UK police have a human rights obligation to prevent rape through effective investigation and punishment

DSD and NBV v Commissioner of Police of the Metropolis [2014] EWHC 463 (28 February 2014)

The UK High Court has found that systemic failures by police during a criminal investigation may amount to torture, inhuman or degrading treatment under article 3 of the European Convention on Human Rights. The Court held that in cases of particularly severe violent acts, such as rape, the police have a duty to conduct an investigation in a timely and efficient manner. Operational failures by the police meant that a rapist was not apprehended as early as he could have been, leaving him at large to continue to rape a significant number of women. The manner in which the police behaved towards the victims of such crimes was also found to amount to a breach of article 3.

Facts

Two plaintiffs, DSD and NBV, were sexually assaulted by a taxi driver in London. DSD was assaulted in 2002 and NBV was assaulted in 2007. The perpetrator was not apprehended until 2008. Between 2002 and 2008 the perpetrator committed more than 105 rapes and sexual assaults upon women who were customers in his taxi cab. Each assault followed a similar strategy. The perpetrator would claim he had just won a lot of money and invite the customers to share a celebratory drink with him. The drink was spiked with date rape drugs that also had the effect of impairing memory. The perpetrator would then get into the back of the taxi with the customer, ostensibly to share a drink with her. Once the drugs took effect the perpetrator would then sexually assault the customer. The customer would generally wake up the next morning at home with little or no memory of what had occurred.

Both DSD and NBV reported their assaults to the police and a basic investigation followed. In both cases the police closed the case without making any arrests. In the second case the police in fact interviewed the perpetrator but then let him go.

The police did not apprehend the victim until 2008 after a routine search for key words in a crime database demonstrated that there were a number of sexual assaults which followed the same pattern. The perpetrator was apprehended, his place was searched and a substantial “rape kit” was discovered, including drugs, condoms, a vibrator and various small bottles of alcohol.

A number of reviews were undertaken into why it took so long for the police to apprehend the perpetrator. While there are guidelines and practice manuals in regard to allegations of serious violent crimes, particularly where drugs or alcohol are involved, these guidelines were neither taught nor followed. In addition, there was evidence that the victims’ accounts were not taken seriously or believed.

Under section 6 of the UK Human Rights Act 1998 a public authority is required to act in a way that is compatible with a Convention right. The plaintiffs brought a claim that the failure of the Metropolitan Police Service to conduct an effective investigation into their allegations for serious sexual assault amounted to a breach of article 3 of the European Convention on Human Rights.

Decision

The question before the court in this case is whether the HRA imposes a duty and, if so, whether the failures proved before the court are sufficient to amount to a breach of the HRA.

The judge found that there is a positive obligation inherent in article 3 to “apply law prohibiting rape through effective investigation and punishment”. The judge summarised a number of European human rights cases regarding police and public authority duties of care under human rights laws. He found that, among other things:

• Article 3 imposes a duty upon the police to investigate that covers the entire span of a case from investigation to trial.
• This duty is not conditional upon the State being directly or indirectly guilty of misconduct itself. Cases of violence by private parties also attract this duty.
• The duty is triggered where there is a credible or arguable claim that a person is a victim of torture or degrading or inhuman treatment; allegations that are grave or serious, including rape and sexual assault, will fall under this category.
• In such cases, police must investigate in an efficient and reasonable manner which is capable of leading to the identification and punishment of the perpetrator. This duty is one of means not results.
• An assessment of efficiency and reasonableness takes account of promptitude, whether the offender was adequately prosecuted, and looks at the entire conduct of police over the relevant timeframe, which could include from the time the first evidence is brought to police to the last point of the process.
• Only failings which are causally linked to the outcome, or the lack of an outcome, attract liability.
• The mere fact that a civil claim has been brought against the offender, or that defaulting officers have received disciplinary measures, is not sufficient to expunge liability under article 3.
• Investigative failings may be systematic or operational.
• The process of determining whether an investigation is reasonable or capable of leading to an arrest will depend on the facts of each case, but a margin of appreciation must be given.

The judge then went on to note that the failure to apprehend the perpetrator was related to the following failings:

• Systemic failings, such as failure to provide training to relevant officers; failures in supervision and management, including inappropriate clear up pressures; failure to use available intelligence resources; failure to maintain confidence of the victims; and failure to allocate appropriate resources; and
• Operational failures, such as failure to interview critical witnesses, to collect relevant evidence, or to believe the victim and to take her complaint seriously.

The judge concluded that the combination of failures amounted to a breach of both victims’ article 3 rights and that the police were liable for the damage suffered by each of the victims (being primarily psychological damage). For the second victim, the failure of the police to apprehend the perpetrator prior to her own sexual assault mean that the police were found to be liable “on the basis that its prior systemic and operational failures to investigate caused her to be raped”, as well as for the psychological damage caused by the failures in investigating her particular complaint.

Commentary

The police do not have a duty of care in negligence under the common law in relation to the investigation of a crime and have generally been immune to negligence claims for failure to investigate. As such, prior to the HRA being enacted, it has been incredibly difficult for victims to hold the police accountable for failure to adequately investigate and prosecute allegations of crime.

No definitive analysis of human rights case law had been undertaken prior to this case. This judgment provides a comprehensive analysis and synthesis of existing European human rights laws regarding the duty of police to investigate crimes, offering a useful resource in relation to when a duty can be imposed and when it will be breached.

In regards to crimes of sexual assault, the case could be an important one. Rates of prosecution are incredibly low in sexual assault cases, and cases of successful prosecution are even lower. Police, at least in the UK, now have a clear duty not only to have acceptable policies in place to ensure sexual assault cases are effectively investigated and suspects prosecuted, they also have a duty to disseminate and implement those policies.

This decision is available online: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/dsd-and-nbv-v-met-police.pdf

Emily Christie is a Human Rights Lawyer at the Human Rights Law Centre on secondment from DLA Piper.