Human rights damages – when are they paid?
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The judgement of Mr Justice Green in the case of DSD and Another v Metropolitan Police  EWHC 2493 (QB) provides an extremely comprehensive guide to damages in relation to breaches of Article 3 of the Human Rights Convention.
This was the second part of a judgement  EWHC 436 (QB) which concerned liability under the Human Rights Act 1998 for failings on the part of the Metropolitan Police Service to conduct an effective investigation into the rapes and other sexual assaults carried out by John Worboys (who passed himself off as a taxi cab driver) in the period 2002 and 2008.
Green J had already found that the police were liable to pay the Claimants, DSD and NBV human rights damages.
The question was how much? This was an extremely difficult question, given that DSD and NBV had already pursued Mr Worboys and his motor insurers in the civil courts, as well as being awarded compensation by the Criminal Injuries Compensation Authority.
This claim arose under the Human Rights Act (HRA). The right to a remedy for breach of the HRA was governed by section 8 headed "Judicial Remedies". The essential question for the Court was whether it was "necessary" to award damages on the facts of the present case in order to "afford just satisfaction" (pursuant to Article 41 of the European Convention) to DSD and NBV. In deciding this, the Court would take account of all of the circumstances of the case including the existence of other relief or decisions of other courts.
The important issue in this case concerned the impact of the existence of other remedies available to DSD and NBV upon the power of this court to award damages. This was because both DSD and NBV had received certain payments arising out of claims they had made against Worboys.
In Anufrijeva v London Borough of Southwark  EWCA 1406, the Court of Appeal had said that it was possible to identify some basic principles that the Strasbourg Court applied. The following principles had emerged.
- When making awards the Strasbourg Court distinguished between pecuniary and non-pecuniary harm. The former was harm which could be quantified in monetary terms, for instance loss of salary or income, or the cost of repair. In the case of non-pecuniary harm (covering harm not readily quantifiable) the Court adopted a more broad brush approach to setting an appropriate quantum award. No attempt therefore was made to apply a "but for" or counterfactual analysis, or seek to equate harm with any identifiable measure of financial value.
- In relation to any claim for an award of compensation the starting point for the analysis was to answer the question whether a non-financial remedy was necessarily "just satisfaction." The importance of declaratory relief in an appropriate case was not to be underestimated. It provided a formal, reasoned, vindication of a person's legal rights and an acknowledgment in a public forum that they had been wronged. It was an integral part of the democratic process whereby a public body could be called to account.
- Case law suggested that there were (at least) two components to the question whether a financial award should supplement a declaration. First, it was necessary to consider whether there was a causal link between the breach and the harm which should appropriately be reflected in an award of compensation in addition to a declaration. Secondly, and regardless of the answer to the first question, it was necessary to consider whether the violation was of a type which should be reflected in a pecuniary award.
Green J said that the present case was precisely the sort or type of case where damages were appropriate. There was no real doubt but that the violation of Article 3 did cause harm to DSD and NBV which was quite discrete from the harm caused by the assaults perpetrated by Worboys.
The harm to be compensated for in the case of DSD was the post-assault mental suffering that she sustained as a consequence of the police investigation. In relation to NBV, had the breach of Article 3 not occurred she would not have been subjected to any assault at all upon the basis that Worboys would have been apprehended, arrested and prosecuted long before July 2007 which was the date of the specific attack upon her. She suffered post-assault psychological harm.
The Claimants had received payments from Worboys pursuant to a settlement of a civil claim made by them against him; and of awards made by the Criminal Injuries Compensation Authority (CICA). The total recovery from Worboys totalled £207,156.16. The claims against the insurer were dismissed at a preliminary hearing. Out of the total recovery from Worboys the Claimants recovered the net amount of £10,000 each by way of settlement of their claims against Worboys. The total recovery was greater but out of this the Claimants discharged their costs liabilities, predominantly the costs relating to failed litigation against the insurer. The Claimants obtained compensation from the CICA: DSD was paid £13,500 and NBV received £2,000.
Green J set out a review of the authorities of the Strasbourg Court, which addressed non-pecuniary claims for compensation based on cases involving Articles 2 and 3. The case law revealed a number of points of relevance:
- The size of an award reflected the quality of the evidence of harm adduced before the Court.
- The actual sums awarded had to be seen in the light of the sums claimed. Quite routinely modest sums were claimed and hence modest sums were awarded.
- There was virtually never any real articulation as to why the Court had awarded a particular sum. An important point was that the sums awarded were for harm flowing from the police failure. These sums would hence be without prejudice to any extra claims the victim might have against the perpetrator of the underlying crime (the Worboys equivalent), i.e. the Convention award might supplement other civil awards.
- Habitually damages were awarded for any Article 3 violation. Logic dictated that the greater the degree of police culpability the higher the award and, generally, case law broadly reflected that proposition.
- The Court might reduce awards where it considered that there has been some material contributory fault on the part of the claimant such as delay in notifying police, failing to cooperate with police, etc
- The Court would take account of domestic comparables if they were placed before the Court. It did not consider them to be decisive but did consider them to be relevant.
- The following identified the range of awards for relevant Article 3 violations.
- Euros 1,000 - 8,000 where the Court wished to make a nominal or low award.
- Euros 8,000 - 20,000 for a routine violation of Article 3 with no serious long term mental health issues and no unusual aggravating factors.
- Euros 20,000-100,000+ for cases where there were aggravating factors such as: (i) medical evidence of material psychological harm; (ii) mental harm amounting to a recognised medical condition; (iii) where the victim has also been the victim of physical harm or a crime caused in part by the State; (iv) long term systemic or endemic failings by the State; (v) morally reprehensible conduct by the State.
Green J set out a resume of the harm suffered by the Claimants as set out in the liability judgment. He would take into account the following factors:
- the nature of the harm suffered and treatment costs
- the duration of the breach by the Defendant
- the nature of the failings and whether they were operational and/or systemic
- the overall context to the violations
- whether there was bad faith on the part of the Defendant or whether there was any other reason why an enhanced award should be made
- where the award sat on the range of awards made by Strasbourg and in similar domestic cases
- other payments
- totality and "modesty".
He would award to DSD the sum of £22,250 comprising a sum (£20,000) for (more general) non-pecuniary harm which was calculated to cover the period to the date of judgment and a small incremental component (£2,500) for future treatment.
He would award NBV the sum of £19,000. This comprised £17,000 for the fact of the rape and the post-rape psychological harm to the date of judgment, and, £2,000 as a contribution to future treatment costs.
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