Convention should not be a basis for demanding unnecessary public inquiries – Court of Appeal

21 May 2012 by Rosalind English

MM and AO (a child), R(on the application of) v Secretary of state for the Home Department [2012] EWCA Civ 668 (18 May 2012) – read judgment

The Court of Appeal has confirmed that the Secretary of State acted lawfully in not ordering independent inquiry into a 2009 protest at an Immigration Detention Centre.

 This interesting case explores the scope of the investigative duty under Article 3  of the Convention and its limited nature when compared to the analogous duty under Article 2, where the victim is no longer around to take action for him or herself.  On the facts of this case, where there was no allegation of systemic failings, there was no obligation under Article 3 to arrange such an inquiry and the claim for psychiatric damage by the children who became separated from their parents during the protest was dismissed.

Background

The claimants, an adult and child respectively, had been detained amongst others at a removal centre. In 2009 there as a protest by some of the detainees after which the United Kingdom Borders Agency (UKBA) which ran the centre intervened, attempting amongst other things to remove the children from the fray by gathering them in a classroom. Afterwards, there was a dispute as to the degree of force used during the intervention and the distress caused to the children. An investigation by UKBA’s own Professional Standards Unit  concluded that the intervention had been necessary. However, it was claimants’ case that an independent investigation was required to comply with the procedural obligations under the prohibition of inhuman and degrading treatment under Article 3. When dealing with a mass protest involved careful planning and execution, the claimants submitted that it was particularly important that lessons be learned by the state from events as serious as these.

At first instance the judge concluded that the availability of civil proceedings, which the claimants had already commenced in relation to their detention, fulfilled that investigatory obligation and that there was no good reason to require the secretary of state to arrange a different independent investigation. Whilst the UKBA inquiry was not independent of government, it was thorough and systematic and involved the marshalling and retention of a considerable amount of evidence. The civil proceedings were also relevant as a means of investigation and learning lessons. The trial would be conducted by an independent judge and the range of issues raised was such that investigation of the planning and conduct of the intervention would inevitably be required.

In their appeal against this finding the claimants argued that while adults could decide for themselves whether to settle or proceed with the civil claims, the litigation friend of an infant claimant would be obliged to settle if a reasonable offer was made; therefore there would be no judicial determination on the relevant issues. They based their claim on Article 3 but relied by analogy on the high duty to investigate that arose under article 2 of the ECHR when a suicide had occurred as illustrated in R(Amin) v Secretary of State for the Home Office [2003] and in R (L (A Patient)) v Secretary of State for Justice [2009] AC 588. They contended that the need for thorough and independent investigation applied to children as much as to suicides and attempted suicides. In L , Lord Rodger of Earlsferry referred, at paragraph 65, to the position of a prisoner who is “incapable of looking after his own interests . . . he certainly cannot take proceedings by himself on the basis of any recollection he may have.” A child is in the same position, it was submitted.

The Court dismissed the appeal.

The Court’s reasoning

Central to the court’s consideration was the Strasbourg admissibility decision in Banks v United Kingdom, application no. 21387/05, a case concerning allegations by prisoners that they had been assaulted in prison by prison officers. The court rejected the applications alleging breach of the investigatory obligation imposed by article 3 as being manifestly ill-founded.

The Strasbourg court held that there is a “different emphasis” as between articles 2 and 3. In the context of article 2,

the obligation to conduct an effective investigation into allegations of the unlawful use of force attracts particular stringency in situations where the victim is deceased and the only persons with knowledge of the circumstances are officers of the state.

By contrast, in the context of article 3,

the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred.

The Strasbourg Court’s analysis was germane to this case, in particular its conclusion that the wider questions raised by the Banks application as to the background of the assaults and the remedial measures apt to prevent any recurrence in a prison in the future were “matters for public and political debate which fall outside the scope of Article 3 of the Convention”.

As for the present case, the Court of Appeal considered that an independent investigation would not routinely arise upon the occurrence of events such as these, even if children were involved. An application had to be considered on its merits, having regard to the nature, scale and consequences of the incident, the likelihood of recurrence, and the existence of other investigations conducted or available. The costs involved in a further investigation could also be considered as could any past or current investigation.

This outcome vindicates the words of Longmore LJ, a lone dissenting voice in a similar case in 2009 where the Court of Appeal granted a declaration that Article 3 required the institution of a public inquiry into the authority’s response to a prison riot.  It cannot be right, he said, that merely by adding an allegation that the conduct is systemic one can be entitled to a public inquiry.

There can hardly be a requirement for a public inquiry every time somebody plausibly alleges institutional violence or institutional racism on the part of the authorities. Unless the state’s recognised ways of investigating such allegations by the use of legal proceedings or the Ombudsman are appropriate, there will be a risk that there will be considerable public expenditure to little purpose. (R (AM) v Secretary of State [2009] UKHRR 973)

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