Commissioner of Police of the Metropolis v DSD and another (Respondents)
On appeal from:  EWCA Civ 646
The Supreme Court
21 February 2018
 UKSC 11
2018 WL 00984828
before Lord Neuberger Lady Hale Lord Mance Lord Kerr Lord Hughes
Judgment given on 21 February 2018
Heard on 13 and 14 March 2017
Lord Pannick QC Jeremy Johnson QC (Instructed by Metropolitan Police Directorate of Legal Services ).
Phillippa Kaufmann QC Ruth Brander (Instructed by Birnberg Peirce ).
Karen Steyn QC Hannah Slarks (Instructed by Liberty ).
James Eadie QC David Pievsky (Instructed by The Government Legal Department ).
Karon Monaghan QC Helen Law Kirsten Sjøvoll (Instructed by Deighton Pierce Glynn ).
Lord Kerr: (with whom Lady Hale agrees)
1 Between 2003 and 2008, John Worboys, the driver of a black cab in London, committed a legion of sexual offences on women. The first respondent in these proceedings (who has been referred to throughout as DSD) was among his first victims. She was attacked in 2003. The second respondent (NBV) became Worboys’ victim in July 2007. Many others were attacked by him between 2003 and 2007 and, sadly, yet more after NBV was assaulted.
2 DSD and NBV brought proceedings against the Commissioner of the Metropolitan Police Service (MPS) for the alleged failure of the police to conduct effective investigations into Worboys’ crimes. The claims were brought under sections 7 and 8 of the Human Rights Act 1998 (HRA). The combined effect of these provisions (so far as this case is concerned) is to allow a person who claims that a public authority has acted in a way which is incompatible with their rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) to bring proceedings against the public authority and to be awarded damages.
3 The kernel of DSD and NBV’s claims is that the police failures in the investigation of the crimes committed by Worboys constituted a violation of their rights under article 3 of ECHR . This provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” They succeeded in that claim before Green J, who delivered judgment on the liability issues on 28 February 2014, (Neutral Citation  EWHC 436 (QB)). In a second judgment handed down on 23 July 2014, (Neutral Citation  EWHC 2493 (QB)), Green J awarded compensation to DSD and NBV against MPS. An appeal by MPS was dismissed by the Court of Appeal (Lord Dyson MR, Laws and Kitchin LJJ) on 30 June 2015, (Neutral Citation  EWCA Civ 646):  QB 161). MPS has appealed to this court. The Secretary of State for the Home Department (SSHD) intervened, making written and oral submissions. A number of other parties intervened. Liberty intervened, as did jointly the organisations Rape Crisis, England and Wales, the End Violence Against Women Coalition, Southall Black Sisters and the Nia Project. They made helpful written submissions and valuable oral submissions.
4 In this appeal MPS accepts that both respondents were subjected to serious sexual assault by Worboys. It further accepts that there were significant errors by the police in each of the investigations into the crimes committed against them. MPS has said that, whatever the outcome of this appeal, MPS will not seek to recoup any of the compensation and consequential costs which have been paid.
5 DSD and NBV have recovered compensation from Worboys and each of them has received an award from the Criminal Injuries Compensation Authority (CICA).
The principal issue
6 It is accepted that HRA imposes a general duty to investigate ill-treatment amounting to a violation of article 3 of ECHR . The main area of dispute is the nature of that duty. That issue has a number of themes. They can be summarised as follows:
(i) Is it a public duty or one owed to individual victims of the breach of article 3 ?
(ii) Is it a systems or an operational duty?
(iii) Does the duty to investigate breaches of article 3 in relation to a particular individual arise only when it is alleged that state authorities are complicit in the breach?
(iv) If the duty comprehends an obligation to investigate breaches of article 3 , even if there is no involvement of state agents, is there a right to claim compensation against the state?
(v) Should the fact that a victim can obtain redress against an offender or make a claim under the CICA scheme affect consideration of the availability of a right to compensation under HRA?
(vi) In this context, is it relevant that UK courts have, so far, refused to recognise a common-law duty of care on the police in relation to the manner in which officers prevent and investigate crime?
(vii) Finally, it is suggested that it would require the clearest statement in consistent decisions of the European Court of Human Rights (ECtHR) Grand Chamber to the effect that a positive duty was owed by the state to individuals who suffered treatment contrary to article 3 at the hands of another individual before holding that the investigative duty of the state was animated. If ECtHR jurisprudence is found to be less than clear, the appropriate course was to allow the government to deploy its arguments in Strasbourg – R (Ullah) v Special Adjudicator  2 AC 323 .
7 Many of these themes overlap and blend into one another and it is impossible to consider them other than compendiously, not least because that is how they are treated in many of the relevant authorities, both domestic and European. It is necessary at the outset, however, to recognise that examination of the nature of the duty is a multi-faceted exercise.
The nature of the duty owed under HRA – the arguments
8 The appellant argues that the duty of the police to investigate, detect and prosecute crime is of a communal nature; one which is owed to the public at large, not to individual citizens. It is submitted that the “general rule” is that no private law duty is owed to victims of crime. This is because it has been deemed that it would not be “fair, just and reasonable” to impose such a duty. The consistent theme of judicial decisions on the liability of the police at common law has been, the appellant suggests, that there are overwhelming public policy reasons that no such liability should be recognised. The Court of Appeal in the present case had emphasised the importance of consistency between the common law and HRA. It would be anomalous, the appellant contends, for there to be different bases of duty owed by the police at common law and under HRA. Many of the public policy considerations which militated against the recognition of such a duty at common law apply with equal force to the duty to investigate that arises under article 3 of HRA.
9 It is accepted that there is a duty to investigate allegations of ill-treatment which amount to a violation of article 3 but it is suggested that this duty can be enforced through the disciplinary regime, under the independent oversight of the Independent Police Complaints Commission. The existence of this regime, the appellant says, reflects the public nature of that duty.
10 Insofar as article 3 of ECHR imposes a positive obligation to respond to ill-treatment by a member of the public who is not a state agent, that obligation, the appellant submits, is to put in place the legal structures required to ensure that a proper inquiry can be conducted. It does not extend to the operational content of an individual inquiry. The investigative obligation in relation to individual cases arises only where state agents are complicit in the alleged ill-treatment.
11 The SSHD submits that the origin of the investigative duty is Assenov v Bulgaria (1998) 28 EHRR 652 where ECtHR stated that an effective official investigation was required where there was an arguable claim of serious ill-treatment “by the police or other such agents of the state unlawfully and in breach of article 3 ” – para 102. It is therefore argued that the principled foundation for the implication of an investigative duty is to underpin the effectiveness of the express prohibition set out in article 3 . That prohibition could only apply, the SSHD argues, to agents of the state, not to private individuals.
12 The respondents’ riposte to these arguments is that the state has a duty under article 3 to conduct an effective investigation into crimes which involve serious violence to an individual. This is a positive, protective obligation to take measures designed to ensure that individuals within its jurisdiction are not subject to the treatment which article 3 prohibits. The duty is not an abstract one owed to the public at large but can be invoked by an individual who demonstrates that the state’s failure to fulfil its obligation has led to her or his suffering treatment prohibited by the article.
13 The respondents submit that the appellant’s argument about the need for consistency between the common-law position and the availability of a claim under HRA is, properly analysed, one of justiciability. They point out that the appellant accepts that there is a domestic law duty to investigate effectively serious criminal offences. It is accepted that there were several deficiencies in the investigation of these offences. The decision by Parliament to enact HRA effectively disposes of the issue of justiciability. The incorporation of ECHR into domestic law made available to an individual a remedy for a breach by the state of the article 3 protective obligation. This was entirely in line with the jurisprudence of ECtHR.
14 In any event, the respondents argue, the public policy considerations which have been held to underlie the exemption from liability at common law do not translate to the position under HRA. As Lord Brown of Eaton-under-Heywood held in Van Colle v Chief Constable of Herts Police ; Smith v Chief Constable of Sussex Police  AC 225 , para 138, Convention claims have quite different aims from civil actions.
15 On the appellant’s argument that the duty of the state under article 3 is confined to putting in place legal structures to prohibit such ill-treatment as is forbidden by the article, the respondents claim that this is unsustainable, again in light of the decision in Van Colle . That decision was premised on the existence of an operational duty to protect against a real and immediate risk of serious violence.
The relevant case law on the nature of the duty
16 In MC v Bulgaria (2005) 40 EHRR 20 the applicant complained that she had been raped by two men when she was 14 years old. The men in question were interviewed but it was concluded that they had not used threats or violence and there was no evidence of resistance on the part of the complainant. The district prosecutor therefore issued a decree terminating the proceedings. The complainant’s application to ECtHR rested on the twin assertions that Bulgarian law did not provide effective protection against rape and sexual abuse as only cases where the victim had actively resisted were prosecuted, and that the authorities had not properly investigated her allegations. It is important to recognise that the court found that the failure properly to investigate her allegations constituted violation of her rights under articles 3 and 8 of ECHR . As I shall discuss below, the appellant has concentrated on the first of the assertions made by the applicant in MC . The second aspect of her complaint – that there was not a proper investigation of her allegations is a distinct and unconnected ground on which the court decided that article 3 had been breached.
17 In para 151 of MC ECtHR observed that, in a number of cases, article 3 of ECHR gives rise to a positive obligation to conduct an official investigation. The court expressly said that such positive obligations “cannot be considered in principle to be limited solely to cases of ill-treatment by state agents”. It concluded that the authorities had failed to explore the surrounding circumstances – para 177. On that account, there was a violation of the state’s positive obligation under article 3 – para 187. This was a duty owed to the applicant personally and she was awarded compensation – para 194.
18 A significant passage from the court’s judgment is to be found in para 153:
“… the court considers that states have a positive obligation inherent in articles 3 and 8 of the Convention to enact criminal-law provisions, effectively punishing rape and to apply them in practice through effective investigation and prosecution .” (Emphasis supplied)
19 The binary nature of the positive obligation arising under these articles was noted by Green J in para 163 of his judgment: effective systems and operational duties:
“… There were two relevant aspects. First, whether the state of Bulgarian law on rape was so flawed as to amount to a breach of the state’s positive obligation under articles 3 and 8 (the systemic failings). Secondly, to consider whether the alleged shortcomings in the investigation were, also, so flawed as also to amount to a breach of the state’s obligations under the same articles (the operational failings). Under the heading ‘general approach’ the court explained that the duty to create a corpus of law and the duty to ‘apply them in practice’ through investigation and punishment were separate …”
20 Lord Hughes has suggested (in para 117 of his judgment) that the statement in para 153 of ECtHR’s judgment, that ” article 3 carries an obligation in some circumstances to investigate third party offending” leaves “only uncertainties about its source and thus its extent”. What is not in the least uncertain, however, is that, if the relevant circumstances are present, there is a duty on the part of state authorities to investigate where non-state agents are responsible for the infliction of the harm. That cannot be characterised as other than an operational duty. The debate must focus, therefore, not on the existence of such a duty but on the circumstances in which it is animated.
21 It is suggested (para 119 of Lord Hughes’ judgment) that Calvelli and Ciglio v Italy (2002) (Application No 32967/96) does not provide authority for the second proposition in para 151 of MC , namely, that positive obligations to investigate cannot be considered in principle to be limited solely to cases of ill-treatment by state agents. It should be observed, however, that part of the applicants’ complaint in that case related to the unexplained delay in the proper investigation of their representations that the doctor who was ultimately charged with manslaughter was responsible for the death of their child – see para 43 of the judgment. In other words, an operational failure. At para 54, the court said this:
“In the instant case, the court notes that the criminal proceedings instituted against the doctor concerned became time-barred because of procedural shortcomings that led to delays, particularly during the police inquiry and judicial investigation.”
22 The rejection of the applicants’ case in Calvelli and Ciglio was not because ECtHR considered that the duty to investigate was confined to “an obligation to provide a sufficient investigative structure”, as Lord Hughes puts it in the final sentence of para 119 of his judgment. To the contrary, the Strasbourg court held that, because of the applicants’ entitlement to issue proceedings in the civil courts and the fact that they entered into a settlement agreement with the doctor’s insurers, they had waived their rights to pursue criminal proceedings (para 54). Nothing in the court’s judgment supports the suggestion that it was founded on a view that the extent of the ancillary duty under article 2 was to provide a sufficient investigative structure rather than a duty not to be negligent in the way in which the inquiry was conducted. The court made that unequivocally clear in para 56 of its judgment where it said that because the applicants had denied themselves the “best means” of elucidating the extent of the doctor’s responsibility for the death of their child, it was unnecessary to examine whether the time bar on bringing proceedings prevented the doctor from being prosecuted. The coming into force of the time bar had, of course, been contributed to by the operational failure of the state authorities to conduct investigations more expeditiously.
23 Lord Hughes has described the statement in para 152 of MC as “tentative” – see para 121 of his judgment. It seems to me clear, however, that the court was there recording that, hitherto, ECtHR had not excluded the prospect that it would be held that actions by non-state agents would give rise to positive obligations on the part of the state under articles 2 and 3 of ECHR . MC provided the occasion to proclaim that such a positive obligation existed.
24 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 to properly investigate reported offences and allegations of ill-treatment, which is summarised with approval at para 172 of O’Keeffe v Ireland (35810/09):
“The Court recalls the principles outlined in CAS v Romania (cited above, paras 68-70) to the effect that article 3 requires the authorities to conduct an effective official investigation into alleged ill-treatment inflicted by private individuals which investigation should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. That investigation should be conducted independently, promptly and with reasonable expedition. The victim should be able to participate effectively.”
25 It has been suggested (Lord Hughes at para 123) that ECtHR in MC made it clear that it regarded the deficiencies in the investigation as “the consequence of, and part and parcel with, the flawed approach of the Bulgarian system generally to the issue of lack of consent”. At para 179 the court said this:
“It is highly significant that the reason for that failure [to conduct a proper investigation] was, apparently, the investigator’s and the prosecutors’ opinion that since what was alleged to have occurred was a ‘date rape’, in the absence of ‘direct’ proof of rape, such as traces of violence and resistance or calls for help, they could not infer proof of lack of consent and, therefore, of rape from an assessment of all the surrounding circumstances. That approach transpires clearly from the position of the investigator and, in particular, from the Regional Prosecutor’s decision of May 13, 1997 and the Chief Public Prosecutor’s decision of June 24, 1997.”
26 In my view, the court was not suggesting in this passage that the deficiencies in the investigation were somehow subsumed into the shortcomings of the Bulgarian law. Nor was it suggested that deficiencies in investigation had to be accompanied in all circumstances by systemic defects. In MC , the lack of assiduity in the investigation could be explained because of the inadequacy of that law but it does not follow that deficiencies in investigation, if they are sufficiently egregious, cannot of themselves constitute a violation of article 3 . Cases decided after MC make that unambiguously clear. I will discuss those cases presently.
27 Concentrating for the moment on MC , however, Lord Hughes suggests that his thesis, that deficiencies in investigation were part and parcel of “the flawed approach of the Bulgarian system generally”, was supported by the words of para 168 which he quotes at para 122 of his judgment. In para 168, ECtHR said that it was not concerned with “allegations of errors or isolated omissions in the investigation”. The court accepted that it could not replace the domestic authorities’ assessment of the facts of the case nor could it decide on the alleged perpetrators’ criminal responsibility.
28 These statements must be seen in context. The Strasbourg court is a supra-national body. There are obvious limitations on its opportunity to examine deficiencies in investigation. National courts are not so constrained. This case provides the perfect example. Green J heard detailed evidence of the errors that had been made by police in the investigation of Worboys’ crimes. He was in a position to form a judgment as to the impact of those errors on the respondents’ cases. And it was open to him to find, as he correctly did, that the errors were so serious that a violation of article 3 was established.
29 I cannot accept a suggestion that, to give rise to a breach of article 3 , deficiencies in investigation had to be part and parcel of a flawed approach of the system generally. I accept, however, that simple errors or isolated omissions will not give rise to a violation of article 3 at the supra-national and the national levels. That is why, as I point out below, only conspicuous or substantial errors in investigation would qualify. The Strasbourg court disavowed any close examination of the errors in investigation because it was a supra-national court. It left that to national courts. But, my reference to ECtHR’s disinclination to conduct such a close examination is not intended to suggest that minor errors in investigation will give rise to a breach of the Convention right on the national plane. To the contrary, as I make clear in paras 53 and 72 below, errors in investigation, to give rise to a breach of article 3 , must be egregious and significant.
30 As I hope is now clear, not every error in investigation will give rise to a breach of article 3 . But the difficulty in defining those errors which qualify should not prompt capitulation to the notion that there has to be some form of structural deficiency before egregious errors in the investigation of the offences, such as occurred in this case, can amount to a breach of article 3 . That proposition is strongly supported by consideration of cases decided after MC and I turn now to those cases.
31 The case of Szula v United Kingdom (2007) 44 EHRR SE19 involved a complaint of sexual and physical abuse brought by a minor during the time that he was in a residential approved school. The applicant’s claim was deemed inadmissible but this was because it was concluded that there was “no indication that the authorities showed any lack of diligence or expedition” in the investigation of his allegations. Implicit in that finding was that, had there been such an indication, the applicant’s case would have been admissible. It has been suggested that this case is an example of the court having looked for evidence of a structural defect or culpable disregard or an absence of good faith in the administration of the domestic system (para 26). I do not agree. In that case the court expressly recognised that the criminal law prohibited the physical and sexual abuse alleged by the applicant. True it is that the court, after reviewing steps taken by police and prosecuting authorities, also said (in para 1 of its judgment):
“While that sequence of events was somewhat unfortunate, the court does not consider that it discloses any culpable disregard, discernible bad faith or lack of will on the part of the police or prosecuting authorities as regards properly holding perpetrators of serious criminal offences accountable pursuant to domestic law.”
32 It is unquestionably clear that these observations were made in relation to the discharge by the police and the prosecuting authorities of their operational duties. There is no hint in the judgment that this was in any way related to a “structural defect”. As I have said, the court had examined the criminal law system and not found it wanting. I cannot accept, therefore, that the quoted passage had anything whatever to do with a systemic or structural failure. It was plainly pertinent – and only pertinent – to a review of the operational actions and decisions of the police and prosecuting authorities. The fact that the court considered it necessary to conduct such a review, when no systemic defect was present, is important, however. It can only have been necessary if the court considered that a purely operational failing, entirely unrelated to any “structural defect”, could have given rise to a violation of article 3 .
33 In Secic v Croatia (2009) 49 EHRR 18 (31 May 2007), ECtHR considered a complaint of ineffective criminal investigation of a racially motivated physical assault. The court again repeated the statement from MC that article 3 may give rise to a positive obligation to conduct an official investigation – para 53. The court stated that the obligation on the state to conduct an official investigation is one of means, not result, referring to the article 2 cases of Menson v United Kingdom (2003) 37 EHRR CD 220 and Yasa v Turkey (1999) 28 EHRR 408 . At para 54, however, it observed that the authorities had to take “all reasonable steps available to them to secure the evidence concerning the incident” and that the authorities must act with “promptness and reasonable expedition.” Having considered the investigations conducted by the police, ECtHR concluded, at para 59, that “the failure of the state authorities to further the case or obtain any tangible evidence with a view to identifying and arresting the attackers over a prolonged period of time indicates that the investigation did not meet the requirements of article 3 of the Convention”. It therefore found that article 3 had been breached and that the applicant was entitled to be compensated. Lord Hughes has cited this case as an example where there were “plain overtones of structural State deficiencies in relation to the investigation of allegations of racially motivated or discriminatory violence” (para 126).
34 The applicant’s submissions are set out in paras 38-42 of the court’s judgment. None of these submissions touched on any structural or systemic deficiency in Croatian law or procedure. To the contrary, the applicant complained that Croatian law provided for many processes and police methods which the police had failed to follow. He also complained that they had failed to apply to a Croatian court for an order compelling a journalist to reveal the name of an interviewee who might have been able to shed light on the attack on him. Such an application could have been made under section 30 of the Media Act. No complaint was made about any inadequacy in that provision. All of the applicant’s complaints were in relation to the operational failings of the police.
35 The Croatian government’s submissions are set out in paras 43-48 of the Strasbourg court’s judgment. Apart from claiming that the applicant’s ill-treatment did not reach the threshold required for a breach of article 3 and that the positive obligation under that article arose only where the state had been made aware of acts which it was reasonable to expect them to prevent, all the government’s submissions were focused on a defence of the operational decisions and actions of the police. The question of systemic deficiencies was simply not in play in this case. That is obvious also from the court’s decision. At para 53 the court said that article 3 may give rise to a positive obligation to conduct an official investigation. This was not, in principle, limited to cases of ill-treatment by state agents. And at para 54 the court said this:
“… the court reiterates that the scope of the … obligation by the state is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident. A requirement of promptness and reasonable expedition of the investigation is implicit in this context.”
36 The complaint of lack of promptness related solely to police inaction. Nothing about any structural or systemic deficiency was instanced. And the remainder of the court’s judgment focused entirely on the operational failings of the police. For my part, therefore, I have not been able to find any overtones of structural state deficiencies in the report of this case.
37 Beganović v Croatia (Application No 46423/06) 25 June 2009 was a case in which the applicant had been assaulted by three individuals. Although ECtHR acknowledged (in para 69 of its judgment) that no direct responsibility can attach to a member state under ECHR for the acts of private individuals, it stated (in paras 70 and 71):
“70. … even in the absence of any direct responsibility for the acts of a private individual under article 3 of the Convention, State responsibility may nevertheless be engaged through the obligation imposed by article 1 of the Convention. In this connection the Court reiterates that the obligation on the High Contracting Parties under article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with article 3 , requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A v United Kingdom , cited above, para 22).
71. … In order that a state may be held responsible it must … be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by article 3 (see X and Y cited above cited above, para 30, and A v United Kingdom , cited above, opinion of the Commission, para 48).” (Emphasis supplied)
38 The court made clear that, as well as examining the “impugned regulations and practices, and in particular the domestic authorities’ compliance with the relevant procedural rules”, it would also consider “the manner in which the criminal mechanisms were implemented in the instant case” – para 74. At para 75, ECtHR set out the “minimum standards applicable” in respect of “the duty to investigate”. They included that the investigation be independent, impartial and subject to public scrutiny, and that the authorities act with diligence and promptness. It also reiterated that “for an investigation to be considered effective, the authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical reports”. The failings in fact identified in this case arose at the post-investigative stage and ECtHR confirmed the principle that the requirement for effective criminal law provisions extends to the trial phase of proceedings – para 77.
39 The ECtHR decided that the state authorities did not fulfil their positive obligations under article 3 . Violation of that article was found. Compensation was awarded to the applicant. The various elements of an effective investigation identified by the court should be noted. It must be independent. It requires to be prompt. Evidence must be secured. Failure to adhere to these standards renders the state liable to the individual affected by that failure.
40 In the case of Vasilyev v Russia (Application No 32704/04) 17 December 2009 the applicant and his friend were seriously assaulted and robbed. Although police officers attended the scene, no investigation into the circumstances of the assault were conducted. The police officers claimed to have considered that the applicant and his friend were intoxicated, so they moved them from the position where they had been found and left them. A number of criminal investigations were subsequently instituted, largely on the initiative of the applicant’s mother. It was decided to suspend the proceedings because the perpetrators could not be identified. This decision was reversed and restored on a number of occasions. The two police officers who had attended the scene were prosecuted for failing to fulfil their legal duty to protect victims of offences. They were acquitted.
41 The applicant did not lay blame on the state authorities for the attack; nor was it suggested that they knew or ought to have known that the applicant was at risk of physical violence at the hands of third parties. The court explicitly found, however, that this did not absolve the state from obligations under article 3 . At para 99, it said that what the article required was that “the authorities conduct an effective investigation into the alleged ill-treatment even if such treatment has been inflicted by private individuals”. It elaborated on this statement at para 100:
“… For the investigation to be regarded as ‘effective’, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many authorities, Mikheyev v Russia , no 77617/01, para 107 et seq, 26 January 2006, and Assenov and Others v Bulgaria , judgment of 28 October 1998, Reports 1998-VIII, paras 102 et seq).”
42 It was held that there had been a violation of article 3 under its procedural limb in that the investigation into the assault on the applicant was ineffective. He was awarded compensation.
43 A similar approach to that in the cases already discussed is found in later decisions of ECtHR such as Milanovic v Serbia (Application No 44614/07) 14 December 2010, CAS v Romania (2015) 61 EHRR 18 and BV v Croatia (Application No 38435/13) 21 January 2016. The statement of the applicable principles concerning the procedural obligations in CAS v Romania (which reflected the exposition of those in the cases considered in detail above) was expressly endorsed by the Grand Chamber in O’Keefe v Ireland (2014) 59 EHRR 15 . These propositions have been reiterated by the second section of ECtHR most recently in BV v Belgium (Application No 61030/08) 2 May 2017. At para 56 the court stated that the obligation to carry out an effective investigation “cannot be limited to cases of ill-treatment by agents of the state”.
A clear and constant line of authority?
44 In R (Ullah) v Special Adjudicator  2 AC 323 , Lord Bingham of Cornhill, at para 20, quoted with approval the statement of Lord Slynn of Hadley in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295 , para 26, where he said:
“Your Lordships have been referred to many decisions of the European Court of Human Rights on article 6 of the Convention. Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.”
45 The respondents argue that the authorities which I have reviewed above constitute clear and constant jurisprudence to the effect that the state has a duty under article 3 to conduct an effective investigation into crimes which involve serious violence to an individual. In order that the protective right under the article be practical and effective, the respondents also assert that failure to conduct such an investigation gives rise to a right to hold the state to account by, among other things, a claim for compensation on the part of a person who was a victim of the article 3 violation and the state’s failure to discharge its obligations under the article.
46 The appellant counters this argument, claiming that the Strasbourg court’s extensive case law (including decisions of the Grand Chamber) refers back to Assenov as the authoritative source of the obligation, derived from article 3 , to investigate allegations of ill-treatment by state agents. It is suggested that Assenov explicitly limits the investigative duty to cases where the ill-treatment has been perpetrated “by the police or other such agents of the state unlawfully and in breach of article 3 ” (para 102). This approach, it is claimed, has been followed by decisions of the Grand Chamber in such cases as Gäfgen v Germany (2011) 52 EHRR 1 and El-Masri v The Former Yugoslav Republic of Macedonia (2012) 57 EHRR 25 .
47 It is to be noted, of course, that Assenov was a case where the claim was based on allegations against state agents, namely, the Bulgarian police. When, therefore, the court expressed the view, which it did in para 102 of its judgment, that, “where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of article 3 , that provision … requires by implication that there should be an effective official investigation”, it did not address the question whether such a duty arose where the perpetrators of the ill-treatment were not state agents. It did not need to do so. The issue simply did not arise in that case.
48 Likewise, in Gäfgen the complaint was made concerning the applicant’s ill-treatment by police. So also in El-Masri the applicant claimed that he had suffered ill-treatment at the hands of state agents and that they had been actively involved in his subsequent rendition by CIA agents. Statements in the judgments in both cases which echo that in Assenov quoted in the preceding paragraph do not sound on the question whether ill-treatment by individuals other than state agents can give rise to the duty to investigate under article 3 . Those decisions do not impinge upon, much less derogate from, the authority of the cases decided by ECtHR between 2005 and 2017 discussed in paras 16 to 28 above. I consider that those cases amount to clear and constant case law of the Strasbourg court. And I have concluded that they establish that the state is obliged under article 3 to conduct an effective investigation into crimes which involve serious violence to persons, whether that has been carried out by state agents or individual criminals. Further, in order that the protective right should be practical and effective, an individual who has suffered ill-treatment contrary to article 3 has a right to claim compensation against the state where there has been a failure by state authorities to conduct a sufficient investigation into the crime.
49 At para 127 of Lord Hughes’ judgment, he suggests that the proper test for the positive obligation to investigate reports of past violence under article 3 is whether the state “has a proper structure of legal provision designed to punish it when it occurs and has administered [it] in good faith and with proper regard for the gravity of the behaviour under consideration”. It is not clear whether this formulation excludes any investigation of operational failings on the part of state authorities such as the police. Conceivably, I suppose, a failure to administer the proper structure of criminal legal provisions might entail an examination of the way in which police conducted their inquiries into a particular case. But, importantly, the duty to administer is qualified in Lord Hughes’ exposition by the stipulation that the administration of the structure of legal provision, if it is to fall foul of the test, must be shown to have been conducted in bad faith or without proper regard for the gravity of the behaviour involved. This places an obvious limitation on the scope of any review of the operational actions and decisions of the police. There is no suggestion in this case, for instance, that the police acted in bad faith. It might possibly be said that there were instances of the police failing to have regard for the gravity of the crimes which the respondents complained of but I am unsure whether this would fulfil Lord Hughes’ test because the failure to have due regard to the gravity of the crime must take place in the context of the administration of the proper structure of legal provisions.
50 It is true, as Lord Hughes says in para 140, that there were structural errors. But I cannot agree with his statement that the various detailed failings in the conduct of the inquiry were “largely attributable to this flawed structural approach”. Green J dealt with the operational failures in these two cases in a long passage of his judgment between paras 285 and 313. Some of these were related by him to lack of training but many were not. Significantly, the judge found that if the operational failings had not occurred, the police officers involved in the investigation “would have taken steps which would have been capable of identifying and arresting Worboys”.
51 It is unnecessary to list all the operational failings. These are set out in admirable and clear detail by the trial judge in his judgment. It is sufficient to refer to a sample of these to explain why I do not accept that these were largely attributable to a flawed structural approach.
(i) Reception staff failed to record relevant names, addresses and vehicle registration details. If these had been recorded, it was “perfectly feasible to believe”, the judge found, that Worboys might have been apprehended earlier or might even have been deterred from further offending;
(ii) Failure to interview promptly a witness known as Kevin. He could have identified Worboys and could have given evidence that might have led to his arrest;
(iii) Failure to collect CCTV evidence. Worboys had driven his taxi to a police station. The timing of his arrival at and departure from the police station was known. If police officers had checked the CCTV footage, they could have identified the registration number and this would have led them to Worboys;
(iv) Between 2003 and 2008 many complaints were made to police which should have been sufficient to trigger the arrest of Worboys. The failure to make the link between these complaints was due not only to a lack of training but also to a failure to adhere to procedures ;
(v) Failure to conduct searches.
52 None of these failures can be described as a failure in training or in the structures that were in place for the investigation of serious crime at the material time. Many other operational failures, none of which can be ascribed to a “flawed structural approach” were found by Green J to have occurred. These were considered by him to have contributed in a significant way to his finding that a breach of article 3 had been established. If I have understood Lord Hughes’ formulation of the relevant test correctly, none of them was relevant to that conclusion.
53 The prospect of every complaint of burglary, car theft or fraud becoming the subject of an action under the Human Rights Act has been raised. I do not believe that this is a serious possibility. All of the cases in this area involve conspicuous and substantial shortcomings in the conduct of the police and prosecutorial investigation. And, as this case illustrates, frequently, operational failures will be accompanied by systemic defects. The recognition that really serious operational failures by police in the investigation of offences can give rise to a breach of article 3 cannot realistically be said to herald an avalanche of claims for every retrospectively detected error in police investigations of minor crime.
A systems or an operational duty?
54 The appellant argued that MC v Bulgaria should not be taken as authority for the proposition that how the state carried out its investigative duty at an operational level required to be examined in order to determine whether article 3 had been breached. That case, it was said, involved a systemic problem with Bulgarian law in relation to sexual offences. Under that law, it was not sufficient, in a rape prosecution, to show that a complainant had not consented to sexual intercourse. It was necessary to show that she was incapable of defending herself, or that she had been compelled by force or threats or that she had been brought to a state of defencelessness. The case was therefore primarily concerned with the system of laws in Bulgaria, the appellant claimed, and the court did not find a breach of article 3 because of any particular failing in the investigation in isolation, but because the legal system itself was deficient. The appellant claims that nothing in the judgment says in positive terms that article 3 gives rise to an obligation to investigate in cases where the state is not complicit in ill-treatment.
55 I do not accept these arguments. As pointed out in para 18 above, the Strasbourg court in MC clearly specified that the state’s duty had two aspects. The first was to enact criminal-law provisions which would effectively punish rape. The second, distinct but definite obligation was to carry out proper investigation and prosecution so that the laws could be applied effectively. It should be noted that the applicant’s complaint in that case had two separate aspects, described in para 109 of the judgment as follows:
“The applicant complained that Bulgarian law and practice did not provide effective protection against rape and sexual abuse as only cases where the victim had resisted actively were prosecuted and that the authorities had not investigated the events of July 31 and August 1, 1995 effectively .” (Emphasis supplied)
56 The second aspect of her complaint was elaborated on in para 117 of the judgment where it is recorded that she alleged that the investigation had not been thorough and complete. The crucial issue of the timing of all the movements of the men and the applicant during the night in question had not been investigated.
57 The court’s conclusions on the second aspect of the applicant’s complaint were unmistakable. At paras 176-178 it said:
“176. The court recognises that the Bulgarian authorities faced a difficult task, as they were confronted with two conflicting versions of the events and little ‘direct’ evidence. The court does not underestimate the efforts invested by the investigator and the prosecutors in their work on the case.
177. It notes, nonetheless, that the presence of two irreconcilable versions of the facts obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances. Little was done, however, to test the credibility of the version of the events proposed by P and A [the alleged rapists] and the witnesses called by them. In particular, the witnesses whose statements contradicted each other, such as Ms T and Mr M, were not confronted. No attempt was made to establish with more precision the timing of the events. The applicant and her representative were not given the opportunity to put questions to the witnesses whom she accused of perjury. In their decisions, the prosecutors did not devote any attention to the question whether the story proposed by P and A was credible when some of their statements called for caution, such as the assertion that the applicant, 14 years old at the time, had started caressing A minutes after having had sex for the first time in her life with another man.
178. The court thus considers that the authorities failed to explore the available possibilities for establishing all the surrounding circumstances and did not assess sufficiently the credibility of the conflicting statements made.”
58 Plainly, therefore, the court made a separate finding in relation to the inadequacy of the police investigation. This finding was entirely freestanding of its conclusions in relation to the systemic deficiencies in the Bulgarian law in relation to rape. That approach has been consistently followed in the cases examined above. It is incontestably clear, therefore, that the positive obligation to conduct a proper inquiry into behaviour amounting to breach of article 3 may constitute a violation of the state’s duty under the article.
Is state complicity a prerequisite?
59 The answer to the argument that the positive obligation to investigate is animated only where there is state involvement in the acts said to breach article 3 can be simply supplied by reference to the passage from para 151 of MC quoted at para 17 above. The statement that positive obligations are not solely confined to cases of ill-treatment by state agents could not be clearer.
60 In fact, of course, statements to like effect appear repeatedly in ECtHR jurisprudence – see, for instance, para 70 of Beganović quoted at para 37 above; Vasilyev where the applicant expressly disavowed any accusation of blame on the state authorities for the attack on him; and para 83 of Milanovic (mentioned at para 43 above) where the court said:
“In general, actions incompatible with article 3 of the Convention primarily incur the liability of a Contracting State if they were inflicted by persons holding an official position. However, the obligation on the High Contracting Parties under article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with article 3 , also requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment administered by other private persons (see A v United Kingdom , judgment of 23 September 1998, para 22, Reports of Judgments and Decisions 1998-VI; Z and Others v United Kingdom [GC], no 29392/95, para 73-75, ECHR 2001-V; E and Others v United Kingdom , no 33218/96, 26 November 2002).”
61 Likewise, in CAS v Romania where there was no question of state involvement in the sexual abuse of the first applicant, the court was unambiguous in its finding that this was not a prerequisite to a breach of article 3 . At para 69, it said:
“… the absence of any direct state responsibility for acts of violence that meet the condition of severity such as to engage article 3 of the Convention does not absolve the state from all obligations under this provision. In such cases, article 3 requires that the authorities conduct an effective official investigation into the alleged ill-treatment even if such treatment has been inflicted by private individuals.”
62 I am satisfied, therefore, that ECtHR has consistently held that it is not required that there be state involvement in the acts alleged to amount to breach of article 3 . The appellant’s argument based on that proposition must be rejected.
63 The themes outlined in para 6 (iv) and (v) above may be taken together. They can be dealt with briefly. Compensation is by no means automatically payable for breaches of the article 3 duty to investigate and prosecute crime. As Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department  1 WLR 673 , para 8, in many cases the Strasbourg court has treated the finding of the violation as, in itself, just satisfaction under article 41 (although that was said in the context of article 6 breaches).
64 It is well settled, however, that the award of compensation for breach of a Convention right serves a purpose which is distinctly different from that of an order for the payment of damages in a civil action. As Lord Brown said in Van Colle at para 138:
“… Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights. That is why time limits are markedly shorter. … It is also why section 8(3) of the [HRA] provides that no damages are to be awarded unless necessary for just satisfaction …”
65 Laws LJ said in para 68 of his judgment in the Court of Appeal, that the inquiry into compliance with the article 3 duty is “first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the State”. I agree with that. The award of compensation is geared principally to the upholding of standards concerning the discharge of the state’s duty to conduct proper investigations into criminal conduct which falls foul of article 3 . In paras 72-78 of his judgment, Laws LJ set out the systemic and operational failures of the appellant, quoting extensively from the judgment of Green J as to the first of these. That catalogue of failures was considered to warrant the award of compensation to the respondents, irrespective of the fact that they had received damages from both Worboys and CICA. I cannot find any flaw in the judge’s decision to award that compensation nor in the Court of Appeal’s decision to uphold that decision.
The relevance of the circumstance that there is no common law duty of care
66 In Van Colle and Smith , two associated cases heard together, the complaint was that police had failed to follow up reports of threats to kill. In Van Colle , the alleged failure had resulted, it was claimed, in the killing of the individual who was the subject of the threats. In Smith , the victim was seriously injured. The first case was brought solely under HRA, alleging violation of article 2 . It failed on its facts. In Smith , no HRA claim was made. The appellant relied solely on the common law, alleging negligence by the police. The House of Lords rejected the argument that “the common law should now be developed to reflect the Strasbourg jurisprudence about the positive obligation arising under articles 2 and 3 of the Convention” (para 136). A similar approach was taken by the majority in this court in Michael v Chief Constable of South Wales Police  AC 1732 .
67 As Laws LJ, in the Court of Appeal in this case, pointed out, the essence of the argument on behalf of the appellants in those cases was that the common law rule (that police owe “no general duty of care. … to identify or apprehend an unknown criminal, nor. … a duty of care to individual members of the public who might suffer injury through the criminal’s activities …” – Hill v Chief Constable of West Yorkshire Police  AC 53 ) should be moderated so as to accommodate the ECHR – para 30. As he observed, the converse is contended for in this appeal. The appellant and the Secretary of State argue that the exemption from liability of the police at common law should be extended to claims advanced under HRA so that the two systems should be in harmony. There are two reasons for rejecting the argument.
68 In the first place, the bases of liability are different, as mentioned at para 44 above. In as much as it was considered that the common-law duty should not be adapted to harmonise with the perceived duty arising under ECHR, so should the latter duty remain free from the influence of the pre-HRA domestic law. Alternatively, it requires, at least, to be considered on its own merits, without the encumbrance of the corpus of jurisprudence under common-law.
69 Secondly and more importantly, no assumption should be made that the policy reasons which underlay the conclusion that an exemption of police from liability at common law apply mutatis mutandi to liability for breach of Convention rights. In Michael much of the debate as to whether police owed a duty to an individual member of the public centred on the question whether there was a sufficient proximity of relationship between the claimant and the police force against whom action was taken. No such considerations arise in the present context. The issue here is simple. Did the state through the police force fail to comply with its protective obligation under article 3?
70 The other principal argument advanced on behalf of the police in Michael was that it would not be “fair, just and reasonable” to impose liability on them for failings in individual cases. This is a concept with which the common law, with its innate flexibility, can cope but it is not one which can easily be accommodated in Convention jurisprudence. The police either have a protective duty under article 3 or they do not. The presence of the duty cannot depend on one’s conception of whether it is fair, just or reasonable for it to exist.
71 Lord Hughes has said (in para 130 of his judgment) that law enforcement and the investigation of crime involve a complex series of judgments and discretionary decisions; that they concern the choice of lines of inquiry, the weighing of evidence and the allocation of finite resources. All of that is unexceptionable. But the claim that to “re-visit such matters step-by-step by way of litigation … would inhibit the robust operation of police work … divert resources from current inquiries [and act as a deterrent] not a spur to law enforcement” is unsupported by any evidence. In the first place, none of the cases cited above required a painstaking, minute examination of decisions taken by police. Nothing in the Strasbourg jurisprudence suggests that this would be appropriate, much less that it would be even admissible, as the basis for advancing a claim under article 3 . Carrying out police investigations efficiently should not give rise to a diversion of resources. On the contrary, it should lead to more effective investigation of crime, the enhancement of standards and the saving of resources. There is no reason to suppose that the existence of a right under article 3 to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and to