Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11

**Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11** concerned an appeal by the Metropolitan Police Service from findings that its failures to investigate serious sexual assaults committed by John Worboys between 2003 and 2008 violated the article 3 rights of two victims, DSD (assaulted in 2003) and NBV (assaulted in 2007), and gave rise to liability in damages under sections 7 and 8 of the Human Rights Act 1998.

Green J held at first instance that the police failures to conduct effective investigations constituted a violation of the respondents’ rights under article 3 ECHR (which prohibits torture and inhuman or degrading treatment). The judge awarded compensation, and the Court of Appeal dismissed the Commissioner’s appeal. Before the Supreme Court the appellant accepted that both respondents were subjected to serious sexual assault and that there were significant errors by police in the investigations into the crimes against them, but maintained that whatever the outcome it would not seek to recover the compensation already paid.

The principal issue was the nature of the investigative duty arising under article 3. The Commissioner contended that the duty to investigate was a public one owed to the community at large, not to individual victims; that it extended only to ensuring that effective legal structures and systems were in place, not to the operational content of individual inquiries; and that the investigative obligation in relation to individual cases arose only where state agents were complicit in the alleged ill-treatment. The Commissioner further argued that, absent systemic failures, purely operational shortcomings in a particular investigation could not constitute a breach. Consistency with domestic common-law principles, under which the police owe no duty of care in tort to individual victims of crime in respect of the investigation of offences, was said to support these propositions.

The respondents argued that the state has a duty under article 3 to conduct an effective investigation into crimes involving serious violence, that this duty is owed to individuals who suffer prohibited treatment, and that failure to discharge that duty can give rise to a claim for compensation. They submitted that the incorporation of the Convention by the Human Rights Act rendered justiciability arguments founded on common-law policy irrelevant, and that jurisprudence of the European Court of Human Rights established a clear and constant line of authority that the investigative duty applies to serious violence committed by non-state agents and that purely operational failures, if sufficiently serious, can amount to a breach.

Lord Kerr, with whom Lady Hale and Lord Neuberger agreed, examined the Strasbourg case law in detail. The duty to investigate was first identified in **Assenov v Bulgaria** (1998) 28 EHRR 652, para 102, in the context of alleged ill-treatment by police, on the basis that without an ancillary investigative duty the primary prohibition in article 3 would be ineffective. In **MC v Bulgaria** (2005) 40 EHRR 20, para 151, the European Court stated that positive obligations under article 3 cannot be considered limited solely to cases of ill-treatment by state agents, and at para 153 it held that states have a positive obligation “to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution.” Lord Kerr identified this as a binary obligation: to put in place effective systems and to discharge operational duties to investigate properly.

Lord Kerr reviewed subsequent Strasbourg decisions including **Secic v Croatia** (2009) 49 EHRR 18, **Beganović v Croatia** [2009] ECHR 992, **Vasilyev v Russia** [2009] ECHR 2078, **CAS v Romania** (2015) 61 EHRR 18, and **O’Keeffe v Ireland** (Application No 35810/09). He held that these cases, most recently reaffirmed in **BV v Belgium** (Application No 61030/08) 2 May 2017, constituted a clear and constant line of authority to the effect that the state is obliged under article 3 to conduct an effective investigation into crimes involving serious violence, whether perpetrated by state agents or by private individuals. The investigative duty is one of means, not result: the authorities must take all reasonable steps available to secure evidence and must act with promptness and reasonable expedition. Deficiencies in investigation which undermine its effectiveness risk breaching article 3, but only conspicuous, substantial or egregious shortcomings will suffice; mere errors or isolated omissions will not.

Lord Kerr held that the investigative duty is owed to the individual victim, who may claim compensation if the failure to investigate has led to her suffering treatment prohibited by article 3. The fact that other remedies (damages against the offender or a Criminal Injuries Compensation Authority award) might be available does not affect the entitlement to just satisfaction under the Human Rights Act. The purpose of such compensation is not principally to indemnify loss but to uphold minimum human rights standards and to vindicate rights. The common-law policy reasons for denying a duty of care in tort—chiefly the risk of defensive policing, diversion of resources and inhibition of operational choice—do not translate to the Convention context, because Convention claims have quite different aims from civil actions and because section 6 of the Human Rights Act imposes on courts a statutory duty not to act incompatibly with Convention rights.

Lord Kerr rejected the submission that domestic courts should await authoritative guidance from a Grand Chamber of the European Court before recognising such a duty. He held that the Human Rights Act incorporates the Convention rights as domestic rights, which national courts must apply according to their correct interpretation of the domestic statute. The so-called “mirror principle” has been moderated in later authority, and where domestic courts must determine for themselves the existence or otherwise of an alleged Convention right, reticence would amount to an abnegation of the court’s statutory obligation under section 6. In any event, Lord Kerr held that the jurisprudence was clear and constant.

Turning to the facts, Lord Kerr noted that the judge below had found a catalogue of operational failings, many of which were not attributable to training or structural defects but to specific errors such as failure to record relevant details, failure to interview witnesses promptly, failure to collect CCTV evidence, failure to link complaints, and failure to conduct searches. If those failures had not occurred, Worboys would have been capable of being identified and arrested much earlier. These failures were sufficiently serious to constitute a violation of article 3, irrespective of whether they were also accompanied by systemic failures. Lord Kerr emphasised that recognition of liability for really serious operational failures would not lead to an avalanche of claims, because only conspicuous and substantial shortcomings would qualify and because deficiencies must be shown to have led to a breach of the article 3 prohibition.

Lord Neuberger agreed with Lord Kerr and added his own reasons. He held that the wider approach (under which serious defects in investigation, even if purely operational, can breach article 3) was supported by the Strasbourg jurisprudence, which consistently referred to the duty to conduct effective investigations and to take reasonable steps to secure evidence. The narrower approach would give rise to difficult problems of categorisation and apportionment, requiring courts to distinguish operational from systemic failures and potentially necessitating inquiry into other investigations. The wider interpretation was consistent with the requirement that an investigatory duty, to be meaningful, must be a duty to investigate effectively. The restriction that only serious defects (not simple errors or isolated omissions) will suffice, as stated in **Osman v United Kingdom** (1998) 29 EHRR 245, para 116, and reiterated in MC, para 168, and **Mustafa Tunç and Fecire Tunç v Turkey** [2015] ECHR 383, adequately protected against an impossible or disproportionate burden on the authorities. Lord Neuberger emphasised that the Convention test for liability differs from the domestic tortious test and that the two should not be conflated: just as the majority of the Court in **Michael v Chief Constable of South Wales Police** [2015] AC 1732 held that the domestic test should not be widened to achieve consistency with human rights law, so the human rights test should not be narrowed to achieve consistency with the domestic law of tort.

Lord Hughes, whilst agreeing that the appeal should be dismissed, expressed a different view as to the correct test. He traced the origin of positive investigative duties under article 3 to two distinct judicial glosses: first, an ancillary duty to investigate alleged ill-treatment by state agents in order to make the primary prohibition effective (as in Assenov); and secondly, a duty arising from the state’s obligation to afford protection to individuals against serious harm inflicted by third parties. Lord Hughes considered that the rationale underpinning the first gloss did not apply to the second, and that the extension to operational review of investigations into third-party offending lacked clear explanation or justification in the Strasbourg case law. He held that MC v Bulgaria was concerned principally with systemic deficiencies in Bulgarian rape law, that its references to investigative shortcomings were inextricably linked to that structural failing, and that the court’s statement that it was “not concerned with allegations of errors or isolated omissions” was a substantive limitation on the scope of the duty, not a jurisdictional one confined to Strasbourg. Lord Hughes concluded that the proper test was whether the state had a proper structure of legal and policing provision designed to punish serious violence and had administered that structure in good faith and with proper regard for the gravity of the behaviour, and that the considerations articulated in Osman, para 116 (the difficulties of policing, unpredictability of conduct, operational choices as to priorities and resources) pointed strongly away from ex post facto review of investigative decisions.

Lord Hughes emphasised the risks inherent in the wider approach: that it would expose the investigation of most violent and sexual offences (and potentially property offences) to detailed retrospective scrutiny; that it would inhibit robust policing, divert resources and be detrimental to law enforcement rather than a spur to it; and that the difficulties identified in the domestic line of authority from **Hill v Chief Constable of West Yorkshire** [1989] AC 53 through to Michael applied with equal force to Convention claims. He noted that the present case did involve structural failings (institutional failure to implement a written policy on drug-induced rape, lack of training, pressure to write off cases and generic failures to treat complaints seriously) and that the detailed operational errors were largely attributable to those systemic defects. On that basis he agreed that article 3 had been breached, but would have confined the duty accordingly.

Lord Mance, whilst acknowledging the force of Lord Hughes’s critique, concluded that the weight of Strasbourg authority could not be ignored. He observed that the European Court had extended an originally well-rationalised principle (the Assenov ancillary duty to investigate state agents’ conduct) to situations where the rationale did not apply, without formulating a fresh rationale and relying on authority that did not truly support the extension. He noted that the Court had given little consideration to the practical implications for policing. Lord Mance emphasised, however, that the Strasbourg case law repeatedly qualified the duty by stating that the scope of positive obligations might differ as between state-agent and third-party cases, that the Court was not concerned with “errors or isolated omissions,” and that only more serious failings would suffice. He endorsed the distinction drawn by Lord Kerr between minor errors and conspicuous, substantial or egregious shortcomings, which he considered consistent with the Court’s general jurisprudence on the minimum level of severity required by article 3. Lord Mance also agreed with Lord Hughes that the investigative duty under consideration was distinct from the Osman-type duty to prevent a real and immediate threat. He accepted that domestic courts should not normally forge ahead of Strasbourg authority but held that, in light of the repeated and clear statements in the case law, even if their foundations were uncertain, the position was now sufficiently established that domestic courts could apply the wider interpretation. He agreed that the appeal should be dismissed.

In short, the Supreme Court unanimously dismissed the Commissioner’s appeal, holding that article 3 ECHR imposes on the state a duty to conduct an effective investigation into serious crimes of violence and that serious operational failures in such investigations, even absent systemic failings, can constitute a breach of article 3 for which an individual victim may claim just satisfaction under the Human Rights Act 1998, though the Court differed as to the proper scope and rationale of that duty.

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Chernaya v Ukraine [2016] ECHR 1117

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Moohan and Another v The Lord Advocate [2014] UKSC 67
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