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||Neutral Citation Number:  EWHC 2267 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||27 July 2017
B e f o r e :
MR JUSTICE HOLMAN
||THE QUEEN ON THE APPLICATION OF MUASA
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
||(Removal from association in IRC)
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Mr H Southey QC and Ms E Mitchell (instructed by Duncan Lewis) appeared on behalf of the Claimant
Miss J Anderson (instructed by the Government Legal Department) appeared on behalf of the Defendant
HTML VERSION OF JUDGMENT
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MR JUSTICE HOLMAN:
- This claim for judicial review relates to the removal from association ("RFA"), or segregation, of an overstayer who was lawfully detained at an immigration removal centre ("IRC") pending her intended removal from the UK. It is said to be the first time that RFA within the context of immigration detention, rather than of imprisonment, has fallen for consideration by the court.
- The claimant was removed from association for between 27½ and 28 hours between about 12.30 on 1 August 2016 and about 16.10 on 2 August 2016, when she was returned to normal accommodation and association within the IRC. She has not yet been removed from the UK and was later released from detention altogether.
- The essential issue in this case is whether that period of RFA, or any part of it, was unlawful or otherwise affected by illegality.
- I have been indebted to Mr Hugh Southey QC, who appears on behalf of the claimant, very well supported of course by Ms Eleanor Mitchell, and to Miss Julie Anderson, who appears on behalf of the Secretary of State for the Home Department ("SSHD"), for their cogent and lucid arguments.
The essential facts
- The claimant is now aged 39 and at the material time was aged 38. She is a Kenyan national who first arrived in the UK as a student in 1998 at the age of 20. She had continuous leave to remain until October 2003, after which a further extension was refused and she became an overstayer. Further applications by her were also refused.
- In April 2016 the claimant was detained at Yarl's Wood IRC in Bedfordshire with a view to her removal, and on 5 May 2016 the SSHD made the first attempt to remove her.
- There is a factual dispute as to the full circumstances that day which I am unable to resolve. It is clear that the complainant was not compliant. She was unclothed, which she says was because she had been having a shower, and her body was covered in coconut oil or butter such that it was difficult to handle her. The claimant says that excessive force was used upon her, although the officer investigating her subsequent complaint concluded in her letter of 1 September 2016 (now at bundle pages D32 to 34) that the staff involved "acted in a professional manner and the force used ... was not excessive". The removal did not proceed that day but the claimant was placed in RFA overnight. That period of RFA is not the subject of the present claim.
- Further removal directions were set for 19 May 2016, when the SSHD again attempted to remove the claimant. On this occasion there was no resort to RFA at any stage and the claimant appears to have been physically compliant. However, while in transit to the airport, after having been in the UK since 1998 (with some short breaks), the claimant first claimed asylum. This had the effect that the attempted removal that day had to be abandoned while the asylum claim was considered. The asylum claim was refused on 30 June 2016 and certified under section 96 of the Nationality, Immigration and Asylum Act 2002.
- The SSHD planned again to remove the claimant on 3 August 2016. It was in anticipation of that removal, and in planned preparation for it, that the claimant was removed from association again on 1 August 2016, as I will shortly more fully describe.
- Whilst the claimant was still removed from association, her solicitors issued proceedings for judicial review of the certification of the asylum claim. The issue of those proceedings had the effect that once again the SSHD could not remove the claimant from the UK. She was released from RFA and the removal from the UK was abandoned.
- Permission to apply for judicial review in those proceedings was later refused by the Upper Tribunal, who certified the claim as totally without merit. That certification as totally without merit is now the subject of an application to the Court of Appeal for permission to appeal from that certification. The application is still outstanding, which has had the effect that the SSHD could not continue lawfully to detain the claimant and she has been released.
- I return to the events of 1 and 2 August 2016, which I describe by reference to the "Maintenance of Security and Safety Notice Form DCF1: Removal from Association" which is now at bundle page E39 and its reverse page at bundle page D108. In the main body of the front of the form there is a heading, "Reasons for Removal from Association (RFA)", immediately underneath which are the printed words "(to be completed by person authorising RFA)". In the box beneath that heading are typed the following:
"Report completed by Orderly Officer M Robinson.
The above named resident will be relocated to Kingfisher under DC rule 40 in preparation for her imminent removal directions. This is due to previous non-compliance with removal directions, including her removing her clothing and covering herself in oil on 5 May 2016.
Due to this previous incident taking place on the residential unit and causing a risk of disruption to the safety and security of the establishment, it has been deemed appropriate to relocate [the claimant] in advance of her red letter window removal directions. This is with the aim of a more controlled removal to minimise risk of disruption to the good order and security of the centre."
That part of the form appears to have been typed and completed before 09.00 hours on 1 August 2016.
- The next box on the form records the actual date and time of removal from association as 12.30 on 1/8/16 and appears to have been signed by M Robinson, presumably at or about that time.
- The next box is headed "Authority for initial 24 hours RFA". Within the box the "person authorising RFA" is stated to be F Quaynor, followed by a signature which is not easy to read but which I assume to be that of F Quaynor. The date and time the RFA was authorised are respectively completed as 01/08/2016 at 11.30. It has subsequently been confirmed by the Secretary of State that F Quaynor is Ms Fiona Quaynor, who was the "Home Office Immigration Enforcement Manager at Yarl's Wood" and the appointed "contract monitor" at Yarl's Wood within the meaning of, and for the purposes of, section 49(4)-(7) of the Immigration and Asylum Act 1999 ("the 1999 Act").
- The claimant was then moved to the RFA unit and placed in what she describes as a small room which "looked like a cell" and, she says, was very cold. The claimant continues at paragraph 34 of her statement (now at bundle page E55) that:
"The window in the room was opaque and therefore little light got through it. The cell door had a small viewing window at eye level for the detention staff to be able to open to check up on me. The door was kept locked at night."
- RFA cannot be continued or extended for more than the first 24 hours without further authorisation. The reverse of the form DCF1 (now at bundle page D108) contains the heading "Reasons for continued RFA (greater than 24 hours/not to exceed 14 days) (to be completed by person authorising)".
- There then appears the follow in unidentified and unattributed handwriting:
"Paperwork extended for a further 24 hrs in the build up to [the claimant's] removal directions on 3rd August 2016. This is to ensure the good order and security of the establishment due to previous non-compliance and disruption regarding removal directions."
- Beneath those words is a further box which is headed "Authority for RFA beyond 24 hours (authority of Secretary of State)". Beneath that are boxes as on the front of the form for the name and signature of the person authorising continued RFA, and the date and time of the authorisation. These boxes are still blank and unsigned.
- The first 24-hour period elapsed at or about 12.30 on 2 August. As I have said, the claimant was returned from RFA at about 16.10 that afternoon. She now claims that that whole period of RFA was unlawful.
The Detention Centre Rules 2001
- The Detention Centre Rules 2001  No. 238 ("the DCR") came into force on 2 April 2001. Part III of the rules is headed "Maintenance of security and safety". Rule 39 is headed "General security and safety", and rule 39(1) provides that:
"39(1) Security shall be maintained, but with no more restriction than is required for safe custody and well ordered community life."
- Rule 40 is headed, and deals with, "Removal from association". The scope and provisions of the whole rule are relevant and provide as follows:
"40(1) Where it appears necessary in the interests of security or safety that a detained person should not associate with other detained persons, either generally or for particular purposes, the Secretary of State (in the case of a contracted-out detention centre) or the manager (in the case of a directly managed detention centre) may arrange for the detained person's removal from association accordingly.
(2) In cases of urgency, the manager of a contracted-out detention centre may assume the responsibility of the Secretary of State under paragraph (1) but shall notify the Secretary of State as soon as possible after making the necessary arrangements.
(3) A detained person shall not be removed under this rule for a period of more than 24 hours without the authority of the Secretary of State.
(4) An authority under paragraph (3) shall be for a period not exceeding 14 days.
(5) Notice of removal from association under this rule shall be given without delay to a member of the visiting committee, the medical practitioner and the manager of religious affairs.
(6) Where a detained person has been removed from association he shall be given written reasons for such removal within 2 hours of that removal.
(7) The manager may arrange at his discretion for such a detained person as aforesaid to resume association with other detained persons, and shall do so if in any case the medical practitioner so advises on medical grounds.
(8) Particulars of every case of removal from association shall be recorded by the manager in a manner to be directed by the Secretary of State.
(9) The manager, the medical practitioner and (at a contracted-out detention centre) an officer of the Secretary of State shall visit all detained persons who have been removed from association at least once each day for so long as they remain so removed."
- The "manager" is defined in rule 2 of the DCR as "'manager' means, in relation to any detention centre, the person appointed under section 148(1) of the Immigration and Asylum Act 1999".
- Section 148(1) of that Act provides that a manager must be appointed for every removal centre.
- Section 148(5) of that Act provides that:
"The manager of a contracted-out ... centre may not, except in cases of urgency, order -
(a) the removal of a detained person from association with other detained persons; ... "
- DCR rule 40(1) makes quite clear that in the case of IRCs the relevant, and only, test before a detained person may be removed from association is one of necessity, and the necessity must be "in the interests of security or safety". Further, it has to be necessary in one of those interests that the detainee "should not associate with other detained persons".
- If that does appear necessary in one of those interests, then the rule, which employs the word "may", confers a discretion. The remainder of the rule clearly contains a number of safeguards. Those include the provisions in paragraphs (1), (2) and (3) with regard to authorisations and whose authority is required; the limitation in paragraph (4) upon any authority exceeding 24 hours to a period not exceeding 14 days; the giving of notice to the persons specified in paragraph(5); the giving of written notice of reasons for the removal to the detained person within 2 hours (paragraph (6)); the discretion for a resumption of association in paragraph (7), and its imperative if the medical practitioner so advises; and the requirement of daily visits by the manager, the medical practitioner, and at a contracted-out detention centre an officer of the Secretary of State, in paragraph (9).
Removal from association
- It is clear from section 148(5)(a) of the 1999 Act and from the requirements of DCR rule 40 generally that removal from association of a detained person is a serious matter. In the case of immigration detention, the threshold test is one of necessity and no lesser test will suffice. This is because, as I recognise and wish to stress, human beings are sociable creatures and any removal from association necessarily impacts upon personal autonomy and may be deleterious, and in some cases very deleterious, to psychological well-being. Indeed, the purpose of detention centres is identified in DCR rule 3(1) as being:
"to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment ... " (emphasis added)
- I stress that I do not underestimate at all the gravity of the broad subject matter, namely removal from association, of this case.
The grounds and heads of challenge
- Some of the grounds are general challenges to the lawfulness of the system or process in relation to RFA, and others are case specific to the facts and circumstances of the actual removal from association of the claimant. I list them in a different order from how they appear in the pleaded grounds and from that in which they were argued.
- First (under pleaded ground 3), Mr Hugh Southey QC and Ms Eleanor Mitchell, who appear on behalf of the claimant, say that there were deficiencies in the required authorisations in this case such that both the initial RFA and its extension beyond 24 hours were unlawful.
- Second (under pleaded ground 2), Mr Southey and Ms Mitchell say that there was in this case, and is systemically and generally, a failure to provide to the person removed from association the opportunity which the common law requires to make representations.
- Third (under pleaded ground 1), Mr Southey and Ms Mitchell say that there was in 2016 an unlawful failure by the SSHD to develop and publish a policy in this field such that if an appropriate and lawful policy had been published the claimant would not, or might not, have been removed from association.
- The claimant has already been given permission to apply for judicial review on the above grounds. Additionally, Mr Southey and Ms Mitchell renew their application for permission to apply for judicial review on pleaded grounds 4 and 5 upon which permission was refused, essentially on the basis that they add nothing to grounds 1 to 3.
- Ground 4 is a claim that the actual decision to remove from association in this case, even if otherwise lawfully made, was irrational and hence unlawful.
- Ground 5 is a claim that because the decision to remove the claimant from association was unlawful under one or more of the above grounds and/or lacked proportionality, it constituted an unlawful interference with the rights of the claimant under Article 8 of the European Convention on Human Rights.
Ground 3: Authorisation
(1) Authorisation of the initial RFA on 1 August
- The front page of the form DCF1 (now at bundle page E39) clearly records that the "authority for initial 24 hours RFA" was given by Ms Fiona Quaynor, who (as I have assumed) was the person who signed the relevant box. I therefore unhesitatingly accept that her authority was given for the removal from association. The questions are, first, whether Ms Quaynor was qualified to give that authority within the requirements of DCR rule 40; and, if so, whether her own decision to give that authority was itself reasoned.
- Yarl's Wood is a contracted-out centre. Indeed, Miss Julie Anderson, who appears on behalf of the Secretary of State, says that currently every IRC is a contracted-out centre, being either contracted out to a private provider such as Serco in the case of Yarl's Wood, or contracted out by the Secretary of State for the Home Department to the Secretary of State for Justice under a service provision agreement.
- DCR rule 40(1) has the effect that in the case of a directly managed centre (of which in fact there are currently none) the manager may arrange for the initial RFA for the first 24 hours. But in the case of a contracted-out centre (viz Yarl's Wood and currently all other centres) even the initial "arrangement" must be by the Secretary of State. There is a limited exception under rule 40(2) "in case of urgency", in which case the manager of even a contracted-out centre "may assume the responsibility of the Secretary of State". But it is clear from rule 40(3) that arrangements made by the manager even in cases of urgency under rule 40(2) cannot extend beyond 24 hours without the authority of the Secretary of State as rule 40(3) requires.
- Those rules, read in combination, and read with section 148(5) of the 1998 Act, have the effect that even in cases of urgency no-one within the staff of a centre who is not the manager of the centre may arrange for RFA, and it is only in cases of urgency and for a maximum of 24 hours that even the manager of a contracted-out centre may do so.
- I agree with Mr Southey that those provisions reflect and emphasise the gravity of a decision to remove from association at all, and indicate a requirement that decisions with regard to RFA must be taken by persons of appropriate seniority and independence.
- The overarching requirement of rules 40(1) to (3) is that, save to the extent permitted to managers under paragraphs (1) and (2), any RFA must be arranged and/or authorised by the Secretary of State.
- Mr Southey accepts that on well-established public law principles the rules do not require authorisation by the Secretary of State personally or even by a minister, and the power may be exercised by an official, as most recently explained by the Supreme Court in R(Bourgass v Secretary of State for Justice  UKSC 54;  AC 384 at paragraphs 48-52 under the heading "The Carltona Principle". But Mr Southey submits that that official (1) must be independent of the management of the centre and not employed by the centre or the managing company; and (2) must be physically located outside the centre; and (3) must be of higher seniority than a manager. I accept submission (1). I cannot accept as some absolute requirement submissions (2) or (3).
- Mr Southey submits, and I agree, that if it is only the manager himself of a centre who may in limited circumstances, and only for the first 24 hours, arrange for RFA, any official exercising the power of the Secretary of State must necessarily be separate from, and independent of, the management of the centre.
- Mr Southey further relies in particular upon observations of the Supreme Court in Bourgass. That case concerned segregation or RFA within prisons under the Prison Rules 1999 of convicted prisoners serving sentences of imprisonment. There are very significant differences between Bourgass and the present case. In the first place, there is a fundamental difference between detention in prison as punishment of a convicted person, and detention of an immigrant in an IRC pending removal. I have already quoted DCR rule 3(1) which describes the purpose of an immigration removal, or detention centre.
- In the second place, the test in the relevant Prison Rules, rule 45, is in strikingly different terms from that in DCR rule 40. Instead of requiring a test of necessity in the interests of security or safety, Prison Rule 45 applies "where it appears desirable, for the maintenance of good order or discipline or in his own interests ... " "Desirable" is a less stringent, and arguably a less hard-edged and more subjective, test than "necessary".
- For these reasons, Miss Anderson submits on behalf of the SSHD (who was not a party to the Bourgass litigation) that Bourgass is of no application at all to the present case.
- In my view, however, there is sufficient overlap between the context of the two cases, namely the RFA or segregation of persons who are, under either regime, detained; and between the broad structure of both Prison Rules rule 45 and DCR rule 40, which each distinguish between the powers of the governor or manager and the power of the Secretary of State, that what the Supreme Court said in paragraphs 80 and 88 of Bourgass is relevant.
- At paragraph 80 of Bourgass, Lord Reed said:
"80. The apparent rationale of rule 45(2) is clear. The governor can order segregation at his own hand for a maximum of 72 hours, but any longer period requires the authorisation of the Secretary of State – in practice, senior officials from outside the prison – in order to protect the prisoner against the risk of segregation for an unduly protracted period."
- At paragraph 88, Lord Reed said:
"88 ... It can in my opinion be inferred that rule 45(2) is intended to provide a safeguard for the prisoner: a safeguard which can only be meaningful if the function created by rule 45(2) is performed by an official from outside the prison. It makes sense that the governor should be able to act at his own hand initially, since decisions to remove a prisoner from association with other prisoners may need to be taken urgently. It also makes sense that the governor should be able, under rule 45(3), to arrange for the prisoner's resumption of association with other prisoners at any time, and, in particular, in response to any medical recommendation. Rule 45(2) however ensures that segregation does not continue for a prolonged period without the matter being considered not only by the governor but also by officials independent of the management of the prison. If, as counsel submitted, rule 45(2) was not intended to provide a safeguard, then the requirement to obtain the authority of the Secretary of State, before segregation can lawfully continue for more than 72 hours, would lack any rationale."
- I accept the submission of Miss Anderson, that where in paragraph 80 Lord Reed said " - in practice, senior officials from outside the prison - " he was not there laying down that the authorisation must be given by a "senior official", still less elaborating what he meant by "senior". At that point, he was merely recognising that in practice the authorisation is not given by the Secretary of State personally but by an official who is, in practice, a senior one. The conclusion of the Supreme Court on this issue is not expressed in paragraph 80 but in paragraph 88. Here, the word "senior" does not in fact feature. In the first sentence, Lord Reed does refer again to an official "from outside the prison". Further on in the paragraph he refers to "officials independent of the management of the prison".
- Mr Southey submits that the effect of Bourgass is to require that the official who gives the authorisation is physically located "outside the prison".
- In my view, that is too literal a reading of what Lord Reed said in paragraph 88 as a whole. The essence of the requirement is that the official must be "independent of the management of the prison" or, in this case, the detention centre. It may be that in the case of prisons there are no such officials physically located within a prison, but in the case of IRCs there are, namely the statutory contract monitor and his or her staff, which in the case of Yarl's Wood are about 10 in number.
- The statutory duty of the contract monitor is, under section 149(7) of the 1999 Act, to:
"(a) keep under review, and report to the Secretary of State on, the running of a removal centre for which he is appointed; and
(b) investigate, and report to the Secretary of State on, any allegations made against any person performing custodial functions at that centre."
- The words "any person" in paragraph (b) must include the manager himself. So one of the duties of the contract monitor is to investigate and report on any allegation which may be made against the manager. Discharge of that duty requires both systemic independence and actual independence of mind. Neither DCR rule 40 nor anything said in Bourgass is prescriptive as to the precise minimum level of seniority of an official who may exercise the powers of the Secretary of State under DCR rule 40.
- In my view, it is not open to me to hold that the contract monitor for a removal centre, who has the status conferred by, and who is exercising the statutory duties imposed by, section 149(4)-(7) of the 1999 Act, is not of sufficient seniority, nor sufficiently independent to exercise the power of the Secretary of State, whether he or she is physically located within the removal centre or not.
- I thus conclude that Ms Fiona Quaynor was a person who could lawfully give the authority of the Secretary of State on 1 August 2016 as she did.
- Whether other officials junior to, or having a different role or status from, a contract monitor are qualified to give the authority of the Secretary of State must be decided if and when it arises.
- The next and separate issue is whether the decision and authorisation of Ms Quaynor was itself reasoned, or whether, as Mr Southey suggests, she merely "rubber stamped" the separate reasons, not of herself but of the orderly officer, M Robinson.
- I accept that the official exercising the powers of the Secretary of State must give recorded reasons, both on general public law principles and because DCR rule 40(6) expressly requires "written reasons" for removal to be given to the detained person within 2 hours of the RFA. Patently, those must be the reasons of the actual decision maker.
- It is agreed that in the present case the signed form DCF1 (now at bundle page E39) was indeed given to the claimant within 2 hours of her removal from association. But Mr Southey submits that the requirement to give recorded reasons is not satisfied by the authorising official signing a form upon which someone else (viz in this case an orderly officer) has merely recorded his reasons.
- Further, the actual form used in this case is headed "Home Office" and is not specific to Yarl's Wood. So I assume it to be a Home Office prescribed form. Under the heading "Reasons for removal from association (RFA)" appear the words "(to be completed by the person authorising RFA)", which on the face of it contemplates that the actual authorising official, in this case Ms Quaynor, will insert her or her reasons in the space or box provided.
- Mr Southey and Ms Mitchell draw attention also to jurisprudence such as R(Wooder) v Feggetter & Anor  EWCA Civ 554;  QB 219 at paragraphs 27 to 29, to the effect that a requirement for the decision maker personally to give reasons tends to lead to a higher standard or quality of decision making. In that case, however, no recorded reasons for the decision in point had been given at all.
- Having accepted, as I do, that Ms Quaynor was of sufficient seniority and independence to give the authorisation in this case, I must, in the absence of any evidence to the contrary, assume that she did conscientiously discharge that duty and was not merely signing blindly or as a rubber stamp. The reasons as drafted by M Robinson appear on the same sheet of the form upon which she signed her signature and about 3 to 5 inches above it. In the absence of evidence to the contrary, I must assume, as I do, that Ms Quaynor did read those reasons before signing the form, and did, by signing it and without amending or adding to them, adopt them as her own. The very fact that M Robinson had already typed (or caused to be typed) reasons in the space or box provided meant that the obvious space in which Ms Quaynor could have recorded her own reasons had already been filled, although she could, no doubt, if she wished, have written them on an additional sheet of paper and attached it.
- In all the circumstances, I do not accept that there was any failure by Ms Quaynor to give reasons. But it follows that her reasons must be taken as being the reasons as recorded on the form, and not some additional or alternative reason which she may have had in mind but did not record.
- On this overall issue, I accordingly reject the claim by and on behalf of the claimant, and conclude that the initial RFA at 12.30 on 1 August 2016 was arranged and authorised by the Secretary of State as required by DCR rule 40, and that the reasons of the authorising official were sufficiently recorded and given to the claimant. I do not at this point address the lawfulness or rationality of those reasons.
(2) Authorisation of the continued RFA after 24 hours
- I can deal with this head of challenge more shortly. DCR rule 40(3) clearly provides that a detained person shall not be removed for a period of more than 24 hours without the authority of the Secretary of State. The authority given by Ms Quaynor on 1 August was clearly and specifically "authority for initial 24 hours RFA", as appears from the front of the form at page E39. The reverse of the form (now at bundle page D108) makes express provision for recording the reasons for continued RFA greater than 24 hours, and for the person giving the authorisation to sign it.
- I have already quoted above from that page as it now appears. It is not known who wrote the written reasons which there appear, but I assume (in the absence of any evidence that it is her handwriting) that Ms Quaynor herself did not write those words, for if she did do so it is very difficult to visualise any reason why she did not go on herself to sign and date and time the form in the box immediately below, since she had personally signed the front page only the day before.
- Miss Anderson invited me to presume, or assume, that some sufficiently qualified official, whether Ms Quaynor or someone else, did indeed authorise the continued RFA beyond 24 hours, albeit that no written authorisation can now be found or produced.
- I cannot make that presumption or assumption. If no written document could now be produced at all, I might (I stress, might) have felt entitled to presume or assume that one had been signed but was now mislaid. But the very document where one would have expected to see the signed authorisation has been produced, namely page E39, and the reverse at page D108, and it is unsigned. In this case, as in Shahid v Scottish Ministers  UKSC 58;  AC 429 at paragraph 69, neither party has sought to rely on any evidence on this point other than the documents before the court. I must therefore draw reasonable inferences from those documents. To my mind, the only conclusion I can reach on a balance of probability is that the relevant part of the form was prepared for the giving of authorisation (viz prepared by some unknown person writing in the reasons), but that the authorisation was never in fact given. I cannot speculate whether that was through oversight, or because Ms Quaynor (or whoever else may have been asked to give the authorisation) made a decision not to give it. Either way, the continued RFA after 12.30 on 2 August 2016 was not (on a balance of probability) authorised by the Secretary of State.
- Miss Anderson submits that even if I so conclude, the "error (if error it be)" is merely a "procedural" or "technical" error or omission which does not justify a finding or conclusion of unlawfulness in the substantive decision to continue the RFA after the initial 24 hours.
- I cannot accept that submission. To argue that the absence of the required authorisation is merely "procedural" or "technical" is indeed to treat the authorisation as merely a rubber stamp. It is not. The requirement of authorisation by the Secretary of State independent of the manager or management of the centre is clearly a fundamental safeguard under rule 40. In my view, its absence renders the continued RFA after 12.30 on 2 August 2016 unlawful, being in breach of DCR rule 40(3).
Ground 2: Absence of opportunity to make representations
- DCR rule 40(6) requires that the detained person is given written reasons for RFA within 2 hours; and rule 40(9) requires that each of the manager, the medical practitioner and (at a contracted-out centre) an officer of the Secretary of State must visit all detained persons who have been removed from association "at least once each day for so long as they remain so removed". Whilst such visits might be thought to afford some opportunity to make representations, the rule makes no express provision for the making of representations.
- Mr Southey and Ms Mitchell submit that there is a common law requirement for an appropriate and sufficient opportunity to make representations to be provided; and indeed one of their complaints about the lack of a policy or guidance document is that such a document might be expected to flag up and describe the right to make representations.
- Again Mr Southey relies in particular upon Bourgass, which itself draws upon the earlier well-known authority of the House of Lords in R v Secretary of State for the Home Department ex parte Doody  1 AC 531. I note from the first sentence of paragraph 91 of Bourgass that what the Supreme Court went on to say with regard to "procedural fairness" and "representations" was technically obiter but, of course, it is the highest of authority, to which I must, and do, pay the utmost respect and regard.
- The context of the discussion and observations in Bourgass is set by paragraph 93, where Lord Reed said that:
"It is common ground that initial segregation generally has to be decided upon in circumstances of urgency. It is not argued that such decisions, which cannot last [viz under the relevant Prison Rule] for more than 72 hours, must be preceded by any form of hearing."
- The situation in the case of immigration detention may be different. DCR rule 40(2) may be said to treat "cases of urgency" as an exception rather than the "general" or the norm. In the present case, the circumstances of the RFA were not "urgent" and the Secretary of State accepts that it was a preplanned, non-urgent case of RFA. With that caveat, Bourgass is in point, for rule 40(2) of the Prison Rules is precisely to the same effect as rules 40(3) and (4) of the DCR (one paragraph in the Prison Rules being split into two in the DCR), save that the period specified in the Prison Rules is 72 hours and that in the DCR is 24 hours. This difference may reflect the especial gravity of segregation in the case of immigration detention rather than that of imprisonment as punishment.
- At paragraph 98 of Bourgass, Lord Reed said:
"Whatever the position may have been in the past, the approach described in Doody and Osborn requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken by the Secretary of State under rule 45(2) [viz to continue RFA for more than 72 hours]. That follows from the seriousness of the consequences for the prisoner of a decision authorising his segregation for a further 14 days; the fact that authority is sought on the basis of information concerning him, and in particular concerning his conduct or the conduct of others towards him; the fact that he may be able to answer allegations made, or to provide relevant information; and, in those circumstances, from the common law's insistence that administrative power should be exercised in a manner which is fair."
- Mr Southey submits that paragraph 98 must apply equally to RFA in IRCs, substituting only the words "detained person" for the word "prisoner", and a reference to DCR rules 40(3) and (4) for the reference to rule 45(2). The Secretary of State in point is also, of course, the SSHD and not, as in Bourgass, the Secretary of State for Justice. Mr Southey does, however, limit his challenge under ground 2 to the point before a decision was taken to continue RFA beyond 24 hours, the reasoning of the Supreme Court in Bourgass on this point being firmly anchored in Prison Rule 45(2) and segregation beyond (in that case) 72 hours.
- On behalf of the SHHD, Miss Anderson submits that paragraph 98 of Bourgass cannot simply be transposed into the situation of immigration detention and that there are many material points of difference, which she identified in particular in paragraph 39 of her most helpful "Speaking Note" dated 23 July 2017 (a Sunday).
- I do not accept, but nor do I reject, those points made by Miss Anderson. Rather, I have concluded that ground 2 no longer arises for necessary adjudication by me in this case and that anything I may say would be obiter. The reason is that Mr Southey has limited ground 2 and his submissions with regard to representations to the continued segregation after 24 hours. I have already held that continued segregation to be unlawful for other reasons. Whilst the Supreme Court addressed procedural fairness and representations in Bourgass on a basis that was also, strictly speaking, obiter, I do not consider that I, at a much lower level and as a court of one, should do so. If the point remains to be necessarily considered in any other historic case, it can be so considered in that case.
- As to the future, the Home Office published last week on 18 July 2017 a new Detention Services Order 02/2017, to which I will refer below, and that Order clearly makes reference to "representations and complaints" at paragraphs 59 and 60. I neither express nor imply any view as to whether those paragraphs satisfy "the common law's insistence that administrative power should be exercised in a manner which is fair", to which paragraph 98 of Bourgass refers, and that, too, may fall to be considered in another case; but they certainly address it.
- Finally in relation to this ground, I observe that this particular claimant already had very experienced solicitors, namely Duncan Lewis, very actively engaged upon her case and advising her. She was permitted to communicate directly with them during 1 August 2016 after she had been segregated, and to fax to them the form DCF1 which had been given to her within 2 hours as DCR rule 40(6) requires. Duncan Lewis, in turn, sent to Yarl's Wood and the Home Office by fax and email a quite lengthy letter on 1 August 2016 itself (now at bundle pages E36 to 38). I do not know the precise time when that letter was sent by those methods, but since the letter required a reply by 5.00 pm that day, it must have been sent before 5.00 pm, and presumably sufficiently long before so as reasonably to permit some reply to be prepared by that time.
- Thus, on the facts of this case, the claimant did, through her solicitors, indeed make cogent representations to the IRC and the Home Office within probably at most 4 hours of her removal from association. The letter clearly challenges the RFA and makes a number of points with regard to the justification for it, and demands her immediate removal from "the isolation unit". The letter also gave notice that Duncan Lewis would in any event be lodging judicial review proceedings the following morning to challenge the certification under section 96 and the intended removal of the claimant from the UK. The Home Office did not, in fact, respond by 5.00 pm on 1 August or at all that day; but they did respond by a letter dated 2 August 2016 sent by fax at 10.26 that day. Once Duncan Lewis issued the claim for judicial review on 2 August, which they had foreshadowed in their letter on 1 August, the planned removal from the UK was abandoned and the claimant was removed from RFA.
- If it was necessary for me further to consider the challenge under ground 2, I would have had carefully to consider whether or not, on the facts and in the circumstances of this case, the common law requirements described in Bourgass had in any event been satisfied by the involvement, which was effective, of the solicitor on behalf of the claimant in the way I have briefly described. As it is, I do not rule upon ground 2 as it now unnecessary for me to do so.
Ground 1: The absence in 2016 of any published policy or guidance
- At the material time in August 2016 the SSHD had no published policy or guidance document in relation to RFA. There did exist a published "manual" on detention centre operating standards, of which extracts are now at bundle pages H6 to H8. The manual is said to "bring together all those service standards that have been introduced since 2002". The foreword to it (now at page H6) says that it is a public document "and this makes transparent the way we expect detainees to be treated and how our centres operate more generally". The manual covers many aspects of the regime and way of life in IRCs, such as "catering", "clothing", "interpreter/translation", "religion", "detainee's cash" and many other diverse matters. One page (now at bundle page H8) is devoted to "removal from association". The published "standard" is that:
"The use of removal from association must achieve the correct balance between the need to main safety and security and the need to show due regard for the dignity of the individual. Procedures must comply with the requirement of rule 40."
This, frankly, says very little other than to refer to rule 40.
- Under a heading on the same page of "Minimum Auditable Requirements", six such requirements are listed. Although all are important, only one impacts upon actual decision making whether to remove a detainee from association, namely paragraph 2:
"2. Where use of rule 40 is under consideration and the detainee may be at risk of self-harm or suicide rule 40 must only be used as a last resort and must be with the authority of the contract monitor (in contracted-out centres) or the centre manager (in directly managed centres)."
- This paragraph is, by its terms, limited to "risk of self-harm or suicide" and gives no guidance as to other cases where there is not perceived to be that risk. Confusingly, it indicates a test of "last resort" in risk of self-harm or suicide cases, but makes no reference to the test of necessity in all cases.
- There was formerly a published document DSO 2/2002, which "provided general guidance on the DCR 2001" and "set out principles to be followed relating to: the decision to remove from association ... ; authorisation of removal ... ; the recording of such decisions; visits; duration of removal; and return to association." (see the first statement of Alan William Gibson dated 18 May 2017 at paragraph 20, now at bundle page D158). However, as I understand it, that document was no longer in force at the material time and is not now in force.
- There was in force between 1 September 2012 and 25 October 2016 an email to Home Office staff in IRCs dated 28 August 2012. That email has been produced by Mr Gibson in these proceedings but was not a published document, and its stated purpose was to "mitigate the corporate risk associated with potential legal challenges to lengthy stays in rule 40 ... " Its focus is upon authorisations, and the email says little or nothing about initial decision making to remove from association.
- At the time material to this case, namely early August 2016, there was therefore negligible published policy or guidance by the Secretary of State in relation to rule 40 and RFA in IRCs. That is in contrast to the position in prisons, to which published Prison Service Order 1700 applies, which makes detailed provision as to segregation in prisons.
- Mr Southey and Ms Mitchell submit that this absence of any developed and published policy or guidance document in August 2016 was unlawful and that there required, and requires, to be something similar to PSO 1700 in relation to IRCs in order to safeguard against arbitrariness. They rely on the line of authority drawn from Lumba v Secretary of State for the Home Department  UKSC 12;  1 AC 245. That case related to the lawfulness of the immigration detention of convicted foreign nationals immediately following their release from their sentences of imprisonment. Lord Dyson said at paragraph 34 that:
"The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. ... the immigration detention powers need to be transparently identified through formulated policy statements."
At paragraph 38, Lord Dyson said:
"What must ... be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made."
In that case, however, there was an unpublished blanket policy of detention with "a near blanket ban on release" which was inconsistent with the published policy.
- Green J more recently summarised "the principles of transparency and good administration" at paragraph 141 of Justice for Health Limited v Secretary of State for Justice  EWHC 2338 (Admin), where he said:
"A law or policy should be sufficiently clear to enable those affected by it to regulate their conduct i.e. to avoid being misled. Such a law or policy should also be sufficiently clear so as to obviate the risk that a public authority can act in an arbitrary way which interferes with fundamental rights of an individual. Clear notice of a policy or decision is also required so that the individual knows the criteria that are being applied and is able to both make meaningful representations to the decision maker before the decision is taken and subsequently to challenge an adverse decision (for instance by showing that the reasons include irrelevant matters). Where the principle applies it might require the publication of the policy that a decision maker is exercising; it might require that the policy be spelled out in greater detail so that the limits of a discretion may be demarcated; it might require the decision-maker to be more specific as to when he/she will or will not act."
- In the present case, the essential complaint is not that there exists an unpublished or "secret" policy as in the Lumba case, but rather that there appears to have been no policy or guidance at all, whether published or unpublished.
- Mr Southey points out that although DCR rule 40(1) requires a test of necessity, the use of the words "may arrange" in the rule imports a discretion, and there was apparently at the material time no policy or guidance as to how that discretion might be exercised save for the reference to "last resort" in the manual in the case of a risk of self-harm or suicide.
- Miss Anderson submits that no such policy or guidance is required as the rule itself is clear. The test is one of necessity, and there would be a risk that any elaboration in a policy or guidance document would either be no more than a paraphrase of necessity; or, impermissibly, some qualification upon the test in the rule which might either water it down or further beef it up. In any event, she submits that any policy document as contended for would be liable impermissibly to fetter the discretion of the Secretary of State under the rule.
- In my view, there is in the circumstances of the present case a need sharply to distinguish between a "policy" document and "guidance" as to the requirements of, and procedures relating to, the rule. In my view, the absence of a policy document in this case was not, and is not, unlawful. This is not a case where there was an unpublished and "secret" policy in conflict with the published one as in Lumba. This is not a case where there was a published policy document but it was unclear or ambiguous. The rule itself is clear, and what is required is not a policy in elaboration of it, but some clear guidance as to its practical and procedural application. I do not consider that the absence of a policy document in August 2016 was unlawful and I dismiss the claim under ground 1.
- However, I do agree with Mr Southey that there is a need for guidance to decision makers and to detainees and their advisers as to some of the issues which may require to be considered in deciding whether the test in rule 40(1) is made out; clear guidance as to the level of decision making and the recording of reasons; and clear guidance as to opportunities to make representations. I stress that this is a non-exhaustive list.
- Last week, on 18 July 2017, the Home Office issued and published on its website a new Detention Services Order O2/2017 on RFA and temporary confinement in removal centres. I have not studied it in detail nor heard submissions upon its contents. Its adequacy and lawfulness may fall for consideration in a future case upon facts arising since its publication. It can no longer be said that there is an absence of guidance.
The grounds upon which permission was refused
- I now turn to the grounds upon which permission was refused. The refusing judge observed that:
"Grounds 4 and 5 do not raise arguable points liable to lead to a successful judicial review unless (one or more of) grounds 1 to 3 have already succeeded. Grounds 4 and 5 will therefore serve no purpose other than to lengthen and increase the cost of the argument."
Ground 4: The decision to remove the claimant from association was irrational in all the circumstances
- In support of his renewed application for permission to apply on this ground, Mr Southey points to the actual reasons as expressed and recorded on the face of the form DCF1; to the reasons why the claimant says she was unclothed and covered in oil on 5 May 2016; to the fact that the claimant created no disturbance or physical resistance during the attempted removal on 19 May 2016 (which failed due to her last minute claim for asylum whilst in transit after leaving the IRC); and to the absence of any evidence of any risk to security or safety while she was associating with other detainees at any time.
- There may be force in these points. Further, the express reasons on the form DCF1 say no more than that "it has been deemed appropriate" to remove her from association and do not expressly refer to, and may not imply, the requirement of necessity. The language used may indeed reflect more the test of "desirable" that appears in rule 45(1) of the Prison Rules than the test of "necessary" which appears in rule 40(1) of the DCR. The reasons focus solely on the events of 5 May 2016 and make no reference to the facts of 19 May. I accept, therefore, to put it no higher, that grounds for concern exist as to the rationality of the RFA decision on 1 August 2016 on a correct application of the test in DCR rule 40(1).
- However, I consider that I cannot, at the stage of the substantive hearing itself, grant permission on this ground. As permission had earlier been refused, I do not have sufficient case-specific evidence to enable me properly to do so. I do not have any evidence from Mr Robinson or from Ms Quaynor or from any other person at Yarl's Wood.
- In his second statement, dated 20 June 2017 (now at bundle pages D204 to 216), Alan William Gibson, who is a Deputy Director of the Home Office and Head of Detention Operations based in Croydon, writes in general terms at paragraphs 42 and 43 as follows:
"42. Dr Harris' statement asserts that segregation is used regularly in relation to detainees facing imminent removal. If the conditions of rule 40 and 42 are met there is no basis for objection to such use. Routine use merely for convenience to facilitate removals is not permitted by rules 40 and 42 themselves.
43. It is unsurprising that removal may be a context where the measures are required given that it is an acute point at which any desire to resist deportation or removal by a detainee may lead to behaviour that creates a risk to safety and security. Dr Harris does not suggest that detainees cannot or do not seek to resist removal using conduct that is potentially harmful of themselves or others. A careful assessment is needed to determine whether the anticipated response of a detainee may present a risk within the scope of rule 40 and 42. There can be no proper objection to use of rule 40 where, in the interests of safety and security and following an individual risk assessment, a detainee is considered to be at high risk of disruption or of showing an adverse reaction to unfavourable news, so rule 40 measures are justified in order to safely manage the detainee. As noted, this decision must be reviewed daily and the use of rule 40 must cease if the risk is mitigated so no longer relevant (e.g. the conduct ceases on cancellation of the removal directions or the detainee decides to engage positively with the removal process). ... "
- This, however, is generalities. I have no evidence as to any "individual risk assessment" which may have been undertaken in the present case, and beyond expressing the "grounds for concern" as I have above, I am not equipped to make a considered assessment and ruling upon the Wednesbury rationality of the actual decision in this case. For that reason, and on that basis, I refuse the renewed application for permission to apply for judicial review on ground 4.
Ground 5: Claimed breach of rights under ECHR Article 8
- The first question is whether Article 8 of the European Convention on Human Rights is engaged at all by the facts and circumstances of this case.
- Mr Southey and Ms Mitchell rely in particular upon the decision of the European Court of Human Rights in Munjaz v UK  1 MHLR 351 and the subsequent decision of Singh J in Dennehy v Secretary of State for Justice  EWHC 1219 (Admin).
- Munjaz concerned the "seclusion" of a detained mental patient. Dennehy concerned the segregation of a convicted prisoner who was serving five life sentences for murders and attempted murders with a whole life order. In each case, the duration of the periods of seclusion or segregation were far longer than the maximum of under 28 hours in point in the present case.
- In Munjaz, the conclusion of the European Court of Human Rights that Article 8 was engaged is at paragraphs 78 to 80, which read as follows:
"78. The notion of private life is a broad concept and covers, inter alia, the physical and psychological integrity of a person, the right to personal development and the right to establish and develop relationships with other human beings and the outside world. In addition, the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 ...
79. In assessing the proper scope of private life for those who are deprived of their liberty, the Court reiterates that, under the Convention system, the presumption is that detained persons 'continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention' ... Any restriction on those rights must be justified in each individual case ...
80. In applying those principles to the present case, the Court agrees that the compulsory seclusion of the applicant interfered with his physical and psychological integrity and even a minor such interference must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual's will ... Moreover, the importance of the notion of personal autonomy to Article 8 and the need for a practical and effective interpretation of private life demand that, when a person's personal autonomy is already restricted, greater scrutiny be given to measures which remove the little personal autonomy that is left."
- Pausing there, those paragraphs are concerned with whether Article 8 is engaged, not with the separate question of justification. The last sentence of paragraph 79: "Any restriction on those rights must be justified ... " (emphasis added) indicates that even a short or brief restriction does engage Article 8. In paragraph 80, the court makes that clear by stating that " ... even a minor such interference must be regarded as an interference with the right ... under Article 8 ... " (a point later emphasised by Singh J in Dennehy at paragraph 145).
- The case of Munjaz itself had previously been considered by the House of Lords in Munjaz v Mersey Care NHS Trust  2 AC 148. At paragraphs 132-150 of his judgment in Dennehy, Singh J very carefully considered and analysed the several separate judgments of the House of Lords in Munjaz in that House and their interface with the later judgment of the European Court of Human Rights in the same case. Singh J concluded at paragraph 144 that:
" ... the majority of the House of Lords in fact decided that, in principle, Article 8(1) is applicable to cases of seclusion of detained patients and therefore, by analogy, to segregation of prisoners."
The overall conclusion of Singh J at paragraph 151 was that:
"I therefore conclude that Article 8(1) is applicable to a case such as the present. It follows that the interference with the right to respect for private life has to be justified under Article 8(2). This includes the requirement that it must be in accordance with law."
- I respectfully agree with, and adopt Singh J's reasoning insofar as he was considering segregation of a convicted prisoner. He did so "by analogy" with the seclusion of a detained mental patient, and by reference (see paragraphs 149 and 150) to the "concession" to that effect which had been made and "endorsed" by the Supreme Court in Shahid.
- Miss Anderson submits that there can be no analogy between the seclusion of a detained mental patient or segregation of a convicted prisoner on the one hand, and the RFA of a person in immigration detention on the other hand. She points to many differences between the situation of a convicted prisoner in a prison and a detained immigrant in an IRC. She stresses in particular that an immigration detainee may only be detained in an IRC for a short period of time, perhaps only a few days, such that there will, or may, be no opportunity to forge significant relationships with other detainees, in contrast to prisoners who may, over a longer period of time, forge significant ones.
- Miss Anderson further makes the point that the very purpose of IRCs is to prepare for removal so that any detainee should appreciate from the outset that any relationships he or she may form may be of short duration.
- In my view, these points, although appropriately made, do not meet the thrust of paragraphs 78 to 80 of Munjaz. Seclusion in a mental hospital, and segregation in a prison, and RFA in an IRC all involve some interference with "physical and psychological integrity" and impact upon personal autonomy. The essence of the interference is the particular further restriction which seclusion/segregation/RFA places upon a person who is already compulsorily detained, and no line can be drawn for this purpose between the different cases of mental hospitals, prisons or IRCs. The total period of RFA in the present case, although far shorter than those in the Munjaz or Dennehy cases, was one of 27½ to 28 hours, including overnight. Whilst an even shorter period of segregation may not engage Article 8, I cannot treat the period in the present case as being so short that it does not engage Article 8 at all. It may have been "minor", but even a minor interference does engage the Article, as Munjaz makes clear. Further, as Mr Southey submitted, we now know that the total period of the segregation was 27½ to 28 hours; but while it was still continuing the segregated person did not know when it would end.
- The interference accordingly requires to be justified within the terms of Article 8(2). This provides as follows:
"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."
I have already held that the continuing segregation after 24 hours between 12.30 and 16.10 on 2 August 2016 was not in accordance with the law, being unlawful because of the absence of the required authority of the Secretary of State. It must follow that there was, during that period, an interference with the right protected by Article 8(1) which cannot be justified in the terms of Article 8(2) because it was unlawful.
- Whilst I agree with the refusing judge that ground 5 did not raise an arguable point unless one or more of grounds 1 to 3 had already succeeded, I cannot agree that ground 5 "will therefore serve no useful purpose". Given that there has been an established breach of a Convention right which cannot be justified, and (importantly) that the claimant is already before the court, she is entitled to the court's conclusion on the point.
- Further, a finding of breach opens the door to consideration of a possible award of damages under section 8 of the Human Rights Act 1998.
- I accordingly grant to the claimant permission to apply for judicial review under ground 5, but only in relation to the period beginning at 12.30 on 2 August 2016, after which, as I have concluded, there was established unlawfulness and an established breach of the right under Article 8(1) which cannot be justified under Article 8(2).
- In respect of the first 24-hour period between 12.30 on 1 August and 12.30 on 2 August, I am unable to make a considered assessment and ruling upon justification for similar reasons to those which I have given in relation to ground 4. For that reason, I refuse the renewed application for permission to apply for judicial review on ground 5 insofar as it relates to the first 24-hour period between 12.30 on 1 August and 12.30 on 2 August 2016.
- Although Mr Southey and Ms Mitchell ask me to award some damages, however small, in respect of any established breach of Article 8(1) which is not justified under Article 8(2), I decline to do so. Section 8(3) of the Human Rights Act 1998 provides that no award of damages is to be made unless "the award is necessary to afford just satisfaction to the person in whose favour it is made".
- In this case, an award of damages is not necessary for that purpose. The period of established unjustified interference was less than 4 hours. It was during the day. The declaration which I propose to make will afford just satisfaction.
- For these reasons, I will:
i. Formally allow the claimant to amend her grounds of claim to include the relief sought which was inadvertently omitted from the original grounds.
ii. Refuse the renewed application for permission to apply for judicial review on ground 4.
iii. Grant permission to apply for judicial review on ground 5, but only insofar as it relates to the period beginning at 12.30 on 2 August 2016. I refuse the renewed application for permission insofar as it relates to any period before 12.30 on 2 August 2016.
iv. Dismiss the claim under ground 1.
v. Make no order on the claim under ground 2.
vi. Dismiss the claim under ground 3 insofar as it relates to the RFA on 1 August 2016 and continuing up to 12.30 on 2 August 2016.
vii. Allow the claim under ground 3 insofar as it relates to the continued RFA from 12.30 on 2 August 2016.
viii. Declare that the continued removal of the claimant from association from, and after 12.30 on 2 August 2016 was (a) unlawful, and (b) in unjustified breach of the claimant's right to respect for her private life under Article 8(1) of the European Convention on Human Rights.
ix. Dismiss the claim for damages for the breach referred to in paragraph (viii)(b) above.
- I will hear oral, or consider written, submissions as to costs on a later date (which must now be next term) if they cannot be agreed.
[END OF JUDGMENT]
- Last week we agreed a form of words to the effect that this case would be listed again on a date in October when, if necessary, I will hear and rule upon costs, and upon any application anybody makes for permission to appeal, and resolve any residual issues with regard to the actual wording of the order, although I have just spelled it out very clearly, and when you get a transcript of this judgment some time in September, it will all be there at the end of the judgment. So at the moment I am planning only to make the short order that was drafted earlier this week to the effect that this is adjourned to that date in October. The ultimate order is what I have said, but the actual perfecting of it and sealing of it will wait until then.
- So I will ask my clerk just to print off the type-up of that short order. It will say then - and you can take this away, more copies are being printed - the case is listed before myself for 1 hour on Friday, 13 October at 10.30 am for consideration of any remaining issues as to costs and/or permission to appeal and/or the drafting of the order. That hearing shall be vacated if both parties have either agreed all remaining issues, or agreed that they may be the subject of written submissions only, and such written submissions, which must be succinct, have been exchanged and lodged by 4.00 pm on Wednesday, 11 October.
- Two, the time for either party to give notice of appeal to the Court of Appeal is extended to 3 November 2017 but may, on application to this court, be further extended before that date by this court in the event of legal aid or similar exigencies.
- So is there anything else that anybody else wishes to raise or say at the moment? No. Thank you.
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