1. Chambers, G and Millar, A Investigating Sexual Assault (Edinburgh: Scottish Office Central Research Unit, 1983);Google Scholar Blair, I Investigating Rape: A New Approach for Police (London: Croom Helm/The Police Foundation, 1985)Google Scholar; Harris, J and Grace, S A Question of Evidence: Investigating and Prosecuting Rape in the 1990s (London: Home Office, 1999)Google Scholar; Gregory, J and Lees, S Policing Sexual Assault (London: Routledge, 1999)Google Scholar; Her Majesty's Inspectorate of Constabulary and Her Majesty's Crown Prosecution Inspectorate Joint Inspection into the Investigation and Prosecution of Rape Offences in England and Wales (London: HMCPSI and HMIC, 2002); HMCPSI Without Consent: A Report on the Joint Review of the Investigation and Prosecution of Rape Offences (London: HMCPSI and HMIC, 2007)Google Scholar; HMCPSI Forging the Links: Rape Investigation and Prosecution: A Joint Inspection by HMIC and HMCPSI (London: HMCPSI and HMIC, 2012)Google Scholar; Feist, A et al Investigating and Detecting Recorded Offences of Rape, Online Report 18/07 (London: Home Office, 2007), available at http://webarchive.nationalarchives.gov.uk/20110218135832/http:/rds.homeoffice.gov.uk/rds/pdfs07/rdsolr1807.pdf (accessed 12 April 2016)Google Scholar; Stern, V A Report by Baroness Vivien Stern CBE of an Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales (London: Home Office, 2010)Google Scholar; Hohl, K and Stanko, E ‘Complaints of rape and the criminal justice system: fresh evidence on the attrition problem in England and Wales’ (2015) 12 Eur J Crim 324 CrossRefGoogle Scholar; and E Angiolini Report of the Independent Review into the Investigation and Prosecution of Rape in London, available at http://www.cps.gov.uk/publications/equality/vaw/dame_elish_angiolini_rape_review_2015.pdf (accessed 16 November 2015).

2. During the early 2000s, the conviction rate in rape cases became the focus of intense public scrutiny as figures revealed that only about 6% of reported rapes resulted in a rape conviction: L Kelly, J Lovett and L Regan A Gap or a Chasm: Attrition in Reported Rape Cases, Home Office Research Study 293 (London: Home Office, 2005). As a proportion of cases reported, the conviction rate has continued to hover troublingly around 6–7%, although more recently, the accuracy and significance of the ‘6%’ figure has been questioned on the grounds that it relies on inappropriate measures and comparisons yielding misleading results: Stern, above n 1. Subsequent studies have sought to ensure greater commensurability in data calculations and few doubt that a serious problem of attrition exists in rape cases, ie that a troubling high proportion of cases fall out of the criminal justice system at all stages. Much ink has been spilled trying to ascertain the reasons for this falling off of claims: see most recently Ministry of Justice and the Home Office (MOJHO) An Overview of Sexual Offending in England and Wales (London: Ministry of Justice, Home Office and Office for National Statistics, 2013). The potential scale of the problem is further amplified when one considers that the number of reported cases is probably only a fraction of the number of actual incidents in any given year: ibid, ch 2.

3. See eg HMCPSI Report 2012 and Angiolini, above n 1.

4. Dixon, B and Smith, G Laying down the law: the police, the courts and legal accountability (1998) 26 Int'l J Sociol L 419 CrossRefGoogle Scholar; Epp, C Making Rights Real: Activists, Bureaucrats and the Creation of the Legalistic State (Chicago: University of Chicago Press, 2009)CrossRefGoogle Scholar; Harlow, C ‘Damages and human rights’ (2004) NZ L Rev 420; K Horsey ‘Trust in the police? Police negligence, invisible immunity and disadvantaged claimants’ in Richardson, J and Rackley, E (eds) Feminist Perspectives on Tort Law (London: Routledge, 2012) p 80 Google Scholar; Hoyano, L ‘Policing flawed police investigations: unravelling the blanket’ (1999) 62 Mod L Rev 912 Google Scholar; McCulloch, J and Palmer, D Civil Litigation by Citizens against Australian Police between 1994 and 2002 (Canberra: Criminology Research Council, 2005)Google Scholar; Ransley, J, Anderson, J and Prenzler, T ‘Civil litigation against police in Australia: exploring its extent, nature and implications for accountability’ (2007) 40 Austral & NZ J Crim 143Google Scholar; Sheehy, E (ed) Sexual Assault in Canada: Law, Legislation and Women's Activism (Ottawa: University of Ottawa Press, 2012)CrossRefGoogle Scholar; Smith, G ‘Actions for damages against the police and attitudes of claimants’ (2003) 13(4) Policing & Soc'y 413.CrossRefGoogle Scholar

5. Smith, above n 4; McCulloch and Palmer, above n 4; Ransley et al, above n 4.

6. Compare eg R Clayton and H Tomlinson Civil Actions Against the Police (London: Sweet & Maxwell, 3rd edn, 2005) pp 6–17, adopting a sceptical approach to civil actions as a mechanism of police accountability and control, with Epp, above n 4, offering a far more positive assessment of the same; for a summary of the mixed views reflected in the literature, see McCulloch and Palmer, above n 4, pp 84–90 and for analysis of reasons for resorting to litigation, see Smith, above n 4.

7. Epp, above n 4 (focusing on race); Sheehy, above n 4 (highlighting gender, and in particular rape).

8. See eg Clayton and Tomlinson, above n 6, p 15; McCulloch & Palmer, above n 4, p 90 and Smith, above n 4, at 419–420.

9. The existence and content of this public duty is stated by Viscount Cave LC in Glasbrook v Glamorgan CC [1925] AC 270 in the following terms: ‘… there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, for protecting property from criminal injury’ (at 277). See also Michael v Chief Constable of South Wales [2015] UKSC 2 at [29–35] per Lord Toulson.

10. [1989] 1 AC 53.

11. Ibid, per L Keith at 63.

12. See eg Osman v Ferguson [1993] 4 ALL ER 344 (CA); Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24; Van Colle v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] UKHL 50.

13. A rare exception is Swinney v CC Northumbria Polic [1996] 3 All ER 449, in which a duty of care was recognised on the ground that the police had assumed responsibility for the safety of the claimant, a police informer in a murder investigation.

14. [2015] UKSC 2.

15. Ibid, at [48].

16. Ibid. An interesting shift in Michael is the move away from strong reliance on policy to ground the denial of liability in ‘common law principle’ (Lord Toulson at [116]). The formal position now appears to be that the police owe no private law duty of care capable of giving rise to an action in damages in the context of exercising their functions of investigating and suppressing crime unless there has been a representation by the police amounting to a voluntary assumption of responsibility which has been relied upon by the claimant (at [115]).

17. Osman v Ferguson, above n 12.

18. Osman v UK [1998] ECHR 101.

19. Art 6(1) ECHR: ‘… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. The ECtHR decision on this point was widely criticised and in the later case of Z v UK (2002) 34 EHRR 3, the Court acknowledged that its reasoning in Osman was based on an ‘understanding of the law of negligence which has to be reviewed in the light of clarifications subsequently made by the domestic courts and notably the House of Lords’ at [100]. What the court in Osman viewed as an immunity that breached the right of access to the courts and could not be shown to be proportionate, the court in Z viewed as the judicial determination of the extent of application of the duty of care in particular circumstances, giving rise to no Art 6 issue whatsoever.

20. Osman v UK, above n 18, at [116].

21. Z v UK, above n 19.

22. Art 3 ECHR: ‘No one shall be subject to torture or to inhuman or degrading treatment.’

23. See generally A Mowbray The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004) chs 2 and 3.

24. [2008] UKHL 50.

25. This decision was later upheld by the ECtHR in Van Colle v UK (2013) 45 EHRR 23.

26. [2015] UKSC 2.

27. Whether or not on the facts Michael will be deemed to have met the Osman threshold remains to be seen; at least one Court of Appeal judge thought there was no realistic prospect of success (Michael v Chief Constable of South Wales [2012] EWCA Civ 981 per at Davis LJ at [35]); the Supreme Court refrained from commenting on this point.

28. See eg the tragic case of Cassie Hasanovic, settled in early 2016 and reported here: http://www.doughtystreet.co.uk/news/article/sussex-police-settle-human-rights-claim-following-domestic-homicide (accessed 12 September 2016).

29. Mowbray, above n 23, p 15.

30. [2016] QB 161(CA).

31. ‘Plans to scrap Human Rights Act delayed again’ The Guardian 2 December 2015.

32. [2016] QB 161(CA); DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC).

33. Also known as ‘DSD’ and ‘NBV’ in some reports.

34. ‘Lotto lie cabbie drugs and rapes 5 – hunt for spiked bubbly brute’ The Sun 15 February 2008.

35. DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC) at [87].

36. HRA 1998, s 6(1): ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

37. DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC), especially at [241], [298], [312].

38. D v Commissioner of Police for the Metropolis [2016] QB 161(CA).

39. DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC) at [13].

40. Ibid.

41. See text above accompanying nn 10–16.

42. See HRA 1998, s 6 (1) (above n 36) and also s 7(1): ‘A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal’; and s 8(1): ‘In relation to any act … of a public authority which the court finds is … unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.’

43. [1998] ECHR 101.

44. Osman v UK [1998] ECHR 101 at [115]: ‘It must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’ (at [116]).

45. [2001] 2 FLR 612.

46. [2008]

47. [2002] 35 EHRR 19.

48. Edwards v UK [2002] 35 EHRR 19 at [69]. The court then went on to observe ‘the essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life’ (ibid).

49. Edwards v UK [2002] 35 EHRR 19 at [65].

50. DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC) at [214]. In addition to the cases mentioned above, Green J considered the following ECtHR decisions: Menson v UK [2003] 37 EHRR CD220; MC v Bulgaria [2005] 40 EHRR 20; Szula v UK [2007] 44 EHRR SE19; Secic v Croatia [2009] 49 EHRR 408; Ali and Ayse Duran v Turkey App No 42942/08 (8 April 2008); Beganovic v Croatia App No 46423/06 (25 September 2009); Denis Vasilyev v Russia App No 32704/04 (17 December 2009); Milanovic v Serbia App No 44614/07 (14 December 2010); CAS & CS v. Romania App No 26692/05 (20 March 2012); Koky & others v Slovakia App No 13624/03 (12 June 2012); Sizarev v Ukraine App No 17116/04 (17 January 2013).

51. [2005] 40 EHRR 20.

52. Art 8 ECHR: ‘Everyone has the right to respect for his private and family life …’ The right to respect for private life has been interpreted by the ECtHR to include a right to physical integrity and in that sense has been held to encompass sexual violations (X & Y v Netherlands A.91 (1985); 8 EHRR 325).

53. MC v Bulgaria [2005] 40 EHRR 20 at [151]. For a contemporaneous analysis of the scope and potential of MC , see J Conaghan ‘Extending the reach of human rights to encompass victims of rape: MC v Bulgaria’ (2005) 13 Feminist Legal Stud 145.

54. MC v Bulgaria [2005] 40 EHRR 20 at [185].

55. According to Green J in DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC), allegations of crime that were ‘grave’ or ‘serious’ would amount to torture or degrading or inhuman treatment for purposes of triggering the duty and this encompassed allegations of rape and serious sexual assault (at [215]).

56. DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC) at [216]. For a detailed elaboration of Green J's core principles, see [211–224].

57. Ibid, at [216].

58. Ibid, at [213].

59. Ibid, at [223].

60. Ibid, at [224]. Green J also determined that the police duty to investigate covered the entire span of a case from investigation to trial (at [212]); the duty was one of means not results, ie a breach of duty occurred where the conduct of the investigation fell below the requisite standard, even if it did in fact lead to an arrest, charge and conviction (at [217]); the assessment of the efficiency and reasonableness of an investigation should take account of its ‘promptitude’ (at [219]), as well as whether the offender was adequately prosecuted (at [220]); not every failing attracts liability particularly if such a failing does not go to the capability of the investigation to lead to the apprehension and prosecution of an offender (at [221]).

61. Ibid, at [229 (1)].

62. Ibid, at [211].

63. Ibid, at [241].

64. Ibid, at [243].

65. For a detailed analysis of Green J's judgement, see J Conaghan ‘Celebrating Duncan Kennedy's scholarship: a “Crit” analysis of DSD & NBV v Commissioner of Police for the Metropolis’ (2014) 5 Transnat'l Legal Theory 601.

66. DSD & NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (HC) at [227], which includes a summary of the defendant's main submissions.

67. Ibid, at [227–242].

68. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [11].

69. Mr Johnson relies particularly on the ECtHR judgment in Assenov v Bulgaria (1988) 28 EHRR 652, in which the court observes: ‘[Art 3] read in conjunction with the State's general duty under Art 1 … requires by implication that there should be an effective official investigation’ ([102], cited by Laws LJ in D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [13]). As Laws LJ acknowledges, this formulation is also replicated in later cases.

70. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [13–14].

71. Ibid, at [12].

72. Mowbray, above n 23, pp 43–65.

73. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [15].

74. Ibid, at [16].

75. Above n 42.

76. (2002) 34 EHRR 3.

77. See, in particular, D v East Berkshire NHS Trust [2003] EWCA Civ 1151; D v East Berkshire NHS Trust [2005] UKHL 23.

78. Ibid; see also E v Chief Constable of Royal Ulster Constabulary [2008] UKHL 66 (affirming positive obligation on State to protect individuals from infliction by third parties of inhuman or degrading treatment, at [44]).

79. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [23].

80. Ibid, at [25].

81. ‘I have long thought … that needless difficulty has been caused by the treatment in this jurisdiction of Strasbourg cases almost as if they were domestic law’ (ibid, at [25]). Laws LJ's comments notwithstanding, there are repeated examples in the UK case-law of clear judicial recognition that the obligation to take Strasbourg into account requires considerably less than mindless adherence (S Greer and R Slowe ‘The Conservatives’ proposals for a British Bill of Rights: mired in muddle, misconception and misrepresentation?’ (2015) Eur Hum Rts L Rev 370 at 375).

82. The key cases upon which the appellants rely are: R(P) v Secretary of State [2010] QB 317; R(Humberstone) v Legal Services Commission [2011] 1 WLR 1460; cand R(NM) v Secretary of State for Justice [2012] EWCA Civ 1182.

83. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [31–37].

84. [2012] EWCA Civ 1182.

85. Ibid, at [209], cited by Green J in the High Court and then by Laws LJ in the Court of Appeal (D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [34–37]. Allen v CC of Hampshire Constabulary [2013] EWCA Civ 967, another authority upon which the MPS relies, also expressly recognises that the investigative duty extends beyond state complicity: ‘In principle this [investigative] obligation is not limited to cases of ill-treatment by state agents’ (per Gross LJ at [43]).

86. R(P) v Secretary of State [2010] QB 317 at [58].

87. R(NM) v Secretary of State for Justice [2012] EWCA Civ 1182 at [29].

88. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [26–30].

89. Ibid, at [27].

90. [2008] UKHL 50.

91. Ibid, at [138].

92. Much here hangs on how ‘rights’ are conceived and understood. For an analysis of the role of rights in tortious obligations, see R Stevens Torts and Rights (Oxford: Oxford University Press, 2007).Google ScholarPubMed

93. Steele, J ‘Damages in tort and under the Human Rights Act: remedial or functional separation?’ (2008) 67(3) Camb L J 606 at 607.CrossRefGoogle Scholar

94. Honore, T Responsibility and Fault (Oxford: Hart Publishing, 1999) p 68.Google Scholar

95. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [30].

96. Ibid.

97. This point is further developed in Conaghan, above n 65.

98. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [49].

99. Ibid, at [50]; see also [46].

100. Ibid, at [45].

101. Ibid, at [62]. Commenting in particular on Mr Johnson's efforts to draw a categorical line between Art 2 and 3 cases, Laws LJ remarks that ‘the weakness of Mr Johnson's argument is that it seeks to elevate potential practical differences into rigid differences of principle’ (at [53]).

102. Ibid, at [11].

103. Ibid, at [65].

104. Ibid, at [67].

105. Ibid, at [68].

106. Ibid, at [38].

107. See text above accompanying nn 83–89.

108. Ms Kaufmann actually puts these arguments in relation to ground (b) above, but they apply generally to the issue of scope and application of the investigative duty (or as Ms Kaufmann maintains, duties). Laws LJ summarises these arguments in D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [38–40].

109. [2013] EWCA Civ 967.

110. Mr Johnson relied in particular on the comments of Gross LJ in Allen v Chief Constable of Hampshire Constabulary [2013] EWCA Civ 967 at [43, 44] considered by Laws LJ in D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [59–61].

111. Ibid.

112. Ibid, at [60–61].

113. For example, at [43], Gross LJ's text suggests an approach to the application of the duty to investigate that is graduated and contextual; but at [44] he quotes with approval from the judgment of Rix LJ in R(AM) v Secretary of State for the Home Department [2009] EWCA Civ 219 that: ‘In the absence of state complicity the essential obligation is only to provide a system under which civil wrongs may be remedied in litigation or criminal wrongs investigated or prosecuted.’ (ibid, at [29], cited by Gross LJ in Allen v Chief Constable of Hampshire Constabulary [2013] EWCA Civ 967 at [44]. This is essentially the claim relied upon by Mr Johnson QC.

114. Ibid, at [70–77].

115. A number of other jurisdictions have recognised a police duty to protect and/or investigate in relation to botched rape/sexual assault investigations relying on tort law and/or State-based constitutional rights. See eg Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 OR (3d) 487 (Ont Ct (gen Div)) (right to sue in negligence and under the Canadian Charter of Human Rights and Fundamental Freedoms); Carmichele v Ministers of |Safety and Security, Justice and Constitutional Development 2001 (4) SA 938 (CC) and Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) (police and prosecutors’ failure to protect could constitute a breach of State obligations to uphold rights enshrined in the South African Constitution); and most recently, LM v Commissioner of An Garda Sίochάna and others [2015] IESC 81 (Supreme Court allowed appeal against successful striking action and directed that claims brought by rape victims against the police based on negligence and/or violation of human rights should proceed to trial).

116. Conservative Party Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain's Human Rights Law (2014), available at https://www.conservatives.com/~/media/Files/Downloadable%20Files/HUMAN_RIGHTS.pdf (accessed 11 April 2016).

117. Ibid.

118. Copy of Supreme Court order kindly provided by Jeremy Johnson QC.

119. See eg MC v Bulgaria [2005] 40 EHRR 20.

120. See summary of respondents’ arguments in D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at 172.

121. Ibid, at [42].

122. Ibid, at [244–284] (systemic) and [285–298] (operational).

123. See text above accompanying n 99.

124. D v Commissioner of Police for the Metropolis [2016] QB 161(CA) at [50].

125. See above, nn 1 and 2.

126. Michael v Chief Constable of South Wales, [2015] UKSC 2.

127. In his judgment Lord Toulson, who gave the majority judgment, makes repeated reference to Ms Monaghan's submissions; ibid, at [17–29]. He also directly mentions a recent HMIC report documenting police failures in a domestic violence context: Everyone's Business: Improving the Police Response to Domestic Abuse (London: HMIC, 2014).

128. Information provided by Phillippa Kaufmann QC, 7 April 2016.

129. For a an elaboration of these concerns, see in particular judgment of Lord Steyn in Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 at [30].

130. Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53 and above, n 11.

131. Lord Steyn in Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 is among the few judges to acknowledge that the liability fears expressed in Hill are based on assumptions that are socially contentious, although he goes on to endorse (at [30]) a narrow articulation of the policy concerns first aired in Hill (see further above n 11).

132. S Tofaris and S Steel ‘Police liability in negligence for failure to prevent crime: time for a rethink’, University of Cambridge Legal Studies Research Paper Series, No 39/2014, available at SSRN: http://ssrn.com/abstract=2469532 or 10.2139/ssrn.2469532 (accessed 12 September 2016).

133. Halliday, S, Ilan, J and Scott, C ‘The public management of liability risks’ (2011) 31 Oxford J Legal Stud 527 at 527CrossRefGoogle Scholar.

134. See above, nn 1 and 2.

135. Angiolini, above, n 1, para 8 (my emphasis). As Baroness Stern succinctly put it five years previously: ‘The policies are right; the implementation is patchy and must be improved’ (Stern, above n 1, p 8).

136. Smith v Chief Constable of Sussex Police [2008] UKHL 50.

137. T Bingham ‘The uses of tort’ (2010) 1 J Eur Tort L 1.

138. Ibid, p 12.

139. Michael v Chief Constable of South Wales, [2015] UKSC 2 at [198].

140. Ibid, at [121]. For a robust critical assessment of judicial arguments against the imposition of a duty of care, see Tofaris and Steel, above n 132.

141. Although it must not be forgotten that the claim under Art 2 ECHR and the HRA has been allowed to proceed; see above n 27.

142. (1998), 39 OR (3d) 487 (Ont Ct (gen Div)).

143. S Dewart ‘Jane Doe v Toronto Commissioners of Police: a view from the Bar’ in Sheehy, n 4 above, p 50.

144. See further Epp, above n 4 and also Halliday, S, Ilan, J and Scott, C ‘Street-level tort law: the bureaucratic justice of liability decision-making’ (2012) 75 Mod L Rev 347CrossRefGoogle Scholar.

145. See eg Weinrib, E The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)Google Scholar; Beever, A Rediscovering the Law of Negligence (Oxford: Hart Publishing, 2007).Google Scholar; Stevens, above n 92

146. Bagshawe, R ‘Tort design and human rights thinking’ in D, Hoffman, (ed) The Impact of the UK Human Rights Act on Private Law (Cambridge: Cambridge University Press, 2011) p 110 CrossRefGoogle Scholar; bF Du Bois ‘Human rights and the tort liability of public authorities’ (2011) 127 L Q Rev 589.

147. See eg C McIvor ‘Getting defensive about police negligence: the Hill principle, the Human Rights Act and the House of Lords’ (2010) Camb L J 133. In contrast to the English courts, the South African Constitutional Court, in a not dissimilar context (suit against police and prosecutors for failure to prevent a brutal assault carried out by a serious sexual predator while released on bail), stressed the obligation to develop the common law in ways that ‘reflect the spirit, purport and objects of the [South African] Bill of Rights’: Carmichele v Ministers of Safety and Security, Justice and Constitutional Development 2001 (4) SA 938 (CC) at [36].

148. See text accompanying nn 95–97 above.