NM, R (on the application of) v Secretary of State for Justice [2011] EWHC 1816 (Admin)

[2011] EWHC 1816 (Admin)

Case No CO/13188/2010

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday 12 th July 2011

Before

HIS HONOUR JUDGE MACKIE QC

Between

THE QUEENClaimant

On the application ofClaimant

NMClaimant

SECRETARY OF STATE FOR JUSTICEDefendants

Hugh Southey QC and Felicity Williams (instructed by the solicitor to The Howard League for Penal Reform) for the Claimant

Kate Gallafent (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing dates: 18 and 19 May 2011

JUDGMENT

[1]This is an application for judicial review by NM, a prisoner who was sexually assaulted on 6 June 2010. He challenges the decision of the Defendant on 5 October 2010 not to investigate the assault and complains of an alleged continuing failure to prevent discrimination against him as an individual with significant learning difficulties.

Background

[2]The application was lodged on 23 December 2010 and on 28 January 2011 permission was given by Miss Geraldine Andrews QC who, among other things, said this:- “It is possible that on closer examination of the evidence and hearing full legal argument the Court will conclude that there is no substance in the claim for judicial review, as the Defendant contends. However, given the particular vulnerability and the background history of this Claimant including the previous serious assault upon him by a fellow prisoner in 2007, there is in my view a real prospect of a successful challenge on public law and/or human rights grounds, both as to the way in which the investigation into the June 2010 assault upon him by prisoner F was admittedly handled, and in respect of the alleged continuing failure by the prison authorities to take appropriate steps to address his needs and protect him from future harm."

[3]Before the hearing of this application the parties agreed that the Claimant’s complaints of discrimination as an individual with learning difficulties which he claims constitute a failure to make reasonable adjustments under the Equality Act 2010 and a breach of

Article 8 of the Convention

should be transferred to the County Court. The parties disagreed about where the Claimant’s challenge under the Disability Discrimination Act 1995, the Equality Act and Article 8 in relation to the investigation into the assault should be dealt with. Either way there would be an unsatisfactory overlap. I ordered these aspects to be dealt with in the county court and gave reasons for what was essentially a case management decision.

Facts

[4]Most of the facts are agreed or not much in dispute although the Claimant submits that further relevant information would have emerged if the assault had been properly investigated. I take the facts from the contemporaneous notes and from the witness statements. These comprise those of NM, of Ms Prasad, Ms Egerton, Mr Callender of the Howard League legal department and Ms Talbot of the Prison Reform Trust for the Claimant and those of Ms Saunders, Mr Bristow, Mr Wigman, Mr Ward, Ms McMeekin, Mr Derry, Detective Constable Wakeling, Ms Beeston and Ms Smith from the prison and Mr Lee from NOMS for the Defendant. I refer below only to the witness evidence directly relevant to the aspects of the claims which I have to decide.

[5]NM is 24 years of age. He endured an unhappy and disturbing childhood which few would doubt contributed substantially to his offending. In 2007 he was convicted of 2 counts of sexual activity with a child and of arson (apparently of a motor car). He was also convicted of committing further offences while on bail, destroying or damaging property, burglary, theft and witness intimidation. He entered custody on remand on 13 June 2006 and was sentenced on 13 March 2007 to an Indeterminate Sentence of Imprisonment for the Protection of the Public with a minimum tariff of 15 months. He was held at YOI Glen Parva until being transferred to YOI Swinfen Hall on 5 December 2007 where he remained until transferred to HMP Whatton on 26 January 2009. While at Glen Parva the Claimant reported, on 6 May 2007, that he had been subjected to sexual assaults including rape by his cell mate. NM’s case was taken up by the Howard League for Penal Reform which has represented him vigorously and effectively ever since. No court or adjudication action was taken against NM’s alleged assailant. A complaint was made to the Ombudsman which resulted in a report from the Acting Deputy Ombudsman in September 2008 in terms on which both parties rely. This investigation concluded that Glen Parva had followed the correct reception and cell sharing risk procedures and it rejected other complaints. The Ombudsman did however uphold NM’s complaints about being given inadequate support in May and June 2007 and about the absence of an investigation of the incident under the provisions of Prison Service Order (“PSO”) 1300. The Governor of Glen Parva was recommended to apologise in writing to NM for the inadequate support and for not investigating his complaint under PSO 1300 and to attend to other matters including ensuring that the requirements of PSO 1300 are met even in cases where the police decide that there is insufficient evidence to proceed.

[6]In March 2008 while at Swinfen Hall NM was assessed for suitability to undertake a treatment programme. His level of cognitive function was assessed as “extremely low”. His IQ was put at 60, a level at which 99.6% of the population would outperform him. NM’s assessment for treatment was one of the reasons he was transferred to HMP Whatton, an adult male category C training prison exclusively for convicted sex offenders. It is one of a small number of establishments offering courses for prisoners assessed as requiring extra levels of support, including programmes designed for prisoners with learning difficulties.

[7]NM’s case note history indicates that on 22 April 2010 information had been received from two different prisoners that NM might be being “groomed” by another prisoner (not F, the prisoner guilty of the assault which is at the heart of this case). An officer questioned both prisoners. NM was “quitevulnerable” but had assured the officer that he would not tolerate any form of sexual advance from anybody.

[8]NM says, in his statement in support of his application for judicial review, that on 5 June a prisoner “F” had made sexual advances towards him but he had not told any member of staff about this. There was an association period the next afternoon. During these periods prisoners are free to stay on the landing or to be in each other’s cells. If however there are two or more prisoners in a cell the door must be kept open so that they are visible to members of staff. During this association period NM invited F into his cell where they drank coffee and smoked. He recalls that while sitting on his bed with his feet on the floor and his head leaning back against the wall with F sitting next to him, F unzipped NM’s trousers and put his hand down and began to touch and play with NM’s penis. In his December 2010 statement NM emphasises that he was “sleepy” at the time.

[9]At 16:15 on 6 June DPSM Bristow, the Residential Manager received a call from NM’s father. The father reported that NM had told him, on the telephone that “his friend had grabbed him down below”. As Mr Bristow’s contemporaneous note indicates he then went to NM’s unit by which time NM had himself reported the matter to an officer, Mr Wigman, who was already discussing it with his Senior Officer Mr Ferguson. Mr Bristow and Mr Ferguson spoke to NM who told them that he was “preparing a statement”. NM also referred to the incident at Glen Parva. NM was asked about his background of self harm and suicide attempts. NM gave assurances about that. NM contrasted his previous bad experience at Glen Parva with staff with his treatment from Mr Wigman who “had been very good to him and very supportive”. In his statement Mr Bristow says he also discussed the incident with NM in more detail. NM replied that he did not know why he did not tell F to stop. NM confirmed that both prisoners had been in the cell but nothing had happened that would appear on CCTV. Mr Bristow said that NM came over as very matter of fact. Mr Bristow had asked NM whether he would like the police involved and he had replied that he would. Mr Bristow formed the view that the matter was not so urgent that the police needed to be involved that night. Mr Bristow, Mr Ferguson and Mr Wigman then discussed the matter and decided that F would be placed on report and investigated, without his knowledge, under the Violence Reduction Strategy (VRS). These witnesses did not notice signs of NM being sleepy. Forms were then completed and passed to Senior Officer Ward for there to be an investigation and a decision taken as to the steps to be pursued under the VRS.

[10]On 7 June Mr Ward investigated the matter by interviewing NM and then F. F did not at that stage admit that anything improper had occurred saying that the incident was consensual and took about 30 seconds in all. NM also provided a short clear written statement confirming the facts and adding “I felt intimidated because he was a lot bigger than me. The reason I took too long to say anything I was scared. I felt like the staff won’t believe me he said not to tell anyone.” Mr Ward concluded that as there were no independent witnesses he decided that prisoner F be placed on stage 1 of the VRS without his knowledge. This would enable him to be monitored closely for 14 days for any evidence of inappropriate behaviour. An adjudication process was opened against prisoner F, those looking into the incident having preferred NM’s account to that of prisoner F. On 8 June a hearing began before Ms Beeston, a Manager, at which F said that he would plead guilty but then changed his plea to not guilty. Ms Beeston, unaware at that time that NM had told Mr Bristow that he wished the matter to be referred to the police decided to take this step anyway in view of the serious nature of any charge of sexual assault. The adjudication was therefore adjourned. The paperwork for what is called a Formal Incident Handover was initiated by, at the latest, 9 June but because of theamount of information required and inadequacies in the system, which it seems has now been changed, this did not reach the police until 23 June. On that day DC Wakeling, the Police Liaison Officer, met NM to discuss the matter. NM told DC Wakeling that he was surprised that the matter had been referred as he had never asked for police involvement. He thought the prison had already dealt with the incident. After discussion NM confirmed that he did not want the police involved and preferred that the prison sort it out. DC Wakeling said that the question of bullying did not arise at that point although it is an issue to which he would always be alert on an investigation of that kind. On 22 June the Howard League had written urgently on NM’s behalf to the Governor of HMP Whatton making a formal complaint requesting an urgent investigation under PSO 1300 and raising questions of disability discrimination.

[11]On 26 June 2010 the adjudication resumed. F again admitted that he had assaulted NM and the Adjudicator Ms Smith found the case proved. The penalty imposed was 3 days cellular confinement but suspended. Ms Smith accepts that this penalty was too low, and it plainly was. She says in her statement that her award was based in part on her feeling this was a consensual relationship. She accepts in the light of reflection and further experience that this penalty was imposed in error and that a more serious sanction was called for.

[12]The VRS requires a log to be maintained which must have at least 3 “quality entries” a day. The VRS for F was reviewed on 21 June at the end of the initial 14 day period. After noting alleged remarks between F and another prisoner who were apparently spending a lot of time together the record shows that it was decided that they should be split up and that the VRS would continue. On 5 July 2010 the process was brought to an end as it did not appear that F was making unwarranted approaches to other prisoners. NM’s own case notes show no relevant reported behaviour until 18 July when NM stated that another prisoner from the kitchens was making comments to him about an alleged sexual assault. That prisoner was also put on the VRS. On 24 July an officer spoke to NM about reports of bullying in the kitchen. Some prisoners in the kitchen were apparently making suggestions to him about his sexuality and he was finding this hard to deal with.

[13]On 19 July Ms McMeekin, Deputy Head of Residence at Whatton, replied to the Howard League reporting action that had been taken. She said that NM had assured staff that he was not going to self harm, he had been moved to another wing while a simple investigation was carried out to establish the facts, the alleged perpetrator had been placed on report, the matter being adjourned and referred to the police. “When interviewed, NM told the police that he didn’t want them to be involved, he had no problem with the alleged perpetrator and that he was happy for the prison to deal with it”. The letter goes on to refer to the VRS and the fact that the simple investigation had established that both men agreed that they were friends, and NM had invited F to his cell. The letter then goes on to set out in substance NM’s version of events as this had been substantially accepted by F. The letter stated that the adjudication was reopened after NM said he did not want the police involved and that NM was receiving support from the Mental Health In-reach Team. It also reported that NM had settled on his new wing.

[14]NM continued to receive assistance from the Howard League and was visited by a solicitor and a paralegal in August. After correspondence the decision was taken to bring this application. NM’s first statement in the proceedings indicated for the first time that he had felt sleepy at the time of the incident. In this statement he also mentioned that he had found white powder on the table after he went back into his cell. He said that he did not tell staff about this because he did not want to get into trouble as the incident had taken place in his cell and if there were sleeping tablets used he might be blamed for having allowed that to happen. NM made a further witness statement in March 2011 which raises two further points. First NM sets out a recollection of his discussion with DC Wakeling which is unlikely to be correct and, it is almost common ground that he has misrecollected. Secondly NM pursuant to the VRS says that he was not told the outcome of the adjudication of F. A standard form was completed setting out information which was to have been supplied to NM and it is suggested that this information was given to him. However, the form is not signed in the place indicated to confirm that a prisoner has received the information. So it is unclear how much if any of this information was passed to NM.

[15]A witness statement from Ms Saunders, Governor of Whatton, explains the Disability Statement and Policy at the prison. She deals with the appointment of disability coordinators and liaison officers. She also points out that NM did not, at either of the interviews which were held when he arrived at Whatton, disclose when asked that he has a disability. If he had done this a referral would at that point have been made to the Liaison Officer. Ms Saunders accepts however that the prison was aware of NM’s learning difficulties from the reports which had been forwarded to it.

Investigations generally

[16]The investigative options available to prisoners are described in a witness statement from Mr Martin Lee of the National Offender Management Service. These include:-• Investigations into breaches by prisoners and/or staff of the Prison Rules, leading to discipline hearings for prisoners;

• Breaches of code and conduct for staff (PSO 8460);

• Police investigations;

• Investigations as part of a Violence Reduction Strategy;

• Investigations into deaths in custody (PSO 1301); and/or

• PSO 1300 investigations – simple or formal; Mr Lee explains that investigation under PSO 1300 is only one of a range of inquiry options available to prisons and that managers are expected to deal regularly with many incidents, allegations and complaints as part of their everyday activities without recourse to an “investigation”. If investigations were ordered routinely then the prison system would quickly become unworkable. In 2010 62,000 incidents were reported. (Mr Southey points out that only a small proportion of these could have raised an Article 3 issue, against that it is clear from the spreadsheet produced by Mr Lee that a substantial number of these incidents involved assaults or other violence). Mr Lee points out that in one sense lessons can always be learned from any incident involving an assault on a prisoner but PSO 1300 is generally only applied where the allegation raises a far more wide reaching issue such as disorder or loss of keys where the need to learn lessons is clear. The nature of investigations should be determined by individual circumstances. Some of the incidents require more than one investigation. Some investigations other than under PSO 1300 may go further than PSO 1300 would require. He stands behind a fact finding exercise which ultimately led to a charge against F for a breach of prison rules and a report being made under the Violence Reduction Strategy. Mr Bristow took the decisions. He said he was aware that PSO 1300 required him to assess the circumstances and determine whether and how the allegation or incident should be investigated. In his statement he adds “in particular, there was no need for a further investigation of any kind to have been commissioned under PSO 1300 as on the facts of this case and given there were no independent witnesses, any such investigation would have been unlikely to have produced any further information or to have resolved the conflicting accounts provided by the 2 men”.

[17]In her letter of 19 July 2010 Ms McMeekin used the term “simple investigation” to refer to the fact finding exercise undertaken by the prison which led to an adjudication for F. This was reasonably understood by NM’s solicitors to be a statement that a simple investigation within the meaning of PSO 1300 had been carried out.

[18]A Pre Action Protocol Letter was written on 17 September 2010 by NM’s solicitors to the Governor asking for a formal prison investigation because of the “sexual nature” of the incident. On 5 October 2010 the Treasury Solicitor wrote declining such investigation on the grounds that the actions taken including adjudication and referral to the police were a sufficient investigation. The Treasury Solicitor repeated the error about “simple investigation”. In fact no PS1300 investigation had been carried out because the prison decided on another route.

PSO 1300 - Investigations

[19]PSOs contain mandatory instructions in italics and guidance in ordinary print. Chapter 1.1.1 introducing sections dealing with the framework of investigations states:- “Whenever an incident takes place or an allegation of misconduct is made, the circumstances of the incident or allegation must be assessed by the appropriate manager who will determine whether or how the allegation or incident will be investigated”. This is followed by a mandatory requirement that all investigations be conducted according to the principles of natural justice. 1.2 identifies the purpose of any investigation as being to inquire into what has taken place, to establish the facts, to learn from them and to establish any accountability. 1.3.1 provides “the level of investigation into an incident, allegation or complaint must be decided by line management and be based on a judgment of its nature, seriousness and how much is known about its circumstances.” There is guidance pointing out that managers regularly deal with minor incidents without an investigation. It points out that there may be no need for an investigation in more serious cases where the facts are clear and unambiguous “however in most cases there will be lessons to be learned from incidents and an investigation would prove useful”. 1.5 distinguishes between simple and formal investigations. Simple investigations are for where there is no need for a formal process or the need is uncertain. 1.6.1 provides that a formal investigation will be necessary if the incident has major consequences such as disorder, damage and injury or there was serious harm to any person. A formal investigation may also be required if there is a specialist element to it such as sexual or racial harassment or discrimination.

[20]Chapter 3 of PSO 1300 concerns the investigation process. At 3C.8 guidance is given about interviewing young persons and those with mental illness or a learning disability. That guidance says “young persons, under 18 years of age, and anyone suffering from a mental illness or learning disability should not be interviewed unless they are accompanied by a responsible adult… This applies equally to staff as it does to any young person in custody.” The role of the responsible adult is then described. The role includes considering on the interviewee’s behalf whether legal advice should be taken and to advise the interviewee more generally, to observe whether or not the interview is being conducted fairly and properly and to intervene if it seems necessary to do so and to read any record that is made of the interview and sign it as correct or to indicate any respect in which it is not considered accurate.

PSO 2000 – Adjudications

[21]Prison Service Order 2000 contains detailed provisions about police referrals. Paragraph 4.28 states: “.. A charge of a criminal nature must be referred to the police at the request of the victim, but in non-criminal cases or where the victim of an alleged criminal offence has not made a request for referral the Governor or Director must decide each case on its merits”. (emphasis added)

PSO 2000

[22]The title of PSO 2000 is “The Prison Discipline Manual – Adjudications”. It provides instructions and guidance on adjudication procedures for prisoners alleged to have offended against prison discipline. Chapter 4 is headed “General Management of Adjudications and Minor Reports”. It concerns among other things adjournments (§4.26 – 4.27) and, the part relied upon by the Claimant, referrals to the police (§§4.28 – 4.30).

[23]Chapter 11 deals with Referring Serious Criminal Offences to the Police. Paragraph 11.5 states:

“Good practice in prisons can increase the likelihood of successful prosecution of a serious offence. Staff must be aware of the need to:- Notify the police immediately in appropriate cases; Make a comprehensive note as soon as possible after an incident has occurred, using form F2147; Preserve the scene of the incident; Preserve the evidence; Avoid contaminating physical evidence if at all possible; Leave the taking of statements to the police.”

[24]The Guidelines for Referral to the Police (agreed with the police, the Crown Prosecution Service and the Department of Constitutional Affairs) set out in Annex C and read:

“C6 If the victim of any alleged criminal act wishes the matter to be referred to the police the Governor or Director must do so.”

C8 The prospects of securing a conviction where a serious offence has been committed will be greatly increased if the police are called immediately when an offence comes to light. It is very important that there is efficient local liaison between the establishment and the police.”

PSO 2855 – Prisoners with disabilities

[25]This PSO sets out required actions and good practice relating to all aspects of prison life for prisoners with disabilities. The PSO points out that it will usually be best to assume that a prisoner could have a disability rather than not. The PSO contains 8 mandatory actions including an obligation on the Governor to nominate a Disability Liaison Officer, a suitable member of staff who has regular contact with prisoners and is given sufficient time to act as a contact point to receive information on policy issues and good practice, act as an adviser on disability issues and ensure that disabled prisoners’ needs are met. Chapter 5 deals with the role of the Disability Liaison Officer. The duties include being accessible to prisoners and available to discuss sensitive issues involving their disability in private. Chapter 8 requires governors and staff to look to make reasonable adjustments for prisoners with disabilities in various respects including “ensuring that prisoners with a learning disability fully understand what is said to them”. The sample local policy document which forms annex A gives examples of possible adjustments for various categories of disability. Under “dyslexia & learning difficulties” possible adjustments involve putting documents in pictorial format, simplifying forms, using easy to understand language when giving explanations and instructions and giving prior warning of events and changes wherever possible with a clear explanation. Annex D suggests that good practice will generally include drawing up an identification sheet of the specific needs of a prisoner resulting from an identified disability.

[26]The draft HMP Whatton disability policy is criticised for omitting from the examples given in its introduction to what disability is, learning difficulties of the kind experienced by the claimant. It is clear however that the prison policy was aware of learning difficulties being a disability as one sees from the second box in the disability questionnaire which asks about “dyslexia or reading or writing difficulties”. That policy requires prisoners to be invited to disclose disabilities at reception, as occurred in this case and for frequent reviews of the disability needs of individual prisoners. It is suggested that the prison failed to comply with the requirement of its policy that wing staff and health care staff be given information about an individual’s disability. It is clear that the wing staff were not, as they should have been, aware of NM’s disability. Although the discrimination allegations are to be dealt with separately some aspects are relied upon as part of the overall context. Mr Russ Derry was appointed as Disability Liaison Officer as well as Disability Awareness Co-ordinator having had similar roles in the prison since 2006. However he had no contact with the claimant until 2 February 2011 completing a disability questionnaire on 8 February.

The Facts – Competing Submissions

[27]At the hearing both sides placed particular emphasis on the facts. Mr Southey identified what he submitted were shortcomings springing mainly from a failure by the Defendant to take steps to treat NM differently on account of his disability. If those steps had been taken then NM would have engaged with the process better. He submitted that a representative, described, as short hand as “an appropriate adult”, should have been present in discussions between NM and the officers. If that had happened evidence might have been preserved at the outset. The involvement of an appropriate adult to advise NM and explain could have identified whether there really were no independent witnesses, clarified the position as to the CCTV and drawn to the officers’ attention the potential prior grooming. This would also have enabled the Claimant’s concerns about being made sleepy perhaps by drugs to have been elicited and followed up with appropriate searches of the cell and elsewhere. The involvement of an appropriate adult should also have avoided the later delay in the involvement of the police. If NM had had the assistance of an appropriate adult when he met DC Wakeling NM may have taken a different decision and a proper investigation would then have ensued. The investigation of the facts that did take place was full of error and gave no consideration to possible flaws in the system which had led to or at least contributed to the sexual assault. Ms Gallafent submitted that from the outset NM had given a clear account of what happened that was neither muddled nor confused nor inadequate. The matter had been carefully evaluated by a variety of officers and NM had freely acknowledged the support he had received from Mr Wigman. NM had had three separate opportunities to describe the incident and thus had effective access to the process. He was treated as the victim not the prisoner. His version of events was accepted and his account preferred to that of F. It was obvious to the officers that there would have been no independent witnesses and CCTV on the landing would have disclosed nothing useful in circumstances where F was in NM’s cell at NM’s invitation and had been there for some time, it was common ground, before the assault took place. The suggestion of drugs, in this case sleeping pills, had not been made until many months after the events. There is no reason to believe that NM would have mentioned that earlier if accompanied by an appropriate adult, or that it would have made any difference had he done so. The delay in involving the police arose from inadequacies in the paperwork. NM’s solicitors were made aware in July of their client’s decision in June that he preferred not to involve the police but have never sought to reopen the matter. This is unsurprising in circumstances where F has acknowledged his guilt and the police investigation would have dealt with his alleged criminality not with some of the wider issues which concern the claimant’s representatives.

Alleged breach of prison rules and Article 3

[28]The Claimant relies upon two separate grounds. First he alleges breaches of duty and an unreasonable failure to follow PSOs and similar instructions. Secondly he alleges breaches of Article 3. These claims overlap and were brought together at the hearing following a legitimate shift of emphasis by Mr Southey QC and Ms Williams from the case advanced in the skeleton argument. So I will next summarise briefly the way the law appears to apply Article 3 to this sort of case.

[29]

Article 3 of the European Convention on Human Rights

provides:

“No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

As Sir Anthony May put it in The Queen “(on the Application of M)” v Secretary of State for Home Department

[2010] EWHC 3541 (Admin)

“Although inhuman or degrading treatment is often thought of in extreme terms, Convention case law shows that on occasions it may apply to conduct which falls below that extreme level at least descriptively. Examples may be where the victim is in custody, and where the victim is young and vulnerable… As to adults who are in custody, recourse to physical force which is not strictly necessary may diminish human dignity and, again depending on the circumstances, amount to an infringement for them of Article 3.”

[30]The Defendant accepts, for the purpose of the decision in this case, but does not concede on the facts, that the sexual assault committed by F against NM gave rise to an arguable claim that he had been subjected to treatment in breach of Article 3.

[31]Article 3 imposes a preventative obligation, a positive obligation on the State to “take those steps that could reasonably be expected of them to avoid a real and immediate risk of ill-treatment contrary to Article 3 of which they knew or ought to have had knowledge” (Z v United Kingdom App. No. 29392/95, Comm. Rep. 10.9.99). The Claimant does not seriously challenge the Defendant’s position that it did not know, nor was there was any basis for arguing that it should have known, that F posed a risk of ill treatment to the Claimant, let alone that such risk was real and immediate. So it is unnecessary to explore further the principles governing this obligation.

[32]The State has an obligation to provide or to institute an effective official investigation where credible evidence suggests that one or more individuals have been subjected by or with the connivance of the state to treatment sufficiently grave to come within Article 3 (M paragraphs 3 and 4).

[33]There may often be cases in which the State’s investigative obligations under Article 3 are satisfied by the availability of the criminal proceedings or civil proceedings or reference to an Ombudsman or a combination of these. It is not always or perhaps even often necessary to have an expensive independent public investigation (M, paragraph 9).

[34]Any Article 3 investigation has the following requirements (as adopted from a skeleton argument from counsel by Sedley LJ in R (AM) v Secretary of State for the Home Department

[2009] EWCA Civ 219

). “41.1 The investigation should be capable of leading to the identification and punishment of those responsible; 41.2 It may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence; 41.3 It must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances; 41.4 It must be thorough, in that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident; and 42.5 It must permit effective access for the complainant to the investigatory procedure.”

[35]Article 3 cases are fact sensitive. The observation by Nicol J in Morrison v Independent Police Complaints Commission

[2009] EWHC 2589 (Admin)

that the possibility of civil proceedings by a claimant was not a means of providing the investigation required by Article 3 was made in the context of the facts of that particular case, an arguable case of misconduct by the police and was obiter. That observation does not seem to relevant to the facts of this case.

[36]“Where Article 3 may be engaged, an inquiry is not mandatory. Whether the Secretary of State is bound to conduct an inquiry depends on the circumstances of the case, including the availability of other means of eliciting the relevant facts, such as civil proceedings and investigation by the Prisons and Probation Service Ombudsman. To impose an obligation to hold a human rights inquiry has significant resource implications, a matter of growing concern when the resources of public authorities are increasingly constrained. Good reason for an Article 3 inquiry must be shown.” R (P) v Secretary of State for Justice

[2010] QB 317

at [58].

Claimant’s submissions

[37]NM alleges a breach of the duty to comply with the applicable PSOs. NM claims that he has been repeatedly and seriously assaulted while in prison and denied any effective remedy leaving him in fear of further assaults and unprotected in custody. Complaint is made of the failure to put into effect the claimant’s request for police involvement until 17 days after the incident.

[38]Mr Southey contends that an investigation was required by PSO 1300. Mr Southey points out that an acknowledgement, albeit only for the purposes of this hearing, that Article 3 may apply shows that the incident had crossed a significant threshold and was not a minor one. Thus a formal investigation under PSO 1300 should have taken place particularly in a context where the victim was known to be disabled but had not received the assistance required by PSO 2855 and policies put into place under it. This was a serious incident with a sexual aspect and a PSO 1300 formal investigation should therefore have followed. It is inconsistent for the defendant to claim that the inquiry which did take place was sufficient because the assault had not met the threshold of seriousness required for a formal investigation but at the same time conclude that the matter was serious enough to be referred to the police.

[39]Mr Southey argues that the investigation which did take place was flawed and inadequate. First NM was denied an adequate opportunity to present his case, a matter which overlaps with his discrimination complaint. If he had had an appropriate adult then the process and outcome of the inquiry might have been quite different. The right to an opportunity to participate is provided both by the express terms of PSO 1300 and by Article 3. Further NM was entitled to the natural justice expressly provided for in PSO 1300 and which arises anyway at common law. Mr Southey, while acknowledging that witnesses such as NM were not in the same position as those accused of wrongdoing, submitted by reference to R v Lord Saville of Newdigate ex Parte A [2000] I WLR 1855 that witnesses had some rights in this respect. All this led to a failure to initiate a proper investigation leading in time to an inadequate adjudication and a decision not to refer matters to the police. It is suggested that investigation of all this would have enabled issues such as the possible use of drugs and the absence of consent to be fully addressed. The failure to gather initial evidence and to provide proper support to the Claimant cannot be remedied through alternative litigation.

[40]Mr Southey argues that it is not just the incident itself which has to be taken into account in reviewing Article 3 but the overall circumstances of NM and his history in prison. He cites the following passage from paragraph 95 of Kalashnikov-v-Russia [2003] 36 EHHR 34 which provides as follows, “Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant.”

[41]Mr Southey submits with reference to Article 3 that the investigative obligation arose in the context of the Defendant’s failure to learn lessons from the Ombudsman’s report prepared following the incidents at Glen Parva. The procedural and substantive obligations overlap. There was a need to learn lessons from what had happened. The result has been an inadequate inquiry with an implicit conclusion that this was a one off incident disregarding the implications of the Claimant’s previous history and the possibility of grooming. All the steps taken, whether part of the inquiry at the time or not, form part of the Article 3 evaluation. The process undertaken was far too narrow and did not involve the Claimant. In a case involving violence with a sexual element and apparent negligence by the defendant the case for an Article 3 investigation is compelling. It is also supported by provisions of the United Nations Convention on the Rights of Persons with Disability, Paragraph 17 of which provides “Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others”. It is submitted that while this is not a source of law in the strict sense it can properly be consulted as it addresses those human rights that are generally recognised throughout the European family of Nations, in particular the nature and scope of those fundamental rights that are guaranteed by the European Convention (see Munby J at paragraph 51 in R (Howard League) v Secretary of State

[2002] EWHC 2497 (Admin)

Defendant’s submissions

[42]Ms Gallafent submits first that PSO 1300 needs to be seen in context. It is only one of a range of forms of investigation open to the Defendant following an incident. PSO 1300 contains mandatory directions in italics but the plain font is advice. The PSO cannot be read like a statute. The decision is essentially one of judgment as the words in italics make clear. That judgment needs to be applied in a context where there are 62,000 incidents each year. Even if the number is reduced to be limited to those where Article 3 is potentially engaged, the numbers would be impossibly high. Practicability and the availability of resources are judicially recognised as relevant considerations. An investigation was unnecessary given that the essential facts were common ground, those that were not agreed were resolved by the Defendant in the Claimant’s favour and eventually conceded by the assailant F. The Claimant does not identify how the Article 3 criteria apply to him. The incident led to no disorder, no damage to property and no physical injury to the Claimant. While the incident was very unpleasant it has had no major consequences and has done the claimant no serious harm.

[43]Ms Gallafent submits that 3C.8 of PSO 1300 was not applicable in the current case first because no investigation was or was required to be carried out under PSO 1300 and secondly because the provision can be taken to be referring to someone who is being interviewed comparatively formally in circumstances where their conduct is under investigation.

[44]The Defendant submits that the claimant is overstating the extent of a right of a complainant to natural justice where facts are being investigated. Those rights arise only when the inquiry is potentially detrimental to the witness. Miss Gallafent relies on Mahon v Air New Zealand

[1984] AC 808

and Disclosure Commission v Isaacs

[1988] 1 WLR 1043

[45]Apart from the delay caused by clerical error the conduct of the prison in relation to the police was appropriate in view of the Claimant’s wish for the police to be involved. The adjudication hearing was opened and adjourned as required by 4.28 of PSO 2000. The prison is entitled to exercise judgment about the timing of calling in the police and the decision of the officers on the night of the incident was appropriate. The clerical errors are regretted. The Governor has apologised. Article 3 does not require an urgent referral to the police unless there is a real risk that evidence might be lost without it.

[46]As regards PSO 2855 and disability the defendant contends that a DLO had been nominated and was accessible to the Claimant should he have wanted this. Despite his disabilities the claimant could read and write. Details of the disability policies at the prison are available. Furthermore NM was given support by Mr Wigman in making the complaint and perhaps as a result of that gave a clear account which impressed Mr Ward with its cogency and which NM then set out in writing.

[47]Miss Gallafent submits that there is no basis for NM to argue that F posed a real and immediate risk. F had no history of offending or of assault within prison beyond, according to Mr Ward, one VRS entry for inappropriately touching another prisoner in the past. No further action had been taken about that.

[48]The Defendant complains that NM is seeking to create a novel positive obligation under Article 3 that requires the State to learn lessons from a previous investigation. The Claimant contends that Article 3 was broken because a primary lesson that ought to have been learnt from the Ombudsman’s investigation in 2008 was the need to comply with PSO 1300 and that this did not occur after the incident on 6 June. That case fails on its facts because in 2008 while the Ombudsman found that an investigation under PSO 1300 ought to have been held it expressly declined to suggest that there was a wider lesson or to recommend that the Prison Service issue a reminder to Governors of their responsibilities in this regard. As Elias LJ held in AM when considering the purpose of learning lessons it would be inconsistent with the fact sensitive nature of these cases to suggest that the procedural obligations arising must always achieve the full objectives identified in AM. She also drew attention to the impossible onerous financial burden that that would involve. Similar considerations apply to the investigative obligation itself. As Elias LJ put it in AM“in my judgment the principles derived from the authorities clearly do not require the State to set up an independent inquiry whenever anyone in custody made allegations that there had been a breach of Article 3. The financial cost would be wholly disproportionate to the benefits” (paragraph 112) and (para 115) “in many, perhaps most, Article 3 complaints the combination of civil and criminal proceedings would be enough to satisfy the Article 3 procedural obligations”.

[49]The Defendant argues that it initiated an investigation that referred the matter to the police whose involvement only ended after the Claimant himself had requested this. The matter was then dealt with by an adjudication against prisoner F against whom a charge was found to be proved. The person responsible for the ill treatment was properly identified and punished and subjected to investigation by VRS. There was a regrettable delay in involving the police for which there has been an apology. If the claimant had wished the police to investigate they would have done so. If the claimant had wished to bring civil proceedings alleging a substantive breach of Article 3 he could have done so.

Decision of the Court

[50]I first refer to natural justice. The three cases relied upon concerned inquisitorial inquiries. In Mahon and Saville the witnesses concerned were in a sense parties. Their conduct was under scrutiny and they faced the possibility of public criticism and its consequences. In Isaacs the complainant was refused parity of treatment with a party litigant because, among other things he had nothing to lose apart from his complaint being rejected. He did not fall within the principle behind what used to be called audi alteram partem as put by Lord Denning in Reg v Race Relations Board, Ex parte Selvarajan [1975] 1 W.L.R. 1686, 1693-1694,:

“In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion… In all these cases it had been held that the investigating body is under a duty to act fairly: but that which fairness requires depends upon the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely afflicted by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.”

[51]There is no sharp distinction between those witnesses who have rights to natural justice and those who do not. All tribunals have an obligation to provide procedural fairness-see for example Saville at 1868- and that must extend to all witnesses but how far that duty goes depends on the circumstances. NM was the victim and did not face the prospect of sanction or criticism. The practical extent of the fairness to which he was entitled was less than it would have been if he had been accused of misconduct and had faced the risk of sanction. He had nonetheless the right to be treated fairly.

[52]The first claim of NM is that the defendant is in continuing breach of the duties imposed by PSO 1300, PSO 2855 and PSO 2700. As refined at the hearing the claim is that the defendant is in breach of PSO 1300 particularly when seen in the context of obligations under the other PSOs which NM claims have been disregarded. Mr Southey’s submissions have force when examined simply against the text of PSO 1300 without distinguishing between what is mandatory and what is guidance. But a PSO 1300 investigation, simple or formal, is only one of a range of methods of inquiry open to the defendant. The question is not whether particular provisions of PSO 1300 were complied with but whether the decision to take a different route, a decision not to use PSO 1300 at all, was unlawful. In my judgment it was not.

[53]NM had suffered, at least on his account, an unpleasant experience at Glen Parva apparently being terribly abused by a cell mate. This resulted in the Ombudsman’s investigation to which I have referred. He also claims to have suffered an assault at Swinfen Hall. It is correct that neither of these matters were taken into account in the decision about how to investigate the assault on 6 June. It is also clear that while the prison was aware of NM’s learning disability this factor was not known to the officers in his unit responsible for the decisions that were taken. The disability policy of the prison should have led, if not to the appointment of an appropriate adult or something similar, to explicit sensitivity to NM’s difficulties.

[54]One can envisage circumstances where the absence of that assistance might have led to misunderstanding or injustice but there was, as I see it, no real prospect of that in this case. The claimant reported the incident first to his father then to an officer. The matter was carefully considered by three officers and much was common ground from the outset other than F’s initial claims that the incident was consensual. F was a friend of NM, had been invited into the cell and had been there some time before the incident occurred. It was very unlikely that any third party would have witnessed the incident or, if he had, have been close enough to it to form a useful or reliable view. There was no prospect of CCTV casting any light on the matter. The Claimant’s wish to have the matter reported to police was respected. The Claimant’s version of events was accepted by the investigating officers and eventually confirmed when F acknowledged guilt. There was no bodily injury or aggravating feature. There was no reason to suspect at the time that F had misused tablets to make NM sleepy. One cannot know if had an appropriate adult been involved, NM would have mentioned this aspect at the time. This issue was not raised on NM’s behalf, despite the fact that he was represented by his solicitor throughout, until some 6 months later in a witness statement in these proceedings. NM’s solicitors had written on his behalf in April and May about other matters and their letter of 22 June raised over five pages very detailed concerns about the incident.

[55]The Claimant had sound reasons for deciding, after all, that he did not want a police investigation. His solicitors were aware of that decision relatively soon after it was taken and were in a position to advise him to change his mind.

[56]Overall the facts of the incident were not in dispute, there was no bodily injury. The incident involved only F and NM. There is no suggestion or misconduct by the authorities. The claimant’s disability was overlooked but it would not need further investigation to identify the fairly obvious defect that while the disability was known to the prison it was not, as it should have been, known to the officers dealing with NM at the unit. As I see it, the decision to investigate in the manner which the prison decided upon was a reasonable one, it was in breach of no PSO or other regulation and well within the range of reasonable options open to it. The error in correspondence which suggested that there had been a ‘simple’ PSO 1300 investigation is irrelevant.

[57]Police investigation and civil litigation were open to the Claimant in respect of an incident which although serious in itself is no doubt a common one in prison. That remains the position even looking at the Claimant’s background and the fact that he may well have been assaulted in prison before in different circumstances. Observations in decided cases about the need for an Article 3 investigation of more complex incidents involving serious injury, or larger numbers of potential victims, or allegations of direct infringement by the State cannot be applied without qualification to a single incident affecting one individual where there has been no bodily injury let alone life threatening harm. I cannot put a number on how many comparable incidents occur in prisons each year but it must be very large. I cannot assess the cost and practical difficulty of organising large numbers of inquiries such as that sought on behalf of NM but it must be very high. One wonders, if inquiries on such a scale were carried out, how many truly new and useful lessons could be learned. The formidable submissions by counsel and solicitors for the Claimant might well have application in different circumstances but not given the facts of this case. The picture is a long way from a conventional failure or refusal by the State to look into allegations of inhuman or degrading treatment made by a vulnerable prisoner. Indeed in this litigation the State has also provided the prisoner with representation by leading and junior Counsel and solicitors on a scale greater than it has provided to itself. This application is refused.

[58]NM has remained in prison, having been diagnosed by the Defendant with a learning disability, but without those who deal with him day to day being aware of his difficulty until the end of February 2011. His solicitors have raised substantial concerns about NM’s lack of progress through the system. It should be possible to address those concerns without the need for more complex litigation. I detect in the correspondence no sign on either side of a willingness to try to resolve these matters through discussion. The Court will require this to be addressed at the hand down of this judgment.

[59]I shall be grateful if the parties will, not less than 72 hours before the hand down of this judgment let me have a list of corrections of the usual kind and a draft order, both preferably agreed, and a note of any matters which need to be raised at the hearing.

[60]I am grateful to Counsel and solicitors for the admirable way in which this case was presented and prepared. GH017517 SO