Judicial Review Update

This article was first published by Solicitors Journal in April 2014, and is reproduced by kind permission. Click here to view the article.

The police service has once again been scrutinisedon its working practices in protecting the public, says Saara Idelbi.

It has been a busy month for the Metropolitan police. The spotlight has once again been on the proper working practices in the protecting the public.

In the meticulously crafted judgment of Mr Justice Green in DSD and NBV v Commissioner of the Police for the Metropolis [2014] EWHC 436 (QB), the police were found to have breached article 3 of the European Convention on Human Rights (ECHR) by failing to effectively investigate the serious sexual crimes committed by the “black cab rapist” John Worboys. The claimants were both victims of Worboys’ six-year criminal spree between 2002 and 2008, where he habitually drugged and raped or assaulted young women who were unfortunate enough to have accepted his taxi services.

Although the crime committed against one of the claimants, identified only as DSD, did not form part of the indictment on which Worboys was eventually convicted, the police accepted for the purpose of this judicial review that she had been a victim. In DSD’s case, early in Worboys’ wave, she was in fact taken to the police station by Worboys after his assault of her. The police failed to record any details relating to Worboys and how DSD came to arrive at the station. She was treated as drunk; it was only when she was in hospital that she realised that she had in fact been drugged and assaulted.

NBV’s case occurred in the latter half of Worboys’ campaign. She had taken his cab home after an event in central London. She left the club at approximately 2am, a fact that would have been recorded on the CCTV. She arrived at her university residence at 4:37am. She awoke at midday the same day experiencing flashbacks, finding that her tampon was missing and the button of her shorts had disappeared. Campus security advised her to contact the police to have the university’s security review the CCTV.

Police Failure

The net result was that Worboys was identified as a potential suspect of sexual assault. He claimed consensual kissing and nothing more. The police considered that his account was consistent with the campus CCTV and was credible; this was despite having taken a full statement from NBV and failing to conduct a thorough search of Worboys’ cab or home.

Following an in-depth analysis of the Strasbourg Court’s jurisprudence on the operational duties of article 2 and 3 ECHR, Mr Justice Green concluded that article 3 imposed a duty to investigate serious violent crime triggered by credible and arguable complaints from individuals that they had been victims of crime, so as not to impose too high a burden on the police. The impetus for the duty is to “secure confidence in the rule of law in a democratic society…”.

The systemic and operational failures of the police resulted in breach of both DSD and NBV’sarticle 3 ECHR rights. The failures included not properly training officers to recognise and deal with potential victims of sexual assault, the statistical pressure to improve performance targets and therefore not record and follow up offences involved sexual assault, failure to allocate and use intelligence resources appropriately, and the failure to maintain confidence with victims.

The decision echoes the findings of the South African Constitutional Court in Carmichele v Minister for Safety and Security 2001 (4) SA 938 (CC), where the complainant had been raped by a man released on bail pending trial for rape of two other women. Carmichele distilled the same principles from much of the Strasbourg jurisprudence considered by Mr Justice Green. The overarching consensus was that the public ought to have confidence in the authorities charged with their personal security.

Operational Duty

The Court of Appeal then, on 7 March 2014, granted Mark Duggan’s family permission to apply for judicial review to challenge the guidance of the Association of Chief Police Officers that did not require them to be separated prior to the arrival of investigators from the Independent Police Complaints Commission, following an incident involving a fatality of a suspect. It was argued that the lack of such a requirement arguably infringed the operational duty of the police under article 2ECHR.

The preparedness to undertake intense review of the operating methodology of public authorities may continue to frustrate those who would nurture a culture of discontent in the intensity of judicial review precipitated by the Human Rights Act 1998. However, arguably such review does not necessarily amount to an unnecessary interference with the conduct of the police business. Rather it provides direction to ensure a minimum standard of conduct.

One could not ignore, against this, Theresa May’s announcement of a public inquiry into the conduct of the police during the inquiry into Stephen Lawrence’s death. In her address to the House of Commons on 6 March 2014, she said “trust and confidence in the Metropolitan Police and policing more generally is vital.” It is difficult not to agree with her (in this statement); and it is clear from the judgment in DSD and NBV that the intention is not to place too high a burden on the police, but to emphasise that there are burdens and duties upon them. We will see whether that will be equally discernible from the outcome of the judicial review in Duggan’s case.

However, it was not all negative criticism for the police and security services. The challenge against their treatment of David Miranda was dismissed in R (Miranda) v Secretary of State for the Home Department and Commissioner for the Police of the Metropolis [2014] EWHC 255 (Admin).

The facts are well known. Following Edward Snowden’s exposure of the PRISM programme, he obtained encrypted data from the US National Security Agency, which ended up with Mr Miranda to carry it back to Mr Greenwald of the Guardian.

He was, however, detained at Heathrow Airport under powers pursuant to the Terrorism Act 2000. It was argued that the powers conferred by the act were aimed at detaining people like Mr Miranda, if so whether the powers were used disproportionately and whether the exercise of the power interfered with the article 10 ECHR freedom of expression.

Balance Of Interest

Lord Justice Laws’ judgment confidently affirmed the powers of the police to carry out stops and robustly rejected the suggestion that the powers disproportionately interfered with “responsible journalism”, in line with the common law and article 10 ECHR framed freedom of expression. The balance of interest between press freedom and national security came down in favour of the latter. Laws J rejected any notion that journalists had a constitutional status comparable to judges to scrutinise action by government.

However, the decision in Miranda has not dented the court’s protection of the freedom of press. In R (Evans) v Attorney General [2014] EWCA Civ 254, the Court of Appeal overturned the Administrative Court’s decision and quashed the Attorney General’s certificate preventing the disclosure of letters written by the Prince of Wales to various state departments in which the Prince advocated certain causes.

The certificate was issued by the Attorney General following the decision of the Upper Tribunal, in which they found that Evans of The Guardian was entitled to disclosure of the correspondence that advocated certain views on public policy (not personal correspondence), including certain environmental issues. Having found the certificate incompatible with EU Law, particularly the Environmental Information Directive, the court found that the entire certificate was tainted by the illegality and certainly Mr Evans was entitled to the disclosure as ordered by the Upper Tribunal.

Public participation might properly characterise the segment of cases outlined above. That is not to say that public participation has not previously been the focus and protected by the courts in judicial review cases. But the constant attempts to reformulate and restrict judicial review are undermined by cogent judgments designed for the benefit of everyone not a party to the judicial review.

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