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Living Law: CoP vs DSD & Anor; why La Brea massacre victims can have their own ‘Pratt and Morgan’

If you are wondering why, as a Trinidad and Tobago citizen, I choose to highlight the case of Commissioner of Police of the Metropolis v DSD & Anor [2018] UKSC 11 (DSD) coming out of the United Kingdom, the reason is simple. This case has basically turned the concept of policing on its head and will therefore affect police forces in many Commonwealth and common-law regions.

And it may have immediate applications in our country after last week’s suspension of the three cops over possible dereliction of duty in the La Brea quadruple murders and the murder of the soldier in Gasparillo. “COPS COULD HAVE PREVENTED THIS,” Page A3 of last Saturday’s Guardian tells the country, immediately below the main story headlined, “CoP acts on Sobo murders complaint 3 COPS SUSPENDED.”

Photo: (From left to right) Abigail Jones-Chapman, Michael Scott and Olivia Chapman were murdered in Soho on 13 March, 2018.

First, some background to CoP Metropolis v DSD & Anor:

From 2003 to 2008, a black-cab driver in London named John Worboys committed over 100 rapes. Despite repeated reports to them by various victims, the Metropolitan Police failed at both a systemic and an operational level to investigate the claims. Their failures ranged from a fundamental failure to provide adequate resources and training to officers to specific operational failures such as failing to interview key eye-witnesses and gather CCTV evidence. Because of the Metropolitan Police’s failings, Worboys continued attacking women until he was finally arrested in 2008.

Two of the victims sued the police.

The two, DSD and NBV (the Court has ordered that their identities be concealed), sued under Article 3 of the European Convention on Human Rights (ECHR) which states:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

I shall come in due course to the significance of the human rights issue. For now, I simply want to deal with why this action (the lawsuit on human rights ground) is so important.

Photo: A woman is sexually assaulted.
(Copyright BBC)

Prior to this case, there has been a “rule” that the police could not be sued for failure to protect an individual. The authority for this is Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 (Hill). Here is the Hill background:

Jacqueline Hill was the final victim of Peter Sutcliffe (the Yorkshire Ripper). He had committed 13 murders and 8 attempted murders over a five-year period. Jacqueline’s mother made a claim against the Chief Constable on the grounds that the police had been negligent in their detection and detention of Sutcliffe. The defendant (the Chief Constable) applied to have the claim struck out on the grounds that there was no cause of action since no duty of care was owed by the police in the detection of crime.

And here is what Lord Keith said in the Hill judgement:

Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities.

“The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time, they make mistakes in the exercise of that function but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances, the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded.

Photo: Police officers take in a SSFL Premier Division encounter between San Juan North Secondary and Shiva Boys Hindu College at Bourg Mulatresse on 27 September, 2017.
(Courtesy Annalisa Caruth/Wired868)

“Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes.

“While some such actions might involve allegations of a simple and straightforward type of failure—for example, that a police officer negligently tripped and fell while pursuing a burglar—others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example, as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources.

“Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and re-traversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.

“I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind.” (All emphasis added).

Photo: Senior members of the Trinidad and Tobago Police Service during an address by then National Security Minister John Sandy in 2010.
(Courtesy News.Gov.TT)

(In the judgement as written, all three of the preceding paragraphs constitute a single paragraph).

Simply put, it was a matter of policy which prevents the police from having liability for failure to act in individual cases, thereafter known as the Hill Immunity. This view took a rather serious turn in the case of Michael & Ors v Chief Constable of South Wales Police & Anor [2015] UKSC 2 (Michael):

“The Michael case arose from the tragic death of Ms Joanna Michael on 5th August 2009. Ms Michael rang the police in the early hours of the morning after her ex-boyfriend had found her with another man and threatened to assault her.

“Using her mobile phone, Ms Michael dialled ‘999’ but her signal was picked up by Gwent Police in the neighbouring county and not South Wales Police, her local police force. Ms Michael told the Gwent Police operator that her ex-boyfriend had threatened to hit her and may also have said that he was going to come back and kill her.

“The Gwent Police operator referred the incident to South Wales Police and informed Ms Michael that they would ring her back. The operator made no reference to a threat to Ms Michael’s life when referring the call to her counterparts and South Wales Police informed its officers on patrol that the incident did not require an immediate response.

“Approximately 20 minutes later, Gwent Police received another emergency call from Ms Michael in which the operator heard screaming before the call was cut off. The operator upgraded the urgency of the incident but when officers arrived at Ms Michael’s address they found her dead. Ms Michael’s ex-boyfriend was found guilty of murder and her family sued the police for negligence.”

Photo: The body of a murder victim.

The rationale for police immunity is that the prospect of litigation would transform the operational priorities of the police. Instead of focusing on their primary public function, the argument goes that fears about being sued might lead police officers to perform their duties with an unduly “defensive” frame of mind—a statement criticised by some academics as “hysterical exaggerations.”

The Supreme Court, by a majority of 3 to 2, disallowed Miss Michael’s family’s claim, thus keeping the Hill Immunity in place. Lord Toulson basically said that the only person to be blamed for harm is the person who caused it. What is more important is the two dissenting but powerful judgments by Lord Kerr and Lady Hale.

Lord Kerr made two very important points:

(1) There was no empirical evidence that supported the public policy view that there would be dire consequences if liability of the police were to be recognised, but the fundamental principle that legal wrongs should be remedied would certainly offset any public policy view.

(2) The principle that the general public is exempted from liability to protect others from harm ought not to apply to the police because the police force is mandated to provide exactly that type of protection: it is “the essential and critical obligation of the police force.”

Although there have been two subsequent cases which have whittled away at its perceived absoluteness, the Hill Immunity remains in place. In Robinson v Chief Constable for West Yorkshire Police [2018] UKSC 4 (Robinson), the elderly Mrs Robinson was knocked over and sustained injuries when two police officers attempted an arrest of an alleged drug dealer.

Photo: A police crew on the beat.
(Courtesy News.Gov.tt)

The Supreme Court took the view that the police are, like everyone else, under a general duty of care not to cause personal injury, especially any which they themselves have caused. And in the present case of DSD, the Court found that the Article 3 right was breached by the failure of the police to carry out an effective investigation. Therefore:

“the state is obliged under art 3 to conduct an effective investigation into crimes which involve serious violence to persons, whether that has been carried out by state agents or individual criminals. Further, in order that the protective right should be practical and effective, an individual who has suffered ill-treatment contrary to art 3 has a right to claim compensation against the state where there has been a failure by state authorities to conduct a sufficient investigation into the crime.” [Lord Kerr]

Lord Kerr also dealt very efficiently with the policy arguments:

“Carrying out police investigations efficiently should not give rise to a diversion of resources. On the contrary, it should lead to more effective investigation of crime, the enhancement of standards and the saving of resources. There is no reason to suppose that the existence of a right under art 3 to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and to deter, indeed eliminate, the making of such grievous mistakes.”

Although the ECHR is not directly applicable in Trinidad and Tobago, its effects are seen in the law’s application of judgements coming from the Privy Council. There are two very good reasons for this: (a) Owing to the principle of stare decisis (precedent), the common-law is influenced by important judgements in all common-law regions, and (b) human rights are universal.

Photo: Abigail-Jones Chapman, 42, was murdered in Soho last week along with her daughter, Olivia Chapman, the daughter’s friend, Micheala Mason, and their landlord, Michael Scott.

Section 4 of the Trinidad and Tobago Constitution specifies the rights of citizens. Note that it does not expressly grant a similar right such as Article 3 ECHR. One may, therefore, wonder why I take the view that the DSD judgement is relevant to Trinidad and Tobago.

Section 4(a) speaks about

 (a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law (emphasis added).

In much the same way as the 1993 Pratt and Morgan judgement prevents “inhuman and degrading punishment” of hanging after five years on Death Row, so will the DSD judgment be applicable to Trinidad and Tobago. After all, individuals have a right to life and security of the person.

The judgement clearly states that the police must carry out effective investigations. Failure to do so will permit victims to initiate civil legal proceedings against the Commissioner of Police and the State.

About Mohan Ramcharan

Mohan Ramcharan is a law student and a student of human nature and culture, who prefers cool logic to emotional ranting. A Trinidadian living in England, he observes the world through two lenses—and strives to share both views in his writing.

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19 comments

  1. Agreed Mr. Liburd. Balance will go a long way. This situation aside. Im not sure if denegrating the service or the officers who do what they are paid for is the solution. Creating public angst only serves to build a wedge between the service and public. We want higher standards across the board in media and other services.

    • Are you a lawman Jason? That’s beside the point I know. But you made me curious.
      In any case, you’re absolutely correct. Public sweeping criticism is useless. Because the bad apples might actually be comforted in feeling that they are not alone and can behind the badge while the good officers can become discouraged. So scattergun criticism might do the opposite of what you would like it to do.
      But the problem is people see the low standards and find it difficult to see signs of improvement. And then things happen that shake your faith in whether the TTPS is even trying to improve itself.
      And when you’ve totally lost hope, all that is left is just criticism of the uniform.
      So I agree that it doesn’t help but maybe the TTPS can give us some hope and extend the olive branch. Show us why we should give them the benefit of the doubt.

    • Agreed and no I am just a citizen with love of country.

  2. 1) Duty of the CoP to set investigative policies and/or methods and to provided the necessary supervision. The CoP can’t enable a culture of ineptitude and when there is public outcry then shift the blame on the officers.

    2) This is what separates 3rd world from 1st world; the ability to follow rules, procedures and laws.

    3) The point here is that there are calls for legislation and police procedures. People are volunteering to assist with this. But if the systems are already in place the problem is not with a lack of a system but a lack of implementation. Police officers blame lack of equipment, training, laws but the reality is if they use what they already have the crime rate would be significantly less.

    Other officers will not be on their Ps and Qs because this case was an aberration. The heinous nature (4 victims and the brutality) made it ripe for public outcry. When things die down they would go back to business as usual until the next public outcry. Remember this is not the first death by DV where there were previous reports to police.

    • Lasana Liburd

      I agree with this.

    • I hear what you are saying, and I partially agree. It is easier to blame ‘systemic’ errors than to accept personal responsibility. We see it all the time. Many even blame the victims.

      Sometimes carrot and cake aren’t enough to encourage performance. You need a big, BIG stick. In terms of education/training and performance ratio, police officers are extremely well paid. But then, so are the politicians. Sigh.

  3. A lot is being said about this with no mention of what the police actually did or didnt do..to form the basis of dereliction of duty. Most media stories are silent on the issue but make certain claims that the police could have done more. The columnist does not probe this issue but takes potentially sensationalist headlines as basis for his analysis.

    • Have police officers been suspended though?

    • Then it’s not only the media that thinks there was a dereliction of duty.
      Your point stands that clarity should be provided but the media didn’t make up the suspension. I suppose nobody has managed to get any facts about how investigation was botched yet.

    • The suspension is pending the outcome of an investigation. Saying that the investigation was botched betrays one’s thinking in the matter. It is agreed though that facts are needed before judgment is cast in the court of public opinion.

    • Jason, it is true that an investigation should determine whether it was or wasn’t “botched”. And I have no inside information on this at all.
      But don’t forget it should also be true that when someone makes a police report, the TTPS has a duty to treat that report seriously. And the person making the report deserves to be respected an expects a certain level of care from the respective police station.
      So let us see if the TTPS fulfilled that obligation. Four lives were lost, so let us see now what the TTPS did that may have prevented that.

    • Four lives were lost yes and people are looking for someone to crucify. The guy responsible was finally caught. Like you I look forward to the results of the investigation. I doubt though that much would be said if they were not found derelict in this situation. The TTPS gets a lot of licks..some of which is not always warranted. I look forward to your response also upon determination.

    • Jason the High murder rate and low detection rate are the reasons the TTPS gets licks. I would say that is warranted. Now I’m sure there are good individual police officers. And I have friends who are officers.
      But they will just have to live with it and do what they can.
      I hear all the time that the local media is crap. By and large, that’s justified. But I’m a Media practitioner and I don’t think I’m crap. And there are some other media workers here who are good enough to work anywhere on the planet.
      So I can separate criticising an organisation from criticising an individual.
      As far as the officers in this specific matter go, as info comes to hand we will have more to say.
      We do know of previous situations where the police probe was far from adequate. And that won’t do anyone any good here.

  4. In Osman v United Kingdom 29 EHRR 245 the Court was clear – there is a positive obligation on the State to protect an individual from threats by private parties (non-State agents) once the threat is sufficiently clear and identifiable.

    Why this is important is, of course, the current dismal performance of the police. Poor performance in murder investigations, domestic violence, other types of serious crimes has shown a significant increase in these crime rates. Coupled with the piss-poor attitude of the police, sadly, I foresee quite a lot of payouts to victims in the near future. THAT is why the DSD judgment is relevant.

    In 2014, England (where the police are mainly unarmed) recorded the following DECREASES in crime:

    23% decrease in violent crime
    20% decrease in criminal damage (that crime might be an eye-opener to Trinis)
    12% decrease in theft offences

    Most importantly, a 16% decrease overall.

    Kinda makes you remember that phrase “lions leading donkeys” or wtte.

    I lament (mostly to myself) that legal authorities in Trinidad are bereft of the drive to achieve more. The police are content to ‘coast’ along, the LATT and most attorneys are content to work the system to milk maximum benefit, even if it means not doing their best. Win, lose or draw, they still get paid, remember that!

    With examples set by the three top office holders of the land sorely lacking in integrity and simple good manners, we are at an all-time low. ‘Law and order’ was replaced by ‘picong and bacchanal’ and citizens aren’t even aware of it.

    99.99% of my intellect weighs the evidence and ‘knows’ that things won’t change for the next 20 to 30 years. But the remaining 0.01% always has that false hope, that is constantly being dashed with cold reality each day when I read the news.

  5. That is a landmark decision. But the 3 officers are being made scapegoats. There has been for many years a domestic violence manual which gives policing procedures on the investigation of DV reports. This manual is gathering dust somewhere. The manual is the product of much consultation. It is the responsibility of the CoP to ensure that this manual is being utilized. What is worse is the media’s reluctance to challenge the CoP on this.

    • Personally, I don’t think the officers are being made scapegoats. Clearly,

      1) People died and that is the result of a breakdown in the system somewhere. Suspending the officers while an investigation is being done is standard procedure the world over.

      2) A domestic violence manual or any other laws/policy aren’t worth the paper they are written on if the police fail to act/enforce the law.

      3) No DVM can override the common law unless it is expressly stated in an Act of Parliament that authorises it. So, again, while your mentioning of the DVM is a very, very, very small point that this area of policing was looked at some time in the past, that is more than offset by the fact that it was never implemented, or that the DVM is even part of public knowledge. In other words, if it ent there, it eh exist.

      One good thing may come out of the officers’ suspension – other police will now be on their Ps and Qs. Hopefully. And that can only be… a good thing.

  6. These so you officers need to be fired

    • Excellent article.

      With reference to the Police in La Brea, one understands but does not accept their possible reasons for not responding. Generally, police officers are tardy in responding to reports other than a gun or drug find as the latter type may get you some recognition, perhaps a your pic on TV but the former (general investigations) may just require proper investigation and no recognition.

      I many DV cases, after the victim (usually female) reports the matter, they then refuse to cooperate as they appear to have a change of heart. This may be due to fear or other factors, but it frustrates the police in their investigations which then causes Officers to not respond to DV reports AS THEY SHOULD.

      I state, Officers should zealously respond to ALL reports and should be given a deadline to complete their investigations. As is, Officers mainly look at the six month or two-year statute bar limit for completion of investigations.

      Another issue that has led to poor policing is the very very poor management practices in the police service by Senior Officers but that will take a thesis to explain…