Human Rights Act 1998 Article 3 — no retrospective engagement

In CD & Ors v Chief Constable of Wiltshire Police [2022] EWHC 1661 (QB), the High Court was required to consider the scope of Article 3 of the Convention in the context of claims for damages for sexual abuse that it was alleged the police failed to prevent.

The facts are of the claim are regrettably tragic. In March 2016, MP was convicted of sexual abuse of the claimants that occurred in the preceding years. It was alleged that the abuse was preventable, had there been an adequate investigation in December 2012 of indecent images that MP downloaded on a laptop. The police accepted that the investigation at that time was inadequate, and it was only when allegations of sexual abuse by MP were reported in April 2015 that an effective investigation was carried out.

The damages claims were brought in negligence and under the Human Rights Act 1998 (HRA) for a breach of Article 3. Both causes of action were dismissed.

Judgment

The court’s key findings were:

• Negligence: the claims were captured by the established legal principle that no duty of care is generally owed to protect from third party harm. This was a case of omission and ‘a failure to confer a benefit’.
• HRA limitation: the claims related to the inadequate investigation events of 2012/13. Proceedings were issued in April 2018. The judge considered it was equitable to extend the one-year limitation period, largely on the basis that (i) the claimants could not have known of the investigative failings until the relevant officer’s disciplinary proceedings concluded in July 2017; and (ii) the claimants are minors, and this was “a significant factor” in deciding whether to exercise the discretion under s.7(5)(b) HRA.
• Article 3: per Lord Kerr in D v Commissioner of Police for the Metropolis [2019] AC 196, the duty is to “investigate ill-treatment amounting to a violation of Article 3”. At the time of the inadequate investigation, the relevant criminal conduct did not engage Article 3. The conduct in question at that time was the downloading of indecent images of unidentified It was not until April 2015 that MP was identified as an alleged perpetrator of abuse of identified victims and, thereafter, the investigation was effective and led to a conviction. Article 3 is not triggered “until a grave and serious harm to an identified victim has been reported”. The inadequate investigation “was never an Article 3 investigation and it was not, and could not be, transformed into one by MP’s subsequent sexual abuse”.  

Comment

This is a helpful judgment on the scope of Article 3. It is consistent with the “known risk” aspect of the Article 2 duty, namely that it must be established that a public body “knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual” (Osman v UK [2000]). The judge accepted that if Article 3 could be engaged retrospectively to a point in time when no allegation of treatment contravening Article 3 had been made, the burden on the police would be “intolerable and unjust”.