CJ & Ors v The Chief Constable of Wiltshire Police

Public authorities are generally not liable in negligence for failing to prevent harm caused by a third party. The distinction between making matters worse and failing to confer a benefit remains fundamental. Describing omissions as positive decisions does not create a duty of care. A closer connection, such as assumption of responsibility or critical involvement in the activity causing harm, is required.

The Article 3 investigative duty under the Human Rights Act 1998 arises where the investigation concerns conduct engaging Article 3 and known to do so. It is not retrospectively imposed on an earlier investigation into less serious conduct merely because proper investigation might have prevented later Article 3 ill-treatment. The claims were therefore dismissed.

Five child victims of sexual abuse by MP brought claims against Wiltshire Police in negligence and under Article 3 ECHR. They alleged that the police had failed properly to investigate indecent images found on a laptop in December 2012, identify MP as the person responsible, record relevant intelligence, and prevent his later access to children.

The negligence claims concerned liability for harm caused by a third party. The Article 3 claims concerned whether the earlier investigation was subject to the Convention investigative duty, whether the police failures were sufficiently serious, and whether they caused the loss of a real prospect of preventing or mitigating the abuse.

1. Limitation. The court extended time under section 7(5)(b) of the Human Rights Act 1998 to the dates on which the claims were issued. The claimants’ minority, the late availability of material information, the absence of evidential prejudice, the need to coordinate legal advice, and the seriousness of the allegations made an extension equitable. The court rejected any general rule that the one-year period begins on the date of knowledge.
2. Negligence. The police failures were causative in fact: proper investigation would probably have identified MP, affected his DBS checks and prevented his access to the children. They nevertheless constituted failures to confer a benefit rather than acts making matters worse. Retaining an investigation, closing its record, and failing to pursue it were omissions in substance. Rushbond PLC v The JS Design Partnership LLP was distinguished because the defendant there had positively disabled security and facilitated entry. The claims therefore fell within the ordinary rule excluding liability for omissions causing third-party harm. The supposed exceptions based on assumption of responsibility, control, or status did not apply.
3. Article 3. The sexual abuse met the Article 3 seriousness threshold and the claimants were victims for section 7 purposes. However, the 2012 laptop investigation was separate from the Article 3 investigation opened after the first report of sexual abuse in April 2015. It was never transformed into an Article 3 investigation by later events or by the subsequent amalgamation of enquiries. The investigative duty could not be imposed retrospectively on an investigation into conduct which did not itself engage Article 3. The claimants could not rely on the Article 3 rights of children depicted in the images.
4. The failures after receipt of the HTCU report were egregious, but the earlier failures were culpable rather than egregious. The claims under negligence and Article 3 were dismissed, with judgment for the defendant.