Even advocacy by Lord Pannick couldn’t convince justices otherwise
The Supreme Court has unanimously dismissed an appeal brought by the police concerning its investigation into black cab rapist John Worboys. Lord Kerr told the court this morning the police’s “systemic and investigatory failures” amounted to a human rights violation, setting an important precedent on police liability.
The appeal was brought by the Commissioner of Police of the Metropolis, represented by Blackstone Chambers‘ Lord Pannick QC and 5 Essex Court‘s Jeremy Johnson QC. The respondents were two victims who had reported their sex assaults to the police: in one case Worboys was quickly arrested as a suspect but released without charge, and in the other he was never identified.
The victims — who were represented by Matrix Chambers‘ Phillippa Kaufmann QC and Doughty Street Chambers‘ Ruth Brander in the Supreme Court — brought claims for failure to conduct effective investigations into their claims. The kernel of these claims was that these failures constituted a violation of the victims’ rights under article 3 of the European Convention on Human Rights (ECHR), the prohibition against torture. There were six interveners in the case, including: Liberty, Rape Crisis England and Wales, and End Violence Against Women Coalition.
In the lower courts, the victims were successful and awarded £41,250 in compensation between them. It was made clear at the Supreme Court that the police, though having launched the appeal, were not seeking to have the awarded compensation revoked.
The main issue on appeal, Kerr told the court today, was the nature of the obligation imposed on the state to investigate crimes committed by a private individual. In his judgment, Kerr said:
“In order to be 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. There is a clear line of Strasbourg authority for the duty to properly investigate reported offences and allegations of ill-treatment.”
“Simple errors” or “isolated omissions” will not amount to violations of article 3, but “conspicuous or substantial errors in investigation” will. Some of the appellant’s own “operational failings” were listed in the Supreme Court’s judgment, and include: failure to promptly interview a key witness, failure to collect CCTV evidence and failure to conduct searches. “There were serious deficiencies in this case,” Kerr said.
But that’s just one justice’s words. The judgment has been described as “academic lawyers’ paradise” because of its multiple facets, the judges disagreeing not on the outcome of the case but its reasoning.
— Legal Cheek (@legalcheek) February 21, 2018
Lady Hale agrees with Kerr, who gave the main judgment, while Lord Neuberger — who has since retired from judicial life — wrote his own judgment, though also agrees with Kerr. Hale also agrees with Neuberger’s judgment, while Lord Hughes and Lord Mance gave separate judgments. Phew.
What law students may be wondering is how this all fits into the general immunity protecting the police against tort law claims, from Hill v Chief Constable of West Yorkshire Police.
This is explored in Neuberger’s judgment which notes “our domestic law adopts the view that, when investigating crime, the police owe no duty of care in tort to individual citizens”. Neuberger, the former president of the country’s highest court, says it is “understandable” that human rights law “differs from domestic tort law in holding that it is right to impose an investigatory duty on the police”.