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The Upper Tribunal (Immigration and Asylum Chamber) has found that Priti Patel breached her procedural obligations under Article 2 of the ECHR in respect of deaths in immigration detention.
The application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in his cell at IRC Harmondsworth. Mr Okwurime had tried but failed to secure healthcare at the centre. He was not provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.
Priti Patel was subject to a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead, she elected to continue with her plans to remove a number of potential witnesses, including the Applicant, Mr Lawal, a close friend of Mr Okwurime.
Later, the Area Coroner for West London required Mr Lawal to attend the inquest on the basis that he was “an important witness of fact.” The jury later found that “multiple failures to adhere to healthcare policy” and “neglect” contributed to Mr Okwurime’s death from coronary heart disease.
The court found that Patel acted unlawfully in deciding to remove the Applicant in that she failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime. Aditionally, the absence of a policy directing caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody was unlawful. This was contrary to her Article 2 procedural obligations.
A Home Office spokesperson has said that, in light of the judgment, its processes were being refreshed and a checklist was being introduced to ensure all potential witnesses are identified.
The decision comes as Patel faces criticism for “serious mistakes” and “fundamental failures of leadership and planning” by the Home Office in managing former military sites as makeshift accommodation for asylum seekers. The Home Office is also being sued by a female asylum seeker who claims that staff at her asylum accommodation refused to call an ambulance for three hours after she told them she was pregnant, in pain and bleeding. When she was eventually taken to a nearby hospital, she learned that her baby had died.
In Other News:
Helena Kennedy QC, a leading human rights barrister and author of Eve Was Framed, has been included on the list of those sanctioned by the Chinese government for criticism of the human rights abuses against Uighur Muslims in Xinjiang province. Together with David Alton, a crossbencher, she helmed an ultimately unsuccessful attempt to persuade the UK government to create a procedure that would have enabled the English high court to make a determination on whether the evidence reached the threshold for genocide. China has imposed sanctions on 10 other UK organisations and individuals, including the former leader of the Conservative party Iain Duncan Smith, over what it called the spreading of “lies and disinformation” about human rights abuses in Xinjiang.
The investigatory powers tribunal (IPT), which examines allegations that the state has misused its surveillance powers, has heard from an environmental activist who was deceived into a long-term sexual relationship by an undercover Metropolitan police officer that his managers knew about the deception and allowed it to continue. A judge-led public inquiry into the activities of undercover officers is ongoing; Phillipa Kaufmann QC, who represents women deceived into sexual relationships, has called the practice “endemic”.
In the Courts:
Hamilton & Ors v Post Office Ltd [2021] EWCA Crim 577: the Court of Appeal quashed the convictions of thirty nine men and women employed by the Post Office as sub-postmasters, sub-postmistresses, managers or counter assistants; three other former employees’ appeals failed and were dismissed. All the appellants were prosecuted by their employer and convicted of crimes of dishonesty. The reliability of the computerised accounting system, “Horizon”, in use in branch post offices during the relevant period, was essential to the prosecutions. Despite repeated assertions by the Post Office that the system was robust and reliable, it has become clear that it was critically undermined by bugs and glitches which cause it to incorrectly record shortfalls. The court called the convictions “an affront to the public conscience.” A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently trying to establish an account of the implementations and failings of the system.
Howard, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin): the High Court ruled that the Home Office’s handling of a Windrush citizenship application was irrational and unlawful. Hubert Howard was repeatedly denied British citizenship over the course of a decade, despite having lived in the UK since he arrived from Jamaica at the age of three in 1960, on the grounds that a number of minor convictions prevented him from meeting a “good character” requirement, which is an eligibility criteria for citizenship.
Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin): the High Court has ruled that Birmingham City Council has been operating an unlawful system for the performance of its main housing duty under the Housing Act 1996. The Council had been operating on the basis that an applicant owed the main housing duty may be left in unsuitable accommodation while the Council takes a reasonable time to secure permanent suitable accommodation. Steyn J held that this was unlawful; the main housing duty is an “immediate, unqualified and non-deferrable” duty to secure suitable accommodation. Putting applicants on a waiting list was not a lawful means of performing that duty.
On the UKHRB:
Caroline Cross covers a recent case in which the boundaries of causation in mesothelioma deaths were tested and clarified.
Martin Forde QC summarises the High Court’s decision (set out briefly above) that the Home Office’s handling of a Windrush citizenship application was unlawful
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: Lorie Shaull
Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17th century slave trader called Edward Colston.
The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.
In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.
Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.
The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.
Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.
Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment
A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,here and here). As the Supreme Court noted in their short decision, Mr Conway
could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.
But Mr Conway doesn’t see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued, would avoid all these problems.
In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.
In the latest in the protracted investigation into the death of Pearse Jordan, the Northern Ireland Court of Appeal has upheld the verdict of a Coroner who found himself unable to decide all the relevant facts – Re Theresa Jordan [2018] NICA 34. The case raises issues around the appropriate burden and standard of proof in inquests, particularly after a significant passage of time.
The Inquests
On 25 November 1992, Patrick Pearse Jordan was shot and killed at Falls Road, Belfast, by an officer of the Royal Ulster Constabulary, referred to in proceedings as “Sergeant A.” Mr Jordan was unarmed and was shot in the back. Three inquests have subsequently been held into his death. Continue reading →
The mother of a British soldier who was killed in a roadside bomb while on duty in Iraq has received an apology from Defence Secretary Sir Michael Fallon. Sue Smith’s son, Pte Phillip Hewett, died while travelling on patrol in a lightly armoured “snatch” Land Rover in July 2005.
Following a settlement of the case, Sir Michael has written to Ms Smith:
“I would like to express directly to you my deepest sympathies and apologise for the delay, resulting in decisions taken at the time in bringing into service alternative protected vehicles which could have saved lives.”
What did Ms Smith allege?
The circumstances around Pte Hewett’s death have been the subject of litigation for the last 6 years.
R (o.t.a T) v. HM Senior Coroner for West Yorkshire [2017] EWCA 187 (Civ), 28 April 2017 – read judgment
A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.
A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born. Continue reading →
The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective. Continue reading →
Judgments in best interests cases involving children often make for heart-wrenching reading. And so it was in Bolton NHS Foundation Trust v C (by her Children’s Guardian)[2015] EWHC 2920 (Fam), a case which considered Royal College of Paediatrics and Child Health guidance, affirming its approach was in conformity with Article 2 and Article 3 ECHR. It also described, in the clearest terms, the terrible challenges facing C’s treating clinicians and her parents. Continue reading →
Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that
It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.
JX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, 17 February 2015 – read judgment
Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.
For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties.
R (on the application of FI) v Secretary of State for the Home Department [2014] EWCA Civ 1272 – read judgment
The Court of Appeal has held that the physical restraint of persons being removed from the UK by aircraft is subject to a sufficient framework of safeguards to fulfil the state’s obligations under Articles 2 and 3 of the European Convention on Human Rights. Further, the decision of the Home Secretary not to publish aspects of the applicable policy on the use of such control and restraint is lawful.
FI was restrained by detainee custody officers during an attempt to remove her from the UK in 2011, though the issues on this appeal did not turn on the specific circumstances of her case. In issue was the sufficiency of the framework of safeguards on the use of such restraint as contained predominantly within the Use of Force Training Manual (the “Manual”).
R(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – read judgment
When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin.
This claim involved the deaths of six military police, who were murdered by an armed mob in Majar-al-Kabir, Iraq on 24 June 2003. They were visiting an Iraqi police station and, contrary to standing orders, did not have an iridium satellite telephone with them. The Oxfordshire Coroner had previously held an inquest into the deaths, which opened in 2004 and closed with an unlawful killing verdict on 31 March 2006. He dealt with the lack of effective communications equipment in a Rule 43 report (now a Report to Prevent Future Deaths), but it could not be said in the circumstances that, had they had a radio, their lives would have been saved. As the coroner said, the only person who might have been able to help them in time was the commander of a nearby paratroop patrol and he thought it possible that “had he endeavoured to help, I would be holding an inquest into the deaths not of six brave men but of 18” – [49].
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In the Chamber Judgment (currently available only in French) in the case of 
Judgments in best interests cases involving children often make for heart-wrenching reading. And so it was in 
R (on the application of FI) v Secretary of State for the Home Department [2014] EWCA Civ 1272 – 
R(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – 
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