'Black cab rapist' appeal: What are the police's chances of success?
Richard Clayton QC considers the prospects of the police's argument that it should not be sued under the Human Rights Act in light of past case law
In Commissioner of Police of the Metropolis v DSD, two women attacked by the notorious ‘black cab rapist’ recovered damages under the Human Rights Act totalling £41,250 since numerous Strasbourg decisions ruled that public bodies must investigate complaints that individuals were victims of inhuman treatment. The claimants have won, both before the High Court and Court of Appeal. With the police appealing further, will the Supreme Court decide that the Human Rights Act should not be used to sue it?
The black cab rapist is said to be responsible for the drugging and sexual assault of over 100 women. Both claimants reported their assault to the police, and in one case the black cab rapist was immediately arrested as a suspect, although he was released without charge shortly afterwards. Following a police review of sexual assault cases in February 2008, the perpetrator’s particular modus operandi was identified. A media appeal then led to the claimants (and many others) coming forward, and the black cab rapist was eventually convicted of 19 offences.
In the appeal before the Supreme Court, Lord Pannick QC said that imposing an investigative duty on police raised policy concerns. He asked the panel to allow the appeal so that a ‘dialogue’ could take place with the European Court of Human Rights (ECtHR). He claimed that any investigative duty would ‘reduce the efficacy of police investigations of crime’ and that article 3 did not give rise to an entitlement to damages for failings of a police investigation.
However, the submission that an article 3 investigation cannot extend to ill treatment by private individuals runs into a basic problem that the ECtHR has frequently decided that article 3 investigations are not limited to ill treatment carried out by state agents. For example, in Milanovic v Serbia (2014) 58 EHRR 33 the court decided that a member of a small religious minority who believed he was being attacked by a right-wing extremist group (never identified by the state authorities) could, nonetheless, complain that the state had failed to take an effective article 3 investigation.
Furthermore, in Van Colle v Chief Constable of Hertfordshire  1 AC 225 the House of Lords found that the police had breached the right to life under article 2 when a man was murdered by his former employee after the police failed to act upon his numerous threatening messages. However, the House of Lords also decided that common law damages should not be awarded against the police for negligently investigating criminal offences, as it had previously decided in the Yorkshire Ripper case in 1989 and the Stephen Lawrence case in 2005.
Lord Brown in Van Colle expressly recognised that common law negligence principles and Human Rights Act damages were entirely different. He pointed out that there was no sound reason for matching human rights claims with a common law claim: ‘to my mind [this] would neither add to the vindication of the right nor be likely to deter the police from the action or inaction which risks violating it in the first place’. The same approach was taken by the Supreme Court in Michael v Chief Constable of Wales  AC 1732, where the police had failed to intervene after being told Ms Michael’s former partner had threatened to kill her.
The Court of Appeal had earlier concluded in DSD  QB 161 that the police’s submissions were contrary to earlier ECtHR decisions, supported by Van Colle and Michael. Consequently, the argument being made before the Supreme Court is breaking new ground. But it is difficult to see why the Supreme Court should depart from established Strasbourg case law in this particular appeal.
Both the House of Lords and Supreme Court have accepted that they should not follow Strasbourg decisions if the ECtHR has misunderstand domestic law principles (in Al Khawaja v United Kingdom (2012) 54 EHRR 23 where the Grand Chamber considered the Supreme Court case in R v Horncastle  2 AC 3 and overruled its earlier Chamber decision) or if parliament gives extensive consideration to interfering with convention rights (in the Grand Chamber decision in Animal Defenders International v United Kingdom (2013) 57 EHRR 21).
Since the House of Lords and Supreme Court have already rejected the idea that convention rights should be modelled on the common law negligence principles, the prospects of the appeal succeeding in DSD cannot be high.
Richard Clayton QC is a barrister at 7BR and the joint author of The Law of Human Rights