NM, R (on the application of) v Secretary of State for Justice

The appellant, NM, is a prisoner who on 13 March 2007, when he was 19, was sentenced to indefinite detention for public protection with a minimum term of fifteen months. He had been convicted of 2 counts of sexual activity with a child and of arson (of a motorcar), together with further offences while on bail of destroying or damaging property, burglary, theft and witness intimidation. He entered detention on remand at the time of his arrest on 13 June 2006. These proceedings, complaining, now on appeal, about breach of solely the procedural obligation to hold a sufficient investigation under article 3 of the European Convention of Human Rights, arise out of an incident at HMP Whatton on 6 June 2010 when NM was sexually assaulted by a fellow-prisoner, F, during association in his cell.

NM endured an unhappy and disturbing childhood. He was originally detained at YOI Glen Parva. While there, on 6 May 2007 he reported having been subjected to sexual assaults, including rape, by his cell-mate. His case was taken up by the Howard League for Penal Reform (the “Howard League”). As the judge, HHJ Mackie QC remarked, it has represented him vigorously and effectively ever since, including in these proceedings. No court proceeding or adjudication was taken against NM’s cell-mate. A complaint was made to the Prisons and Probation Ombudsman (“PPO”) which resulted in a report in September 2008. The report found that Glen Parva had followed the correct reception and cell-sharing procedures but, while rejecting other complaints, upheld complaints about NM having been given inadequate support in May and June 2007 and about the absence of an investigation of the assaults pursuant to the provisions of Prison Service Order 1300 (“PSO 1300”). The governor of Glen Parva was recommended to apologise to NM in writing and to attend to other matters. The police had declined to proceed in the absence of sufficient evidence.

On 5 December 2007 NM had been transferred to YOI Swinfen Hall. It was at Swinfen Hall, in March 2008, that NM’s cognitive difficulties and low IQ were assessed. His IQ was measured at 60, a level at which 99.6% of the population would outperform him. On 26 January 2009 he was further 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.

On 22 April 2010, NM’s case note history indicated that information had been received from two different prisoners that NM might be being “groomed” by another prisoner (not F). On investigation, NM was described as “quite vulnerable”, but he had assured the investigating officer that he would not tolerate any form of sexual advance from anybody.

In his witness statement in support of the current proceedings which take the form of an application for judicial review of a “Decision not to investigate the Claimant’s assault”, NM says that on 5 June 2010 the prisoner F had made sexual advances to him, which he had not reported. On the afternoon of 6 June there was an association period when prisoners were free to visit one another’s cells. Cell doors must be kept open during such visits so that the prisoners are visible. NM says that he invited F into his cell where they drank coffee and smoked. The judge continued:

NM must have reported this assault to his father, for, at 1615 hours on 6 June the residential manager, DPSM Bristow received a call from the father who reported that NM had told him, on the telephone, that “his friend had grabbed him down below”. Mr Bristow’s contemporaneous note records that he went immediately to NM’s unit. He found that NM had also reported the matter to an officer, Mr Wigman, who was discussing it with his senior officer, Mr Ferguson. NM said he was “preparing a statement” and referred to the incident at Glen Parva. He contrasted his previous bad experience with staff at Glen Parva with his treatment from Mr Wigman who “had been very good to him and very supportive”. NM also told Mr Bristow that he did not know why he did not tell F to stop. NM came over as very matter of fact. When asked whether he would like the police involved, he said he would. Messrs Bristow, Ferguson and Wigman then discussed the matter and decided that F would be placed on report and kept under survey, without his knowledge, under the so-called Violence Reduction Strategy (VRS). Forms were completed and passed to Senior Officer Ward for an investigation.

Mr Ward carried out his investigation on 7 June 2010. He interviewed both NM and F. On that occasion F did not admit to anything improper, saying that what had happened had been consensual. NM made a short clear written statement, saying he had felt intimidated by the larger man. There was no CCTV and no independent witness. Mr Ward decided to initiate VRS surveillance for F, over 14 days. An adjudication process was also opened against F, since NM’s account was preferred to F’s.

On 8 June Ms Beeston, a manager, held the adjudication. F said he would plead guilty and then changed his plea to not guilty. Ms Beeston was unaware that NM had already said that he wanted the police to be involved, but decided in any event to refer the matter to them. The adjudication was therefore adjourned and paperwork for handing the matter over to the police (a “Formal Incident Handover”) was drawn up on 9 June. Because of inadequacies in the system, however, it 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 PC Wakeling that he was surprised that the matter had been referred as he had never asked for police involvement, and thought that the prison had already dealt with the incident. After discussion, NM confirmed that he did not want the police involved and preferred the prison to sort it out. DC Wakeling said that no question of bullying arose in their discussion.

On 26 June the prison adjudication therefore resumed. This time F admitted the sexual assault and the adjudicator, Ms Smith, found the case proved. The penalty imposed was 3 days confinement to cell, suspended. Ms Smith accepts that this penalty was too low: in the light of reflection she accepts that a more serious sanction was called for.

VRS requires a detailed log to be kept. On 21 June, at the end of the initial 14 day surveillance of F, the log was reviewed. It was decided that F and another prisoner who were spending a lot of time together should be split up; and that VRS should continue. Another fortnight later, on 5 July, the process was brought to an end, as it did not appear that F was making unwarranted approaches to other prisoners. When on 18 July NM’s own case notes record that a prisoner in the kitchens was making comments to NM about an alleged sexual assault, that prisoner was put on VRS. Some prisoners in the kitchen were making inappropriate remarks to NM about his sexuality and he was finding this hard to deal with.

On 22 June 2010 the Howard League wrote on NM’s behalf to the governor of HMP Whatton to make a formal complaint, requesting an investigation under PSO 1300, and raising questions of disability discrimination. On 19 July 2010, deputy head of residence at HMP Whatton, Ms McMeekin replied to the Howard League, to keep it up to date with what had been happening and to say that NM was receiving support from the mental health in-reach team.

It appears that at the time of the investigation into NM’s complaint, the officers in his unit conducting that investigation were not alive to the fact, as they should have been, that NM was, by reason of his learning difficulties, a vulnerable prisoner; nor had they known, until he told them in the immediate aftermath of the incident, that he had claimed to have suffered severe abuse from his cell mate at Glen Parva. The judge found that 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 (at para 53).

In the event these proceedings were commenced on 23 December 2010, with the Howard League acting as NM’s solicitors. The lengthy claim form complained of both substantive and procedural breaches of article 3, as well as of breaches of articles 8 and/or 14 of the ECHR. Declarations that the Secretary of State had breached his duties and had unreasonably failed to comply with not only PSO 1300, but also PSO 2855 (dealing with disabled prisoners) and PSO 2700 (dealing with suicide prevention and self-harm management), and that there had also been unlawful discrimination against NM on disability grounds, were sought.

NM’s first witness statement for these proceedings was dated 29 December 2010. In that statement NM made two allegations which had not been made before. One was that he had felt very sleepy at the time of the incident on 6 June. The other was that he had found white powder on the table after he had gone back into his cell. He suggested that F had “somehow crushed up sleeping pills and put them in my coffee”. He said that he had not told the prison authorities about this at the time “because I was worried that I would get in to trouble for this happening in my cell”.

Permission for claiming judicial review was granted by the order of Ms Geraldine Andrews QC dated 28 January 2011.

As the hearing before Judge Mackie approached, there was discussion between the parties as to where the claim for disability discrimination should be heard, and the parties agreed that, since it would involve oral testimony, it would be better if it were transferred to the Central London County Court. A consent order to this effect was agreed. There was an outstanding dispute as to what should happen to an aspect of the disability discrimination claim that overlapped with the complaint of breach of article 3, since NM wished to retain that within the judicial review proceedings. However, the judge resolved this dispute as a preliminary case management issue in the proceedings before him, and decided that it should go with the rest of the discrimination claim to the county court.

In the event, at the conclusion of the proceedings before the judge, and in response to his expressed concern that NM’s progress through the system should be achieved if possible “without the need for more complex litigation”, the parties agreed to stay “The remaining parts of the Claimant’s application for judicial review for the purpose of the parties seeking to resolve those matters”. It was only failing the consensual resolution of such matters, that the agreed transfer to the county court would therefore take place. NM has subsequently agreed to withdraw all such claims, leaving only (for appeal) the claim for a procedural breach of article 3 (the “investigation claim”). Thus all remaining claims under the Disability Discrimination Act 1995, the Equality Act 2010, and articles 8 and/or 14 have now been dismissed by consent.

As for NM’s claim under article 3, before the judge that partook of complaints of both a substantive breach of the preventative obligation and a procedural breach of the investigative obligation. The complaint of a substantive breach was that the Secretary of State was responsible for failing to prevent the sexual assault. It was submitted that the prison was under a duty to protect NM from degrading treatment.

However, before the judge, it was the investigation claim which attracted most attention from Mr Hugh Southey QC, who, together with Ms Felicity Williams, has represented NM both below and on appeal. The judge rejected the claim of substantive breach, saying –

There has been no appeal against this decision. NM’s amended grounds of appeal are therefore limited to the issue of breach of the investigative obligation. As his grounds state: “HHJ Mackie QC erred by concluding that investigation into a sexual assault on the Appellant was lawful”. I will revert to the grounds of appeal below.

As for the judge’s decision in respect of the investigation claim, the essence of his reasoning is in the following passage from his judgment:

NM’s amended grounds of appeal identify four issues in support of its single, broad ground that the judge erred in concluding that the prison’s investigation was in lawful compliance with the article 3 obligation. The first (the “scope issue”) was that an article 3 compliant investigation ought to have the broader objectives of ensuring that “lessons are learned”, particularly in the case of a vulnerable prisoner. The second (the “form issue”) was that a formal investigation under PSO 1300 was required. The third (the “effective participation issue”) was that without an appropriate or responsible adult assisting NM in the process, the investigation carried out was flawed. The fourth issue (the “DDA issue”), was that the judge had erred in failing to take account of the Disability Discrimination Act 1995 in considering the article 3 issues.

In support of these grounds, Mr Southey submitted: (i) as to the scope issue, that the investigation should have encompassed “learning lessons” questions such as whether the prison system was failing a vulnerable prisoner, whether there was a need for closer monitoring of NM such as may have been afforded by a disability liaison officer, and whether NM was even appropriately detained in a prison that specialised in detaining sex offenders; (ii) as to the form issue, that PSO 1300 mandated a formal or at least simple investigation pursuant to its terms (see below); (iii) as to the effective participation issue, that NM and thus the investigation carried out by the prison were at a disadvantage because NM lacked the necessary assistance of an appropriate adult; and (iv) as to the DDA issue, that the DDA, reflecting standards protected by the UN Convention on the Rights of Persons with Disabilities (the “UN Convention”), demonstrated the importance of the need for the state to make appropriate efforts towards effective participation.

On behalf of the Secretary of State, Ms Kate Gallafent submitted that the preliminary question was whether there was any obligation at all to initiate an investigation (the “trigger issue”). She submitted that, in a case in which the assault was carried out by a third person, not by an agent of the state, and where it is now common ground (in the absence of any appeal on this issue) that there has been no breach by the state of any substantive obligation, the existence of the opportunity to bring civil proceedings or to institute a criminal investigation, or to request an investigation by the Prisons and Probation Service Ombudsman, is a sufficient guarantee of the state’s duties.

As for the scope of any investigation required by article 3, there was no need for an investigation pursuant to PSO 1300, whether formal or simple. The investigation carried out by the prison had the virtue of promptness, and could have been supplemented as desired by civil proceedings or a criminal investigation. There were no systemic issues in play, or lessons to be learned other than were obvious and inherent in the incident itself. Authorities dealing with article 2, or serious incidents under article 3, or cases of complicity on the part of the state, were an unhelpful guide.

As for the effectiveness of the prison investigation, there was nothing to suggest that the judge erred in finding that NM’s participation was effective. He had been assisted throughout by his father and the Howard League. The new matters raised in his witness statement, never previously mentioned, are not likely to have been mentioned earlier, even if an appropriate adult had been available: for instance, they were not raised in the Howard League’s letter of 22 June 2010 or its subsequent letter before action.

As for the DDA issue, this had not survived the parties’ agreement together with the judge’s case management decision to adjourn all such matters raising allegations of discrimination to the county court.

In R (MM) v. Secretary of State for the Home Department [2012] EWCA Civ 668, only a week before this appeal was heard, Pill LJ remarked that the scope of the investigative obligation under article 3 has been the subject of intense scrutiny in recent years. At [12]-[28] of his judgment he discussed some of the relevant jurisprudence, which makes it unnecessary for me to do so at length.

In sum: (1) There is a different emphasis between articles 2 and 3: see Banks v. United Kingdom (application no 21387/05, 6 February 2007), R (L) v. Secretary of State for Justice [2008] UKHL 68, [2009] 1 AC 588 at [67]-[69], and R (AM and others) v. Secretary of State for the Home Department [2009] EWCA Civ 219, [2009] UKHRR 973. In article 2 cases, the victim will have died and the only persons with knowledge of the circumstances are officers of the state; whereas in article 3 cases the victim is generally able to act on his own and give evidence on his own behalf. (2) In article 2 cases, where death is involved, and particularly where this occurs in a state institution such as a prison or secure hospital, there is an especially grave concern for a full investigation into the circumstances of the death, not only to secure the accountability of state authorities, but also to learn lessons from systemic mistakes; and this could apply to failed suicide attempts in prison: see R (Amin) v. Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 R (Takoushis) v. Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461, and R (L) v. Secretary of State for Justice [2008] UKHL 68, [2009] 1 AC 588. In article 3 cases, however, there are likely to be fewer breaches resulting from systemic wrongdoings which may require full investigation (see Elias LJ in AM at [104]). (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: see also R (P) v. Secretary of State for Justice [2009] EWCA Civ 701, [2010] QB 317, approving Longmore LJ’s analysis in AM. (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 (see Sedley LJ in AM at [4]). 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: see MC v. Bulgaria (application no 39272/98, 4 December 2003), Secic v. Croatia (application no 40116/02, 31 May 2007), Maryin v. Russia (application no 1719/04, 21 October 2010). (5) The investigative obligation, particularly under article 3, is highly fact sensitive and subject to resource implications (L at [56] and [77], AM at [107], and P at [58]). “Where the line is to be drawn is a matter of fact and degree” (per Richards LJ in R (Mousa) v. Secretary of State for Defence [2010] EWHC 3304 (Admin).

In P at [58] Stanley Burnton LJ said this:

Also relevant is this passage from R (C) v. Secretary of State for Justice [2009] QB 657 per Buxton LJ at [58]:

PSO 1300 is concerned with investigations. Its purpose, as explained by Martin Lee, head of the intelligence and operations unit of the National Offender Management Service (NOMS), who made a witness statement in these proceedings as the manager with responsibility for policy in respect of PSO 1300, is to provide a template under which investigations may be commissioned and regulated. PSO 1300 divides investigations into “simple” and “formal” investigations. By far the greater part of the document is concerned with formal investigations. Although at one time it was said that HMP Whatton’s investigation was a simple investigation within PSO 1300, it appears to have been acknowledged that that was not the case. However, it is not entirely clear how a simple investigation within PSO 1300 and a local investigation such as was carried out in this case differ. As para 1.1 of PSO 1300 states: “The most significant changes concern simple inquiries. These have been re-named ‘simple investigations’ and brought within the scope of this PSO”. As appears below, however, Mr Southey’s complaint about the application of PSO 1300 was concerned solely with what the Order says about the requirements of a formal investigation.

Mr Lee explained that there was a range of possible investigation options which could in practice be carried out. Managers were expected to deal regularly with many incidents, allegations and complaints as part of their everyday activities without recourse to an “investigation” within PSO 1300, whether formal or simple (or some other PSOs governing deaths in custody and breaches of code and conduct for staff). If PSO 1300 investigations were commissioned routinely then the prison system would quickly become unworkable. In 2010 some 62,000 incidents were reported. PSO 1300 was generally only applied where the allegation raised more wide reaching issues such as disorder or loss of keys where the need to learn lessons was clear. In addition, Mr Bristow’s witness statement stated:

PSO 1300 paras 1.5 and 1.6 are headed “Types of investigation”. It is worth setting out this passage in full, so that it may be understood in context:

Formal investigation

Mr Southey referred to the third bullet point in para 1.6.1 to submit that the incident which befell NM had not been handled appropriately. However, Ms Gallafent submitted that the concept of sexual harassment went materially beyond any incident with a “sexual element” (which was Mr Southey’s gloss). I agree. The whole context of para 1.6 is consistent with the need for a formal investigation only where the seriousness of the allegations, or the seriousness of the consequences, require it. Mr Southey was asked during his submissions if he was in fact submitting that a formal investigation had been required. He gave an uncertain and equivocal answer.

Mr Southey also referred to paras 3C.4.3 and 3C.8.1 of PSO 1300, which lie under the rubric of formal investigations:

consider, on the interviewee’s behalf, whether legal advice should be taken and to advise the interviewee generally;

to observe whether or not the interview is being conducted fairly and properly, and to intervene if it seems necessary to do so;

to facilitate communication between the interviewer and the interviewee; and

to read any record that is made of the interview and to sign it as correct or to indicate any respect in which it is not considered accurate.”

Mr Southey acknowledged the judge’s finding that there was no need for a responsible adult, but submitted that without one there was a risk that NM’s participation was not effective. In my judgment, it is difficult to fault the judge’s finding. It is true that if the officers on NM’s unit had known of his learning difficulties, as they should have known, they might well have afforded him a responsible adult, even though para 3C.8.1 is part of the requirements of only a formal investigation. The judge nevertheless recognised that the prison’s disability policy “should have led, if not to the appointment of an appropriate adult or something similar, to explicit sensitivity to NM’s difficulties” (at para 53). But he went on to find that there was no real prospect of any misunderstanding or injustice in this case. Nor is there any sign in the facts of the case to suggest that NM was afforded any lack of assistance. Thus his version of events was accepted by the investigating officers and there was in any event much common ground, other than that F’s initial version was that what had occurred had been consensual. NM’s desire to involve the police was respected. There was no bodily injury or aggravating feature of the incident. There was no reason to suspect at the time anything to the effect that F had misused tablets to make NM sleepy, and in any event that allegation was not made for six months, even though NM’s father had been immediately involved, and the Howard League and thus solicitors were involved not long thereafter. Already on 22 June 2010 the Howard League wrote a five page letter but said nothing of this concern. It is difficult to think that NM, who complained immediately to his father and to the officers on his unit, had the assistance of his father in the background as well as that of the Howard League and solicitors, and was able to give a clear account of the incident, accepted by the prison, leading to precautionary surveillance against F and to an adjudication against him in which he admitted his guilt, suffered any injustice by reason of any lack of a responsible adult or the officers’ failure to appreciate his learning difficulties.

Ms Gallafent’s preliminary point (the “trigger issue”) was that article 3 was not in any event engaged, because there was no complicity in the incident by the state, nor any suggestion of such complicity. In any event the judge had now found that there was no breach of the preventative obligation. Such complicity had been only weakly argued and was not properly arguable. Before the judge Ms Gallafent had been prepared to argue the case on the basis that there was an arguable breach of the preventative obligation, thus engaging the investigative obligation, but she did not concede any such breach and now argued that there was none.

In my judgment, it is unnecessary to decide this issue. It may be that in a situation such as this, where the assault is done by a third party without the complicity of the state, but also where the incident takes place in prison, and to a vulnerable victim, the fact sensitive nature of the investigative obligation arises as an issue. It is not like the case of a straightforward assault by a member of the public on another member of the public on the streets, where the only obligation of the state is to provide a proper system whereby a complainant can seek a civil remedy at law and/or criminal investigation and prosecution.

I therefore proceed to consider Mr Southey’s grounds of appeal. Although they have been split up into the four issues defined above, they are all really aspects of a single complaint that a vulnerable and disabled prisoner had been let down by a flawed investigation.

In my judgment, however, the judge was right to conclude that that was not so. However unpleasant to NM, this was not a serious incident, either in the event or in its consequences, and it was not part of any systemic failure. The opportunities for learning lessons were absent. Mr Southey made some suggestions in writing as to lost opportunities (see at [23] above), but he was unable to attach much if any flesh to his skeleton. The facts of the case themselves demonstrate that appropriate safeguards were instituted in the light of NM’s complaint. NM himself was in touch with responsible officers in his unit and with the higher management almost immediately following his initial complaint to his father. The Howard League was promptly involved. His wish to have the matter investigated by the police was respected, as was his wish, explained to the police themselves, on second thoughts not to involve the police. The facts were promptly established, F was put under surveillance, and in due course his guilt was adjudicated. The operation was not faultless: NM’s disability was not present to the mind of the investigating officers; there was delay in getting the paperwork to the police; and F’s sentence was too light. All these errors have been established within the process. NM was at all times able to bring civil proceedings against the state, if civil fault rested with it, or to pursue criminal proceedings against F. At all times he was able to consult his father and the Howard League. He was entitled to pursue a remedy before the Prisons and Probation Service Ombudsman.

The judge took into account, throughout his judgment, NM’s learning difficulties, in a general sense, despite the transfer of all aspects of the discrimination complaint in this case. Since then those aspects have been settled. I have similarly taken into account NM’s vulnerabilities, and the need to be sensitive to them. However, I reject any suggestion that the court is required, or even permitted, to go through the statutory remedies for discrimination as though that issue was before the court, when it is not. I bear in mind the passages which have been cited to us from the UN Convention on the Rights of Persons with Disabilities (articles 9(1), 15(2) and 16(3)), but in my judgment they do not take the matter any further. I have no reason to think that, in a situation where there is and can be no complaint in this court that the state has abused its preventative obligations, and the facts regarding its investigative obligation are as set out by the judge and in this judgment, there was any breach by the state pursuant to article 3 arising out of NM’s vulnerabilities.

As for any submission that the investigation should have taken the form of a formal investigation under PSO 1300, I have dealt with that above. Like the judge, I am not persuaded that there was any fault on the part of the prison in this respect.

In this fact-sensitive context, respect must be accorded to the careful findings and conclusions of the judge. In any event, there will be no breach of the investigative obligation under article 3 unless the investigation conducted and/or available, out of a wide range of possible investigative methods and options provided by the state, is not proportionate to the seriousness and idiosyncrasies of the incident. In my judgment, there is no reason to conclude that NM was failed in its obligations by the state in this instance. I would therefore dismiss the appeal.

In the background of these proceedings, as is obvious from some of the written materials in them although it was not made a point of argument in this appeal, is concern on the part of those assisting NM, and in particular the Howard League, that, in part because of his learning disability, he has been unable to demonstrate sufficient progress in prison, through the taking of courses and such like, to persuade the parole board that he is safe to release from his indefinite sentence. The court does not have the material before it, beginning with the sentencing judge’s sentencing remarks, to justify other than the most cautious approach to this aspect of NM’s predicament. However, we did raise with Ms Gallafent our general concerns about this young man who was still a teenager at the time of his offences and sentence, whose minimum sentence was only 15 months, but who has been in custody, first on remand and now subject to an indefinite sentence, since June 2006. At the time of the hearing of this appeal, that was the equivalent of a determinative sentence of some 12 years. Ms Gallafent was able to inform us that NM has now been assessed by the parole board as suitable for transfer to an open prison. This was welcome news, as no doubt it was to NM and those representing him.

I agree.

I also agree.