Blog: The Police Duty to Investigate Serious Abuse and Violence

Most people expect the police to investigate crimes thoroughly and fairly. Police failures to follow reasonable lines of enquiry and gather available evidence can result in police complaints being upheld or investigations being reopened in certain cases. However, as examined in this month’s legal blog, it is usually only possible to sue the police for failures to investigate particularly serious violent or sexual offences.

This legal duty comes from human rights law. It recognises that when a person reports serious abuse, violence, or sexual offending, an ineffective police investigation can have serious consequences for both the victim and public safety.

Understanding the Police's Duty to Investigate Serious Abuse and Violence

The Human Rights Act 1998 (“HRA”) requires public authorities, including the police, to respect certain fundamental rights protected by the European Convention on Human Rights (“ECHR”).

Article 3 of the ECHR protects people from torture and from inhuman or degrading treatment, which includes very serious criminal offences such as rape, serious sexual assault, and severe physical violence. When credible allegations of this kind are reported, the police have a positive duty to carry out a prompt and effective investigation. In simple terms, this means they must take reasonable steps to properly investigate the allegations within a reasonable period of time. Similar obligations apply following reports of human trafficking and modern slavery (under Article 4 of the ECHR as covered in our previous blog post here) and domestic violence (under Article 8 of the ECHR) amongst other serious offences.

The Important Case of DSD

Probably the key case in this area is Commissioner of Police of the Metropolis v DSD and NBV [2018] UKSC 11[1], often referred to as "DSD".

The case arose from the police investigation into offences committed by John Worboys, who became known as the "Black Cab Rapist". Between 2003 and 2008, he sexually assaulted and raped numerous women. Two victims, known as DSD and NBV, brought legal claims against the Metropolitan Police because of serious failures to conduct effective investigations into the crimes they had reported. NBV’s claim included an argument that she would not have been attacked were it not for the police’s failures to properly investigate DSD’s report.

The courts found that the police had made significant mistakes during the investigation. Important opportunities to identify Worboys and prevent further attacks were missed, allowing him to continue offending against other women, including NBV.

The victims argued that these failures breached their rights under Article 3. The Supreme Court agreed. It confirmed that, in cases involving serious violence or sexual offending, the police can owe individual victims a duty to conduct a prompt and effective investigation. The court also confirmed that victims will likely be entitled to compensation where serious failures occur.

What Does an Effective Investigation Look Like?

The law recognises that criminal investigations are often difficult and that police officers cannot solve every crime. The police are not expected to guarantee an arrest, prosecution, or conviction.

However, where the Article 3 duty applies, the police must take reasonable and effective investigative steps. This may include:

• Acting promptly once a report is made.
• Following obvious lines of enquiry.
• Gathering and preserving relevant evidence, for example CCTV footage and forensic evidence.
• Speaking to relevant witnesses.
• Properly considering information provided by the victim.
• Making decisions that are reasonable and based on the available evidence[2].

Investigations should be carried out competently and professionally. Victims should also be treated with dignity and respect throughout the process. The duty is one of means not results, so victims are not required to show that an effective investigation would have resulted in criminal charges, much less a conviction.

Which Cases Are Covered?

It is important to note that only apparently credible allegations of inhuman and degrading treatment will engage the duty under Article 3.

This ‘minimum severity threshold’ is relatively high and is usually met where the reported conduct involves serious abuse, violence, or exploitation. Examples may include:

• Rape and serious sexual offences.
• Serious physical assaults.

Whether Article 3 applies will depend on the specific facts of the case.

What Are Victims Entitled To?

Where the Article 3 duty applies, victims are entitled to an investigation that is effective, thorough, and carried out without unreasonable delay. There must be “a serious attempt to elucidate the facts” and not to ‘wrap up’ investigations “on the basis of ill-founded conclusions” (BV v Belgium App No. 61030/08 at [61]).

This does not mean that victims can dictate how an investigation is conducted. The police retain discretion over operational decisions. However, they should be able to explain and justify important decisions, particularly where opportunities to obtain evidence have not been pursued.

Victims should also be kept informed about significant developments and should have confidence that relevant evidence is being properly considered.

Importantly, the Supreme Court confirmed in the DSD case that victims do not have to prove that the entire police system is flawed. A claim can arise where there are serious operational failures in an individual investigation.

Where police failings are sufficiently serious to amount to a breach of the Article 3 investigative duty, a victim may be able to bring a claim under the Human Rights Act 1998 and seek compensation. For example, we acted in a claim against the Metropolitan Police Service arising from serious errors in its investigation into reports of rape and domestic abuse made by our client against her estranged husband. The Met paid five-figure damages and accepted that its officers had “brought the service into disrepute” and that the investigation “fell way short of the standards we expect”.

Not every mistake or delay will amount to a human rights breach. The failures must generally be serious and significant. Legal advice is often needed to assess whether the threshold has been met.

What Can You Do If You Are Concerned About a Police Investigation?

If you have reported a serious violent or sexual offence and are worried that the police are not investigating properly, it is important to raise your concerns as early as possible.

You may wish to:

• Ask for a detailed update on the investigation, including what steps have been taken and what enquiries remain outstanding.
• Note that you are eligible for enhanced rights under the Victims’ Code of Practice[3] as a victim of a serious crime.
• Request regular communication from the officer responsible for the case.
• Make a formal complaint if you believe mistakes have been made during the investigation.
• Seek advice from a solicitor experienced in actions against the police and human rights claims.

Early action can help identify problems and may improve the chances of important evidence being obtained and preserved.

The following formal options may also be appropriate:

• Submitting a police complaint to the relevant police force. Police forces can decline to investigate complaints submitted more than one year after the relevant conduct unless there are good reasons for the delay.
• Requesting a review of a police decision to close an investigation without referring it to the Crown Prosecution Service for a charging decision. These requests usually need to be submitted within three months of the relevant decision.
• Bringing a claim against the relevant police force under the Human Rights Act 1998. Any claims of this nature must usually be filed at court within one year of the relevant breach of the HRA.
• Bringing a claim against the relevant police force under the Equality Act 2010, where the investigative failures are due to discrimination. Any claims of this nature must usually be filed at court within six months of the relevant discriminatory act/decision.

This blog post was prepared with contributions from members of our legal team including: Emma Gregg, Gus Silverman, Unkha Banda and Emily Soothill. It is for general information and is not intended to be used as legal advice.

[1] https://supremecourt.uk/cases/uksc-2015-0166

[2] College of Policing, ‘Understanding the process, your role and obligations’ https://www.college.police.uk/guidance/conducting-effective-investigations/understanding-process-your-role-and-obligations

[3] https://assets.college.police.uk/s3fs-public/2021-03/victims-code-enhanced-rights-vips-250321.pdf