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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> BB, PP, W, U & Ors v Secretary of State for the Home Department  EWCA Civ 9 (23 January 2015)
Cite as:  EWCA Civ 9
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ON APPEAL FROM THE SPECIAL IMMIGRATION
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE RAFFERTY, DBE and
SIR MAURICE KAY
| BB, PP, W, U and Others
|- and -
|Secretary of State for the Home Department
Instructed by Birnberg Peirce & Partners for U, Y and Z
Instructed by Fountain Solicitors for PP
Instructed by The Public Law Project for BB and W
Robin Tam, Robert Palmer and Caroline Stone (instructed by The Treasury Solicitor) for the The Secretary of State
Hearing dates : 28 and 29 July, 2014
Crown Copyright ©
Sir Maurice Kay:
i) SIAC reached a legally unsustainable conclusion when holding that the treatment to which the appellants may be subjected would not violate Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR);
ii) SIAC erred in law by finding that there are adequate safeguards to enable verification of observance by the Algerian authorities of the assurances which have been given by the Algerian government.
iii) SIAC erred in law in referring to the fact that DRS officers were present during discussions about the assurances and have subscribed to them, there being no open evidence to support such a conclusion.
I shall refer to these three grounds as (1) the Article 3 issue; (2) the verification issue; and (3) the closed evidence issue.
The evidence and the facts found by SIAC
"31….many…of the holding cells in the Antar barracks are primitive in the extreme. Most people would find the experience of being confined in such conditions disorientating and alarming. They are hardly the conditions in which a detained man can prepare himself to deal adequately with interrogation."
This passage came at the end of a summary of the evidence of a British citizen known as AB and his wife which SIAC accepted as "true, without reservation".
"27…AB was detained by the DRS and taken to the Antar barracks. There he was required to change into prison uniform and put into an unlit cell of which the door was locked. The cell was damp and dusty. There was no bed. He suffered an asthma attack but, despite his requests, medical assistance did not arrive until the following morning. He was then seen by a doctor and later given an inhaler and other medication. He was also transferred to another cell with an open door. He was allowed to go to the lavatory under escort, but not permitted to shower. He was allowed to pray, but mocked when doing so. He was well fed.
28. AB was questioned by a number of men who simply referred to themselves by name: 'the boss' or 'major'. He was questioned about Pakistan and Afghanistan and terrorist attacks in Mumbai. Questions were in French or Arabic and by gesture. On Sunday morning – after three nights in detention – his wife was summoned. AB was allowed to wear his own clothes and she was told to come back on Monday morning, when he would be released. She did so. On her return, she translated questions by sign language for AB, who is deaf, on the same topics as those about which he had been questioned before. He was then required to sign a document in Arabic, which he could not read. It was explained that there had been a misunderstanding and an apology was made to him. He was taken to a hotel and the price paid."
I infer that the Algerian authorities had realised that they had committed a mistake of identity.
i) incommunicado detention for up to twelve days, without access to a lawyer or any visits (apart from a single fifteen minute telephone call to family);
ii) the requirement to wear prison uniform which AB found humiliating and discriminatory;
iii) captors not telling AB that he was under arrest and not disclosing their real names, giving rise to feeling of fear and inferiority;
iv) solitary confinement;
v) Detention in a dark cell, with no light - AB's words, "when they locked me in there I didn't know what was happening or where I was. It was a horrifying feeling to be in that place not knowing if it was night or day."
vi) cell infested with mosquitoes – AB's wife noticed that he was "bitten all over with mosquito bites".
vii) no bed or mattress in the cell. AB had to sleep on a concrete floor with only a blanket on two cloths.
viii) AB was unable to sleep at all because of the conditions;
ix) there was no furniture in the cell.
x) there were no toilet facilities, not even a bucket, in the cell.
xi) the cell was "filthy …very dusty and damp".
xii) AB experienced breathing difficulties, including AB's asthma attack.
xiii) lack of, or very tardy medical attention.
xiv) AB's hearing aid was removed, causing sensory deprivation and feelings of fear and insecurity;
xv) AB was not permitted to shave for the duration of his detention, notwithstanding the heat, the filthy conditions of the cell, the lack of a bed or adequate toilet facilities;
xvi) mockery and humiliation by the guards, including being "heavily mocked" while praying;
xvii) intimidating and intensive repeated interrogation by groups of men;
xviii) pressure to sign documents, including documents AB did not understand: "It was made clear to me that if I didn't sign the document that they asked me to sign that I would not be released. I feared the consequences of not signing the documents. I did not want to sign them because I did not understand them but I had no choice and anyway by that stage I would have done anything".
The conclusion of SIAC on Article 3
"In reaching that judgment, we have had principally in mind the facts referred to in paragraph 31."
"Nevertheless, AB was not threatened or struck. No pressure was put upon him to make a false confession. Questions were put, in the only way they could be put to a deaf man without a sign language interpreter, in writing. There was no attempt to deprive him of sleep by leaving the bright light on or playing loud music in his cell. When medical help finally arrived, he was prescribed appropriate medication and given an inhaler and transferred to a cell with an open door. When his interrogator realised that a mistake had been made, they arranged for his wife to visit him and told him he would be released the next day. These do not seem to be the actions of interrogators seeking to break down the moral resistance of a subject by unacceptable means. Physical violence has, at least in the past, been the means by which DRS interrogators have attempted to achieve that end. The deplorable conditions in which AB was detained indicate rather a lack of care for the welfare of persons detained for questioning."
The Article 3 Appeal
"… an applicant may be able to meet this (viz the Chahal) test either by referring to evidence specific to his own circumstances or by reference to evidence applicable to the class of which he is a member. The present case falls into the latter category …. In this latter category of case an applicant will only be able to demonstrate substantial grounds for believing that there is such a real risk if he can point to a consistent pattern of gross and systematic violation of rights under Article 3."
"173. … in the 22 years since the Soering judgment, in an Article 3 case the Court has never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a contracting state. To this extent, the Court must be taken to have departed from the approach contemplated at  and  of the Soering judgment.
176. The Court therefore concludes that the Chahal ruling (as reaffirmed in Saadi) should be regarded as applying equally to extradition and other types of removal from the territory of a contracting state and should apply without distinction between the various forms of ill-treatment which are proscribed by Article 3."
"178. Equally, in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court's conclusion that there has been a violation of Article 3:
- the presence of premeditation:
- that the measure may have been calculated to break the applicant's resistance or will;
- an intention to debase or humiliate an appellant, or if there was no such intention, the fact that the measure was implemented in a manner which none the less caused feelings of fear, anguish or inferiority;
- the absence of any specific justification for the measure imposed;
- the arbitrary punitive nature of the measure;
- the length of time for which the measure was imposed; and
- the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.
The Court would observe that all of these elements depend closely upon the facts of the case and so will not readily be established prospectively in an extradition or expulsion context.
179. Finally, the Court reiterates that as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment. The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a state which had a long history of respect of democracy, human rights and the rule of law."
"201. In order to fall under Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the state of health of the victim. Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.
202. For a violation of Article 3 to arise from an appellant's condition in detention, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve an element of suffering or humiliation. However, the state must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the names and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.
203. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions also has to be considered."
"Without attempting to lay down rules which must apply in every case, we believe that four conditions must, in general, be satisfied.
(i) the terms of assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to Article 3;
(ii) the assurances must be given in good faith;
(iii) there must be a sound objective basis for believing that the assurances will be fulfilled;
(iv) fulfilment of the assurances must be capable of being verified."
"… there is no rule of law that external monitoring is required. It all depends upon the facts of the particular case … SIAC was quite right to say … that although fulfilment of assurances must be capable of being verified, external monitoring is one possible form of verification."
"45. But the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the AIT's assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account."
All this is well trodden ground but it is appropriate to reference it in this case.
"39. If there had been a history of breaches of assurances given in respect of these deportees, the lack of access by British Embassy personnel to those detained would, in my view, be fatal to reliance on the assurances. However, given the strength and reliability of the assurances and the past history of good compliance noted in previous SIAC judgments, we are satisfied that this provision is not required …
40. We are satisfied that the means of verification, although largely informal, are adequate to ensure that its principal purpose is fulfilled. The first and most basic fact which requires verification is that an individual has been released or brought before a judge within the time limit prescribed by Algerian law. This has not proved problematic in the case of any of the 14 men deported by the UK and the US. The medical examination required by Algerian law at the end of the garde à vue detention provides some, but very far from complete, reassurance that a detainee has not been physically ill-treated. British Embassy contact with Maître Amara affords a formal and contemporaneous means of enquiry, both during and after detention, which, as past experience has shown, is of value, even if mistakes are sometimes made. British Embassy contact with the detainee and family members, before, during and after release, if facilitated by them, is effective, as the case of Benmerzouga demonstrated. We do not accept Ms Rose's submission that family members will be deterred from contact with the British Embassy or may not tell the truth out of fear of the Algerian authorities. Two striking open examples demonstrate why that proposition is erroneous. [The examples are Q and Benmerzouga, as to whom, see below] …
41. In addition to direct and personal means of verification, there are indirect means of some value. The first is the francophone press and the Algeria Watch website, in both of which reports of torture are freely made…
42…. The final indirect means is NGO reporting … It is … a fact that Amnesty International does take a keen interest in those deported to Algeria with the benefit of assurances … If they have evidence that they have been flouted in any individual case, they can be relied upon to say so and have done so … in the past."
(i) Medical examinations
(ii) Maître Amara
(iii) Family Members
"Q: Do you accept that it is correct that telephone calls in Algeria are routinely monitored or are believed to be monitored by the DRS?
A: Yes. I do not think that the monitoring is universal but the DRS probably ….that will be one of the main ways they access information.
Q: So if people are afraid that information that they are giving would lead to adverse attention from the DRS, they will not be prepared to give that information by telephone, will they?
A: I agree.
Q: You have accepted … that telephone calls are often monitored in Algeria.
Q: The assurances that you have with the Algerian state do not protect family members, do they?
A: They do not. They only protect the detained deportee
Q: Will you accept that the fear of members of the family may be particularly great when other members of the family, not just the person in detention, have themselves been harassed or abused by the DRS?
A: That is a reasonable point to make, yes.
A: It is a fair point to make that they might be afraid to talk to the British Embassy. On the other hand, and I have to say this, again and again I come to the and yet question ….documented allegations of ill-treatment of people in Algeria have consistently come out, even in times when the situation was much more terrifying than it is today, so the Algerian authorities must calculate, if they did that to one of our people, we would get to know about it."
The closed evidence issue
"As a differently constituted panel noted, at paragraph 31 of its judgment in G of 8 February 2007, DRS officers were present during discussion about the assurances and have subscribed to them."
"58. …the SSHD cannot rely on any substantive assurance unless it is put into the open. It may be the case that encouraging or supporting comments, even if described as assurances by the Government's interlocutor, should remain in closed if for example they are steps en route to an agreement. But the key documents or conversations relied on to show that an appellant's return would not breach the UK's international obligations or put him at risk of the death penalty have to be in the open evidence. SIAC could not put weight on assurances which the giver was not prepared to make public; they would otherwise be deniable, or open to later misunderstanding; the fact of a breach would not be known to the public and the pressure which that might yield would be reduced. They must be available to be tested and recorded."
"… the deportee is unlikely to have information to impart that that will be critical to meeting the case of the Secretary of State in relation to safety on return."
"no reason to suppose that, had the applicant seen the closed evidence, he would have been able to challenge the evidence in a manner that the special advocates could not."
"In previous judgments in Algeria deportation cases, SIAC's closed findings concerning DRS presence at all the negotiations about deportation with assurances, and DRS acquiescence in, acceptance of and/or subscription to the arrangements for deportation with assurances, have not in any material way gone further than SIAC's open findings concerning those matters. In particular, in revealing its conclusions in those judgments, SIAC has not relied on any separate or distict assurances given by the DRS. The reference in paragraph 34 of the open judgment in G is not a reference to any such separate or distinct assurances."
Lady Justice Rafferty:
Lord Justice Aikens :