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