Commissioner of Police of the Metropolis v DSD and another

Article 3 of the Convention imposes a positive duty on the state to conduct an effective investigation into credible allegations of serious ill-treatment, including ill-treatment inflicted by private individuals. The duty is owed to the victim and concerns both the investigative system and its operation in the particular case.

Purely operational defects may breach the duty. Liability requires serious, conspicuous or substantial shortcomings; simple errors and isolated omissions do not suffice. The obligation is one of means, not result, and must not impose an impossible or disproportionate burden on the authorities.

The absence of a common-law duty of care in negligence does not restrict this Convention duty. Damages under the Human Rights Act 1998 are not automatic, but may be awarded where necessary to vindicate the right and afford just satisfaction.

Two women were subjected to serious sexual assaults by a serial offender. They brought proceedings under sections 7 and 8 of the Human Rights Act 1998, alleging that serious defects in the police investigations violated their rights under article 3 of the Convention.

Green J upheld liability in [2014] EWHC 436 (QB) and awarded compensation in [2014] EWHC 2493 (QB). The Court of Appeal dismissed the Commissioner's appeal in [2015] EWCA Civ 646; [2016] QB 161.

The central questions were whether article 3 requires an effective investigation of serious ill-treatment by private persons, whether purely operational investigative failures can breach that duty, whether the duty is enforceable by individual victims, and whether compensation may be awarded notwithstanding other redress and the absence of a corresponding common-law duty of care.

1. Appeal dismissed. The court unanimously upheld liability, although Lord Hughes preferred a narrower formulation of the investigative duty. Lord Kerr and Lord Neuberger, with whom Lady Hale agreed, held that article 3 requires the state to conduct an effective investigation into credible allegations of serious ill-treatment. The duty is not confined to misconduct by state agents. It also applies where private individuals inflicted the ill-treatment.

2. The duty has systemic and operational aspects. The state must provide effective criminal-law protection and must apply it through effective investigation and prosecution. Serious defects that are purely operational can suffice; a claimant need not prove that they arose from structural or systemic failure. Lord Neuberger acknowledged that deciding this point was unnecessary to dispose of the appeal, but considered it important to resolve after full argument.

3. The obligation is one of means, not result. Authorities must take reasonable available steps to secure evidence and must proceed independently, promptly and with reasonable expedition. Courts must respect the difficulties of policing, operational choices, priorities and finite resources. Article 3 does not authorise review of every investigative decision. Only conspicuous, substantial, egregious or otherwise serious defects can establish a violation; minor errors and isolated omissions cannot.

4. The common-law rule that police ordinarily owe no duty of care in tort when investigating crime did not restrict the Convention duty. The two forms of liability have different foundations and purposes. Questions of proximity and whether a duty is fair, just and reasonable do not determine whether the state complied with its protective obligation under article 3.

5. Compensation is not automatic. Under section 8(3) of the Human Rights Act 1998, damages serve to uphold and vindicate minimum human-rights standards and are available only where necessary for just satisfaction. The awards were justified by the systemic and operational failures found below, notwithstanding compensation already received from the offender and the Criminal Injuries Compensation Authority.

6. Lord Hughes agreed that the appeal should be dismissed because the case involved structural failures: the relevant policy was treated as a formality, training was inadequate, complaints lacked appropriate weight, and detailed operational failings largely flowed from that approach. He would otherwise have confined liability for private offending to a proper legal and policing structure administered in good faith and with proper regard to the gravity of the conduct.

1. United Kingdom Supreme Court: The Commissioner's appeal was dismissed unanimously in [2018] UKSC 11. The court upheld liability and the compensation awards.
2. Court of Appeal: The Commissioner's appeal was dismissed in [2015] EWCA Civ 646; [2016] QB 161.
3. High Court, Queen's Bench Division: Green J upheld the claims on liability in [2014] EWHC 436 (QB) and awarded compensation in [2014] EWHC 2493 (QB).