DSD AND NBV V COMMISSIONER OF POLICE FOR THE METROPOLIS [2014] EWHC 436 (QB)
Child Abuse Compensation Claim – Human Rights
FACTS:-
This was a case concerning a claim for declarations and damages brought by two victims of the convicted "black cab rapist" John Worboys, who over the course of 2002 to 2008 committed well in excess of 100 rapes and sexual assaults on women whom he was carrying in his cab. The claims were brought under sections 7 and 8 of the Human Rights Act 1998. The substance of the case concerned Article 3 of the Human Rights Convention and the failure to the police to apprehend Mr Worboys earlier.
JUDGMENT:-
Mr Justice Green said that under the common law, the police did not owe a duty of care in negligence in relation to the investigation of a crime.
The question in this particular case was whether the HRA imposed a duty, and if whether it was breached on the evidence before the court.
Green J considered the methodology in the crimes of John Worboys. He had drugged his victims, making it difficult for them for give evidence to the police. The police had issued guidance in 2002, which stressed the importance of an early and correct identification of a woman as a victim of sexual assault. However the evidence showed that this guidance had not been properly implemented.
Green J had come to the conclusion that the Defendant was liable to both Claimants for breach of the Human Rights Act 1998. That finding related to the period 2003 to 2009, but Green J would make no findings in relation to the period thereafter.
Green J had identified a number of systemic failings:-
a) a failure on the part of the Metropolitan Poilce to train officers in dealing with sexual assault and drug induced sexual assault.
b) a failure by senior officers to supervise junior officers
c) serious failures in relation to cross checking intelligence
d) a failure to maintain the confidence of victims in the investigative process
e) a failure to allocate sufficient resources
Green J considered the modus operandi of Mr Worboys and the history of the investigation into DSD's allegations. Her assault had occurred in May 2003 but the investigation was closed in February 2004 without Worboys being identified or any prosecution begin brought. Subsequently between 2003 and 2008 Worboy perpetrated some 100 sexual assaults and rapes. Only a small minority of these were reported to the police. Green J said that the court now knew that during this period some 8 other complaints were made to the Metropolitan Police of assaults by Worboys, all bearing his familiar hall marks, together with an allegation of curb crawling in 2006.
Green J turned to the position of NBV and went over the details of her case.As a result of her allegations, Worboys had been arrested in July 2007. There were inconsistencies in his account of events, in particular the time at which NBV had left a nightclub prior to getting into Worboys cab. Regrettably the nightclub gave the police the CCTV for the wrong day. Other pieces of evidence were also missed and the case did not proceeding. Then in February 2008 an article appeared in the Sun newspaper about a suspected black cab rapist, at which point NBV's case was reopened.
Green J then considered the psychiatric evidence in relation to DSD. Psychiatrists instructed by both sides had been instructed to consider 1) whether DSD suffered from any psychiatric disorders which might be attributable in part to the impact of the police failures 2) to provide a diagnosis, including the degree of severity and the treatment 3) to explore whether and to what extent any mental conditions she may have suffered were capable of explaining her delay in bringing proceedings. The time limit for bringing a claim under the Human Rights Act 1998 was one year, and this had expired in both DSD and NBV's cases.
Green J considered the opinions of each psychiatrist and their joint statement. DSD had no current mental disorder, although she had experienced mental health difficulties since her experience in 2003. The Claimant's psychiatrist attributed her depressive disorder to the police investigation, whereas the Defendant's psychiatrist said that there was no reliable or objective way of attributing causation due to the absence of corroborative evidence. There had been no significant treatment for mental disorder since the assault in 2003 nor any significant absence from work. Some specialist treatment was required for the future and difficulties might persist after that time.
In relation to NBV, the two psychiatrists instructed by both sides concluded that at present she did not exhibit symptoms of mental disorder, but she reported persistent emotional problems. She had mental health difficulties as a result of the assault. At some periods of time she had suffered PTSD. Both experts were agreed that there was no reliable method of attributing her post assault condition to any particular prior event or the subsequent investigation. She had not had any significant treatment or absence from work. Some specialist treatment might be warranted.
Green J then turned to the identification, arrest and prosecution of Worboys. The process of his arrest had begun with a cold case review conducted by Operation Sapphire which linked four similar cases. This had been done by running through the police computer the terms "black cab", "won money" and "alcohol". Within 8 days Worboy was arrested and the incriminating evidence that convicted him was found.
Green J said that the Claimants alleged that the police had failed to follow their own guidelines. The relevant guidance at the time of the sexual assault on DSD was Special Notice 11/02 (9th August 2002). Green J also considered other policies. A report had been produced on the 2nd October 2008 by the police which highlighted the systemic failings to apprehend Worboys over many years. DSD and NBV had also made complaints to the Independent Police Complaints Commission. Green J considered their determinations, which had not upheld every complaint made by the complainants. There had also been a report produced by the police, which sought to draw together the lessons learned from what had happened.
Green J then considered the caselaw under Article 3 from the European Court of Human Right in Strasbourg and the European Convention on Human Rights and the following cases:-
Green J extrapolated the following principles from the caselaw.
1) Article 3 of the European Convention imposed a duty upon the police the investigate which covered the entire span of a case from investigation to trial.
2) The duty was not conditional upon the State being guilty of misconduct itself. It arose in cases where the police were entirely free of any responsibility for the infliction of violence.
3) The duty was triggered where there was a credible or arguable claim that a person had been subject to treatment at the hands of a private party which met the description of torture or degrading or inhuman treatment.
4) Rape and sexual assault fell within the category of Article 3.
5) Where an allegation falling under Article 3 was made, the police had to investigate in an efficient or reasonable manner, which was capable of leading to the identification or punishment of the perpetrator.
6) The duty was one of means not results.
7) Where a breach had occurred, it was measured by viewing the conduct of the police over a relevant time frame.
8) Efficiency included the concept of reasonable expedition.
9) Efficiency also included whether the offender was adequately prosecuted
10) Not every failing would attract liability
11) The mere fact that a civil claim against the offender had succeeded along with disciplinary action against the police was not sufficient to expunge liability.
12) Investigative failings might be systemic or operational
13) Each case was fact sensitive, as well as subject to a margin of appreciation and to proportionality.
There were other points raised in the cases.
The real issue here was whether such a duty was justiciable, and whether it had been breached.
Green J would interpret the Human Rights Act as imposing a duty on the police in circumstances such as the present for the following reasons:-
Consequently the duty contended for by the Claimants existed. There were a number of systemic failures in these two cases, a failure to provide training to relevant police officers, a failure in supervision and management of police officers, a failure to use intelligence resources, a failure to maintain confidence with victims and a failure to allocate appropriate resources. There were also operational failures in both cases.
Green J would now hear submissions on quantum.
Child Abuse Compensation Claim – Human Rights
FACTS:-
This was a case concerning a claim for declarations and damages brought by two victims of the convicted "black cab rapist" John Worboys, who over the course of 2002 to 2008 committed well in excess of 100 rapes and sexual assaults on women whom he was carrying in his cab. The claims were brought under sections 7 and 8 of the Human Rights Act 1998. The substance of the case concerned Article 3 of the Human Rights Convention and the failure to the police to apprehend Mr Worboys earlier.
JUDGMENT:-
Mr Justice Green said that under the common law, the police did not owe a duty of care in negligence in relation to the investigation of a crime.
- Hill v Chief Constable of West Yorkshire [1989] AC 53
- Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495
- Smith v Chief Constable of Sussex [2009] 1 AC 225
The question in this particular case was whether the HRA imposed a duty, and if whether it was breached on the evidence before the court.
Green J considered the methodology in the crimes of John Worboys. He had drugged his victims, making it difficult for them for give evidence to the police. The police had issued guidance in 2002, which stressed the importance of an early and correct identification of a woman as a victim of sexual assault. However the evidence showed that this guidance had not been properly implemented.
Green J had come to the conclusion that the Defendant was liable to both Claimants for breach of the Human Rights Act 1998. That finding related to the period 2003 to 2009, but Green J would make no findings in relation to the period thereafter.
Green J had identified a number of systemic failings:-
a) a failure on the part of the Metropolitan Poilce to train officers in dealing with sexual assault and drug induced sexual assault.
b) a failure by senior officers to supervise junior officers
c) serious failures in relation to cross checking intelligence
d) a failure to maintain the confidence of victims in the investigative process
e) a failure to allocate sufficient resources
Green J considered the modus operandi of Mr Worboys and the history of the investigation into DSD's allegations. Her assault had occurred in May 2003 but the investigation was closed in February 2004 without Worboys being identified or any prosecution begin brought. Subsequently between 2003 and 2008 Worboy perpetrated some 100 sexual assaults and rapes. Only a small minority of these were reported to the police. Green J said that the court now knew that during this period some 8 other complaints were made to the Metropolitan Police of assaults by Worboys, all bearing his familiar hall marks, together with an allegation of curb crawling in 2006.
Green J turned to the position of NBV and went over the details of her case.As a result of her allegations, Worboys had been arrested in July 2007. There were inconsistencies in his account of events, in particular the time at which NBV had left a nightclub prior to getting into Worboys cab. Regrettably the nightclub gave the police the CCTV for the wrong day. Other pieces of evidence were also missed and the case did not proceeding. Then in February 2008 an article appeared in the Sun newspaper about a suspected black cab rapist, at which point NBV's case was reopened.
Green J then considered the psychiatric evidence in relation to DSD. Psychiatrists instructed by both sides had been instructed to consider 1) whether DSD suffered from any psychiatric disorders which might be attributable in part to the impact of the police failures 2) to provide a diagnosis, including the degree of severity and the treatment 3) to explore whether and to what extent any mental conditions she may have suffered were capable of explaining her delay in bringing proceedings. The time limit for bringing a claim under the Human Rights Act 1998 was one year, and this had expired in both DSD and NBV's cases.
Green J considered the opinions of each psychiatrist and their joint statement. DSD had no current mental disorder, although she had experienced mental health difficulties since her experience in 2003. The Claimant's psychiatrist attributed her depressive disorder to the police investigation, whereas the Defendant's psychiatrist said that there was no reliable or objective way of attributing causation due to the absence of corroborative evidence. There had been no significant treatment for mental disorder since the assault in 2003 nor any significant absence from work. Some specialist treatment was required for the future and difficulties might persist after that time.
In relation to NBV, the two psychiatrists instructed by both sides concluded that at present she did not exhibit symptoms of mental disorder, but she reported persistent emotional problems. She had mental health difficulties as a result of the assault. At some periods of time she had suffered PTSD. Both experts were agreed that there was no reliable method of attributing her post assault condition to any particular prior event or the subsequent investigation. She had not had any significant treatment or absence from work. Some specialist treatment might be warranted.
Green J then turned to the identification, arrest and prosecution of Worboys. The process of his arrest had begun with a cold case review conducted by Operation Sapphire which linked four similar cases. This had been done by running through the police computer the terms "black cab", "won money" and "alcohol". Within 8 days Worboy was arrested and the incriminating evidence that convicted him was found.
Green J said that the Claimants alleged that the police had failed to follow their own guidelines. The relevant guidance at the time of the sexual assault on DSD was Special Notice 11/02 (9th August 2002). Green J also considered other policies. A report had been produced on the 2nd October 2008 by the police which highlighted the systemic failings to apprehend Worboys over many years. DSD and NBV had also made complaints to the Independent Police Complaints Commission. Green J considered their determinations, which had not upheld every complaint made by the complainants. There had also been a report produced by the police, which sought to draw together the lessons learned from what had happened.
Green J then considered the caselaw under Article 3 from the European Court of Human Right in Strasbourg and the European Convention on Human Rights and the following cases:-
- Osman v United Kingdom 29 EHRR 245 28th October 1998
- Z & Others v United Kingdom 34 EHRR 3 10th May 2001
- Edwards v United Kingdom 35 EHRR 19 14th March 2002
- Menson v United Kingdom [2003] EHRR CD 6th May 2003
- MC v Bulgaria (2005) EHRR 20 4th December 2003
- Szula v United Kingdom (2007) 44 EH44 SE19
- Secic v Croatia (2009) 49 EHRR 408 (31st May 2007)
- Ali and Ayse Duran v Turkey Application No. 42942/08 (8th April 2008)
- Beganovic v Croatia Application No. 46423/06 (25th September 2009)
- Denis Vasilyev v Russia App No 32704/04 (17th December 2009)
- Milanovic v Serbia App No 44614/07 (14th December 2010)
- CAS & CS v Romania App No 26692/05 (20th March 2012)
- Koky & Others v Slovakia App. No. 13624/03 (12th June 2012)
- Sizarev v Ukraine App No. 17116/04 (17th January 2013)
Green J extrapolated the following principles from the caselaw.
1) Article 3 of the European Convention imposed a duty upon the police the investigate which covered the entire span of a case from investigation to trial.
2) The duty was not conditional upon the State being guilty of misconduct itself. It arose in cases where the police were entirely free of any responsibility for the infliction of violence.
3) The duty was triggered where there was a credible or arguable claim that a person had been subject to treatment at the hands of a private party which met the description of torture or degrading or inhuman treatment.
4) Rape and sexual assault fell within the category of Article 3.
5) Where an allegation falling under Article 3 was made, the police had to investigate in an efficient or reasonable manner, which was capable of leading to the identification or punishment of the perpetrator.
6) The duty was one of means not results.
7) Where a breach had occurred, it was measured by viewing the conduct of the police over a relevant time frame.
8) Efficiency included the concept of reasonable expedition.
9) Efficiency also included whether the offender was adequately prosecuted
10) Not every failing would attract liability
11) The mere fact that a civil claim against the offender had succeeded along with disciplinary action against the police was not sufficient to expunge liability.
12) Investigative failings might be systemic or operational
13) Each case was fact sensitive, as well as subject to a margin of appreciation and to proportionality.
There were other points raised in the cases.
- The need to avoid an unacceptable burden being imposed upon the police
- There should be no difference in the duty relating to Article 2 (the right to life) and Article 3.
- There should be no difference between a risk of violation of Article 3 and an actual violation.
- Vulnerability might be an additional reason for finding a breach of Article 3, but it was not an essential requirement
- The court in Strasbourg was not a primary fact finder – it adopted a broad brush or nuts and bolts approach to the evidence.
The real issue here was whether such a duty was justiciable, and whether it had been breached.
Green J would interpret the Human Rights Act as imposing a duty on the police in circumstances such as the present for the following reasons:-
- Strasbourg case law was consistent and settled
- The test articulated by that caselaw did not open up a “Pandora’s Box” for the police in terms of liability
- The duty did not jar with common law traditions
- The conclusion was not one which the domestic courts had objected.
Consequently the duty contended for by the Claimants existed. There were a number of systemic failures in these two cases, a failure to provide training to relevant police officers, a failure in supervision and management of police officers, a failure to use intelligence resources, a failure to maintain confidence with victims and a failure to allocate appropriate resources. There were also operational failures in both cases.
Green J would now hear submissions on quantum.