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

The claimant, a prisoner with significant learning difficulties, sought judicial review of the decision not to conduct a Prison Service Order (PSO) 1300 investigation into an alleged sexual assault on 6 June 2010 and complained of continuing failures to make reasonable adjustments under disability policy (PSO 2855) and of breaches of Article 3 of the European Convention on Human Rights. The prison dealt with the matter by taking a Violence Reduction Strategy (VRS) route, opening an adjudication against the alleged assailant (who later admitted the assault), and referring the matter to the police. The court held that PSO 1300 is only one of several investigative options, that managers may lawfully decide to investigate by other means where reasonable, and that the decision to pursue the VRS/adjudication/police route was within the range of reasonable responses. The court accepted that the claimant’s disability should have been more clearly known to wing staff but found no real prospect that the omission caused an injustice such as would require the compulsory PSO 1300 investigatory route or an Article 3 inquiry. The application for judicial review was refused.

The claimant, NM, was allegedly sexually assaulted in his cell on 6 June 2010 by another prisoner (F). NM, who has a documented learning disability, challenged the Secretary of State's decision not to carry out an investigation under PSO 1300 and complained of ongoing failures to make reasonable adjustments under PSO 2855 and of inadequate protection in custody, invoking Article 3 ECHR.

The claimant sought judicial review of the defendant's decision of 5 October 2010 declining a formal PSO 1300 inquiry and relied on the prison's prior history (including an Ombudsman's findings following a 2007 incident), the nature of the alleged offence (sexual), and the claimant's vulnerability due to learning difficulties. The complaint encompassed both procedural defects in the handling of the allegation (delay in police referral, investigators' failure to involve an appropriate adult, problems with paperwork and communication of adjudication outcomes) and substantive failure to learn lessons and make reasonable adjustments.

The court set out the legal framework: PSO 1300 (investigations), PSO 2000 (adjudications and police referral guidance), PSO 2855 (prisoners with disabilities) and the Article 3 investigatory obligations established in authorities cited by the parties. The court framed the issues as whether the prison's decision to use alternative procedures to PSO 1300 was unlawful, whether procedural fairness and the claimant's rights under PSO 1300 and Article 3 were breached (including whether an appropriate adult should have been involved), and whether the cumulative facts required an Article 3 inquiry.

Applying the PSOs and Article 3 principles, the court held that PSO 1300 is one option among a range of reasonable investigative responses and does not mandate a formal inquiry in every serious allegation. The VRS, adjudication (in which F eventually admitted the assault) and referral to police were lawful investigative routes. The court found that although the prison should have ensured wing officers were aware of NM's learning disability, there was no realistic prospect that the involvement of an appropriate adult at the outset would have produced material additional evidence or altered NM's decision about police involvement. The court emphasised the fact-sensitive nature of Article 3 investigatory obligations and the need to take account of resource and practicability considerations. Given the evidence (no physical injury, no third-party witnesses, acceptance of NM's account and eventual admission by F), the choice to investigate by the route taken was within the range of reasonable responses and did not breach Article 3. The judicial review application was therefore refused. The court also directed the parties to address outstanding concerns about the claimant's management and disability support by discussion before the hand-down of judgment.

The application for judicial review is refused. The court held that a PSO 1300 investigation is only one investigatory option and the decision to investigate by the VRS/adjudication route, with police referral, was within the range of reasonable responses. Although the claimant's learning disability should have been better communicated to wing staff, there was no real prospect that absence of an appropriate adult or a formal PSO 1300 inquiry would have changed the outcome or was required to satisfy Article 3 investigatory obligations.

First-instance Administrative Court: permission to apply for judicial review was granted by Miss Geraldine Andrews QC on 28 January 2011. Application lodged 23 December 2010; hearing held 18–19 May 2011; judgment delivered 12 July 2011. No prior appellate history was recorded in the judgment.