NM, R (on the application of) v Secretary of State for Justice

An Article 3 investigative duty is fact-sensitive. It does not invariably require an independent public inquiry where other criminal, civil, disciplinary or ombudsman procedures are available. The court must assess the seriousness and circumstances of the incident, the evidence available, the complainant’s access to the process and the practical consequences of requiring an inquiry.

Prison Service Orders provide a range of investigative routes. The question is whether the decision to use a different route was unlawful, rather than whether every provision of a particular Order was followed. A vulnerable complainant is entitled to procedural fairness, but its practical content depends on the circumstances and is less extensive where the complainant faces no sanction or criticism.

NM, a prisoner with significant learning difficulties, sought judicial review of the Secretary of State’s decision not to commission an investigation under Prison Service Order 1300 into his alleged sexual assault by another prisoner. The prison had investigated the incident through fact-finding, an adjudication, referral to the police and the Violence Reduction Strategy.

NM alleged breaches of the Prison Service Orders and of the investigative obligation under Article 3 of the Convention. His complaints concerning disability discrimination, reasonable adjustments and Article 8 were transferred to the County Court. The central issues were whether the prison had acted unlawfully by choosing an alternative investigative route and whether the procedures used were sufficiently fair and effective.

1. The application was refused. The decision to investigate the incident through fact-finding, adjudication, police referral and the Violence Reduction Strategy, rather than under Prison Service Order 1300, was lawful. Prison Service Order 1300 was one of a range of available investigative methods. The question was whether choosing another route was unlawful, not whether the detailed provisions of that Order had been followed.
2. NM was entitled to procedural fairness. The extent of that fairness depended on the nature of the inquiry and its consequences. As the complainant and alleged victim, he faced no sanction or adverse criticism, so the practical requirements were less extensive than those applicable to an accused person. The prison’s failure to ensure that unit officers knew of his learning disability was a defect, but it caused no real prospect of misunderstanding or injustice on the facts.
3. Article 3 may require an effective official investigation where credible evidence suggests treatment sufficiently serious to engage the Article. The investigation must be capable of identifying and punishing those responsible, practically independent where appropriate, effective, thorough and accessible to the complainant. Those requirements are fact-sensitive.
4. An Article 3 inquiry is not mandatory in every case. The court must consider the availability of other means of establishing the facts, including criminal, civil, disciplinary and ombudsman procedures, together with the seriousness of the incident, the evidence, the existence of injury or aggravating features, and the practical and resource implications of a further inquiry.
5. On the facts, the essential account was accepted, the alleged assailant ultimately admitted the assault, there was no bodily injury or aggravating feature, and the claimant had chosen not to pursue police involvement. The case was materially different from cases involving serious injury, numerous potential victims or alleged direct state infringement. The error in correspondence describing the process as a simple PSO 1300 investigation was irrelevant.

The court directed the parties to address the claimant’s continuing welfare and disability-related concerns at hand down.

First-instance judicial review proceedings in the Administrative Court. The application was refused.