DSD & Anor v The Commissioner of Police for the Metropolis

Introduction

There is now before the Court the second part of the claim for damages brought by DSD and NBV. The first part of this trial concerning liability and declarations was heard in November 2013 and judgment was given on 28^th February 2014: [2014] EWHC 436 (QB) (“the Liability Judgment”). I concluded that the Defendant was liable to the Claimants for breach of the Human Rights Act 1998 (“HRA”). This was in relation to the failings on the part of the Metropolitan Police Service (MPS) to conduct an effective investigation into the rapes and other sexual assaults carried out by John Worboys in the period 2002 and 2008. The effect of finding that the MPS was in breach is that I must now consider whether this means (a) that the Claimants are entitled to a financial remedy and if so (b) as to the amount.

The anonymity order that I made in relation to the first trial remains in force: See paragraph [2] of the Liability Judgment.

In this judgment I address the issues arising in the following order. First, the statutory framework. Secondly, relevant principles deriving from case law governing claims for damages. Thirdly, the scope and effect of section 8(3) HRA which requires courts to take account of the existence of alternative remedies. Fourthly, guidance available from comparable decided case. Fifthly, the evidence of harm in relation to DSD and NBV. Sixthly, the application of the law to the facts.

Statutory Framework

This claim arises under the HRA. The right to a remedy for breach of the HRA is governed by section 8 headed “Judicial Remedies”. So far as relevant it is in the following terms:

“(1)

In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2)

But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3)

No award of damages is to be made unless, taking account of all the circumstances of the case, including –

(a)

any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b)

the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4)

In determining –

(a)

whether to award damages, or

(b)

the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention”.

For the purposes of section 8(1) the word “unlawful” bears the meaning set out in section 6(1). This provides:

“(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right”.

A “Convention right” means one of the rights and fundamental freedoms set out, inter alia, in Articles 2-12 and 14 of the European Convention on Human Rights (“the Convention”). In the Liability Judgment I found a breach on the part of the Defendant of Article 3 which is a “Convention right” within the meaning of sections 6 and 8 HRA and this, in principle, empowers the Court to grant a remedy.

The essential question for the Court is therefore whether it is “necessary” to award damages on the facts of the present case in order to “afford just satisfaction” to DSD and NBV. In deciding this, the Court takes account of all of the circumstances of the case including the existence of other relief or decisions of other courts.

In respect of the questions whether to award damages and if so how much, I am required to “take into account” the “principles” applied by the Strasbourg Court in relation to the award of compensation under Article 41 of the Convention.

Article 41 of the Convention is entitled “Just satisfaction” and is in the following terms:

“If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party”.

In relation to the “principles” which the Strasbourg Court applies, as referred to in section 8(4) HRA, Lord Reed in Faulkner v Secretary of State for Justice [2013] UKSC 23 (“Faulkner”) stated that the term was to be understood in a “broad sense”. It was not to be confined to articulated statements of principle but the focus was, rather, upon how the Strasbourg Court applied Article 41 in practice. In particular he identified as relevant the specific factors in given cases which led the court to make or to withhold an award of damages. He explained that one of the reasons why the Strasbourg Court tended not to articulate clear principles explaining when damages should be awarded or how they should be computed included the fact that the Court could not replicate at the international level the multiple and widely divergent approaches to the assessment of damages adopted in the different domestic legal systems of the contracting states: “…the systems of 47 countries, stretching from the Atlantic to the Caspian, with diverse legal traditions” (ibid paragraph [34]). Nor, he pointed out, was there a relevant body of principles of international law which could be applied.

An important issue in this case concerns the impact of the existence of other remedies available to DSD and NBV upon the power of this court to award damages. This is because, as I address in section D below, both DSD and NBV have received certain payments arising out of claims they have made against Worboys. With regard to the phrase “in relation to the act in question” in section 8(3)(a) HRA an issue therefore arises as to how closely related to the present claim the other remedies or relief must be. Would an order or remedy arising in civil proceedings against Worboys be “in relation” to the present claim for the sub-standard police investigation simply because that investigation concerned the same assaults? In other words are the civil claims against Worboys for the rapes to be taken into account when determining what amounts to “just satisfaction” for the defective police investigation? Section 8(3) HRA does not say the court should only take account of those orders and remedies which are “directly attributable to the act in question”; the concept of something that is “in relation to” seems to be broader in compass. Some guidance on this can be found in existing domestic case law. In Dobson v Thames Water Utilities Limited [2009] EWHC Civ 28 a claim was brought against Thames Water by local residents claiming that they were affected by odours and mosquitoes caused, they alleged, by the defective operation of a local sewage treatment plant. In the context of the present case it is relevant to observe that the HRA claim was against the same defendant for exactly the same conduct and consequences as was the common law claim. The common law claim for damages was formulated in negligence, nuisance and breach of Article 8. The particular issue arising was whether the son (Thomas Bannister) of parents who had been compensated (qua persons with a proprietary interest in land) was entitled to recover even though he had no personal proprietary interest in the property upon which to mount a claim. The issue was framed by the Court of Appeal in the following way:

“38.

What we are being asked to consider is whether just satisfaction demands compensation to someone in the position of Thomas Bannister where fault has been established, where common law damages have been awarded to his parents, the property owners, and where his claim is under Article 8(1) i.e. the allegation is that a public authority has positively interfered with his right to respect for "private and family life" or "his home" without the defence contemplated by the remainder of Article 8(2). ”

The Judge at first instance ([2007] EWHC 2021 (TCC) at paragraphs [209]-[211]) decided that the son should receive no award separate from that of his parents upon the basis that an award to those with a legal interest will “usually afford just satisfaction to partners and children but that there might be circumstances where they will not” (ibid paragraph [209]). Although the Judge had not said that an award to the person with the proprietary interest would always suffice the Court of Appeal still disagreed, in effect, concluding that whether a person with a non-proprietary interest was entitled to compensation, and if so as to the amount, was a fact sensitive issue which could only be determined after trial and, in essence, could not be resolved by a presumption:

“45.

We have considerable sympathy for the judge's conclusion …that there should be no separate award under Article 8 to Thomas Bannister. However, in the state of the law which we have set out, we would disagree with the judge that it is possible to give an answer at this stage. If one takes the case of Thomas Bannister as the test case, it seems to us that those representing him can show that he has not, personally, had "reparation" under English law (see Article 41). But we do not think it can be regarded as irrelevant whether his parents recover damages in nuisance or what sums they recover because all the circumstances need to be taken into account in considering whether an award is necessary. Furthermore s.8(3) seems to us expressly to require to be taken into account any remedy granted "in relation to the act in question" and "the consequences of any decision … in respect of that act" without limiting the same to remedies awarded in favour of the person alleging infringement of his rights. The vital question will be whether it is necessary to award damages to another member of the household or whether the remedy of a declaration that Article 8 rights have been infringed suffices, alongside the award to the landowner, especially when no pecuniary loss has been suffered. If, for the reasons explained above in paragraphs 32-34, the effects of the odour and mosquitoes upon Thomas Bannister personally were in practice taken into account in determining the diminution in the amenity value of the property, and therefore in determining the amount of damages awarded to his parents in nuisance, we would regard that as a highly significant consideration when determining whether an award of damages was necessary to afford Thomas just satisfaction under Article 8. In any event the fact of an award to the parents, if made, and its amount, must be a circumstance relevant to whether an award is necessary.”

The Court of Appeal wished to make clear that in proprietary claims where a related third party had received damages for loss of amenity it would be very rare for incremental awards to be made:

“49.

The real question is whether it can ever be necessary to make an additional award of damages for breach of Convention rights in order to afford just satisfaction to a person with a proprietary interest in the home who has already obtained an award of damages in nuisance in respect of the injury to the amenity value of the home.”

To this the Court answered:

“50.

It follows from what we have said that, despite the fact that damages for private nuisance are awarded as damage to "land", it is highly improbable, if not inconceivable, that Strasbourg would think it appropriate or just or necessary to award a further sum on top for breach of Article 8.

…

52.

Accordingly we would answer … as follows:

“11(b) It is most improbable, if not inconceivable, that damages at common law will be exceeded by any award to the same claimant for infringement of Article 8. Accordingly the award of damages at common law to a property owner will normally constitute just satisfaction for the purposes of section 8(3) Human Rights Act and no additional award of compensation under that Act will normally be necessary."”

The conclusion therefore is that parallel awards and remedies must be taken into consideration but this does not mean that they necessarily nullify the need for this Court to make an award or reduce the quantum of that award to zero or to some other nominal sum. To comply with section 8(3) it seems to me that I need to take into account the fact that claims have been made against Worboys and settlement and other sums have been paid over, when I decide whether to grant compensation to DSD and NBV and the quantum thereof.

Both Claimants and Defendant have, in various ways, prayed in aid domestic tort law principles. I have therefore to consider their relevance and applicability. The domestic principles relied upon include those relating to the satisfaction of claims against concurrent tortfeasors and the existence of aggravated damages. In this connection it is important to recall that the HRA is not a tort statute. Guidance has been given by the domestic courts as to the nature of the cause of action under the HRA. In Greenfield v SSHD [2005] UKHL 14 (“Greenfield”) Lord Bingham, with whom the other members of the Committee agreed, observed: “…that the focus of the Convention is on the protection of Human Rights and not the award of compensation” (ibid paragraph [9]). He further observed (ibid paragraph [19]) that: “The 1998 Act is not a tort statute. Its objects are different and broader”. He also made clear that the purpose of incorporating the Convention into domestic law was not to accord to claimants greater rights than existed under the Convention.

Some relevant principles of law governing claims for damages

I turn now to consider principles more specifically relating to quantum. In October 2003 in Anufrijeva v London Borough of Southwark [2003] EWCA 1406 (“Anufrijeva”) at paragraph [58] the Court of Appeal recited the views of commentators that “the case law of the ECtHR lacks coherence, and advocates and judges are in danger of spending time attempting to identify principles that do not exist”. The Court itself was more optimistic stating that: “Despite these warnings it is possible to identify some basic principles the [Strasbourg Court] applies“ (ibid paragraph [59]). There has, since 2003, been further jurisprudence of both the Strasbourg Court and of the domestic courts on the proper approach to adopt towards the assessment of damages. In this section I consider both the general principles laid down in the jurisprudence which guide the twin questions: whether, and if so, how much? I further identify and consider individual considerations which are relevant to the quantum exercise on the facts of the present case.

When making awards the Strasbourg Court distinguishes between pecuniary and non-pecuniary harm. The former is harm which can be quantified in monetary terms, for instance loss of salary or income, or the cost of repair. Although neither HRA nor the Convention create a tort based compensatory regime it is nonetheless true that the Strasbourg Court has applied the principle of restitutio in integrum with orders to pay pecuniary damages being explicitly designed to restore the applicant to the position he or she would have been in had the violation of the Convention not occurred. To this extent the Court has recognised that just satisfaction can incorporate a significant compensatory element. In the latter case of non-pecuniary harm (covering harm not readily quantifiable) the Court adopts a more broad brush approach to setting an appropriate quantum award. No attempt therefore is made to apply a “but for” or counterfactual analysis, or seek to equate harm with any identifiable measure of financial value. Routinely, quantum figures are justified simply by the broadest of references to “equity”.

In relation to any claim for an award of compensation the starting point for the analysis is to answer the question whether a non-financial remedy is necessary “just satisfaction”? In the present case I have already made declarations in favour of each Claimant to the effect that their Convention rights have been violated: Liability Judgment paragraphs [298] and [313]. The importance of declaratory relief in an appropriate case is not to be underestimated. It provides a formal, reasoned, vindication of a person’s legal rights and an acknowledgment in a public forum that they have been wronged. It is an integral part of the democratic process whereby a public body can be called to account. Case law suggests that there are (at least) two components to the question whether a financial award should supplement a declaration. First, it is necessary to consider whether there is 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 is necessary to consider whether the violation is of a type which should be reflected in a pecuniary award?

With regard to the existence of a causal link in many cases in which the Court has found a violation of the Convention the finding of the violation has been held, in and of itself, to constitute sufficient just satisfaction under Article 41. This might be because the overarching object of the proceedings was to bring the violation to an end, and the proceedings (through the grant of non-financial declaratory or injunctive relief) achieved that goal; but it might also be because there is no causal nexus between the violation and the alleged loss. For instance in many cases in which the Court has found a violation of Article 6 no pecuniary award has been made: See for example the cases cited by Lord Bingham in Greenfield at paragraph [8]. Often the causative link is simply missing. In Greenfield Lord Bingham stated (at paragraph [7]) that Article 6 cases:

“… have one feature which distinguishes them from violations of articles such as article 3, where an applicant has been tortured, or article 4, where he has been enslaved, or article 8, where a child had been unjustifiably removed from its family; that it does not follow from a finding that the trial process has involved a breach of an article 6 right that the outcome of the trial process was wrong or would have been otherwise had the breach not occurred.”

In similar vein in Kingsley v United Kingdom [2002] ECHR 468 (28^th May 2002) the Strasbourg Court stated (at paragraph [40]):

“The court notes that it is well established that the principle underlying the provision of just satisfaction for a breach of article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements. …The court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible”.

(Emphasis added)

The rules are not however applied in any absolute or inflexible manner and even where the alleged harm seems upon the face of the facts set out in the judgment remote or speculative the Court sometimes considers it nonetheless “equitable” to make an award. In Vistins and Perepjolkins v. Latvia (Application 71243/01) (25^th October 2012 (liability) and 25^th March 2014 (quantum)) a Grand Chamber was confronted with a case whereby damages were sought arising out of a State expropriation of property which, it was contended, was at an unreasonably low rate of compensation. The Claimants had however been compensated for their loss by the domestic courts, but at a rate which they considered to be unlawfully inadequate. In addition they sought non-pecuniary compensation for: “… their anxiety and frustration following the expropriation of their properties….” ([45]). Not surprisingly the Government denied the existence of a causal link between the breach and the claim for non-pecuniary loss. It pointed out, with (one might think) considerable justification, “that legal efforts normally made by a party to judicial proceedings did not entail, per se, any “moral suffering” capable of giving rise to reparation under Article 41 of the Convention” (ibid [46]). In short the State argued that at the culmination of judicial proceedings (including therefore at the Strasbourg level) the Claimants had been vindicated and their pecuniary compensation substantially increased and that therefore any frustration that they experienced along the way was simply that which was intrinsic to any system of justice. Yet the Grand Chamber held:

“47.

The Court agrees with the Government in taking the view that the powerlessness and frustration felt by an owner who has been unlawfully dispossessed of his property (see Guiso-Gallisay, cited above, § 110) is not comparable to the feelings of a former owner who is simply not satisfied with the amount of compensation awarded by the State. It acknowledges, however, that the applicants did sustain a degree of non-pecuniary damage on account of the violation found, such that an award on that basis can be regarded as justified. Ruling on an equitable basis, as required by Article 41 of the Convention, it decides to award EUR 3,000 to each of the applicants under this head.”

In Anufrijeva at paragraphs [52] and [53] the Court of Appeal articulated the alternative point relevant to the question posed at paragraphs [18] above, that the award of compensation is very much a secondary objective in those cases where the core concern is to bring to an end a violation of human rights:

“52.

…The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages.

53.

Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance”.

In relation to the present case my conclusions on these questions are as follows.

First, the present case is precisely the sort or type of case where damages are appropriate. The invariable practice of the Strasbourg Court in cases such as the present has been to recognise that a financial award is necessary: See cases referred to in section E below. It has not held that declarations suffice and, by the very nature of these proceedings, other public law remedies are simply not apt. This is not, for instance, a case where a decision can be retaken or proceedings repeated. The wrong committed in this case by the Defendant cannot be put right by any more habitual public law order.

Secondly, in relation to causation I have addressed in the Liability Judgment the (different) question of causality arising between the failures in the police investigation and the apprehension and ultimate prosecution and conviction of Worboys: See Liability Judgments section D. In this quantum stage the causal issue is quite different and focuses upon the nexus between the failures in the police investigation and the physical and mental harm suffered by the Claimants, DSD and NBV. As I explain below, by reference to findings in the Liability Judgment, there is no real doubt but that the violation of Article 3 did cause harm to DSD and NBV which is quite discrete from the harm caused by the assaults perpetrated by Worboys. In any event precision in establishing causation is not an identifiable hallmark of Strasbourg case law. As the analysis of the jurisprudence at section E below clearly shows the Court, without recourse to any expert or medical evidence, quite regularly simply assumes that a claimant must have suffered some form of generalised anxiety, stress, distress or anguish warranting compensation which falls short of any recognised medical condition. Even in pecuniary loss cases precision in quantification is unnecessary and the Court not infrequently pleads as a justification for its process of juridical gestimation the “inherently uncertain character of the damage flowing from the violation”: Young, James & Webster v UK (18 October 1982) §A No 55 paragraph 11; Vasiliyev (see paragraph [93] below) at paragraph [166] – an award may be made “…notwithstanding a large number of imponderables involved in the assessment of future losses”. See also Z v UK (discussed at paragraph [82] below) at paragraph [120] and Greenfield paragraph [12].

In relation to DSD I did not find in the Liability Judgment that the Defendant was responsible for the actual assault upon her. This occurred at a very early stage in the series of attacks perpetrated by Worboys. My conclusion was that at that stage no act or omission on the part of the MPS in the course of its investigation could have prevented the attack. It follows that the harm to be compensated for in the case of DSD is the post-assault mental suffering that she sustained as a consequence of the police investigation. Psychological evidence was submitted to the Court by DSD. The Defendant also instructed its own expert and there was a good measure of agreement between the experts. I set out that evidence in the Liability Judgment at paragraphs [59] – [65] and I have summarised the position in section F below.

In relation to NBV I concluded in the Liability Judgment at paragraph [302], on the facts, that 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. I also found that she suffered post-assault psychological harm. In her case therefore the question of compensation has to be considered in relation to (i) the assault itself as well as (ii) the post-assault psychological harm.

The Court has shown little interest is awarding exemplary or punitive damages which might go beyond compensation and the Court of Appeal has held that “exemplary damages are not awarded”: see Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 paragraph [55(e)]). In any event this is not a case where I would have considered it proper to make an award on this basis.

In the Court of Appeal in Van Colle (para [123]) the Court rejected the notion that the absence of more than a limited apology was “sufficiently serious to warrant being reflected in the quantification of the compensation to be awarded for the breach of article 2” (ibid paragraph [124]). If this is so under Article 2, it would be likely to be so (a fortiori) under Article 3. In any event even were this to be relevant I would not consider it to be a factor of materiality in the present case. I have addressed in greater detail below (at paragraphs [125]-[127] and [138]-[140] the question of the Defendant’s conduct and the overall context to the violations. I am satisfied that the Defendant has demonstrated a sufficient degree of recognition of the shortcomings of the investigation and sensitivity to the position of the victims for there to be no reason to consider this to be a discrete aggravating factor.

In seeking to place a figure on the actual harm the question of comparables is important. The Strasbourg case law is autonomous and does not depend upon principles or practice in the contracting States. In Greenfield the House of Lords made clear that when determining whether to award damages, but also in determining the amount of an award, the domestic courts should look to Strasbourg and not to precedents in the field of domestic tort law. Lord Bingham stated:

“…section 8(4) requires a domestic court to take into account the principles applied by the European Court under Article 41 not only in determining whether to award damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not domestic precedents. The appellant contended that the levels of Strasbourg awards are not “principles” applied by the Court but this is a legalistic distinction which is contradicted by the White Paper and the language of section 8 and has no place in a decision on the quantum of an award, to which the principle has little application. The Court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the Court might be expected to be, in a case where it was willing to make an award at all”.

Recognising that this instruction may entail a judge in more of an art than a science, in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, Lord Dyson observed (at paragraph [84]) that in the absence of guideline cases in which the range of compensation was specified and the relevant considerations were articulated it was necessary for the domestic courts to do their best in the light of such guidance as could be gleaned from the Strasbourg decisions on the facts of individual cases.

Over time the domestic courts (applying Strasbourg guidance) will evolve their own corpus of jurisprudence in relation to HRA damages claims and hence the trend to look west towards Strasbourg for guidance will diminish. In Faulkner (ibid) Lord Reed acknowledged this and stated (paragraph [29]):

“Reflecting the international origins of the remedy and its lack of any native roots, the primary source of the principles which are to guide the courts in its application is said to be the practice of the international court that is its native habitat. I would however observe that over time, and as the practice of the European court comes increasingly to be absorbed into our own case law through judgments such as this, the remedy should become naturalised. While it will remain necessary to ensure that our law does not fall short of Convention standards, we should have confidence in our own case law under section 8 once it has developed sufficiently, and not be perpetually looking to the case law of an international court as our primary source”.

An analysis of Strasbourg case law shows that there is in any event some symbiosis between that court and domestic courts. In cases where the applicant has placed domestic comparables before the Strasbourg Court it has been noticeable how the Court has arrived at a figure for compensation which appears to be on a par with the domestic awards. In Z v UK [2002] 34 EHRR 3 the Strasbourg Court stated that it had regard to quantum figures in “comparable domestic cases” as “relevant” but “not decisive” (paragraph [120]). Equally, “…the rates applied in domestic cases though relevant are not decisive” (paragraph [131]). See for further details at paragraphs [82] – [85] below. One aspect of this necessary degree of symbiosis is that the Strasbourg Court seeks to take account of the purchasing power of an award in the specific country of the applicant’s residence. The Practice Direction published by the Strasbourg Court on “Just Satisfaction Claims” states that when making an award “…the Court will normally take into account the local economic circumstances” (Practice Direction paragraph [2]). It also states that “…the Court may decide to take guidance from domestic standards” though “it is…never bound by them” (Practice Direction paragraph [3]). This suggests that in alighting upon a figure for quantum the Court will take account of the purchasing power of money in the contracting State in which the applicant resides. In Faulkner Lord Reed expressed a similar sentiment:

“Awards made by the European court to applicants from countries where the cost of living is relatively low tend to be low by comparison with awards to applicants from countries where the cost of living is much higher. In order to obtain guidance as to the appropriate level of awards under section 8 of the 1998 Act, it is therefore necessary to focus upon awards made to applicants from the UK or from other countries with a comparable cost of living”.

(ibid paragraph [38]).

It seems to me that awards made by the Strasbourg Court in relation to applicants resident in countries with a different standard of living than the UK may still be relevant provided one applies to the quantum of the award an appropriate adjustment factor to take account of differences in the cost of living. This is a point of some relevance in the present case where there are more non-UK, mainly Eastern European, cases which assist in shedding light on the range of appropriate quantum levels than there are from the United Kingdom.

A reflection of the need for temporal adjustment factors is also found in the observation of Lord Reed in Faulkner (ibid paragraph [74]) that although the Court does not make precise adjustments to reflect inflation it is necessary to bear in mind that some of the awards were made many years ago. An express articulation of the fact that the Strasbourg Court takes inflation into account is the interesting dissent of Judge Garlicki in the Grand Chamber judgment in Vistins (ibid) at paragraph [3] (referred to generally at paragraph [21] above).

An over-arching principle found in Strasbourg case law (and reflected in section 8 HRA) is that of flexibility which means looking at all of the circumstances and “the overall context”. This includes bearing in mind “moral damage” and the “severity of the damage”. As the Grand Chamber explained in Al-Jedda v United Kingdom (2011) 53 EHRR 23 at paragraph [114]:

“The Court recalls that it is not its role under Article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage”.

In determining quantum the Strasbourg Court takes account of the conduct of the Claimant and whether it may, in any relevant way, be described as reprehensible. Many claims, especially in relation to Article 6, involve claimants accused or guilty of criminal offences. In such cases the reprehensible nature of the claimant’s conduct may preclude or substantially reduce a pecuniary remedy. The Law Commission in its report “Damages under Human Rights Act” (October 2000) identified two ways in which a claimant’s conduct may be relevant. First, the conduct of a claimant may be relevant to causation. To the extent that the Claimant has contributed to the loss for which he is claiming the responsibility of the State is diminished. Secondly, determining whether it is “equitable” to award “just satisfaction” the Court takes account more generally of a claimant’s conduct. The Law Commission stated:

“3.55

However, even where not contributing directly to the loss, the applicant’s conduct or character may be taken into account, in the same way as the conduct of the respondent State, in determining whether or not to award just satisfaction. This is most likely where the applicant has been engaged in reprehensible conduct at the time of the breach, though it has also been suggested that the criminal character or record of the claimant is more generally considered to be relevant by the Strasbourg Court.”

For instance, in McCann v United Kingdom 21 EHRR 97 at paragraph [219] the Court was concerned with the case of the IRA gunmen killed by military forces in Gibraltar who thereby thwarted on the part of the IRA gunmen a bomb plot. The Court, in relation to the claim for reparation stated dismissively “…having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this head”. A similar conclusion was arrived at in Silver v United Kingdom (Article 50) 6 EHRR 62 (1983).

In CAS v Romania Application 26692/05 (20^th March 2012) the Court squarely addressed arguments by the State that the award should be reduced to take account of contributory failings by the Applicant (thereby recognising the validity in principle of the point), but on that occasion rejected them on the facts: See paragraphs [99] – [102] below.

The Court has also identified, as relevant to the “overall context” of a case the need to take account of the State’s overall conduct. The sorts of factors of potential relevance here would be: whether the violation was deliberate and/or in bad faith; whether the State has drawn the necessary lessons and whether there is a need to include a deterrent element in an award; whether there is a need to encourage others to bring claims against the State by increasing the award; whether the violation was systemic or operational. For instance, in Assenov v Bulgaria Application 24760/94 (28^th October 1998) paragraph [175]) the only factors which the Court identified as relevant to quantum were “the gravity and the number of violations”. In similar vein in Irwin Van Colle v Chief Constable of Hertfordshire Police [2007] EWCA Civ 325 (Van Colle) the Court of Appeal stated that the “culpability of the misconduct in question” was relevant to both the issue of liability and compensation (paragraph 124).

In Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28 at paragraph [46] damages awarded to a son whose parents had received an award should, said the Court of Appeal, “not be substantial”. It has regularly been stated that the awards will generally be “modest”. This is something of an unnecessary salutary warning since if a domestic court is looking to Strasbourg to glean a measure of the appropriate scale then it is that which guides the ultimate figure and one does not, having taken proper account of the Strasbourg guidance to arrive at a figure, then discount it further to make it “modest”. The exhortation to modesty is, in truth, more a reflection of the principle that the Strasbourg Court has long endorsed which is that the paramount object of the law is to bring violations to an end and that compensation is a secondary factor. It is manifestly not the intention of the law to create a “get rich quick” litigation culture. When all individual factors are taken into account the final stage in the quantum exercise is to consider “totality” i.e. whether – standing back – the final sum arrived at is a reasonable one in all the circumstances. The notion of “totality” (which is well known and understood in the context of criminal law sentencing) is a safeguard to ensure that a court does not apply an overly mechanistic approach by totting up relevant considerations adding values to each and arriving at a final figure which may then be divorced from the overall context.

I turn now to an issue which has loomed large in the Defendant’s submissions, namely the relevance of the fact that the Claimants have 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 Commissioner submits that there is no justification for making any financial award bearing in mind the fact that DSD and NBV have both received payments from their civil High Court claims against Worboys and from the CICA. The headline points advanced by the Defendant are as follows:

The Commissioner also made the following more specific submissions focusing upon other factors which it was contended should play a role in limiting the quantification exercise:

Mr Johnson QC, for the Defendant, submitted that by virtue of the settlement agreement with Worboys compromising their claim against him their total claim for all damages flowing out of the assault and its aftermath, including the investigation, had been compromised. In the civil claim the Claimants sought damages for: poisoning, physical pain, unhappiness, humiliation and psychiatric difficulties as a result of the matters complained of. In the current claims, the Claimants seek (in addition to a declaration) damages to afford just satisfaction for psychiatric loss. The Commissioner submitted that this is a subset of the same non-pecuniary loss which was the subject of the compromised claims against Worboys. By virtue of a consent order, the Claimants agreed a financial sum in “full and final settlement of all claims to damages interest and costs raised in the proceedings brought by the Claimants against” Mr Worboys. In Jameson v Central Electricity Generating Board & Ors [2000] 1 AC 455 (“Jameson”) it was held that liability of concurrent tortfeasors for the same harm was discharged by a settlement which had been agreed with one of them. As a matter of principle, once a Claimant’s claim had been fully satisfied by one of a number of concurrent tortfeasors his cause of action for damages was extinguished against all of them. The effect of a compromise was to fix the amount of a plaintiff's claim in just the same way as if the plaintiff had obtained judgment after a trial. Strictly, the Commissioner is not a joint tortfeasor with Worboys. But he is liable to the Claimants for a part of the same damage for which Worboys is liable and for which Worboys’ liability has been discharged. The “just and equitable” principle that applies under the HRA does not create a greater right of recovery than that which applies at common law, which is itself based on principles that seek to achieve justice. If anything, the relative generosity of common law awards compared to awards under the Convention, and the strict test of necessity under section 8 HRA, suggests that the approach under the Convention is less generous.

Mr Johnson QC also raised a point about the Claimants’ liability to pay the costs of the failed claim against the insurers. The argument ran along these lines. By letter of 14th March 2014, the Claimants’ former solicitors confirmed that the total net sum recovered from Worboys was £207,156.16, of which £92,000.00 was paid in damages, £89,521.31 disbursements and £25,634.85 profit costs including VAT. Of the sums payable in disbursements and profit costs, a proportion was paid in settlement of liabilities incurred by the Claimants as a result of their failed litigation against the motor insurers. The claim against Worboys was, given the criminal conviction, irresistible. It could have been litigated efficiently and expeditiously at little cost and without unnecessarily depleting the available assets for distribution. Had the Claimants pursued a claim purely against Mr Worboys, the disbursements payable would, therefore, have been significantly lower: they would have comprised the cost for a solicitor or junior counsel to draft straightforward Particulars of Claim, the issue fee, and, (if really necessary) the cost of a straightforward medical report and ATE insurance against a negligible risk and the costs involved in reaching a settlement. The overall reasonable costs of the litigation should have been no more than c. £25,000. This would have resulted in an effective “damages pot” that would be double the size. Assuming the same pattern of distribution, the Claimants would have recovered closer to £20,000 each than the £10,000. Accordingly, the Defendant should not be disadvantaged by virtue of the fact that the Claimants pursued a speculative, and ultimately unsuccessful, claim against Mr Worboys’ insurance company. The sums recovered by the Claimants in their civil action against Mr Worboys fall to be taken into account (as part of all the circumstances) as monies that have been recovered by the Claimants and discharged to pay their liabilities. If these sums are not taken into account then the net effect is equivalent to making a third party costs order against the Commissioner for the costs incurred by the Claimants for pursuing their claims against the insurers.

Accordingly, as part of its consideration of all the circumstances of the case, the Court should take account that the Claimants have (jointly with 9 other victims) recovered £207,000 from Worboys which (if one leaves out of account the reasonable net cost of achieving that recovery) would have resulted in net payments to each Claimant of around £20,000. The Court should not therefore make any order of damages. Whilst the Claimants might otherwise have been entitled to damages in region of £2,500 (NBV) and £5,000 (DSD) to achieve just satisfaction, the remedies already achieved are such that no further remedy is necessary.

I can start the analysis of this issue by addressing the limited question of the disciplinary proceedings (see paragraph [44(4)] above). In relation to the Defendant’s submission that a relevant factor is that the police officers in question have been disciplined the Court of Appeal excluded this as relevant in Van Colle (ibid paragraph [124]) where the Court found that the existence of sanctions imposed by independent third party disciplinary panels should not influence awards of damages. The fact that the State takes the matter seriously and disciplines a police officer or other State employee or agent for conduct leading to a violation is not a reason to reduce damages. The Court stated:

“We also consider that it would be wrong to allow the sanction imposed by the disciplinary panel to influence the amount of the award. That panel has a quite distinct function to perform, to which the consequence of DC Ridley's misconduct was no doubt relevant, but it was only one factor among many, the main one being the degree of culpability of the misconduct in question. That is itself relevant to the different question of liability for breach of article 2, and compensation, but it seems to us wrong in principle to regard the sanction itself as relevant”.

In relation to wider internal investigations (which are not related to discipline) it seems to me that the willingness to learn lessons is unlikely to lead to a material reduction in damages but, on the basis of case law, could well be relevant in relation to aggravating factors. If (and this is not the case here) a State steadfastly refuses to acknowledge its violation or deliberately refuses to address failings, Strasbourg case law then suggests this might be relevant to quantum as an aggravating factor because it is relevant to “overall context” or bad faith or reflects a need to make a “moral” award. However, having said this, I have not come across a Strasbourg case where a failure to discipline recalcitrant officials has specifically been identified as an aggravating factor in relation to quantum. Though in Vasiliyev the reprehensible conduct of the police officers seems to have been an aggravating factors in relation to the final award: see paragraphs [93] and [94] below.

In response to the Defendant’s core submission that domestic payments should be treated as dispositive it is clear that the Strasbourg Court does not treat the existence of a domestic award as decisive, even in cases where the award is for exactly the same violation and based upon exactly the same facts. It does however take the domestic award into account for a variety of reasons and in a number of different ways. This is reflected in many decisions. I set out some illustrations below.

Powell v UK Application 45305/99 (4^th May 2000) is an illustration of a case where the Strasbourg Court took account of the fact that there had been a settlement of proceedings at the domestic level for the purpose of determining admissibility. The parents of a child who died as a result of alleged negligence by doctors settled their civil claim for damages and received compensation under the settlement. The Court rejected the parents’ claim ratione personae under, inter alia, Article 8 upon the basis that they were no longer “victims”. The Court took account of the fact that by settling the claim in the domestic arena the parents forewent the chance to obtain disclosure or to cross examine the doctors in question and thereby find out what actually happened in circumstances where uncovering the truth was an important motivation behind the proceedings. The Court stated:

“Even assuming that Article 8 § 1 of the Convention is applicable to the facts at issue and can be considered to denote a positive obligation on the authorities to make a full, frank and complete disclosure of the medical records of a deceased child to the latter’s parents, it nevertheless remains the case that the applicants denied themselves the possibility of confirming their concerns about the integrity of the medical records at issue by withdrawing their appeal to the Welsh Office and then by settling their civil action in negligence against the health authority. It recalls its earlier observations that the civil action in particular would have offered the applicants a realistic chance of subjecting the doctors’ account of the history of their son’s treatment to cross-examination under oath and of requesting discovery of all the original records compiled at the material time. It cannot be excluded that the acceptance by the court of the applicants’ claims that there had been a deliberate attempt on the part of the doctors to frustrate the search for the truth would have sounded in an award of aggravated damages. Indeed, this eventuality could have been canvassed in their statement of claim. For the above reasons the Court concludes that, as with their complaint under Article 2, the applicants can no longer claim to be victims under this head within the meaning of Article 34 of the Convention. On that account their complaint under Article 8 is similarly to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention”.

The principle in Powell was later confirmed by the Court in Calcelli v Italy Application 32967/96 (17^th January 2002). In paragraph [55] of that case the Court held:

“55.

The Court accordingly considers that the applicants denied themselves access to the best means – and one that, in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent of the doctor's responsibility for the death of their child. In that connection, the Court reiterates, mutatis mutandis, that “where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim” (see Powell, decision cited above).”

In Beganovic v Croatia Application No 46423/06 (25th September 2009) (Liability Judgment paragraph [182] – [185]) the Court made an award of damages in circumstances where there was pending before the domestic courts a civil claim for damages against the perpetrators of the attacks in issue (see ibid paragraphs 41-45): See for analysis paragraph [92] below.

In Sizarev v Ukraine Application No. 17116/04 (17th January 2013) (Liability Judgment paragraphs [204] – [210]) the Court was concerned with a series of operational failings on the part of the police. The applicant had been arrested and punished for assault. He was assaulted whilst in police custody by a fellow detainee. There was no evidence of long term injuries of any sort. The applicant brought a civil claim for damages and (following an appeal) he was awarded compensation amounting to the equivalent of Euros 2,230 (ibid paragraph [75]). The Strasbourg Court recited fully the facts relating to the civil proceedings but proceeded to make an additional award of damages and, manifestly, did not consider that the domestic award was preclusive: See paragraphs [106] and [107] below for analysis

In Vistins and Perepjolkins v. Latvia (Application 71243/01) (25^th October 2012 (liability) and 25^th March 2014 and (quantum)) (discussed at paragraph [21] above) the Latvian Courts had determined on a final basis a claim based upon an alleged violation Article 1 of Protocol No.1 (cf the liability judgment at paragraphs [29]) – [34]). However the Grand Chamber disagreed that the domestic court’s judgment was sufficient and came to its own judgment as to the adequacy of the compensation: ibid paragraphs [115] – [131]. The Court then turned to compensation under Article 41 but found that the question was not ready for determination so adjourned it for further submissions. In the subsequent quantum judgment the Grand Chamber made its own calculation of the value for the expropriations (Euros 339,391.98, and, Euros 871,271.12). The Court deducted from the sums that it proposed to pay the sums already awarded by the national court (cf quantum judgment paragraph 40) and it also took account of inflation (94.3% in the period November 1997 – October 2012). The Court then, on, top made an additional award of Euros 10,000 for the “powerlessness and frustration” that the applicants must have felt during the proceedings. The Court took account of the domestic award but it was not preclusive, notwithstanding that it was final and dispositive at the national level.

In my judgment these authorities reflect no more than that which, in substance, is required under section 8(3) HRA i.e. that the outcome of parallel proceedings must be taken into account (see section D below). But the extent to which those parallel outcomes are influential will necessarily vary from case to case and in a variety of different ways.

I address now the extent to which the domestic recoveries are relevant on the particular facts of this case. The Particulars of Claim in the civil action against Worboys make it clear that the damages claimed are exclusively for harm caused by the tortious actions of Worboys in its many guises. These range from poisoning and administering noxious substances to false imprisonment and physical assault. The injuries complained of are the effects of these torts, namely physical pain, unhappiness, humiliation and psychiatric difficulties, all “…as a result of the matters complained of.” There are no pleaded claims for harm caused by the defective police investigation.

The settlement agreement to the claim against Worboys is contained within an Order dated respectively by the Claimants’ solicitors (Panone LLP) on 2^nd August 2013 and by Worboys himself on 24^th July 2013. Paragraph 7 of the Schedule to the Order states:

“The net sale proceeds shall, together with the sum of £56,822.30 already paid by the First Defendant to the Claimants solicitors, be paid by the First Defendant and accepted by the Claimants in full and final settlement of all claims to damages, interest and costs raised in the proceedings by the Claimants against the First Defendant.”

Paragraph 12 provides:

“By this agreement, the Claimants are accepting less than the full value of their claims against the First Defendant. They are doing so in reliance on the First Defendants disclosure as to his assets”.

A number of points arise. First, the settlement was a compromise of claims against Worboys, and no one else. Secondly, it was only for those “claims to damages” “raised” in the pleadings and these did not include claims under the HRA against the MPS for harm caused by the defective investigation. Thirdly, and in any event, it was recognised explicitly in the Consent Order that the Claimants were compromising with a defendant whose assets were insufficient to meet the Claimants’ total demands. Indeed it was for this reason that the Claimants were seeking to make up any shortfall in their claim against Worboys from his insurers, who were second Defendants to the claim.

It follows that there is nothing to support the submission of the Defendant that this claim was to compensate for damage and for loss caused by the MPS by virtue of its ineffective post-assault investigation or that the settlement figure inevitably covered that harm. Further, the full and final settlement was vis-à-vis Worboys only and was couched in terms specifically designed to make clear that it was for an undervalue and it left open the possibility of claims against others to make up the shortfall. It necessarily follows that it does not, on ordinary principles, preclude claims by DSD or NBV against the MPS. In coming to this conclusion I have had regard to the principles laid down by the House of Lords in Jameson (ibid). The nub of that judgment was that a Claimant should only once be compensated for the damage sustained. If therefore a Claimant recovered, whether through a judgment or in a compromise, a sum reflecting 100% of the damage suffered then the Claimant could not proceed for yet further damages against other concurrent tortfeasors. In determining whether a Claimant had been fully compensated following a settlement it was necessary to construe the terms of the settlement. If phrases such as “full and final” were used these would bear real evidential weight but the settlement still needed to be construed in order to find out exactly which part of the claim had been “fully and finally” settled; those words, in and of themselves, did not mean that all aspects of a claim were necessarily or definitively brought to an end. It follows that in my judgment the settlement expressed in the Consent Order does not bear the meaning given to it by the Defendant.

However, this is not to say that the claims are wholly irrelevant. In relation to the post-assault psychiatric harm running to the date of this award it is possible to identify a category of harm attributable to the Article 3 violation for which no compensation has been paid. However, there are other categories of harm where there is some degree of overlap between the civil claims and the claims against the MPS and where it is necessary therefore to “take account” of the civil settlements. The main instance is in the case of NBV where but for the MPS failings she would not have been raped at all and hence under the HRA there is a case for NBV to be compensated for the rape as well as for post-rape psychological harm. However, NBV has already received some payment from Worboys which includes a component for the actual physical assault itself. I therefore need to be alive to the risk of over or double compensation if I make an undiscounted award for the rape against the MPS for which NBV has already in part been compensated. To fail to take this into account would not be to accord “just satisfaction” to NBV but to overcompensate her. The second instance of potential overlap is in relation to post-assault medical treatment costs. This treatment addresses the ongoing medical needs of DSD and NBV and has been identified by the psychiatrists as treatment that would assist both Claimants. This necessarily would cover all of the consequences of the rape regardless of who or what caused it; when DSD or NBV receive treatment the assistance will not be bifurcated according to whether the harm was caused by Worboys or the Defendant. Some portion of the settlement monies in the Worboys’ claim may, arguably, therefore be attributable to treatment costs. To the extent that payment has been received to cover post-assault harm caused by Worboys then some of this compensation may be attributable to treatment.

There is a further reason why, although I should bear in mind payments already made to DSD and NBV, I am not hidebound by them. The domestic courts have already firmly established that the jurisdiction I am exercising is not one based in tort but by reference to broader considerations of equity.

Therefore principles such as are laid down in Jameson, which regulate tortious damages as between concurrent tortfeasors, may not be entirely to the point. In exercising my jurisdiction it seems to me I must take into consideration that damages obtained by a settlement with an impecunious criminal may frequently fall far short of an equitable award under the HRA. The evidence before me in this case shows quite clearly that the Claimants recognised that the Worboys settlement would be for an undervalue. In my judgment whilst I do take into account other payments to DSD and NBV I do this essentially as part of an assessment of overall equity and fairness.

In relation to the Defendant’s argument arising out of the failed claim against the insurer it seems to me that the Defendant has a valid point. The sums which had to be paid out to meet liabilities in respect of the failed insurance claim would otherwise have swelled the compensation payments to DSD and NBV. Forensically, it was their choice to sue the insurers. In these circumstances insofar as any portion of those incremental sums paid out to meet costs liabilities may be said to cover harm attributable to the Defendant’s breach I should take that increment into account and reduce the award to the Claimants accordingly. It seems to me that some modest portion of those extra sums would have been attributable to the rape of NBV and to the treatment costs for NBV and DSD.

With regard to payment by the CICA, DSD and NBV received payments amounting to £13,500 for DSD and £2,000 for NBV. Under the terms of the CICA rules if a victim of crime receives compensation for the crime then the CICA award has to be repaid. In the case of DSD and NBV the CICA payments were specifically for the consequences of the criminal assault. Accordingly, no award was made for harm caused by the entirely different acts and omissions of the MPS. To the extent to which those payments may reflect harm which overlaps with the harm being compensated in this case then the principles that I have applied in relation to the civil claim against Worboys should apply. Accordingly (i) I should take the CICA awards into account as I have done in relation to the civil payments and (ii) they would not be repayable by virtue of the award I make herein.

The case law Comparators

In this section I have set out a review of the authorities of the Strasbourg Court which address non-pecuniary claims for compensation based on cases involving Articles 2 and 3. I have focused upon cases where the Court has made an award for post-violation mental harm. I have endeavoured to identify whether the harm in question was treated as a recognised medical condition or as a species of mental harm falling short of such a recognised condition. In particular I have reviewed Article 3 cases involving the police and I have sought to identify whether the violation was (i) a violation perpetrated by the police (and not a third party); or (ii), by a third person but which involved a degree of police complicity or (iii), where the violation was based only upon a failure by the police to investigate. Further, I have had regard to analogous Article 2 cases since the law and practice of the Court on Article 3 has evolved out of Article 2 case law: See Liability Judgment paragraphs [138]-[226]. None of the cases cited below are four-square on point with the present case.

I have included in the assessment below cases of compensation payments made to claimants from jurisdictions where the standard of living is much lower than in the United Kingdom so that an upward adjustment would be necessary to calculate a comparable for the United Kingdom; and I have also examined awards in older cases such that a temporal adjustment for inflation and increases in the cost of living would have to be factored in.

The analysis of the cases below reveals a number of points of relevance to the present case:

The comparator cases

In the text below I have set out an analysis of some of the principal cases on a chronological basis.

In Ribitsch v Austria (1995) 21 EHRR 573 R was badly beaten whilst in unlawful police custody by a serving police officer. The domestic court acquitted the police officer of assault. The Commission and Court found the analysis of the domestic court to be unsatisfactory and unconvincing. It was common ground that the severity of the injuries sustained following the beating was sufficient to constitute “inhuman and degrading treatment” ([36]). The Court concluded that there was a violation of Article 3 ([39]). The Commission argued that a “relatively high sum should be awarded in order to encourage people in the same position as Mr Ribitsch to bring court proceedings” ([45]). The Court concluded:

“43.

Mr Ribitsch maintained that he had suffered non-pecuniary damage on which he set the figure of ATS 250,000.

44.

The Government did not make any observation on the question.

45.

The Delegate of the Commission argued that a relatively high sum should be awarded in order to encourage people in the same position as Mr Ribitsch to bring court proceedings.

46.

The Court considers that the applicant suffered undeniable non-pecuniary damage.  Taking the various relevant factors into account, and making its assessment on an equitable basis, as required by Article 50 (art. 50), it awards him ATS 100,000”.

It can reasonably be inferred that because the Court specifically picked out the encourager les autres argument advanced by the Commission that they endorsed it. The final sum awarded was less than the costs awarded (200,000ATS). The ATS was rendered obsolete in 1^st January 1999 when the Euro conversion rate was fixed at 13.70 ATC per Euro. The compensation award was therefore circa Euros 7,500 (1995 value).

In A v UK (1998) 27 EHRR 61, A was a nine year old child who had been chastised severely by his stepfather using a cane. The stepfather was prosecuted under section 47 OAPA 1861 and was acquitted. The burden of proof on the prosecution was to prove that the beating did not constitute “lawful punishment” ([14]). A alleged that the failure by the State to protect him from ill-treatment by his stepfather violated, inter alia, Article 3. The UK Government accepted that its domestic law was unlawful and proposed to amend the law. The claim for compensation was put on two bases by the claimant. First “for the grave physical abuse which he had suffered at the hands of his stepfather”. Secondly, that because of the inadequacy of English law “…he had also had to ensure the trauma of criminal proceedings which resulted in the acquittal of his stepfather” ([32]). A claimed £15,000. The Government offered an ex gratia payment of £10,000. The Court ruled:

“32.

The applicant sought compensation for the grave physical abuse which he had suffered at the hands of his stepfather. He pointed out that, because of the inadequacy of English law, he had also had to endure the trauma of criminal proceedings which resulted in the acquittal of his stepfather. At the hearing before the Court, his representative suggested that 15,000 pounds sterling (GBP) would be an appropriate sum by way of compensation.

33.

Prior to the hearing before the Court, the Government had informed the applicant that they accepted the Commission's finding of violation of Article 3 and undertook to amend domestic law. In addition, they had offered the applicant an ex gratia payment of GBP 10,000. At the hearing before the Court, however, they submitted that, in the light of their undertaking to amend the law, a finding of a breach would be adequate just satisfaction.

34.

The Court considers that, in the circumstances of the case, the applicant should be awarded GBP 10,000 in respect of compensation for non-pecuniary damage”.

Once again costs exceeded the award [35] – [37]. The sum must be measured in terms of its 1998 value. The language used in paragraph 32 suggests that A claimed for the violence inflicted by the stepfather and for the post-assault trauma. It is unclear however from paragraph [34] whether the award was actually made upon this basis.

In Akkoc v Turkey Application No. 22947/93 (10^th October 2000) the applicant’s husband was killed in circumstances that she complained were unlawful. The applicant herself was detained for 10 days and subjected to torture in breach of Article 3. She sought compensation both in her own right for wrongs perpetrated upon her and as beneficiary under the estate of her deceased husband. The Court awarded her £15,000 in relation to her rights as spouse of the deceased and £25,000 for the Article 3 violations directed towards her personally. In relation to the Article 3 violations the Court stated:

“116.

The Court accepts the findings of the Commission concerning the ill-treatment inflicted upon the applicant, which involved electric shocks, hot-and-cold water treatment, and blows to the head (see paragraphs 24-25 above). It notes the elements of psychological pressure suffered by the applicant, in particular the threats made concerning the ill-treatment of her children, which caused the applicant intense fear and apprehension. This treatment left the applicant with long-term symptoms of anxiety and insecurity, diagnosed as post-traumatic stress disorder and requiring treatment by medication.

117.

Having regard to the severity of the ill-treatment suffered by the applicant and the surrounding circumstances, the Court finds that she was a victim of very serious and cruel suffering that may be characterised as torture (see also Selmouni v. France [GC], no. 25803/94, §§ 96-105, ECHR 1999-V)”.

In relation to the non-pecuniary damages the Court stated they included compensation for the harm caused by investigatory failings:

“134.

The applicant claimed, having regard to the severity and number of violations, GBP 40,000 in respect of the violations suffered by her husband and GBP 30,000 in respect of the violations suffered by herself for non-pecuniary damage.

135.

The Government considered that no violations had occurred requiring any awards of just satisfaction and that the amounts claimed amounted to unjust enrichment.

136.

The Court recalls that it has found a violation of Article 2 of the Convention in that the authorities failed to protect the life of the applicant's husband and that it has also found that the authorities failed to provide an effective investigation and remedy in respect of these matters, contrary to the procedural obligation under Article 2 of the Convention and in breach of Article 13 of the Convention. Additionally, the applicant was subject to torture contrary to Article 3 of the Convention and intimidation in the pursuance of her application. In these circumstances and having regard to the awards made in comparable cases, the Court awards on an equitable basis the sum of GBP 15,000 for non-pecuniary damage suffered by Zübeyir Akkoç to be held by the applicant as surviving spouse and the sum of GBP 25,000 for non-pecuniary damage suffered by the applicant in her personal capacity, such sums to be converted into Turkish liras at the rate applicable at the date of payment”.

In Tas v Turkey Application No. 24396/94 (14^th November 2000) the applicant’s son died whilst in the custody of the security forces in unexplained circumstances. The Court found a breach of Article 3 vis-à-vis the applicant and awarded damages taking account of the reprehensible conduct of the State which in effect included a failure to respond or investigate (“the indifference and callousness of the authorities to the applicant’s concerns”) and the “acute anguish and uncertainty” which the Court assumed the applicant suffered:

“79.

The Court observes that in the Kurt case (Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, pp. 1187-88, §§ 130-34), which concerned the disappearance of the applicant’s son during an unacknowledged detention, it found that the applicant had suffered a breach of Article 3 having regard to the particular circumstances of the case. It referred particularly to the fact that she was the mother of a victim of a serious human rights violation and herself the victim of the authorities’ complacency in the face of her anguish and distress. The Kurt case does not however establish any general principle that a family member of a “disappeared person” is thereby a victim of treatment contrary to Article 3.

Whether a family member is such a victim will depend on the existence of special factors which gives the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court has emphasised that the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see the Cakıcı v. Turkey judgment of 8 July 1999, to be published in Reports 1999, §§ 98-99).

80.

In the present case, the applicant was the father of the disappeared person. On hearing that his son had been detained and injured, he went immediately to Cizre, where he tried over a period of a month to obtain news. He called frequently on the public prosecutor and attempted to visit his son by calling at the gendarmeries at Cizre and Şirnak, and was told either to go away or to come back later. When, after a month of waiting, the public prosecutor told him that his son had “escaped”, the applicant’s expressed fears that this meant his son had been killed in custody did not lead the public prosecutor to take any step to investigate. Having regard to the indifference and callousness of the authorities to the applicant’s concerns and the acute anguish and uncertainty which he has suffered as a result and continues to suffer, the Court finds that the applicant may claim to be a victim of the authorities’ conduct, to an extent which discloses a breach of Article 3 of the Convention”.

The applicant sought £400,000 in relation to violations to his son and £10,000 in relation to the article 3 violation and £50,000 for the “continuing character of the violation, unless the Government were to inform him of the fate of his son, where he was buried and to enable him to bury his son”. The Court ruled:

“102.

As regards the claim made for non-pecuniary damage on behalf of his deceased son, the Court notes that awards have previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings. It has previously awarded sums as regards the deceased where it was found that there had been arbitrary detention or torture before his disappearance or death, such sums to be held for the person’s heirs (see Kurt v. Turkey judgment, cited above, §§ 174-175 and Cakıçı v. Turkey, cited above, § 130). The Court notes that there have been findings of violations of Articles 2, 5 and 13 in respect of the detention and failure to protect the life of Muhsin Taş, whose fate after his disappearance remains unknown. Having regard to awards in similar cases, it finds it appropriate in the circumstances of the present case to award GBP 20,000, to be converted into Turkish liras on the date of payment and which amount is to be paid to the applicant and held by him for his son’s heirs.

103.

As regards the applicant, the Court has found a breach of Articles 3 and 13 due to the conduct of the authorities in relation to his search for the whereabouts and fate of his son. The Court considers that an award of compensation is also justified in his favour. It accordingly awards the applicant the sum of GBP 10,000, to be converted into Turkish liras on the date of payment”.

Selmouni v France (2000) 29 EHRR 403 is a case involving police failings where the Court treated the “seriousness of the violation” as an aggravating factor but, seemingly, also took into account failings in the Claimant’s evidence relating to causation between the breach and the alleged harm. Selmouni was a 49 year old male of Arabic extraction. He complained that he had been assaulted and sexually abused in police custody:

“82.

The applicant complained that he had been subjected to various forms of ill-treatment. These had included being repeatedly punched, kicked, and hit with objects; being forced to kneel down in front of a young woman to whom an officer had said "Look, you're going to hear somebody sing"; having a police officer show him his penis, saying "Here, suck this", before urinating over him; being threatened with a blowlamp and then with a syringe; etc. The applicant also complained that he had been raped with a small black truncheon after being told "You Arabs enjoy being screwed". He stressed that his allegations had neither varied nor been inconsistent during the entire proceedings and submitted that the expert medical reports and the evidence heard from the doctors who had examined him established a causal link with the events which had occurred while he had been in police custody and gave credibility to his allegations”.

With regard to the harm alleged:

“98.

The Court finds that all the injuries recorded in the various medical certificates (see paragraphs 11-15 and 17-20 above) and the applicant's statements regarding the ill-treatment to which he had been subjected while in police custody (see paragraphs 18 and 24 above) establish the existence of physical and – undoubtedly (notwithstanding the regrettable failure to order a psychological report on Mr Selmouni after the events complained of) – mental pain or suffering. The course of the events also shows that the pain or suffering was inflicted on the applicant intentionally for the purpose of, inter alia, making him confess to the offence which he was suspected of having committed. Lastly, the medical certificates annexed to the case file show clearly that the numerous acts of violence were directly inflicted by police officers in the performance of their duties”.

In relation to damages the Court found:

“120.

The applicant claimed 750,000 French francs (FRF) for personal injury. That amount comprised general compensation for the injuries occasioned by the violence he had endured during police custody and special compensation for the effects on his visual acuity, the condition of his eye not yet having stabilised. He claimed FRF 1,500,000 for non-pecuniary damage resulting from his treatment in police custody, the length of the proceedings and the impossibility of obtaining a transfer to the Netherlands to serve his sentence there.

121.

The French Government submitted, having regard both to the lack of any distinction between the damage sustained as a result of violations of Article 3 and Article 6 and to the fact that proceedings were in progress before the domestic courts, that the question of the application of Article 41 was not ready for decision.

122.

The Delegate of the Commission made no observations.

123.

The Court first reiterates its finding that the applicant has neither proved that he was raped nor established a causal link between the violence suffered and the loss of visual acuity relied on (see paragraph 90 above). Nevertheless, it finds, having regard, inter alia, to the five days' ITTP (see paragraph 31 above) and, in part, to his pain and suffering, that the applicant sustained personal injury in addition to non-pecuniary damage. Accordingly, having regard to the extreme seriousness of the violations of the Convention of which Mr Selmouni was a victim, the Court considers that he suffered personal injury and non-pecuniary damage for which the findings of violations in this judgment do not afford sufficient satisfaction. It considers, having regard to its previous conclusions, that the question of the application of Article 41 is ready for decision and, making its assessment on an equitable basis as required by that Article, it awards him FRF 500,000”.

The exchange rate as of the date of the entry into the Euro and up until 2005 was 6.55957 FFR per Euro. The award was therefore in the region of Euros 76,000 and the high level of the award reflects causality between the assault and the police conduct.

In Z v UK (2002) 34 EHRR 3 (10 May 2001) Z and his siblings, A B and C, suffered sexual abuse at the hands of their parents. They sued various local authorities under Article 3 for failure to take adequate steps to protect them from abuse despite having been aware of the abuse and having the means available to them to bring it to an end. The failings included investigative failings and failures to exercise power of intervention open to them. The Strasbourg Court has explained that a failing to preserve citizens from violence by third parties is a component of the Article 3 duty to investigate properly: See e.g. Denis Vasiliyez v Russia Application No. 32704/04 (17^th December 2009) paragraphs [97] – [100]. The claims of Z, A, B and C were upheld. They claimed pecuniary and non-pecuniary compensation and adduced detailed expert medical evidence. A significant award was made by the Court based upon three principal considerations. First, the duration of the harm sustained (over 4 years). Secondly, the force of the expert evidence tendered by the applicants. Thirdly, the levels of awards payable by the domestic courts in comparable situations. The pecuniary claim was based upon loss of future earnings and the costs of future medical expenses as follows: Z claimed £49,000; A claimed £200,000; B claimed £140,000; and C claimed £14,500. The Government submitted that the relevant figures should be: £20,000 for Z; £40,000 for A; £30,000 for B; and £10,000 for C. The Court stated:

“120.

A precise calculation of the sums necessary to make complete reparation (restitutio in integrum) in respect of the pecuniary losses suffered by the applicants may be prevented by the inherently uncertain character of the damage flowing from the violation (see Young, James and Webster
v. the United Kingdom (Article 50), judgment of 18 October 1982, Series A no. 55, pp. 6-7, § 11). An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved, the more uncertain the link becomes between the breach and the damage. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary losses, which it is necessary to award each applicant, the matter to be determined by the Court at its discretion, having regard to what is equitable (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), judgment of 6 November 1980, Series A no. 38, p. 9, § 15, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, §§ 18-19, ECHR 2000-IX). In that determination, the awards made in comparable domestic cases is a relevant but not decisive consideration”.

In relation to non–pecuniary loss flowing from the local authority’s failings to investigate and protect. The Court stated:

“128.

The applicants claimed non-pecuniary damage in respect of the physical and psychiatric damage sustained. Z had suffered a serious depressive illness and severe malnutrition, and it was predicted that she would need long-term psychiatric care, probably into adulthood. A had suffered from post-traumatic stress disorder and was chronically under-attached. There was evidence to suggest that his father had hit him with a poker and that he had been sexually abused. He had suffered permanent scarring and was expected to require long-term psychiatric care. B had also suffered post-traumatic stress disorder, with some evidence of being beaten by a poker and being sexually abused. He suffered very bad nightmares and would wake up screaming. He was expected to require long-term psychiatric care. C had been less seriously damaged but was also expected to require some psychiatric treatment. Her health had been neglected by her mother and she had a squint as a result.

According to the assessment of Dr Black, Z, A and B had suffered psychiatric damage falling at the upper end of the severe bracket. They exhibited "marked problems" in their ability to cope with life and in their relationships with family, friends and those with whom they came into contact. A and B in particular had a poor prognosis and there was a likelihood of future vulnerability. C had suffered damage in the "moderately severe" bracket. Although she presented significant problems in the areas above, she had a more favourable prognosis.

Having regard to the levels of awards in such cases in the domestic courts, the applicants considered that a reasonable sum would be GBP 35,000 for Z, GBP 45,000 for A, GBP 40,000 for B, and GBP 25,000 for C”.

The Court concluded:

“130.

The children in this case suffered very serious abuse and neglect over a period of more than four years. Z, A and B suffered, and in the case of the two boys, still suffer psychiatric illness as a result. A and B also suffered physical injury and C suffered neglect in respect of an eye condition. The description of the conditions which they endured and the traumatic effects which this had on the children leave the Court with no doubt that a substantial award to reflect their pain and suffering is appropriate.

131.

In making this assessment, the Court recalls that the rates applied in domestic cases, though relevant, are not decisive. It does not consider it appropriate or desirable to attempt to distinguish between the children in this context. Making an assessment on an equitable basis, the Court awards each child the sum of GBP 32,000”.

The assessment of the court, certainly when contrasted with the detailed submissions made to it, was broad brush. Whilst there were clear differences between the positions of the claimants they were all treated alike. In the concurring opinion of Lady Justice Arden (with which Judge Kovler agreed) she expressed her reservations about this failure to differentiate between the different claimants:

“Article 41 of the Convention enables the Court in appropriate cases to "afford just satisfaction to the injured party". The judgment of the Court awards two sums to each applicant by way of just satisfaction: one sum in respect of pecuniary damage and the other sum in respect of non-pecuniary damage. In the case of pecuniary damage, each applicant is awarded a different sum. However, in respect of non-pecuniary damage, each applicant is awarded an identical amount. Thus, with regard to non-pecuniary damage, the applicants' cases are not assessed individually. The applicants are treated as having suffered equal distress. In addition, no distinction is drawn between the suffering of any one applicant as against that of any other applicant, despite the differences between the cases of the applicants.

I agree that the just satisfaction which the Court awards to the applicants for the violation of Article 13 should include a sum on account of non-pecuniary damage in addition to the sums awarded in respect of pecuniary damage. I have no doubt that such an award is justified. However, in my opinion, the Court should not award the same sum to each applicant but rather should make a separate award to each applicant, reflecting the suffering of that applicant.

As paragraph 128 of the judgment shows, the applicants themselves have sought different amounts: GBP 35,000 for Z, GBP 45,000 for A, GBP 40,000 for B, and GBP 25,000 for C.

All the applicants endured suffering before they were taken into care. After they were taken into care they were assessed by consultant child psychiatrists: in 1993 by Dr Black, and in 2000 by Dr Harris-Hendriks. The diagnosis of A indicates that his case is the most serious. In 1993 he was diagnosed as suffering from post-traumatic stress disorder, and in 2000 he was diagnosed as suffering from a personality disorder for which the prognosis was unfavourable. B was considered to have a post-traumatic stress disorder in both 1993 and 2000, as well as social difficulties, and in addition in 2000 a generalised anxiety disorder, but the prognosis for him was uncertain rather than unfavourable. On the other hand, the initial diagnosis in 1993 of Z as suffering from a severe depressive illness has not been borne out, though it is considered that she may suffer anxiety and perhaps depressive illness in later life. In 2000 C's difficulties were described as moderate; she was regarded as vulnerable to anxiety and likely to need psychotherapeutic help in the future, but she had not suffered any psychiatric disorder.

In the circumstances my preferred course would have been to have performed a separate assessment of the amount to be awarded for non-pecuniary damage to each applicant. Having considered the evidence on the Article 41 issue, I consider that an appropriate amount would have been GBP  25,000 for Z, GBP 40,000 for A, GBP 35,000 for B, and GBP 15,000 for C”.

In Edwards v UK Application No. 46477/99 (14^th March 2002) parents brought proceedings again prison authorities whom it was alleged had failed to protect the life of their son. He had been killed by another detainee whilst held in prison on remand. Edwards was mentally ill and was held overnight in the same cell as another mentally ill detainee. The latter killed Edwards by stamping upon him and kicking him to death. The Court found a breach of Articles 2 and 3. The claimants sought compensation for non-pecuniary loss for: the anxiety, fear, pain and injury suffered by their son immediately prior to his death; their own anguish, severe distress and grief at the loss of their son; and, the ongoing stress and associated ill-health suffered as a consequence of the traumatic loss and ongoing frustration at the inability to pursue an effective avenue of redress. The applicants did not attach a figure to the loss they sustained and did not differentiate between damage to their son and damage sustained by them in their own right. The Court made a global award of £20,000 to the applicants which included assumed “anguish and distress” for the failure to investigate:

“104.

The applicants claim compensation for non-pecuniary damage in respect of the anxiety, fear, pain and injury suffered by their son Christopher immediately before his death, their own anguish, severe distress and grief suffered at the loss of their son and the ongoing stress and associated ill-health suffered by the second applicant as a result of the traumatic loss and ongoing frustration at the inability to pursue an effective avenue of redress. They do not specify a sum.

105.

The Government have not commented on these claims.

106.

The Court observes that it has found above that the authorities failed to protect the life of Christopher Edwards or to provide a public investigation meeting the requirements of Article 2 of the Convention. In addition to the pain and suffering which Christopher Edwards must have experienced, it finds that the applicants, his parents, must be regarded as having suffered anguish and distress from the circumstances of his death and their inability to obtain an effective investigation or remedy. Making an assessment on an equitable basis and bearing in mind the amounts awarded in other cases, the Court awards the sum of 20,000 pounds sterling (GBP) for non-pecuniary damage”.

In MC v Bulgaria Application No. 39272/98 (4^th December 2003) (Liability Judgment paragraph [161] – [169]) the Court made an award of Euros 8,000 to the claimant and justified this upon the basis that she had suffered psychological trauma which was “at least partly from the shortcomings in the authorities' approach”; the reference to “at least partly” suggests a recognition that some part of the harm was due to the rape itself for which the police could not be held responsible:

“191.

The applicant stated that she was continuing to suffer psychological trauma years after she had been raped. That was to a large extent the consequence of the fact that the relevant law and practice had not ensured effective protection. Furthermore, the investigation in her case had been flawed and had victimised her.

192.

On that basis, referring to several of the Court's judgments in cases of sexual abuse, the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

193.

The Government submitted that the sums claimed were excessive.

194.

The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities' approach found in the present case. Making an assessment on an equitable basis, the Court awards her EUR 8,000”.

On the basis of 2014 figures the cost of living is between 50-75% lower in Bulgaria relative to the United Kingdom. An upward adjustment would also need to be taken into account to take account of inflation. The sum of Euros 8000 would, today, be worth circa Euros 20,000 in UK terms.

In Ali and Ayse Duran v Turkey Application No. 42942/08 (8^th April 2008) (Liability Judgment paragraph [181]) the police were held liable for the death in custody of a man detained for suspected robbery. The Court found the State liable under Articles 2 and 3 for operational, not systemic, failings and made an award of Euros 10,000 each to a mother and son for assumed distress and for the lost opportunity for the son to grow up knowing his father:

“80.

The applicants requested the Court to award them the sum of EUR 60,000 for themselves by way of non-pecuniary damage on account of the distress caused to them by the death of Bayram Duran. They further claimed the sum of EUR 50,000 for Erdem Duran, maintaining that he did not have the opportunity to know his father and that he suffered on account of being brought up without a father.

81.

The Government argued that these sums were excessive.

82.

The Court reiterates that it has found violations of Articles 2 and 3 of the Convention. It further accepts that non-pecuniary damage suffered on account of these violations cannot be compensated for solely by the findings of violations. The Court, on an equitable basis, awards the sum of EUR 10,000 to each of the two applicants”.

In Dedovskiy and others v Russia [2008] ECHR 7178/03 (15^th May 2008), seven applicants were held in a penal colony in Russia. The deputy colony director for security devised a plan involving a number of measures, including: body searches of detainees; a punishment ward; and supervision of the detainees’ compliance with the regime regulations. The officers of an enforcement unit wore balaclava masks and carried rubber truncheons during the implementation of the plan. Between 17 and 20 April 2001, the applicants alleged that they were subjected to numerous instances of ill treatment. The treatment included: physical assaults inflicted with rubber truncheons by officers wearing balaclavas, verbal assaults, strip searches, and being forced to adopt humiliating poses. Following their complaints, a public commission was formed to investigate the causes and circumstances of the events in the colony. After a three-week investigation against the officers, charges were dropped. The Strasbourg Court found that there had been a breach of substantive and procedural duty under Article 3 including serious failures of investigation: see judgment paragraphs [87] – [94]. No medical evidence was adduced before the court to substantiate the claims for non-pecuniary damage. Yet the Court assumed that such must have occurred: The Applicants were awarded €10,000 damages (approximately £8,300):

“111.

The applicants claimed the following amounts in respect of compensation for non-pecuniary damage. Mr Dedovskiy, Mr Matrosov, and Mr Vidin claimed 30,000 euros (EUR), Mr Bukhman, Mr Gorokhov, and Mr Pazleyev EUR 60,000, and Mr Kolpakov EUR 100,000.

112.

The Government submitted that the claims were unsubstantiated and excessive since the applicants had not suffered any physical damage other than that resulting from the use of rubber truncheons which had been made necessary by their own unlawful conduct.

113.

The Court considers that the applicants must have suffered pain and distress on account of the ill-treatment inflicted on them. Their suffering cannot be sufficiently compensated by a finding of a violation. In addition, they did not benefit from an adequate and effective investigation of their complaints and their claim for damages was bound to fail. Nevertheless, the particular amounts claimed appear excessive. Making its assessment on an equitable basis, the Court awards each applicant 10,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount”.

In Secic v Coatia (2009) 49 EHRR 408 (31^st May 2007) (Liability Judgment paragraph [177] – [180]) the Court found a series of operational failings on the part of the police in investigating racially motivated attacks upon a Roma male. Not untypically the applicant sought damages which flowed from the attack (for which the State was not being held responsible) and for the subsequent police failings. The Court reduced the award from the sum claimed (possibly to reflect the fact that the principal loss was caused by the assailant and not the police failings) and held:

“72.

The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage on account of pain, frustration and humiliation suffered as a result of the attack and of the subsequent inadequate investigation.

73.

The Government considered this claim unsubstantiated and excessive.

74.

Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 under this head, plus any tax that may be chargeable on that amount”.

In Beganovic v Croatia Application No. 46423/06 (25^th September 2009) (Liability Judgment paragraph [182] – [185]) the Court made an award in circumstances where there was pending before the domestic courts a civil claim for damages against the perpetrators of the attacks in issue (see ibid paragraphs 41-45). Medical evidence submitted to the Court (see ibid paragraph 45) suggested that the applicant had sustained only very limited short term physical and mental damage (lasting just a few days) and no long term harm. This was relied upon by the State as a reason for not making any award. The State also submitted that the claim (for Euros 10,000) was excessive. The Court awarded a nominal sum of Euros 1,000 reflecting the nominal nature of the damage and which may be explained as payment simply to mark the offence and make clear that declaratory relief in these sorts of case is insufficient:

“100.

The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

101.

The Government argued that the applicant had submitted the same claim in the civil proceedings pending against his assailants and that his claim for non-pecuniary damage should therefore be rejected. In any event, they deemed the claim excessive.

102.

Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him”.

In Denis Vasiliyev v Russia Application No. 32704/04 (17^th December 2009) (Liability Judgment paragraphs ([186] – [190]) the Court was concerned with a case of failure properly to investigate: See paragraphs [97] – [100]. The Court granted significant pecuniary damages to cover future treatment but also a substantial sum for non-pecuniary loss to cover “emotional feelings of distress, frustration, injustice, and prolonged uncertainty”:

“170.

Furthermore, the Court reiterates its findings that the Russian authorities were responsible for the actions of the police, who had abandoned the applicant without assistance following a serious assault, and for the failure of the medical personnel to provide medical care appropriate to his grave condition. Nor did the authorities discharge their duty to investigate, in an efficient manner, the assault on the applicant or the above-mentioned failings of the police and medical personnel. These events must have caused the applicant not just physical pain and suffering but also emotional feelings of distress, frustration, injustice, and prolonged uncertainty which call for an award in respect of non-pecuniary damage (see, as a recent authority, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 224, 18 September 2009, with further references). Making an assessment on an equitable basis, the Court awards the applicant EUR 78,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount”.

The Court did not explicitly identify which features of the case it relied upon in order to arrive at this figure but the following were the principal failures recorded in the judgment arising out of the police investigation: the failure to render assistance to the victim when he was in a vulnerable state (the police when they first came upon the victim prone and unconscious on the ground basically ignored him and left him overnight incapacitated and without assistance) (paragraph [116] et seq); the failure to follow procedures at the police station (paragraph [120]); the lack of promptitude in the investigation (paragraph [125]); the incomplete nature of the investigation (paragraph [125]); the failure to accord proper procedural rights to the victim (paragraph [129]); the belated recognition of the applicant as a “victim”. The Court also found violations of Article 3 by the medical services (paragraphs [146]–[152]) but in the overall scheme of things these were minor relative to the police failures.

The sum of Euros 78,000 was awarded to Russian claimants for whom the money would have had a materially greater purchasing power than in the United Kingdom. To translate the payment into comparable UK terms it would be necessary to apply an inflator. Available data suggests that (using 2014 comparators) the cost of living in Russia is 40-60% less than it is in the UK. This suggests that a circa 100% uplift would be required to achieve an award with equivalent purchasing power in the UK. As such this case suggests that the very top end of the Article 3 (failure to investigate) range would be significantly over £100,000.

In Milanovic v Serbia Application No. 44614/07 (14^th December 2010) (Liability Judgment paragraphs [191] – 194]) the Court found a violation of Article 3 for a poorly conducted criminal prosecution where the Court nonetheless recognised the difficulties confronting the police:

“90.

In view of the foregoing and while the respondent State's authorities took many steps and encountered significant objective difficulties, including the applicant's somewhat vague descriptions of the attackers as well as the apparent lack of eyewitnesses, the Court considers that they did not take all reasonable measures to conduct an adequate investigation. They have also failed to take any reasonable and effective steps in order to prevent the applicant's repeated ill-treatment, notwithstanding the fact that the continuing risk thereof was real, immediate and predictable.

91.

In such circumstances, the Court cannot but find that there has been a breach of Article 3 of the Convention”.

The Court without any reasons awarded damages equivalent to half of those sought:

“105.

The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

106.

The Government contested this claim.

107.

The Court considers that the applicant has suffered non-pecuniary damage which cannot be sufficiently compensated by its mere finding of a violation of the Convention. Having regard to the character of the violations found in the present case and making its assessment on an equitable basis, the Court therefore awards the applicant EUR 10,000 under this head”.

In OOO v Commissioner of Police of the Metropolis [2011] EWHC 1246 (QBD), a number of Nigerian women were brought to the UK and forced to work as domestic slaves. The police refused to carry out any form of investigation until the claimants’ solicitor intervened, and even then the investigation was inadequate. The domestic Court found a breach of Article 3 in each case. In relation to damages the Judge rejected the submission that damages should be assessed upon the basis that the Claimants sustained specific psychological damage. He found however, that there was generalised “distress and frustration” over the failure to investigate lasting for a period of 15 months. The Judge decided that this was worth £5,000. He stated:

“186.

In the instant case each Claimant claims compensation for non-pecuniary loss. The Claimants do not assert that they were caused to suffer psychiatric illness in the strict sense in consequence of the failure to investigate; they assert, however, that they each suffered distress and frustration on account of that failure.

187.

The European Court recognises substantial distress and frustration as being conditions which justify an award of compensation where there has been a failure to investigate breaches of Article 3. I see no reason to suppose that it would take a different approach where the frustration and distress arises from a breach of a duty to investigate an infringement of Article 4. I have reached the conclusion that an award of damages is necessary in this case so as to afford just satisfaction to the Claimants.

188.

Ms Kaufmann submits that the appropriate range of damages for non-pecuniary loss in this case is £7,500 to £10,000. She bases that submission on the decision of the European Court of Human Rights in MC v Bulgaria (2005) 40 EHRR 20 where an award of 8,000 euros was made in 2003.

189.

I am not persuaded that this decision provides suitable guidance. The facts are very different and the proven breach of Article 3 ECHR went beyond a failure to carry out an effective investigation. Further, the court found, expressly, that MC had suffered psychological trauma as well as frustration and distress.

190.

In the instant case each Claimant suffered frustration and anxiety over a period of approximately 12 to 15 months. As I have said there is no reliable evidence that any of the Claimants suffered distress and frustration over the failure to investigate in the period July 2006 to July 2007. By December 2008 the Defendant had made an unequivocal offer to investigate each Claimants' case. The fact is that only one of the Claimants was prepared to go forward with an investigation at that stage and while the attitude adopted by the others was understandable I do not consider that the Defendant should be ordered to pay damages in such a sum that takes account of any distress, frustration, or anxiety suffered beyond December 2008. In any event specific evidence of distress or frustration continuing beyond December 2008 is not available. In all the circumstances, I have reached the conclusion that the appropriate award of damages for each Claimant is £5,000”.

It is, in my view, relevant that although it is correct that in MC v Bulgaria the Court did find “psychological trauma”, this was an assumption made by the Court and there was no evidence that it amounted to a recognised medical condition.

In CAS v Romania Application No. 26692/05 (20^th March 2012) (Liability Judgment paragraphs [195] –[199]) the Applicant claimed Euros 1m in respect of non-pecuniary loss. The Romanian Government argued (a) that there was no causal link between the amount sought and (b) that the amount was exaggerated. The Court made an award for assumed “hardship and distress”:

“92.

The Court acknowledges that the first applicant must have suffered hardship and distress because the ineffective investigation and the interference with the normal course of his private and family life. It therefore awards the first applicant EUR 15,000 in respect of non-pecuniary damage”.

In this case the investigation took five years. For three of these no significant investigative steps were taken [74]; at the end of seven years the accused was exonerated [75]). The authorities did not thereafter seek to find out whether any other person was responsible for the assaults [75]. The Court recited findings by the national court to the effect that the claimant’s conduct (and that of the parents) contributed to the police failings:

“47.

The court noted in particular that the parents had failed to notice the change in their child’s behaviour and to notify the authorities in good time, but rather had waited until after the abuse had been going on for some time. The court also observed that the descriptions of the facts given by the first applicant and the witnesses had not been accurate and differed in the details and pointed to the fact that the second applicant had tried to influence some of the witnesses to give statements against P.E. The court also attached importance to the fact that the searches performed during the criminal investigation had revealed no traces of P.E.’s presence in the victim’s apartment or any evidence in P.E.’s apartment to support the accusation against him. Lastly, the court considered that the findings of the medical report were not conclusive as to P.E.’s guilt”.

Later at paragraph [79]:

“79.

The Court cannot but note that while the authorities adopted a lax attitude concerning the length of the investigation, the domestic courts attached significant weight to the fact that the family did not report the alleged crimes immediately to the police and that, to a certain extent, the victim did not react sooner”.

However the Strasbourg Court was unimpressed and did not accept that any conduct on the claimant’s part could be said to be contributory: See paragraphs [79] – [83]. The sum awarded was therefore for assumed distress falling short of a medical condition. It must be measured by reference to the standard of living in Romania. Information about differences in the cost of living suggests that (using 2014 as the date of comparison) prices in Romania are between 40-60% less than in the UK. This suggests a UK equivalent of circa Euros 25-30,000.

In Koky & Others v Slovakia Application. No. 13624/03 (12^th June 2012) (Liability Judgment paragraphs [200] – [203]) the Court was concerned with failures properly to investigate racially motivated attacks. The harm in actual fact sustained by the victims was not substantial and was described in very general terms as “pain, frustration, helplessness and humiliation they had suffered as a result of the beatings they had been subjected to”. The claimants also did not differentiate between harm caused by the attacks (for which there was no allegation that the police were responsible) and the subsequent investigative failings. Nonetheless, the Court awarded 100% of the sums claimed (Euros 10,000) making clear that this award was for the harm sustained by reason of the State’s failings “ … and that it does not concern the underlying treatment suffered by the applicants at the hands of non-State actors”:

“249.

Applicants Mr Martin Kočko and Mr Rastislav Koky claimed EUR 10,000 each in respect of non-pecuniary damage, consisting of pain, frustration, helplessness and humiliation they had suffered as a result of the beatings they had been subjected to and the deficiencies of the investigation they complained of.

250.

Applicants Ms Zaneta Kokyová, Mr Milan BaláZ, Ms RuZena Kokyová, Ms Renáta Čonková, Ms Justínka Lacková and Mr Ján Koky Jr. claimed EUR 5,000 each in respect of non-pecuniary damage consisting of pain, frustration, helplessness, stress and humiliation and lasting harm and emotional and mental trauma due to the attack.

251.

Applicant Ms Renáta Kokyová claimed EUR 10,000 in compensation for non-pecuniary damage on account of the circumstances involving her minor children being present at and witnessing the attack.

252.

The Government opposed these claims as overstated and submitted that, should the Court find a violation of the applicants’ Convention rights, a more appropriate amount of damages should be paid.

253.

The Court observes that the violation found above is of a procedural nature and that it does not concern the underlying treatment suffered by the applicants at the hands of non-State actors. It considers that, as a result of the violation found, the applicants must have sustained damage of a non-pecuniary nature. Having regard to the amount of their claims and ruling on an equitable basis, it awards EUR 10,000 to each of the applicants Mr Martin Kočko and Mr Rastislav Koky and EUR 5,000 to each of the applicants Ms Zaneta Kokyová, Mr Milan BaláZ, Ms Renáta Kokyová, Ms RuZena Kokyová, Ms Renáta Čonková, Ms Justína Lacková, and Mr Ján Koky Jr., plus any tax that may be chargeable under that head.

254.

Noting that applicant Mr Ján Koky does not appear to have made any claim in respect of non-pecuniary damage, no ruling is made in that respect”.

In Tyagunova v Russia, Application No. 19433/07 (31^st July 2012) the claimant, a nurse at a private dentist’s office at the time, in 2005 attended a small party with her colleagues to celebrate the approval of an application for a dental practice licence. Four of them, including the applicant, then went to a lake, where they continued to celebrate. They left the lake late in the evening. The applicant alleged that on her way home she was stopped by a group of men, who threatened her with a knife and who beat her. She was raped and forced to engage in other sexual activities. Thereafter she was taken to a flat, where she was let in by a teenage girl. A man of forty or fifty years of age made her stay in the flat and allowed her to leave only in the morning. When she got home, she discovered that certain clothing was missing. Her jewellery, including a gold chain and a pendant, had also disappeared. Her jeans and T-shirt were covered with dirt, grass and blood. She had bruises and contusions on her body. The Strasbourg Court found that the subsequent police investigation was characterised by a series of operational failings. It identified them in some detail and said that there were “doubts” as to its effectiveness (see paragraph [73] cited below). There is no suggestion of bad faith, or wider systematic failings. There was no evidence tendered to the Court of psychological harm:

“66.

Turning to the facts of the instant case, the Court observes that the authorities did respond to the applicant’s allegations of rape. They conducted an initial inquiry to verify her allegations and then opened a criminal case and instituted official investigation. The Court is not convinced, however, that the measures taken by the authorities met the requirements of Articles 3 and 8.

67.

The Court notes from the outset that the prosecuting authorities were particularly slow in instituting an official criminal investigation into the circumstances of the case (see paragraphs 7-18 above). The prosecutor opened a criminal case only on 25 November 2005, five months after the applicant’s initial complaint. Admittedly, the authorities required a certain time to conduct a preliminary inquiry into the applicant’s allegations. They arranged for the applicant to undergo a medical examination, indispensable in rape cases. Her bodily injuries were documented and a smear test was performed. The investigator questioned the applicant and certain witnesses, who provided information on the events preceding and following the alleged rape. Nevertheless, it appears from the materials in the case-file that the investigator attached a significant weight to the applicant’s inebriated state at the relevant time and inability to provide a clear account of the events. Four times he rejected her allegations as unsubstantiated. Each time the supervising prosecutor ordered the reopening of the inquiry, consistently referring to the need for further work and a more thorough approach, which was, however, ignored by the investigating authorities.

68.

The Court does not lose sight of the difficulties the authorities face when investigating sex crimes, due to the particularly sensitive nature of the experiences sustained by victims. The impact of such a trauma may affect a victim’s ability to coherently or fully recount her experience. Indeed, the applicant was confused and provided contradictory statements. There were no eyewitnesses or anyone volunteering information on the issue. In such circumstances, the investigators were confronted with a difficult task. Nevertheless, despite the measures carried out by the authorities to elucidate the facts in the case, the Court cannot accept that the scope of the initial inquiry was satisfactory.

69.

In this connection, the Court cannot but notice certain omissions on the part of the investigating authorities in the way they handled the initial inquiry, when time was of essence to secure the evidence effectively. No one visited or searched the crime scene. Nothing was done to follow up on the information, albeit scanty, provided by the applicant in respect of the alleged perpetrators. The applicant’s clothes were not collected for forensic analysis. Nor was she offered psychological counselling or therapy or her mental or emotional condition evaluated. Admittedly, most of these measures were carried out later, during the official investigation, with precious time already lost and producing little result.

70.

The Court also takes into account the supervising prosecutor’s review of the initial inquiry (see paragraph 19 above). The prosecutor refused to uphold the investigator’s dismissal of the applicant’s allegations as unsubstantiated. He found the applicant’s allegations to be sufficiently serious to open an official criminal investigation in this respect.

71.

In this regard the Court observes that the ensuing investigation and judicial review lasted from 25 November 2005 to 5 May 2008. The Court accepts that the investigators proceeded in a reasonably diligent manner and the case was submitted to the judicial review within a year once the criminal case was opened. Nevertheless, the Court discerns a number of serious shortcomings in the investigators’ actions which were noted by the supervising prosecutor. No identity parade took place, even though the investigator questioned certain individuals suspected of involvement in the rape. Some of the persons were not questioned despite the prosecutor’s indication to do so (see paragraph 30 above). The Court finds it particularly striking that P., a teenage girl who saw the applicant shortly after the alleged rape, was never questioned by the police in this respect even though her identity was known to investigators and she testified at the robbery trial (see paragraph 48 above). Nor was there any follow-up as regards R.’s polygraph test results, which showed that the latter had “guilty knowledge” in connection with the applicant’s rape.

72.

Lastly, the Court notes that at no time did the investigator, despite the existence of DNA evidence (see paragraphs 22 and 28 above), order its analysis. It was only upon the applicant’s initiative that he considered such a possibility. He dismissed her request with a reference to the destruction of the evidence in question (see paragraph 33 above). Without delving into the issue of the validity of that argument furnished by the investigator, the Court cannot but notice that the relevant forensic expert report contained a conclusion to the contrary (see paragraph 28 above).

73.

The above considerations coupled with the overall duration of the investigation raise doubts as to the effectiveness of the authorities’ response to the applicant’s allegations of rape and leave the criminal proceedings in the case devoid of meaning.

74.

The Court concludes that the respondent State has failed to meet its positive obligations to conduct an effective investigation and to ensure adequate protection of the applicant’s private life. There has accordingly been a violation of Articles 3 and 8 of the Convention”.

The Court awarded the applicant Euros 12,500 even though there was no evidence of psychological harm suffered by the victim:

“80.

The Court observes that it has found a serious violation in the present case. The authorities failed to comply with their positive obligations to effectively investigate and punish rape. In such circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by merely finding a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 12,500 in respect of non-pecuniary damage”.

In Sizarev v Ukraine Application No. 17116/04 (17^th January 2013) (Liability Judgment paragraphs (204] – [210]) the Court was concerned with a series of operational failings on the part of the police. The applicant had been arrested and punished for assault. He was assaulted whilst in police custody by a fellow detainee. There was no evidence of long term injuries of any sort. The applicant brought a civil claim for damages alleging a wide range of failings and (following an appeal) he was awarded compensation by the national court amounting to the equivalent of Euros 2,230 (ibid paragraph [75]). The claim was said to be for the following acts:

“72.

On 14 October 2004 the applicant lodged a civil claim with the Yevpatoriya Court seeking compensation, in the amount of 3 million Ukrainian hryvnias (UAH), from the State Treasury of Ukraine and the Yevpatoriya police department for non-pecuniary damage in respect of the following: the conditions of his detention in the ITT; the failure of the ITT administration to ensure his safety; the fact of his having been handcuffed in hospital, the alleged lack of provision of any food or water between 27 April and 5 May 2004; the failure to provide him with the necessary medication; and the refusal to allow his wife and the priest to see him”.

At the first instance his claim succeeded only upon the basis of the police action in placing him in a cell with other violent criminals: See paragraph [73]. In March 2012 the Higher Civil and Criminal Specialised Court upheld the lower courts decision: “It noted that the applicant had suffered inhuman and degrading treatment on account of the conditions of his detention and the failure of the authorities to ensure his physical safety while in detention. It considered that the compensation awarded in respect of non-pecuniary damage was fair” (ibid paragraph [76]). In essence the domestic court compensated the Applicant for a classic Article 3 violation. The Strasburg Court identified 2 violations of Article 3. First, in relation to the detention, secondly, in relation to ineffective investigation: See paragraphs [108] – [129]. The Court however did not find that the civil award was sufficient albeit that it was a matter which could be taken into account along with other, unspecified, equitable factors:

“171.

The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

172.

The Government contested the claim as excessive and irrelevant.

173.

The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for by the mere finding of a violation of his Convention rights. Having regard to the circumstances of the case, including the domestic award of compensation to the applicant, and ruling on an equitable basis, as required by Article 41, the Court awards him EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount”.

In T v Chief Constable of Staffordshire (Birmingham County Court, 18^th January 2013), the Claimant was drugged and was the victim of a serious sexual assault. The police investigation breached Art 3 ECHR in a number of respects. The claimant suffered serious mental upset and considerable distress as a result of the flaws in the police investigation. The Court awarded £5,000, observing that it was not “compensatory” as would be the case with tort damages, but that it provided a measure of justice which marked the consequences of the Article 3 breach.

Claimants’ evidence on harm

Before setting out my conclusions on quantum I set out below a resume of the harm suffered by the Claimants as set out in the liability judgment.

In the Liability Judgment at paragraph [62] I set out the psychiatric expert evidence in relation to DSD:

“The opinion of Dr Harrison was set out at some length in her report. She described the unstable and troubled childhood of DSD which she concluded was relevant context to the psychiatric state of DSD following the incidents which form the subject of this claim. I set out below certain excerpts from Dr Harrison's opinion. In order to put these excerpts into context it is necessary to explain that Dr Harrison was making an assessment against, inter alia, the benchmark DSM IV classification. This is a classification of a "major depressive episode" in which 5 or more of a list of symptoms will be found to have been present during the same two week period and which represent a change from a previous state of functioning and where at least one of the symptoms is either a depressed mood or a loss of interest or pleasure. It is not necessary for the purpose of this judgment to set out DSM IV in any detail. However, the list of symptoms include such matters as: durable depressive moods; marked diminution in interest or pleasure in almost all activities most of the day; significant weight loss when not dieting or weight gain or decrease or increase in appetite nearly every day; insomnia or hypersomnia nearly every day; fatigue or loss of energy nearly every day; feelings of worthlessness or excessive or inappropriate guilt nearly every day; diminished ability to think or concentrate or indecisiveness nearly every day; recurrent thoughts of death; recurrent suicidal ideation without a specific plan or suicide attempts, etc. In her opinion Dr Harrison made the following observations:

“In my opinion [DSD] found the initial police investigation in 2003 distressing and difficult to cope with. This seems to be due to her view that the police did not believe her and felt that she was lying. She described having core beliefs about the importance of being truthful which seemed to have developed due to her disgust about her mother's behaviour during her childhood. She describes feeling that the police were suggesting that she was lying and was promiscuous, which would have made her similar to her mother. That was something that she had spent her entire life trying to prove that she was not and that she had different values. In my opinion, she started to develop a further depressive episode during the investigation which was worsened by her beliefs that her partner, employers and the counsellor also felt that she was lying about the incident. From her report of the symptoms she was experiencing and the impact on her level of functioning, in my opinion this was moderate in degree of severity. [DSD] describes that she questioned her own sanity during this period and spent between 2003 and 2008 questioning herself about what had happened and believing that she might be mentally unwell. I consider that she developed negative cognitions about herself, which further reinforced to her that she was not being believed.

From her description of her feelings and beliefs, in my opinion, on the balance of probabilities, [DSD] developed a depressive episode as classified by DSM IV classification (see Appendix 1) which was precipitated and maintained by the approach taken by the police in their initial investigation rather than by the actual rape she experienced.

[DSD] describes feeling less depressed prior to her second marriage and I consider that she showed partial remission in her depressive disorder. However, she continued to feel that she was not believed and had ongoing concerns about her sanity. She describes in detail her feelings and reactions when she heard that a Black Taxi driver had been arrested in 2008 for raping a number of women and she showed a clear elevation in her arousal levels when discussing this. She describes gaining some relief as she felt she finally had confirmation that she had not "made the rape up" and that she was therefore "not mad". However, she also identified that her emotions changed to overt anger towards the police because they had not "believed her" which had led to her feeling so confused for 5 years.

[DSD] describes feeling marked guilt when she attended the identity parade and saw that there had been many victims subsequent to her own experience in 2003. She described feeling that she should have tried to make the police believe her and to act on the incident she had reported in 2003. She described feeling responsibility for what had happened to all of the other women and that she should have been able to stop Worboys. [DSD] was able during my interview, with the appropriate support and guidance, to reflect on this and challenge these beliefs using a cognitive behavioural approach. From her report and her behaviour during my assessment as well as the entry in her medical reports, I consider that on the balance of probabilities that she suffered from an adjustment disorder according to DSM IV classification (see Appendix 2) as a response to the situation, but I do not feel that she suffered a relapse in her depressive disorder.

At my assessment, [DSD] did not show evidence of a depressive disorder or Post-Traumatic Stress Disorder according to DSM IV classification. However, it is clear that she is still finding it difficult to cope with the reaction of the police following the incident in 2003 and this seems to have been exacerbated by the information contained in the investigation report from the IPCC and the police. She describes having found it distressing to live with the idea between 2003 and 2008. People felt she had been lying about the incident as this conflicted with her core beliefs. She describes her partner and employers also doubted her because the initial police investigation did not have a positive conclusion. She describes this leading her to question her sanity and in my opinion, this all contributed to the precipitation and maintenance of a depressive episode. I also consider that this prevented her from following up the complaint she made during the initial investigation. In my opinion [DSD] also suffered from an adjustment disorder after Worboys was arrested as outlined above””.

The police failures thus caused harm which was quite discrete to that perpetrated by Worboys. It included, inter alia, adverse feeling of self-worth attributable to the fact that the police disbelieved her evidence; feeling that she was “mad”. The harm was prolonged and caused periodic clinically recognised depression and required and still requires treatment. It is notable that the experts agreed that they could not be precise about identifying which harm was caused by Worboys and which by the police. DSD has submitted that the totality of her harm was caused by the police; the Defendant’s expert considered that it is more likely to be 50:50. I do not accept that the totality of the harm caused to DSD was attributable to the police investigation. I prefer the conclusion of the Defendant’s expert that some is attributable to the assault. It is utterly impossible to be precise. But I consider that a 50:50 split is pragmatic and fair. This finding is relevant to the issue under section 8(3) HRA (see section D above) and the extent to which damages for post-assault mental harm covered by the “other” remedies should be taken into account.

In the Liability Judgment at paragraphs [71] - [73] I set out the psychiatric expert evidence in relation to NBV. This was that the police failures exacerbated the psychological harm caused by the assault and at times was sufficient to amount to a recognised medical condition:

“71.

In terms of causation Professor Maden observed that the causation of most psychiatric and psychological problems was "multi factorial" with genetic and environmental factors contributing. He stated as follows:

“123.

The causation of most psychiatric and psychological problems is multi factorial with genetic and environmental factors playing a part. The family history of mental illness in her mother increased her vulnerability as did her mother's death but not to a great extent. There were no other vulnerability factors.

124.

She was a normal and confident young woman before the assaults and she would not have developed mental health problems had it not been for the assaults. The assaults exacerbated by the failure to properly investigate them were the main cause of her mental health problems.

125.

Her problems were also made worse by an abusive boyfriend and the diagnosis of serious illness in her sister. The problems with her boyfriend were due in part to symptoms she developed after the assaults. In any event these are the sort of life events that would have caused transient stress but not mental illness had it not been for the assault by Worboys”.

In relation to the causal split between the assault and the police investigation:

“74.

A psychiatric report was prepared on NBV by Dr Tony Davies on behalf of the Defendant. He met with NBV on 4^th June 2013 for approximately 1 hour and 15 minutes. His report does not differ substantially from that of Professor Maden. He concluded that at the point in time when he assessed NBV she did not reach the threshold for a current diagnosis of a Depressive Disorder/Episode or Post-Traumatic Stress Disorder. He did, however, conclude that NBV: "has been significantly emotionally affected by her experiences, and that it is likely that for significant periods during the time that followed on from her attack, she has fulfilled criteria for both conditions. She continues to be emotionally troubled by her experience". He observed that NBV did not report any significant emotional health issues prior to the assault (which was supported by medical records) and that her: "subsequent difficulties appear to be related to the emotional impact of the incident, including psychological trauma". In relation to causation he stated:

“[NBV's] claim relates to the initial police investigation of her case, and its subsequent impact on her emotional health. There is no reliable objective way of separating the contributions of the sexual assault and of its subsequent investigation. At interview I formed the impression that they are closely linked in the Claimant's mind, and emotionally she is unable to separate one from the other. Should the court find in her favour with regard to her allegation regarding the initial police investigation, I would suggest that the attack and its subsequent investigation might reasonably be said to have contributed equally to [NBV's] difficulties with her emotional health since”.

In relation to future treatment Dr Davies concluded that her condition merited referral for specialist trauma based psychological treatment, probably in the form of cognitive behavioural therapy. He observed that the extended nature of her difficulties might impact upon her response to treatment but should not be considered a barrier to referral. He concluded that it was difficult to estimate accurately the length of any required treatment but that it would likely extend “over some months””.

As with DSD it seems to me that a 50:50 split in the cause of harm as between the assault and the post-assault investigation is fair and pragmatic and accords with the evidence. The summary of the joint experts report in paragraph 75 of the Liability Judgment stated:

“75.

In preparation for this trial Dr Davies and Professor Maden prepared a joint statement. I summarise its contents below:

i)

When assessed by Professor Maden in May 2011 NBV reported residual symptoms consistent with the diagnosis of Post-Traumatic Stress Disorder and a second diagnosis of a sexual disorder; however, when examined by Dr Davies in June 2013 the Claimant did not describe or exhibit symptoms of sufficient severity to justify a diagnosis of current mental disorder but she reported persistent emotional problems in coming to terms with her experience of sexual assault in 2007.

ii)

Both experts agreed that NBV had experienced difficulties with mental health since her experience and its subsequent investigation and there was agreement that the severity of symptoms fluctuated over time reaching the threshold for formal diagnosis of mental disorder during some periods but not at others.

iii)

Both experts agreed that for periods of time since the assault NBV had suffered with Post-Traumatic Stress Disorder. Dr Davies was of the view that NBV had also suffered with Depressive Disorder although Professor Maden did not feel that she satisfied the criteria for this second diagnosis at the time of his assessment. When he met with NBV in May 2011 he made a further diagnosis of a sexual disorder (sexual aversion and lack of sexual enjoyment) though Dr Davies did not consider that NBV warranted such a diagnosis when he assessed her in June 2013.

iv)

To the extent that there were differences in view between Professor Maden and Dr Davies they were of the view that these were accounted for by: the gap of 25 months between their respective assessments with the potential for fluctuation and improvement in symptoms over time; and the fact that their assessments were based upon her reported account and the absence of substantial corroborative information in available medical records.

v)

In relation to causation both experts were agreed that there was no reliable/objective method of attributing her post-assault condition to any particular prior event and particularly the assault or the subsequent investigation and, accordingly, they were agreed that the assault and its subsequent investigation should be treated as having "contributed equally to the difficulties that she has experienced with her mental health since then".

vi)

Both experts agreed that NBV had not received any significant specialist treatment for mental disorder since the assault in 2007.

vii)

Both experts agreed that NBV had not experienced any significant absence from work on account of mental health difficulties following the assault but that certain aspects of her life, including her time at university and her subsequent experience of relationships, were affected adversely by her experiences.

viii)

Both experts agreed that NBV continued to experience difficulties in coming to terms with her experience albeit that the difficulties did not justify a current diagnosis of mental disorder. They were agreed that NBV warranted specialist treatment to assist her in the form of psychological treatment/cognitive behavioural therapy delivered by a therapist with expertise in trauma. They were also agreed that given the length of time since the assault that any treatment would probably need to be extended and they estimated treatment over a period of 6-12 months consisting of 20-30 sessions.

ix)

Both experts agreed that without treatment NBV's difficulties were unlikely to resolve spontaneously and that given the length of time since the assault it was possible that some of her difficulties may persist notwithstanding treatment albeit not to such a degree as to interfere with her ability to work.

Conclusions: Quantum

I start by explaining that I am treating DSD and NBV as two discrete claims. I do not seek to lump their cases together. I strongly prefer the approach of Lady Justice Arden in Z v UK set out at paragraph [82] above since it seems to me that one should, in principle, view each claimant in his or her own light and compensate accordingly. On this basis I am setting different figures for DSD and NBV.

In setting the figures I would make the following general points. First, the science of quantification is very far from exact and it is simply not possible to seek, rationally, to attribute particular sums to different factors and then to tot them up to arrive at a final figure. Secondly, there is a degree of overlap between the factors I have identified below and I have therefore paid particular attention to the final standing-back, totality, exercise to see whether, in the round, the final sum awarded to each seems fair and equitable. Thirdly, I have taken account of sums already paid but again there is no precise netting-off exercise that can be performed.

The main factors that I take into account are: 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 is any other reason why an enhanced award should be made; where the award sits on the range of awards made by Strasbourg and in similar domestic cases; other payments; totality and “modesty”.

I award to DSD the sum of £22,250 comprising a sum (£20,000) for (more general) non-pecuniary harm which is calculated to cover the period to the date of judgment and a small incremental component (£2,500) for future treatment.

I have set out below the factors I consider to be relevant. As already observed I consider it pointless and indeed nigh on impossible to seek to attach specific values to any of the features identified. I have sought to identify features from Strasbourg case law which are relevant to the present case and then to place the case on the range of figures awarded in roughly comparable Strasbourg decisions. I can find no single Strasbourg case which is truly comparable. Many share common features but none are four-square on point. Having identified relevant factors I have stood back and looked at the total figure in the round from the perspective of totality. It is this latter exercise which, in some respects, is the most important: Is the final sum to be awarded a fair and equitable sum in all the circumstances and does it therefore accord just satisfaction to the Claimant?

I make clear that in assessing quantum I am focusing exclusively upon harm specifically attributable (causally) to the Defendant’s failings, and not to harm attributable to the assault by Worboys.

Post-assault psychiatric harm: The existence of medically proven psychiatric harm amounting to a recognised condition is an aggravating factor; and it goes beyond mere frustration, stress or anxiety of the sort that the Strasbourg Court is prepared to assume is an incident of many Article 3 cases even where no specific medical evidence is adduced. In this regard DSD suffered long term (and ongoing – but see below in relation to treatment costs) psychiatric harm. This was agreed between the experts. It manifested itself in periodic bouts of clinical depression. The ineffective police investigation left her with feelings of low self-worth; she carried with her the belief that the police considered her to be a liar and promiscuous or a drug addict or all these things. She questioned her own sanity. She developed negative cognitions about herself. It was only when Worboys was arrested that she felt relief and a confirmation that she had not “made it up”. She felt responsibility for the other victims because she had not been able to persuade the police of her version of events. I have taken the cut-off point for this particular harm as the date of judgment because the future, on-going, harm can be addressed through a sum accorded for treatment costs.

Treatment costs: I have taken account of the quantified claim for treatment for the psychological harm sustained. Since the psychiatric harm runs into the future the cost of seeking to bring it to an end (by treatment) is a relevant matter. By crystallising this harm in identifiable treatment costs the Court can add to an award compensating to the date of judgment a more concrete component which takes account of the future. The sum claimed is modest (£4,500) but the award I make will only contribute towards the cost of treatment (for the reason set out in paragraph 61 above). I am not awarding the full sum claimed for since part of the Worboys settlement can be used to defray a portion of the cost. I am conscious that the Worboys award does not reflect the full value of the claim. I award half of the sum claimed and hence make an award of £2,250 for future treatment costs. I do not accept the Defendant’s submission that the claim for this particular head has been advanced too late. If I did not quantify the future loss by reference to treatment costs I would, instead, have had to add some other value to the award to take account of the ongoing nature of the harm.

Duration of the violation: An aggravating factor is the prolonged nature of the violation. The violation was long lived and impacted upon and exacerbated the harm. It continued from mid-2003 – February 2008 when Worboys was apprehended and charged: See Liability Judgment paragraphs 76-87 i.e. approximately five years. In my view an appropriate cut off point (in a case where the criminal is ultimately convicted) for determining the duration of the violation is when the criminal is charged since it can be said that at that stage the investigation by police is at an end and a prosecutorial stage has commenced. The long duration of the breach in this case is an aggravating factor. I have considered whether the 5 year period should be shortened upon the basis that had (ex hypothesi) the Defendant conducted a proper investigation this might still have taken a fairly lengthy period of time and that, on a but-for analysis, five years is therefore too long a period to take account of. It is impossible to be ultra-precise in this regard. On the basis of my findings of fact in the Liability Judgment it is possible that Worboys could have been arrested shortly after the assault upon DSD in May 2003 had the MPS followed its own procedures. On this basis it would be reasonable to take the full five years. On a more conservative basis I am going to assume that DSD’s harm, attributable to the police investigation, lasted a “substantial” period of time and am taking as a somewhat rough point of reference a period of circa 4 years. I have come to the view however that my ultimate conclusion on quantum would not materially vary by references to differences in duration of this range. In setting the length of duration of the breach in this way I have taken into account the Defendant’s submission that the fact that there was ultimately a successful conviction is relevant.

Nature of failing - operational and/or systemic: The police failings were not merely operational (as they were in the vast majority of Strasbourg cases) but they were systemic and of a deep and abiding nature. This is an aggravating factor when it comes to damages. They are serious because the MPS was fully aware of the need to address drug facilitated sexual assault with particular sensitivity and care and devised sophisticated guidelines for this purpose; but the system in actual operation throughout this period made implementation by officers of the Defendant’s own guidelines more or less impossible. In almost all of the cases where the Strasbourg Court has made awards the failings identified have been categorised or treated as operational. It seems to me that the fact that the failings ran deep and systemically throughout the MPS is a particular factor which is relevant to the nature of the breaches and makes them more serious.

Overall context / defendant’s conduct / claimant’s conduct: The effects of the systemic failings were particularly grave in that they resulted in over 100 women being subjected to serious sexual assaults including rapes. I have considered whether this should be treated as relevant when dealing with but one of the victims. The fact that 100 plus suffered might be said to be irrelevant because each of those 100 plus could, at least in theory, advance their own claim for damages. However, the Strasbourg Court has made clear that one looks in the round at the failings which have led to the violation and takes into account their “overall context” and “severity”. It seems to me that the violations of Article 3 reflected a profound failure upon the part of the MPS to protect the public. Very many women were raped and assaulted by reason of these failings. I do not count DSD amongst this class (though I do in relation to NBV – see below). I am not therefore compensating DSD upon the basis that but for the failure she would not have been raped. But I do take account of this as part of the overall context. There are no contributory failings on the part of DSD which I should take account of as leading to a reduction in the award.

Bad faith / need to impose a sum to encourage compliance: Case law suggests that an award may take into account the need to encourage compliance in the future or to mark the “moral” opprobrium of the court. There is no allegation of bad faith in this case. Damages are not therefore to be aggravated by reference to any act of bad faith (In Vasiliyev deliberately reprehensible conduct was seemingly an aggravating factor). I do not accept the Claimants’ submission that I should aggravate the sum to be awarded upon the basis that the failures persist to the present day. I made clear in the Liability Judgment that the trial was not in effect a public inquiry and I have made no findings about the present position. I have accepted that the police took the Worboys episode seriously and conducted detailed internal investigations and identified lessons to be learned. These support my conclusion that there is no element of bad faith in this case which would increase the sum to be awarded. I also take into account the fact that Worboys was apprehended, charged, prosecuted, found guilty and punished commensurately. At the end of the day the system worked.

The range: In terms of where this case sits on the range I consider that a figure of circa £20,000 plus is appropriate to cover the period to the date of judgment and which takes due account of the various features of this case. This is quite clearly a case where more than nominal damages should be awarded. Nearly 15 years ago the Court was awarding (adjusted) sums in excess of £10,000 for non-pecuniary loss for non-psychiatric (assumed) harm such as the distress of having to attend proceedings or anxiety, uncertainty and frustration and the suffering of a sense of powerlessness: e.g. £10,000 in A v UK in 1998; £10,000 in Tas v Turkey in 2000; and £20,000 in Edwards v UK in 2002. In 2003 a sum of Euros 8,000 was awarded in a Bulgarian case for assumed harm (MC v Bulgaria). In 2012 Euros 15,000 was awarded for assumed hardship and distress flowing from an ineffective investigation into an alleged rape where there were no findings of systemic failings, only operational failings (CAS v Bulgaria – translated to a UK standard of living would increase this figure to circa Euros 25,000). For a violation where proper medical evidence was provided to the Court the sum of £32,000 was awarded in Z v UK in 2001. The top of the range is characterised by Vasiliyev v Russia in 2009 - Euros 78,000 for non-pecuniary assumed emotional distress, frustration, a sense of injustice and prolonged uncertainty in a case where the Strasbourg Court took into account some chronic operational failings by the police. With cost of living taken into account this award would materially exceed Euros 100,000 in UK terms. In this context a figure of £20,000 which takes account of the aggravating factors that I have identified is (conservatively) within the range.

Other payments: In setting the figure of £20,000 I have taken into account all those elements of the other sums paid to DSD which could be said to cover the same harm as is the subject of this claim. There is no exact netting-off process to be performed. I take those figures into account in determining what is just and equitable and having regard to all the surrounding circumstances. I have thus made allowances where there are areas of overlap but not otherwise.

Totality and “modesty”: Standing back from the assessment of the individual factors it seems to me that in all of the circumstances of this case the award I am making is not excessive. This is a very serious and exceptional case on the facts and the sums awarded are not disproportionate in the overall context of the case and when compared to Strasbourg comparators. I have also benchmarked this claim against the sorts of sums which might be paid in equivalent domestic proceedings in two different ways. First, Ms Kaufmann QC drew my attention to various cases of the domestic courts where awards of damages were made for conduct which, with all due allowances being made for the factual variations, she said provided guidance as to the scale of awards made in cases of this type. These were: D v David Sudlow (2003); AT, NT MT and AK v Dulghieru [2009] EWHC 225 (QBD); and, Hsu v Commission of Police for the Metropolis [1998] QB 498. She also drew attention to the Judicial Studies Board guidance on awards for psychiatric injury. She submitted that these showed that in purely domestic terms the awards payable would have been no less than £19,000 in the case of both claimants for the purely psychological aspects of the harm suffered. She submitted that on top of this aggravated damages would have been awarded and this would lead to total awards exceeding £30,000. I am not going to conduct a detailed mini-trial of the claims by reference to domestic law tests in order to test the correctness of these propositions. In my view Ms Kaufmann’s assessment is in the “ball park” and suffices to show that the award I have made is not out of kilter with the sorts of awards that might have been made in the domestic context. Secondly, and perhaps more relevantly, these domestic comparables show that the settlement arrived at in the Worboys claim can reasonably be assumed to have been at a material undervalue which is itself a factor I can take into account under section 8(3) HRA. I consider that this is the sort of evidence that were it to be placed before the Strasbourg Court would be considered as useful guidance by that court.

The total award to be paid is therefore £22,250 comprising £20,000 for general non-pecuniary harm to the date of judgment and £2,250 for quantified (treatment cost) future harm.

NBV

I award NBV the sum of £19,000. This comprises £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.

Nature of harm: In the case of NBV there are three matters to consider. First, the rape itself; secondly, the post-assault psychological harm; thirdly, treatment costs.

The rape: In my view it would be inequitable and unjust if some significant award was not made to NBV to mark the fact that the MPS failed to protect her, a young woman in a vulnerable situation late at night, from an altogether avoidable rape. In setting the award it seems to me that in part NBV has already been compensated for the actual assault by virtue of her claim against Worboys which led to the settlement and of the CICA payment. I should therefore take these sums paid into account under section 8(3) HRA. I have already set out my views on this. I have concluded that the sums generated by virtue of the settlement agreement (both in relation to the sum actually received and the sum that would otherwise have been received had the claim against the insurers not proceeded) can be taken into account but do not extinguish the Article 3 claim.

Post-assault psychological harm: The experts are agreed that the causes of her post-assault mental harm was evenly split between the assault and the police investigation: See paragraphs [113] – [115] above. I am awarding NBV compensation for the post-assault psychological harm to reflect the fact that her harm is ongoing at the date of judgment and which therefore reflects harm as at the date of this award (as for future harm see treatment costs below). The component of the £17,000 attributable to this is loosely proportionate to the sum paid to DSD taking account of duration and the fact that DSD suffered harm for 5 years prior to her being vindicated whereas the period for NBV was much shorter, but that both have continued to suffer such harm thereafter.

Post assault treatment costs: I have taken account of the quantified claim for treatment for the psychological harm sustained. The sum claimed is modest (£3,750) but the award I make will contribute towards the cost of treatment (as in the case of DSD – see paragraph [123] above). I am not awarding the full sum claimed for since part of the future psychological harm sustained by NBV is attributable to the assault itself and the Worboys settlement can be used to defray some part of the cost. I award the sum of £2,000 towards treatment costs.

Duration of violation: The duration of the breach is, in principle, the same for DSD as is it for NBV. This is because there was, upon the basis of my Liability Judgment, a long standing and ongoing breach at the point in time when NBV was assaulted (July 2007) which was causally connected to her assault. On one reasonable view Worboys should have been arrested shortly following the assault on DSD (in 2003). The investigation in relation to NBV was (wrongly) closed in October 2007. The case was re-opened in February 2008 when Worboys was also charged: See Liability Judgments paragraphs 41-58 for the chronology. When proper searches were conducted on the MPS data bases in February 2008 it took only days to identify Worboys as the culprit and to arrest him and if they could do that then they could have done that much earlier. The relevant information was available to the MPS well before July 2007. However I should also take into account vis-à-vis NBV that the period of time following her assault to the bringing of the breach to an end was relatively short.

Nature of failing - operational and/or systemic: As to the nature of the violations I draw the same general conclusions about the nature of the breach in relation to NBV as I do in relation to DSD. However, there are two additional points to make here. First, in the case of NBV but for the failings she would not have been raped at all. This is a serious aggravating factor. The MPS had a duty to protect NBV from rape. Had it done its duty she would not have been raped. In the vast majority of the Strasbourg cases the Court is compensating for post-assault harm and not for the assault itself because there is no causal connection between police failure and the criminal assault (which predates it) and this difference between the present case and Strasbourg case law is hence something to be taken into account when considering relevant comparable Strasbourg cases and serves to push the NBV case up the range of severity. Secondly, in the case of NBV there is an additional aggravating factor, namely that by the time NBV was attacked the police, for internal accounting and/or reporting reasons, had moved to a policy of not prioritising certain sexual assaults: See Liability Judgment paragraph [310]. There was by this time a disconnect between the headline sentiments expressed by the MPS that rape and sexual assault was a priority and the reality which was that they had institutionalised a system whereby to improve crime statistics sexual assault files were closed without all due care and attention having been paid. It seems to me that I should reflect this fact in the award since it is relevant context to the case of NBV.

Overall context / defendant’s conduct / claimant’s conduct: I repeat what I have said under this heading at paragraph [126] above.

Bad faith / need to impose a sum to encourage compliance: I repeat the points made in relation to DSD at paragraph [127] above.

Range: See paragraph [128] above. The violation in relation to NBV is more serious than the vast majority of the most directly comparable decided Strasbourg cases where awards are made upon the basis that the police failings were not causative of the underlying criminal act. Prima facie this fact means that the present case would be placed towards the higher end of the range.

Other payments: In my view there is a greater degree of overlap between sums received already by NBV and the sum to be fixed by way of compensation in this case, than in the case of DSD. I have adjusted the award downwards accordingly. This accounts (in part) for the fact that the award I make is slightly lower than in the case of DSD even though I have found that the failings of the Defendants were causative of the rape upon NBV and therefore prima facie more serious.

Totality: In relation to totality I make the same points that I have made at paragraph [130] in respect of DSD.

I therefore award NBV the sum of £19,000 comprising: £17,000 to include the Defendant’s causal responsibility for the rape and the post-assault psychological harm attributable to the police investigation; and, £2,000 for a portion of treatment costs.

In conclusion: