Justice First

The high-profile case involving the victims of the notorious serial rapist taxi driver, John Worboys, has not only shone a light on some of the failings of the police but also fuelled the debate about the compensation culture in human rights cases.

In this case (DSD and NBV v. Commissioner of Police for the Metropolis), the High Court ruled that the victims of Mr Worboys may bring compensation claims against the police, if the police failed to properly investigate and, in the case of NBV, to protect her from the attack taking place in the first place. However, this decision has now been appealed and will be heard in the Court of Appeal in May.

The unfortunate result being that some similar cases against the police are being delayed until this decision, causing further distress to those who fall victim to a serious crime and are also let down by the police.

The court made two separate rulings in this case: whether the police were liable for failing to investigate and/or protect and what the rules should be for compensation.

The court held that where individuals report credible serious offences (offences which would amount to torture, inhuman or degrading treatment) to the police, the police must investigate in an efficient and reasonable manner. If they don’t, it may be a breach of the victim’s human rights. The court will look at the investigation as a whole, and (to avoid being found to be unlawful) that investigation must be capable of leading to the identification of the perpetrator. The failings in an investigation can be individual errors by officers or flaws in the system itself.

However, the court put a lot of emphasis on the fact that there must not be an excessive burden on the police. The resources available to the police must be taken into account, as well as other relevant issues, and it must be acknowledged that the police have a choice of how to investigate allegations. This means they do not have to follow every line of inquiry, and a failure to follow up on one issue won’t necessarily mean the investigation as a whole is unlawful. If the court considers that despite the error, the perpetrator was still arrested within a reasonable period of time, or the investigation (looked at in the round) was still reasonable and efficient, it will be fine. The court said that if the police had a choice of three reasonable courses of action, and they followed two up properly, it will generally not be a point of criticism that they didn’t try the third approach.

Crucially, even if the perpetrator is eventually arrested, tried and found guilty, the police can still be liable – particularly where the claim is that the slowness of the investigation was unreasonable. In the Worboys case, two victims claimed against the police for failing to investigate their allegations of sexual assault properly. In a particularly significant finding, the court found that if the police had investigated properly, Worboys would not have been free and one of the assaults would have been prevented.

The judgment is very important as it quite rightly gives police discretion in their investigations, but it also makes it clear that there is a fundamental bottom line and minimum standards which, if crossed, mean the police will be liable in damages.

Yet one should not be misled that the victims of such serious crimes are doing this for the money. In our experience, clients bring cases because they have often suffered a double injustice; first as a victim of a serious crime, and then because the police did not investigate properly.

What these victims are looking for is justice. Sometimes the flaws in the investigation lead to offenders offending again, either against the same victim and/or against others, resulting in serious trauma and/or a sense of self-blame. Either way the way in which the victims are treated by the police in flawed investigations greatly adds to the trauma of the original offence, often making the victim feel disbelieved, judged and deeply let down.

It is essential in this kind of case that victims can bring claims to seek recognition for the injustice they have suffered. Many victims set out, not to get money, but to get the offender brought to justice and the police to acknowledge and apologise for the way they have let them down. All too often however, it is impossible to bring a conviction at that late stage after failings in the police investigation, and the police refuse to acknowledge their failings or to apologise. Therefore, the only possible remedy is money and public recognition that the police let them down.

How the courts decide how much compensation a victim might get under the Human Rights Act

In the second judgment in this case, the emphasis of the court was on making it clear that the Human Rights Act is not fundamentally about compensation. The judge stated in one part of the judgment that the point of the Human Rights Act is to get violations stopped, with compensation being a secondary issue – the intention of the law is not to create a “get rich quick” litigation culture.

As such, the starting point for the court was to decide if financial compensation was “necessary” and if so, then the courts must take into account other associated claims. This means that compensation from the perpetrator (if any is recovered), plus any money from the Criminal Injuries Compensation Authority (CICA), will be deducted from anything the police are ordered to pay, so that the Claimant doesn’t get the money twice or three times over for the same loss.

Importantly, the failings by the police in this case had caused the two victims to suffer, separate from the harm they suffered at the hands of their attacker. That suffering amounted to a breach of the right to freedom from torture, inhuman and degrading treatment, which is a particularly important right, and which cannot be corrected by other means, and so they were entitled to compensation from the police.

However, despite ongoing media hype about a compensation culture in human rights claims, the case illustrates the relatively low level of damages in human rights cases, when account is taken of the serious impact of the breaches of rights.

The court found that even if the police had investigated properly, Worboys would still have attacked DSD, and so her claim was solely for the failings of the police in their subsequent investigation, which the court held was prolonged.
The court held that the effects on her were serious, including medically proven long-term and ongoing psychiatric harm, resulting in bouts of clinical depression, including a feeling of responsibility towards the other victims because she had not been able to persuade the police of her version of events and so had not got him arrested sooner. The court found that her claim for ongoing psychiatric injury was 50% a result of the assault itself; 50% a result of the subsequent police failures. The court held that an award of £20,000, plus £2,500 for treatment costs, was not excessive in the circumstances of a very serious and exceptional case.

In relation to NBV, the court found that if the police had acted properly, NBV would not have been raped. Significantly the judge held that NBV could claim damages from the police, not only for the investigative failings and the impact these had on her, but also for the rape itself and the psychiatric impact on NBV, which but for the police failings, would not have occurred. For this serious breach of her rights, the court awarded her £17,000 for the harm she suffered and £2,000 for treatment costs. The judge rejected the forceful arguments put forwards by the police that they could not be held liable for the acts of a third party for whom they were not responsible, and for any injury caused by Worboys.

DSD received more compensation than NBV because the damages she had already received from Worboys and the CICA for the assault itself were separate from the police failure to investigate for which she was being compensated in this case, though they could still be taken into account. DSD had also suffered a more serious and long-standing psychiatric injury than NBV.

NBV on the other hand was being compensated for the rape itself, as well as the police investigation, and therefore there was a direct overlap between the compensation she had already received from Worboys and from the CICA and the compensation paid by the police, meaning a greater sum had to be deducted.

All eyes on will be on the Court of Appeal in May. The police will try and argue strongly that enabling people to sue for investigative failings will encourage defensive policing and divert police resources from fighting crime to dealing with litigation; if these arguments are accepted it will leave the victims of serious and violating crimes without a remedy when the police fail to investigate properly and to bring their attackers to justice. The High Court judgment is a sound one; it does not put an unduly onerous burden on the police and gives them a wide discretion in their investigative strategies, but it makes plain that there are minimum investigative standards the police must meet, and that they can be legally challenged where they fail to do so; this is vitally important. This is fundamentally about justice not compensation; we should all remember that in the context of the devastating impact of the failings by the police, these are not vast sums of money, and it is essential that victims can continue to bring cases and receive some recognition of the huge impact that these failings by the police can have on their lives.