18 Mar 2018

The police duty to effectively investigate

Commissioner of Police of the Metropolis v DSD & Anor [2018] UKSC 11

Trinidad and Tobago citizens (Trinidadians) may be wondering why I choose to write about the case of Commissioner of Police of the Metropolis v DSD & Anor [2018] UKSC 11 (DSD), arising out of the United Kingdom’s (UK) Supreme Court (SC). This case has basically turned the concept of policing on its head and will therefore affect police forces in many Commonwealth and common-law regions.

Did it establish new principles? I like to think DSD clarified principles that were already recognised in law, but which the Supreme Court (SC) found need to reiterate in clearer terms. The issues to be decided were:

(i) Is it a public duty or one owed to individual victims of the breach of Article 3 ECHR?

(ii) Is it a system or an operational duty?

(iii) Does the duty to investigate breaches of Article 3 in relation to a particular individual arise only when it is alleged that state authorities are complicit in the breach?

(iv) If the duty comprehends an obligation to investigate breaches of Article 3, even if there is no involvement of state agents, is there a right to claim compensation against the state?

(v) Should the fact that a victim can obtain redress against an offender or make a claim under the CICA scheme affect consideration of the availability of a right to compensation under HRA?

(vi) In this context, is it relevant that UK courts have, so far, refused to recognise a common-law duty of care on the police in relation to the manner in which officers prevent and investigate crime?

(vii) Finally, it is suggested that it would require the clearest statement in consistent decisions of the European Court of Human Rights (ECtHR) Grand Chamber to the effect that a positive duty was owed by the state to individuals who suffered treatment contrary to Article 3 at the hands of another individual before holding that the investigative duty of the state was animated. If ECtHR jurisprudence is found to be less than clear, the appropriate course was to allow the government to deploy its arguments in Strasbourg - R (Ullah) v Special Adjudicator [2004] 2 AC 323.

The issues from (i) to (v) are the most relevant to this analysis which is about how the judgment affects Trinidad and Tobago, under the common-law. First, let’s get some background.

Background

From 2003 to 2008, John Warboys, a black-cab driver in London, committed over 100 rapes. Various victims had made reports to the London Police (the Metropolitan Police or ‘Met’). The Met failed at both a systemic and an operational level to investigate the claims, as later determined by independent investigators. The list of failures ranged from a fundamental failure to provide adequate resources and training to officers, to specific operational failures such as failing to interview key eye witnesses and gather CCTV. Two of the victims sued the police, citing the failure of the Met led to rapes that could have been avoided, and that Warboys would have been caught earlier had a proper and effective investigation been done.

Grounds for lawsuit

The two victims, DSD and NBV (the Court has ordered their identities be concealed), sued under Article 3 of the European Convention on Human Rights (ECHR) which states:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

I will deal with the significance of the human rights issue a bit later. For now, I want to deal with why this action (the lawsuit on the human rights ground) is so important.

The significance of the lawsuit

Prior to this case, there has been a “rule” that the police could not be sued for failure to protect an individual. The authority for this is Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 (Hill). The background to Hill is this:

Jacqueline Hill was the final victim of Peter Sutcliffe (the ‘Yorkshire Ripper’). He had committed 13 murders and 8 attempted murders over a five-year period. Jacqueline's mother made a claim against the Chief Constable, on the grounds that the police had been negligent in their detection and detention of Sutcliffe. The defendant (the Chief Constable) applied to have the claim struck out on the grounds that there was no cause of action since no duty of care was owed by the police in the detection of crime.

In the Hill judgment, Lord Keith said this:

"Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities.

The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances, the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded.

Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes.

While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources.

Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and re-traversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.

I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind."

I have separated the above, which is a single paragraph from the judgment, into a more coherent style and any emphasis is mine.

Simply put, it was a matter of policy which prevents the police from having liability for failure to act in individual cases, thereafter known as the Hill Immunity. This view took a rather serious turn in the case of Michael & Ors v Chief Constable of South Wales Police & Anor [2015] UKSC 2 (Michael):

The Michael case arose from the tragic death of Ms Joanna Michael on 5th August 2009. Ms Michael rang the police in the early hours of the morning after her ex-boyfriend had found her with another man and threatened to assault her.

Using her mobile phone, Ms Michael dialled ‘999’ but her signal was picked up by Gwent Police in the neighbouring county and not South Wales Police, her local police force. Ms Michael told the Gwent Police operator that her ex-boyfriend had threatened to hit her and may also have said that he was going to come back and kill her.

The Gwent Police operator referred the incident to South Wales Police and informed Ms Michael that they would ring her back. The operator made no reference to a threat to Ms Michael’s life when referring the call to her counterparts and South Wales Police informed its officers on patrol that the incident did not require an immediate response.

Approximately 20 minutes later, Gwent Police received another emergency call from Ms Michael in which the operator heard screaming before the call was cut off.

The operator upgraded the urgency of the incident but when officers arrived at Ms Michael’s address they found her dead. Ms Michael’s ex-boyfriend was found guilty of murder and her family sued the police for negligence.

The rationale for police immunity is that the prospect of litigation would transform the operational priorities of the police. Instead of focusing on their primary public function, the argument goes that fears about being sued might lead police officers to perform their duties with an unduly “defensive” frame of mind – criticised as “hysterical exaggerations” by some academics.

The Supreme Court, by a majority of 3 to 2, disallowed Miss Michael’s family’s claim, thus keeping the Hill immunity in place. Lord Toulson basically said that the only person to be blamed for harm is the person who caused it. What is more important is the two dissenting but powerful judgments by Lord Kerr and Lady Hale. Lord Kerr made 2 important points:

1. there was no empirical evidence that supported the public policy view that there would be dire consequences if liability of the police were to be recognised, but the fundamental principle that legal wrongs should be remedied would certainly offset any public policy view.

2. The principle that the general public is exempted from liability for failure to protect others from harm ought not to apply to the police because the police force is mandated to provide exactly that type of protection: it is “the essential and critical obligation of the police force”.

Still, the Hill immunity remains in place, although there have been three cases since which have whittled away at its perceived absoluteness.

In Robinson v Chief Constable for West Yorkshire Police [2018] UKSC 4 (Robinson), the elderly Mrs Robinson was knocked over and sustained injuries when two police officers attempted an arrest of an alleged drug dealer. The Supreme Court was of the view that the police are, like everyone else, under a general duty of care not to cause personal injury especially those which they themselves have caused.

In Osman v United Kingdom 29 EHRR 245 the Court was clear – there is a positive obligation on the State to protect an individual from threats by private parties (non-State agents) once the threat is sufficiently clear and identifiable.

And in the present case of DSD, the court found that the Article 3 right was breached by the failure of the police to carry out an effective investigation. Therefore,

the state is obliged under art 3 to conduct an effective investigation into crimes which involve serious violence to persons, whether that has been carried out by state agents or individual criminals. Further, in order that the protective right should be practical and effective, an individual who has suffered ill-treatment contrary to art 3 has a right to claim compensation against the state where there has been a failure by state authorities to conduct a sufficient investigation into the crime.” [Lord Kerr]

Lord Kerr also dealt very efficiently with the policy arguments:

“Carrying out police investigations efficiently should not give rise to a diversion of resources. On the contrary, it should lead to more effective investigation of crime, the enhancement of standards and the saving of resources. There is no reason to suppose that the existence of a right under art 3 to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and to deter, indeed eliminate, the making of such grievous mistakes.”

The significance of this judgment to Trinidad and Tobago

Although the ECHR is not directly applicable in Trinidad and Tobago, its effects are seen in the law’s application of judgments coming from the Privy Council. There are two very good reasons for this:

(a) due to the principle of stare decisis (precedent), the common-law is influenced by important judgments in all common-law regions, and

(b) human rights are universal.

Section 4 of the Trinidad and Tobago Constitution specifies the rights of citizens. Note that it does not expressly grant a similar right such as Article 3 ECHR. You may wonder then why I am saying that the DSD judgement is relevant to Trinidad and Tobago.

Section 4(a) states:

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

Clearly, from the established common-law cited above, it is obvious that the State is under positive obligations to safeguard its citizens and ensure their rights are respected. Indeed, case law influence is passed to all common-law regions as a matter of precedent because it clarifies what the law is with regard to similar situations. Thus the police in Trinidad and Tobago, serving a similar function and working under the same legal structure as the UK, would have the same duty of care, responsibilities and liability as the UK police.

In much the same way as the Pratt and Morgan judgment prevents “inhuman and degrading punishment” (of hanging after being five years on death row), so too the DSD judgment will be applicable to Trinidad and Tobago. After all, individuals have a right to life and security of the person.

The DSD judgment is very important as it clearly states that the police must carry out effective investigations. Failure to do so will enable victims to take civil legal action against the Commissioner of Police and the State.

Why this is important is of course, the current dismal performance of the police. Poor performance in murder investigations, domestic violence, other types of serious crimes have shown significant increase in these crime rates rates. Coupled with the piss-poor attitude of the police, sadly, I foresee quite a lot of pay-outs to victims in the near future. THAT is why the DSD judgment is relevant.