By Katarina Sydow Barrister, Outer Temple Chambers

Police ordered to pay Human Rights Act damages for failure to conduct an adequate investigation into allegations of rape

In a decision handed down on 23 July 2014, the High Court has found that the Metropolitan Police Service (“MPS”) must pay damages of £22,250 and £19,000 respectively to Claimants DSD and NBV for failing to conduct an effective investigation into the rapes and other sexual offences committed by John Worboys, the so-called “Black Cab Rapist”, between 2002 and 2008 (DSD & NBV v Commissioner of Police of the Metropolis [2014] EWHC 2493 (QB).

In February 2014, the High Court held the MPS liable to the Claimants under the Human Rights Act (“HRA”) 1998. Both DSD and NBV were raped by Worboys, DSD in 2003 and NBV in 2007, as were approximately 100 other women. The failure by the MPS to carry out an adequate investigation into the complaints made by the Claimants and other women amounted to a breach of the state’s positive duty under Article 3 of the European Convention on Human Rights (“ECHR”) to investigate allegations of conduct amounting to torture and/or inhuman or degrading treatment.

In the instant decision, Green J helpfully restated the law on damages under the HRA

1998 in relation to:

1.   Whether an award should be made; and

2.   The quantum of such an award,and considered the effect of other relief granted “in relation to the act in question” under s. 8(3)(a) HRA 1998.

Necessity of an award

Under section 8(3) HRA 1998, no award of damages is to be made unless necessary to afford just satisfaction to the claimant. The HRA 1998 is not a tort statute; its focus is on the protection of human rights, not the award of compensation. Nevertheless, this was

“…precisely the sort or type of case where damages are appropriate.     The invariable practice of the Strasbourg Court in cases such as the present has been to recognise that a financial award is necessary.” [24]

Green J noted that conventional public law remedies, such as requiring a decision to be taken again, were not apt, and could not put right the wrong committed by the Defendant. Habitually, damages are awarded for any Article 3 violation, whether the violation was perpetrated by the police, or with police complicity, or where the violation was based only upon a failure by police to investigate.

Effect of other relief

Section 8(3)(a) HRA 1998 requires the court to take account of any other relief or remedy granted or order made “in relation to the act in question” when deciding whether to award compensation. Both DSD and NBV received payments arising out of Worboys’ assault, namely:

1.   An award by the Criminal Injuries Compensation Authority; and

2.   A settlement payment in respect of a civil claim against Worboys.

The Claimants also brought a claim against Worboys’ motor insurer, which failed. Each Claimant had received approximately £10,000 from their civil claim against Worboys following deductions in respect of their costs liabilities for the failed litigation against the insurer.

Green J analysed the impact of the domestic relief as follows:

1.   The award of domestic relief is not decisive, but should be taken into account; the impact of an award or settlement will depend on the facts of an individual case.

2. In determining whether a Claimant had been fully compensated following a settlement, it was necessary to construe the terms of the settlement to find out which part of the claim, if any, had been fully and finally settled. In this case:

a.   The claim against Worboys was exclusively for harm caused by the tortious acts of Worboys; there were no pleaded claims under the HRA 1998 for harm caused by the defective police investigation;

b. It was explicitly recognised in the settlement that the Claimants had compromised their claims for an undervalue, as Worboys had insufficient assets to meet the full value of their claims; and

1. The settlement left open the possibility of claims against others to make up the shortfall.

3. There was a category of harm (arising from the faulty police investigation) for which no compensation had been paid.   However, there was some overlap between the claims against the MPS and Worboys, where it was necessary to “take account” of the civil settlements. In particular, it was NBV’s case that she never would have been raped at all but for the MPS breach of Article 3. NBV had already received some compensation from Worboys in respect of the assault itself; it was necessary to take account of this.

4.   Had it not been for the failed claim against Worboys’ motor insurer, the Claimants would have recovered in the region of £20,000 each from their civil claims. It was the Claimants’ choice to pursue this claim. It was right to make a modest adjustment to any award under the HRA 1998 to take account of the extent to which the sums paid out to meet costs liabilities might be said to cover harm attributable to the breach by the MPS.

5. CICA awards were specifically for the consequences of the criminal assault; no award was made for harm caused by the entirely different acts and omissions of the MPS.   To the extent to which the harm in the CICA and HRA claims overlapped, any award to the Claimants under the HRA would be reduced.

6.   Any adjustments to take account of previous relief would be broad-brush; no precise “netting off” process was possible.

Quantum

Green J reviewed authorities of the Strasbourg court addressing non-pecuniary claims for compensation in cases involving Articles 2 and 3. He found the following range of awards for relevant Article 3 violations:

 Euros 1,000 to 8,000: a nominal or low award;

Euros 8,000 to 20,000: a routine violation of Article 3 with no serious long-term mental health issues or unusual aggravating factors; and

 Euros 20,000 to 100,000+ for cases with aggravating factors such as:

o Medical evidence of material psychiatric harm;

o Mental harm amounting to a recognised medical condition;

o Where the complainant has also been the victim of physical harm or a

crime caused in part by the State;

o Long-term systemic or endemic failings by the State; and

o Morally reprehensible conduct by the State.

Relevant factors in setting the level of compensation included:

 The nature of the harm suffered;

 Treatment costs;

The duration of the breach by MPS (i.e. 5 years between the rape of DSD and the arrest of John Warboys);

 Whether the MPS failings were systematic or operational;

 Whether there was bad faith on the part of MPS;

 Other payments made to the Claimants; and

 The principles of “totality” and “modesty.”

Conclusion

1.   Where actual harm (physical or psychological) has been caused to a Claimant by the   State’s   breach   of   Article   3   ECHR,   compensation   will   ordinarily   be appropriate; and

2.   Although   courts   must   “take   account”   of   any   relevant   domestic   relief   in determining whether an award of damages is necessary, the extent to which domestic relief extinguishes or reduces a right to damages will be fact-specific.

KATARINA SYDOW

Barrister, Outer Temple Chambers

[email protected]

Source: http://www.outertemple.com/userfiles/Documents/HRAdamagescasereportKS.pdf

IMAGE: ukhumanrightsblog.com