A ‘landmark court case’ declared The Telegraph; ‘a far-reaching precedent’ heralded The Guardian. For once, it seemed the full spectrum of the British press was unanimous: the Supreme Court’s decision in Commissioner of Police of the Metropolis v DSD and Anor  UKSC 11, delivered on 21 February 2018, is a big deal.
But is it really? And if so, why?
The decision stems from a claim brought by two victims of John Worboys, a London black cab driver who committed, in the court’s words, ‘a legion of sexual offences on women’ between 2003 and 2008.
The victims, identified in the proceedings as DSD and NBV, sought damages from the Metropolitan Police, due to a litany of egregious failures in the course of investigating their complaints. The worst of those errors included failing to obtain available CCTV footage, failing to interview a key witness, and extraordinarily, failing to record the name and registration details of Worboys when he dropped off one of his victims (DSD) at the police station immediately after an attack.
Even though the failures were admitted by the police, a standard action in the tort of negligence would have been doomed to failure. There is a long line of authority (starting with Hill v Chief Constable of West Yorkshire Police  1 AC 53 and recently confirmed in Michael v Chief Constable of South Wales Police  AC 1732 – itself a Supreme Court decision) which provides that the police are immune from private suit due to negligent failures in the conduct of many of their public functions. In broad terms, it would not be ‘fair, just and reasonable’ to impose a duty of care on the police in relation to their investigations of crime, which can often involve making complex and finely balanced judgment calls.
The HRA route
Therefore the claimants took a different route to establishing police liability. Their action was brought under ss 7 and 8 of the Human Rights Act 1998 (HRA), which enables claims for damages to be pursued in the UK courts where there has been a breach of an Article of the European Convention on Human Rights (ECHR). The structure of the argument can be summarised in the following series of propositions:
i. Article 3 of the ECHR prohibits torture, and inhuman or degrading treatment or punishment.
ii. Aside from prohibiting such treatment when perpetrated by the State (the negative obligation), Article 3 also requires the State to take certain measures to protect its citizens from such treatment (the positive obligation).
iii. That positive obligation has two aspects. First, it involves a duty to have in place a system of laws and procedures whereby such treatment can be investigated, prosecuted and punished (the ‘systems duty’). Secondly, in any particular case it involves a duty to investigate effectively allegations of crimes involving treatment which is prohibited by Article 3, and take appropriate action thereafter (the ‘operational duty’).
iv. The sexual offences committed by Mr Worboys against DSD and NBV constituted treatment prohibited by Article 3.
v. Accordingly, the positive operational duty under Article 3 was triggered, requiring the police to carry out an effective investigation into their complaints.
vi. In this case, there were serious flaws in the way the police had handled and investigated their complaints. Accordingly, the police had breached the positive operational duty under Article 3, and were required to pay damages to DSD and NBV.
What broke new ground
Set out in that way, the argument seems clear and logical, with little reason for contentious dispute. However, it did break new ground in UK human rights law.
First, until now, it has been relatively clear that the police have an operational duty to investigate when it is arguable that there has been a breach of Article 3 by the State or its agents. However, until this claim it had never been authoritatively and finally confirmed in the UK courts that the duty could also arise in respect of inhuman/degrading conduct perpetrated by a private citizen.
Secondly, although there is a line of authority indicating that an operational duty can arise in respect of certain conduct by private citizens in order to prevent such conduct (see, eg, Osman v United Kingdom (1998) 29 EHRR 245 and Van Colle v United Kingdom (2013) 56 EHRR 23), the duty being argued for in this case was not anticipatory. It was a duty to carry out an investigation after the relevant treatment had occurred.
Finally, and perhaps most importantly, the decision confirms the right of individual victims of crime to seek compensation from the police on human rights grounds when their investigation is handled badly. That is new in UK law, and it could have far-reaching implications. Director of Liberty Martha Spurrier described the development in an opinion piece for The Guardian as ‘a huge victory in the struggle to end violence against women and girls’. That it may well be, but in fact the decision applies to anyone – male or female – who has been a victim of a crime which involves the infliction of inhuman/degrading treatment.
The leading judgment was given by Lord Kerr, and it reads confidently. He is clear that recent authorities from Strasbourg (in particular MC v Bulgaria (2005) 40 EHRR 20) confirm that a positive operational duty – owed to individual victims – to investigate properly the conduct of other private citizens which infringes Article 3 does exist, and that breach of such duty could entitle the victims to compensation.
The Metropolitan Police had relied heavily on the absence of a common law duty of care to individuals who might suffer injury due to a criminal’s activities (pursuant to Hill and the subsequent line of cases). It was said that this prohibition in common law militated against there being a positive operational duty owed to individual citizens pursuant to the HRA 1998, as contended for by DSD and NBV. It was argued that the two systems ought to be in harmony, and that the public policy reasons for not imposing a common law duty of care on the police also applied in the human rights claim context.
The main public policy argument is that the police need to be free to conduct their investigations in a non-defensive manner. Investigative decisions should be based on the facts of the case and the available resources, and not based on concerns as to how those decisions might be viewed by the courts. Similarly, it would be unfortunate if police resources were diverted from its primary crime-fighting function – either to head off such criticism, or to combat claims in the courts after the event.
Lord Hughes, who agreed that the Metropolitan Police’s appeal should be dismissed but dissented on the reasoning, put great stock on that argument (see paras 131-132 and 134 of his judgment). However, it was rejected by the majority. Lord Kerr said, at para 72: ‘… 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 support that courts will not be able to forestall challenges to police inquiries based on spurious or speculative claims.’
The possibility of the floodgates opening – of a ‘lawsuit bonanza’ as termed by The Sun – is one of the main reasons this case has attracted such attention. Is the fear justified?
Judges are often loathe to accept floodgates arguments. That is understandable when, on paper, the relevant principles appear sensibly confined and straightforward to apply. What is there to fear when only investigations into crimes involving inhuman/degrading treatment (ie the very serious treatment prohibited by Article 3) are able to be challenged? Why should the floodgates open when only ‘obvious and significant shortcomings… will give rise to the possibility of a claim’?
Those of us at the junior end of the Bar might point to the flood of cases in which courts have had to consider whether or not a procedural error in civil litigation was ‘trivial’, or conversely ‘serious or significant’ (in the aftermath of Mitchell v News Group Newspapers  EWCA Civ 1537 and Denton v TH White  EWCA Civ 906) or perhaps wryly observe that Lord Kerr’s optimism does not pay due respect to the tenacity of claimant lawyers in the fearless pursuit of their client’s interests.
Certainly, it has already been suggested by the police that the spectre of more litigation might have an impact on police resource decisions. Speaking after the handing down of the judgment, Deputy Commissioner of the Metropolitan Police Sir Craig Mackey said that there was ‘no doubt’ that the decision ‘will have implications for how we resource and prioritise our investigations’, with the potential for resources to be moved away from fraud investigations, for example, to cases involving treatment prohibited by Article 3.
In any event, this decision is clear. It is to be hoped, as always, that the principles that have been laid down will protect both the interests of justice in individual cases where things went badly wrong, and the wider societal interest in having a thriving (rather than beleaguered) police force which can effectively protect us all.
Contributor Matthew Flinn is a barrister at 1 Crown Office Row