully understand”. This defeat must focus minds. Time’s up for the state trying to avoid its duty to effectively investigate complaints of rape (and other forms of serious harm) not just in structure but also in practice.