DSD v COMMISSIONER OF POLICE FOR THE METROPOLIS

Transcript:DSD v COMMISSIONER OF POLICE FOR THE METROPOLIS:
DSD v COMMISSIONER OF POLICE FOR THE METROPOLIS Damages liability under the Human Rights Act: when can a victim of crime sue the police for failing to investigate? Ruth Brander, Doughty Street Chambers 6 key questions When does a duty to investigate arise? State complicity or is private crime enough? What level of breach? Who counts as a victim? What is the relationship between HRA liability and the common law position? Will damages be awarded? What about investigative duties arising from other rights? DSD & NVB were victims of black cab rapist John Warboys Warboys sexually assaulted over 105 women DSD early victim – May 2003 NVB one of last victims – July 2007 Warboys finally arrested in Feb 2008 Convicted March 2009 Sentenced to indeterminate sentence min term 8 yrs DSD & NVB’s complaint Serious failings in police response to their allegations Breach of duty to investigate – Article 3 and Article 8 When does a duty to investigate arise? Police accepted duty to investigate where state complicit, but argued no duty for purely private crime – or, alternatively, that duty limited to putting in place structures to enable investigation to take place Is state complicity required? No. Positive obligation under A3 to protect those within jurisdiction from ill-treatment includes duty to take measures designed to ensure protection against ill-treatment administered by private persons. Lord Kerr [59]-[62] Investigation of alleged breach important aspect of protection “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 properly to investigate reported offences and allegations of ill-treatment, which is summarised with approval in O’Keeffe v Ireland (2014) 59 EHRR 15, para 172” Lord Kerr JSC, DSD [24]; Lord Mance (grudgingly) [150] What level of breach Systemic or operational? What level of breach (2) There does not have to be a structural deficiency - egregious errors in the investigation can amount to a breach. Lord Kerr JSC [30] & [58]; Lord Neuberger [85] & [92]-[99] “given that it is rightly accepted on all sides that the authorities have an investigatory duty, it would be of little value unless it was a duty to investigate effectively” Lord Neuberger [92] What level of breach (3) “simple errors or isolated omissions will not give rise