Improper Pleadings and No Second Chance – Strike Out Where the Police Complied with their Human Rights Duty under Article 3

Julia Brechtelsbauer, instructed by Brittany Mooney of Bedfordshire Police Legal Services, represented the Chief Constable of Bedfordshire Police and successfully struck out human rights claim in the High Court pleaded at £6,000,000.

Introduction

The Claimant alleged “failure to investigate 2 crimes” from 2024 and 2023. As a claim by a litigant in person with a legally recognisable claim (albeit severely under-pleaded), it required careful examination by the Court. Further, the circumstances of the crimes alleged were such that the strike out had to be pitched in a considerate and sensitive manner. The Defendant interpreted the claim made by the Claimant as a claim under Article 3 of the European Convention of Human Rights, namely failing to investigate crimes which involved “inhumane and degrading treatment”. The claim was successfully struck out on first application by the Defendant– this is despite the case being improperly pleaded, and the Defendant asserting that there was no breach of duty under the ECHR. This is unusual given that litigants in person are often afforded the opportunity to re-plead the claim before the court resorting to strike out. Further, where a legal duty exists, courts are often hesitant to strike out the claim when the Defendant argues that that duty was not breached, due to it often relating to factual findings the court will make at trial. The particular nature of the police’s duty under Article 3 however makes this possible – as demonstrated by this case and explained in detail below.

The Context

In 2024 the Claimant made an allegation to the police of harassment against a contact centre worker who was asking to kiss her and would ask her out on dates. She claimed that there was a failure to investigate (and the Defendant observed – presumably a claim of breach of Article 3 of the ECHR). The Claimant also alleged “failure to investigate” concerning an allegation she made in 2023. The facts of these allegations were rather more complex. The Claimant originally called the police alleging that her partner pushed her on the stairs. She further alleged that her partner told her to tell the Swedish government that she had been “gang raped” in order to obtain a trust fund from the government of several thousand pounds. From the first attendance by the officers, it was clear that the Claimant was suffering with schizophrenia and consequent psychosis. She was experiencing auditory and vision-based delusions. She was also caring for a newborn baby. She gave multiple inconsistent accounts, namely that she escorted for money voluntarily, or that her partner coerced her into escorting. Further, her allegations included admissions of committing crimes herself, such as fraudulently submitting bank documents in the name of her alleged abuser. The chronology of the investigation is complex and beyond summary within an article, but the police did complete an ABE interview[1] and organised a voluntary interview with the accused (the Claimant’s partner). Due to the inconsistencies in the account, including with evidence obtained during family court proceedings concerning the newborn child, the investigation into the allegation of controlling and coercive behaviour eventually resulted in no further action. However, due to the way the officers found the Claimant, the case also involved safeguarding and ‘making safe’ as well as investigating an alleged crime.  

Article 3 of the ECHR (enshrined by the Human Rights Act 1998) requires that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Its application to claims against the police is addressed thoroughly in D v Commissioner of the Police of the Metropolis [2018] UKSC 11, [2019] A.C. 196:

1. Ill-treatment which amounts to a violation of Article 3 triggers a duty owed by the police to properly investigate.  This includes treatment by non-state agents. (Paragraphs 20, 23, 100 and 150)

• That duty is only breached where errors are “egregious and significant and not merely simple errors or isolated omissions” (Paragraphs 53 and 72).

In order for the duty to investigate under Article 3 to be triggered, there must be a “credible” / “arguable” allegation of conduct which itself must be analogous to inhuman/degrading treatment (O v Commissioner of Police of the Metropolis [2011] EWHC 1246, [2011] H.R.L.R. 29, Paragraph 163; Fanzieyva v Russia (41675/08)[2015] 6 WLUK 942, (2018) 67 EHRR 33 Paragraph 76). Conduct breaching Article 3 includes torture, modern slavery, and sexual abuse. Possession of indecent images of children did not trigger Article 3 in Chief Constable of Northamptonshire v Woodcock [2025] EWCA Civ 13; the Article 3 duty is only triggered when:

“the investigation in question is into conduct which is and is known by the police to be, conduct engaging Article 3” (Paragraph 119 of High Court Judgment of Martin Spencer J (CJ and Others v the Chief Constable of Wiltshire Police [2022] EWHC 1661), approved by Court of Appeal at Paragraphs 136-142 of Woodcock).

It is a very high threshold for there to be a breach of Article 3; see for example:

1. Szula v United Kingdom (2006) 44 EHRR SE19; “the court does not consider that it discloses any culpable disregard, discernible bad faith or lack of will on the part of the police” (240).

• D, paragraph 53 “all of the cases in this area involve conspicuous and substantial shortcomings in the conduct of the police and prosecutorial investigation”, and paragraph 72 “only obvious and significant shortcomings in the conduct of the police […] will give rise to the possibility of a claim.”

X v Bulgaria (2021) BHRC 344 determined that the nature and scrutiny which satisfied the minimum threshold of the investigation’s effectiveness will:

“… depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work.”(Paragraph 190).

The Defendant’s argument as to the 2024 investigation was very simple – the conduct alleged as part of the police investigation did not meet the severity of an “Article 3” investigation. Whilst it is unpleasant for the Claimant to have potentially suffered unwelcome advances, it simply cannot be within the same category, as for example, a rape investigation. The Defendant further utilised this claim as a springboard to demonstrate the issues of the Claimant’s credibility, which highly impacted and complicated any investigation involving the Claimant. She made three similar accusations against other contact centre staff, all of which involved vulgar language. It was of course highly unlikely that all three members of staff would use this particular language on separate and unrelated occasions. As a result of the inherent implausibility alongside the other allegations, as well as the internal investigation demonstrating that it had not in fact occurred, the investigation resulted in no further action.

Concerning the 2023 investigation, the Defendant’s argument was as follows:

1. If this was an allegation of coercive and controlling behaviour, this would not cross the Article 3 threshold.
2. The allegations of a more serious nature, such as being forced to escort, were never “credible” or “arguable” and therefore Article 3 was never engaged.
3. The Defendant carried out a thorough and sensitive investigation and therefore, there was no breach to the high threshold which Article 3 requires.

The Defendant particularly relied upon the third layer – arguing that the police in this instance had five competing duties and acted appropriately in the circumstances. The five duties were: (1) safeguarding the Claimant (2) safeguarding the child (3) investigating an alleged crime (4) not breaching the human rights of the suspect in for example, arresting without reasonable grounds of suspicion and finally (5) the welfare of the suspect – as during the investigation following initial attendance of the police on the Claimant he threatened to kill himself. It was argued that the Defendant provided a comprehensive and appropriate investigation, with cross-agency coordination in challenging and complex circumstances:

• The Claimant was immediately placed in protection in a hotel, with her baby. An area search was also completed.

• She was immediately recognised as suffering from psychosis.

• The police involved social services, liaised with the hospital and ensured support was given.

• The Claimant withdrew and then gave her support inconsistently. 9 records of retraction are made in the CRIS; in just one weekend she called the police to retract 7 times. In contemporary messages she herself links her allegations with her mental illness and failing to take her medication.

• She was referred to Domestic Violence Support agencies by the police and assisted in seeking a non-molestation order twice.

Judgment

Master Sullivan agreed with the argument of the Defendant concerning the 2024 allegation in full – namely, that this would not cross the Article 3 threshold. Her approach to the arguments concerning the 2023 allegation was more nuanced. Master Sullivan determined that although there was inconsistency in reporting there was a real prospect that Article 3 would be engaged. It would be difficult to say it was not without detailed examination at trial. However, Article 3 requires a serious or significant breach, and there was nothing within the investigation which is demonstrative of an obvious breach or omission whilst investigating. She particularly emphasised the multi-factorial complexity in the case as to the duties of the police. Due to the evidence supplied by the Defendant, the chance of there being a sufficiently serious or grievous breach was “fanciful”. Therefore, allowing an opportunity to re-plead the case was pointless, and it must be struck out.  

General Lessons to be Learned

This case is an important demonstration of how strike out and/or summary judgment is an appropriate mechanism for Human Rights cases which have must meet a certain threshold before having “reasonable grounds” (under strike out C PR 3.4(2)(a)) or “real prospect of succeeding” (under summary judgment). The submission was that even if the Claimant is given the most generous possible factual findings, on the pleaded facts, she would not have surpassed the necessary threshold.

It was submitted, and was considered correct by Master Sullivan, that it is entirely appropriate in Human Rights claims against the police, that it is possible for there to be early disposal of what might be suggested to be a ‘breach’ issue. In an Article 3 claim, the duty needs to be engaged and breached. Both of which have threshold requirements – there needs to be a certain amount of severity before it can be said that there may be a potential successful human rights claim, as laid out in full above.

A further layer of complexity to the application made by the Defendant police force was that the claim was not pleaded as fully as the CPR demands[2], and could by extension have been struck out under CPR 3.4(2)(c)). However, the problem for Defendants in relying upon that arm of strike out, particularly with litigants in person, (and as recognised by Master Sullivan in this case) is that courts often give Claimants the benefit of the doubt, and thereby an opportunity to replead their case before turning to was is typically considered the most ‘draconian’ tool of strike out. When a claim is made by a litigant in person, this means a court may fairly ask the Defendant where they consider the claim may truly lie. In this case, it was interpreted by the Defendant that the only possible claim was under Article 3, and it was submitted that even if properly pleaded, the case would have no reasonable grounds and/or no real prospect of success. Master Sullivan agreed. It is argued that this is an entirely correct and proper approach for the court as it is in line with the overriding objective; specifically, it is ensuring matters are dealt with at a proportionate cost and allotted an appropriate share of the court’s resources.[3]

Conclusion

This case therefore goes to show that where the defence by the police is that there has been no breach of duty under Article 3 ECHR, that does not prevent early disposal. Where the police can present cogent evidence that they did investigate properly, and there was no serious or significant breach – the claim may stop at a pre-trial stage. The case also underlines that whilst it may feel odd to hypothesize about the Claimant’s potentially valid claim, this can be in the client’s best interests in the bigger picture – since it can lead to strike out on first application. Therefore, it is worth properly engaging with potential arguments of the Claimant at an early stage in order for the most efficient and appropriate outcome.

[1] Achieving Best Evidence Interview – a visually and audibly recorded interview with a complainant conducted by police officers which may be used as their evidence in chief at trial .

[2] CPR 16.4(1)(a) particulars must include “a concise statement of the facts on which the claimant relies”

[3] CPR 1.1(1) and (2)