Is this the end of negligence immunity for the police?

Is this the end of negligence immunity for the police?

Could a recent decision from the High Court offer a way around the absolute negligence immunity principle established in Hill v Chief Constable of West Yorkshire?

Harriet Wistrich, a solicitor in Birnberg Peirce & Partners’ civil department who represented the claimants DSD and another v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB), [2014] All ER (D) 76 (Mar), says this is an important case particularly for those engaged in litigation against the police.

Original news

The claimants were both victims of the ‘black cab rapist’. They brought complaints against the police for the manner in which they had handled their specific allegations and the conduct of the investigation as a whole.

The claims were brought under the Human Rights Act 1998 (HRA 1998). The Queen’s Bench Division decided that there was, in certain circumstances, a duty imposed upon the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. The conditions laid down in law pursuant to which the police might be liable were relatively stringent, however in the instant case those conditions had been met.

What does this case tell us about the existence of any duty to investigate severe crimes perpetrated by private individuals?

The case established that there is, ‘according to well established case law, a duty imposed on the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner’—but the judge makes clear that liability will only be imposed if ‘a series of exacting hurdles are overcome’.

This means that not every individual failure will necessarily trigger the duty under HRA 1998, art 3. He decided that there is a recognised duty on the state, in the absence of state complicity to investigate and prosecute criminal wrongs. The nature of the investigation is fact sensitive.

In DSD, the judge found that there were ‘multiple systemic and operational failures which individually and collectively meet the test of liability under HRA 1998, art 3’. He identified these in five areas as:

  • failure to properly provide training
  • failure to properly supervise and manage
  • failure to properly use available intelligence sources
  • failure to have in place proper systems to ensure victim confidence, and
  • failure to allocate adequate resources

What were the human rights arguments at play?

HRA 1998, s 6 holds it is unlawful for a public authority to act in a way which is incompatible with a convention right. In this case the relevant rights under the European Convention on Human Rights (ECHR) engaged were arts 3 and 8. The claims were brought under HRA 1998, s 7, empowering victims of violations to bring proceedings, and HRA 1998, s 8 conferring a power on the court to grant appropriate relief.

How did the court approach the Strasbourg jurisprudence?

The court undertook a detailed survey of Strasbourg jurisdiction in order to establish answers to the critical question which the judge identified as whether a duty to investigate torture and inhumane treatment committed by third parties exists at all, bearing in mind the police are immune from claims of negligence in common law. Following his survey and analysis of the development of this case law, Mr Justice Green then establishes a synthesis of the principles laid down in Strasbourg law:

  • HRA 1998, art 3 imposes a duty on the police to investigate—the purpose of the duty is to secure confidence in the rule of law...the investigation must be ‘independent, impartial and subject to individual scrutiny’ (para [212])
  • the duty is not conditional on the state being guilty, directly or indirectly, of misconduct itself (para [213])
  • the duty is triggered when there is a credible arguable claim (para [214])
  • allegations that are ‘grave’ or ‘serious’ will amount to torture or inhuman treatment (para [215])
  • where there is a credible allegation of a grave or serious crime, the police must investigate in an efficient and reasonable manner which is capable of leading to the identification and punishment of the perpetrator (para [216])
  • the duty is one of means and not results—the breach occurs regardless of whether the investigation in fact results in arrest, charge and conviction (para [217])
  • whether the breach has occurred is measured by the conduct of the police over a relevant time frame (para [218])
  • efficiency and reasonableness of an investigation takes account of its promptitude (para [219])
  • a successful prosecution within a reasonable time will render operational failures irrelevant (non-justiciable) (para [220])
  • not every failing attracts liability (para [221])
  • the mere fact that a civil claim against an offender has succeeded and/or that disciplinary measures have been taken against defaulting officers, does not expunge liability (para [222])
  • investigative failings may be systemic or operational (para [223])
  • the process of determining whether an investigation was reasonable or capable of leading to a result is a fact sensitive exercise—the law must not impose an excessive burden on the police (para [224]

Does this change the position since Osman?

Osman v United Kingdom [1998] ECHR 23452/94 concerned the application of ECHR, art 2, the right to life. It concerned only the preventative duty of ECHR, art 2 and says nothing about the duty to investigate. The case law over time has extended the principle established in Osman to:

  • ECHR, art 3 (Z v United Kingdom [2001] ECHR 29392/95)
  • a duty to investigate ECHR, art 2 cases where an act is committed by a private party towards a victim in the custody of the State (Edwards v United Kingdom [2002] ECHR 46477/99)
  • a duty to investigate acts committed by private parties under ECHR, art 3 (MC v Bulgaria [2003] ECHR 39272/98)

Essentially, the present case establishes that the duty identified in MC v Bulgaria and followed in subsequent Strasbourg jurisdiction applies under HRA 1998 in UK law and that police are under a duty to effectively investigate rape and other serious violent crimes committed by private individuals.

The defendant/police attempted to conflate two different types of investigative obligations that arise under ECHR, art 3. There is an adjectival duty to conduct an investigation into potential breaches of the state’s positive obligations (eg if someone potentially suffers inhumane and degrading treatment whilst in police custody, there will be a duty to investigate that). However, the adjectival duty is entirely different from the free standing positive obligation to establish criminal law systems proscribing ECHR, art 3 treatment and effectively investigating allegations of such ill treatment through those systems.

The defendant also argued in this case, relying on Menson v United Kingdom [2003] ECHR 47916/99, that as ultimately there had been a successful prosecution and conviction of the perpetrator in this case, therefore the investigative obligation had been met. The judge distinguished this from Menson, by highlighting promptitude—ie reasonable expedition. In this case the judge found that the failure to prosecute earlier had led to many more victims being put at risk.

What should lawyers take from this case?

This is an important case particularly for those engaged in litigation against the police as it may offer a way round the absolute negligence immunity principle established in Hill v Chief Constable of West Yorkshire [1989] AC 53, [1988] 2 All ER 238. There have been a number of judgments since where this principle—that there are public policy grounds that the police should be immune from negligence actions arising from defective investigations—have been explored but this is one of the first judgments which provides a comprehensive analysis and clearly provides a small opening and opportunity to hold the police to account for serious failings.

This is very important in relation to the issue of police investigating rape, as recent research shows that little has changed in terms of attrition rates and the police ability to translate policy into practice leaves a great deal to be desired. I have been contacted by a number of people and groups working with rape victims to express the hope that this judgment and the ability to hold the police to account for serious failures may make a difference to practice on the ground. What was clear in this case is that the policies and practice guidance were sound but officers on the ground weren't trained or supervised to implement them.

Harriet Wistrich specialises, primarily, in private law actions against the police and other state authorities. She has developed a particular expertise in the field of holding the state to account in relation to issues of violence against women and, in addition to DSD and NBV, has recently been acting for eight women bringing a claim against the Metropolitan Police arising from undercover officers having fraudulent intimate sexual relationships with women, and for women who have been victims of sexual abuse within immigration detention.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on  Lexis®PSL Personal Injury on 13 March 2014. Click  here for a free trial of Lexis®PSL.

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