Police failings in the investigation and prosecution of sex abuse and rape cases have recently been under the spotlight. In March, the chief constable of Greater Manchester warned that police mistakes in the Jimmy Savile case could “happen all over again”. His comments follow criticisms of police failings in the Rochdale child exploitation scandal. We can hope that the media focus will drive an improvement in the handling of such allegations. But what of the victims of abuse and rape whose assailants have escaped justice? What legal remedies do they have?
In English law, the police largely enjoy immunity from negligence claims relating to the investigation of crime. In Hill –v- Chief Constable of West Yorkshire the House of Lords held that it is generally not fair, just and reasonable to impose a duty of care in negligence on the police for anything inextricably connected with the investigation and suppression of crime. The English approach is restrictive; the Canadian Supreme Court has recognised a tort of “negligent investigation”. But in England such claims require evidence of malice, so pure negligence can actually be advanced as a defence to claims. The scope of Hill has been challenged, but the core immunity remains.
However, we are now seeing the emergence of a new species of claim by victims of sexual offences who have been failed by the police: actions under the Human Rights Act. The jurisprudence around these claims is still in its infancy, but some settlements have been reported. In December 2012, police failings in the investigation of a rape of a 15 year old girl led to an out-of-court settlement. The case concerned failings by the Met’s Sapphire sexual assault unit. Important mobile phone evidence which might have assisted a conviction was not secured; there was no search for forensic evidence. The suspect was acquitted at trial. The trial judge called the police mistakes “a disgrace”.
The claim was brought under HRA 98, alleging breaches of articles 3 and 8 – the right not to be subjected to inhuman and degrading treatment and the right to a private life. There is a body of European Court of Human Rights (ECHR) jurisprudence that recognises that the police and CPS have positive obligations to investigate and prosecute serious crime. The English courts are now giving effect to these obligations. In OOO –v- Commissioner of Police for the Metropolis, the High Court held that the police had breached HRA Articles 3 & 4 by failing to investigate allegations by four young Nigerian women that they had been subjected to inhuman and degrading treatment and domestic slavery. Each claimant was awarded £5,000.
The current media attention suggests that such claims will become more frequent, and a corpus of reported decisions will emerge. There remain some problems. The courts are reluctant to “second guess” the police; only the most extreme failings are likely to trigger HRA remedies. Another issue is the size of damages awards relative to legal costs. Damages for HRA breaches can be modest. The out-of-court settlement of £15,000 in the December 2012 case is a higher level of damages than the sorts of figures which have been paid in other reported settlements, or in the OOO decision. The post Jackson focus on “proportionality “ in civil litigation may mean that police forces can easily “buy off” claims involving their most egregious failings, thus stymieing the organisational accountability. This would be unfortunate: as the police and as society grapple with failings in the investigation and prosecution of sexual assault, rape and child abuse, it is important that litigation under HRA helps to force the pace of change.