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

The Court of Appeal dismissed the applicant's challenge to the lawfulness of the prison's investigation into an alleged sexual assault, holding that the procedural investigative obligation under Article 3 ECHR is fact-sensitive and that, on the facts, the investigation and the available avenues of redress were proportionate to the seriousness of the incident. The court applied and discussed the relevant Strasbourg and domestic authorities on the scope of the Article 3 investigative duty and considered Prison Service Order 1300 (PSO 1300) and its distinction between simple and formal investigations. The judge's findings that there was no substantive breach of the preventive obligation, that the investigation was prompt, that the complainant had access to assistance (his father and the Howard League), and that there was no arguable systemic failing were upheld. The court also rejected the submission that a formal PSO 1300 investigation or appointment of a responsible adult was required in the circumstances.

This is an appeal by a detained prisoner (NM) complaining of a procedural breach of Article 3 ECHR arising from the prison's handling of an alleged sexual assault by another prisoner. NM had a recorded learning disability and previously alleged sexual assaults in custody. The incident at HMP Whatton occurred on 6 June 2010. The prison recorded the report, placed the alleged perpetrator under Violence Reduction Strategy surveillance, opened an adjudication which later found the perpetrator guilty, and engaged the police (paperwork was delayed but the police met NM and respected his wish not to proceed). The Howard League acted for NM and earlier complaints had led to a PPO report about events at a previous establishment.

The proceedings began as judicial review seeking declarations of substantive and procedural Article 3 breaches and discrimination claims. The lower judge (HHJ Mackie QC) rejected the substantive preventive duty claim and refused the procedural investigative claim, finding the investigation proportionate and within the range of reasonable options, and noting remedies available through civil proceedings, criminal investigation and the Ombudsman. Permission to apply for judicial review had been granted earlier. Other discrimination claims were transferred or subsequently withdrawn so the only live issue on appeal was the Article 3 investigative obligation.

The Court of Appeal (Rix LJ giving the lead judgment) framed the issues as whether Article 3 was engaged, the appropriate scope and form of any Article 3 investigation (including whether PSO 1300 required a formal investigation), whether NM had effectively participated in the investigation without an appropriate adult, and whether the Disability Discrimination Act 1995 (and related instruments) altered the Article 3 analysis. The court reviewed recent authorities on the Article 3 investigative duty and emphasised the fact-sensitive nature of that duty, the difference in emphasis between Articles 2 and 3, and the relevance of alternative remedies (civil, criminal, Ombudsman).

The court concluded that Article 3 did not require a more extensive inquiry in the circumstances: the incident was a single assault by a third party, not life-threatening, there was no evidence of state complicity, the prison took prompt steps (surveillance, adjudication, police referral), the complainant had support, and any procedural shortcomings (delay in paperwork, lack of awareness of NM's disability by some officers, a light adjudication penalty) did not render the investigative process disproportionate or ineffective. The court therefore dismissed the appeal. The judgment also records the court's wider concern for NM's long period in custody and notes that he had been assessed as suitable for transfer to an open prison.

The appeal was dismissed. The Court of Appeal held that the Article 3 investigative obligation is fact-sensitive and, on these facts — a single non-life-threatening assault by a third party in prison, prompt local investigation, available civil and criminal remedies and Ombudsman oversight, and assistance available to the complainant — the investigation carried out (and options available) were proportionate. There was no requirement to order a formal PSO 1300 investigation or to find a procedural Article 3 breach.

Appeal from the Administrative Court (HHJ Mackie QC, CO/13188/2010). Permission to apply for judicial review was granted by Ms Geraldine Andrews QC on 28 January 2011. The appeal was heard in the Court of Appeal and decided by Rix LJ (with Laws LJ and Lewison LJ) on 12 September 2012 (neutral citation [2012] EWCA Civ 1182).