Mere faults in prison investigation does not breach Article 3 rules Court of Appeal

14 September 2012 by

R (NM) Secretary v of State for Justice [2012] EWCA Civ 1182 – read judgment

The Court of Appeal has ruled that a prison had conducted an adequate investigation into a sexual assault on a prisoner with learning disabilities and this complied with the prison’s investigative obligation under Article 3  of the European Convention on Human Rights. See our post on the decision below here for the background facts.

Briefly, instead of a formal investigation, the matter was investigated by prison officers under the prison’s violence reduction strategy. The other prisoner (F) admitted assaulting the appellant. But the Secretary of State refused a PSO 1300 formal investigation, asserting that a sufficient investigation had taken place. Judicial review of this refusal was dismissed, although the judge noted that the appellant’s disability had been overlooked as the investigating officers were unaware of it and that the prison’s disability policy should have led to the appointment of an appropriate adult for him. Nevertheless HHJ Mackie QC concluded that the investigation had been reasonable and did not breach Article 3 or PSO 1300.

In this appeal it was submitted that the judge erred in concluding that the prison’s investigation complied with Article 3.

The Court of Appeal’s judgment

The appeal was dismissed. HHJ Mackie QC had been right to conclude that the investigation had not been flawed. The incident, although unpleasant, was not a serious one and no systemic failure had occurred. The opportunities for learning lessons were also absent. The appellant had been in touch with responsible officers and higher management almost immediately after his complaint to his father about the incident and therefore sufficient safeguards had been in place, in particular after the Howard League for Penal Reform had been involved.  While there were faults in the investigation, including the investigating officers’ lack of knowledge about the prisoner’s disability and that the prison’s disability policy should have led to the appointment of an appropriate adult for him, he was at all times able to consult his father and the penal reform charity and he could have, if he wished, brought civil proceedings against the state or criminal proceedings against F.

There had been no neglect by the state of its Article 3 since breach of the investigative obligation under that provision would only occur where the investigation conducted was not proportionate to the seriousness and idiosyncrasies of the incident. Rix LJ, giving the leading judgment, rejected “any suggestion that the court is required, or even permitted, to go through the statutory remedies for discrimination as though that issue was before the court, when it is not.”

I bear in mind the passages which have been cited to us from the UN Convention on the Rights of Persons with Disabilities (articles 9(1), 15(2) and 16(3)), but in my judgment they do not take the matter any further. I have no reason to think that, in a situation where there is and can be no complaint in this court that the state has abused its preventative obligations, and the facts regarding its investigative obligation are as set out by the judge and in this judgment, there was any breach by the state pursuant to article 3 arising out of NM’s vulnerabilities

In his view this was the sort of fact-sensitive context where respect must be accorded to the careful findings and conclusions of the judge.

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  1. So often imprisonment creates more problems than it solves, but society has to be protected from wrongdoers.

    Sadly, though many may commit offences through naivete, or ignorance, neither can be an excuse for behaviour that causes harm.

    That said, I believe much could, and should, be done to rehabilitate first offenders where prison might become the training ground for future habitual offenders.

    While none of us should be seeking excuses for those proved guilty of causing harm within our society, we must all accept there are two sides to every story, and ensure that both are given an equal hearing.

  2. Tim says:

    It seems that the UK authorities have a dreadful, dismissive attitude to disabled people. Can you imagine if a young girl or child was sexually abused and the incident was described as ‘although unpleasant, [it] was not a serious one’?

    Apparently, according to the CA, because it is “just” a prisoner with learning disabilities, it is all no big deal.

    Owing to the heightened vulnerability of the victim, I would say that the opposite is true and that the failure to take the incident fully seriously is a big deal indeed.

  3. Jon says:


    I’m not sure where you get the impression that NM was in prison for “breaking one of the 2000 plus new laws brought in the last 12 years”? The judgment states:

    “when he [NM] was 19, [he] was sentenced to indefinite detention for public protection with a minimum term of fifteen months. He had been convicted of 2 counts of sexual activity with a child and of arson (of a motorcar), together with further offences while on bail of destroying or damaging property, burglary, theft and witness intimidation.”

    I’m pretty sure all of those have been offences for a while.

    Or were you just musing on a hypothetical?

  4. jacqui butterworth says:

    Disabled/elderly are not important to the people that are in control. There needs to be a tolal overhaul of what is just happening.

  5. It may be a very unlawyerly thing to say – and saying it will probably get me shunned by polite legal society – but although the Court of Appeal is no doubt right in law, I can’t help feeling that they’re wrong in terms of humanity.

  6. Can you imagine being emotionally vulnerable and in prision for breaking one of the 2000 plus new laws brought in the last 12 years. Law which you do not even have the capasity to understand. Then you are seually assaulted in a cell and your right to a proper investigation is denied.

    How could a priviledge judge understand this.

    What sort of country is the United KIngdom.

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