Duty to investigate torture and inhumane treatment

R(NM) v Secretary of State for Justice [2012] EWCA Civ 1182 (12 September 2012) Summary

The English Court of Appeal in R(NM) v Secretary of State for Justice has recently ruled that a State prison was not in breach of its investigative obligation under article 3 of the European Convention on Human Rights (the right to freedom from torture and cruel, inhumane and degrading treatment) as it conducted an investigation in proportion to the seriousness of an incident.

Facts

NM is a prisoner with intellectual disabilities who was sentenced to indefinite detention for various offences including two counts of sexual activity with a child. Whilst detained at HMP Whatton, a prison exclusively for convicted sex offenders, NM was sexually assaulted by F, a fellow prisoner during an association period when the prisoners were free to visit one another's cells. The men were sitting on NM's bed when F molested him. NM reported the incident to his father and to senior officers.

Instead of conducting a formal investigation, an inquiry was carried out by senior officers at the prison. F was put under surveillance for 14 days and adjudication proceeded. F admitted to the assault and as punishment he was confined to his cell for three days. Shortly after, NM engaged lawyers who commenced proceedings alleging a breach of the positive obligation on authorities to investigate allegations of torture and other inhuman treatment contained in article 3 of the European Charter of Human Rights.

The Court at first instance held that the prison's decision to investigate in its internal manner was in compliance with its legal obligations and was carried out reasonably within the range of resources available to it. The court recognised the assault was serious, but not life threatening. It noted such incidents are unfortunately not uncommon in prisons and that episodes of this degree could not be paralleled with previous cases involving breaches of article 3. Past cases have involved large numbers of victims and more serious injuries to a gravity that significantly outweighs the assault that was inflicted upon NM.

NM appealed this decision on four grounds, but his overarching submission was that a vulnerable and disabled prisoner had been let down by a flawed investigation.

On appeal, the State argued that there had been no breach of its obligations because the assault was committed by a third party without the complicity of the State. Furthermore, it contended that NM had access to a sufficient range of investigative methods provided by the State.

Decision

The Court of Appeal held that the absence of the State's direct involvement could not be dismissed as readily as was submitted by the State. NM's case could not be aligned to a straightforward case of assault on the streets, where the State's only role is to provide civilians with adequate mechanisms to seek civil and criminal remedies. The judiciary recognised that when an incident takes place inside a public institution to a vulnerable person with an intellectual disability, the State's investigative obligation arises as an issue. However, in refusing the appeal, the Court held that the incident, despite being unpleasant to NM, was not serious and was not part of a systematic failure by the prison. NM always had support from investigative officers and senior management following the incident. He was never denied the opportunity to bring civil proceedings against the State or criminal proceedings against the perpetrator. Additionally, he always had the assistance of his father and his lawyers. The Court qualified its decision by conceding that the investigation was not faultless – NM's disability was not properly recognised by investigative officers, there was a delay in submitting the paperwork to police, and F's punishment following the adjudication was extremely light.

Ultimately, the court concluded that there will be no breach of the investigative obligation under article 3 where there are other investigative methods provided by the State available to the victim that offer opportunities for investigation of the claim in proportion to the severity of the incident.

Commentary

It is important to note that the Court found the duty to investigate contained in the right to freedom from torture and cruel, inhumane and degrading treatment is not necessarily limited to situations in which the State is accused of such treatment. There will be circumstances such as this (ie when an incident takes place inside a public institution to a vulnerable person with an intellectual disability) that require the State to investigate, notwithstanding the accused is a third party. Whether the duty to investigate has been breached will depend on the severity of the incident.

The decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2012/1182.html

Kate Hennessy is a graduate at Lander & Rogers.