Commissioner of Police of the Metropolis v DSD and Another  UKSC 11 (21 February 2018)
The United Kingdom Supreme Court has awarded damages to two victims of crime who brought proceedings against the Metropolitan Police Service for substantial failures to conduct an effective investigation into a number of sexual assaults. The decision aligns with a consistent line of authorities from the European Court of Human Rights regarding the nature and scope of the State's duty under article 3 of the European Convention for the Protection of Human Rights (ECHR).
The applicants were victims of serious sexual assaults by the same offender, a London cab driver. The sexual assault of one applicant occurred in 2003 and other occurred in 2007. The offender committed “a legion of sexual offences on women” between 2003 and 2008. There were significant failures in the police investigation of the crimes. Prior to this human rights action, the applicants had both received an award of compensation from the Criminal Injuries Compensation Authority and recovered compensation from the offender.
The applicants brought a claim against the Metropolitan Police Service for an alleged failure to conduct effective investigations pursuant to the:
- Human Rights Act 1998 (UK), sections 7 and 8, which together allows an individual who claims that a public authority has acted in a manner that is incompatible with their rights under the ECHR to bring proceedings and be awarded damages; and
- European Convention for the Protection of Human Rights, article 3, which provides that no person should be subjected to torture or to inhuman or degrading treatment or punishment.
The police appellants argued that:
- the duty under the Human Rights Act 1998 (UK) and the common law should be consistent and that the common law position was that the police held no duty of care to individual members of the public who suffered injury due to illegal activities of a non-state individual;
- there were public policy reasons why such a duty of care should not be recognised at common law (such as the police needing to be free to conduct their investigations in a non-defensive manner) and that such a duty could be adequately enforced through a disciplinary regime;
- article 3 of the ECHR does not extend to operational conduct of the police when investigating the crimes of non-state individuals and argued that a narrow interpretation of the article should be adopted; and
- the positive obligation under article 3 of the ECHR was limited to the police to implement legal structures to ensure that a proper investigation can occur.
The respondents argued that:
- the common law and Human Rights Act 1998 (UK) position in relation to the duty of care owed by police to individual members of the public is a justiciability issue that was resolved when the UK Parliament incorporated the ECHR into domestic law;
- the public policy issues raised by the appellant did not apply in relation to the Human Rights Act 1998 (UK) as the aims underlying conventions and domestic legislation are different; and
- the narrow framing of the protective duty under article 3 of the ECHR proposed by the appellants was not only untenable, but inconsistent with clear authority from the European Court of Human Rights.
The court found that article 3 of the ECHR contained a positive obligation for police to conduct effective investigations into crime committed by individuals that caused harm to another individual. The leading judgment was given by Lord Kerr, with Lady Hale and Lord Neuberger in agreement. Lords Hughes and Mance agreed that the appeal should be dismissed but with different reasoning expressed in their judgments.
The scope of the duty owed pursuant to article 3 of the ECHR
In assessing the nature of the duty in article 3 of the ECHR, Lords Kerr, Neuberger and Lady Hale had particular regard to the European Court of Human Rights decision authority MC v Bulgaria (2005) 40 EHRR 20. Lord Kerr cited paragraph 151 of MC v Bulgaria as authority for the proposition that the duty owed under article 3 of the ECHR was not limited to criminal actions of state agents.
Lord Kerr acknowledged Lord Hughes' concerns about the source and extent of the obligation found by the European Court of Human Rights for the police to investigate third party offending, however stated that the existence of the obligation is not contentious, only when the duty is owed.
In their judgments, Lords Kerr and Neuberger (with Lady Hale in agreement) differentiated structural failures of the legal system (systematic failures) from operational failures but rejected the appellant's argument that an individual in the applicant's position needed to establish a significant defect in the investigation was attributable to a systematic failure. In the judgments of Lords Kerr and Neuberger it was clearly stated that an individual in the applicants' position would only need to establish that a serious defect in the investigation had occurred. Lord Neuberger further stated in paragraph 96 of his judgment that to narrow the scope of article 3 of the ECHR to only apply to systematic failures could present a court with practical, categorisation and apportionment issues.
Significant investigative failures
In his judgment, Lord Kerr briefly examined the possibility that by accepting a wider interpretation of the duty under article 3 of the ECHR would be to open the floodgates for like claims. Lord Kerr strongly rejected this possibility, stating in paragraphs 29-30, that simple errors or isolated omissions will not give rise to a violation of article 3 at the supra-national and national levels.
The issue of compensation was dealt with in brief by Lord Kerr due to the applicants already receiving compensation. Lord Kerr stated that it is a well settled principle that the award of compensation for the breach of a convention right is different from an award for civil damages. The compensation for the breach of a convention right is to uphold a minimum standard of human rights, whereas in a civil action it is to compensation the individual for loss. Lord Kerr cited Lord Bingham in R (Greenfield) v Secretary of State for the Home Department  1 WLR 673 stating that compensation does not always follow for the breach of a convention right and that the finding of a violation can constitute just satisfaction for the individual. Lord Kerr stated that the grant of compensation to the applicants had been correctly awarded by the UK High Court and affirmed by the Court of Appeal.
This is the final decision in this matter following a series of appeals by the Metropolitan Police Service from the UK High Court in 2014 and the Court of Appeal in 2015. The final decision of the Supreme Court attracted considerable attention in the UK, with several intervening parties making submissions to the High Court including the End Violence Against Women Coalition, the Nia Project, Rape Crisis England and Wales and the Secretary of State for the Home Department.
This decision better aligns the jurisprudence of the European Court of Human Rights with courts in the UK. The Supreme Court had previously confirmed the common law in the UK did not impose a general duty of care on police to individual members of the public to identify or apprehend a criminal, see Michael v Chief Constable of South Wales Police  AC 1732. In doing so it rejected the argument that the Human Rights Act and the ECHR widened the common law. In this case, it rejected the converse argument that the common law narrowed the duty to investigate owed under the Human Rights Act and ECHR, see Lord Neuberger at paragraph 97.
It is unclear how much impact this decision will have in Australia. Australian courts have generally held that police do not owe individual members of the public a general duty of care, although a duty may arise in specific situations such as when a person is in custody. There have been no known Australian court decisions that focus on the actions of state agents following illegal actions by a non-state actor, although police have settled at least one recent case. The violations of human rights cases that have been decided Australian courts focus on violations by state actors, such as inappropriate conduct by police. These cases are usually contained within a disciplinary process by a relevant tribunal, administrative review or criminal proceeding.
However, Australian courts have previously cited European Court of Human Rights decisions when interpreting similar provisions of the International Covenant on Civil and Political Rights (ICCPR). For example, in Wotton v State of Queensland (No 5)  FCA 1457 the Federal Court of Australia cited European Court of Human Rights decisions that interpreted 'degrading treatment' within article 3 of the ECHR to assist in determining its threshold within article 7 of the ICCPR. Therefore, significant cases from the UK courts and the European Court of Human Rights that clarify the scope and nature of obligations under the ECHR can be valuable in the Australian human rights landscape and should not be disregarded.
What is clear is that the absence of human rights protections in Australia equivalent to the Human Rights Act and ECHR deprives victims of crime in Australia of remedies following police failures to protect them.
The full text of the decision can be found here.
Nicola Thomas-Evans is a Graduate Lawyer at Ashurst.