by Malcolm Johnson, Hudgell Solicitors
John Worboys, a taxi driver committed a series of sexual offences against women between 2003 and 2008. DSD was among his first victims and the other party, NBV became his victim in July 2007. Many others were attacked by him between 2003 and 2007 and yet more after NBV was assaulted.
DSD and NBV brought proceedings against the Commissioner of the Metropolitan Police Service (MPS) for the alleged failure of the police to conduct effective investigations into Worboys’ crimes. The claims were brought under sections 7 and 8 of the Human Rights Act 1998 (HRA). It was alleged that the police failures in the investigation of the crimes committed by Worboys constituted a violation of their rights under article 3 of the European Convention on Human Rights (ECHR). This provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” At first instance, the Claimants succeeded. An appeal by the MPS was dismissed by the Court of Appeal and now, the MPS appealed to the UK Supreme Court.
All five members of the UK Supreme Court dismissed the appeal, but Lord Hughes’ reasoning differed from the majority and Lord Mance expressed caveats. Lord Kerr gave the lead judgment. He summarised the case in seven questions, to which he gave answers.
Question 1 – was the duty to protect a person such as DSD or NBV a systems duty or an operational duty?
Lord Kerr said that in MC v Bulgaria (2005) 40 EHRR 20 the European Court of Human Rights (ECtHR) had decided that article 3 of the ECHR gave rise to a positive obligation to conduct an official investigation. Member states had a positive obligation inherent in articles 3 and 8 of the ECHR to enact criminal-law provisions, effectively punishing rape and to apply them in practice through effective investigation and prosecution. The duty was both structural and operational in nature.
The ECtHR had said in other cases that it was not concerned with “allegations of errors or isolated omissions in the investigation”. It accepted that it could not replace the domestic authorities’ assessment of the facts of the case, and that it could not decide on the alleged perpetrators’ criminal responsibility. However, the ECtHR said this because it was a supra-national body. There were obvious limitations on its ability to examine deficiencies in a national police force’s investigation. National courts (i.e. the court at first instance and the UK Supreme Court) were not so constrained.
Lord Kerr said that this case provided the perfect example of a national court making this kind of assessment. The court at first instance had heard detailed evidence of the errors that had been made by police in the investigation of Worboys’ crimes. It was in a position to form a judgment as 13
to the impact of those errors on the Claimants’ cases, and it was open to that court to find that the errors were so serious that a violation of article 3 was established.
Lord Kerr did accept, however, that simple errors or isolated omissions would not give rise to a violation of article 3. Only “conspicuous” or “substantial” errors in investigation would qualify. Put another way, those errors had to be “egregious” and “significant”.
In the present case, there were both structural and operational errors. Significantly, the court at first instance had found that if the operational failings had not occurred, the police officers involved in the investigation would have taken steps which would have been capable of identifying and arresting Worboys.
Question 2 – Was state complicity a prerequisite for a duty under article 3?
Lord Kerr said that the positive obligations under article 3 were not solely confined to cases of ill-treatment by state agents, i.e. police brutality. They included crimes committed by private citizens such as Worboys. This was clear from ECtHR law.
Question 3 – was there a right to claim compensation against the state?
Lord Kerr said that compensation was by no means automatically payable for breaches of the article 3 duty to investigate and prosecute crime. In many cases the ECtHR had treated the finding of the violation as, in itself, just satisfaction under article 41.
However, the award of compensation for breach of a Convention right served a purpose which was distinctly different from that of an order for the payment of damages in a civil action. Whereas civil actions were designed essentially to compensate claimants for their losses, human rights claims were intended rather to uphold minimum human rights standards and to vindicate those rights.
The inquiry into compliance with the article 3 duty was first and foremost concerned, not with the effect on the Claimant, but with the overall nature of the investigative steps to be taken by the State. In this case, the catalogue of failures was considered to warrant the award of compensation to the Claimants, irrespective of the fact that they had received damages from both Worboys and CICA.
Question 4 – Why, if there was no common law duty of care on the police to investigate a crime, should there be HRA liability?
As the common law stood, there was no general duty of care on the police to identify or apprehend an unknown criminal, nor a duty of care to individual members of the public who might suffer injury through the criminal’s activities. The MPS argued that the exemption from liability of the police at common law should be extended to claims advanced under the HRA so that the two systems should be in harmony.
Lord Kerr would reject that argument for two reasons. In the first place, the bases of liability (HRA/common law) were different. Secondly no assumption should be made that the policy reasons which underlay the exemption of the police from liability at common law, applied also to liability for breach of Convention rights. 14
Question 5 – Should the case be left to the ECtHR to decide?
Lord Kerr said that the domestic courts of the UK, were obliged to give effect to (or refuse to give effect to) Convention rights as a matter of domestic law. The fact that there was no direct authority from the ECtHR on a point did not preclude the court from making a judgment.
Consequently Lord Kerr would dismiss the MPS’ appeal. Lady Hale and Lord Neuberger agreed with him.
Lord Hughes agreed to dismiss the appeal of the MPS. However in a very lengthy judgment analysing the development of the law in this area, he said that only structural errors should form the basis of an article 3 claim, not operational ones. Nonetheless, in the present case, what had gone wrong was plainly structural, which was why he would dismiss the MPS’ appeal in any event.
Lord Mance agreed with the majority of the court, but expressed some caveats:-
- • The ECtHR had reiterated that the “scope” of the State’s positive obligations might differ between cases where treatment contrary to article 3 of the ECHR had been inflicted through the involvement of State agents as opposed to cases such as this one, where violence was inflicted by private individuals.
- • The investigative duty currently under consideration should not be confused with the type of duty found in the case of Osman v United Kingdom (1998) 29 EHRR 245, which was a duty that fell on the state to act in the face of a real and immediate threat imperilling the life or bodily well-being of a potential victim.
Malcolm Johnson, Hudgell Solicitors
To read the full judgment online, go to
Commissioner of Police of the Metropolis v DSD and NBV [2018] UKSC 11