By Prof Joanne Conaghan, Professor of Law (University of Bristol Law School).
The case of the Black Cab rapist, John Worboys, may well qualify as one of the most egregious failures of modern policing of our times. Alleged to have assaulted over 100 women using his taxi as a lure and a crime site, Worboys terrorised women in the London Metropolitan area for the best part of a decade before eventually being apprehended and imprisoned in 2009 for 19 separate sexual assaults. This week the Worboys case is once again in the public eye as a claim by two of his victims, DSD and NBV, that the Metropolitan Police violated their human rights by failing adequately to investigate their claims comes before the Supreme Court.
One has to wonder how such serious criminal activity in a public setting could go unchecked for so long. The simple answer is that the Metropolitan Police failed Worboys’ victims utterly and unequivocally, their investigation marred by multiple systemic and operational failings, as elaborated in painstaking detail by Mr Justice Green in a High Court judgment in 2014.
At the time of the initial hearing, a mountain of studies already evidenced repeated shortcomings in police handling of rape complaints. Prominent concerns emerging from the extensive literature included a sustained culture of police suspicion of rape complainants, poor record-keeping, widespread misuse of ‘no-criming’, sloppy witness follow-up and evidence-gathering, and a lack of adequate senior officer supervision. All of these failings and more featured in the Worboys’ investigation, which at times sunk to such levels of incompetence and/or neglect as to beggar belief. For the individual women involved, the woeful handling of their complaints after a traumatic attack must have been both shocking and deeply distressing.
How do we hold the police to account in such situations? Generally, when professionals carry out their duties negligently, those who are harmed by the negligence can bring a civil claim for damages. We are all familiar with suits against hospitals for negligent medical treatment or suits against lawyers and accountants for failing to take care of their clients’ interests. It has proved difficult however, if not impossible, to bring a negligence claim against the police for failing to protect members of the public from criminal injury, even when the police knew or ought to have known that an individual was at particular risk. This position was recently reaffirmed by the Supreme Court in 2015 when they denied a negligence claim brought by the family of a domestic violence victim, Joanna Michael, whose brutal murder could have been prevented had the police responded in a timely fashion to her 999 call.
This inability to bring a negligence claim against the police has prompted the exploration of other avenues of redress and this is why the Black Cab rapist case is so significant. DSD and NBV are arguing not that the police were negligent (though they were), but that they breached the claimants’ human rights, specifically the right not to be subject to torture or inhuman and degrading treatment under the European Convention of Human Rights (ECHR) Article 3.
Now it is true that the police themselves did not carry out the sexual assaults – Worboys did that. What the police did was fail to protect women from Worboys’ violations and fail properly to investigate the assaults after the fact. It is this latter concern which is the particular focus of the current claim before the Supreme Court. The claimants argue that because their human rights were involved, the police had a duty to investigate their complaints properly.
When the case came before the High Court in 2014, Mr Justice Green reviewed the legal authorities and concluded that the claims were merited. He awarded damages of £22,250 and £19,000 to DSD and NBV respectively. These are not huge amounts when compared to negligence awards but they are at least enough to signal that wrong has been done for which account should be made.
The following year, in 2015, the Court of Appeal rejected an appeal against the judgment by the Metropolitan Police and upheld the damages awards. At this point, it might have been hoped that the police would back down, the weight of legal opinion now falling firmly in favour of the claimants. Unfortunately the police chose to appeal again followed hotfoot by the Home Office who are ‘intervening’ in the Supreme Court in support of the Met’s position. Lined up against this formidable team are two rape victims, their barrister, and legal counsel for a number of NGOs concerned about sexual violence issues, including Liberty, Rape Crisis England and Wales, End Violence Against Women and Southall Black Sisters. The number and range of intervenors is itself indicative of how much is at stake in this decision. Are the police going to continue to be free to deliver a substandard service to rape and domestic violence victims with no practical mechanisms of accountability or means of redress? Or are the Supreme Court going to uphold a claim which might put some incentive on the police to handle these kinds of investigations more effectively?
Of course, if such a claim is recognised it must be placed within clear and fairly limited parameters. This was emphasised by the High Court and the Court of Appeal, who do not wish unduly to inhibit the police in carrying out their essential functions. Inevitably a balance must be struck between facilitating policing on the one hand and righting wrongs on the other; and where the balance is right, these two concerns do not have to compete but can in fact reinforce one another. In my view, recognising a claim against the police in a narrow range of particularly egregious circumstances, such as those in the Worboys case, will enhance not inhibit policing by placing some incentives on the police to raise their game when it comes to investigating crimes of sexual violence. I have to hope that the Supreme Court agree, as we await their final judgement on this critical matter in due course.
__________________
For further critical analysis, see J Conaghan, ‘Investigating rape: human rights and police accountability’ (2017) 37(1) Legal Studies 54–77. You can also watch Joanne’s Inaugural Lecture on “Civil Liability – Addressing police failures in the context of rape, domestic and sexual abuse“, delivered at the University of Bristol on 19 February 2015.