The hits for the police keep on coming. The decision in Commissioner of the Metropolis v (1) DSD (2) NBV [2018] UKSC 11 confirms that the police can be liable in proceedings for a breach of article 3’s prohibition on inhuman and degrading treatment (and possibly article 4’s prohibition on slavery) where they fail to perform an adequate criminal investigation into alleged serious ill-treatment.

This decision was less of a surprise than Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 – given the strength of the earlier judgments both at first instance and in the Court of Appeal. That said, it is hard to say anything other than that the courts are slowly but surely eroding out of existence the police’s ‘immunity’ from claims arising out of the performance of its core duties.

For the majority, Lord Kerr made clear that there was a duty on the police to investigate allegations of ill-treatment regardless as to whether state agents were responsible for the infliction of the harm – and that this was an operational duty [20].

How the judge reached that decision (and whether it is Lord Kerr or Lord Hughes who best analyses the jurisprudence) is better considered in academic commentary. The judgments are particularly interesting in their treatment (and criticism) of the European Court of Human Rights and the development of its jurisprudence. The principle points that arise from the majority’s position, however, can be summarised as follows:

- It is necessary for laws which criminalise conduct breaching article 3 to be "rigorously enforced" and "properly investigated" [24];

- This requires that operational deficiencies in investigations which engage article 3 can themselves give rise to a breach of that article [29];

- Those operational deficiencies need not flow from or be connected to systemic or structural flaws (such as training, inadequate policy etc) [29];

- The investigation must be capable of bringing the offenders to justice. That is a question not of result (i.e. whether the offender is ultimately identified and successfully prosecuted) but of means [39];

- This requires the police to conduct an independent investigation, take all reasonable steps available to them to secure evidence and to act with promptness and reasonable expedition [33], [39].

One can perhaps now understand why the judgment took so long – almost a year – to be released. Lord Kerr (who found the existence of an operational duty) seems to spend much time pugnaciously trying to dismantle the judgment of Lord Hughes (who sought to limit the ambit of positive duties to structural errors). In the event, it is a bit disappointing that such an important decision appeared to have been reached by a potentially 3-2 majority (or 3-1-1), Lord Mance's appearing to have sympathy with Lord Hughes generally but preferring a distinction of simple errors or isolated omissions and more serious failings - with liability arising only for the latter.

The majority, however, buries Hill v Chief Constable of West Yorkshire Police [1989] AC 53 – whose public policy justifications have been inverted. Lord Kerr opined that the potential for liability may result in the police's carrying out their investigations more efficiently and effectively, resulting in the enhancement of standards and saving of resources. He then went further, stating that there was "no reason" to suppose it would do anything other than act as an incentive to avoid egregious errors and eliminate the making of grievous mistakes [71].

As to what will result in liability, Lord Kerr stated that "only conspicuous or substantial errors in investigation" would result in a breach of the article 3 duty, later saying that such investigative errors would have to be "egregious and significant" [29]. Lord Neuberger similarly stated that courts should "bear clearly in mind" the need to interpret the duty in a way which does not impose an impossible or disproportionate burden on the police. This appears to set the threshold for a breach of article 3 relatively highly and certainly higher than in a common-law negligence action.

Practitioners at the coal-face, however, may appreciate (and perhaps welcome) the observation of Lords Hughes and Mance that this apparent threshold is "more to present than to solve the difficulty". Those same practitioners will also know that whilst Lord Kerr further states that compensation is by no means automatically payable for breach of the article 3 duty, it is not the award of general damages that chief constables will soon fear. It will be awards for consequential losses (special damages) and, more than that, costs, which are generally no less in a human rights claim than a common law action.

And as much as Lord Kerr states that he does not believe it to be a serious prospect that every burglary, car theft or fraud will result in an action under the Human Rights Act 1998, what is certain is that litigation will seek to push as far as possible the now blurred boundaries of when an article 3 claim can be brought. The police will likely consider settlement of cases due to the risk of damages, public embarrassment and high levels of costs, perhaps even where the alleged breaches lie close to the margins.  

This blog does not seek to take a political position on the judgment, although it notes the immediate concerns that will arise from a police perspective. We have heard voices start to articulate that there should be a form of no-fault liability or damages and costs capping for clinical negligence claims against the NHS. Now that liability for both human rights and negligence claims against the police have been expanded by the Supreme Court, expect to hear, soon, similar calls from cash-strapped chief constables.