MORVEN MARCIA MCPHERSON v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2001] EWCA Civ 1955

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION

APPEAL TRIBUNAL

[2001] EWCA Civ 1955

Case No Case No: C/2001/1805

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL, Wednesday 19th December, 2001

Between

MORVEN MARCIA MCPHERSONAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Before

Lord Justice Aldous

Lord Justice Sedley

Lady Justice Arden

Ms. Judith Farbey (instructed by Glazer Delmar for the Appellant)

Mr. Michael Fordham (instructed by Treasury Solicitor for the Respondent)

Lord Justice Sedley:

Section

[1]65 of the Immigration and Asylum Act 1999 provides in its first four sub-sections:

"(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against the decision ……….. (2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. (3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, acted in breach of the appellant's human rights. (4) The adjudicator, or the Tribunal, has jurisdiction to consider the question."

[2]The appellant, Ms. McPherson, came to the United Kingdom from Jamaica, her home country, in November 1990 with six months' leave to enter as a visitor. She had a son by a former partner, Philip Blackwood, and two other children in their late teens. She applied for but was refused indefinite leave to remain, and in January 1992 returned to Jamaica. The following month she re-entered the United Kingdom on a false passport. She was evidently travelling to and fro, because she again entered the United Kingdom from Jamaica in August 1992, and three months later her two teenage children were given leave to enter the United Kingdom as visitors.

[3]Early in 1993 the appellant lost her appeal against the refusal of indefinite leave to remain, and in June was arrested and served with papers as an illegal entrant. There followed applications by the two children for leave to remain as visitors, and an application by the appellant for political asylum which was rejected. Her appeal was not disposed of until July 1997, when it was conceded on her behalf that she had no grounds for asylum.

[4]Within three months the appellant had been charged with serious drugs offences, and in March 1998 she was convicted of supplying a Class A controlled drug and sentenced to four years imprisonment with a recommendation for deportation. While she was serving the sentence the Home Secretary accepted the recommendation and signed a deportation order. The two children were refused indefinite leave to remain, and early in 2000 were served with notices of intention to deport, against which they lodged appeals. The appellant later that year applied for revocation of the deportation order. In November 2000 the Home Secretary refused to revoke it.

[5]It was in this situation that the appellant lodged an appeal under Section 65 of the Immigration and Asylum Act 1999. She claimed, in short, that deporting her to Jamaica would violate her rights under Article 3 and

Article 8 of the European Convention on Human Rights

. The Article 8 claim related to her relationship with the two children who were with her in the United Kingdom. The Article 3 claim related to her fear of renewed and serious personal violence on the part of Philip Blackwood, who had repeatedly assaulted her in earlier years. The Adjudicator before whom her appeal came, Mrs. S. Charlton-Brown, found in her favour under Article 3 and allowed the appeal. This being so, she made no decision under Article 8. The Home Secretary was given permission to appeal to the Immigration Appeal Tribunal, and his appeal was allowed. The Immigration Appeal Tribunal, however, simply set aside the adjudicator's decision under Article 3; it declined either to entertain or to remit the Article 8 claim for decision. It said:

"Since no determination had taken place in relation to the Article 8 submissions, no findings had been indicated by the Adjudicator and there had been no appeal on that point by the Respondent, we decided that we were not in a position to take that aspect of the matter any further. We had considered with Miss Farbey [counsel for Ms. McPherson] the possibility of a remittal to the same Adjudicator for her to determine the appeal in relation to Article 8 but having referred to the Immigration and Asylum Act 1999 Schedule 4 Part III Para. 22 we have decided that, since there was no appeal against the Adjudicator's determination in that respect we should not make any order in that respect."

[6]Laws LJ. gave permission to appeal on sight of the appellant's two grounds: first, that the IAT had acted unlawfully in refusing to remit the Article 8 case for determination; secondly, that the IAT had been wrong to interfere with the Adjudicator's decision on Article 3.

[7]Mr. Michael Fordham, for the Secretary of State, who had not invited the IAT to take the course it did in relation to the Article 8 claim, very fairly accepts that it should not have done so. The reason is self-evident: if (as the IAT held) the Article 3 claim failed, there remained an untried appeal to the Adjudicator under Article 8. It would take the clearest possible legislative provision to produce a situation in which a party who succeeded at first instance on one of two points forfeited the other one if it was left undecided, even if the first point fell on appeal. In the present case the appellant's lawyers had taken care to give notice by letter that if it became necessary the appellant would rely again on Article 8 in the appeal.

[8]Although the IAT cited no authority for the course it took, or rather declined to take, our attention has been drawn to the two decisions which bear on the problem. In R. v. IAT ex parte Bari [1986] Imm AR 263, Russell J. had to consider whether on an individual's appeal the Secretary of State could without notice or leave recanvass issues of fact on which the appellant had succeeded below. His conclusion that there was nothing in the rules to prevent it was questioned by the IAT in Iqbal v. ECO, Islamabad (Case 8185, 20 August 1991) on the intelligible ground that "if …. it was always open to the Home Office to resurrect at will issues on which the Adjudicator had come to a positive conclusion on evidence given before him, the result would be chaotic". There is force in this, but it is not something which the court is called upon to decide in the present case.

[9]What we are faced with is something more elementary: a case in which an appellant has been denied a decision at either instance on a point which she has legitimately raised and expressly sought to keep alive as her second argument. The question was not whether there had been an appeal on the point or on the Adjudicator's failure to decide it: for obvious reasons there had not been. It was whether, given the success of the Home Secretary's appeal on the Article 3 issue, the Article 8 issue ought now to be determined. Plainly it should have been, and all that remained was for the IAT to give appropriate directions.

[10]What order ought now to follow, however, depends upon the second issue before us, to which I now turn.

[11]The IAT had before it an Adjudicator's decision of high quality, dealing methodically and carefully with the evidence and the issues on the Article 3 appeal. Her self-direction on law was not criticised. What the Adjudicator had gone on to say about protection in Jamaica of women in the appellant's situation was this:

"7.5 The other important point to consider in relation to the appellant's claimed breach of Article 3 rights is of course whether or not the authorities in Jamaica might offer adequate protection against the activities of an individual like Phillip Blackwood. Quite apart from what the appellant has said about him and the attempts of the police to arrest him which proved to be unsuccessful due to his ties within the community and his contacts with the authorities, it appears that the objective evidence does in fact support her case. The Respondent frequently relies on the US State Department Report as objective background information, and I take this as my starting point. The 1999 Country Report for Jamaica, issued by the US Department of State on February 25 th 2000, indicates that whilst the government generally respects the human rights of its citizens, "several problems remained in several areas"

. It is stated that violence and economic discrimination against women remained problems. There were reports of police sexually harassed women and at page 6 of the report, specifically on the subject of women, it is stated that social and cultural traditions perpetuate violence against women, including spousal abuse. Violence against women is widespread, but many women are reluctant to acknowledge or report abusive behaviour, leading to wide variations and estimates of its extent. The Domestic Violence Act of 1995 came into effect in 1996. It provides remedies for domestic violence, including restraining orders and other non custodial sentencing. … there were anecdotal reports that the police sexually harassed women … "women suffer from economic discrimination and sexual harassment in the work place". As to the police, it is stated that there is continued impunity for those who commit abuses, and "this remains a problem" and reference is also made that apart from the fact that they continue to arrest and detain citizens arbitrarily, it is also stated that they themselves sexually harassed women. 7.6 Apart from the US State Department Report. I have also considered the expert evidence in the form of the statement produced by Professor Le Frank [sic]. Professor Le Franks conclusions are to the effect that the background situation within Jamaica indicates that the appellant would have a problem should she return, given her experiences at the hands of Mr Blackwood. During the course of her report she indicates "The police are really quite unable to provide adequate protection for anyone … the frequency with which cases against persons brought to trial collapse because witnesses have disappeared, been killed or too afraid to speak publicly is only one indication that the inability of the police to provide the necessary protection, and the vulnerability of that system to external influences." She goes on to say that victims of domestic violence receive little priority and there are no known protection programmes and that "while murder or other extreme acts of violence will clearly not be condoned, it is likely that given the common value systems there would be a high level of tolerance to the threats and abuse being perpetrated by their partners". She also indicates that whilst there may be a domestic violence act, this would not appear to assist. Indeed, in this respect, I have to say that I agree with the comments made by Miss Farbey to the effect that the sanctions available under the Domestic Violence Act are clearly not as effective as those provided by criminal law with appropriate custodial sentences."

[12]The Immigration Appeal Tribunal reminded themselves of the correct appellate approach to issues of fact:

"We should not reconsider findings of fact made by the Adjudicator unless persuaded that they were clearly wrong, ie. that there was insufficient evidence to support a finding. The fact that we might not have made the same finding does not of itself entitle us to interfere."

[13]They first made this comment; "The Domestic Violence Act 1995 now provides remedies for domestic violence including restraining orders and other non- custodial sentencing but breach of a restraining order is punishable by fine and/or imprisonment. The Adjudicator in referring to the Domestic Violence Act refers only to the non- custodial penalties (para 7.5) and does not mention the fact that breach of a restraining order leads to possible imprisonment."

[14]It is unsatisfactory that no copy of the Jamaican Domestic Violence Act 1995 was before the Adjudicator. What she had before her, counsel are agreed, was the 1999 State Department Report on Human Rights practices in Jamaica. This said:

"Social and cultural traditions perpetuate violence against women, including spousal abuse. Violence against women is widespread, but many women are reluctant to acknowledge or report abusive behaviour, leading to wide variations in estimates of its extent. The Domestic Violence Act of 1995 came into effect in 1996. It provides remedies for domestic violence including restraining orders and other non custodial sentencing."

[15]In this situation it is unsurprising that the Adjudicator said no more about the measures available under the 1995 Act. By contrast, what the IAT was working on, by agreement of the parties, was the State Department Report for the year 2000 which was published at about the same time as the Adjudicator was sitting and which added to the foregoing information the following:

"Breaching a restraining order is punishable by a fine of up to $250 (J $ 10,000) and/or six months' imprisonment."

[16]Although therefore no criticism of the Adjudicator was involved, the picture had altered. The reason why it had altered was this. The Adjudicator had made full and careful findings that the appellant had, as she alleged, been viciously attacked on more than one occasion by Blackwood. She had scarring to confirm it. In a further finding which the IAT was careful to respect in spite of its own reservations, the Adjudicator concluded that the nature of Jamaican society was such that the applicant would still be at risk of violence from Blackwood, despite an absence from him of some nine years, if she were returned to Jamaica. It followed that the critical question for Article 3 purposes was whether the Jamaican state could be expected to afford her a sufficient level of protection from inhuman and degrading treatment.

[17]The IAT gave the following reasons for oversetting the Adjudicator's finding that the appellant had established not only the risk but the want of adequate protection from it:

"The Adjudicator went on to consider the expert evidence by way of statement from Professor Le Franc who is obviously a person of some status in her field. The Adjudicator relies heavily on her report. We examined that report carefully and noted the opinions of Professor Le Franc. We then looked (as we should do) for the basis of those opinions, ie. any research carried out and statistics accumulated even on a limited basis. Some statistics were given in relation to the violent nature of Jamaican society which were of limited relevance. In relation to the capacity of the police to provide protection the report opens that section with the swingeing statement "

The police are really quite unable to provide adequate protection for anyone" and then identifies reasons for weaknesses in the efficiency of the police concluding with "But then the police do not have much control of the streets". In the absence of an indication of factual research carried out and the sources of information we considered that such statements were unhelpful, do not stand up to common sense consideration and cannot be relied upon. We went on to note that after indicating the lack of priority given to victims of domestic violence Professor Le Franc states "There are no known programmes that provide this kind of protection." This seems to be in conflict with the US State Department report at page 7 that "a number of active women's rights groups exist. They are concerned with a wide range of issues, including violence against women … Their effectiveness is mixed, but the groups were successful in advocating enactment of the 1995 Domestic Violence Act". Professor Le Franc makes no comment about any such groups. The Adjudicator refers to the lack of protection programmes in paragraph 7.6 and goes on, at the end of that paragraph, to agree with Counsel that "the sanctions available under the Domestic Violence Act are clearly not as effective as those provided by criminal law with appropriate custodial sentences". They both seem to have overlooked the fact that the Domestic Violence Act does provide for the possibility of a custodial sentence in the event of a restraining order being breached. Professor Le Franc also tells us that "Jamaica is a small state with a small-scale society" within which it is difficult to hide. We are not told of the size of Jamaica geographically or on a population basis which would have been of assistance. In paragraph 7.8 the Adjudicator finds that "given the size of Jamaica and the nature of Jamaican society, should the Appellant return, I have no doubt that Philip Blackwood would be able to locate her precise whereabouts"" That finding is made without any precise evidence of size or nature. Since we accept the likelihood of future contact between the Respondent and Philip Blackwood that absence of information and the finding caused no problem but is an example of the weakness of that report and a finding based upon it. …. In relation to the availability of protection from the state we found that the Adjudicator had failed to consider properly the sanctions available to the Respondent against Philip Blackwood to deal with the risk that the Adjudicator had found to exist. The significance of the passing of the Domestic Violence Act since the last violence had been underestimated coupled with a misunderstanding of the sanctions available from that legislation. That, together with the other weaknesses of Prefessor Le Franc's report, satisfied us that there was insufficient evidence to support the finding of the Adjudicator in this respect and that it was clearly wrong."

[18]The IAT was plainly entitled to revise the Adjudicator's conclusion in the light of the further information placed by consent before it. It could now legitimately be said that legal provision which included penal or quasi-penal sanctions was available not only to deter domestic violence but – perhaps better – to prevent it. But was this enough to justify the oversetting of the finding in the appellant's favour without remission?

[19]Ms. Judith Farbey for the appellant submits that civil remedies of the kind evidently provided by the Domestic Violence Act 1995 are not enough to meet the state's positive obligation under Article 3. For this, she says, only criminal sanctions will suffice. She relies upon the Opinion of the Commission in A v. United Kingdom

(1988) 27 EHRR 611

, para 47:

"The Commission observes at the outset that, while the choice of means designed to secure compliance with Convention rights in the sphere of the relations between individuals themselves is in principle a matter that falls within the Contracting States' margin of appreciation, the effective protection of vulnerable individuals such as children against treatment or punishment falling within Article 3 of the Convention requires the deterrent effect of the criminal law. As the court noted, in the different context of the protection of the Article 8 rights of a mentally handicapped child,. "effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions…" [ X and Y v. The Netherlands (1985) 8 EHRR 235, para 27]."

The Court, in general agreement with the Commission, also required "effective deterrence" as a condition of compliance.

[20]Mr. Fordham, however, points out that earlier in its judgment X and Y v. The Netherlands (para 24) the Court had said:

"… there are different way of ensuring "respect for private life", and the nature of the State's obligation will depend on the particular aspect of private life that is at issue. Recourse to the criminal law is not necessarily the only answer."

[21]In my judgment neither Article 3 nor the jurisprudence of the Court of Human Rights on the positive obligation of states to protect individuals from other individuals goes as far as Ms. Farbey contends. What matters is that protection should be practical and effective, not that it should take a particular form. Indeed, to insist on the latter might very well be to frustrate the former. What perhaps matters more is the standard of protection which the state is expected to afford. The higher the standard, the less the individual will have to establish in order to show non-compliance with it. Our attention has been drawn in this regard to the formulation in HLR v. France

(1997) 26 EHRR 29

"Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving state are not able to obviate the risk by providing appropriate protection. (Para 40, cited in Grosz, Beatson and Duffy on Human Rights (2000, C 3-11))."

[22]On the face of it this appears to require the state to obviate risks which fall within Article 3, but this cannot be right. What the state is expected to do is take reasonable measures to make the necessary protection available. It is not, as counsel agree, a guarantor of safety or non-violation. To the extent that a state can be shown to be unable or unwilling to take such measures, the positive obligation of protection will not be met. I respectfully adopt the judgment of Arden LJ. as amplifying my reasoning on this question.

[23]I am therefore not persuaded by Ms. Farbey's principal answer to the IAT's decision. But there remains, as Arden LJ. pointed out in the course of argument, the significant evidence of Dr. Le Franc, given by way of an updating statement to the IAT:

"Even if a court order were obtained under the Domestic Violence Act, given the common value systems, the serious problem of insufficiency of resources, and the high and rising rates of serious crime, going after someone who breached a court order is unlikely to be given a high priority."

[24]While it is right that Dr. Le Franc did not mention the Domestic Violence Act in her principal statement, the evidence before the IAT, including her further statement, undoubtedly raised a further and important Convention question: are the remedies and protections provided in Jamaica by the Domestic Violence Act 1995 practical and effective? If they are not, the mere fact that the Act contains a power to make protective orders backed by penal sanctions will not necessarily be an answer to the risk to the appellant which the Adjudicator found to exist.

[25]It is possible, but unprofitable, to travel further through the IAT's critique of Dr. Le Franc. It may be said, for example, that there is in truth no conflict between the existence of active women's rights groups and the want of protection programmes for women; indeed, that the two things may well be two sides of a single coin. It can also be said that there is something captious about the IAT's criticism that the Adjudicator has failed to set out the size of Jamaica or to describe the nature of Jamaican society.

[26]I mention these points because for the reasons which I have now set out the appeal must in my judgment be allowed on the Article 3 issue as well as the Article 8 issue. Counsel have agreed that in this event both limbs of Ms. McPherson's appeal ought to go back to an adjudicator, who may be the same Adjudicator as before if the parties agree that it should be but will otherwise be a fresh adjudicator. Whoever now decides the case, they should decide it under both Article 3 and Article 8. While what has happened in the present case was hardly predictable, it does illustrate the desirability of at least contingently deciding issues which, though no longer essential at first instance, are capable of becoming crucial on appeal, especially where these involve findings of fact.

[27]Not only will it be of obvious value in the remitted hearing to see a copy of the Domestic Violence Act 1995. It will also be material to know statistically, if feasible, what use has been made of the power to grant a restraining order and of the concomitant power to commit a defendant for breach of it. If there is a power of arrest in support of restraining orders, it will also be very relevant to know whether and how often it is used. It may also well be relevant and necessary to form a view as to whether after a space of nine or more years a woman in the appellant's position has any hope of obtaining a restraining order without first being attacked again.

[28]I would accordingly allow the appeal. In order to save the costs of a further attendance, counsel have sensibly agreed that in the present event the appellant should have her costs of the appeal. There will also be a public funding assessment of the appellant's costs.

Lady Justice Arden:

[29]I agree that the appeal should be allowed.

[30]It is common ground on this appeal that the adjudicator had correctly identified the burden and standard in proof in this case in paragraph 6.1 of the adjudication:- "As to the appellant's human rights claim under article 3, the burden of proof is on her and the standard of proof is that there must be substantial grounds for believing that she is at real risk of prohibited ill-treatment (i.e. torture or inhuman or degrading treatment or punishment contrary to

article 3 of the European Convention on Human Rights

)."

[31]It is common ground that the Tribunal was entitled to interfere with the decision of the adjudicator on the grounds that the adjudicator had in error found as a fact that the sanctions available for breach of the Domestic Violence Act 1995 of Jamaica did not include custodial sanctions. It then fell to the Tribunal to consider whether in those circumstances

Article 3 of the European Convention on Human Rights

was engaged. I respectfully agree with Sedley LJ that the Tribunal fell into error in placing reliance on the custodial sanctions for breach of the Act without considering the evidence as to the attitude of the police generally to domestic violence and whether the appellant had discharged the onus of proof on her of showing that the remedies would not be sufficiently effective.

[32]There are two points which I wish to add about what an appellant has to show in these circumstances to discharge the onus of proof to the requisite standard. First, in the light of the Domestic Violence Act 1995, it is not, in my judgment, enough for the appellant to show that the sanctions imposed for offences against the person under the criminal law of Jamaica were ineffective. In the context of domestic violence, a state can provide effective measures of a different nature. The law of this country for example provides remedies under the criminal law but in addition provides for non-molestation orders made in civil proceedings to which a power of arrest can be attached: see Family Law Act 1996, replacing the Domestic Violence Act 1976. The new provisions were enacted in order to improve the range of effective remedies available under the general law in implementation of recommendations by the Law Commission (see Family Law: Domestic Violence and Occupation of the Family Home (Law Com. No.207 (1992))).

[33]Moreover, in domestic violence the view can properly be held that cases of domestic violence raise special problems and that in some situations the normal processes of the criminal law are unsuitable. This issue is discussed by the Rt Hon Lord Justice Auld in his recent Review of the Criminal Courts of England and Wales (October 2001): "The victim's relationship with the offender makes the factual issues less straightforward. There may be suggestions that the allegation has been made in order to punish the defendant for some problem in the relationship. The victim may be under community or family pressure to drop the case, or feel guilt or fear about turning to the courts. Where there are children of the relationship, they may retain contact with the father and she will fear the inability of the courts effectively to protect her from further violence. Domestic violence is often repetitive, and the evidence suggests that it tends to escalate. If the victim takes the matter to court early, before it does so, there is unlikely to be a suitably deterrent penalty; but if she leaves it until later, the admissible evidence cannot usually reflect the history between the parties and, therefore, the sentence may not reflect the true seriousness of the matter. There is also a tendency to regard such cases as less serious because they occur within the home, and with a possibility of reconciliation as a mitigating factor." (Chapter 9 Decriminalisation and Alternatives to Conventional Trial , paragraph 38).

[34]The preferred primary solution for problems of domestic violence may thus not lie in the criminal law. Lord Justice Auld in his report refers to other possibilities:- "An example ….. is the domestic violence court in Calgary, with its 'restorative justice' approach. The project, begun as a pilot in early 2000, aims to bring together many agencies, such as housing and social services, and to create a forum for discussion of appropriate treatment. The panel discusses the family circumstances and the reasons for the offending and seeks to produce an agreed solution, which might be a combination of community orders. The court oversees the process and can call the case in at any stage before sentencing. The project also aims to improve the speed of intervention and expertise about domestic violence in the core criminal justice system agencies. There is as yet no full evaluation of the pilot, but like other 'restorative' approaches that I saw in North America, its success appears to be, not so much in devising alternative procedures, but in gathering together the resources of a number of concerned agencies and focusing minds on the issue." (above, paragraph 39).

[35]I see no reason in principle why suitably-crafted provisions of the civil law should not have the requisite degree of deterrence as much as provisions of the criminal law. It all depends on the circumstances and the nature of the provision.

[36]My second point is that Article 3 requires a state to provide machinery to deter a violation of that article which attains a satisfactory degree of effectiveness. The jurisprudence of the European Court of Human Rights provides support for this conclusion. In Osman v United Kingdom

[1999] 1 FLR 193

at 222, the Court said:

"(115) The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the LCB v the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998). It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. …….."

[37]The second sentence makes it clear that the provisions of the law required to safeguard the right to life must be "effective". Although this paragraph relates to Article 2, in my judgment the same principle applies to Article 3. The right to life under Article 2 and the right to freedom from torture and inhuman and degrading treatment under Article 3 are both non-derogable rights. (The third sentence in paragraph 115, above, which is in tentative terms, is not applicable because the situation under consideration is not one where the state has some special knowledge of an extreme situation, as in Osman itself). Likewise, in X and Y v Netherlands

(1985) EHRR 235

at 241, the European Court of Human Rights, referred to the need for "effective deterrence". This was a decision on

Article 8 of the European Convention on Human Rights

but it was subsequently applied by the European Court of Human Rights to a violation of Article 3: see A v United Kingdom

(1998) 27 EHRR 611

at 629, paragraph 22.

[38]Accordingly, to be "effective", measures for the purposes of Article 3 must be those which attain an adequate degree of efficacy in practice as well as exist in theory. If the appellant were able to show to the requisite standard of proof that the remedies provided under the law of Jamaica against domestic violence are unlikely to be an effective deterrent, in my judgment she would have shown that her removal from the United Kingdom to Jamaica would violate her rights under

Article 3 of the European Convention on Human Rights

. On this appeal, there is no dispute about what in general the law of Jamaica provides, and the appellant has not suggested on the hearing of this appeal that if regard can be had to non-criminal sanctions, the package of sanctions provided by the Domestic Violence Act 1995 of Jamaica is not by and in itself capable of being "effective measures" for the purposes of Article 3, i.e. an effective deterrent against domestic violence, including violence between former co-habitants.

[39]It is accepted that article 3 does not require a state to guarantee the appellant's safety. Argument was not, however, addressed to the question of what the appellant would have to show to establish (to the requisite standard of proof) that the measures were not "effective" in practice. Accordingly, final resolution of this issue will have to await another case.

[40]With these observations and also for the reasons given by Sedley LJ, I would allow the appeal and remit the appellant's claims under Articles 3 and 8 to another adjudicator unless otherwise agreed.

Lord Justice Aldous:

[41]I agree with both judgments.

Order

Appeal allowed with costs, to be assessed on a public funding basis. (Order not part of approved judgment)