Police: Commissioner of Police of the Metropolis v DSD and another (2018)

The Facts

The Claimants, DSD and NBV, were victims of serial rapist, John Worboys. DSD was attacked in 2003 and
NBV was attacked in 2007. Both Claimants reported their assaults to the police. Worboys was arrested
and charged with the assaults in 2008. The Claimants each received compensation from Worboys and an
award from the Criminal Injuries Compensation Authority (CICA).

Both claimants issued proceedings for the alleged failure of the police to conduct effective investigations
into Worboys.

The claims were brought under section 7 and 8 of the Human Rights Act 1998. These provisions allow a
person to bring a claim against a public authority for acting in a way which breached their rights under
the European Convention on Human Rights (ECHR).

At first instance the Judge found that there had been failures by the Metropolitan Police in their
investigation into the sexual assaults committed against the Claimants. These failures constituted a
breach of the Claimants' Article 3 rights (prohibition on torture, and inhuman or degrading treatment or
punishment).

The Police appealed on the basis that the duty to investigate under Article 3 arose only in respect of
cases where the state was complicit in the breach of Article 3.

The Court of Appeal

The Court of Appeal found there was a positive duty under Article 3 to investigate crimes committed by
non-state persons in order to ensure that individuals are protected against ill-treatment of the
seriousness envisaged by Article 3.

It found that there is a sliding scale, ranging from deliberate torture by state officials at the top, to
negligence of non-state officials at the bottom. There is a wider margin of appreciation at the bottom
than the top; however, violent crime such as that experienced by DSD and NBV was higher up the scale
and a proper criminal investigation was required.

The Court also stated that not every failure to investigate will lead to liability under Article 3. Although
the first instance judge’s question of whether in all the circumstances the police investigation had been
reasonable had been a ‘loose’ approach, his overall treatment of the case had been in line with the
scope and nature of the Article 3 duty.

The police appealed the decision and explicitly stated, regardless of the outcome of the Supreme Court,
they would not seek to recoup the compensation and costs already paid to the Claimants.

The Supreme Court

The Supreme Court unanimously dismissed the appeal and held:

1. The positive obligation to investigate allegations of ill-treatment effectively is not solely confined to
cases where allegations have been made against state agents;
2. Article 3 provides a positive duty upon the police to investigate crimes committed by non-state
persons in order to ensure that individuals are protected against ill-treatment of the seriousness
envisaged by Article 3. It is a duty which is owed to individual victims and not a public duty;

3. In order to be an effective deterrent and serve its purpose, the law prohibiting ill-treatment must
be 'rigorously enforced and complaints of such conduct must be properly investigated';

4. The omission of a flawed structural system does not mean deficiencies in the conduct of the
investigation cannot of themselves constitute a violation of Article 3;

5. An award of compensation for breach of a Convention Right is entirely different to an award of

damages in a civil action as a Convention claim and a civil claim have different purposes. A civil claim
is to compensate the claimant for their loss and put them back in the position if the wrong had not
occurred. A Convention claim is to award damages to acknowledge an individual's fundamental
right(s) has been breached and are intended to uphold minimum human rights standards;

6. The public policy reasons which exempt the police from a common law duty of care do not extend to
claims under the Human Rights Act 1998. It is wrong to consider the fair just and reasonable test
when considering whether a duty to investigate under Article 3 should exist. Under the Convention
the police either have a protective duty or they do not.

What can we learn?

 There are both systemic and operational duties to conduct an effective investigation. Serious
failures when conducting an investigation which are purely operational will give rise to a claim.
There does not need to be some form of structural deficiency with the law in order to bring a claim
under Article 3.

 Simple errors, mistakes or omissions will not give rise to a claim under Article 3. Lord Kerr stated
"errors in investigation, to give rise to a breach of Article 3, must be egregious and significant".

 An individual is entitled to bring a claim for compensation for breach under the Human Rights Act
1998 even where there are other available means of obtaining redress e.g. compensation from the
offender and/or the CICA.

 Common law principles do not have to align with Convention principles as claims are issued under
each system for very different purposes.

 The judgment appears to set a new precedent and it is likely there will be a rise in claims where
there are considered to be serious failings in an investigation. Lord Kerr indicated that that "only
obvious and significant shortcomings" in the conduct of the police will result in the possibility of a
claim.

 As a consequence, it is expected that there will be satellite litigation which considers precisely what
constitutes an 'obvious and significant shortcoming', in a similar manner to those cases addressing
whether or not a procedural error in civil litigation was 'serious or significant' in the aftermath
of Mitchell v News Group Newspapers and Denton v TH White.
 Coupled with the decisions of the Supreme Court in this case and Robinson, ongoing cuts to budgets
and resources may lead to increasingly defensive practices and influence how the police resource
and priorities their investigations.
Smith and others v Ministry of Defence [2013] UKSC 41
Facts

This case involved a series of claims brought by the families of troops killed while on duty in Iraq.
The Smith claim arose from the death of UK soldiers on duty in Iraq in Snatch Land Rovers subject to the
impact of an improvised explosive device. Mrs Smith alleged that the Ministry of Defence was in breach
of an obligation under Article 2 ECHR, to safeguard her son’s life, by failing to provide suitably armoured
vehicles. Other soldiers’ families alleged that the Ministry was negligent in failing to provide suitable
equipment.

They asked the Supreme Court to overturn the conclusion of the Court of Appeal that the European
Convention on Human Rights did not apply to the relationship between the UK and its forces off-base
overseas and to uphold the judgment of the Court of Appeal that they can continue their claim for
negligence against the Ministry of Defence.

The Supreme Court considered whether:

1. British soldiers killed during military operations abroad were, at the time of their deaths, within the
jurisdiction of the UK for the purposes of Article 2 of the ECHR;

2. The Ministry of Justice owed a duty to the deceased soldiers at the time of their deaths pursuant to
Article 2 ECHR; and

3. The complaints of negligence are covered by the doctrine of combat immunity and/or it would
otherwise not be fair, just and reasonable to impose a duty of care on the MOD in the circumstances
of this case.

The Ministry of Defence argued first that the Convention ceases to apply when troops step off-base as
they are no longer the jurisdiction of the United Kingdom. In the alternative, they argued that no Article
2 ECHR duty to protect arose at the time of their death. The MOD argued that the negligence claim
should be struck out on the basis of combat immunity and that it would not be fair, just or reasonable to
impose a duty on the MOD in the circumstances of those cases [13].

Held

A unanimous seven judge panel at the Supreme Court held that the deceased soldiers were under the
UK’s jurisdiction for the purposes of Article 2 ECHR at the time of their deaths. The Court further held, by
a majority, that the question of whether a positive obligation to protect life under Article 2 ECHR (or in
negligence) had been breached required examination of the facts. Since these issues must be
determined at trial, the case should not be struck out [77-80].

JUSTICE intervened in this case to urge the Supreme Court to find that the relationship between the UK
and its forces means that they carry the protection of UK law with them overseas, including the human
rights protections in the Human Rights Act 1998. The anomalies created by any other conclusion would
have, in our view, been extraordinary.

All judges agreed unanimously on the jurisdiction issue. The Court reasoned that, following the decision
of the European Court of Human Rights in Al-Skeini v United Kingdom (2011) 53 EHRR 589, jurisdiction
must extend to the troops. In that case, Iraqi citizens who had died as a result of the actions of UK
Armed Forces in Iraq were deemed to be within the jurisdiction of the UK for the purposes of the ECHR.

The Supreme Court stressed that there must be exceptional circumstances for jurisdiction under the
Convention to apply extra-territorially [46]. However, the Supreme Court overturned its earlier
judgment on the issue in R (Catherine Smith) v MoD [2011] 1 AC 1, holding unanimously that soldiers
were under the personal jurisdiction of the UK at all times when serving out of the United Kingdom by
virtue of the fact that the UK exercised full authority and control over them. Yet, the Court accepted
that in its extra-territorial application, the package of rights in the ECHR can be “divided and tailored” to
the particular circumstances of the extra-territorial act in question [48], [77].

The Court held that troops carry the protection of UK law with them while they are on duty by virtue of
the fact that they remain under the authority and control of the UK throughout their service. As
explained by Lord Hope, it would be illogical for actions of troops to be considered state agents for the
purposes of conferring jurisdiction on others through their acts without themselves being within the
scope of our law:

“Servicemen and women relinquish almost total control over their lives to the state. It does not seem
possible to separate them, in their capacity as state agents, from those whom they affect when they are
exercising authority and control on the state’s behalf.”

Had the MOD’s case succeeded, UK Armed Forces could spread the reach of the UK courts for human
rights purposes wherever they might go; but would remain outside their protection themselves.

JUSTICE intervened in this case, represented by Alex Bailin QC and Edward Craven, Matrix Chambers,
Iain Steele, Blackstone Chambers and Herbert Smith Freehills LLP.
Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495
NEGLIGENCE, DUTY OF CARE, POLICE DUTIES, INVESTIGATION OF SUSPECTED CRIME, DUTY OF CARE
OWED TO VICTIMS,

DUTY OF CARE OWED TO WITNESSES

Facts

The claimant and his friend, who were black, were attacked by white youths. The claimant was dealt
with by the police in a way that was subsequently subjected to severe criticism in the report of the
inquiry into the matters arising from the friend’s death. The victim claimed damages against the police
for negligence, false imprisonment, misfeasance in public office and breach of s. 20 Race Relations Act
1976. The judge struck out his action. The claimant appealed. The Court of Appeal allowed his appeal in
relation to three duties of care allegedly owed to him by the police – to take reasonable steps to assess
whether the claimant was a victim of a crime, to accord him reasonably appropriate protection,
assistance and support as a key eye-witness to a serious crime and to afford reasonable weight to the
account that he had given. The defendants appealed to the House of Lords relying on Hill v Chief
Constable of West Yorkshire [1988] 2 WLR 1049.

Issue

Do the police owe a general duty of care to victims and witnesses in respect of their activities when
investigating suspected crimes?

Held

The appeal was allowed and the claimant’s action struck out.

(1) As a matter of public policy, the police owe no general duty of care to victims and witnesses in
respect of their activities when investigating suspected crimes. Such a duty would cut across the
freedom of action the police should have when investigating serious crime.

(2) The core principle of Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 still stand, but they
need to be judged in light of the legal policy and the Human Rights Act 1998.

(3) The three alleged duties of care were inextricably bound up with the police function of investigating
crime and therefore, the claim was struck out.
OSMAN V FERGUSON [1993] 4 ALL ER 344
Facts: Osman was at school. A school teacher developed an unhealthy interest in the boy. The parents
reported the teacher to the police, but the police took no action. The teacher, nevertheless, got fired by
the school. The police were called on several occasions and the teacher had told the police that he was
unable to control himself and would do something which was criminally insane if he was not stopped.
Eventually, the teacher followed Osman home one night and shot him and his father. Osman survived
but his father did not. Osman bought an action for the personal injuries he suffered as a result of the
police force's failure to apprehend the teacher earlier or to provide adequate protection

Held: The Court of Appeal struck out Osman's claim. This was because it was "doomed to fail" on the
basis of applying the Hill test (i.e. this would fall under a policy matter meaning the police did not owe a
duty of care). So, Osman took the case to the European Court of Human Rights. The ECtHR said there
was no violation of Article 2 (the right to life) and Article 8 (the right to respect for private and family
life, home and correspondence), BUT they said there had been a violation of article 6 (the right to a fair
trial). So this case began the article 6.1 controversy i.e. its all about whether or not you are giving people
a fair trial by simply striking out a claim if it concerns the negligence of the police.

⇒ "…where there is an allegation that the authorities have violated their positive obligation to protect
the right to life in the context of their above-mentioned duty to prevent and suppress offences against
the person, it must be established to its satisfaction that the authorities knew or ought to  have  known
at the  time of the  existence of a  real and  immediate  risk to the life of an identified individual"

 In other words, the police will only be negligent if they knew or ought to have known that the
person's life was at risk and failed to do anything about it.

 This is an incredibly high hurdle - it demonstrates that it is unlikely the police will be held to owe
a duty, but does not really help to justify the Article 6.1 controvery.
Osman v United Kingdom Case No 87/1997/871/1083 European Court of Human
Rights

Osman appealed to the European Court of Human Rights contending that the blanket immunity from
actions provided to the police by the House of Lords in Hill v CC Yorkshire was in breach of Art 6 of the
European Convention of Human Rights. Art 6 provides that in determination of civil rights every person
is entitled to a hearing by an independent and impartial tribunal established by law.

Held:

The Court found there had been a violation of Art 6 .The blanket immunity provided by Hill v. CC
Yorkshire constituted a disproportionate restriction on the applicant's right of access to a court or
tribunal. The substantive merits of the case could not be argued before a judge. It should always be
open for claimants to put their case before a judge and a blanket rule which interfered with this right
was not acceptable. The restrictive requirements of proximity were adequate to protect the police from
the majority of claims.
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] All ER
(D) 47 (Feb)

What are the practical implications of the decision?

In this case, the Supreme Court held that there is no general rule denying liability of the police in the
prevention and investigation of crime and that the police owe a duty of care to avoid causing, by a
positive act, foreseeable personal injury to another person in accordance with general principles of tort
law.

The defence lawyers described this as the most important case concerning the police in a generation.
The decision has the potential to affect many other areas of law beyond the core scope of civil liability of
the police, given that broad statements of principle were made as to duties of care in tort law and
concerning the liability of public authorities in particular. Primacy was thus given to ‘orthodox’ tort law
rules, rather than the more recent tendency of courts in balancing policy considerations to determine
whether it is just, fair and reasonable to recognise a duty of care.

This decision may well give rise to a re-calibration of the law in other areas, such as the liability of social
services (see the very restrictive approach of the Court of Appeal recently in CN and another v Poole
Borough Council [2017] EWCA Civ 2185, [2018] All ER (D) 34 (Jan)).

What was the background?

The facts of this case were relatively simple. The appellant, a lady in her late 70s, suffered injuries when,
as a passer-by on a busy street, she was knocked to the ground and fallen on by two policemen and a
suspected drug dealer as the officers struggled to arrest him.

What did the Supreme Court decide?

The Supreme Court unanimously found the police liable for the injuries caused to the appellant. Lord
Reed, giving the lead judgment, dismissed arguments for the defendant that there was a general rule
denying liability of the police when discharging their function of preventing and investigating crime,
holding that this was a misinterpretation of previous cases, in particular Hill v Chief Constable of West
Yorkshire [1988] 2 All ER 238. On the contrary, the police owe a duty of care under the ordinary
principles of negligence as do other persons, to avoid causing foreseeable personal injury to another
person.

Lord Reed’s leading judgment addresses a series of fundamental issues of tort law and public law. The
primary of those is the re-affirmation of the incremental approach to the recognition of a duty of care in
tort law. Lord Reed rejected robustly the notion that the three-stage Caparo test should apply as a
matter of course in all cases of negligence. As Lord Reed underlines, there is no single unitary test which
can be applied in all cases in order to determine whether a duty of care exists—rather the courts should
adopt an approach anchored in precedent and based on the development of the law incrementally and
by analogy with established authorities.

Second, this retreat from the application of the Caparo test by judges in all cases is likely to have an
immediate effect on the way that tort law cases are approached. As Lord Reed noted, the routine
weighing of policy factors, as enshrined in the third limb of the Caparo test, should no longer occur—
such policy factors are only relevant in determining whether a duty of care should be recognised in a
novel situation, when the courts have to consider whether its recognition would be fair, just and
reasonable.

Third, from a public law perspective, Lord Reed seeks to set out clear principles regarding the liability of
public authorities. He underlines the fact that the private law rules of tort apply to public bodies and
private persons alike. Orthodox rules of tort law are thus applicable to public authorities just as much as
they are to a private person, with only certain limited exceptions—for instance where there is statutory
authority for the conduct in question.

Fourth, applying these principles to the police, Lord Reed re-affirmed the so-called omissions principle,
whereby public authorities, like private individuals and bodies, are generally under no duty of care to
prevent the occurrence of harm. As Lord Reed notes, other than in specific circumstances, public
authorities generally owe no duty of care towards individuals to confer a benefit upon them by
protecting them from harm. On the other hand, the police can be liable for negligently causing physical
damage to others. In the instant case, the injury of the appellant was found to have been caused by a
positive act of the police in deciding to conduct the arrest in circumstances in which it was not only
reasonably foreseeable but was actually foreseen by the police that the suspect would attempt to resist
arrest. That reasonably foreseeable risk of injury was sufficient to impose on the officers a duty of care
towards the pedestrians in the immediate vicinity when the arrest was attempted. The judge at first
instance was entitled to have found on the facts that the police had been negligent. The chain of
causation was not interrupted by the suspect’s voluntary decision to resist arrest, as that act was the
very one which the defendant was under a duty to guard against. The Chief Constable was thus found
liable and the case was remitted for assessment of damages.