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Commissioner of Police of the Metropolis v DSD & Anor

The judgement took almost a year but we finally have confirmation from the Supreme Court this week that the police can be liable for breaching Article 3 where they fall short with their investigation of crime of ill treatment.  This judgement will have a profound impact on the way police prioritise and allocate resources when investigating crimes reported.

The judgement is complex but the headlines are:

  • It is necessary for laws which criminalise conduct breaching article 3 to be “rigorously enforced” and “properly investigated”;
  • This requires the police to conduct an independent investigation, take all reasonable steps available to them to secure evidence and to act with promptness and reasonable expedition;
  • However, the investigation must be capable of bringing the offender(s) to justice. That is, not whether the offender is ultimately identified and successfully prosecuted but more about the process of the investigation.

This is unlikely to result  in a litany of proceedings against the police when a victim of crime doesn’t believe their crime hasn’t been properly investigated.  The Supreme Court made it clear that the evidential threshold was deliberately high and commented “only conspicuous or substantial errors in investigation” would result in a breach of the art 3 duty, and that investigative deficiencies would have to be “egregious and significant”.  That isn’t to say that there won’t be actions against the police, I am simply saying that the success of those claims are likely to be limited.  That said, the police will now have to respond with careful and rigorous process and the Deputy Commissioner Craig Mackey has stated:

‘Victims of serious crimes deserve the best and most professional of investigations. It is the responsibility of police to prevent crime and when that fails, to bring criminals to justice. That is the expectation of everyone involved in policing. Investigations which do not meet the standards are rightly subject to internal and external scrutiny and accountability and we are continually looking at how we can improve and give the best possible service to victims. ‘The MPS and other forces will now consider the full implications of the judgement and what it means for investigations in the future. There is no doubt that it will have implications for how we resource and prioritise our investigations. We will have to consider how we balance our resources against the need to effectively investigate certain crimes. For example, we may need to consider moving extra resources into an Article Three investigation from other areas, such as fraud. That is the sort of question policing will have to consider as we look at our approach going forward following today’s judgment.’


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