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In the final of her series of articles, Angela Patrick looks at common law and Human Rights Act remedies when public authorities fail.
As I write this final part in a series on the protection of human rights by the common law and by the Human Rights Act 1998 (HRA),
1Other parts are available at: May 2017 Legal Action 11; July/August 2017 Legal Action 14; and October 2017 Legal Action 8. the media are vociferously reporting on the release of John Worboys, sanctioned by the Parole Board. The victims’ commissioner, Baroness Newlove, has already warned against jumping on the ‘human rights bandwagon’ at the expense of victims’ rights.
2Baroness Newlove interviewed for Channel 4 News, 9 January 2018. This, of course, entirely neglects the role that domestic human rights law has played in helping to secure accountability and transparency in respect of the failings of the police in this notorious case. As the question of a remedy for some of the victims awaits judgment in the Supreme Court (
DSD and others v Commissioner of Police of the Metropolis and others [2015] EWCA Civ 646; [2016] QB 161 on appeal), it is an apt time to consider how the HRA and the common law operates to secure redress for individuals in circumstances where public bodies have failed to discharge their duties.
The limits of the common law
The common law’s limits are perhaps best illustrated in the well-established position that the police do not owe a duty of care in negligence to the public in carrying out their general functions. Historically described as an immunity, law students learn that omissions by the police don’t attract a remedy in negligence. In
Hill v Chief Constable of West Yorkshire Police [1988] 1 AC 53, the last victim of the Yorkshire Ripper unsuccessfully brought a claim for negligence based on the inadequacy of the police investigation, citing mistakes that would not have been made by a force exercising reasonable care and skill. A well-known series of policy objections – including a chilling effect on operational policing – support the conclusion that no duty of care was owed (see Lord Keith at 63;
Brooks v Commissioner of Police of the Metropolis and others [2005] UKHL 24; [2005] 1 WLR 1495; and
Van Colle and another v Chief Constable of Hertfordshire Police [2008] UKHL 50; [2009] 1 AC 225).
In
Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2; [2015] 2 WLR 343, the Supreme Court confirmed these limits. Ms Michael called 999 to report that her historically abusive partner had been at her property and had threatened to return and kill her. He did so return, and a claim was brought by her family to challenge the failure of local police authorities to respond, in negligence and under the right to life protected by article 2 of the European Convention on Human Rights (ECHR). The Supreme Court held that the common law of negligence could give no remedy and struck out that claim; but it concluded that the police had a case to answer under the HRA. A strong dissent from Lord Kerr and Lady Hale would have moved away from the general rule in
Hill, inviting a nuanced approach to liability based on proximity and responsibility. Whatever we might think about the Supreme Court’s conclusion on negligence – and there is a strong dissent – this case has a lot to say about the importance of the HRA for victims’ rights and redress.
In
DSD, the Court of Appeal considered the scope of the procedural duties arising as a result of ECHR article 3 and the resulting claim to a remedy for breach, brought by a number of the women victims of John Worboys. The court was encouraged to consider the limitations in
Hill and the allied policy arguments as a ‘moderating’ constraint on the HRA claim. This ‘ambitious’ argument was rightly rejected (see paras 26–30): ‘[T]he ECHR and the common law of negligence have different aims and so can live together.’
Considering the nature of the obligation in article 3, the court revisited the relationship between the common law and the ECHR, citing (at para 64) Lord Bingham in
R v Secretary of State for the Home Department ex p Greenfield [2005] UKHL 14; [2005] 1 WLR 673 at para 19: ‘[T]he [HRA] is not a tort statute. Its objects are different and broader.’ The Court of Appeal distinguished private law proximity – underpinning the decision in
Hill – and HRA claims thus: ‘The process by which a human rights claim is adjudicated is quite different. The starting point is not the relationship between the claimant and the (state) defendant … The focus is on the state’s compliance, not the claimant’s loss’ (para 66).
The latest challenge to the
Hill limitation awaits determination alongside
DSDI In
Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15 on appeal, the Supreme Court has been asked to consider an appeal on third-party liability of the police in respect of a person who incurred injuries as a result of a police pursuit and arrest.
The Supreme Court’s decision in both cases may yet provide clarity on the distinct role played by common law and HRA remedies.
Where there is no common law cause of action, there may yet be a remedy under the ECHR.
Michael, while a powerful illustration of its value, tells us nothing new about the HRA.
Detention need not amount to common law false imprisonment to violate article 5(1) and (5), which provide for compensation for unlawful detention (see, for example,
Zenati v Commissioner of Police of the Metropolis and another [2015] EWCA Civ 80; [2015] QB 758 and
LL v Lord Chancellor [2017] EWCA Civ 237; [2017] 4 WLR 162). In
Mitchell v Glasgow City Council [2009] UKHL 11; [2009] 1 AC 874, Lord Hope emphasised the existence of an article 2 remedy would not change the scope of the common law (see paras 30–34). In
Michael, Lord Toulson explained: ‘By introducing the [HRA] a cause of action has been created in the limited circumstances where the police have acted in breach of articles 2 and 3 (or article 8). There are good reasons why the positive obligations of the state under those articles are limited. The creation of such a statutory cause of action does not itself provide a sufficient reason for the common law to duplicate or extend it’ (para 130). The scope and extent of these procedural and substantive HRA remedies remains subject to debate, discussion and argument. Guidance on article 3 remedies awaits the Supreme Court’s decision in
DSD.
The boundaries of common law also continue to evolve, but are informed by the operation and existence of HRA remedies. In
Zenati, above, the court refused to expand the law of false imprisonment, precisely because an article 5(5) remedy was available (see para 54; see also
R (Muuse) v Secretary of State for the Home Department [2010] EWCA Civ 453 at para 50).
This evolution does not always lead to a positive outcome for claimants. In a recent controversial decision, the Court of Appeal has constricted the circumstances when local authorities will owe a duty to children in failing to exercise their child protection duties. In
CN and another v Poole BC [2017] EWCA Civ 2185 (see
'Housing: recent developments'), the court considered the Supreme Court authority in
Michael and suggested that the long-standing authority in
JD v East Berkshire Community Health and others [2003] EWCA Civ 1151; [2004] QB 558 is no longer good law (see paras 99–101, 106 and 114). The anti-social acts of a third party – although reported to the local authority on numerous occasions – were insufficient to provide the foundations for a duty on the part of the local authority. There were policy reasons for authorities to be free from any such general duty: first, to ensure that difficult decision-making was not made more sensitive; and second, in general, there is no liability for the wrongdoing of a third party even where the wrongdoing is foreseeable (see para 94). This case may yet go on appeal, again to be informed by the pending decisions of the Supreme Court in
DSD and
Robinson.
The limits of the Human Rights Act 1998
There are a range of reasons why a common law claim may appear more attractive than a claim for damages pursuant to HRA s8. Not least among these is the short limitation period of a year provided in the Act. Twelve months compares unfavourably with the statutory limitation period for most common law torts. In cases pleading both common law and HRA remedies, a protective claim often needs to be issued swiftly, subject to consideration of extension of time or later amendment.
Damages generally play a less prominent role in actions based on breaches of ECHR rights than in those based on breaches of private law obligations.
The overriding purpose of common law claims is compensatory, and this is reflected in the level of financial awards made. HRA damages are grounded in consideration of whether ‘just satisfaction’ requires financial compensation and, if at all, how much. Damages generally play a less prominent role in actions based on breaches of ECHR rights than in those based on breaches of private law obligations. An action alleging a violation of the ECHR is often more concerned to bring the infringement to an end, and compensation will be of secondary importance (
Anufrijeva and another v Southwark LBC and others [2003] EWCA Civ 1406; [2004] QB 1124 at paras 52–53 and
Greenfield (above) at para 9); thus reflecting the different purpose an HRA claim serves.
Although crucial where no other remedy exists, awards are generally lower in HRA claims. However, the jurisprudence of both the domestic courts and the European Court of Human Rights (ECtHR) makes clear that judges can draw on the principles in domestic settlements and comparable awards in order to inform the assessment of HRA damages (eg,
DSD and NBV v Commissioner of Police of the Metropolis [2014] EWHC 2493 (QB); [2015] 1 WLR 1833 at paras 68 and 130). This can be a useful tool in calculating quantum in cases where a common law remedy is unavailable and guidance from Strasbourg is limited.
All about the money?
Human rights cases are never all about the money. However, for many victims of human rights violations, their day in court, their right to redress, and the only route to accountability and transparency may lie in a damages claim pursuant to the HRA. For others, the prospect of substantial damages – and more favourable procedural arrangements – means a tortious claim may make more sense. When, how and what remedy might be available are questions determined by jurisprudence from both the common law and the ECtHR.
We await the latest judicial road map in the Supreme Court’s decisions in DSD and Robinson. Whatever the outcome, DSD illustrates the important public interest in ensuring that victims’ voices are heard in the interpretation and development of the law. It confirms the vitality of the HRA and its continuing impact on our common law framework for the protection of individual rights. Its legacy must be stronger safeguards in future cases against ill communication and poor case management, particularly in cases involving vulnerable people and serious allegations of physical harm.
Again, for better or worse, neither the common law nor ECHR case law exists in isolation. Despite the ebb and flow of judicial enthusiasm and political opprobrium, our rights are best protected when both are well rehearsed, oft flexed and duly respected not only by lawyers but by public bodies working on the front line.