CJ & Ors v The Chief Constable of Wiltshire Police [2022] EWHC 1661 (QB)

“At approx. 1030 this morning whilst editing some pictures for her sister, she [CP] came across approx 10 photos which showed 6 yr old – 7 yr old boys naked in different poses. RP does not know the children, nor are they known to her family. The laptop she was using is a family computer located in the lounge of the home address. RP lives with her mum but states that her Dad is previous rape and incest [sic] towards her older sister. Dad was the one who gave RP the laptop but this was some time ago. … The images are still on the laptop at home. All family members have been asked about the pictures living at the RP’s address but no-one can explain them. RP has stated she has recently downloaded Photoshop from the Internet through a free trial. When she went to edit the family pictures this morning, she typed Photoshop in a search on her computer and this is when the images popped up. She states they are actually saved to the laptop and not just pop-ups from the Internet. The boys in the pictures are around 6-7 years old and photos are of different boys. Most are either naked or without trousers and some have been edited using what appears to be effects from Photoshop such as one picture of a field in black and white, then a naked boy in colour in the middle. RP and family are very distressed about the photos. … Other photos look like they may have been taken at a home. … RP has given me a list of family names who have access to the computer and live at the home address: mum, stepfather, sister, sister’s boyfriend, RP’s boyfriend and MP brother.”

“At approximately 8pm that same day 2 officers, a male and female, attended my home address … The male officer sat and looked at the laptop, I could see what he looked at, I saw photos of 2 male children. I then saw the male officer jolt back and when I looked at the screen I could just see a zoomed picture of a bottom and an anus. The officer didn’t say anything, just closed the laptop. … The officers asked [CP] if she wanted the laptop back once they had finished with it and CP said ‘no’, told them that they could destroy it.”

“I attended [address] after [CP] reported that she had located indecent images of young boys on her laptop. CP stated she was given the laptop as a gift from her father, who had given [it] to her after purchasing from a friend. He told her he had cleaned the laptop of everything that was on it when he bought it [for] her. [The father] is a convicted sex offender and being monitored by PPU [Public Protection Unit]. The laptop is a HP PAVILION ZE4800 and looks very old. It is in constant use in a busy household by a normal family. [CP] located the folder when she had tried to reuse an old programme she had downloaded as a free trial not long ago called Photoshop. When she did this, she opened a document titled 24068996WuK.jpg dated 09/12/2012. I checked the properties on the file and it says it was created at 1931 hrs 09/12/2012. There is the property [sic, should be “possibility”) the document could be a malicious virus/download since the family did not have any anti-virus protection. I seized the laptop as exhibit TE/1 at 2200 hrs 21/12/2012 but the family are happy that it is now destroyed. I intend to submit this for examination because should the creation of that folder/document pre-date the time when [CP] was handed the laptop (about a year ago) then I will have cause to speak with [the father]. As for the pictures themselves I have checked them briefly to check they were indecent. They appear to be lower end matrix, but I discontinued before seeing them all.”

“Password is ‘sexytime’.”

“When the request is risk assessed we look at the seriousness of the offence, this is more about the offence that is being investigated, whether it is rape, murder, GBH and then we look at whether the case would be of significant public interest. This could be a police officer, priest or a doctor, someone who if the media found out possibly cause public interest. The referral by DS Ellerby was assessed and judging by the score, I would say it would have been middle to low on our outstanding cases list. This was because of the fact that [the father] was an existing sex offender and was already being managed by the force and the other details provided on the 913 submission form.”

“The panel then considered the period of time spanning 20 May 2014 and the 1st July 2015 (’the second period’). During this period Mr Ellerby admitted the following: 1. Save for informing the Public Protection Unit that he had received the computer on 20 May, he did not inform any other person about the findings of the HTCU. 2. He did not ask for advice from any supervising officer or specialist as to the appropriate course of action he should take. 3. He did nothing actively to advance the investigation and failed to make any record on Niche as to the material that had been recovered by the HTCU. It is significant that Mr Ellerby had an understanding of how important it was for records to be updated.”

“He must have been aware that any competent police officer in his position would either have actively advanced the investigation or alternatively have handed it over to somebody more experienced. His failure to do either of these things over a period of 11 months was inconsistent with that which would be expected of' a diligent and competent officer. These failures demonstrated a lack of integrity in that he both failed to act in the right way and failed to do the right thing at any point in the second period. These failings are capable of justifying dismissal and therefore constitute gross misconduct.” records to be updated.”

“Your serious failings, as we have found them to be, between 20 May 2014 and 1 July 2015 are difficult to understand. You have in reality offered no satisfactory explanation at any stage of proceedings for failing either to progress the investigation, or if, as you profess that you were too busy to advance it, hand it over to another officer. As a result of your behaviour, you created a risk of harm to children. You rightly pointed out in your interview you knew that there was a likelihood that had you recorded things that you should have done those in charge of issues of child protection would have potentially had access to information that could have helped them to protect the vulnerable. You will have to live with that decision. … Had matters rested there it is likely that we would have had no option but to dismiss you. We have however asked ourselves whether or not public confidence in the police force would be undermined if you were to remain an officer. We have had the unique opportunity in this case to hear the views of members of the public who are directly affected by your failings. They have been present throughout these proceedings and have heard you give evidence. They have demonstrated a degree of compassion and humanity which one may not have expected. Neither of the family representatives present here seek your dismissal. We find this to be the most compelling mitigation available and although not being determinative, we regarded their views as indicative of the wider public confidence in the police service. It is with this in mind that the panel has determined that the proportionate outcome is that of a final written warning rather than dismissal in relation to all three allegations. You need to be aware that but for the views expressed by the families today you would have faced immediate dismissal.”

“Prior to offering the job to MP, we ensured that he had a clean DBS certificate. I am a qualified teacher and all of my professional life I have worked with children. I am therefore very familiar with the DBS process and the look and feel of a DBS certificate. At the time we interviewed MP, he had recently turned 18 and the DBS certificate he showed us was for people under the age of 18, had been recently issued (within the previous couple of weeks) and I believe it had been requested by the Scouts, with whom MP already worked. At this time, MP also showed us all of his documents in his college issued National Records of Attainment folder, which included the DBS certificate. The certificate specifically covered the age category of children which was applicable to us and there was nothing on that DBS certificate that gave me any cause for concern. I would not have employed MP had he not been able to produce a clean DBS certificate because I am well aware of the importance of such a check due to my professional experience. MP’s profile on Childcare.co.uk also included that he had a current and recent DBS certificate. We discussed that a new DBS certificate would be issued shortly because MP had turned 18. Part of the attraction of MP was that he was already well known to Scouts and he did work with Swindon Multi Agency Safeguarding Hub (SMASH) and was therefore known to the local authority as someone suitable to work with children. I recall that MP had two DBS certificates, one requested by Scouts [she said in evidence that she did not actually see this one] and one requested by SMASH. I recall understanding that to fulfil either role at Scouts or SMASH mentoring, MP must have had appropriate DBS certificates as both roles required them. I understood that Scouts certificates would cover the activity and age range of my children, and SMASH would cover the vulnerability my children were recognised to have. I recall seeing the one that had been requested by Scouts. This was of particular interest to me because I knew that Scouts did not accept certificates transferred from other organisations. The fact that MP already had a DBS certificate requested by Scouts meant that there wouldn’t be a delay in him being able to start supporting the children in attending Scouts as he was already an accepted supporter.”

“I’ve now got the laptop results and am in a position to review them.”

“The panel has considered the chronology of events and identified 2 periods of time; The first between 21 December 2012 and the 19 May 2014 (’the first period’). These are the dates which span the date of seizure of the laptop computer and it being analysed by the High-tech Crime unit (HTCU). The panel accepts that, during the first period, there was little of significance that could have been achieved by Mr Ellerby in progressing the investigation because the timing was entirely within the gift of the HTCU. The panel therefore has paid no regard to this period in assessing whether the admitted conduct amounts to gross misconduct. It is simply background to the fundamental issues that have to be decided.”

“You did not take witness statements from any of the individuals present at the address, including MP, and you should have done. You based your decision not to question MP on the fact that he was helpful, “had a baby face” and was only sixteen years old. Your decision not to question him, for those reasons, was wholly misconceived. Further, he admitted having used the laptop during the relevant period when the indecent images had been created, yet you did not ask him questions about that either at the time of seizure or at any time thereafter. You passed the laptop to the HTCU who did not examine the laptop and provide the results of their analysis to you until April 2014. In the intervening period, and once you had received the results of the analysis, you did not carry out any or adequate investigations into the suspected offences resulting in unacceptable delays and inactivity. In particular, you failed to approach or question BP or MP. You did not inform the Child Abuse Investigation Team or the Public Protection Unit, and you should have done. You also chose not to seek any guidance as to how to manage the Investigation, despite having no relevant experience of investigating sexual offences involving children. You did not inform your line manager or any other senior officer that you had ownership of the case, or that there were significant delays in the investigative process and you should have done. Your conduct in not involving your line manager or any other senior officer shows a lack of transparency to your actions. You also failed to record the investigation as a crime, or record on Niche that MP was a nominal. Your experience in investigating such crimes was totally inadequate and you should not have retained the investigation. You did so to improve your own skill-set, which was wholly inappropriate and reckless.”

“102. In my opinion, DS Ellerby, as the investigating officer, failed to sufficiently investigate the allegations against [MP]. In addition, the accounts that I have obtained throughout this investigation have shown that DS Ellerby, by failing to follow appropriate procedures, was not transparent and open with supervising officers and avoided formal audit and scrutiny. 103. DS Ellerby should have recorded MP as a nominal on Niche at the time the laptop was seized. Had he done so the data would have been transferred from Niche to PND [Police National database] creating a record associated with MP. As a result, several CRB checks conducted by babysitting web based companies did not highlight any concerns. This failure clearly contributed to [MP] being afforded unrestricted access to the children he offended against.”

“14. There is guidance in the caselaw for courts exercising discretion under s.7(5)(b). The Supreme Court in Rabone v Pennine Care NHS Trust [2012] 2 AC 72 said this (paragraph 75): ‘The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one-year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However … the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.’ 15. So it is not wrong for a court to have regard to the s.33 factors if it considers it proper to do so in the circumstances of a particular case, but they must not be treated as a fetter on discretion. Instead, the court is to examine all the relevant factors in a case and consider whether it is equitable to allow a period of longer than one year. There is no predetermined list of relevant factors, although proportionality will generally be taken into account. The weight to be given to any particular factor is a matter for the court. (P v Tameside MBC [2017] 1 WLR 2127 at paragraph 67). 16. P v Tameside (paragraphs 77-79) is also authority that a court must have regard to the policy reasons for Parliament adopting a much tighter limitation period in HRA claims than usual, and that these may be similar to those for the tight 3-month limit in judicial review proceedings. It is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are by definition brought against public authorities, and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event. The court must look critically at the explanations given for the delay, set against these policy considerations. Delay is always a relevant consideration whether or not there is actual trial prejudice to a defendant. However the ‘burden of persuasion’ on a claimant is not necessarily a heavy one and there is no burden to establish lack of prejudice to the defendant. 17. The High Court in Alseran & Ors (Iraqi Civilian Litigation) v MoD [2017] EWHC 3289 (QB) took emphasis from the judgments of Lord Dyson and Lady Hale in Rabone that the merits of a claim may be the ‘most important of all’ the points which may militate in favour of granting an extension, and that it is ‘important that fundamental human rights are vindicated’. It also noted that ‘evidential prejudice’ to a defendant, where delay means that witnesses cannot be traced or memories have faded, may militate against the fairness of granting an extension. 18. Most recently, the High Court in Newell v MoJ [2021] EWHC 810 (QB) directed itself not to put any qualification to, or gloss on, ‘equitable having regard to all the circumstances’. It must mean being fair to each side.” ‘The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one-year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However … the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.’ It is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are by definition brought against public authorities, and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event. The court must look critically at the explanations given for the delay, set against these policy considerations. Delay is always a relevant consideration whether or not there is actual trial prejudice to a defendant. However the ‘burden of persuasion’ on a claimant is not necessarily a heavy one and there is no burden to establish lack of prejudice to the defendant. 17. The High Court in Alseran & Ors (Iraqi Civilian Litigation) v MoD [2017] EWHC 3289 (QB) took emphasis from the judgments of Lord Dyson and Lady Hale in Rabone that the merits of a claim may be the ‘most important of all’ the points which may militate in favour of granting an extension, and that it is ‘important that fundamental human rights are vindicated’. It also noted that ‘evidential prejudice’ to a defendant, where delay means that witnesses cannot be traced or memories have faded, may militate against the fairness of granting an extension. 18. Most recently, the High Court in Newell v MoJ [2021] EWHC 810 (QB) directed itself not to put any qualification to, or gloss on, ‘equitable having regard to all the circumstances’. It must mean being fair to each side.”

“It is accepted that the negligence claims in the OB and HD/PD cases are bound to fail given existing precedent (at 1st instance at least) and are reserved insofar as those cases proceed to a higher court. This Court is invited to dismiss the claims at §5 and 73 of OB and §5 and 83 of the HD/PD particulars of claim”

“113B Enhanced criminal record certificates (1) DBS must issue an enhanced criminal record certificate to any individual who— (a) makes an application (aa) is aged 16 or over at the time of making the application, and (b) pays in the prescribed manner any prescribed fee. (2) The application must— (a) be countersigned by a registered person, and (b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a prescribed purpose. (3) An enhanced criminal record certificate is a certificate which— (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter or information. (4) Before issuing an enhanced criminal record certificate DBS must request any relevant chief officer force to provide any information which — (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and (b) in the chief officer’s opinion, ought to be included in the certificate.”

“The legal principles 169. In determining the existence or otherwise of a duty of care in the three cases, Lord Toulson and Lord Reed applied the orthodox common law approach and the established principles of law. What follows is a distillation of the key general principles drawn from those cases. ... i) At common law public authorities are generally subject to the same liabilities in tort as private individuals and bodies. Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority. It follows therefore that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence (Robinson at [33]). (ii) Like private individuals, public authorities are generally under no duty of care to prevent the occurrence of harm. In MP, Lord Toulson said at [97]: “English law does not as a general rule impose liability on a Defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] A.C. 241. The fundamental reason as Lord Goff explained is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else”. (iii) The distinction between negligent acts and negligent omissions is therefore, as Lord Reed said in Poole at [28] of fundamental importance. Lord Reed reflected that the distinction to be drawn could be better expressed as a “distinction between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale for the distinction drawn in the authorities and partly because the distinction between acts and omissions seems to be found difficult to apply”. (iv) Public authorities do not therefore owe a duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body, see Robinson at [35]. Lord Reedcontinues at [36] “That is so, notwithstanding that a public authority may have statutory powers or duties enabling or requiring it to prevent the harm in question”

“It was reasonably foreseeable that risk of harm to the Property by an unknown third party was (marginally) increased for one hour on the morning of 30 September 2014. However reasonable foreseeability of harm is inadequate to give rise to a duty of care at common law.”

“10. The officers left without giving us an indication of next steps. They didn’t mention anything about us giving formal statements and didn’t leave us a card with their contact details. We weren’t given a crime reference number or left with a receipt for the laptop they’d taken. It was only later on that I realised that I hadn’t actually been left with any information. 11. I had just assumed that it would be investigated thoroughly, particularly with our family history. I had reiterated this to the officers who attended at our house as well as the officer I had spoken to earlier that day at the police station.”

“63. In spite of Mr Levinson’s valiant efforts to describe the claims in terms of allegedly negligent acts, in both cases all the allegations relied on are unquestionably allegations of negligent omissions, as is abundantly clear if considered by reference to the terminology preferred by Lord Reed and the “distinction between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than the more traditional distinction between acts and omissions”

“merely because something can be presented as an act does not mean that what are, on a proper analysis, omissions can be, as the judge put it, “brought wholesale within the parameters of a duty of care”” [121] Or to put it colloquially, to fail to see the wood for the trees.” the Court of Appeal in Kalma: Or to put it colloquially, to fail to see the wood for the trees.”

“(i) Where a statutory authority (including the police) is entrusted with a mere power it cannot generally be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. In general the duty of a public authority is to avoid causing damage, not to prevent future damage due to causes for which they were not responsible: see East Suffolk, Stovin; (ii) If follows that a public authority will not generally be held liable where it has intervened but has done so ineffectually so that it has failed to confer a benefit that would have resulted if it had acted competently: see Capital & Counties, Gorringe, Robinson; (iii) Principle (ii) applies even where it may be said that the public authority’s intervention involves it taking control of operations: see East Suffolk, Capital & Counties; (iv) Knowledge of a danger which the public authority has power to address is not sufficient to give rise to a duty of care to address it effectually or to prevent harm arising from that danger: see Stovin; (v) Mere arrival of a public authority upon, or presence at, a scene of potential danger is not sufficient to found a duty of care even if members of the public have an expectation that the public authority will intervene to tackle the potential danger: see Capital & Counties, Sandhar; (vi) The fact that a public authority has intervened in the past in a manner that would confer a benefit on members of the public is not of itself sufficient to give rise to a duty to act again in the same way (or at all): see Gorringe; (vii) In cases involving the police the courts have consistently drawn the distinction between merely acting ineffectually (e.g. Ancell, Alexandrou) and making matters worse (e.g. Rigby, Knightly, Robinson); (viii) The circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited. It is not sufficient that the police are specifically alerted and respond to the risk of damage to identified property (Alexandrou) or injury to members of the public at large (Ancell) or to an individual (MP); (ix) In determining whether a public authority owes a private law duty to an individual, it is material to ask whether the relationship between the authority and the individual is any different from the relationship between the authority and other members of the same class as the individual: see Gorringe, per Lord Scott.”

“71 I cannot accept the claimant’s submission that a duty can arise in circumstances “where a defendant had the power to exercise physical control, or at least influence, over a third party, including a physical scene (such as the accident scene in the present case) and, absent their negligence, ought to have exercised such physical control.”

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

“The court may receive applications from any person… claiming to be the victim of a violation by one of the High contracting Parties of the rights set forth in the convention…” convention…”

“It is the Claimant’s case that the court should be concerned with the overall investigation into MP. Only that approach satisfies the state’s overall positive obligation under A3 to investigate and prevent child abuse. To hold otherwise is to salami slice the state’s obligations to a nullity. At the core of this case is the police’s failure to a) obtain intelligence about MP timeously b) share it with those who were capable of acting on it to protect the claimants from abuse. Otherwise, why bother with ‘Working Together’ and Enhanced DBS checks?”

“The subject of the investigation which began in December 2012 was the provenance of the indecent images. The subject of the investigation which began in April 2015 was the abuse of the Claimants HD/PD (and later OB and CJ/PJ) following the first report of a contact offence. The latter engaged Article 3 ECHR. The former did not.”

“73. The Court re-iterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms to find in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.”

“216. Fifthly, where a credible allegation of a grave or serious crime is made, the police must investigate in an efficient and reasonable manner which is capable of leading to the identification and punishment of the perpetrator(s) (MC v Bulgaria para [153]; Vasiliyez v Russia para [100]). The question of what is meant by “capable” raises some important issues and I have addressed these in more detail at paragraph [226] below. 217. Sixthly, the duty is one of means, not results, i.e. the police will be in breach of Article 3 if the conduct (the means) of the inquiry falls below the requisite standard. The breach can occur in principle regardless of whether the investigation leads in fact to arrest, charge and conviction (the result) (Edwards para [71]; Beganovic v Serbia para [75]; Milanovic v Serbia para [86]).”

“although Convention guarantees were only enjoyed against the state, and ill-treatment by a non-state agent did not of itself constitute a breach of article 3, it was inherent in the Convention’s purpose that the state was to protect persons within its jurisdiction against such brutalities, whoever inflicted them; that as a result article 3 accorded safeguards which were broader than the bare prohibition of acts of torture or gross ill-treatment by servants of the state and extended to ill-treatment by persons who were not state agents, and had an overall, strategic, purpose to safeguard and protect in all the myriad situations where individuals might be exposed to ill-treatment of the gravity which the article contemplated; that investigative processes could be regarded as ancillary to that purpose or adjectival to the substantive right where there was a credible allegation of ill-treatment by state agents; but that where ill-treatment was by non-state agents there was no antithesis between what was substantive and what was adjectival and in such a case article 3 generally required a proper investigation and criminal process where the investigation so led; that, in applying a single principle with varying degrees of rigour according to the gravity of the case, there was a sliding scale from deliberate torture by state officials to the consequences of negligence by non-state agents; and that the margin of appreciation enjoyed by the state as to the means of compliance with article 3 was wider at the bottom of the scale than at the top, so that at the lower end of the scale the state’s provision of a judicial system of civil remedies would often suffice, but serious violent crime by non-state agents was higher up the scale and required a proper criminal investigation, the first and second cases being in the latter category.”

“What is not in the least uncertain, however, is that, if the relevant circumstances are present, there is a duty on the part of state authorities to investigate where non-state agents are responsible for the infliction of the harm. That cannot be characterised as other than an operational duty. The debate must focus, therefore, not on the existence of such a duty but on the circumstances in which it is animated.”

“The obligation contains both preventative and investigative elements and follows the example of the positive obligation of protection in Article 2. The preventative obligation requires the state to take appropriate steps to protect individuals against other private person, so that, most significantly, there is a duty to protect children from physical and sexual abuse by parents and others and to protect against domestic violence.”

“Every effort should be made to attempt to identify the victims of abuse whose images are distributed via the internet or by other means”

“Interviewing a suspect prior to the digital examination of seized storage media provides an opportunity to establish specific information such as the ownership of the computer and who has access to it.”

“22. … The question [in the Osman case] was whether the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Mr Paget-Lewis. The individuals whose lives were at risk were “identified”

“108.....the positive obligations may apply not only to situations concerning the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act, but also in cases raising the obligation to afford general protection to society….”

“repetitive violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this, of itself, does not give rise to significant risk of serious harm.”

“The link between the offending act of downloading these indecent images and the possible harm which might be done to children is too remote to satisfy the requirement that it be this appellant's re-offending which causes the serious harm. At worst there would be an indirect and small contribution to a harm which might or might not occur, depending on whether further photographs were taken in part as a result of the appellant's contribution to the market, or depending on whether a child found out about the uses to which they were put as a result. The imprisonment for public protection provisions of the Criminal Justice Act do not apply in the circumstances here, where simply as a matter of generalisation, a small, uncertain and indirect contribution to harm may be made by a repeat of this offender's offending. No significant risk of serious harm of the requisite gravity, occasioned by a repetition of the offending in this case by this offender can reasonably be said to exist.”

“it is accepted that HRA imposes a general duty to investigate ill-treatment amounting to a violation of article 3 of ECHR.”