Worboys and Victim Rights: In the Land of ‘Never-Before’

In the post below, the Worboys series of cases is explored with emphasis on the human rights claim against the police brought by two of his victims. The particulars and importance of the decisions are briefly explored followed by a commentary on the wider implications of the case for victims’ rights and the criminal justice system as a whole.

“It was not a lack of resources that failed these women. It was a lack of belief [among police officers].”

This was the observation made by the victims’ solicitor, Harriet Wistrich, on the events of the Worboys case which summarises a major part of the failings involved. Worboys has been one of the rather ground-breaking cases concerning the police and the Parole Board while raising several wider implications for the stakeholders of crime, i.e. offenders, victims and the community. It further remains a prime demonstration of the interplay between the place of victims in the justice process and their human rights. The court decisions may be viewed as a response to the later victim protection movements and the need for a reorientation of the system’s focus and priorities.

What are the Worboys cases all about?

This case involves a complex series of facts and decisions that culminate in the questions of whether John Worboys, the ‘Black cab rapist’, should have been released as the Parole Board had advised, and how the human rights of the victims were violated in the course of the investigations made by police officers. The relevant sexual offences committed date back to an 18-month period between 2006 and 2008 with a total of 19 convictions and 12 victims; involving among others several counts of rape and administering a substance with intent. Following his minimum term of imprisonment of 8 years, Worboys was eligible to be released if the Parole Board was satisfied that his incarceration was no longer necessary for the protection of the public. The news of his release in 2016 was not welcomed by the public, the victims or the Mayor of London who thereby sought judicial review of the Parole Board’s decision. Another important aspect here was the legality of Rule 25 of the Parole Board Rules 2016 which holds that all decisions of the Board shall be taken in private with no obligation to publish the reasons behind them. The High Court judgment recognises the unique character of this case as:

“never before has a decision to direct the release of a prisoner been challenged […] never before has judicial review been mounted by anyone other than a party to the proceedings [… and] there has never previously been a challenge to Rule 25” [3].

An indeed notable side of this series of cases involves the earlier litigation against the Metropolitan Police on Article 3 grounds as instigated by two of Worboys’ victims. ‘DSD’ and ‘NBV’ successfully argued that by not investigating their complaints, the police had effectively breached their obligations under Article 3 of the European Convention on Human Rights, i.e. prohibition of torture, inhuman or degrading treatment. Worboys’ offences and behaviour towards the victims were indeed found to amount to such a treatment which meant that the police were now under the positive obligation to investigate the victims’ allegations. However, some serious failings on the part of the officers were recorded in the judgment, such as insufficient evidence gathering from witnesses and CCTV material. This conduct constituted a breach of the obligations under Article 3 and thus lead to a violation of the victims’ relevant rights under the Convention.

Justice for victims of sexual violence?

There has been particular media and public interest in the implications of the judgment which appear both far-reaching for the system and promising for victims of crime. The discussion on the legality of Rule 25 is symptomatic of the need for transparency across the board of the justice process. It is in the public interest that all three stakeholders of a crime be involved in the investigation, punishment and rehabilitation processes. Victim participation has long been ignored despite the pressures from restorative and community justice advocates, a situation which further puts the needs and rights of victims in jeopardy.

This demand for a more transparent and inclusive system echoes the centrality of human rights as a mechanism of accountability. As this case has demonstrated, a due process model does not only ensure the protection of victims and their rights, but also acknowledges the possibility of human error without sacrificing scrutiny in the name of expediency. Indeed, the dossier that reached the Parole Board prior to their decision to release did not include all the relevant details, convictions and judgments of Worboys’ past cases. While such instances are telling of the greater care required in the examination of individual cases, they more importantly point towards the need for more efficient communication channels among the different agencies. Protection of the public and respect for human rights remain dependent on the pillars of transparency and communication.

The momenta of accountability and victim protection should not in any way mean the adoption of defensive attitudes on the part of police officers. The common law duty of care has more often than not been concerned with the arguments of ‘floodgates’ and development of defensive attitudes in successful claims against doctors, officers and public authorities in general. In the instance of Worboys and similar future cases, however, the court in Commissioner of Police of the Metropolis v DSD [2018] UKSC 11 clarify that the exemption police officers enjoy under the common law duty of care does not apply in claims under the Human Rights Act 1998 [paras 67–69]. This underlines the differences in the two bases of liability and further recognises the seriousness of human rights violations as a result of individual, operational and systemic failings.

This very recognition and the decision as a whole present a sort of triumph for the rights of victims of crime. As far as the Article 3 prohibition is concerned, 1COR Barrister Matthew Flinn interestingly notes that “until this claim it had never been authoritatively and finally confirmed in the UK courts that the duty could also arise in respect of inhuman/degrading conduct perpetrated by a private citizen.” The judgment appears keen to extent the remit of obligations of public authorities under the ECHR and the HRA 1998 to a responsibility for acts committed by non-public authorities. The court though was cautious to clarify that each case turns on its own facts, with Lord Kerr stating that “errors in investigation, to give rise to a breach of article 3, must be egregious and significant”.

What is equally triumphant in the Worboys case law though is that its implications go beyond the walls of the police station. In both lines of judgments — Parole Board decision’s judicial review and victims’ action against the Metropolitan Police, the courts refer to a series of practitioners and agencies. These range from the failings of the police and the Parole Board’s transparency issue to the opinions of psychiatrists and probation officers on the prospect of release. In the first instance, this echoes the aforementioned need for efficient communication channels among the different practitioners, and that rehabilitation of offenders and protection of victims are multi-agency enterprises. More controversially, this series of cases remind that the police are only one of the agencies involved in the process: Similar failings might as well have been made by and placed under the spotlight a different criminal justice agency.

The media and public interest here cannot but remind of the similar reaction to the Probation Service’s decisions in the Rice case back in 2005. In that case again ‘systemic faults’ were considered by many as the main reason behind the murder of Naomi Bryant, rather than the probation service’s alleged prioritisation of offender rights. Although concerned with different set of rights, the two cases do exhibit how the practitioners knowing the entirety of the offender’s situation is not only in the interest of their rehabilitation, but also in the interest of public and victim protection.

As much as the Worboys decisions represent a promising step towards justice for victims of crime, it is also a cautionary tale for the state of the criminal justice system. Mistrust towards victims of sexual violence by criminal justice and other agencies has been a troubling reality whose status the Worboys case has to some extent raised. Recognising the behaviour involved in sexual offences as one that can amount to violation of the victim’s human rights sets a commendable precedent that appreciates the level of victimisation involved. On the other hand, many of the challenges the Worboys, Rice and other cases have brought to light remain persistent. A probation officer commenting on these and the recent part-privatisation of the service admits how

“Probation officers used to be able to take the time to understand the individual and be responsive to their needs. […] Today the job is about fire-fighting, to get assessments done and targets hit. We just have to hope that nothing goes wrong. If my workload is anything to go by, Worboys’ supervision will be minimal. He will be on licence for at least 10 years — which in theory means that, if he puts a foot wrong, he’ll go straight back to prison — but how much rehabilitation will he get in that time?”

It follows that Worboys is yet another instance of the need for a ‘culture change’ in the criminal justice system. Participation, protection and information provision for victims restores the power balance the aftermath of crime has distorted. A working relationship between practitioner and offender as well as between practitioner and victim makes the former aware of the needs and circumstances of the latter thereby avoiding errors in assessment and support. These in turn collectively reinstate the centrality of human rights as a form of accountability and guidance towards a more participatory and transparent justice system.

Kyros Hadjisergis is a PhD Researcher in Law at the University of Wolverhampton and his research interests focus on Criminal Justice and Human Rights. Kyros is also teaching across the areas of Criminology, Criminal Law and Justice, and is a Research Assistant in the Institute for Community Research and Development.

ICRD is based at @wlv_uni, we care about social justice, positive change, evidence-informed policy and practice, working in partnership to improve lives.