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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S, R (on the application of) v The Secretary of State for the Home Department  EWHC 2120 (Admin) (05 August 2011)
Cite as:  EWHC 2120 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy High Court Judge)
| THE QUEEN
(on the application of S)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|(1) GEO GROUP LIMITED
(2) DRUMMONDS MEDICAL LIMITED
(3) THE SECRETARY OF STATE FOR JUSTICE
(4) THE CENTRAL AND NORTH WEST LONDON NHS FOUNDATION TRUST
Mr. John-Paul Waite (instructed by the Treasury Solicitor) for the Defendant
Mr David Eccles (instructed by Berrymans Lace Mawer LLP) for the First Interested Party
(The other Interested Parties did not attend and were not represented)
Hearing date: 16, 17, 31 March and 1 April 2011
Further written submissions 20 June, 4 and 6 July 2011
Crown Copyright ©
The Deputy Judge (David Elvin QC):
Events up to 25 September 2006
25 September 2006 - 27 April 2009
27 April 2009 - 25 June 2009
"He... has been having images of four masked men threatening him. ... he currently experienced these images most days and nights, and they sometimes prevented him from sleeping. He bought a book in the session with very vivid drawings he had made of his images, and the different situations in which they appeared, such as in his cell... He has also drawn out a picture of a dragon, which he said was a protective figure, derived from a favourite TV program he used to watch as a child. [S] said the images tended to tell him to cut himself, which he has done in the past. They also threatened to kill him, or warned him not to talk to other people... [S] said that the images tended to stay away when he was with his fiancée, when he was reading the Bible, and to some extent if he could conjure up the figure of the 'Mother Dragon'."
S continued to meet with Dr Koch at HMP Bullingdon, for a total of nine occasions between June and September 2009.
25 June 2009 - November 2009
"Q79 If you have been hearing voices for 18 years and receiving treatment for about 4 years how have you dealt with this for 14 years approx in UK?
I have just been suffering. If you tell someone you are hearing voices they make fun of you and sit elsewhere and call you a mad man.
81. Why is your Polish fiancée helping you?
She loves me a lot. ...
83. Are you happy for the prison to share your medical information with the Home Office?
84. Is there any other information you would like to tell me that you have not done so already to support your asylum application?
The prison GP has a report on me which states I need an operation due to the abuse I suffered. I would like me caseworker to have a look at this information."
"I have a Polish fiancée with 4 children. We have been living together for 4 ½ years. The children are not mine but accept me as their father."
"It is quite clear that he has a strong desire to avoid deportation. This could give him a clear reason to feign or exaggerate symptoms. However the consistency of his story over the last months leads me to conclude that it is reasonable to accept his presentation at face value. He currently presents as suffering from a psychotic state characterised by auditory hallucinations and paranoid delusions. These symptoms have occurred in the context of a severely depressed mood with suicidal thoughts and acts of self-harm. It is therefore my opinion that he is currently suffering from a severe depressive illness with psychotic features. It would appear that he has fulfilled the criteria for such a diagnosis for about four months since May 2009. During this period he has only been prescribed medication sporadically for one reason or another. It is therefore not surprising that there has been no real improvement in his condition as this would require consistent treatment with antidepressants and possibly antipsychotic medication."
"I think the most likely explanation is that he has suffered from a constellation of post traumatic symptoms since the age of 14. These have included what might be termed pseudo hallucinations and dissociative episodes. It may well be that some of his symptomatology has been contained by the medication he has been obtaining from Poland via his fiancée. Since his remand his mental state appears to have deteriorated... It is therefore my opinion that on the background of these post traumatic symptoms he has now developed the current presentation of a psychotic depression. I do not think that any aspect of his presentation is significantly attributable to cultural factors."
"His severe depressive illness is accompanied by significant thoughts of self-harm. He has self-harmed on numerous occasions despite having sought help on other occasions... there is a significant risk of suicide if his mental state does not improve. I am particularly concerned by the fact that voices have told him to cut off his penis... patients who experience this type of hallucination proceed to self-mutilate in this way. Despite the precautions being taken by the Prison Service, in such an environment this remains a real and significant risk".
"... However, with appropriate treatment he should be able to return to a functional state where he is not at significant risk of self-harm or suicide and would, for example be able to sustain a relationship and return to work. Any further psychological treatment that is required would not necessitate continued hospitalisation"
November 2009 - April 2010
"you have provided no evidence that any further assessment has been undertaken."
"that when talking about his past he is consistent in his reporting and in the distress it causes him. The voices and hallucinations [S] reports appear to have reduced since his admission to Woodlands House.
Although [S] self-harms he does not appear to try and kill himself. He feels hopeless about the uncertainty surrounding his future in respect of his immigration status but seems somewhat resigned to being deported... assessments relating to PTSD and aspects of his personality are on-going."
"After a period of detailed assessment of his mental state, it has been concluded that [S] does not suffer from a severe mental illness. Whilst at times during this admission he has presented with symptoms of low mood, tearfulness, and feelings of helplessness, these have not been persistent features. They appear to be mainly related to concerns
regarding his immigration status and threat of deportation." (pp.12-13)
"[S] has reported experiencing a constellation of symptoms of a post-traumatic nature. He continues to report hearing "voices" (of four masked men, who killed his parents). At times, he reports that these tell him to self-harm, usually by cutting himself. These experiences are most likely to represent pseudo hallucinations, and are not considered to represent true psychotic phenomena, as would be soon [sic] in severe mental illness… It is likely that the currently prescribed medication has had a beneficial effect on these reported symptoms, by reducing anxiety and distress levels. These symptoms may be amenable to specific psychological treatment. Such treatment would not require continued detention in a hospital setting."
"[S] presents with some features of an emotionally-unstable borderline-personality disorder. These include: liability to becoming involved in intense and unstable relationships, often leading to emotional crises; excessive efforts to avoid abandonment; recurrent threats or acts of self harm; chronic feelings of emptiness. These personality traits will contribute to aspects of his clinical presentation."
"[S] has a history of impulsive self harming behaviour both in prison and hospital settings… He continues to present with a high risk of impulsive self harm… He presents with a significant risk of completed (and, perhaps, accidental) suicide. If [S] were detained into a custodial setting, this risk would need to be identified and monitored. It is very clear that his concerns over his immigration status and the risk of deportation are very significant stressors in [S]'s case, and are strongly associated with self harm behaviour."
"Whilst [S] suffers from significant mental health difficulties, these do not constitute a mental disorder of a nature and/or degree to warrant detention in hospital under the provisions of the Mental Health Act. Therefore, I have no recommendations with regards to a psychiatric disposal to make to the Court."
"In my opinion, [S] is suffering from anxiety related Post Traumatic Stress Disorder, and Avoidant and Schizotypal Personality Disorders with Dependent and Paranoid features. He is likely to benefit from psychological therapy, for which it is not necessary to remain an inpatient."
"Following examination by the ward doctor in Woodlands House, Dr Abdul-Hameed Latifi, [S] was found to be suffering from a rectal prolapse consistent with injury suffered from repeated rape." (3.13)
"There appears to be a pattern of harming himself, linked to being left alone by those who support him or "look after" him, the threat being returned to prison or deported, both situations in which he believes he will not be looked after." (3.25)
"…information obtained during my interviews with [S] suggest that he meets criteria for Post Traumatic Stress Disorder (PTSD) as set out by the Diagnostic and Statistical Manual of Mental Disorders…" (3.30)
"My impressions support the conclusions of Dr Rule and Dr Lally: all details [S] has related concerning his history have been consistent with accounts he has offered previously, and these accounts appear to have been accepted as true; he has related the events of his past to me on several occasions and the details have remained consistent with each retelling; his emotional presentation has been congruent with his story, and consistent with previous reports by clinicians assessing him; over a the 4 month period of his admission he has reported that his symptoms have improved, in particular that the appearance of the 4 men has reduced considerably and that the voices have become 'lower' which he would have been unlikely to do had he been malingering; similarly he has reported that the medication he has been prescribed in Woodlands House has been extremely beneficial in improving his symptoms; objectively he appears significantly less tearful, less distressed, more sociable, less isolative than on first admission; and finally, following the first joint interview with Dr Meina, he misinterpreted a statement she made to mean that he did not suffer from a mental illness – he described feeling great relief that he was not considered to be mentally ill, which is not a behaviour consistent with feigning symptoms." (3.31)
"[S] completed the IPDE screening tool... The summary outcomes indicate definite personality features of Schizoid Personality, Schizotypal Personality, Avoidant Personality, and Dependent Personality, while Paranoid Personality and Borderline Personality show some probable features." (3.38)
"Currently, [S] demonstrates evidence of the presence of Avoidant traits and to such a degree that a definite diagnosis of Avoidant Personality Disorder is warranted." (3.45)
"[S] demonstrates evidence of the presence of Schizotypal traits and to such a degree that a definite diagnosis of Schizotypal Personality Disorder is warranted. Schizotypal personality disorder is defined by a number of characteristics including the following which are presented by [S]: unusual perceptual experiences; suspiciousness or paranoid ideation; excessive social anxiety due to paranoid fears; odd thinking; constricted affect, and; ideas of reference." (3.45)
"The prevailing theme which runs through the odd and eccentric cluster of personality disorders is that of paranoid beliefs; [S] does not have a paranoid personality disorder but he does present with strong paranoid personality traits." (para 3.47)
"[S] also meets the diagnostic criteria for Dependent Personality Disorder. Dependent personality disorder is marked by the following which are presented by [S]: inability to make decisions without high degree of reassurance; inability to assume major responsibilities; difficulty in expressing disagreement; difficulty with doing things on one's own; uncomfortable or helpless when alone because of exaggerated fears of being unable to care for himself; pre-occupied with being left to care for one's self." (3.48)
"His description of their relationship [with his partner] indicates that his fiancée 'looks after' [S] and makes those decisions for him that are in his best interest, because he is unable to demonstrate agency." (3.49)
"…there is no corroborative evidence to support or contradict his story, but my impression, after carrying out an extended assessment, is that it is valid and that, as a consequence, he is experiencing significant levels of distress." (4.1)
"[S]'s personality profile suggests that he would respond well to individuals who adopt a caring, protective role towards him, and is likely to be reassured by a relationship in which the therapist appears to be an expert who will give good advice and guidance." (4.3)
"He is likely to benefit from psychological therapy to address his post traumatic symptoms… He is likely to benefit from psychological input to help him cope with his nightmares, and he has already shown himself to be highly motivated to engage with psychological work related to nightmares, being very conscientious in carrying out therapeutic exercises." (4.4)
"Despite these medical and psychological interventions, his prognosis is likely to be more positive if he has access to supportive relationships, and trusted people he can talk to particularly whilst engaged in psychological therapy." (4.8)
"It is not necessary for [S] to remain an inpatient to engage in the therapy described above and it would be most beneficial for him to be living in his supportive home environment to derive maximum benefit from it. It is likely that if he is returned to prison, he will regress to the position which gave rise to his initial referral to Woodlands House: given his personality profile, in a situation of uncertainty or where there is little access to supportive relationships, he is likely to resort to dysfunctional behaviour to cope with distressing emotions, for example self harm or suicidal behaviour. He may feel vulnerable and threatened, his fear of rejection making it difficult to build relationships."
"[S] requested a copy of my report, so I went through it with him and gave him the opportunity to ask questions as we went along. He became tearful when I explained I had had to consider whether he was telling the truth. I went through the paragraph that explained Dr Lally, Dr Rule and myself had all thought he was telling the truth."
"I was at pains to try to ensure that [S]'s medical assessments followed him to wherever he might end up. A copy of the latest 2 reports together with a list of the medication he takes did go with him and I told the police officers that he remains a suicide risk."
"I was told by a female officer that he is still there and that UKBA hope to pick him up tonight or tomorrow morning… I was assured that all [S]'s papers etc are with him and that he has already been seen by a doctor."
"Call from Natasha at Lodden Valley police station Thames Valley Police. Subject brought into custody from Reading Magistrates court for immigration offences.
Subject has mental health issues and currently being dealt with by CCD who are considering automatic deportation as of 11/02/2009."
"Reason doctor requested
Post traumatic stress disorder, dp states he has mental health issues currently on medication for this, Mirtazapine 45mg, Risperidone. Dp is high risk of suicide and has suicidal tendencies. Dr Susan Louise Hardy states dp is high risk…"
"he is still presenting with self harming symptoms and hence need personal supervision while in custody…"
It appears from this that the doctor had access to Dr Hardy's report.
24 April 2010 to 4 August 2010
"Detained by SSHD pursuant to powers contained in Sch 3 Immigration Act 1971.
"On 23 April 2010 we were notified that Mr S had been assessed and did not need hospitalization but would be released as his sentence had been served on remand."
"No evidence has been submitted to show that they have co-habited and representations have been rejected."
"[S] claims to be mentally ill but we have no evidence of this. He has been assessed as not needing detention under the mental health act. Mr S claims that he self prescribed by taking medication provided by his partner. This was all considered when the asylum claim was refused.
He claims he is a victim of torture. He claims that he was sent to Europe (Germany) as a young man where he was frequently raped in exchange for money. This was fully considered when his asylum claim was refused."
"He has mental health issues and more information is required. I intend to contact healthcare at the IRC for an assessment of his current health and fitness for detention. We do not have a reliable release address. It is proposed to detain [S] as there is a risk of him absconding. His probation officer has assessed him… as a medium-high risk of serious harm, low risk of reconviction and MAPP1.""
"He appears to have medical issues (mental health) but no evidence has been forthcoming that would deem him unsuitable for remaining in detention.
He has no fixed abode and alcohol related problems. He is not suitable for release under rigorous contact management and poses a risk to the public. ...
Toni please continue to investigate his medical issues to establish if there are any reasons he would not be suitable for detention that we are unaware of."
" looks low mood…
History of suicide attempts
Diagnosis ? PTSD + suicide risk
Keep a very close eye ? suicidal"
"Seen by member of medical staff (name illegible) at Colnbrook.
"Reported hearing voices and seeing people who are not there (auditory and visual hallucinations), persecuting voices, deliberate self harm, and being instructed by voices to drink blood, Borderline Personality Disorder, voices present all the time, poor memory. Requires someone to monitor and observe him when shaving. Keep knives and all sharp objects away. Very high risk of self harm.
Noted to be low in affect and eye contact; anxious and agitated.
"Detainee has a 4 year mental health history and was previously admitted to Aylesbury Hospital."
Pt states he hears voices to cut himself 4 report 20/4/10
Impulsive self harm behaviour
Significant risk of completed and perhaps accidental suicide
Immigration issues and custodial setting significant stressors associated
self harm ? emotionally unstable borderline personality disorder ? PTSD ..."
"ACDT opened by Dr Slara – hourly observations.
"History of previous self harm. Patient agitated and anxious. Seen by psychiatrist who advised that patient is at significant risk of completed and perhaps accidental suicide. Immigration issues and custodial setting are significant stressors associated with self harm."
"[S] remains anxious, wants more freedom than he gets in [the short term holding facility at Colnbrook]. Is moving to Harmondsworth and is happy about this."
"continue to investigate his medical issues to establish if there are any reasons he would not be suitable for detention."
"The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere:
those suffering from serious medical conditions or the mentally ill - in CCD cases, please contact the specialist Mentally Disordered Offender Team."
"[S] has made comments to Officer Zamir stating he will self harm if left on his own, he says the voices in his head tell him to do it, says he suffers PTSD and four men in his head are telling him to kill himself. These are the people who killed his mum and dad. Now on constant watch."
"Conversing to me about his life in England and how he went to jail. Said there is no one in India for him as his parents are dead. Has a fiancée here for support. Seems to be sad and has also written the word 'help' on the inside of his left wrist."
"…his watch has been raised to constant watch due to [S] stating that
he hears voices telling him to self harm."
"[S] came to unit office brought to my attention that he has thoughts of self harming himself and voices in his head are telling him to do it. Seemed very low in mood and very unstable. Now moved to hcl3 on a constant watch ..."
"[S] has stated that he doesn't want to self harm, but the voices are telling him to cut his body and that he saw the people that killed his mum and dad. [S] has also stated that he feels very scared about the house blocks, as he feels very lonely."
"[S] handed me a picture of himself lying in bed. Around the bed are 4 other people. I asked who are they. [S] said they are the people who killed my family and they out to kill me… [S] said they tell me to cut myself and drink the blood as you die!! They also say we will blow your head off. [S] also said 'that a dragon sometimes scares them off but not all the time. He also said that these people carry guns and knives they are evil and very powerful."
"In my opinion [S] is suffering from anxiety related post traumatic stress disorder, and avoidant and schizotypal personality disorders with dependent and paranoid features."
"In accordance with Detention Service Order 03/2008 a response to this Rule 35 should have been provided within two working days so that we can be satisfied that a review to maintain detention has been considered."
"Your assertion that you are a victim of torture was considered when your asylum claim was refused and was considered when the decision was made to detain you. Your detention is reviewed regularly by a senior officer."
"[22 May] [S] claims that he cut his wrist because the voices in his head and the hand drawn pictures in his room told him to. He stated he had taken his medication but could not stop the voices. [S] claims he wants to see his wife who is coming tomorrow from Slough. But even she cannot help stop the voices. [S] also claims that he will not go to healthcare as the voices there are louder."
"He said the 4 masked people gave it to him and the voices said he should hurt himself. He said he couldn't speak to an officer as he couldn't get down the stairs (gate locked). He had a visit yesterday from his girlfriend and phoned her when he hurt himself. He said he hurt himself as the voices tell him to drink blood. He said he will try to drink a red drink when he wants to hurt himself and will try an elastic band on his wrist. He said he tried to help an injured pigeon that was bleeding and seeing the blood made him hurt himself causing flashbacks to his past."
"[24 May] [S] is feeling a lot better now he has a room on the ground floor and in a room with his friends. He is still hearing voices which tell him to hurt himself but the elastic band and red pen he was given is helping slightly. He believes he needs stronger meds, he is taking his meds regularly. Eating all meals and fluids. Has agreed if he has a problem he will come to a member of staff or use the intercom in an emergency. Review panel agreed move the observations to three per shift and conversations three per shift."
"[26 May] Had general chat with [S], he was tearful and feeling down. After speaking to him, his mood was much better, and he seemed relaxed. He said he wants to be with his family and cannot understand why he is in detention."
"I spoke to Harmondsworth today who have told me that he is no longer on constant watch but is still under observation."
"[S]'s mental health was fully considered when the asylum claim was refused. He has now provided [Dr Schmidt's report] in which the psychologist says… "It is likely that if he is returned to prison he will regress to the position which gave rise to his initial referral to Woodlands House:… in a situation of uncertainty or where there is little access to supportive relationships he is likely to resort to dysfunctional behaviour to cope with distressing emotions for example self harm or suicidal behaviour." [S's] medical condition was considered in the reasons for deportation letter and the WHO shows that medication is available in India for mental illness.
[S] claims to be in a relationship with a Polish national who has 4 children but he has not provided any evidence that they are in a subsisting relationship. Additionally this was considered in the reasons for deportation letter."
"[S] has mental health issues and claims to be a victim of torture. He has self harmed and was on constant watch. [S] has been assessed as not needing in patient treatment in order to engage in the therapy described in the medical report."
"It has been taken into account that those with a mental illness can only be detained under immigration powers in exceptional circumstances and full consideration has been given to the presumption to release – liberty… Given the risk of harm, offending and absconding, the presumption in favour of liberty is outweighed in this case…"
i) The assessment misunderstands the report and its advice relevant to detention, which it undoubtedly refers to, but deals with S's condition as something which could be treated abroad. It therefore failed to grapple with the effect of detention on S's condition despite the terms of Dr Schmidt's report and the HEO's requirement on 23 April to investigate whether S was suitable to be detained. That advice was underlined by the actual deterioration in S's condition at Harmondsworth. The evidence of S's condition was not put forward as a reason for allowing his appeal against the refusal of his asylum claim and against deportation but as a reason which he should not be detained while awaiting the appeals;
ii) Further, it is not correct to suggest that S's mental health was considered when S's asylum claim was refused and it does not provide a proper answer to Dr Schmidt's concerns;
iii) While S's self-harming is referred to, the report also misunderstands the reference to the lack of need for in-patient treatment. It is not setting out a choice between hospital and detention but simply stating that hospitalisation is not required;
iv) No account seems to have been taken of the more detailed psychiatric assessments that the real risk of harm in S's case was to himself and not to others (see e.g. Dr Lally on 14 September 2009);
v) Whilst reference is made to the policy of exceptional circumstances, it is approached as if it were simply a rebuttal of the normal presumption in favour of liberty. The approach taken does not appear to treat S's mental condition as something which requires significantly weighty countervailing considerations to justify detention. Given the HEO's earlier requirement to consider S's suitability for detention, taken with the other defects I have mentioned, this is of importance when I come to determine whether the policy was properly understood and applied.
"Severe PTSD with flashbacks that are of such intensity that is experienced as visual and auditory hallucinations (compensating for his extreme emotional distress). Severe depress [?] psychotic illness. I believe that due to the nature and degree of his emotional disturbance and due to unavailability of suitable treatment for him (trauma focused cognitive behaviour therapy) he is no longer fit for detention and will require treatment in suitable centre."
"It has been taken into account that those with a mental illness can only be detained under immigration powers in exceptional circumstances and full consideration has been given to the presumption to release – liberty" but "Given the risk of harm, offending, absconding, the presumption in favour of liberty is outweighed in this case."
"The nature of his convictions indicates a risk of harm to the public, a risk of re-offending and a risk of absconding.
The case needs to be considered under section 55.10 of the enforcement guidance and detention reviews need to show this has been done."
"No improvement in mental state remains psychotic with [increased] agitations and restlessness – denies side effects
…ringing his fingers constantly and tearful at times
No changes in delusional [?] and voices and images persist
... refused to allow me to see the pictures and paintings he has done for dragon mother (his protector) and also of 4 hooded men as believed that if he allow me see them they will punish him for it today they will torture him later today…
(1) not fit for detention
(2) will need hospital admission
(3) s 48 form completed
(4) Increase [S?] 150mg/day
(5) Increase Risperidone 4mg BD.
(6) Increase Mirtazapin 30mg/day.
…will need transfer to hospital ASAP…
Risk to self difficult to assess as not answering questions… gets frightened by hallucinatory experiences… risk of self neglect and not eating is high however he has a sympathetic room mate who encourages him to eat constantly and helps him with self hygiene and care.
Will be better nursed in in-patient unit preferably with a person speaks his language he trusts current roommate."
"Diagnosis: severe depressive disorder.
Very low in mood, with psychotic features, PTSD, extremely anxious and distressed."
"It is vital for the health of [S] that this assessment takes place without hindrance and should you experience any problems please telephone me on [number provided]"
"I have assessed this case under the current detention criteria and in accordance with Chapter 55.10 (persons considered unsuitable for detention) and with the presumption to release – liberty and conclude that [S] is not suitable for release under conditions of rigorous contact management at present.
It has been taken into account that those with a mental illness can only be detained under immigration powers in exceptional circumstances and full consideration has been given to the presumption to release – liberty. However, [S] has received a custodial sentence...
Referral from Mental Health team. – I agree that detention should be maintained. As [S] is not longer detained under the Mental Health Act 1983."
"[S] is due to have a mental health assessment on 19 July 2010 and at this stage continued detention to ensure this is carried out and if necessary the correct level of support and medication is provided immediately is in [S's] best interest. [S] has stated he has a Polish girlfriend however no evidence has been provided and there it is possible that [S] would have no support if released […]
When the mental health assessment is received continued detention should be looked at urgently and if necessary a referral for release should be made."
"It is not clear why no further action has taken place on this referral. Staff at Harmondsworth IRC Health Centre did not know, nor could they tell me how to contact Dr Ahmed, nor the location of Riverside Mental Health Unit. ..."
[S] has depression with psychotic features (auditory hallucinations) and is at risk of self harm. His condition has worsened since being in detention and cannot be adequately treated in the IRC. He requires assessment and treatment as a psychiatric in-patient, and this was recommended urgently by a specialty doctor in psychiatry, three weeks before my visit. It is unclear why this admission has not yet taken place, and there is no information in his Harmondsworth medical records which would enable staff to contact Dr Ahmed or Riverside Mental Health Centre to take this forward. I am continuing to pursue this..."
"The applicant is suffering from a mental disorder and continued detention is needed in his interests or for the interests of others...
He has… shown his unwillingness to co-operate, by being less than helpful in the documentation process, although this (and indeed all other adverse conduct noted) may be attributable for his mental condition.
His current immigration status (facing deportation), when coupled with his severe mental health problems, effectively renders him unaccountable for all conduct, including any future offending, and removes incentive to comply with conditions of any bail granted.
… he told me that he hears voices telling him to 'take blood' and he said there are four people telling him he has to kill himself. There is evidence of two recent serious incidents of self harm during his detention.
I am not a doctor. I cannot assess the effect that [his appeal against deportation] may have on his mind. But it is reasonable to assume that he will be more agitated when facing proceedings more imminently. Therefore my conclusion is that particularly at this moment, it would be wrong to release him. I do not say he will never be fit to be released. But at this time, it is a particularly bad time to be doing it… I would be failing in my duty if I were to release the Applicant in his current mental state… In my view this is a clear case for the application of para 30(2) of Schedule 2 to the 1971 Act and I propose making an order accordingly – the Applicant is suffering from mental disorder and his continued detention is necessary in his interests and in the interests of the public."
"he said that all the pressure's got too much. He is very frightened and agitated at present. Given the circumstances have moved [S] to healthcare on a constant watch."
i) the Defendant was to obtain within 48 hours an opinion from a second registered medical practitioner on whether S should be transferred to a hospital under s. 48 of the Mental Health Act; and
ii) If the second registered medical practitioner concurs with the assessment of Dr Ahmed of 24 June 2010, the SSHD make a Transfer Direction and arrange S's transfer.
4 August 2009 to date
"Reps have requested TA for Mr S on the basis of his mental health and long term relationship with an EEA national. He has also applied for a JR on the basis of unlawful detention due to his poor health.
Mr S is currently in hospital under section 48 of the MHA and we are not in the position of releasing him. I have written to the reps advising that we will not release at this time but once his medical team tell us that he is fit for discharge we will review the detention."
"On 13 July 2010 a pre-action protocol was received asking for an assessment of [S's] mental health. On 29 July 2010 the assessment was conducted. Attempts had previously been made to have [S] assessed but these failed due to his lack of co-operation with the assessment process. On the same day an application for a Judicial Review was received for unlawful detention on the basis of his mental health."
"2. Progress since last review
[S] was assessed and re-admitted to hospital on 4 August 2010 after further self harming himself."
"11. Recommendation (Reasons to maintain detention or to release
and must contain consideration of presumption to release)
[References to S's violent offending, risk of absconding and lack of
evidence of a durable relationship with his Polish partner]
I have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance that states that detention of those suffering from mental illness should be in exceptional circumstances only. [S] suffers from mental health difficulties but in this case, the presumption is on balance outweighed by the risk of harm to the public and the significant risk of absconding. Additionally,
[S] is currently detained under section 48 of the MHA and will not be discharged into the community until he is considered well enough by his [Responsible Clinician]."
His representative has requested temporary admission when he is discharged. They claim that his previous and continued detention is unlawful according to Hardial Singh principles ... they also claim that immigration detention has been the cause of his deteriorating mental health. They state that he could be considered for hospitalization under sections 2/3 of the MHA. The RC told me this would not be a consideration until the assessment is complete."
"Agreed that detention should be maintained. As highlighted above [S] is an immigration detainee under the Mental Health Act (section 48) and thus we must continue to complete detention reviews. If [S] is assessed as fit and well by the Responsible Clinician then this case should be sent back to the original case owning team. It will be their responsibility to then consider whether continued detention under section 55.10 of the Enforcement Guidance is appropriate and whether [S] is an exception..."
"…I regret to inform you that I am not minded to grant temporary admission at this time. Your client is currently detained in hospital under section 48 of the Mental Health Act 1983. He cannot be considered for release into the community until his responsible clinician considers him well enough for discharge.
Your client's continued detention will be reviewed when his medical team inform the Criminal Casework Directorate that he is well enough to be returned to immigration detention."
"2. Progress since last review
His responsible clinician has advised that the assessment is reaching its conclusion and a Care Plan Assessment will take place sometime next week. [S] is quite settled and there are no apparent symptoms of mental illness. He is taking his medication. There is nothing significant and they are looking to sending him back to the detention centre. What he tells them and their observations are contradictory, he doesn't come across as depressed."
"6. Compassionate circumstances / Medical Conditions – (including mental health issues)
[S] has been admitted to hospital under section 48 of the MHA. He is currently being assessed and his responsible clinician has said that he will be returned to detention in the next few weeks."
"He claims to have a Polish partner but has provided no evidence that he has been in a durable relationship."
"I have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance that states detention of those suffering from mental illness should be detained in exceptional circumstances only. However, his RC has advised that he has not shown significant symptoms of illness and will be returned to immigration detention in the next few weeks. The presumption is on balance outweighed by the risk of harm to the public and the significant risk of absconding. Additionally, [S] is currently detained under section 48 of the MHA and will not be discharged from hospital until he is considered well enough by his RC. ...
I propose that detention is maintained and reviewed in 28 days or when the RC states that he is fit to be discharged."
"Based on the information that you have provided I agree that detention should be maintained. It is clear from the RC that [S] is unlikely to need further treatment and we will need to ensure that he is moved back to the IRC via DEPMU. Please ensure that the SEO in DEPMU is made aware of the case as there has been some difficulties with [mentally disordered offender] cases."
Conduct of the Defence
i) In considering whether the tort of false imprisonment has been committed -
a) Was the initial detention of S unlawful since it was begun before he had been served with the deportation order;
b) If the initial detention was lawful, did S's detention subsequently become unlawful as a result of the failure of the Defendant to follow its own policy on the detention of those with mental health issues;
ii) Did the treatment of S amount to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights ("ECHR") (as applied by the Human Rights Act 1998) either because -
a) The treatment of S reached the threshold of Article 3 on the facts;
b) The procedure and approach of the Defendant was insufficient to protect S (or any other mentally ill detainee) from treatment in breach of Article 3;
iii) If the treatment of S did not breach Article 3, did it nonetheless breach Article 8 ECHR?
iv) Whether the circumstances amount to the tort of unlawful imprisonment and/or breach of Article 5 ECHR?
v) Whether S is entitled to damages, whether nominal or substantial.
The tort of false imprisonment and Article 5 ECHR
"An action for false imprisonment is an action in personam. The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. In Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44, 54, Atkin L.J. said: "any restraint within defined bounds which is a restraint in fact may be an imprisonment." Thus if A imposes on B a restraint within defined bounds and is sued by B for false imprisonment, the action will succeed or fail according to whether or not A can justify the restraint imposed on B as lawful. A child may be lawfully restrained within defined bounds by his parents or by the schoolmaster to whom the parents have delegated their authority. But if precisely the same restraint is imposed by a stranger without authority, it will be unlawful and will constitute the tort of false imprisonment."
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment ... the following four principles emerge:
i) The Secretary of State must intend to deport the person and can only
use the power to detain for that purpose;
ii) The deportee may only be detained for a period that is reasonable in
all the circumstances;
iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.
47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle
(iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.
48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"23 ... As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips PSC includes, at para 262, the following: "as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose " (emphasis added). The first principle is plainly derived from what Woolf J said.
24 As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."
"It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction)."
The power to detain
"2.— (1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.
(a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and
(b) he appeals against his conviction or against that recommendation, the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.
(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
The Claimant's submissions
i) The initial period of detention until 30 April 2010 was unlawful from the outset and in any event since the deportation order relied upon to authorise the detention was not served on the Claimant until 30 April 2010. This was due, as Mr Waite said, to the fact that S was not in a fit mental state to be served with the order (a point of some relevance to other issues). In any event, it was submitted that as a result of the judgment in R (Anufrijeva) v. Secretary of State for the Home Department  1 AC 604 the power to detain under para. 2(3) of the 1971 Act (when a deportation order is "in force") can only be exercised if the detainee has been served or notified of the order.
ii) The detention was unlawful from the outset and, in any event, from 30 April 2010 since the deportation order was unlawful on public law grounds since
a) it failed to take proper account of S's mental illness at the time the order was drawn up earlier in 2010;
b) in any event there had been a failure to review the position in April 2010 in the light of the circumstances at that time including the undisputed advice that detention was likely to be harmful to S and to cause his condition to deteriorate
See HXA v. SSHD  EWHC 1077 (Admin), -, - and R (SM) v. SSHD  EWHC 338 (Admin), -.
iii) Subsequent reviews of the decision to detain failed to understand and properly apply the Defendant's guidance, the effect of which was explained by Cranston J. in Anam v. SSHD  EWHC 2496 (Admin) at  to  (in terms which were not affected by the appeal) and now having regard to recent Supreme Court decisions in Lumba and Kambadzi.
iv) The Defendant's failures resulted in breaches of Articles 3, 5 and 8 ECHR. In particular there were breaches both in respect of (a) a systemic failure to give advice and have in place procedures to deal with those with mental illnesses and (b) the treatment and state of health of S in any event. A contrast was drawn between the lack of guidance in detention cases with the guidance given to the Prison Service, e.g. through PSI 50/2007.
v) The Defendant also failed to act lawfully under s. 48 of the Mental Health Act and to recognise the need to act urgently given S's illness and his state of mental health from May to July 2010, evidenced by the frequent reports of his behaviour and health and the expert advice given as to the effect of detention upon him.
vi) It followed that the Hardial Singh principles were breached in the present case and the Court should hold on the evidence that the detention of the Claimant was unlawful.
The Defendant's case
i) The gravity of the offences of which S was convicted and the ongoing lack of any rational explanation for those offences.
ii) The conclusion of the Probation Service that there was risk of S causing serious harm to the public.
iii) The failure of S to bring himself to the attention of the authorities for fourteen years after his arrival, indicating a clear risk that he would go underground and abscond.
iv) S's recent convictions for failing to surrender to bail and attempting to escape from custody, both of which supported the existence of a compelling absconding risk.
v) The fact that the Claimant's convictions were committed whilst he was in an alleged relationship with his current partner, thereby seriously undermining the Claimant's reliance upon that factor.
vi) The Defendant does not dispute that the medical evidence of S's mental condition is a relevant question to be taken into account in deciding the appropriateness of the decision not to order release under Immigration Act powers but points out that the nature of the condition is not severe and that the detention reviews make express reference to those conclusions. The medical reports, Mr Waite submits, are incapable of giving rise to any reasonable inference that the risk to the public would be reduced to an acceptable level if the Claimant was to be released. They indicate a level of mental instability on the part of S, even after the benefit of in-patient care, which would be of concern to any responsible decision maker assessing the risk of harm to the public. It was submitted that the policy guidance with regard to the detention of mentally ill persons was referred to in S's detention reviews and properly applied.
The lawfulness of detention
The initial exercise of the power to detain
"For the purposes of this paragraph, a person (a) is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom's obligations under the [1951 Geneva Convention and the 1967 Protocol relating to the Status of Refugees] for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made ..."
"26. The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey  1 AC 1, 10g, per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech  QB 198, 209d; R v Secretary of State for the Home Department, Ex p Simms  2 AC
27. What then is the relevance of this dimension for the present case? The answer is provided by Lord Hoffmann's elegant explanation of the principle of legality in the Simms case. He said, at p 131:
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
This principle may find its primary application in respect of cases under the European Convention on Human Rights. But the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann's dictum applies to fundamental rights beyond the four corners of the Convention. It is engaged in the present case.
28. This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e g arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category. If this analysis is right, it also engages the principle of construction explained by Lord Hoffmann in Ex p Simms.
29 In European law the approach is possibly a little more formalistic but the thrust is the same. It has been held to be a "fundamental principle in the Community legal order ... that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it": Firma A Racke v Hauptzollamt Mainz (Case 98/78)  ECR 69, para 15; Opel Austria GmbH v Council of European Union (Case T115/94)  ECR II-39, para 124; Schwarze, European Administrative Law (1992), pp 1416-1420; Council of Europe Publishing, The Administration and You, A Handbook (1997) chapter 3, para 49.
30. Until the decision in Ex p Salem it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law. In R v Commission for Racial Equality, Ex p Hillingdon London Borough Council  AC 779, 787, Lord Diplock explained the position:
"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision."
Where decisions are published or notified to those concerned accountability of public authorities is achieved. Elementary fairness therefore supports a principle that a decision takes effect only upon communication.
31. If this analysis is correct, it is plain that Parliament has not expressly or by necessary implication legislated to the contrary effect. The decision in question involves a fundamental right. It is in effect one involving a binding determination as to status. It is of importance to the individual to be informed of it so that he or she can decide what to do. Moreover, neither cost nor administrative convenience can in such a case conceivably justify a different approach. This is underlined by the fact that the bizarre earlier practice has now been abandoned. Given this context Parliament has not in specific and unmistakeable terms legislated to displace the applicable constitutional principles.
"32. The contrary arguments can be dealt with quite briefly. Counsel for the Home Secretary submits that before a "determination" can be "notified" there must be a determination. This is legalism and conceptualism run riot. One can readily accept that in this case there must have been a decision as reflected in the file note. That does not mean that the statutory requirement of a "determination" has been fulfilled. On the contrary, the decision is provisional until notified.
33. Counsel for the Home Secretary relied strongly on some niceties of statutory language. He pointed out that in regulation 21ZA of the Regulations, as well as in section 6 of the Asylum and Immigration Appeals Act 1993, the draftsmen provided expressly for notification. In contrast regulation 70(3A)(b)(i) makes no reference to notification. The fact, however, that other provisions made the requirement of notification explicit does not rule out the possibility that notification was all along implicit in the concept of "the determination". For my part a stronger indication of Parliamentary intent is provided by the Statement of Changes in Immigration Rules (HC 395), which were laid before Parliament on 23 May 1994 under section 3(2) of the Immigration Act 1971. The concept of a "refusal" of asylum to be found in rules 331, 333 and 348 plainly contemplates notification of an adverse decision. These rules are part of the contextual scene of regulation 70(3A)(b)(i). They support the argument that notification of a decision is necessary for it to become a determination. But the major point is that the semantic arguments of counsel for the Home Secretary cannot displace the constitutional principles outlined above."
Detention in the light of the Secretary of State's policy
The Secretary of State's guidance as to the detention of mentally ill persons
"55.10. Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere:
those suffering from serious medical conditions or the mentally ill - in CCD cases, please contact the specialist Mentally Disordered Offender Team."
"55.8A. Rule 35 – Special Illnesses and Conditions
Rule 35 of the Detention Centre Rules 2001 sets out requirements for healthcare staff at removal centres in regards to:
• any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention;
• any detained person suspected of having suicidal intentions; and
• any detained person for whom there are concerns that they may have been a victim of torture.
Healthcare staff are required to report such cases to the centre manager and these reports are then passed, via UKBA contact management teams in centres, to the office responsible for managing and/or reviewing the individual's detention.
The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention.
The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case.
Upon receipt of a Rule 35 report, caseworkers must review continued detention in light of the information in the report (see 55.8 – Detention Reviews) and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro forma."
"Rule 35 -- Special illnesses and conditions (including torture claims)
(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1),
(2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care."
The legal effect of breaches of policy
"36 I do not accept the Court of Appeal's view that the question is one of statutory construction. We are dealing in this case with what the Secretary of State agrees are public law duties which are not set out in the statute. Of course it is for the courts, not the Secretary of State, to say what the effect of the statements in the manual actually is. But there is a substantial body of authority to the effect that under domestic public law the Secretary of State is generally obliged to follow his published detention policy. In R (Saadi) v Secretary of State for the Home Department  1 WLR 356 , para 7 Lord Phillips of Worth Matravers MR, delivering the judgment of the court, said that lawful exercise of statutory powers can be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such policy gives rise. In R (Nadarajah) v Secretary of State for the Home Department  INLR 139, para 54 the Master of the Rolls, again delivering the judgment of the court, said: "Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of State's published policy, which, under principles of public law, he is obliged to follow." In D v Home Office (Bail for Immigration Detainees intervening)  1 WLR 1003 , para 132 Brooke LJ said that what the law requires is that the policies for administrative detention are published and that immigration officers do not stray outside the four corners of those policies when taking decisions in individual cases. Wade & Forsyth, Administrative Law 10th ed (2009), pp 315–316 states that the principle that policy must be consistently applied is not in doubt and that the courts now expect government departments to honour their statements of policy. Policy is not law, so it may be departed from if a good reason can be shown. But it has not been suggested that there was a good reason for the failure of officials of the required seniority to review the detention in this case and to do so in accordance with the prescribed timetable.
40 In Mohammed-Holgate v Duke  AC 437, 443, Lord Diplock said that the Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223) are applicable not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for trespass by false imprisonment. It may be that not every public law error will justify resort to the common law remedy in every case. But I do not think that it is necessary to show that there was bad faith or that the discretion was exercised for an improper purpose in the present context. Where there is an executive discretion to detain someone without limit of time, the right to liberty demands that the cause of action should be available if the discretion has not been lawfully exercised. In R v Deputy Governor of Parkhurst Prison, Ex p Hague  1 AC 58, 162 Lord Bridge of Harwich said that the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. The requirements of the 1971 Act and Hardial Singh principles are not the only applicable law with which the Secretary of State must comply. Nadarajah's case shows that lawful authority for an executive power of detention may also be absent when there is a departure from the executive's published policy.
41 As Lord Brown JSC points out, the published policy in Nadarajah's case  INLR 139 entitled the detainee to release because it narrowed the grounds on which the power of detention was exercisable: para 107 below. In this case the policy was different because it was concerned not with the grounds for detention but with procedure. All it did was to provide that the detention would be reviewed by designated officers at regular intervals. Of course I agree with him that the policies are different. But I do not think that this difference means that Nadarajah's case offers no assistance in this case. On the contrary, it seems to me to indicate that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise. The importance of the principle that the executive must act within the law was emphasised by Lord Bingham of Cornhill in his seminal Sir David Williams lecture, The Rule of Law  CLJ 67, 72 when he said:
"The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification."
42 That is a proposition which can be applied to this case. The published policy narrowed the power of executive detention by requiring that it be reviewed regularly. This was necessary to meet the objection that, unless it was implemented in accordance with a published policy, the power of executive detention was being applied in a manner that was arbitrary. So it was an abuse of the power for the detainee to be detained without his detention being reviewed at regular intervals. Applying the test proposed by Lord Dyson JSC in Lumba, it was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out:  2 WLR 671, para 68 ..."
"69. ... While accepting that not every failure to comply with a published policy will render the detention unlawful, I remain of the view that
"the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result—which is not the same as saying that the result would have been different had there been no breach": see Lumba, para 207. ..."
"72. It is not statute, but the common law, indeed the rule of law itself, which imposes upon the Secretary of State the duty to comply with his own stated policy, unless he has a good reason to depart from it in the particular case at the particular time."
Court of Appeal  EWCA Civ 1140, at ):
"51 Paragraph 55.10 provides that those mentally ill are normally considered suitable for detention in only "very exceptional circumstances". To my mind the existence of very exceptional circumstances demands both a quantitative and qualitative judgment. Were this provision to stand in isolation in the policy the power to detain the mentally ill could only be used infrequently, and the circumstances would have to have a quality about them which distinguished them from the circumstances where the power is frequently used. Otherwise effect would not be given to the requirement that the circumstances not simply be exceptional but very exceptional.
52 There are two points to be made. The first is that in my view mental health issues only fall to be considered under Chapter 55 where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. Thus consideration must be given to the nature and severity of any mental
health problem and to the impact of continuing detention on it.
53 Secondly, the provision that the mentally ill be detained in only very exceptional circumstances does not stand in isolation. The opening part of paragraph 55.10 provides that for Criminal Casework Directorate cases "the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention". Paragraph 55.13 indicates, as would be expected that that demands a consideration of the likelihood of the person re-offending and the seriousness of the harm if re-offending occurred. With an offence like robbery, the paragraph specifically requires substantial weight to be given to the risk of further offending and harm.
54 Absconding as a consideration is introduced by paragraph 55.3A for CCD cases. That provides that in assessing what is a reasonable period of detention necessary for removal in the individual case, case-workers must address all relevant factors, including the risks of re-offending and absconding. That paragraph specifically mentions mental illness when considering more serious offences such as robbery. The relevant passage has been quoted earlier in the judgment: case-workers must balance the risk to the public from re-offending and absconding if the detainee is mentally ill.
55. The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in "very exceptional circumstances" along it – the average asylum seeker with a presumption of release – and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases, are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified."
severity of any mental health problem and to the impact of continuing detention on it.
This issue must be considered in the light of objective, expert medical evidence. If
this consideration does not occur, then the decision maker cannot properly determine
whether there are circumstances which outweigh the impact of detention. Secondly,
other factors must also be considered, such as the risk of further offending or harm to the public, and carefully weighed against the reason why the individual may be unsuitable for detention. It by no means follows that the mental illness of a potential detainee will prevent detention. There may, for example, be cases which are not significantly affected by the illness or which are susceptible to treatment in detention. There may also be cases of such significant risk to the public which outweigh even significant problems which would be caused by detention.
"53. But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake.
54. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he or she will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference..."
"It is likely that if he is returned to prison, he will regress to the position which gave rise to his initial referral to Woodlands House: given his personality profile, in a situation of uncertainty or where there is little access to supportive relationships, he is likely to resort to dysfunctional behaviour to cope with distressing emotions, for example self harm or suicidal behaviour. He may feel vulnerable and threatened, his fear of rejection making it difficult to build relationships."
Articles 3 and 8
(1) Relevant legal principles
"Article 3—Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 8—Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"52. As regards the types of "treatment" which fall within the scope of Article 3 of the Convention, the Court's case law refers to "illtreatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."
"65 The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity."
"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 sex, age and state of health of the victim" (Kalashnikov at )
"46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.
47. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."
"92. ... the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
93. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment.
94. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measures do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and wellbeing are adequately secured by, among other things, providing him with the requisite medical assistance."
"... that the very nature of the applicant's psychological condition made him more vulnerable than the average detainee and that his detention may have exacerbated to a certain extent his feelings of distress, anguish and fear."
"101. The Court accepts that in the present case there is no indication that there was a positive intention of humiliating or debasing the applicant. However, 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 exclude a finding of violation of Art.3 ...
102. ... the Court finds the applicant's conditions of detention, in particular the severely overcrowded and insanitary environment and its detrimental effect on the applicant's health and well-being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment." (Kalashnikov at , )
"110 It is relevant in the context of the present application to recall also that the authorities are under an obligation to protect the health of persons deprived of liberty. The lack of appropriate medical treatment may amount to treatment contrary to Article 3. In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standard of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment.
111 The Court recalls that Mark Keenan was suffering from a chronic mental disorder, which involved psychotic episodes and feelings of paranoia. He was also diagnosed as suffering from a personality disorder. ... That he was suffering anguish and distress during this period and up until his death cannot be disputed. ... However, as the Commission stated in its majority opinion, it is not possible to distinguish with any certainty to what extent his symptoms during this time, or indeed his death, resulted from the conditions of his detention imposed by the authorities.
112 The Court considers however that this difficulty is not determinative of the issue as to whether the authorities fulfilled their obligation under Article 3 to protect Mark Keenan from treatment or punishment contrary to this provision. While it is true that the severity of suffering, physical or mental, attributable to a particular measure has been a significant consideration in many of the cases decided by the Court under Article 3, there are circumstances where proof of the actual effect on the person may not be a major factor. For example, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3. Similarly, treatment of a mentally-ill person may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity, even though that person may not be capable of pointing to any specific ill-effects."
"50 I am accordingly satisfied that, as a public authority, the trust was under a general obligation, by virtue of article 2, to take precautions to prevent suicides among detained patients in Runwell Hospital. So the trust had, for example, to employ competent staff and take steps to see that they were properly trained to high professional standards. The hospital's systems of work—and, doubtless, also its plant and equipment—had to take account of the risk that detained patients might try to commit suicide. When deciding on the most appropriate treatment and therapeutic environment for detained patients, medical staff would have to take proper account of the risk of suicide. But the risk would not be the same for all patients. Those who presented a comparatively low risk could be treated in a more open environment, without the need for a high degree of supervision. Those who presented a greater risk would need to be supervised to an appropriate extent, while those presenting the highest risk would have to be supervised in a locked ward. The level of risk for any particular patient could be expected to vary with fluctuations in his or her medical condition. In deciding what precautions were appropriate for any given patient at any given moment, the doctors would take account of both the potentially adverse effect of too much supervision on the patient's condition and the possible positive benefits to be expected from a more open environment. Such decisions involve clinical judgment. Different doctors may have different views."
"I would phrase the question which the court should ask itself in the same language as the question asked by the Strasbourg court in Keenan's case 33 EHRR 913, para 92.. In so far as there is any difference between them, it is clear that in the most closely analogous case of Keenan's case and also in the two conscript suicide cases the Strasbourg court addressed its mind to the "all they could reasonably be expected to do" test."
"... it would in our view only be appropriate to consider granting bail if we were satisfied that a result of not granted it would be an overwhelming likelihood that the detainee's mental or physical condition would deteriorate to such an extent as to render his continued detention a breach of Article 3, because inhuman, or Article 8, because disproportionate. The imminence and predictability of any such breaches are obvious relevant factors."
(2) Application of the principles to the case
i) The clear evidence of S's history of mental illness which UKBA had been aware of since early 2009 and which was put beyond doubt by the making of a hospital order by the Crown Court in November 2009. As I have set out above, the UKBA was aware of the criminal process and has offered no explanation of this when considering detention in April 2010. Indeed, it was specifically acknowledged to Reading Crown Court on 15 February 2010 that deportation proceedings were on hold pending the outcome of the criminal proceedings (which were dependent on the hospital order) and on 8 April when it was said that the UKBA had decided "to take no further action until the outcome of [S]'s treatment and his sentence, whereupon the situation will be reviewed".
ii) S's condition was the subject of two experts' reports, the contents of which have not at any stage been disputed by the Defendant and which, in my judgment, were known to the UKBA by 11 May at the latest - at least in the case of one report. In all probability, those reports were disclosed to UKBA when S was transferred into immigration detention given that they appear to have been provided to Thames Valley police at the time. The police custody record shows that the police had available to them at least one of the expert reports since the record refers to the substance of one of them.
iii) The initial decision to detain on 23 April which noted the need to review and take advice from the outset, and specifically to investigate the suitability of S to be detained. Despite this statement of intention, officers of the UKBA failed to follow it up or to take any steps to acknowledge that need and evidence was not presented to the Court that they sought to do so. Officials' apparent complacency and lack of action is a matter for significant criticism especially given the developing circumstances of S's condition which deteriorated rapidly shortly after detention began. As with so many critical aspects of the handling of S's case, the Defendant has failed to provide any explanation to the Court for this lack of action which continued for several months. It was not enough simply to place S on ACDT given that the expert view was that detention itself was harmful to his mental state and it did not advance UKBA's understanding of his condition. It remains unexplained why S's state of mind and his condition, which led Dr Ahmed to conclude that S was unfit to be detained, at no stage seems to have spurred UKBA to address the issue.
iv) The fact that S began to hallucinate and self-harm so soon after he was detained, requiring frequent placement on ACDT, which was a situation which had been forewarned by Dr Schmidt and Dr Hardy. I have set out in detail the history of S's circumstances above and it seems clear that anyone who had informed themselves of S's circumstances and history would have understood that detention would at least create a risk of deterioration in his condition. There should have been no doubt in the mind of any responsible public official that S was an individual whose condition should be reviewed as a matter of urgency in order to determine whether continued detention was likely to exacerbate S's mental problems and whether his condition could in any real sense be treated in detention or whether he could only be treated out of detention.
v) Dr Ahmed's written observations made on 10 June 2010 and followed up on 24 June. It was clear to her, and she was the psychiatrist who made routine fortnightly visits to Harmondsworth, that detention was harmful to S and that he could not be provided with the treatment he needed whilst in detention. If this was clear to Dr Ahmed on 10 June then this underlines the evidence then available to the authorities detaining S that he was undergoing serious mental and physical suffering as a result of his continuing detention. Whilst Dr Ahmed's views may not have been communicated immediately to those responsible for decision-making with respect to S's detention (also unexplained and of itself a cause for concern) this does not provide an excuse for the failure of the UKBA to follow up at the outset of detention its own requirement to review and follow up S's condition or its failure to acknowledge, understand and take action based on the existing expert report. Dr Ahmed's views were entirely consistent with earlier advice and experience.
vi) The continuing failure by UKBA to grapple with the difficulties which detention caused S from April until July, added to which the inability to ensure that Dr Shirolkar was enabled to visit and assess S on several occasions which delayed the admission of S to hospital. Even Dr Ahmed's report of 24 June failed to lead UKBA to bring the matter to a resolution until another 5-6 weeks had passed and the order of this Court had been obtained on 28 July.