King's / Queen's Bench Division of the High Court

QB-2022-002447 - [2025] EWHC 2803 (KB)

Fecha: 29-Oct-2025

D1’s position on the Human Rights Case

D1’s position on the Human Rights Case

56.

Mr Weston submits that as regards C2 there is nothing in the pleaded case to show C2 was at risk from C3 at or before the date of the AMHP assessment on 14 August 2018. It is accepted she does not personally feature in the pleaded factual chronology up to that point, save where it is asserted in the particulars of claim that on 11 August 2018 a mental health nurse carried out an assessment and recorded that the “risk to [C1] and [C2] was high.” But the reference to C2 is now accepted to be wrong – as is the pleaded date. The focus was entirely on C1. Mr Weston submits in effect that the evidence does not support the submissions: indeed, D2’s clinician states in the materials: “he is not aggressive towards others but [C1]only.”

57.

C2 was not known to D1 – there was Mr Weston submits, clearly no protective duty. And there is no pleaded basis on which it could be advanced at trial that there was a risk D1 or the AMHP herself should have known about.

58.

As to C3, D1 submits in writing that it is tritethat for any Article to be engaged the claimant must show that they suffered ill-treatment or consequences encapsulated by the relevant Article. However, C3 cannot do this and his HRA claim should be disposed of in its entirety. The right to life under Article 2 is engaged where the subject dies or faces a life-threatening situation (reference is made to Makuchyan v Azerbaijan and Hungary (Application no.17247/13) at para [94]). Mr Weston submits simply that

“C3 was not the subject of the attack on 23 December 2018. He did not try to commit suicide. He was not in a life-threatening situation. Article 2 is not engaged”.

59.

The issue of Article 3 has recently been dealt with he submits. He refers to the following passages which deal both with severity and the issue of “treatment” by another:

Per Lord Justice Baker in AB v Worcestershire County Council & Birmingham City Council [2023] EWCA 529 at para [59]:

“…the ill-treatment must reach a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is, in the nature of things, relative and depends on all the circumstances of the case, principally the duration of the treatment or punishment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim…Sexual or physical abuse of a child is capable of involving ill-treatment falling within the scope of Article 3. In the context of alleged failures to remove a child from the care of the parent, serious and prolonged ill-treatment and neglect, giving rise to physical or psychological suffering, is capable of amounting to treatment contrary to Article 3, as appears from the case of Z v United Kingdom”.

Virgiliu Tanase v Romania no.41720/13, 25 June 2019 at para[123]:

“….bodily injuries and physical and mental suffering experienced by an individual following an accident which is merely the result of chance or negligent conduct cannot be considered as the consequence of “treatment” to which that individual has been “subjected” within the meaning of Article 3. Indeed, as already indicated in paragraphs 116-118 such treatment is in essence, albeit not exclusively, characterised by an intention to harm, humiliate or debase an individual, by a display of disrespect for or diminution of his or her human dignity, or by the creation of feelings of fear, anguish or inferiority capable of breaking his or her moral and physical resistance. “

60.

In respect of Article 8 D1 says that any breach of Article 8 either (i) requires the same threshold as in Article 3 to be met ( by reference to Bedford v Bedfordshire [2013] EWHC 1717 para [22;] and DSD v Commissioner of Police of the Metropolis [2014] EWHC 436 (QB) para [242]; or (ii) at least requires ill-treatment that amounts to a breach of moral and physical integrity. He refers also to Spadijer v Montenegro, no. 31549/18, 9 November 2021, at para [81] where it was said:

“In order for Article 8 to come into play, however, an attack on a person must attain a certain level of seriousness and be made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life…Not every act or measure which may be said to affect adversely the moral integrity of a person necessarily gives rise to such an interference…”

61.

Mr Weston says in his submission it is not possible to characterise the harm/ill-treatment C3 says he suffered under the HRA namely “the attack on 23 December 2018 and MK’s loss of liberty.” The attack was perpetrated by him himself. This is not “treatment” that he suffered, nor is it akin to suicidality and it does not reach the severe categories reflected in case law.

62.

In terms of Article 5 D1 says again, simply, that D1 did not deprive C3 of his liberty- D1 did not even know he had been taken into police custody following the attack on 23 December 2018.

63.

D1 also argues that C2 and C3’s reliance as a victim on the violation of C1’s rights is misconceived. By section 7(1) HRA a claim is to be brought by the victim – and refers to Article 34 ECHR – where it is undefined also. The submission of Mr Weston was made in reliance upon the Practical Guide on Admissibility Criteria (2023) 60 EHRR (which he notes has been referred to before in case law and was relied upon in Daniel v St George’s Healthcare NHS Trust [2016] 4 WLR 32 see [14]). This Guide states that a direct victim must be directly affected by the breach complained of [28]. Indirect victim status can apply to close family members where the direct victim has died or gone missing [30-31] so as to ensure rights under the Convention are enforced in cases of death or missing persons: the present position is far from that. The claims made by C2 and C3, via C1, are not sustainable.