Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The Commissioner’s appeal failed: To provide an effective deterrent, laws which prohibit conduct constituting a breach of article 3 must be rigorously enforced and complaints of such conduct must be properly investigated. Deficiencies in investigations do not have to be part of a flawed approach of the system generally for a breach of article 3 to arise. However, errors must be serious to be such a breach. The ECtHR case law demonstrates a clear and constant line of authority to the effect that the state has a duty to conduct an effective investigation into crimes involving serious violence to the individual. It has consistently been held that the positive obligation to investigate effectively is not solely confined to cases of ill-treatment by state agents
Lord Nueberger (Hale L agreeing) dissented in part on the issue of whether a person in the claimants’ position needs to establish that the serious defects in the investigation in question were attributable to failures of a structural nature (also referred to as systems, or systemic, failures), and not to purely operational failures (ie failings on the part of the individual police officers responsible for conducting the specific investigation). The judgments in the ECHR supported the wider approach.
Lord Kerr said: ‘the jurisprudence of the Strasbourg court is clear and constant on the issues which this court has to decide. Even if it were not, however, I would firmly reject the suggestion that the decision of this court on whether the respondents enjoy a right under the HRA to claim compensation against the appellant should be influenced, much less inhibited, by any perceived absence of authoritative guidance from ECtHR.’
Judges:
Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Hughes
Citations:
[2018] UKSC 11, UKSC 2015/0166, [2018] HRLR 11, [2018] 3 All ER 369, [2018] 1 Cr App R 31, [2018] 2 WLR 895
Links:
Bailii, Bailii Summary, SC, SC Summary
Statutes:
Human Rights Act 1998 and 8, European Convention on Human Rights 3
Jurisdiction:
England and Wales
Citing:
At First Instance (Liability) – DSD and Another v The Commissioner of Police for The Metropolis QBD 28-Feb-2014
The claimants sought damages alleging negligent failure by the police to investigate and find a serial rapist.
Held: The claim succeeded. The claimants were entitled to damages from the defendant, the Commissioner of the Police of the . .
At First Instance – DSD and Another v The Commissioner of Police for The Metropolis QBD 23-Jul-2014
The court had found the defendant liable for a breach of the claimants’ human rights in that its negligent investigations had led to further rapes and sexual assaults by an offender. The court now considered what damages might be payable. . .
Appeal from – The Commissioner of Police of The Metropolis v DSD and NBV and Others CA 30-Jun-2015
The claimants alleged that they had been victims of rapes after the defendant police force had negligently failed to properly investigate a series of similar crimes. They said that the failures had infringed their article 3 rights. The Commissioner . .
Cited – Assenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
Cited – MC v Bulgaria ECHR 4-Dec-2003
The applicant complained that she had been raped by two men when she was 14 years old. The men were interviewed but it was concluded that they had not used threats or violence and there was no evidence of resistance. The district prosecutor issued a . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – Yasa v Turkey ECHR 2-Sep-1998
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); No violation of Art. 2; Violation of Art. 2 (effective investigation); . .
Cited – Calvelli and Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
Cited – Menson v United Kingdom ECHR 6-May-2003
There had been a racist attack. The victim was set on fire and killed in the street by assailants. His relatives sought compensation. However the assailants were not agents of the state and they were duly prosecuted, convicted and sentenced. No . .
Cited – Szula v United Kingdom ECHR 4-Jan-2007
A complaint was brought of sexual and physical abuse whilst a minor during the time that he was in a residential approved school.
Held: The applicant’s claim was inadmissible. It was concluded that there was ‘no indication that the authorities . .
Cited – Beganovic v Croatia ECHR 25-Jun-2009
The applicant had been assaulted by three individuals and coplained of the ineffectiveness of the police investigation.
Held: Though the court acknowledged that no direct responsibility can attach to a member state under ECHR for the acts of . .
Cited – Denis Vasilyev v Russia ECHR 17-Dec-2009
The applicant and his friend were seriously assaulted and robbed. Although police officers attended the scene, no investigation into the circumstances of the assault were conducted. The police officers claimed to have considered that the applicant . .
Cited – Milanovic v Serbia ECHR 14-Dec-2010
. .
Cited – CAS and CS v Romania ECHR 20-Mar-2012
The applicants raise several complaints related to the repeated rape and other ill-treatment suffered by the first applicant. In particular, the first applicant alleged that the criminal investigations into those facts had been ineffective, and that . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – O’Keeffe v Ireland ECHR 28-Jan-2014
ECHR Article 3
Positive obligations
Failure by State to put appropriate mechanisms in place to protect National School pupil from sexual abuse by teacher: violation
Facts – The applicant alleged . .
Cited – BV v Ireland ECHR 2-May-2017
The court stated that the obligation to carry out an effective investigation ‘cannot be limited to cases of ill-treatment by agents of the state’.
ECHR Judgment : Violation of Article 3 – Prohibition of . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Gafgen v Germany ECHR 1-Jun-2010
(Grand Chamber) The claimant said that police treatment during his interview had amounted to torture.
Held: The Salduz principles were not restricted to the failure to provide access to a lawyer during interview. There is no clear consensus . .
Cited – El-Masri v The Former Yugoslav Republic of Macedonia ECHR 13-Dec-2012
(Grand Chamber) The applicant, a German national of Lebanese origin, alleged that he had been subjected to a secret rendition operation, namely that agents of the respondent State had arrested him, held him incommunicado, questioned and ill-treated . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Regina v O’Brien SC 2-Apr-2014
The court considered how to apply the rule that an extradition may only be for trial on matters committed before the extradition if they have been the basis of the request to a defendant’s commission of contempt of court after conviction. After . .
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Brooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
Cited – Chernaya v Ukraine ECHR 15-Dec-2016
Merits and Just Satisfaction – The court considered involved an injury inflicted by a non-state agent.
Held: The court reiterated that ‘[t]he minimum standards of effectiveness laid down by the Court’s case law include the requirements that . .
Lists of cited by and citing cases may be incomplete.
Police, Human Rights, Negligence
Updated: 01 July 2022; Ref: scu.605316