Commissioner of Police of the Metropolis v DSD and another

The Supreme Court held that the Human Rights Act 1998 and article 3 ECHR impose a positive obligation on the State to conduct an effective investigation into allegations of ill-treatment reaching the article 3 threshold, whether the alleged perpetrator is a state agent or a private individual. The Court reviewed Strasbourg authority (notably MC v Bulgaria and Assenov) and concluded that the obligation is both systemic and operational in character: serious operational failings in the conduct of a particular investigation can, by themselves, amount to a breach of the article 3 investigatory duty. The Court endorsed Green J’s findings of conspicuous investigative failings by the Metropolitan Police and upheld the award of damages under sections 7 and 8 HRA, while noting that compensation is not automatic and is aimed at vindicating Convention standards rather than merely compensating loss.

The claimants, two women assaulted by the serial offender John Worboys between 2003 and 2007, brought actions against the Metropolitan Police Service under sections 7 and 8 of the Human Rights Act 1998, alleging that police failures in investigating those offences breached article 3 of the European Convention on Human Rights (prohibition of torture and inhuman or degrading treatment). Green J found liability for breach of the procedural limb of article 3 and awarded damages; that judgment on liability was given on 28 February 2014 (EWHC) and the award on 23 July 2014. The Court of Appeal dismissed the police’s appeal ([2015] EWCA Civ 646). The Metropolitan Police appealed to the Supreme Court.

Key issues framed by the Court included whether the article 3 investigatory duty is owed to individuals or only to the public at large; whether it is a systems obligation or an operational one; whether it applies only where state agents are implicated; whether the duty gives rise to a right to compensation; the relevance of existing common-law rules disallowing a general tortious duty of care by police; and whether national courts should defer to the European Court of Human Rights (ECtHR) when Strasbourg authority is not perfectly clear.

The Supreme Court analysed Strasbourg jurisprudence (Assenov, MC v Bulgaria, Osman and subsequent cases) and domestic authorities (including Hill, Van Colle and Michael). It concluded that ECtHR case law is consistent and constant in recognising a positive investigatory obligation under article 3 that, in appropriate circumstances, applies to third-party offending as well as to state agents. The Court held that the duty may have both systemic and operational elements and that egregious operational failures in investigating a particular complaint can found a breach. It rejected the argument that national courts should decline to develop domestic law on these points pending further Strasbourg pronouncements. The appeal was dismissed and the awards of damages against the Metropolitan Police were upheld. The Court emphasised that only conspicuous or substantial investigative failings will engage article 3 and that damages under section 8 HRA are intended principally to vindicate Convention standards rather than to duplicate criminal or compensation schemes.

Appeal dismissed. The Supreme Court held that article 3, read with the Human Rights Act 1998, imposes a positive duty on the State to carry out an effective investigation into serious ill-treatment capable of engaging article 3, whether committed by state agents or private persons, and that serious operational failings in a particular investigation can amount to a breach of that duty; Green J’s findings of serious investigative failings by the Metropolitan Police were upheld and the awards of damages were properly made.

Liability and remedy at first instance: Green J — liability judgment ([2014] EWHC 436 (QB), 28 February 2014) and damages judgment ([2014] EWHC 2493 (QB), 23 July 2014). Appeal to Court of Appeal dismissed: [2015] EWCA Civ 646 (30 June 2015). Appeal to Supreme Court dismissed: [2018] UKSC 11 (21 February 2018).