The liability of the police for catching criminals has posed a conundrum for many years. Victims of crime tend to see it as a means to obtain speedier and more effective justice, whilst the Government seeks to prevent police officers from developing a culture of defensiveness and to limit overall expenses.
One way of seeking to establish such liability has been in negligence. Although it is known that the police do not enjoy general immunity for damage caused in its operations (Robinson v West Yorkshire Police),1 the absence of a duty of care for apprehending criminals and protecting the public remains (Michael v Chief Constable of South Wales).2 A new, much more far-reaching course has, however, emerged: claims under the Human Rights Act 1998. Van Colle v Chief Constable of South Hertfordshire Police3 (relying on Osman v UK)4 established a duty of the police to investigate and prevent possible breaches of Art. 2 ECHR (the right to life). Now, the Supreme Court went one step further by placing the police under a further burden, that of Art. 3 ECHR (prohibition of torture and degrading treatments).
In DSD v Commissioner of Police for the Metropolis,5 an early victim of John Worboys (whose case had not been one selected for prosecution) brought proceedings under ss. 7-8 HRA 1998, seeking damages for the police’s failure (due to operational errors) to investigate the crime Worboys had committed in a timely manner. DSD had already received compensation from Worboys personally and an award from the Criminal Injury Compensation Commission.
The claimant argued that properly construed, Art. 3 ECHR as implemented by the HRA 1998 imposes a general duty on the police to investigate violations of Art. 3 by third parties (including private individuals).6 The defendant submitted that the police owed such a duty, but it was to the public at large, not a private law duty towards victims of crime.7 This would follow from consistency between the common law position and that under the HRA. Greene J found for the claimant and his judgment was upheld by the Court of Appeal on the ground that the HRA imposed a different regime from common law negligence, whereby the duty of care (i.e. justiciability) difficulty would be circumvented.
Applying Van Colle to the consistency contention, the Supreme Court did not hesitate to unanimously endorse the claimant’s contention that the HRA would give a cause of action irrespective of duty of care considerations. In Lord Kerr’s reasoning, the two regimes have (i) a different base of liability, (ii) a different relation to policy reasons – in HRA cases there is no question of proximity, and (iii) an assessment of what is ‘fair, just and reasonable’ does not come into play.8 It was thus the case that the defensiveness card could not be played.
But the apparent agreement on the exclusion of policy reasons does not mean they did not actually come into play. A further contention made by the defendant was that since the police failings were due to operational reasons and not systemic (legislative) reasons, liability would not follow without being envisaged by Strasbourg jurisprudence on Art. 3.
The majority, consisting of Lord Kerr, Lord Neuberger, and Lady Hale, approved the wider reading that any error (including operational) would suffice.9 Lord Kerr observed that in MC v Bulgaria10 the ECtHR had held that public authorities had a duty to investigate third-party actions amounting to a breach of Art. 3. This duty covered both the legal framework and its application by the relevant institution. Errors in investigation must be clear and significant to qualify. This rule had been confirmed in Beganovic v Croatia11 and A v UK,12 providing that a state would be responsible if it failed to provide practical and effective protection of Art. 3 rights. Protection was effective if it was capable of leading to the establishment of the facts and the taking of reasonable steps to ensure the relevant evidence (Vasilyev v Russia).13 But the Strasbourg cases, part of a clear and constant line as they were, did not mention the distinction between operational and systemic errors. Lord Kerr rejected the distinction relying on a generous reading on MC v Bulgaria. His view was backed by Lord Neuberger, who took into account practical reasons as well: (i) an investigatory duty must be to investigate effectively if it is to be meaningful, (ii) it would be difficult to distinguish between operational and systemic issues.14 Ultimately, Lord Mance said, the question was whether the shortcomings were sufficiently serious or not, irrespective of their nature.15
The minority, led by Lord Hughes, preferred the narrow systemic error approach. In doing so, His Lordship appeared to rely on the very same policy arguments Lord Kerr (and himself) emphatically rejected as being relevant in HRA claims. It was noted that the police must have leeway to act and that methodologically, drawing a distinction between whether Art. 3 was breached at all or not would not be easier than distinguishing between structural and operational errors.16 Indeed, the vagueness of this distinction is made clear by the agreement between the judges in this case, although they applied different tests.
Professor Zander has suggested the majority follows a purposive analogy with ECtHR cases, while the minority favours policy reasons.17 Admitting that the difference between the two approaches may be less relevant than it seems, his view tends to be misguided. Lord Neuberger’s reasoning, and less transparently that of Lord Kerr, shows they are in practice not at all reluctant to make a policy choice: the only thing that may be surprising (if any) is that their policy choice goes against the common law orthodoxy of being protective towards the police.
Perhaps more worrying for HM Government than the opening of the floodgates of police defensiveness is the manner the Supreme Court reached this decision. It is clear the Ullah18 mirror principle has been weakened in the sense that not only do courts engage in dialogue with Strasbourg by occasionally downplaying the ECtHR’s decisions, but they are also free to expand the interpretation of the Convention beyond Strasbourg’s jurisprudence (thus building up on Surrey County Council v P19 and Moohan v Lord Advocate20). Given proposed changes to the ECHR on the international plane aiming a reduction in powers of the European Court, Joshua Rozenberg QC may be prescient when he states the UK Supreme Court may end up a better guardian of the Convention than Strasbourg.21
To counter-balance some of this expansion, Lord Kerr made two arguments. First, he stressed the significant nature of the police error that must be established. Secondly, he pointed out that damages are not automatically payable for Convention breaches and that they are not compensatory (like tort damages), but only aim to discourage breaches.22 Whether this will be sufficient to contain the wave of potential claims by dissatisfied victims is anyone’s guess, but it will certainly hand the courts one more weapon to right the wrongs of inefficient police action.