Allen & Ors v Hampshire Constabulary [2013] EWCA Civ 967

Case No B2/2012/2183[2013] EWCA Civ 967
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE MITCHELL
9CL00349
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 30 th July 2013
Before
THE MASTER OF THE ROLLSLORD JUSTICE GROSSLORD JUSTICE RYDER
Between
ALLEN & ORSAppellantsTHE CHIEF CONSTABLE OF THE HAMPSHIRE CONSTABULARYRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Karon Monaghan QC and Helen Law (instructed by Deighton Pierce Glynn Solicitors) for AppellantsSamantha Leek QC and Cicely Hayward (instructed by The Office of the Force Solicitors Department) for Respondent
Judgment

INTRODUCTION

[1]The Appellants appeal from the order dated 24th August, 2012 and judgment of HHJ Mitchell sitting at the Central London County Court dated 2nd August, 2012 (“the judgment”), upholding the order and judgment dated 27th January, 2012 of DJ Taylor, sitting at the same Court (“the DJ judgment”), striking out their claim against the Respondent.[2]There are two principal grounds of appeal, most conveniently addressed in the following[3]The First Appellant is the mother of the Second and Third Appellants, who were, at the material times, aged between 10-15 and 7-12 years respectively. The Second and Third Appellants are the First Appellant’s children from a relationship previous to that with which this case is concerned. In the course of the hearing, we were told that there was a Consent Order relating to the Second Appellant’s discontinuance. Although the Third Appellant remained a party to the appeal, the real focus throughout concerned the First Appellant (“the Appellant”).[4]In very broad outline, in December 2003 the Appellant began a relationship with PC Luchesa, an officer of the Respondent. The Appellant and PC Luchesa married in June 2005 and separated in February 2006. As alleged in the Particulars of Claim, following the commencement of the Appellant’s relationship with PC Luchesa, another serving police officer, (Woman) PC Ridgeway then began a campaign of harassment against the Appellants, including letters, telephone calls, interference with the Appellant’s car, an assault on the Appellant and criminal damage. As further alleged in the Particulars of Claim, PC Ridgeway told the Appellant that she (i.e., PC Ridgeway) had been having a relationship with PC Luchesa for around five years. The Appellant’s case is that the torts alleged in the Particulars of Claim were “carried out by officers under the …[Respondent’s] …control, in the purported performance of their police functions”. Accordingly, the Respondent is alleged to be vicariously liable for their acts and omissions by virtue of s.88 of the Police Act 1996 (“the Police Act 1996”). So far as concerns the ECHR claim, the Appellant’s pleaded case is that the Respondent failed to comply with his investigative and protective obligations in respect of the Appellants’ rights to freedom from inhuman and degrading treatment (Art. 3) and their rights to privacy and the like (Art. 8). However, the allegations as to the protective obligation effectively dropped out of the picture in the course of the hearing before us; they were either abandoned or were (rightly) accepted, on the facts of this case, to be wholly contingent on the investigative obligation. Very little more needs therefore to be said of the protective obligation.[5]The Particulars of Claim are, with respect, somewhat lengthy and discursive but, without in any way belittling them, the pleaded complaints can be distilled into the following categories: i) Anonymous letters: These included observations such as “He is in love with me, not you”. They subsequently became increasingly derogatory and abusive. The letters were typed and hand delivered to the Appellant’s home. They contained a number of spelling errors (of which more below). These allegations span a period of time from 2004 to 2007. ii) Telephone calls and face to face conversations: The calls included silence and giggling as well as calls made by PC Ridgeway; a police radio could on occasions (as I understood it) be heard in the background; at least one of the calls appeared to come from a police station. The conversations included PC Ridgeway suggesting to the Appellant that she should move out of the area. In a subsequent telephone call, PC Ridgeway asked the Appellant whether the house had yet been put on the market. These allegations largely concern 2004 to 2005. iii) Arson and criminal damage: On the 27th July, 2006, the Appellant received an anonymous letter saying (inter alia) that she should not be surprised if she woke up one day to the “smell of burning flesh”. On the 9th October, 2006, there was an arson attack on the Appellant’s home; the Appellant’s front doormat had been set alight with accelerant. Subsequently, on the 15th – 16th December, 2006, an attempt was made to set fire to the Appellant’s car; accelerant had been used. On the 8th June, 2007, the Appellant’s car was severely damaged; every panel had been scratched with something sharp. iv) Burglary: On an occasion in the late summer or early autumn 2006, someone entered the Appellant’s home without her permission. Items were out of place and her marriage certificate and a pink Versace watch were missing. The marriage certificate was subsequently anonymously posted, torn up, to a senior police officer. v) Assault: This allegation concerned an anonymous letter in the post, received by the Appellant at her home on around the 14th July, 2007. The letter contained a scalpel, which cut the Appellant’s thumb deeply when she subsequently opened it on the 28th July, 2007.[6]For completeness, it may be noted that the Appellant also complains of being subjected to “distressing, inappropriate and intimidating behaviour” by other officers of the Hampshire Constabulary, the suggestion being that they had joined with PC Ridgeway in the (alleged) campaign of harassment. Further, the Particulars of Claim alleged that there had been a “culture” at Yateley police station and “potentially more widely” in the Hampshire Constabulary, permitting extra-marital affairs to take place between police officers and failing to take appropriate disciplinary action against officers notwithstanding alleged or proven inappropriate behaviour or even criminal wrongdoing. As it was put in argument before us, such inaction had fostered a “culture of impunity”.[7]The Appellant first complained to the Hampshire police on the 9th October, 2006, following the first incident of arson.[8]On the 13th December, 2006, PC Ridgeway was arrested (according to the Particulars of Claim) in connection with the letters and arson attacks. The Particulars of Claim continue as follows:
“She was interviewed and denied sending the letters. In interview she was asked to type words that were mis-spelled in the letters received by the First Claimant. She mis-spelled two words in the same way that they were mis-spelled in the letters: namely, ‘cought’ and ‘mistermeaner’. Her fingerprints were found on the first two letters sent to the First Claimant.”
The Particulars of Claim acknowledge that PC Ridgeway did offer an innocent explanation for the presence of her fingerprints.[9]The criminal investigation was referred to the Crown Prosecution Service (“CPS”). In the event, however, in March 2007, the CPS decided not to prosecute PC Ridgeway.[10]Separately, a disciplinary investigation had been referred to the Hampshire Constabulary’s Professional Standards Department (“PSD”). On the 28th March, 2007, the PSD decided not to proceed on the basis that there was no evidence to support any misconduct investigation. As subsequently explained to the Appellant (in a letter dated 17th April, 2007), the test for proving misconduct was a balance of probabilities; the PSD was satisfied that “any tribunal would find that the conduct of the officer did not fall below the required standard and therefore that a misconduct tribunal or other disciplinary sanction would not be justified”. The PSD stated in terms its satisfaction that a “proportionate and thorough investigation” had been conducted by the investigating officer.[11]Pausing here, in connection with the first instance of (alleged) arson, it may be noted that it was beyond dispute or sensible dispute that PC Ridgeway was in Reading on police business at the time of the fire.[12]In the course of 2008, the Appellant was informed that further disciplinary proceedings involving PC Ridgeway were underway. However, on the 9th October, 2008, these proceedings were formally discontinued.

ISSUE (I): VICARIOUS LIABILITY

(I) : VICARIOUS LIABILITY

[13](A) The legal framework: I turn without further ado to the first principal issue, vicarious liability. The Respondent’s potential liability is dealt with specifically by s.88 of the Police Act 1996, which provides as follows:
“(1) The chief officer of police for a police area shall be liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of any unlawful conduct of his servants in the course of their employment….”
[14]For present purposes, a detailed review of the law of vicarious liability is unwarranted. Instead, the broad propositions which follow can readily be distilled from the recent leading authorities, namely Lister v Hesley Hall [2001] UKHL 22; [2002] 1 AC 215 and Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2012] 3 WLR 1319.[15]First, the doctrine of vicarious liability is founded in policy rather than conceptualistic reasoning. As expressed by Lord Phillips of Worth Matravers in Various Claimants, at [34]:
“The policy objective underlying vicarious liability is to ensure, in so far as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability.”
See too, per Lord Millett, in Lister, at [65].[16]Secondly, having regard to the underlying policy, it is unsurprising and well established that vicarious liability is capable of extending to intentional wrongdoing; see, for example, Lord Steyn, in Lister, at [16].[17]Thirdly, the criteria to be satisfied for the imposition of vicarious liability involve a two stage approach: i) The first stage is to consider the relationship between the individual tortfeasor (D1) and the party said to be vicariously liable (D2) to see whether that relationship is capable of giving rise to vicarious liability; ii) The second stage is to consider the connection linking the relationship between D1 and D2 and the act or omission of D1 in question. See, Lord Phillips, in Various Claimants, at [21]. As, with respect, neatly encapsulated by Morgan, Vicarious Liability on the Move, (2013) 129 LQR 139, at p.139:
“ There are two stages to establishing vicarious liability. First there must be a relationship between A and B which is sufficient to trigger the doctrine; secondly, the tort committed by B must be sufficiently connected with that relationship to render A vicariously liable for the tort. ”
As it seems to me, it is these criteria which facilitate concentration on the “relative closeness” of the connection between the nature of the employment and the particular tort: Lord Steyn, in Lister, at [24].[18]Fourthly, as explained by Lord Phillips in Various Claimants, the second stage of the criteria is likely to involve questions of risk creation and causation:
“86. ….Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link. 87. These are the criteria that establish the necessary ‘close connection’ between relationship and abuse. I do not think that it is right to say that creation of risk is simply a policy consideration and not one of the criteria. Creation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.”
[19]We were referred to a number of authorities, helpfully illustrating the application of these principles in the context of the vicarious liability of Chief Constables or others for the acts of police officers; inevitably, there are cases on either side of the line, reflecting the reality that questions of fact and degree are involved. The flavour appears sufficiently from three of these authorities.[20]In Weir v Chief Constable of Merseyside [2003] EWCA Civ 111; [2003] ICR 708, an off-duty constable confirmed to the claimant that he was a police officer, assaulted him, threw him down the stairs at a block of flats and locked him in a police van, itself taken by the constable without authority. In the van he again assaulted the claimant and threatened him with arrest or removal to the police station, before letting him go. The claimant brought proceedings against the defendant chief officer of police; the claim failed at first instance but succeeded on an appeal to this Court. The essential reasoning of this Court appears from the following short passage in the judgment of Sir Denis Henry (at [12]):
“ To establish liability the claimant has to show more than the mere fact that the tortfeasor was a police officer. He has to show that the tort he alleges was committed at a time when the police officer was apparently acting in his capacity as a constable…..I think the judge should have concluded that PC Dudley was apparently acting as a constable, albeit one who was behaving very badly.”
[21]In A-G v Hartwell [2004] UKPC 12; [2004] 1 WLR 1273, a police officer of the Royal Virgin Islands Police Force, having abandoned his post, entered a crowded bar where his partner worked as a waitress. In a fit of jealous rage at finding her there with another man, he fired four shots at her with a police service revolver which he had taken from the police station’s strongbox, to which he had access in the course of his duties. The claimant, a tourist who was in the bar at the time, was seriously injured. He brought proceedings against the Attorney General, representing the government of the British Virgin Islands, relying on evidence of two earlier incidents as demonstrating that the officer, who was still a probationer, was not a fit and proper person to be given access to firearms. The claim in vicarious liability failed; the wholly distinct claim in negligence succeeded on the ground that the Government was itself at fault for permitting the officer to have access to firearms. So far as concerned vicarious liability, Lord Nicholls (at [17]), giving the judgment of the Board, said that the officer’s activities had nothing whatever to do with any police duties; he had deliberately and consciously abandoned his post and his duties; he had embarked elsewhere:
“ ….on a personal vendetta of his own. That conduct falls wholly within the classical phrase of ‘a frolic of his own’. ”
[22]In N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB), the officer (a probationer at the time) was off-duty but wearing his uniform in the early hours of the morning. The claimant was carried out of a nightclub, severely intoxicated and having taken half an ecstasy tablet. The first aider employed by the club expressed concern about the claimant’s condition and her reluctance to go to hospital. The police officer said he would take her to a police station. Instead, he took her to his own home and, whilst she was unconscious, raped and indecently assaulted her and filmed these assaults. The claimant brought proceedings against the Chief Constable, alleging vicarious liability. The claim failed. After a review of the authorities, Nelson J concluded (at [36]) that the facts of this case were akin to those of Hartwell (supra). The officer was:
“ … ‘on the prowl’ looking for a vulnerable victim, off duty, not in his working area, sitting in his own private car. He used his uniform and warrant card and the fact that he was a policeman to take advantage of the Claimant and that is why he was sitting his car near the club. He was in the circumstances at all times pursuing his own misguided personal aims, or in the classic phrase, ‘on a frolic of his own’. ”
The case therefore remained one of “mere opportunity” (at [37]). The torts were not so closely connected with the officer’s employment so as to render it fair and just to hold the Chief Constable vicariously liable. The misuse of a warrant card by a rogue police constable, whenever he formed the intention to assault, was not of itself sufficient for the imposition of vicarious liability.[23]In the present case, of course, the law falls to be applied in the context of a strike out application. In this regard, there is an overlap between the provisions of CPR, Part 3.4(2)(a) (striking out a statement of case which discloses no reasonable grounds for bringing or defending the claim) and giving summary judgment under CPR, Part 24. The test is well-known and beyond dispute. The Court is not to conduct a mini-trial on documents but without disclosure and oral evidence. However, where it can be determined (without any such mini-trial) that a claim has no realistic prospect of success, a trial would be a waste of time and it is in the interests of all parties that the proceedings are brought to an end sooner rather than later. As expressed by Lord Hope in Three Rivers DC v Bank of England (No. 3) [2001] UKHL 16; [2003] 2 AC 1, at [95], the strike out and summary judgment rules are designed “to deal with cases that are not fit for trial at all”. Lord Hobhouse spoke to the same effect, at [158]), saying that the “criterion the Judge has to apply under Part 24 is not one of probability; it is absence of reality”.[24](B) The rival cases: We were grateful to both Ms Monaghan QC, for the Appellant and Ms Leek QC for the Respondent, for their assistance.[25]On this Issue, Ms Monaghan underlined the fact sensitive nature of the criteria for establishing vicarious liability. Accordingly, vicarious liability did not lend itself to determination “at a preliminary stage”; a fortiori here where the Respondent had steadfastly resisted giving pre-action disclosure. Furthermore, Ms Monaghan submitted that this case raised issues of wider importance, concerning:
“ ….the power to strike out private law claims against state agencies where that agency may effectively be relying upon its own deficient investigation to resist an assertion of vicarious liability.”
In essence, the harassment complained of had been tolerated by a “police culture” but PC Ridgeway’s position as a police officer had been used to avoid prosecution and investigation. Ms Monaghan placed emphasis on the special position of the police as investigators in the Criminal Justice System (“CJS”). This claim should go to trial.[26]Ms Leek submitted that this Issue could and should be disposed of summarily, by scrutiny of the pleaded facts. At their highest, those facts did not reveal any, let alone a close connection, between the acts alleged and PC Ridgeway’s position as a police officer. Not one of the pleaded facts alleged that PC Ridgeway acted in the purported performance of her police functions. Disclosure would not add anything; the reality was that the Appellant, as the victim of the campaign of harassment alleged, was in possession of all the relevant information. The District Judge had been right to strike out the claim and HHJ Mitchell had correctly upheld that decision; this claim for vicarious liability would not be improved by further inquiry at trial.[27](C) Discussion: I am firmly of the view that the claim for vicarious liability has no realistic prospect of success and that the Courts below were right to strike it out. My reasons follow.[28]First, it is common ground that PC Ridgeway was a police officer of the Hampshire Constabulary; accordingly it is plain that the relationship between her and the Respondent was capable of giving rise to vicarious liability. I proceed therefore on the basis that the first stage of the criteria for the imposition of vicarious liability is satisfied. It is, however, the second stage of the criteria which is crucial to the resolution of this Issue.[29]Secondly, I agree with Ms Monaghan thus far that claims asserting vicarious liability are fact sensitive and, in general, may well not lend themselves to determination at a preliminary stage: see the observations in E v English Province of Our Lady of Charity [2012] EWCA 938; [2013] 2 WLR 958, at [6], [85] and [114], there directed to resolution by way of preliminary issue. It does not, however, follow that in all cases where vicarious liability is alleged a strike out or summary judgment may not be appropriate. Here, as elsewhere, if a claim is doomed to fail, the sooner it is disposed of the better. There is, indeed, a strong public interest in so doing.[30]Thirdly, I entirely agree with Ms Leek’s submission that, taken at their highest, the pleaded facts do not reveal any, let alone a close, connection between the acts alleged and PC Ridgeway’s position as a police officer. Accordingly and utilising Lord Hobhouse’s words in Three Rivers (cited supra), there is an “absence of reality” to this claim.[31]By way of elaboration, I return to the categorisation of the complaints in the Particulars of Claim set out above. i) Given that the letters were anonymous, they self evidently could not have purported to come from a police officer. ii) As to the telephone calls and conversations, there is nothing going beyond the fact that PC Ridgeway was a police officer and that one or more calls may have come from a police station; that, however, is insufficient for establishing liability: see, Weir (supra). These allegations get nowhere near establishing that PC Ridgeway was acting or was purporting to act as a police officer; accordingly, they do not begin to establish a sufficient connection between the relationship of PC Ridgeway to the Respondent and the acts complained of so as to make good the second stage of the criteria. iii) Turning to the arson and criminal damage, even assuming that PC Ridgeway was responsible whether solely or with others (see above as to the first instance of arson), there is nothing whatever to connect these acts with the purported performance of police duties or functions. iv) The same considerations apply to the allegation of burglary – which, it may be noted, was not reported to the police at the time. As Ms Leek submitted, the Particulars of Claim contain no attempt to plead any connection between the burglary (by whomsoever committed) and the performance of police business. v) Finally, as to the assault, it arose out of another anonymous letter; there was thus no connection let alone close connection with PC Ridgeway acting or purporting to act as a police officer.[32]Considering these categories of complaint in the round, it seems to me that the close connection required to make good the second stage of the criteria cannot be established if the (alleged) tortfeasor in question was not even purporting to act as a police officer. I have not in all this overlooked the allegations concerning other officers of the Hampshire Constabulary; to my mind, not only are they too nebulous to found liability (even arguably) but they also suffer from the same weaknesses alluded to above.[33]Fourthly, there is no realistic prospect of disclosure improving the Appellant’s position. With respect, the Appellant’s argument in this regard gives the distinct impression of an impermissible “fishing expedition” writ large; – the claim is launched in the hope that something will turn up. But, however that may be, matters do not end there. Disclosure here is a red herring. Realistically, disclosure could not add to that which the Appellant knows as the victim of the campaign of harassment.[34]Fifthly and pulling the threads together, were this Issue to go to trial, there is, in my judgment, no realistic prospect of the Appellant making good the second stage of the criteria or bringing this claim within s.88 of the Police Act 1996. Contrary to the Appellant’s submission, this claim does not raise questions of wider importance. Instead, its realistic and proper categorisation, if made good, reveals PC Ridgeway (whether or not aided or abetted by others) pursuing a personal vendetta or frolic of her own: see, Hartwell and N (both supra). Plainly, that will not do for the purpose of, even arguably, establishing vicarious liability on the part of the Respondent. Wholly and conspicuously absent from the Particulars of Claim is any suggestion of the “creation of risk” arising out of the relationship between PC Ridgeway and the Respondent, upon which Lord Phillips placed such emphasis in Various Claimants (supra) – and which has been a hallmark of the child abuse cases in this area. For my part, DJ Taylor was right to put the matter this way (at [30] of the DJ judgment):
“ There is no connection that I perceive between Ridgeway’s work as a police officer and the nasty acts complained of. ….The connection is simply of one woman being jealous of another; or one being a jilted lover (if that be the case). ”
As is apparent from the judgment, HHJ Mitchell was of a like mind and his decision cannot be faulted.[35]It follows that, for the reasons given, I would dismiss the appeal on this Issue.

ISSUE (II): THE ECHR CLAIM

[36](A) Introduction: In the light of my conclusion on Issue (I) and not without significance (as will appear below), the Appellant’s ECHR claim falls to be approached on the basis that the alleged torts and crimes were committed by a private citizen who happened to be a police officer; the fact of PC Ridgeway being a police officer is no more than that.[37]Insofar as material, S.6 of the HRA 1998 provides as follows:
“ Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
[38]The Convention rights canvassed before us were Arts. 3 and 8 ECHR, which provide, inter alia, as follows:
“Article 3 Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 8 Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. ……”
Prohibition of torture Article 8

Right to respect for private and family life

[39]For reasons which will become apparent, I shall concentrate primarily on the Appellant’s Art. 3 claim and will defer very brief consideration of the Art. 8 claim until the end of this judgment.[40]I can dispose of one matter at the outset. Ms Leek sought to contend, powerfully, that even taken at their highest, the pleaded facts did not reach the threshold required for Art. 3. For my own part, I saw very considerable force in this submission. That said, it became clear that the “threshold” point had not been taken by the Respondent below (where Ms Leek had not appeared). In the circumstances and to avoid any sense of unfairness, it seemed right to us to assume in the Appellant’s favour (without deciding) that her Art. 3 claim did (arguably) reach the requisite threshold. I proceed accordingly.[41](B) The legal framework: So far as concerns the test for striking out or summary judgment, there is nothing to add to the observations earlier in this judgment; they apply to this claim in the same manner as they do to the claim alleging vicarious liability.[42]Turning to matters of substance, the “few words” of Art. 3 give rise to a number of duties on the part of the State, designed to render its general legal prohibitions (of fundamental importance) effective in practice: see, the observations of Lord Dyson JSC (as he then was) in the context of Art. 2, in Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] AC 72, at [12]. At least for present purposes, these duties may be summarised as follows: i) A general obligation to provide systems of law enforcement and for the punishment of criminal liability. ii) An implied positive obligation to conduct an effective investigation into allegations that treatment amounts to, or arguably amounts to, a violation of a person’s Art 3 rights; such an investigation should be capable of identifying and punishing those responsible: Assenov v Bulgaria [1999] 28 EHRR 652, at [102]. Necessarily, this is an obligation of “means” not “results”: Vasilyev v Russia (Application no. 32704/04), 17 December 2009, at [100]. I return presently to consider the question of the scope of this obligation in more detail. iii) A positive “operational” duty (Rabone, loc cit) to protect individuals from the risk of ill-treatment in violation of their Art. 3 rights, of which the State is or ought to be aware. Even in respect of Art. 2 (right to life), this obligation is to be interpreted “in a way which does not impose an impossible or disproportionate burden on the authorities”: Osman v United Kingdom (1999) 28 EHRR 245, at [116]. Given the manner in which the argument developed, it is unnecessary to explore this protective obligation any further.[43]As foreshadowed, I revert to the scope of the investigative obligation ((ii) above). In principle, this obligation is not limited to cases of ill-treatment by state agents: MC v Bulgaria (2005) 40 EHRR 459, at [151]. Importantly, however, the nature of the investigation required, is fact sensitive and will depend on the context: see, R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440; [2006] 1 WLR 461, at [104] – [105]. Thus the scope of the State’s obligation may well differ depending on whether the violation of Art. 3 rights is inflicted by agents of the State or private individuals: Beganovic v Croatia (Application no. 46423/06) 25 June 2009, at [69]. By way of an obvious example, the investigation required where there has been systematic torture by State agencies (one end of the spectrum) will differ from that required in respect of misconduct by private individuals narrowly surmounting the minimum threshold for the engagement of Art. 3 (the other end of the spectrum). Thus, in some cases, the State will discharge its investigative obligation through the totality of available procedures, including a criminal investigation and the possibility of criminal, civil and disciplinary proceedings: Takoushis (supra), at [105]; R (NM) v Secretary of State for Justice [2012] EWCA Civ 1182, per Rix LJ, at [29]. Manifestly, not every arguable breach of Art. 3 calls for a full independent inquiry; there must be a sense of proportion: see, R(P) v Justice Secretary [2009] EWCA Civ 701; [2010] QB 317, per Stanley Burnton LJ, at [51] et seq, including the extensive and valuable citation from the judgment of Longmore LJ in R(AM) v Secretary of State for the Home Department [2009] EWCA Civ 219; [2009] UKHRR 973, at [74] et seq. Furthermore, there is, generally, a difference of emphasis between Art. 2 and Art. 3; in Art. 2 death is involved, whereas, again generally, the victim of a breach of Art. 3 is alive and knows of the acts or omissions said to contravene his ECHR rights: R(P), at [51].[44]With respect, the presently relevant considerations as to the investigative duty were helpfully summarised by Rix LJ in R(AM) (supra), at [29]:
“ …. (3) In article 3 cases, therefore, the alternatives of civil and criminal proceedings, and ombudsman enquiries, are important available sources of sufficient investigation, where such investigation may be needed…..(4) It is only or primarily where there is credible evidence of treatment, sufficiently grave to come within article 3, inflicted ‘by or with the connivance of the state’ that the investigative obligation arises…. In the absence of state complicity, the essential obligation of the state is only to provide a system under which civil wrongs may be remedied in litigation or criminal wrongs investigated and prosecuted…… (5) The investigative obligation, particularly under article 3, is highly fact sensitive and subject to resource implications…..”
[45](C) The rival cases: By way of very brief outline, the gravamen of Ms Monaghan’s submissions focused on the State’s investigative duty under Art. 3. She contended that the investigation here had been prima facie inadequate; on the material available, there had been (for instance) no scene of crime reports, forensics, CCTV or interviews with neighbours. The upshot was a failure to prosecute or discipline PC Ridgeway. A proper investigation would have led to prosecution, so acting as a deterrent against further wrongdoing on the part of PC Ridgeway. Contrary to the suggestion by HHJ Mitchell in the judgment (at [37]) that, if the Appellant’s case were well-founded, “every disgruntled person who had reported some crime to the police would be able to start proceedings based on whether the police(a) protected his human rights and(b) had investigated the matter appropriately…”, permitting this claim to proceed to trial would not open any floodgates. The matter should indeed go to trial, given the absence of any disclosure by the Respondent. This ECHR claim raised a question of wider public importance, going to the ambit and effect of the positive obligations under the ECHR; it also related to public confidence in the rule of law. As will be apparent, Ms Monaghan concentrated on the investigative obligation. In the course of argument she accepted, rightly, that, at least on the facts of the present case, the protective obligation was contingent on the investigative obligation; in effect, Ms Monaghan thus abandoned or did not pursue a case based on a free-standing protective obligation.[46]Ms Leek’s submissions were clear and succinct. On the working assumption that the matters of which complaint had been made arguably surmounted the Art. 3 threshold, they were, nonetheless, at the lowest end of the spectrum. PC Ridgeway was not an agent of the State; nor had she been acting with the connivance of the State. Accordingly, the State’s investigative obligation was satisfied by the legal mechanisms available to the Appellant and more generally. Thus, a criminal investigation had been instituted; the obligation being one of means rather than results, the outcome of the investigation was neither here nor there for present purposes. Moreover, the Appellant had not pursued any of a number of legal options available to her. This ECHR claim raised no important point of principle. Insofar as the protective obligation remained “live”, it was contingent on the investigative obligation; in any event, what had not been done that should have been done and when could it have been done? Disclosure could not realistically have advanced the Appellant’s case on this Issue and the Courts below had been right to strike it out.[47](D) Discussion: My starting point is the reality that, as established when considering Issue (I), PC Ridgeway was not purporting to act as police officer; instead she was pursuing a personal vendetta and engaging in a “frolic of her own”. The pleaded facts do not therefore amount to more than allegations of a campaign of wrongdoing by a private individual who happened to be a police officer. The present case is accordingly far removed from those which relate to wrongdoing by state agents or with the connivance of the State. This reality furnishes the context within which Issue (II) falls to be determined.[48]I do not of course go behind the working assumption that the present claim arguably surmounts the threshold required for Art. 3. That said, it seems plain to me that it is at or towards the bottom end of the spectrum of complaints giving rise to the engagement of Art. 3 – without in any way downplaying the distress occasioned by a campaign of harassment such as that alleged in the Particulars of Claim.[49]In order to determine the Appellant’s charge that the State – arguably – failed to discharge its investigative obligation, it is helpful to underline what the State has done and the options available to the Appellant which she has not pursued.[50]Thus, as already recounted, there was a criminal investigation. PC Ridgeway was arrested and interviewed. The decision not to prosecute was taken by the independent CPS, not by police officers. Further and as set out above, disciplinary proceedings were explored on two separate occasions by the PSD. Ultimately, they were discontinued. I remind myself that the State’s obligation is one of “means” not “results”: Vasilyev (supra).[51]Matters do not end with that which the State undertook. A striking feature of the present case concerns the options available to the Appellant, none of which she has chosen to pursue. The Appellant at no stage commenced civil proceedings against PC Ridgeway. Even if it be said that the prospect of recovering damages from PC Ridgeway might have been illusory, the Appellant had the option of seeking an injunction under the Protection from Harassment Act, 1997. Further, insofar as the Appellant was aggrieved at the CPS decision not to prosecute, she could have sought Judicial Review but did not do so. Further still, the Appellant could have complained to the Independent Police Complaints Commission (“IPCC”), pursuant to Schedule 3 of the Police Reform Act 2002, as to the decisions to discontinue disciplinary proceedings. I list these matters not because they suggest “fault” on the Appellant’s part; no such question arises. The significance of these matters is instead to underline the availability in this country of a system under which civil wrongs may be remedied in litigation or criminal wrongs investigated and prosecuted: see, R(AM) (supra).[52]A fact sensitive sliding scale best depicts the nature of any investigation required under Art. 3. Here, I am amply satisfied that the Respondent’s investigative obligation has been discharged through the totality of available procedures discussed above: see, Takoushis, R(P) and R(AM) all supra; in my judgment, argument to the contrary is fanciful. Further and with respect to Ms Monaghan’s submissions, Issue (II) raises no wider point of principle; the relevant principles are clear; so too, in my judgment, is their application to the facts of this case.[53]I have not overlooked Ms Monaghan’s submissions as to the absence of pre-action disclosure. However, as with Issue (I), I regard it as a red herring and realistically incapable of making up the shortfall between the Appellant’s case as it is and a case with a real prospect of success. For that matter, I have not placed particular weight on the materials which the Respondent adduced before us – save that they indicate, incontrovertibly, significantly more communication between the Respondent and the Appellant throughout this saga than would have been apparent from the Appellant’s portrayal of those events.[54]Accordingly, for the reasons given and with no real hesitation, I agree with the decisions of the Courts below that the Appellant’s case on Issue (II) should not go to trial and should be struck out. In his judgment, HHJ Mitchell said this (at [38]):
“ It is not on the law upon which these Claimants founder; it is upon the factual basis which… is simply not there….”
I respectfully agree.[55]For completeness, as the Appellant’s case on the investigative duty fails and as any surviving submissions on the protective duty are contingent on the investigative duty, no more need be said as to the Respondent’s protective duty.[56](E) Art. 8: The Appellant’s case under Art. 8 can be briskly dealt with. In respect of Art. 3, I have proceeded on the assumption that the Appellant arguably surmounted the minimum threshold; nonetheless and determined in accordance with the pleaded facts, she failed to establish any realistic prospect of success. On that basis, I think it impossible for her to succeed under Art. 8, even assuming some generalised positive obligation on the Respondent to take action under Art. 8. None of the authorities to which the Appellant referred lend support to her case; thus in both MC v Bulgaria(supra) and K.U. v Finland (2009) 48 EHRR 52, the claims under Art. 8 succeeded because domestic law was otherwise inadequate to protect the individuals concerned; that is not the case here, as appears from the earlier consideration of the Appellant’s Art. 3 claim. Moreover, as underlined in Mosley v United Kingdom [2012] EMLR 1, at [107], the choice of measures, to secure compliance with such obligations resting on the State to protect private life, fall within the Contracting States’ margin of appreciation. The Appellant’s Art. 8 claim is thus doomed to fail and should not go to trial; in my judgment, it too should be struck out.[57]I add only this; it would be necessary to think long and hard before acceding to any claim raising the prospect of some generalised positive obligation on the State to intervene under Art. 8, without the closest scrutiny of the limits of any such postulated obligation. The ramifications otherwise could be most unfortunate - not least, the unhappy prospect of widening the scope of Art. 8 still further.[58]Accordingly and for the reasons given, I would dismiss this appeal.[59]I agree.

The Master of the Rolls:

[60]I also agree.

order

i) The Judge erred in law in striking out the Appellants’ claim based upon vicarious liability (“Issue (I): Vicarious Liability”). ii) The Judge erred in law in striking out the Appellants’ claim under s.6 of the Human Rights Act 1998 (“the HRA 1998”), read with Arts. 3 and/or 8 of the European Convention on Human Rights (“the ECHR”) (“Issue (II): the ECHR claim”); In respect of each ground, the Appellants complain that the claim in question was fact sensitive and should have gone to trial; all the more so, it is submitted, in the absence of pre-action disclosure from the Respondent.

Cited in 4 later judgments