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

An investigation into ill-treatment contrary to European Convention on Human Rights article 3 is not automatically required in every prison-assault case. The question is fact-sensitive. A breach arises only if the investigation conducted or otherwise available within the State’s range of methods is not proportionate to the incident’s seriousness and idiosyncrasies.

The availability of civil proceedings, criminal investigation and an Ombudsman inquiry may be material. A formal investigation under Prison Service Order 1300 is required only where its seriousness criteria are met. A prisoner’s vulnerability must be considered, but the absence of a responsible adult does not itself establish ineffective participation or an article 3 breach.

NM, a prisoner with learning difficulties, was sexually assaulted by another prisoner during association at HMP Whatton. Prison staff promptly interviewed both prisoners, placed the alleged assailant under surveillance, referred the matter to the police at NM’s initial request, and pursued an internal adjudication after NM later declined police involvement. The other prisoner admitted the assault and was found guilty.

HHJ Mackie QC in the Administrative Court rejected NM’s judicial-review claim that the Secretary of State had breached the investigative obligation under article 3. NM appealed only that issue. He contended that the investigation should have sought wider lessons, taken the form of a formal investigation under Prison Service Order 1300, and involved a responsible adult because of his learning disability.

The central issue was whether the prison’s investigation and the investigative remedies available to NM complied with article 3.

1. The appeal was dismissed. Rix LJ, with whom Lewison and Laws LJJ agreed, held that the judge had been entitled to find no breach of the investigative obligation under article 3.

2. The court did not decide whether the obligation was triggered where a third-party assault occurred in prison against a vulnerable prisoner without State complicity and without a breach of the preventative obligation. That issue was unnecessary because, even assuming an investigative obligation, the available response was adequate.

3. Article 3 has a different investigative emphasis from article 2. An inquiry is not mandatory whenever article 3 may be engaged. The assessment is fact-sensitive and must take account of alternative means of establishing facts, including civil proceedings, criminal investigation and an Ombudsman inquiry. The governing question was whether the investigation conducted and available, within the State’s range of investigative methods, was proportionate to the seriousness and idiosyncrasies of the incident.

4. The assault was unpleasant but was not serious in its consequences, involved no bodily injury or aggravating feature, and disclosed no systemic failure. The facts were promptly established. The prison accepted NM’s account, put F under surveillance, respected NM’s changing position on police involvement, and adjudicated F’s admitted misconduct. The identified defects—the officers’ lack of awareness of NM’s disability, delay in the police paperwork, and an unduly light penalty—were apparent within the process and did not show an inadequate article 3 investigation.

5. Prison Service Order 1300 did not require a formal investigation. Its reference to sexual harassment or discrimination did not make every incident with a sexual element subject to a formal investigation. Read in context, the Order reserved that process for allegations or consequences of sufficient seriousness.

6. NM’s learning difficulties required sensitivity. Although the officers should have known of them and might then have offered a responsible adult, his participation was effective on the facts. He made a clear and accepted account, had support from his father and the Howard League, and no real prospect of misunderstanding or injustice was shown.

• Court of Appeal (Civil Division) Dismissed NM’s appeal against the rejection of his article 3 investigative claim: [2012] EWCA Civ 1182.
• Administrative Court HHJ Mackie QC rejected the judicial-review claim. The lower-court citation is not stated in the judgment.