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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/219.html Cite as: [2009] Prison LR 133, [2009] ACD 38, [2009] EWCA Civ 219, [2009] UKHRR 973 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE MITTING
Insert Lower Court NC Number Here
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LONGMORE
and
LORD JUSTICE ELIAS
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THE QUEEN ON THE APPLICATION OF AM & OTHERS |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT - and - KALYX LIMITED - and - BAIL FOR IMMIGRATION DETAINEES |
1st Respondent 2ndRespondent Intervener |
____________________
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Mr James Eadie QC and Ms Kate Gallafent (instructed by Treasury Solicitors) for the 1st Respondent
Mr Jim Sturman QC and Mr Jamas Hodivala (instructed by Messrs Devonshires) for the 2nd Respondent
Mr Daniel Squires (instructed by Messrs Allen & Overy) for the Intervenor
Hearing dates: Thursday 5 and Friday 6 February 2009
____________________
Crown Copyright ©
Lord Justice Sedley :
No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Everyone's right to life shall be protected by law.
"to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learnt from his death may save the lives of others."
7.1 In the period before the disturbances of 28-29 November 2006, there was a culture of oppression, bullying, violence and neglect, much of it confirmed by a report of the Inspector of Prisons, Anne Owers, compiled in July 2006 and published, coincidentally, on the first day of these disturbances.
7.2 In consequence of a disturbance which broke out in B wing during the evening of 28 November 2006, uninvolved detainees (including the claimant AM) were first kept in confinement while water from the sprinkler system entered their cells, then ordered out into the exercise yard in the cold while many of them were still wet, then readmitted and locked into cells. There AM and others were affected by smoke from a fire started by other inmates in an adjacent room; others were soaked by the sprinklers; there was reduced ventilation and, for many, a complete absence of toilet facilities. Some inmates spent well over 12 hours in these conditions without food or water. Two of the claimants, HM and LM, were assaulted by detention officers or rapid response personnel.
7.3 The dispersal of detainees which followed was in many cases carried out callously; some were transported long distances without their belongings.
Kalyx's knockout submission
i. Although his Lordship exercised discretion in determining that the claims were arguable under Article 3, the facts of this case are far removed from virtually every other case involving claims under Article 3. No other case could be found in which efforts to control widespread rioting started and maintained by detainees arguably violated the Article 3 rights of other innocent detainees;
ii. There is only tenuous evidence of direct and positive action which arguably violated any of these Appellants' Article 3 rights. Otherwise the complaint under Article 3 is the failure to act in a particular way during the course of a disturbance started and maintained by third parties;
iii' To hold that these Appellants arguably raise issues under Article 3 (where none of the Appellants actually sustained any injuries during the course of the disturbance) creates a precedent that would adversely impact on any public authority which is engaged in controlling public order. The threshold has been set far too low by Mitting J. in this case.
iv. The effect of that low threshold is to remove much of the relevant minister's discretion under the Inquiries Act 2005, as there would arguably have to be some form of public inquiry in every case in which the management of public order is criticised by those innocently caught up in that disorder (from disorder at football matches to riots and disturbances within and outside a place of detention), particularly in a prison or detention centre environment. That would potentially result in a huge diversion of time and resources in terms of negative policing of public order as well as state-funded inquiries.
v. Further or alternatively, this matter ought properly to be considered by the Court of Appeal when considering the Appellants' ground of appeal.
The question of time
32. The problem which has arisen in this case has not, as far as I can tell, arisen in any other case; it is: what is the state's obligation of investigation where an allegation of a breach of Article 3 rights is communicated at a time when it would be difficult or impossible to undertake a worthwhile investigation? In this case, that circumstance has arisen because none of the claimants made complaints to the relevant authorities: to the police, to the operators of the detention centre, or to the Ombudsman, at a time when events were fresh in mind. No inquiry is now practicable with a view to fulfilling the primary obligation of identifying and punishing those responsible for breaches of Article 3, whether by criminal sanction or disciplinary sanction. All that can now in practice be achieved is redress by civil proceedings under section 8 of theHuman Rights Act
1998.
- To investigate the circumstances of the disturbances at Harmondsworth Immigration Removal Centre on 28/29 November 2006;
- to establish the lessons to be learnt from this event for the management of immigration detainees and for the immigration detention estate; and
- to report … accordingly.
The lost opportunities
(1) The Home Office inquiry
"the general rule is that the persons responsible for the inquiries and those conducting the investigation should be independent of anyone implicated in the events…. This means not only that there should be no hierarchical or institutional connections but also that the investigators should be independent in practice…."
Key Message: Continuing Risk of Disturbances:
6. The Harmondsworth and Campsfield House disturbances were very different, both in causation and in how they unfolded. Both occurred at a time when recent population pressures, falling heavily on vulnerable fabric in a hard-pressed detention estate, were accompanied by dislocation in casework handling, especially in the case of Foreign National Prisoners, which caused a build up of latent tensions. (Foreign National Prisoners are defined for this purpose as ex-foreign national prisoner detainees.)
7. It did not take much to trigger these events. When they started, they soon escalated, despite best efforts to prevent this happening. The underlying causes are still there and, without any changes, the same thing could happen again at either establishment.
8. Action is proposed in respect of
- procedures in both centres
- improvements to the fabric of immigration removal centres
- training for staff both in the centres and in caseworking units
- oversight by BIA of the conduct of operations in centres
- improved management of casework within BIA
- better information for detainees and their legal representatives
(2) The Prison and Probation Ombudsman
What will satisfy the state's investigative duty?
41.1 The investigation should be capable of leading to the identification and punishment of those responsible;
41.2 It may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence;
41.3 It must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances;
41.4 It must be thorough, in that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident; and
42.5 It must permit effective access for the complainant to the investigatory procedure.
What remains in issue is the content of such an investigation.
The ambit of the issues
A complete answer?
"The procedural limb of Article 3 principally comes into play where the court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints [viz procedural complaints] at the relevant time (see Khashiyev v Russia …§178 …Ilhan v Turkey [GC] … §89-92).
In the present case the Court observes that the applicants do not raise any substantive complaints of ill-treatment under Article 3 of the Convention. If they had, issues would have arisen as to whether they could still claim to be victims or had in fact exhausted domestic remedies since six [sic] applicants settled the civil proceedings which they had brought alleging assault by prison officers and systemic negligence on the part of the prison service, while the other two [sic] did not bring any such proceedings … Further, while the applicants raise complaints as to whether the investigations into their allegations complied with the standard required by the procedural obligation, this is not a case where there was a lack of any investigation capable of establishing the facts and attributing responsibility (see Assenov v Bulgaria …§99-106)."
"that where a State or its agents potentially bear responsibility for serious ill-treatment, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known."
"The wider questions raised by the case as to the background of the assaults and the remedial measures apt to prevent any recurrence in a prison in the future are, in the Court's opinion, matters for public and political debate which fall outside the scope of Article 3 of the Convention (see mutatis mutandis, Taylor family and others v United Kingdom, no.23412/94, Comm. Dec. 30.8.94, D.R.79, p.127)."
"The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organization and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four. The procedural element contained in Article 2 (Art. 2) of the Convention however imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commission's opinion, matters for public and political debate which fall outside the scope of Article 2 (Art. 2) and the other provisions of the Convention.
Another answer
"…. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the complainant must be afforded effective access to the investigatory procedure…"
"The procedural limb of art. 3 is invoked, in particular, where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by art. 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time."
"It is accepted that [the victim] was put in the same cell as his killer because of 'systemic failures'. Established procedures were not followed and there is an appalling history at Feltham of failure to comply with earlier recommendations. It seems likely (and is certainly arguable) that there were serious human failings … which have not been publicly identified. On the facts of this case the obligation to hold an effective and thorough investigation can, in my judgment, only be met by holding a public and independent investigation …"
The tort claims, criminal investigations and the internal inquiry,
27. There can be no doubt that a fully contested civil claim, by a court having available to it the right to make a declaration as well as to award monetary compensation, and having power to order disclosure of documents for the provision of further information, and which will hear evidence from witnesses who will be cross-examined, can determine the facts of an individual claim and grant relief sufficient to satisfy the substantive Article 3 rights. I have no doubt that a full hearing of these claimants claims could achieve that, but it will still not satisfy the state's investigative obligation, and I do not understand the Strasbourg Court to have watered down the requirement for such an investigation by the use of the word "scrutiny" in Banks. It is therefore necessary to examine what investigation was carried out into what by the police and by Mr Whalley.
28. The police investigated possible criminal offences committed by detainees. As far as can be ascertained, no complaints were made to the police by detainees of criminal conduct by the prison or detention centre officers. Certainly, no inquiry was conducted by the police into such claims.
29. Mr Whalley was appointed-
"to investigate the circumstances of the disturbance at Harmondsworth Immigration Removal Centre on 28/29 November 2006;
to establish the lessons to be learnt from this event for the management of immigration detainees and for the immigration detention estate; and
to report to you accordingly."
Conclusion
Lord Justice Longmore:
"1. Articles 2 and 3 enshrine fundamental human rights. When it is arguable that there has been a breach of either article, the state has an obligation to procure an effective official investigation.
2. The obligation to procure an effective official investigation arises by necessary implication in articles 2 and 3. Such investigation is required, in order to maximise future compliance with those articles.
3. There is no universal set of rules for the form which an effective official investigation must take. The form which the investigation takes will depend on the facts of the case and the procedures available in the particular state."
"1. To inquire into the circumstances leading up to the disturbance at Harmondsworth Immigration Removal Centre that begun on 28th November 2006, including the conditions of detention and treatment of detainees by immigration staff, with the aim of establishing the underlying reasons why the disturbance took place.
2. To investigate the manner in which the disturbance was managed including the treatment of detainees by immigration officers, contract personnel, prison service officers, police and any other non-detained persons during the disturbance and its aftermath.
3. To investigate into the adequacy of the systems and procedures put in place by the Home Office to deal with disturbances in immigration detention centres.
4. To recommend what steps should be taken to prevent such a disturbance happening again and to ensure that the safety of immigration detainees is not compromised in the future, and to report its findings as soon as possible. The public inquiry should be chaired by a senior member of the judiciary"
"to establish the factual background, the full nature and extent of the culture of violence at Wormwood Scrubs in the 1990's how this took root and prospered and the extent to which it continues and establishing responsibility for the above." (page 9)
The European Court of Human Rights (4th Section) decided that the application was inadmissible. They considered that the complaint related more properly to Article 13 (requiring the provision of an effective remedy for breach of Article 3) rather than to the procedural obligation of Article 3 itself, but they decided that, even if the procedural aspect of Article 3 was engaged, the complaint was inadmissible because
i) to the extent that allegations of criminal responsibility for acts of unlawful violence were made, the appropriate way of dealing with them was a criminal investigation;
ii) to the extent that allegations of negligence were being made, civil proceedings might well be sufficient even for the purpose of both Article 2 and Article 3 even though civil proceedings could be (and had in that case been) settled;
iii) to the extent that wider issues were raised which were not ventilated (or would not be ventilated) in criminal or civil proceedings those were matters for "public and political debate which fell outside the scope of Article 3 of the Convention". (page 12).
Lord Justice Elias:
What alleged mistreatment was material to the Secretary of State's decision?
At what point did the question whether or not to set up the inquiry arise?
Was an investigation required?
Analysing the authorities
"The duty to investigate imposed by article 2 covers a very wide spectrum. Different circumstances will trigger the need for different types of investigation with different characteristics. The Strasbourg court has emphasised the need for flexibility and the fact that it is for the individual State to decide how to give effect to the positive obligations imposed by article 2."
"The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have[been ill treated] may at least have the satisfaction of knowing that [their ill treatment has been acknowledged , and may save others from ill treatment in the future.
"Even if, contrary to my conclusion, the appellants were able to establish an arguable substantive right under article 2, they would still fail to establish a right to a wide-ranging enquiry such as they seek. Nothing in the Strasbourg case-law on article 2 appears to contemplate such an enquiry: Jordan v United Kingdom, above, para 128; Bubbins v United Kingdom (2005) 41 EHRR 458, para 153; Taylor v United Kingdom (1994) 79-A DR 127, 137; McShane v United Kingdom (2002) 35 EHRR 593, para 122; Banks v United Kingdom (Appn no 21387/05, 6 February 2007, unreported, BAILII [2007] ECHR 177, pp 12-13; McBride v United Kingdom (2006) 43 EHRR SE 102, para 1, pp 109-110. In Scholes v Secretary of State for the Home Department [2006] EWCA Civ 1343, para 67, Pill LJ threw some doubt on the current applicability of the ruling in Taylor, but I do not think the authorities justify his doubt and Arden LJ, in paras 82-83, applied what I respectfully think is the correct approach."
Applying the principles to the facts.
Was it too late to instigate an investigation?
Disposal