R (NM) v Secretary of State for Justice [2011]

Thanks to Adam Wagner's Twitter feed I noticed a recent ruling relating to whether a prison acted lawfully when it decided not to investigate allegations of sexual assault on a prisoner with learning difficulties. The case, R (NM) v Secretary of State for Justice [2011] EWHC 1816 concerned whether the prison authorities were in breach of theDisability Discrimination Act 1995 and the Equality Act 2010 because they failed to make reasonable adjustments in relation to the investigation of a sexual assault against a prisoner with learning disabilities, NM. It was further considered whether the failure to conduct a formal investigation was in breach of NM's Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.

I don't want to go into masses of detail about the case, but I did want to flag up a few things about the judgment that might merit further thought for disability rights campaigners.

Background mental capacity issues?

At the heart of the claimants' case was a view that the prison, in responding to the sexual assault on NM by another prisoner (F), had paid insufficient regard to NM's learning disabilities. In fact, the prison authorities handling the matter had not been informed of NM's learning disabilities, although the court found that they should have been. Counsel for NM argued that had they carried out an investigation under Prison Service Order 1300 and followed appropriate procedures for investigations relating to a person with learning disabilities, they would have appointed an 'appropriate adult' to support NM through the process. This, they argued, could have changed everything: 

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.The earlier parts of their argument, that with the aid of an appropriate adult independent witnesses or CCTV footage might have been found was discounted by the court [54]

The court noted that the possibility that NM was deliberately sedated by drugs was not brought up until six months later, despite NM having had a solicitor for several months of that period. The implication presumably being that if a solicitor could not elicit this information from NM during those months, an 'appropriate adult' was also unlikely to. The court also placed great weight on the fact that although NM initially wanted the police to be called, he later on decided against asking the police to pursue the matter. Counsel for NM argue that had an appropriate adult been present when NM was interviewed by the police, NM himself might have made a different decision. It seems to me that in the background of this argument we should consider whether counsel are arguing that NM did not have the mental capacity to decide that issue independently. Mental capacity is not raised once in the judgment, and yet it seems to me to be the only grounds upon which they could argue that NM was not equipped to make that decision without the support of an appropriate adult. I think this is a shame, and wonder why they did not pursue this aspect of the case.

The court's view of NM's disability

The judgment didn't go into much detail as to how NM's disability might have affected his case. In fact, some of the comments by the court in relation to NM's disability seem somewhat ill informed regarding the nature of his disability. We are told at paragraph 6 that NM's level of cognitive function was assessed in prison to be 'extremely low', with an IQ score of 60 (bottom 99.6%ile). And yet there's not really much engagement with how this might affect a person's access to justice as the victim of a sexual assault, whilst in prison. There's not much engagement with how it might impact on the evidence they are able to give, or the decisions they might take in relation to how their case should proceed.

Perhaps I'm too used to Court of Protection case law, but I would have liked to have heard some evidence from expert witnesses about how difficult victims of crime with learning disabilities can find it to give testimony and assert their rights, especially if they are unsupported. It seems to me highly relevant that NM thought he would get into trouble if he mentioned the possible drugging, and that he was being bullied in relation to the assault in the kitchens. Those might have factored in his decision to ask the police not to pursue the matter.

The court engages with the nature of NM's disabilities only twice.  The first is in relation to prison policy on learning disabilities:

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". [26]

And later on in considering whether the prison was compliant with disability requirements laid down in Prison Service Order 2855, the judge commented:

'Despite his disabilities the claimant could read and write. Details of the disability policies at the prison are available. ' [46]

I am unsure why the issue of the claimants literacy seems to hold such importance for the judge.  My fear is that there is a certain amount of (understandable, but problematic) terminological confusion here.  In the UK the term 'learning disabilities' is usually used to refer to a group of fairly serious cognitive impairments, including for instance Down's Syndrome, known also as 'intellectual disabilities', or in the USA as 'mental retardation' (this term is widely regarded as offensive in the UK).  By contrast, what is referred to in the USA as 'learning disabilities', in the UK tends to be referred to as learning difficulties.  Learning difficulties include a range of conditions that present obstacles to learning - such as dyslexia - which are not associated with global cognitive impairments or, to use that horrible American phrase, 'retardation'.  The difference means the world.  Whereas very few people with learning difficulties would require an 'appropriate adult' to support them through legal processes, people with learning disabilities very often would.  And the reason for that is essentially that whereas learning difficulties are not implicated in mental capacity and impaired ability to assert one's rights, learning disabilities are.  My concern is that the judge in this case has not quite grasped the difference, and the potential importance of ensuring people with learning disabilities - or other cognitive impairments - are adequately supported to ensure their access to justice in important matters like these are not compromised.

The court's view of the nature of the assault

I wonder if anyone else reading the case had a sense that the court and the officials dealing with the matter were not overly impressed by the significance of the sexual assault itself.  It is reported that NM was invited to prisoner F's room:

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. [8]

It was also in NM's notes that he had been 'groomed' in the past by another prisoner [7], and he had also reported being raped in a different institution in 2007 by his cell mate.  The penalty initially imposed on prisoner F, following NM's complaint, was only three days cellular confinement, suspended. This penalty was acknowledged by the relevant official as being rather too low, but 'She says in her statement that her award was based in part on her feeling this was a consensual relationship' [11]. Later on the judge himself states 'While the incident was very unpleasant it has had no major consequences and has done the claimant no serious harm' [42].

The crucial issue that seems to have been missed here is the nature of the event in the context of NM's especial vulnerability, both as a man with learning disabilities and a detainee.  We are not told what evidence was presented to the court on whether or not NM was 'harmed' by the assault.  It does seem to me as if the event was not considered within a wider context of a longstanding history of vulnerability to sexual abuse in detention. At one point the judge says the incident 'although serious in itself is no doubt a common one in prison' [57].  I am not entirely sure whether the judge regards this as counting against the importance of an investigation.  Imagine if this were said in the context of children's homes.  Surely the fact of such a serious assault being common makes it all the more more important that an adequate investigation is carried out and lessons are learned to prevent such incidents recurring?

Positive obligations and Article 3

The case fundamentally turns on whether Article 3 was breached through failure to conduct a sufficiently thorough investigation.  It is acknowledged that the assault itself potentially engaged Article 3, but it was disputed that Article 3 required an investigation of particular thoroughness.  The defendant complained that

...NM is seeking to create a novel positive obligation under Article 3 that requires the State to learn lessons from a previous investigation. [48]

I was more than a little surprised that the court took the view that NM was less entitled to due process as a victim, than he would have been as the accused:

'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' [51]

I do have concerns that this does not take into account the very real problems that people with learning disabilities have in accessing justice regarding crimes against them.  This has been highlighted in an excellent report by Scope, and Keir Starmer - the Director of Public Prosecutions - has also signalled that prosecutors are “still in the foothills” when it comes to cracking down on disability hate crime.  In the case B v Director of Public Prosecutions (2009) Mind expressed concerns that people with mental health problems would be especially vulnerable to attacks if cases were frequently dropped as a result of their disability.  It seems to me that a similar point could have been argued here; that if disabled victims are inadequately supported through investigations into serious complaints, then the consequence will be that they become additionally vulnerable to attackers.  I doubt that Article 3 could contain such vague positive obligations as to 'learn lessons', but it seems to me that it should contain positive obligations to ensure that cognitively disabled victims of offences engaging Article 3 are adequately supported in accessing justice to ensure they do not become disproportionately vulnerable.