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the black cab rapist, faulty investigations and social care failure to remove claims

22 February 2018

The actions, or inactions, of the Police have come under much judicial scrutiny recently, most notably in Michael v Chief Constable of South Wales Police [2015] UKSC 2 (alleged negligence and breach of human rights), Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (alleged negligence) and now the Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11 (alleged breach of human rights).

It is well recognised that the general principles of negligence apply as much to the Police as to anyone else. As was made clear by Lord Toulson in Michael, which concerned the failure of the Police to respond to an emergency call in time to save the caller from an attack, the common law does not normally impose liability for omissions, or more particularly for a failure to prevent harm caused by third parties, which the Police have not themselves created. Consequently, in the circumstances, the Police did not owe the victim a duty of care and the claim failed.

Conversely, Mrs Robinson was injured whilst the Police were trying to arrest a suspect. The Police officers’ actions resulted in her injury. Distinguishing it from Michael the court held that this case involved a positive act. The reasonably foreseeable risk of injury to Mrs Robinson was enough to impose on the officers a duty of care (which the Court of Appeal had already held had been breached by the Police officers’ actions). Mrs Robinson’s appeal was upheld.

DSD and NBV were victims of John Worboys, the black cab driver convicted of numerous sexual offences against women. They alleged that the failure of the Police to effectively investigate Worboys’ crimes was a violation of their Article 3 right, which provides that no one shall be subjected to inhuman or degrading treatment. For differing reasons, the Supreme Court unanimously dismissed the Commissioner’s appeal agreeing with the courts below that there was a positive obligation to investigate and that, in this case, the obligation had been breached.

Three Law Lords considered that serious but purely operational failings in a police investigation were sufficient to engage Article 3. Lord Hughes (with some support from Lord Mance) considered that it required serious failings of a systemic nature.

DSD demonstrates that although the Police, in respect of an investigation, might not owe a common law duty of care in negligence (see for example, Michael) this does not mean that claims brought under the Human Rights Act 1998 are bound to fail. The bases of liability are different as are the policy reasons which might underpin a finding on one basis and not another.

Applying the principles above to social services claims, if the claimants in CN & GN v Poole Borough Council 08/06/2017 CA (Civ Div), originally an action against the housing authority but recast as a failure to remove claim, are granted permission to appeal to the Supreme Court (which we consider very likely) and, if the appeal should fail, we anticipate that claims brought under Articles 3 (and/or 8) of the Human Rights Act 1998 will increase significantly particularly in relation to any perceived failures to properly assess a family’s circumstances or in conducting child protection investigations or other assessments. However, following DSD it seems that simple errors or isolated omissions will not give rise to a violation of Article 3. No doubt claimants will argue that social workers’ conduct falls into the category of conspicuous and substantial errors and defendants arguing that the same conduct comprises isolated, simple errors.

We may also see some much needed judicial guidance on circumstances in which an 'assumption of responsibility' might arise in 'failure to remove' claims.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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