Jeremy Johnson QC and Mark Thomas appear for the Metropolitan Police and Dijen Basu QC represents Greater Manchester Police in the first 2 cases to reach the Court of Appeal on the existence and scope of any investigative duty arising pursuant to Article 3 ECHR.
The Court of Appeal rejected the appeal of the Metropolitan Police against Green J’s judgment holding them liable in damages to 2 victims of John Worboys – the ‘black cab rapist’ – DSD and NBV. They rejected an appeal brought by Alio Koraou, a man who had had his ear partly bitten off in an attack in a bar, against Greater Manchester Police.
DSD and NBV were two of a likely 105 victims of sex attacks committed by Worboys – DSD being one of his first victims and NBV one of his last (although there were 29 more victims after her). Green J found that there were a number of serious systemic failings by the Metropolitan Police Force which had, in turn, led to serious operational failures. He held them liable to DSD and NBV for damages for the investigatory failures, also holding them liable to NBV for the sexual assault upon her, which would not have occurred but for the failings concerned.
Koraou complained of, and the trial judge found proven, a number of operational (not systemic) shortcomings in the investigative steps carried out by the officer in the case. The trial judge had accepted GMP’s arguments that the gravity of the injury to Koraou was on the borderline of Article 3 harm and that that limited the required scope of any investigation. He also had accepted their argument that, where the credibility of the injured person was very low and so the prospects of a successful conviction were very low, that also reduced the required scope of the investigation. As a result, while the judge held that an investigatory obligation had arisen pursuant to Article 3 (following DSD at first instance), it had not been breached, despite a number of shortcomings in the police investigation.
The Metropolitan Police and Koraou appealed against their respective judgments.
The Court of Appeal (Lord Dyson MR, Laws & Kitchin LJJ) upheld Green J’s judgment in all material respects. They agreed that a credible or arguable claim that a person has been the victim of harm sufficiently serious to fall with the scope of Article 3 ECHR (even without any State complicity), triggers an investigative obligation on the part of the police, despite Article 3 being framed in negative terms (“[n]o-one shall be subjected…”). They held that Article 1 ECHR (which imposes the obligation on the contracting states to secure to everyone within their jurisdiction the convention rights), though not mentioned in the Human Rights Act 1998, has an analogue in that Act in the form of Section 6(1).
The Court held that there is a sliding scale from deliberate torture by State officials at one end, to the consequences of negligence on the part of non-State agents which engages the protective principle. They held that, at the lower end of the scale (e.g. negligence), the State’s provision of a judicial system of civil remedies will often suffice, and at the upper end (e.g., like DSD & NBV), where serious violence is inflicted by non-State actors, a ‘proper criminal investigation’ by the State will likely be required.
Crucially, the Court emphasised the difference between a claim in negligence (usually barred, in the case of police investigations, by Hill v Chief Constable of West Yorkshire  1 AC 53), and a Convention claim, is that the former is focussed on the effect on the claimant (i.e. the required element of damage)) but the latter is focussed on the State’s compliance with its obligations under the Convention, which may, as in the case of NBV, pre-date the damage.
In rejecting Koraou’s appeal, the Court of Appeal accepted that the nature and difficulty of the task the police face in apprehending a culprit will inform the steps that the Court will expect them to take. They upheld all of the trial judge’s findings in GMP’s favour.
The Metropolitan Police are seeking permission to appeal to the Supreme Court of the United Kingdom.
It hardly needs pointing out that the principles outlined by the Court of Appeal expose the police to the risk of very costly claims by those who have been killed or injured after an Article 2 or 3 investigative duty has arisen. Broadly speaking, the greater the harm, the better the investigation that will be required.