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Limitation and the threshold for article 3/8 investigative claims

Lavender J in MLIA & CLEL v Chief Constable of Hampshire [2017] EWHC 292 (QB) has offered helpful guidance on the application of the limitation defence for human rights claims, in a case which failed to meet the threshold for engaging the investigative duty under Articles 3 and 8 of the Convention.

The Claimants were a mother and daughter who had been victims of abusive, aggressive, violent and threatening behaviour perpetrated by the First Claimant’s former partner prior to November 2005. Following an order by Master McCloud that there should be a trial of liability, the issues before Lavender J were:

1. Whether the claim had been commenced within “such… period as the court… considers equitable having regard to all the circumstances” pursuant to section 7(5)(b) of the Human Rights Act 1998;

2. Whether Article 3 and/or Article 8 were engaged and, if so, whether the Defendant had acted in a manner which was incompatible with the duty imposed by those Articles, in particular by failing to investigate the Claimants’ allegations.

The claim failed principally on the issue of limitation. Unusually, that issue was determined after a full liability trial, which exposed the multiple difficulties associated with piecing together documentary and witness evidence of events which had occurred some 9 ½ years before the claim was brought (in May 2015) and more than 11 years before it was tried.

Lavender J cited Lord Justice Thomas in Dunn v Parole Board [2008] EWCA Civ 374; [2009] 1 WLR 728 at [32] on the broad discretion conferred on the court by the wording of section 7(5)(b) HRA:

“…It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.”

In concluding that it would not be equitable to extend the limitation period, Lavender J identified the following factors as being relevant in the circumstances of the case [157]-[182]:

a. The burden of proof, which rested with the Claimants;

b. The one year limitation period under section 7(1)(a) HRA 1998;

c. The length of the delay, which was “substantial… in the context of a one year primary limitation period” [161];

d. The Claimants, who were adults. The First Claimant had shown herself to be capable of pursuing various legal procedures in the intervening period;

e. The Claimants’ knowledge, from an early stage, that they were unsatisfied with various aspects of the handling of their case;

f. The reasons for the delay: the judge found there had been no obstacle to the Claimants’ seeking advice on a potential claim “many years ago” [169];

g The steps taken to obtain legal advice: the Claimants had failed to take any such steps in relation to the claim until 2014;.

h. The consequences of the delay, which had “made it more difficult for the witnesses to recall relevant events” and meant that “documents which would have been available … [were] no longer available” [174]. This was “the sort of situation which limitation periods are intended to avoid” [176];

i. The conduct of the force, which had not been responsible for any delay;

j. The merits of the claim, which the judge indicated he would have determined in the Defendant’s favour had it been necessary to do so; and

k. The effect of upholding the limitation defence. Although the claim had been defeated there had, unusually, been a trial and thus the Claimants had felt “that their voices had been heard” [181].

On the merits, Lavender J doubted whether the allegations reached “the necessary minimum level of seriousness” for the purpose of engaging Articles 3 and/or 8. It having been agreed that the Convention did not impose a duty to investigate unless there was “a credible allegation of a grave or serious crime” [192]-[193]. The conduct relevant to this conclusion involved:

a. Assault: allegations that AB would spit at the First Claimant or “throw things at her or pin her against walls”; that he had hit her three times on one occasion; verbally abused her, pulled her hair and cut up her clothes; that on another occasion he had “hit her hard across the forehead” and, on another, thrown water in her face;

b. Criminal damage: scratching a swastika on the bonnet of the First Claimant’s car;

c. Harassment: repeated telephone calls and text messages, some of which included threats of violence;

d. Threats to kill in some of the telephone calls and text messages.

Had the case come within the scope of Article 3, the police investigation had not fallen short of the standards required by that Article [205] and [209].

The primary consideration was the excessive length of time which had elapsed prior to the Claimants’ bringing their claim. The factors outlined by Lavender J provide a helpful, though non-exhaustive, checklist where a limitation defence is raised under section 7(5) HRA.

However, we are all feeling our way around cases of a failure to investigate – and what amounts to a “credible allegation”. The case is a useful reference on the threshold for engagement of Articles 3 and 8, particularly in the context of allegations of domestic violence and/or harassment.