FOURTH SECTION
Application no. 52657/08
by M.V.
against the United Kingdom
lodged on 14 October 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Ms M.V, is an Argentinean national who was born in 1973 and lives in Edgware, Middlesex.
A.  The circumstances of the case
1. The factual background
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was born in Argentina in 1973. She was the eldest of four children: two sisters (V.V and F.V.) and one brother (L.V.). The applicant’s parents separated in 1981 and in 1983 her mother (A.P.) began a relationship with a British citizen (P.O.N.). In 1985 the applicant’s mother travelled to England to set up home with P.O.N. and she was later joined by her four children.
The applicant alleges that following the move to London she was emotionally, physically and sexually abused by P.O.N. In particular, she claims that in 1986, while A.P. was on holiday, she was subjected to serious sexual assaults whilst being forced to sleep in P.O.N.’s bed every night.
In 1986 the applicant moved to Argentina, where she lived with her grandparents. During this time she had no conscious recollection of the sexual abuse; however, due to her erratic behaviour she was sent twice weekly to a psychiatrist.
The applicant returned to London in 1988 to live with her mother, P.O.N., and her three younger siblings. She claims that on her return P.O.N. once again began to abuse her both physically and sexually. The abuse continued until she moved out of the family home in 1991.
In 1991 the applicant’s sister, V.V., told a family friend that she had been sexually abused by P.O.N. This information was eventually related to A.P., who confronted the applicant about it. The applicant confirmed that she too had been sexually abused by P.O.N.
In 1993 A.P. left P.O.N and contacted the Metropolitan Police with regard to the allegations of sexual abuse. During the subsequent investigation witness statements were taken from the applicant, V.V., F.V., A.P., P.O.N.’s ex-wife (C.O.N.), and his two children from that marriage (G.O.N. and K.O.N.) All of the statements substantiated the claims of the applicant and V.V. that they had been subjected to cruelty and indecent assault. L.V. was not interviewed as the police assumed that only the female children were abused.
P.O.N was arrested and questioned in May 1993. Although the tapes of the interview have since been destroyed the entry in the crime report stated that he denied all of the allegations. He was released on bail and told to return to the police station on 14 June 1993.
On or about 20 May 1993 the police decided, without any reference to the Crown Prosecution Service, that no further action would be taken against P.O.N. The relevant entry in the crime report, which was written by PC G., read as follows:
“Nothing has been heard directly from Malta about T [another child of P.O.N.] being abused. This matter will have to be reinvestigated should T ever come to England and make an allegation. In discussion with Detective Sergeant [B.] we have formed the opinion that there is insufficient evidence for a successful prosecution in this case. A lot of pressure would be put on K.O.N. in respect of her evidence. It is not clear that she would attend court, leaving M.V. and V.V. unsupported in their account of what happened. In view of the above I shall classify this as no crime. Should any further evidence come to light this will of course be reclassified and investigated accordingly.”
On 20 May 1993 PC G. informed P.O.N.’s solicitor by telephone that he would not face prosecution. PC G. and Detective Sergeant B. also informed the applicant and her family that no prosecution would take place and that this decision had been made ‘in order to protect the children’. They further advised the family not to embark on any counselling regarding the abuse, as to do so would imperil any future court case if it was decided to re-institute prosecution proceedings against P.O.N.
On 18 August 1993 a child protection case conference was held concerning V.V. and F.V. Detective Sergeant B. was in attendance. At that meeting A.P. produced a tape recording of a telephone conversation she had with P.O.N. In the course of the conversation P.O.N. belittled the abuse and sought to blame V.V. for what had happened. It appears that A.P. had further tape recordings but the police did not ask to see them at this time.
In 1994 A.P. married P.O.N. The relationship was on and off for the next few years before finally coming to an end in January 1999.
In 1999 all interview records, case notebooks and the custody record were destroyed.
In November 2000 L.V. committed suicide. The following month, the police re-opened the investigation into the allegations of abuse. It was agreed, however, that the re-investigation would only consider new evidence.
P.O.N. was arrested on 4 July 2001 and subsequently charged with thirteen counts of indecency and child cruelty. Two counts of indecency and one count of cruelty related to offences committed against the applicant.
On 28 August 2001 the police were given A.P.’s tape recordings of conversations she had had with P.O.N. concerning the abuse. One of the tapes contained the following statements by P.O.N.:
“I want you to understand something. These things that happened with V.V happened three years ago, OK. And they got out of hand between us but not too much, A.P, but it doesn’t make it right...I want to sort this out with you and V.V. ... at the end of the day...I was the adult and I should have fucking stopped it. But I never took her knickers down or tried to screw her or anything like that, for fuck’s sake...what happened with [V.V.] was the situation, not the way I am. OK. You can trust me ... Things happened with [V.V.], but not what you think happened, not what you think happened...I’ll tell you what happened and I’m not proud of it. I’m ashamed. It got too close with [V.V.], but it wasn’t one way, and I was the adult and should have stopped it. But she never touched me or done anything ... I’ve never done anything that bad to [V.V.] Bad enough, but not that bad.”
On 3 September 2002 Croydon Crown Court ordered that the prosecution against P.O.N be stayed because of abuse of process. The court gave three reasons for its decision: first, in 1993 P.O.N. had been told unequivocally that no further police action would be taken; secondly, little evidence had been discovered in addition to that which was available in 1993; thirdly, there was material which was no longer available, particularly in relation to contemporaneous notes of interview, as a result of which it would be impossible for P.O.N. to have a fair trial. The applicant did not challenge this decision.
During the hearing, police officers gave conflicting evidence concerning the 1993 investigation. Detective Sergeant B. indicated that there had been a prima facie case against P.O.N. but it was not considered to be in the best interests of the applicant and her siblings to put the case before a court. Sergeant G. (formerly PC G.) agreed that the reason not to proceed was mainly to do with the children’s welfare but stated that in any case there had been insufficient evidence to prosecute.
2. Civil proceedings against the police
On 11 October 2005 the applicant filed a civil claim in which she claimed damages from the Commissioner of Police for the Metropolis for personal injury and loss arising from the alleged negligent manner in which the police had pursued the allegations of child cruelty and indecent assault against P.O.N. The Commissioner applied to have the application struck out on the basis that it disclosed no reasonable grounds.
The District Judge considered the decision not to prosecute to be separate and apart from the police investigation. Insofar as the claim concerned the conduct of the police investigation, the judge held that it had to be struck out. The judge accepted that if an investigation had been carried out so negligently that a child was not protected from future harm, it was at least arguable that the police might exceptionally be held liable. However, he held that the above exception did not apply to the applicant as she was no longer a child in 1993 and had therefore been in no different position to any ordinary witness or victim.
With regard to the failure to prosecute, the District Judge considered it arguable that a limited duty of care might arise in the context of the facts of the case. Moreover, the judge found it disturbing that the CPS was not apparently even consulted with regard to the prosecution of P.O.N., particularly in view of the severity and magnitude of the alleged offences. Indeed, he noted that it would have been expected that the file was at least sent to the CPS for its consideration as to whether to prosecute.
The Commissioner of Police appealed against the District Judge’s decision, maintaining that he should have struck out the claim regarding the decision to prosecute. The applicant cross-appealed on the ground that the judge had been wrong to strike out the claim in relation to the investigation. Following a lengthy consideration of the District Judge’s decision, the court dismissed the appeal and the cross-appeal, leaving the decision of the District Judge as it was.
The Commissioner appealed to the Court of Appeal. On 21 December 2007 the Court of Appeal allowed the appeal and struck out the applicant’s claim altogether. It found that following Hill v Chief Constable of South Yorkshire Police [1989] AC 53 (see below), the existence of a duty of care in a case such as the present would not be in the public interest as it would lead to the police carrying out their duties in a detrimentally defensive frame of mind. In any case, the Court of Appeal noted that even if there had been a duty of care, the applicant’s Particulars of Claim did not disclose a cause of action because she would have had to have pleaded – and could not possibly have pleaded – that no reasonable prosecutor would have failed to prosecute.
On 30 July 2008 the House of Lords refused to grant the applicant permission to appeal on the basis that the petition did not raise an arguable point of law of general public importance.
B.  Relevant domestic law and practice
Under domestic law the police owe no general duty of care in tort to victims of crime to investigate their allegations. The reasons for this general rule are set out in Hill v Chief Constable of South Yorkshire Police [1989] AC 53:
“.. there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case [a claim by a father concerning the murder of his daughter, the claim being that the police had negligently failed to investigate and apprehend the murderer earlier], and that is public policy.
..
Potential existence of such liability [i.e. in negligence] 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. 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 retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.”
In the case of Barrett v. London Borough of Enfield [1999] UKHL 25, Lord Browne-Wilkinson explained why this position was not tantamount to a “blanket immunity”:
“1. Although the word "immunity" is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence.
2.  In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered.
3.  In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see the Caparo Industries case), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.”
COMPLAINTS
The applicant complains under Article 1 that the United Kingdom failed to secure her rights and freedoms under the Convention.
The applicant complains that the United Kingdom was in breach of its positive obligations under Article 3 because it failed to prosecute P.O.N. for the offences committed against her.
The applicant complains under Article 4 that the United Kingdom failed to protect her from forced labour and failed to prosecute the offender.
The applicant complains under Article 5 that the United Kingdom failed to secure her right to liberty and security.
The applicant complains under Article 6 that she was denied access to a court in 1993 following a decision not to prosecute, in 2002 following a stay of proceedings and in 2008 due to an exclusionary rule.
The applicant complains under Article 8 that the decision not to prosecute P.O.N. violated her right to respect for her family and private life.
The applicant complains under Article 13 that she did not have an effective remedy for her Convention complaints.
The applicant complains under Article 14 that she was denied a judicial remedy for her complaints because she was a child.
The applicant further complains under Articles 17 and 18 that she was denied a fair hearing.
Finally, the applicant complains under Article 41 that she was not provided with just satisfaction by the domestic courts.
QUESTIONS TO THE PARTIES
1.  Did the State have a procedural obligation under Article 3 of the Convention to investigate the alleged ill-treatment of the applicant?

2. If so, did the investigation which took place comply with the procedural obligation under Article 3 of the Convention?

3. Did the decision not to prosecute P.O.N. place the applicant’s younger siblings at risk of further ill-treatment? If so, how is this relevant to the applicant’s complaint under Article 3 of the Convention?

4.  Do the facts of the case disclose any separate issues under Article 13 of the Convention?