Investigation into abuse at Brook House IRC risks failure to meet requirements of Article 3

19 June 2019 by Guest Contributor

MA, BB v Secretary of State for the Home Department (The Equality and Human Rights Commission intervening) [2019] EWHC 1523 — judgment not yet on Bailii but available here.

The High Court has held that an effective Article 3 investigation by the Prisons and Probation Ombudsman (“PPO”) into allegations of serious physical and mental abuse in an Immigration Removal Centre requires the PPO to have powers are to compel witness attendance, hold hearings in public and ensure that the claimants have properly-funded representation to enable them to review and comment on witness evidence and provide lines of enquiry.

Background: The Panorama exposé

MA and BA were detainees at Brook House Immigration Removal Centre (“the IRC”). Prior to their detention, both had served prison sentences. MA’s asylum claim had been refused and BA’s refugee status had been revoked following his sentencing. Both have mental illnesses.

The IRC is operated for the Home Office by the private company G4S, with healthcare services provided by NHS England and G4S Medical Services.

On 7 September 2017 the BBC’s Panorama programme aired a documentary Undercover: Britain’s Immigration Secrets. This showed footage recorded secretly by a Detention Custody Officer (DCO) at the IRC.

Mrs Justice May saw the footage and described the “appalling” assaults involving at various times a Detention Custody Manager (DCM), DCOs and a Nurse. These included bending back the fingers of MA and shouting racist and verbal abuse at detainees. On one occasion when MA tried to kill himself by tying a ligature and trying to swallow batteries, the DCM said “If he wants to suck batteries plug him up like a Duracell bunny” and a Nurse said “He’s an arse basically.” The footage also showed a culture of silence. A DCO said in the staff room “if I killed a man, I wouldn’t be bothered.”

The Judge recorded nine incidents she had seen on the footage, but both MA and BB say that this was not the full story. MA said there was a wholesale failure to comply with safeguards for mentally ill patients, his condition was not properly treated and he was repeatedly put into isolation. BB also alleges daily abuse by officers. Both alleged use of excessive force.

Some readers will be reminded of another important case against the Secretary of State involving the conduct of individuals employed by private contractors in immigration detention centres. In a negligence claim GB v the Home Office [2015] EWHC 819 (QB), in which Angus McCullough QC of 1 COR acted for the claimant, the High Court found that the Home Office had a non-delegable duty of care to GB and so was responsible for the actions of medical staff employed by Serco. In this case, MA and BB brought a public law challenge to the scope of the PPO’s powers, but MA has also issued a private law claim.

The challenge

A PPO Special Investigation was announced in September 2018. There had been a number of investigations following the documentary including a Home Affairs Select Committee inquiry which found that the Home Office had “utterly failed” in its responsibility to oversee and monitor the safe and humane detention of individuals in the United Kingdom.

ECHR Article 3 imposes a duty on the state to prevent individuals from being subjected to inhumane or degrading treatment. This includes a requirement to investigate when that duty has arguably been breached.

It was accepted that there was an obligation to investigate under Article 3 but the Defendant did not agree with the Claimants that an effective investigation required the PPO to have powers to hold public hearings, to compel witnesses, or for the Claimants to have funded representation.

The judgment

Mrs Justice May agreed with the Claimants. Summarising her findings:

1. The PPO must have the power to compel witness attendance.

It was considered that given the frequency, regularity of the abusive incidents, the number of perpetrators, questions must start with the perpetrators or witnesses [61 (1) and (2)]. However, there was “very good reason to believe that perpetrators and former G4S staff will not voluntarily attend to give evidence”, as previous investigations had found that staff didn’t whistle blow and were under a “malign and under influence.” [62 (3)]

Furthermore, detainees are a vulnerable group already in diminished conditions (even before any abuse) and they must have the opportunity to confront their abusers on equal terms “as a means of restoring dignity and respect.” [62 (4)]. Notably, even though there had been other investigations none of them had exposed the abuses to public view [63 and 64].

2. Article 3 investigations do not necessarily require a public hearing.

However, in this case there was a serious issue as to whether private hearings could secure sufficient accountability, and public denunciation might effect change. The Court considered that significant public scrutiny is required and so the PPO must have the power and funds to hold public hearings.

3. One of the purposes of the investigatory duty is to protect victims’ interests.

There were wider allegations than those in the documentary and detailed questioning from representatives would be required. Funding for the Claimants’ representation is required to enable the victims’ interests to be properly protected.

Where does this leave the investigation?

The Judge’s findings mean that the Claimants must be funded for representation to review and comment on witness evidence and direct lines of enquiry (the judgment seems to leave open whether the representatives will be able to directly question the witnesses).

However, the Judge has left the decision whether to compel witnesses or hold public hearings to the PPO. Although she doesn’t say whether she thinks those powers should be exercised, she does say that the PPO should get on with augmenting its powers so that it has those options available to it.  One of the reasons she gives is that the investigation could be converted into a full scale public inquiry.

Therefore, it might be argued that the reference to a public inquiry and the judgment as a whole gives the claimants some ammunition to argue that on the back of this judgment there should be public hearings and that witness attendance should be compelled.

Amelia Walker is a barrister at One Crown Office Row.