Mlia & Anor v Chief Constable of Hampshire Police

The discretion under section 7(5)(b) of the Human Rights Act 1998 is broad. The court must consider all the circumstances and decide whether extending the one-year limitation period is equitable. It should avoid rigid rules about the factors or their relative weight. Relevant considerations may include the length and reasons for delay, the parties’ knowledge, prejudice caused by missing evidence, the merits, and the statutory policy favouring prompt resolution of claims against public authorities.

For Article 3, the investigative duty may extend to serious conduct by private individuals. The assessment is fact-sensitive and allows the state a margin of discretion. On the facts, the investigation met the Article 3 standard, even assuming the Convention applied.

The claimants alleged that Hampshire Police inadequately investigated threats, harassment, assaults and criminal damage by the first claimant’s former partner in 2005, and failed adequately to protect both claimants. They relied on Articles 3, 8 and 14 of the Convention and section 7 of the Human Rights Act 1998.

The claim was issued on 12 May 2015, more than eight years after the primary one-year limitation period had expired. The principal issues were whether it was equitable to extend time and, if so, whether Articles 3 or 8 imposed an investigative duty which the police had breached.

1. Limitation. The claim was dismissed as out of time. Section 7(5)(b) confers a broad discretion. The court must examine all relevant circumstances and attach such weight as is appropriate in the particular case. It should not impose a fixed list of factors or a predetermined hierarchy of weight. The approach in Dunn v Parole Board [2009] 1 WLR 728 was followed.
2. The relevant delay was approximately seven and a half years after expiry of the primary period. The claimants knew of their principal grievances for many years and had sufficient knowledge to seek legal advice. They were capable of pursuing other legal and administrative procedures. The delay also caused evidential prejudice because relevant records had been destroyed or were unavailable. The claimants had not established a strong Convention claim. Taken together, these considerations made an extension inequitable.
3. Convention duties. Article 3 may impose a duty to investigate and protect against inhuman or degrading conduct by private individuals. The inquiry concerns the overall nature of the state’s investigative response, and the state enjoys a margin of discretion. The intensity of the duty operates on a fact-sensitive sliding scale. Civil remedies and other features of the legal system may be relevant.
4. The court doubted whether the allegations reached the minimum seriousness required to engage Article 3, but proceeded on the assumption that Article 3 applied. Even assuming policy breaches and an inappropriate disposal decision on 10 August 2005, the investigation viewed as a whole remained within the state’s margin of discretion and met the Article 3 standard. Article 8 imposed no greater investigative duty where Article 3 applied.
5. The action was therefore dismissed. In any event, it would have been dismissed on the merits.