ECHR, art 3 imposes a positive obligation on states effectively to investigate reported crimes perpetrated by private individuals


Re: Commissioner for Police of the Metropolis v DSD & Anor [2018] UKSC 11

This appeal considered whether there is an obligation under the Human Rights Act 1998, s 6, read with ECHR, art 3, to investigate ill-treatment which has been perpetrated by a private individual without any complicity of a public authority, and/or whether in the case of such ill-treatment any positive obligation is confined to a requirement to put in place the necessary structure to enable such investigation to be conducted but does not extend to the conduct of an individual investigation into a particular alleged crime.

The Supreme Court unanimously dismissed the appeal. The Court examined the ECHR case law supporting the existence of the positive obligation under ECHR, art 3, concluding that there is an operational duty to conduct a proper inquiry into behaviour amounting to a breach of art 3. As such,  serious failures which are purely operational will suffice to establish a claim and the Court held that there is no basis in case law for the suggestion that the investigatory duty should be limited to systemic, as opposed to operational, failures.

Lord Kerr considered that the fact that the police do not have a common law duty of care in tort does not extend to claims advanced under the Human Rights Act 1998. He held that the bases of liability are different and no assumption should be made that the policy reasons which underlie the exemption of police from common law liability apply in the same way to liability for breach of the obligations under the 1998 Act. Meanwhile Lord Hughes examined the public policy reasons why English law does not recognise a duty of care owed in tort by the police to individual citizens, and therefore concluded that, as it is undesirable to permit detailed review of a particular criminal investigation by way of the ECHR, the positive obligation should be confined to structural failings. Finally Lord Mance concluded that the distinction between operational and systemic failures has been replaced by a distinction between simple errors/isolated omissions and more serious failings, emphasising that the positive obligation under art 3 only relates to more serious failings.

Phillippa Kaufmann QC, Karon Monghan QC, Helen Law, and Kirsten Sjøvoll were involved in this case.