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Commissioner v DSD: Sending Police Liability into Uncharted Waters

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About The Author

Peter Lennon (Consulting Editor)

Peter Lennon is a trainee solicitor at a Top 50 UK law firm, with experience in insurance, commercial disputes, and contentious probate. Prior to law, Peter studied History at Selwyn College, Cambridge, before completing the GDL and LPC at the University of Sheffield.

His main areas of interest are litigation, law reform, history and foreign policy. Outside work, Peter enjoys books, cooking, and pretending to know about football.

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The police must obey the law while enforcing the law.

Chief Justice Earl Warren

The case of Commissioner of Police of the Metropolis v DSD and NBV [2018] is the second Supreme Court ruling in as many weeks concerning the issue of police liability in negligence. While Robinson v Chief Constable of West Yorkshire Police [2018] clarified the common law position in this area – as Bláthnaid Breslin has explained for Keep Calm Talk Law – the decision in Commissioner [2018] sought to clarify the position on claims against the police under the Human Rights Act 1998 (the HRA 1998).

Overturning a position that was previously assumed to be very narrow, the Supreme Court’s decision in Commissioner [2018] constitutes a major expansion of the operation of negligence in relation to the activities of the police. This article accepts that such a change is not undesirable, if well-reasoned and deliberate. However, it observes that the concerning aspect of Commissioner [2018] is the extent to which the Supreme Court’s decision was based on disputed and confusing case law, which itself was built on uncertain logic in the opinion of at least one judge. This is shaky ground for such a major change in the law.

Commissioner of Police of the Metropolis v DSD and NBV

The Facts

DSD and NBV were victims of John Worboys, the “Black Cab Rapist” who committed a series of sexual offences against women between 2003 and 2008. DSD had been among his first victims, while NBV was assaulted many years later. Though Worboys was eventually convicted of 19 offences, the Metropolitan Police (the Met) believe he may have carried out upwards of 100 similar crimes.

It was common ground between both parties in Commissioner [2018] that there had been significant failures in the Met’s investigations into both DSD and NBV’s assaults. It was implicitly accepted that a proper and effective investigation might have prevented further assaults by Worboys. As DSD told the BBC following the Supreme Court’s judgment:

Had [the Met] done [its] job properly, there wouldn’t be 105 victims, there would be one. I can take the one. I can’t take the 105.

In 2013, several years after Worboys had been arrested and successfully prosecuted, DSD and NBV sued the Met, alleging that the failings in the investigations had breached their human rights. More specifically, they alleged the Met’s ineffective investigations constituted a breach of their rights under Article 3 of the European Convention on Human Rights (ECHR), which imposes upon the state a positive duty to investigate certain criminal acts. It was the extent and requirements of this duty that were the main issue before the Supreme Court in Commissioner [2018].

The Decisions 

At first instance, Green J in the High Court found in favour of the claimants, requiring the Met to pay damages for breaching the claimant’s rights under Article 3 of the ECHR. Following the Met’s subsequent appeal, the Court of Appeal in The Commissioner of Police of the Metropolis v DSD and NBV [2015] unanimously reached the same conclusion.

Despite agreeing not to seek to recoup damages or court costs from DSD and NBV, the Met issued a further appeal to the Supreme Court. The Met’s reasons for doing so were thus purely practical: given that Green J’s initial decision involved major changes to the assumptions surrounding police liability, clarification from the Supreme Court as to the current position of the law seemed to be in the public interest.

In Commissioner of Police of the Metropolis v DSD and NBV [2018], the Supreme Court unanimously upheld the previous two decisions. However, there were significant differences between the positions of Lord Kerr (with whom Lady Hale and Lord Neuberger agreed) and Lords Hughes and Mance. Lord Kerr favoured a broader regime of liability for police forces, following Strasbourg jurisprudence, while Lord Hughes favoured a narrower scheme, citing policy concerns.

The Context Surrounding the Case

The Supreme Court heard Commissioner [2018] during a period of great publicity surrounding Worboys and his offences. Though not linked to the decision before the Supreme Court, there had been widespread outrage after it was discovered that the Parole Board had recommended Worboys be released from prison on licence.

Equally interesting was the timing of the Supreme Court’s seemingly landmark decision in Commissioner [2018], coming less than a fortnight after judgment was passed in the similarly important case of Robinson v Chief Constable of West Yorkshire Police [2018]. This is all the more so, given that three of the judges in Commissioner [2018] – Lady Hale, Lord Mance and Lord Hughes – also passed judgment in Robinson [2018].

It is vital that the subject matter of the two cases are not confused: Robinson [2018] deals with the common law duty of care, while Commissioner [2018] deals with duties imposed by the ECHR through the HRA 1998. Nonetheless, it is interesting to see two Supreme Court decisions in as many weeks finding in favour of greater liability for police negligence.

The Legal Issue: Article 3 of the ECHR

The main legislative provision at issue in Commissioner [2018] was Article 3 of the ECHR, the full text of which holds that:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This is not the most thorough provision of the ECHR. While Article 3 of the ECHR is typically described as a prohibition against torture, a line of jurisprudence from the ECtHR has established the existence of an attached duty of states to investigate certain incidents of serious ill-treatment (the Duty). The rationale for the Duty is, in short, that the prohibition in Article 3 of the ECHR would be useless without a means of enforcement; namely, the state’s duty to investigate such occurrences properly.

The fact that the Duty has emerged from case law – rather than being explicitly contained in Article 3 of the ECHR – was at the heart of the problem before the Supreme Court in Commissioner [2018]. As Lord Mance noted, the jurisprudence of the ECtHR is confusing at best, such that both parties in Commissioner [2018] were relying on differing interpretations of Strasbourg judgments to make their arguments.

Therefore, the Supreme Court in Commissioner [2018] were tasked with deciding which interpretations of the case law to follow. The only common ground between the parties was that ECHR case law confirms that the states have some kind of positive duty to properly investigate some class of mistreatment. The principal disagreements between the parties were on the following points:

  1. The Nature of the Duty: Is the Duty solely a public duty, or a duty owed to individuals that allows them to sue for breaches of it? Should the scope of the Duty be aligned with that under the common law?
  2. The Nature of Acts Engaging the Duty: If the Duty does apply to individuals, is it only engaged by acts committed by state agents (like police brutality), or can it be engaged by the acts of third parties (in this case, Worboys)?
  3. The Nature of Acts/Omissions Breaching the Duty: Is the Duty breached by operational failures of investigators, or only by a state’s systemic failures to provide a proper investigation?

These points are all part of a whole, and are therefore difficult to discuss in isolation - nonetheless, attempting to do so makes the judgments in Commissioner [2018] much easier to digest.

Question One: The Nature of the Duty

The first major point addressed by the Supreme Court in Commissioner [2018] was the nature of the Duty and, more specifically, to whom it is owed. It could either follow the common law position and decide that the Duty was a public one, or hold that the Duty was one that would allow individuals to sue using it.

Before the decision in Robinson [2018], it was widely accepted that Hill v Chief Constable of West Yorkshire [1987] had confirmed that under common law, the police owed the public no general duty of care as regards the detection of crime. The rationale for this was the idea that it was not 'just, fair, and reasonable' – the third-limb of the oft-cited Caparo v Dickman [1990] criteria – to impose such a duty on the police, for fear that excessive litigation would inhibit the police from taking risks in investigations and impose expensive bills on the taxpayer.

In Commissioner [2018], the Met sought to argue that these same policy concerns should apply to the HRA 1998, meaning that the duty under Article 3 of the ECHR should be interpreted in line with common law. As a result, the duty owed by the police would be a communal one rather than a duty owed to individuals. The Met’s failings in relation to investigating Worboys would therefore be handled by disciplinary procedures and the Independent Police Complaints Commission, rather than creating a cause of action for individuals.

This argument was rejected by the Supreme Court in Commissioner [2018]. Lord Kerr – quoting Lord Brown’s judgment from Hertfordshire Police v Van Colle [2008] – justified this conclusion by observing that claims under the ECHR:

[H]ave very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, [ECHR] claims are intended rather to uphold minimum human rights standards and to vindicate those rights.

In Van Colle [2008], the state (on behalf of Hertfordshire Police) had successfully argued that, because the purposes behind common law negligence and ECHR claims are markedly different, so too is the scope of their liability. Therefore, in that case, it had contended that the scope of the common law duty should not be extended to match the scope of the ECHR. In Commissioner [2018], however, the Supreme Court turned this logic back against the state by finding that the difference in purposes meant that the scope of liability under the ECHR should not in turn be limited in a way that required it to match that under the common law. There could, therefore, be a duty owed to individuals.

Question Two: The Nature of Acts Engaging the Duty

The second issue between the parties in Commissioner [2018] was disagreement over the type of acts the Duty applies to; in other words, the Supreme Court was tasked with deciding which incidents of inhuman or degrading treatment the state is obliged to investigate or prevent.

At its core, this question examines the purpose behind the law. As Lord Hughes noted in his quasi-dissent, it is difficult to read the ECHR outside of its context as a reaction to the violations of the Second World War. In this light, a prohibition against torture and degrading treatment can easily be read as a prohibition against those abuses by states.

Therefore, while a positive duty is not contained in Article 3 of the ECHR itself, it is a necessary implication to make it effective – if the state has a duty not to inflict degrading treatment on individuals, then there must be some ancillary duty to disincentivise states from denying or covering up abuses. This was described as a “judicial gloss” by Lord Hughes, albeit a necessary one. The pattern of the older Strasbourg case law follows this logic and focuses on these abuses by states: for instance, Assenov v Bulgaria [1998] dealt with alleged police violence against a suspect in custody.

More recent case law, however, has addressed the matter of a second “gloss” relating to abuses by third parties, which states then fail to subsequently investigate (or prevent). The key case in this respect is MC v Bulgaria [2003], which – similar to the facts in Commissioner [2018]  – involved a complaint of rape that was improperly dismissed by the authorities. In MC v Bulgaria [2003], it was expressly confirmed that the obligation under Article 3 of the ECHR:

[C]annot be considered in principle to be limited solely to cases of ill-treatment by state agents.

It therefore seemed fairly clear that the Duty has been expanded by the Strasbourg court to include at least some actions by non-state actors.

Question Three: The Nature of Acts or Omissions Breaching the Duty

The principal point of disagreement between the judges in Commissioner [2018] concerned this third point. Having established that the Duty imposes upon the state positive duties in circumstances such as these, the Supreme Court still needed to decide what exactly constitutes a breach of this duty.

The confusing nature of Strasbourg case law rendered resolving this question difficult for the Supreme Court. The main point of distinction is between systemic and operational failures. Systemic failures deal with the state and the systems it establishes to investigate ill treatment. Operational failures deal with individuals or groups of individuals, and their actions in conducting said investigations.

The facts of MC v Bulgaria [2003] offer a useful illustration of the distinction. The systemic failure in that case was a Bulgarian law which stated that prosecutions for rape could not be made where the victim had not actively resisted the assault. This denied adequate protection to some victims of rape, which constitutes inhuman and degrading treatment under Article 3 of the ECHR. The operational failure, on the other hand, was the police and prosecutors’ failure to properly investigate the rape victim case by, for instance, not properly seeking evidence and interviewing witnesses.

Because the case of MC v Bulgaria [2003] involved both forms of failures meant it was uncertain whether the ECHR’s decision in that case had concluded that both the operational failure and the systemic failure were engaged. Inevitably, this meant that two different interpretations of MC were deployed by the opposing sides in Commissioner [2018]. Therefore, while both sides agreed that systemic failures will constitute a breach of Article 3 of the ECHR (the “narrow” interpretation of the Duty), the extent to which operational failures also constitute a breach (the “wide” interpretation of the Duty) was a major point of contention.

Lord Hughes was the primary advocate for the narrow approach. His reasoning was based primarily on the policy considerations identified in Hill [1987], and a more conservative view of the Strasbourg case law. In his view, the Duty could only be breached by a systemic failure, or in the very limited circumstances discussed in Osman v UK [1998]. In that case, the ECtHR held that there may be a breach (in regards to Article 2, not Article 3 of the ECHR) where the police make an operational failure regarding:

[A] real and immediate risk to the life of an identified individual by a third party, of which risk the State either knew or ought to have known.

This restrictive test was justified by the ECthR on the grounds that it accounts for the ‘unpredictability of human conduct’ and ‘the realities of law enforcement’. A similar statement was made in MC v Bulgaria [2003], where the ECtHR said that ‘errors or isolated omissions in the investigation’ should not be enough to breach the duty.

However, the majority of the Supreme Court in Commissioner [2018] endorsed Lord Kerr’s wider approach. His argument focused on the case law that followed MC v Bulgaria [2003], including Secic v Croatia [2007] and Beganoviç v Croatia [2009]. Both of these cases confirmed a duty on the part of police to deal expeditiously with allegations of violent crime, to act impartially and without prejudice, and to do all they could to secure evidence – all of which are inherently operational failures.

Lord Hughes in Commissioner [2018] attempted to argue that these failures were only relevant inasmuch as they were a result of wider systemic failings. However, this is not supported by the text of the judgments in Secic [2007] and Beganoviç [2009] – there was no real discussion of the Croatian system, only the operational failings. Thus, as Lord Kerr pointed out, the Strasbourg case law appears to have widened the scope of the duty such that ‘conspicuous or substantial errors in investigation’ qualify as breaches. In other words, operational failures by police may now create a cause of action for individuals.

Conclusion: The Effect of Commissioner

It is rare to see a case where the Supreme Court comes to a unanimous verdict while disagreeing so fundamentally in their legal opinions. In part, this is because the facts of Commissioner [2018] meant it was an imperfect test case for the question the Supreme Court wished to adjudicate on. The presence of both systemic and operational failures on the part of the Met meant that Lord Kerr and Lord Hughes came to the same decision (dismissing the Met’s appeal and finding in favour of the claimants) despite disagreeing quite radically on their understanding of the present law.

Lord Kerr’s view, which eventually won out, is probably more faithful to the Strasbourg jurisprudence and is well-reasoned in its conclusions. Equally, it is not wrong of Lord Hughes (and, to a lesser extent, Lord Mance) to point out that the jurisprudence is complex and confusing, and the rationale for the Strasbourg court’s decisions becomes harder to identify as they move further and further from the text of the ECHR.

It is also not wrong of Lord Hughes to point out that even with Lord Kerr’s ‘conspicuous and substantial’ limitation, the ruling in Commissioner [2018] greatly widens the scope for legal action against the police: they can now be sued by individuals for operational failures amounting to breaches of human rights, a proposition previously impossible under English law. Indeed, given that this right to claim now rests on a subjective assessment (‘conspicuous and substantial’), the scope could be widened even further by future case law. At a time when police budgets are stretched thin, the prospect of a flood of human rights claims and the costs attached to them is hardly an attractive one, however fair the result in this particular case may seem.

This is a complex case in almost every regard, engaging both extra-judicial questions of policy and policing, and technical questions of human rights and supranational law, with a heavy focus on implication and reading between the lines of a fairly limited piece of text. The Supreme Court in Commissioner [2018] could be forgiven for expressing frustration, as Lord Mance did in particular, at the ECtHR for leaving them to unpick such a knot in making their decision. Regardless, they made it, and only time will tell what the real impacts of the decision will be.

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Tagged: Human Rights, Policing, Supreme Court, Tort Law

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