A welcome Metropolitan Police failure

Last Wednesday, the Supreme Court made the media headlines for the right reasons. In Commissioner of Police of the Metropolis v DSD and Another [2018] UKSC 11 it affirmed that under the Human Rights Act 1998, extremely bad investigations into certain serious offences (such as murder, rape and slavery) may constitute “unlawful” conduct by the police. This appeal was one failure by the Metropolitan police to be welcomed.

The facts of the case are well known. The police did very little to investigate a string of allegations of sexual assault by women who usually could not remember quite what had happened. Only when, years later, a few keywords were belatedly put into a search engine, did the police suddenly realise that one cab driver, Mr Worboys, who would offer a drink to many female clients, may have drugged them all and committed hundreds of offences.

The High Court had ruled that two of these victims could receive damages under the Human Rights Act 1998 and the Supreme Court upheld it. The rapes were instances of inhuman or degrading treatment under Article 3 ECHR, and the state's obligations under Article 3 include the prevention and detection of such activities within their jurisdiction. Egregious failure by the police to do either may thus violate article 3 and be "unlawful" under Human Rights Act 1998, s. 6 (1).

The police in fact accepted this much; but they sought to restrict the scope of such an action. First they argued that such police malaise is only actionable where it was other state agents who should have been investigated in relation to the criminal activity in question. The Supreme Court rejected unanimously this argument, and as we shall see, in about as dismissive a fashion as can be imagined. 

By a 3-2 majority, they also rejected the argument that an action only lies in respect of so-called “systemic” failings by the police, as opposed to “operational” ones. That said, even the two dissenters agreed that the instant appeal by the police should be dismissed, since there was copious evidence of systemic failings in any event (Lord Hughes at [140]). Given this, among other points, one can be forgiven for wondering how the case ever reached the Supreme Court in the first place.

But, we should be careful not to confuse this human rights action with that which is (not) available in the common law of negligence. Nor should we confuse the duty properly to investigate serious crimes with the separate duty to investigate possible human rights violations by state agents (whether or not these amount to criminal activities). Indeed, such an eminent lawyer as Lord Mance, the other partial dissenter in DSD, appeared to do just that.

Rather than start with what the remedy is not about, let us start with a few words on what the nature of this action is about. Then we shall see why the Supreme Court got it right on both points.

The nature of the action: a species of positive obligations

The doctrine of positive obligations exists in relation to a number of duties that member states owe to protect their citizens from violations of basic rights. In the field of criminal law, it relates mainly to the efficient reduction of the most serious crimes against the person.

So, the police must take reasonable steps to intervene when they know, or should know, that there is a “real and immediate risk” to the life of an identified person (Osman v United Kingdom (1998) 29 EHRR 245). Not to do would be an “unlawful” act under Human Rights Act 1998, s.6 (1).

But once one accepts a duty to take reasonable steps to prevent some imminent crimes, then one likely accepts that there must be a duty to prosecute such would-be perpetrators effectively, rather than easily letting them walk free.

Then, when one accepts that reduction of serious offending necessitates a minimal level of efficiency by prosecutors, one necessarily accepts that effective police investigations into certain serious allegations are also required.

Lord Hughes recognised this reasoning but disagreed with it. He thought there was clear blue water between preventing imminent crimes and investigating past ones (at [137] – [139]). But there isn’t. One can think of many cases, including the present DSD case, where one could hardly separate the duties. The same police who would fail to investigate the crimes also failed to prevent further crimes. Lord Hughes (at [138]) says that in cases of failed investigations, there is

only … a risk of repetition, whether against [the complainant] or against others; there is generally no immediate danger to an identified person

But this assumes that prevention of crimes is the paradigm example of the duty to take steps to reduce serious crime. The assumption is unspoken, but false. Nothing can encourage someone who may have already committed a serious offence to repeat his conduct more than a half-hearted police investigation, and this applies to other would-be offenders too. More probably, it is effective police investigations into past crimes should be the paradigm case for a duty of crime reduction, whereas failure actually to prevent a particular one should be regarded as the rarity.

Possibly the fact that duties to prevent crime were recognised first in Strasbourg gives the wrong impression that this is the "core" duty and that duties to investgate are somehow "expansions" - but the case law on positive obligations has not developed in a chronological fashion, such that the first types to be recognised are the paradigm instances.

Indeed, before the Osman decision on preventing imminent crimes, the European Court of Human Rights had held the United Kingdom to be in violation of article 3 for maintaining such a wide defence of parental chastisement which prevented effective deterrence of child abuse in the family home (A v United Kingdom (1998) 27 EHRR 611) - although here, of course, the deterence and prevention is indirect at best. 

And if we must criminalise all instances of deliberate serious bodily harm against children in order effectively to protect them, and Lord Hughes himself seems content with the decision in A v United Kingdom (paras [110], [116]),  surely our police must then effectively investigate complaints of such acts after they have been alleged? We can hardly require the state to provide for effective (deterrent) law but not to enforce it. 

So we should not be suspicious of the duty to investigate even if we do think that it seems "different" from the duty to prevent imminent crimes. Rather, as far as the police and prosecutors are concerned, we should recognise duties to prevent, detect and prosecute serious offences effectively as inter-connected duties which conceptually stand together. Of course there may be nuanced differences between the forms of actions, but they are from the same family and each relies for their efficacy on the existence of the others.

This helps us to reject the first argument of the Metropolitan Police in DSD. Since no one suggests that the duties to prevent or prosecute the most serious crimes should be restricted to crimes by state agents, nor should we impose such a restriction on the efficiency of police investigations.

In the end very little was said in DSD about this seemingly unarguable point (just four paragraphs within Lord Kerr’s opinion of some eighty paragraphs), which was quite contrary to Strasbourg jurisprudence as well.

The dissenters in DSD

But there were dissenters on the second point in DSD. Two of the Justices thought that an action should only lie in respect of so-called “systemic” failings. Why?

Lord Hughes and Lord Mance both thought (wrongly) that the availability of a remedy for ineffective investigations emerged in MC v Bulgaria (2005) 40 EHRR 20 by way of confusion in Strasbourg. Lord Mance did not seem to conceptualise this important case (also on half-hearted police investigations of rape) as part of the steady development of the doctrine of positive obligations. Lord Hughes did, but he thought the development to be mistaken (see above).

That seems to explain why they considered themselves able radically to reduce the scope of the human rights action by accepting the second argument of the police, which had not directly been litigated in Strasbourg; indeed, precisely because it had not been litigated directly in Strasbourg. They said that an action can only lie in respect of “systemic” failings, as being apparently the most that they thought they could do to restrict the number of actions which might be brought.

It seems then that we narrowly avoided a serious muddle indeed! Certainly the proposed distinction between “systemic” and “operational” failings would have been arbitrary, as shown by Lord Neuberger.

But again, we can dismiss the argument in terms of consistency. When we consider cases of the police failing to prevent foreseeable serious crimes, or of prosecutors failing to prosecute perfectly viable cases, we do not insist on the errors being “systemic” rather than “operational”. There is no reason to do so in relation to police investigations either. 

State condemnation rather than compensation

Some might still think that some restriction on the human rights action is appropriate, by way of analogy with the restrictive approach which often prevails in negligence cases.

But the analogy is quite misleading. In the private law of negligence, the claimant’s right to sue for potentially large amounts is set against the possible negative consequences of requiring the police to account for their inefficiencies to one individual. That is at least the main battleground. Whether the suit will bring about greater care from the police in other cases might in some cases be a peripheral point.

But the main purpose of the various positive obligations arguments in human rights law is to seek condemnation of the state for failing to protect its citizens from, or failing to deter, serious crime. It is not primarily a question of accountability to one individual. By contrast to the remedy in negligence, this remedy is very much about reducing the possibility of similar errors in analogous cases.

The action is, in short, a public law concern rather than a private one. The successful claimant will not necessarily receive damages at all (a declaration may suffice under the Human Rights Act) and if she does, it will not come close to the amount likely recoverable in a negligence action.

This theme was well understood by the Justices in the majority:

The award of compensation is geared principally to the upholding of standards concerning the discharge of the state’s duty to conduct proper investigations into criminal conduct that falls foul of article 3

Per Lord Kerr at para [65]

Just as the majority of this Court accepted in Michael [a “failure to prevent crime” case – text added] that the domestic tortious test for liability should not be widened to achieve consistency with the human rights test, so should the human rights test for liability not be narrowed to achieve consistency with the domestic, tortious, test.

Per Lord Neuberger at [97]

In fact, these points were already well made in the courts below; indeed nowhere better than in the High Court, where the litigation started. At the end of this long saga, Green J’s initial judgment, in which he considers the Strasbourg jurisprudence, the exact nature of the action, and the precise (and numerous) failings of the police, still stands out as an exceptional piece of judge craft.

Negative media reaction?

Since a recent decision (now subject to judicial review) had been taken by the Parole Board to release Mr Worboys, the decision in DSD was guaranteed even more media coverage than usual. The tone of the coverage probably benefited from that immediate background, too.

After all, one could imagine that certain newspapers would ordinarily have bemoaned the decision taken on human rights grounds, saying that it undermines English common law, will overburden the police and provides another reason to abolish the Human Rights Act; and so on.

But, having spent the previous weeks expressing outrage at all the various things that had apparently gone wrong in investigating, prosecuting and sentencing Mr Worboys, and expressing sympathy with the (truly) brave victims, the normal anti-human rights jargon was seemingly played down.  

Meanwhile, in some sections of the media, questions were asked as to why Mrs May, when she was Home Secretary, intervened to encourage the police to appeal all the way to the Supreme Court.

No doubt Mrs May’s interest, at apparent odds with her support of victims of sexual abuse in other respects, was due to her known human rights scepticism. But presumably concern over police resources was also a factor; and some newspapers which might normally have criticised the human rights decision in DSD did at least find space to quote police officers who were concerned about the resource implications of the decision.

However, it is clear that the action is only arguable in cases where the investigation fell seriously short of proper standards. Isolated errors will not suffice. Indeed, it may be that the evidence necessary to establish such a case will tend to come from an internal police inquiry into the failed investigation, as was the case in DSD itself.

But when that happens, the resources argument looks nebulous. The work in finding out what went wrong has already happened, and all that allowing a human rights action adds is the possibility of an independent court drawing inferences from the material, publicly criticising the police where appropriate, and, if the actions succeeds, awarding relatively nominal damages.

Internal police inquiries into failed investigations

Further, when one reads the High Court decision in DSD one cannot agree that an internal police inquiry should necessarily give satisfaction enough to the victims. Green J’s own approach to the (then) IPCC’s findings relating to the Worboys case is worth recalling: 

Following the conviction of Worboys, the IPCC conducted two investigations into the enquiries conducted by the MPS into the allegations made by DSD and NBV against John Worboys. In the light of what I have learned in the course of the trial I find neither of these reports to be particularly satisfactory. This is notwithstanding that they make a number of negative findings. The investigations were based on limited evidence, do not take account of the acknowledged systemic wider failings and operate upon an apparent burden of proof strongly favourable to the officers in question. In many instances the report writer says that a complaint is not proven in the absence of supporting evidence but there is no indication that a detailed inquiry into the evidence ever took place. Further, in respect of a number of instances the report recites an alleged failure but then omits to come to any clear, specific, conclusion about the allegation. For my purposes, I can say that where an adverse failing is found it is safe for me to have regard to it. But I do not take the view that if the IPCC either make no finding or finds an allegation not proven that I should attach much weight to this conclusion if I take a different view on the evidence before me

Per Green J, DSD and NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) at [125]

The relevance of disciplinary proceedings

Finally, there is the matter of disciplinary proceedings. One of the arguments of the government, in support of their contention that only “systemic” errors should be actionable, was that “operational” errors could instead be the subject of disciplinary proceedings.

By now we might already be familiar with one argument against that. First, and simplest, we do not say the same when a human rights action is brought in respect of operational errors in failing to prevent or to prosecute crimes.

But second, victims might reasonably have less faith in such proceedings, which they take no part in bringing, which are not always heard in public and which are often subject to delays, especially in cases of alleged ill-health or a desire of the relevant officers to resign.

There is another consideration we should bear in mind. Investigations are about team work and the most egregious cases of police failures are probably only rarely solely down to a very few individuals. Where culpable neglect against them can be shown, it can often, perhaps even usually, be attributed to a discreditable attitude emanating from a more senior level.

If that is right, then to restrict such cases to disciplinary proceedings against junior officers for “operational” errors would too easily obscure this. Such malaise is best exposed in a human rights action against the police force itself.

To appreciate this, we need only revisit the facts of DSD. Consider this, among the many damning findings of Green J

The second issue relating to failures of supervision and management concerns the inappropriate pressure which appears to have emanated from the very highest levels of Borough management not to focus upon sexual assaults, as opposed to other, less complex, offences. This is in the context of the pressure on the MPS to meet performance targets

The Detective Inspector accepted that if the case was not classified as a sexual assault then details of the investigation would not be entered into CRIMINT. Further, he accepted that many rape enquiries required closing reports but these were not done. He candidly acknowledged:

"An opportunity not to do one would have been taken gladly".

In this connection and in relation to his evidence to the IPCC that there was "…a drive from the Borough Management to also disprove allegations", he said that this had "a bearing on what we did". He acknowledged that the pressure from on high meant that if an allegation could be legally disproved this would "improve detection rates".

DSD and NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) at [263-265]

Isn’t this the fully story that needs to come out? It is a significant point that the decision in DSD enables independent courts to judge the conduct of police forces in the round, not limiting themselves to the immediate errors made by individual officers, nor solely to the systems in place for investigating crime.

So the result of the case is very much to be welcomed. It is just a shame, perhaps, that not more was said of the value of criticising truly egregious police failings in court, in order to appreciate that we need this form of action to be at least as well recognised as the other varieties of positive obligations.

But we repeat: the High Court decision by Green J truly was a masterpiece. If you have the time, and want to understand the case and the legal issues fully, you would do as well to study that original judgment.