The Commissioner of Police of the Metropolis v DSD and NBV & Ors

Article 3 of the Human Rights Act 1998 imposes an investigative duty which is inherent in the Article itself and does not depend on Article 1 or State complicity. The duty applies to serious violent crime by private individuals. Its rigour varies with the gravity and circumstances of the case. A proper criminal investigation is generally required for serious violence, while civil remedies may suffice for less serious harm or negligence. The obligation concerns means, not a guaranteed result. Courts assess the investigation overall and allow the State a margin of discretion. A prompt conviction does not invariably cure earlier investigative failures.

These conjoined appeals concerned claims under sections 7 and 8 of the Human Rights Act 1998 alleging failures by the Metropolitan Police Service and Greater Manchester Police to investigate serious violence effectively.

Green J found for DSD and NBV against the MPS on 28 February 2014, holding that failures to investigate allegations concerning the serial offender John Worboys violated Article 3. His Honour Judge Platts dismissed Alio Koraou’s claim against GMP on 17 April 2014, although he identified shortcomings in the investigation.

The central issues were whether Article 3 imposed an enforceable investigative duty, whether State complicity was required, what standard governed the investigation, and whether the duty could encompass failures before a particular victim was attacked.

Disposition. The Court of Appeal unanimously dismissed both appeals.

1. Source of the duty. Article 3 contains an investigative obligation enforceable under the Human Rights Act 1998. It is not derived from Article 1. Section 6(1) provides the domestic obligation on public authorities to respect Convention rights, and the omission of Article 1 from the statutory list of Convention rights does not create a gap between Strasbourg and domestic protection. The clear and constant Strasbourg authorities had to be taken into account under section 2(1), absent very good reason to decline to apply them.
2. State complicity and scope. Ill-treatment by a private individual does not itself breach Article 3, but the Convention’s protective purpose requires the State to safeguard individuals against serious brutality. The investigative obligation is a single protective principle applied with varying rigour. Serious violent crime by private individuals generally requires a proper criminal investigation. At the lower end of the scale, including negligence by private persons, a civil-remedy system may suffice. The circumstances may also make a full criminal investigation unnecessary or disproportionate.
3. Effective investigation. The obligation is one of means, not result. The investigation should in principle be capable of establishing the facts and identifying and punishing those responsible, through reasonable steps such as securing witness and forensic evidence and acting with reasonable expedition. The assessment concerns the investigation overall, not every individual omission. The State has a margin of discretion, wider at the lower end of the scale and narrower in cases of deliberate State violence. There is no rigid difference in principle between Articles 2 and 3 or between State-agent and private-agent cases.
4. A successful and timely prosecution will often bring closure, but it does not invariably establish that the investigation was effective. An abject earlier failure may remain a violation despite an unexpected confession or later conviction.
5. In the DSD and NBV claims, the systemic failures included inadequate training, supervision, intelligence use, victim confidence and resourcing. There were also serious operational failures. In a serial-offender case, the relevant period may precede the particular claimant’s assault where earlier investigative failures could probably have prevented it. The MPS appeal was therefore dismissed.
6. In Koraou, the trial judge was entitled to weigh the borderline gravity of the case, conflicting accounts, evidential difficulties, positive investigative steps and limited resources. His conclusion that the investigation was reasonable overall could not sensibly be faulted. The appeal was dismissed.

1. Court of Appeal (Civil Division) — [2015] EWCA Civ 646: dismissed the MPS appeal and Koraou’s appeal.
2. High Court of Justice — Green J gave judgment for DSD and NBV against the MPS on 28 February 2014.
3. County Court at Manchester — His Honour Judge Platts dismissed Koraou’s claim against GMP on 17 April 2014.