Commissioner of Police of the Metropolis v DSD & Anor (Rev 1) [2018] UKSC 11

Two victims of serial rapist black cab driver John Worboys sued the Metropolitan Police for failures in investigating his crimes. The Supreme Court held that article 3 ECHR imposes an investigative duty on police, and serious operational failures can breach it, entitling victims to compensation.

Facts

Between 2003 and 2008, John Worboys, a London black cab driver, committed a large number of sexual offences against women, including rape facilitated by stupefying drinks. DSD was attacked in 2003 and NBV in July 2007. The Metropolitan Police Service (MPS) investigated numerous complaints during this period but failed to link them or identify Worboys as a serial offender until 2008, when he was arrested and swiftly convicted on the basis of compelling evidence. DSD and NBV brought claims under sections 7 and 8 of the Human Rights Act 1998 (HRA), alleging that police failures to investigate constituted a breach of article 3 ECHR (prohibition of inhuman or degrading treatment). Green J found for the claimants and awarded damages; the Court of Appeal upheld that decision. MPS appealed to the Supreme Court. MPS accepted that serious sexual assaults had occurred and that there were significant investigative failures.

Issues

The principal issue was the nature and scope of the duty on the state under article 3 ECHR to investigate alleged ill-treatment. Specific sub-issues included:

• Whether the duty is owed to the public generally or to individual victims;
• Whether it is a systemic (structural) duty only or also an operational duty;
• Whether the duty arises only where state agents are implicated in the ill-treatment, or extends to acts by private individuals;
• Whether a victim may claim compensation under HRA for breach of that duty;
• Whether the availability of redress against the offender or under the CICA scheme affects the right to HRA compensation;
• Whether the domestic common-law rule that police owe no duty of care in investigating crime (Hill; Michael) should influence the HRA analysis;
• Whether the court should defer to Strasbourg and decline to recognise such a duty absent clearer Grand Chamber authority.

Arguments

Appellant (MPS) and Secretary of State

The police duty to investigate crime is public, owed to the community rather than individuals. Insofar as article 3 imposes a positive obligation regarding non-state actors, this is limited to enacting adequate legal structures, not operational matters of individual investigations. The investigative duty in individual cases arises only where state agents are complicit. The jurisprudence traces back to Assenov v Bulgaria, which concerns state agents. Consistency with domestic common law (which rejects a private duty of care) supports a narrow reading. Absent clear and constant Strasbourg Grand Chamber authority imposing a wider duty, the matter should be left to Strasbourg.

Respondents (DSD and NBV)

The state has a positive protective duty under article 3 to conduct an effective investigation into serious crimes of violence, whether committed by state agents or private individuals. This duty is enforceable by individuals who have suffered prohibited treatment. Strasbourg jurisprudence after MC v Bulgaria constitutes clear and constant authority supporting this. Public-policy reasons underlying the common-law exemption do not apply to HRA claims, which serve distinct objectives of vindicating Convention rights.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Kerr (with whom Lady Hale agreed) gave the leading judgment, with concurring judgments from Lord Neuberger (with Lady Hale) and Lord Mance. Lord Hughes agreed the appeal should be dismissed but dissented on scope.

Lord Kerr’s reasoning

Lord Kerr examined the Strasbourg jurisprudence including MC v Bulgaria, Szula, Šečić, Beganović, Vasilyev, Milanović, CAS v Romania, O’Keeffe v Ireland, and BV v Belgium. He concluded that these authorities form a clear and constant line establishing that article 3 imposes on the state an obligation to conduct an effective investigation into serious violent crimes, whether perpetrated by state agents or private individuals. The duty has two aspects: a systemic duty to have adequate criminal-law structures, and an operational duty to apply them through effective investigation and prosecution. State complicity is not a prerequisite. Only conspicuous or substantial operational failures will amount to breach — not minor errors or isolated omissions. Quoting MC v Bulgaria para 153:

… the court considers that states have a positive obligation inherent in articles 3 and 8 of the Convention to enact criminal-law provisions, effectively punishing rape and to apply them in practice through effective investigation and prosecution.

Green J’s detailed findings disclosed numerous serious operational failings, including failing to record relevant details, failing to interview key witnesses, failing to secure CCTV evidence, failing to link multiple complaints, and failing to conduct searches. These were not attributable solely to structural or training deficiencies, and were sufficiently egregious to constitute a breach of article 3.

Compensation

Compensation under HRA serves different aims from tortious damages, being intended to vindicate Convention rights. Lord Brown in Van Colle was cited:

… Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights…

The fact that claimants had received payments from Worboys and CICA did not preclude HRA compensation.

Relationship with common law

The common-law rule (Hill, Michael) that police owe no duty of care in crime investigation does not constrain the HRA analysis, as the bases of liability and underlying policy considerations differ. Proximity and “fair, just and reasonable” considerations do not readily translate to the Convention context.

Lord Neuberger’s concurrence

Lord Neuberger expressly favoured the wider approach — that serious operational failures alone suffice to breach article 3, even absent systemic defects. He considered this supported by Strasbourg jurisprudence and by principle, noting the practical difficulties of categorising failures as systemic or operational, and the risk of formalism if only structural defects sufficed. He emphasised that only serious defects give rise to breach.

Lord Mance’s position

Lord Mance acknowledged the force of Lord Hughes’s critique of how Strasbourg extended the Assenov principle without clear rationale in MC v Bulgaria. Nevertheless, he accepted the current clear direction of Strasbourg caselaw. He emphasised caveats: the scope of the duty may differ in state-agent cases; isolated errors do not suffice; and only conspicuous or substantial failures breach article 3.

Lord Hughes’s dissent on scope

Lord Hughes agreed the appeal should be dismissed because there were structural errors in MPS’s handling of drug-induced rape complaints, but considered the ancillary positive obligation should be limited to ensuring a proper legal and policing structure, administered in good faith and with proper regard for the gravity of offending. He warned that extending article 3 to operational failings could open the door to wholesale review of police investigations, divert resources, and encourage defensive policing, echoing the policy concerns underpinning Hill and Michael.

Strasbourg and the mirror principle

Lord Kerr rejected the submission that the court should defer to Strasbourg where guidance was said to be unclear. Section 6 HRA requires domestic courts to determine whether Convention rights have been breached. Even where Strasbourg has not spoken definitively, domestic courts must decide for themselves.

Implications

The decision confirms that article 3 ECHR imposes on the state, through the police, a positive operational duty to conduct an effective investigation into credible allegations of serious violent or sexual crime, whether committed by state agents or private individuals. A breach of this duty by way of serious operational failings — not merely structural or systemic defects — can found a claim for compensation under sections 7 and 8 HRA.

The judgment clarifies that:

• Only conspicuous, substantial or egregious failures will amount to a breach; minor errors or isolated omissions will not;
• HRA claims serve a distinct purpose (vindication of rights) from common-law tort claims (compensation), so the absence of a common-law duty of care owed by police (Hill, Michael) does not bar HRA liability;
• Receipt of damages from the offender or CICA does not automatically preclude HRA compensation;
• State complicity is not required to trigger the investigative duty.

The decision matters to victims of serious crime, particularly of sexual offences, whose complaints are inadequately investigated, and to police forces, which must ensure investigations of serious offences meet the article 3 standard. The majority was alive to but rejected concerns that the decision would open the floodgates to litigation over routine investigative errors. The judgment does not establish a general right to damages for negligent policing; it is confined to grave failures in investigating conduct meeting the article 3 severity threshold. The boundary between trivial errors and serious failures, and between operational and systemic defects, remains fact-sensitive. Lord Hughes’s dissent highlights unresolved tensions with policy considerations underlying the common-law immunity and flags the risk that Convention-based claims may in practice approximate tort actions. The decision is significant in the broader development of human rights law, affirming that Convention rights have real operational content enforceable against public authorities in domestic law.

Verdict: Appeal dismissed. The Supreme Court upheld the decisions of Green J and the Court of Appeal that the Metropolitan Police had breached article 3 ECHR through serious failures in investigating the sexual assaults committed by John Worboys against DSD and NBV, and that the claimants were entitled to compensation under the Human Rights Act 1998.

Source: Commissioner of Police of the Metropolis v DSD & Anor (Rev 1) [2018] UKSC 11