MM and AO (A Child), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 668

“10. Yarl's Wood is an Immigration Removal Centre where unsuccessful asylum seekers may be detained administratively by the United Kingdom Borders Agency. In addition no doubt to individuals, there may be families there, some with young children. In mid June 2009 the two claimants in the present proceedings were detained there. The first claimant is an adult, there with his wife, daughter and niece. The second claimant is a child; she was there with her mother. Some of the families were concerned that their children and babies were becoming sick and not receiving adequate medical treatment. They were concerned that the children were showing signs of trauma. There were other complaints relating to health and nourishment. No doubt tensions were raised by the prospect of their removal and perhaps by attempts to forestall this. Concerns had been publicly expressed about the harmful effects of immigration detention on children, in the light of which the government and the UKBA are, I understand, considering modifications to procedures. 11. The families concerned and their perception that UKBA were unwilling to meet the families together led to a peaceful protest which included, on 16th June 2009, the families taking mattresses and so forth into the corridors, where they would remain until a UKBA representative came to speak with them. It is unnecessary for present purposes to consider the detail of this process, nor the rights and wrongs of the events which led to it. Suffice to say that UKBA and Serco, UKBA's contractor who managed the detention centre, were sufficiently concerned to consider taking action to stop the protest. 12. On 17th June 2009, there was a conference call in which 18 people of various disciplines participated which considered and planned an intervention to stop the protest. The Secretary of State defending these proceedings says the ensuing intervention operation was carefully and properly planned. The claimants say that there were deficiencies in the planning especially with regard to the children. 13. The plan was that groups of officers would identify named detainees including the first claimant to be accompanied by force, if necessary, to a secretion unit. Other officers were to identify distressed children to take them to a large classroom prepared to receive them. 14. The intervention took place in the early afternoon of 17th June 2009 when approximately 30 detention custody officers executed the planned intervention. There are issues of fact as to the extent to which force was used or was necessary. It is accepted that children were separated from their parents. I was told that at some stage the incident became very noisy and that this appeared to coincide with the intervention officers approaching and taking hold of a man referred to as Solomon. The first claimant says that he suffered bruising and pains as a consequence of the manner in which he was restrained. Another man says that he was pushed, kicked and had his hair pulled. It is said some children were hurt. The children became distressed and women, mothers in particular, became very distressed not least when an officer sought to separate one mother from her baby. 15. A number of children separated from their parents were placed in a nursery or classroom. It was recorded that at least two children were very distressed but later calmed down. At least two of the parents were separated from their children for significant periods. The first claimant was separated from his family for nine days. Subsequent statements from detention centre officers indicate that the atmosphere and tension was very high. The word "pandemonium" is used. Children were very upset. Public concern was expressed after the incident by the Children's Society and an organisation called Bail for Immigration Detainees which subsequently applied to intervene in these proceedings but were refused. 16. This brief account of the intervention could be greatly enlarged but it is not necessary to do so for the relatively confined purposes of the present proceedings. Importantly however, there is CCTV material recording the incident which was also the subject of a video recording which is available. It has not been necessary for me to view the video, but it represents valuable contemporary visual evidence, no doubt available to resolve or help resolve factual disputes which might arise. 17. On 29th June 2009 the claimant's solicitors wrote to UKBA making a number of complaints about the treatment of the families. UKBA treated this as a letter of complaint to be investigated by its Professional Standards Unit. The PSU undertook this investigation and asked the claimant's representatives for evidence. The claimant's representatives proceeded to obtain signed statements from nine families, which they provided in August and September 2009, with the other statements provided in late September 2009.”

“The PSU report is, as I read it, an admirably thorough document which in its 68 closely typed pages examines in detail and with reference to the evidence obtained the health care, education, catering and social work services complaints of each individual complainant and then, with reference to the second and third of the terms of reference, the planning and execution of the intervention, with reference to individual adult complainants including Solomon and the first claimant. It concludes that the intervention was necessary giving detailed reasons for that conclusion.”

“This long and detailed report criticises material aspects of the planning and implementation of the intervention, expressing the opinion that in material respects particularly relating to the children it was inadequate and inappropriate. The details do not matter for the present purposes.”

“The special vulnerability of children is also relevant to the scope of the state to protect them from such treatment.”

“if there has to be an independent investigation the sooner it starts work the better.”

“Accordingly, the Court is not persuaded that this is a case in which issues arise under the procedural head of Article 3 of the Convention and would consider that the applicants' complaints fall rather to be considered under Article 13 of the Convention. However, even assuming that Article 3 in its procedural aspect was engaged in this case, the Court would make three points. First, in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility for unlawful acts of violence (McKerr v. the United Kingdom 34 EHRR 553, para 134;see also Menson v. the United Kingdom (2003) 37 EHRR CD 220 where the ability of the State to enforce the criminal law against those who unlawfully took the life of another was described as decisive when deciding whether the authorities complied with their positive and procedural obligations under Article 2). Second, where the allegations are not of intentional violence as such but raise issues of negligence, a civil or disciplinary remedy may be sufficient to provide protection under Article 2 … Similar considerations would arise under Article 3. The Court would note that the present applicants’ claims in their civil proceedings included allegations of systemic negligence and they could have thus raised any alleged failings in management, administration, training and supervision which could be linked to their ill-treatment. These proceedings were, however, settled. Thirdly, insofar as the applicants asserted that there were wider issues which were not ventilated in either criminal or civil proceedings and in respect of which a public inquiry was necessary, the Court would emphasise that the procedural element contained in Article 3 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for serious ill-treatment the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known. There is no indication in the present case that the facts have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case as to the background of the assaults and the remedial measures apt to prevent any recurrence in a prison in the future are, in the Court's opinion, matters for public and political debate which fall outside the scope of Article 3 of the Convention (see mutatis mutandis, Taylor Family and Others v. the United Kingdom (1994) 79-A DR 127).”

“(i) to the extent that allegations of criminal responsibility for acts of unlawful violence were made, the appropriate way of dealing with them was a criminal investigation; (ii) to the extent that allegations of negligence were being made, civil proceedings might well be sufficient even for the purpose of both Article 2 and Article 3 even though civil proceedings could be (and had in that case been) settled; (iii) to the extent that wider issues were raised which were not ventilated (or would not be ventilated) in criminal or civil proceedings those were matters for ‘public and political debate which fell outside the scope of Article 3 of the Convention’.”

“79. It seems to me that in the present case the allegations of breach of Article 3 can be properly dealt with by the combination of the availability of criminal proceedings and civil proceedings, just as the allegations in Banks could be properly dealt with. The availability of those proceedings thus constitutes compliance with the procedural obligation of Article 3 on the facts of this case. The focus of any inquiry which the court is empowered to order has to be on the alleged breach of Article 3. The wider inquiry which Liberty wants is no doubt "a matter for public and political debate" but does not fall within Article 3. 80. [Sedley LJ] takes the view that criminal and civil court proceedings will not ordinarily suffice when allegations of systemic and multiple breaches of Article 3 are made. I think that this puts the matter too widely. If a particular individual or, as in this case, three individuals make one or more allegations of conduct amounting to a breach of Article 3, I see no reason why they cannot be investigated by the police and the courts in the ordinary way. It cannot be right, in my view, 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. … 83. There must also be a margin of appreciation for the Secretary of State to decide when to hold and when not to hold a public inquiry. The resource implications can be considerable. The Secretary of State's decision in the present case seems to me to be within the margin she must undoubtedly have.”

“103. In my judgment the procedural requirement of an Article 3 investigation will often be less onerous than an Article 2 investigation. I would accept the observation of Sedley LJ that there is not a formal distinction between the requirements for the two Articles, and that in cases of near death, for example, the protection afforded by the two Articles may merge into one another. But what is required depends on the circumstances, and there are typically four significant differences between Article 2 and Article 3 cases which will be likely to be reflected in the appropriate procedures. 104. First, as Mitting J observed, the duty under Article 2 arises from the fact of a death in which the state may in some way be implicated, whereas the duty under Article 3 arises only when there is an arguable breach of the substantive rights. Second, as Lord Phillips pointed out in L (para 20) death is always treated as a matter of particularly grave concern and the need for a very full investigation into a death, whether state agents are suspected of being at fault or not, is particularly important. Third, as Lord Rodger observed in the same case, one of the differences between a death and a near death is that in the latter situation a prisoner who has his mental faculties intact, is "prima facie, in a position to take the appropriate civil proceedings afforded by English law in respect of any perceived violation of his article 2 Convention right." A fortiori is that the case where infringements of Article 3 are alleged. Fourth, there are likely to be far fewer Article 3 breaches resulting from systemic wrongdoing. The combination of civil and, if necessary, criminal or disciplinary proceedings will often suffice in those circumstances to meet the Article 3 requirements.”

“In particular, in so far as the case suggests that civil or criminal proceedings will sometimes - indeed will generally - be sufficient to satisfy an Article 3 procedural obligation, it is in my view fully in line with established authorities. Similarly, the case confirms that Article 2 procedural obligations will generally be more stringent than those under Article 3, not least because the victims in the latter case are alive and can pursue their own claims. Finally, it confirms that the scope of an Article 3 investigation is limited in the manner I have indicated. It will be remembered that an important feature of the case was that the claimants were seeking to have an investigation into the whole culture of violence in Wormwood Scrubs prison which it was alleged (on powerful evidence) had existed throughout the 1990s. That certainly raises issues going well beyond the circumstances of the particular allegations of ill treatment, and I do not find it surprising that the court felt that this lay outside the scope of an Article 3 investigation. (That is not to say that there may not have been a strong case for an inquiry, but not as an element of an Article 3 obligation.)”

“Whilst in many, perhaps most, Article 3 complaints the combination of civil and criminal procedures will be enough to satisfy the Article 3 procedural obligations, I do not think that was the position here. In my judgment there are features of this case which required the Secretary of State to set up an independent investigation in May 2007, even though the alleged breaches are of Article 3 rather than Article 2. Its focus would, however, have had to be the alleged ill treatment and not the wider cultural or institutional difficulties which brought the problems to a head in the first place.”

“Article 2 was not engaged in this case, where there was no immediate risk to P's life. Where Article 3 may be engaged, an inquiry is not mandatory. Whether the Secretary of State is bound to conduct an inquiry depends on the circumstances of the case, including the availability of other means of eliciting the relevant facts, such as civil proceedings and investigation by the prison ombudsman. To impose an obligation to hold a Human Rights inquiry has significant resource implications, a matter of growing concern when the resources of public authorities are increasingly constrained. Good reason for an Article 3 inquiry must be shown. In the present case, all the relevant facts are known: why P was kept at Feltham and not transferred until after Dr Williams had re-assessed him and why there was some delay thereafter.”

“AM makes clear that the mere fact that systemic issues are alleged does not automatically engage an obligation to hold a public inquiry but that such an obligation can extend to systemic issues in an appropriate case. The scope of the investigation required is highly fact-sensitive. The main focus is on the particular allegations of ill-treatment and on the identification and punishment of any wrongdoers, but the investigation may also need to cover questions of system, management and institutional culture where those questions are sufficiently closely related to the ill-treatment alleged. 112. Where the line is to be drawn is a matter of fact and degree.”

“It is clear that article 3 imposes requirements of promptness and reasonable expedition in the discharge of the state's investigative obligation. It seems to us, however, that those requirements can be applied with a sensible degree of flexibility without falling below the standard prescribed by the Convention.”

“. . . article 3 cannot require everything to be done at once. It must allow for reasonable phasing of an investigation. The matter must be looked at as a whole when deciding whether the requirements of promptness and expedition have been met. . . . Thus, work directed at fulfilling the main purpose of an article 3 investigation, namely the identification and punishment of wrongdoers, is already in hand. In those circumstances, if there are good reasons for deferring a decision whether to take the additional step of establishing a public inquiry into systemic issues, we do not think that the requirements of promptness and reasonable expedition under article 3 are infringed.”

“If delay were liable to jeopardise the effectiveness of any investigation of systemic issues that might ultimately be called for, then that would be a powerful factor against deferral.”

“Taking everything into account, we are satisfied, as we have said, that the investigative obligation under article 3 does not require the Secretary of State to establish an immediate public inquiry. It is possible that a public inquiry will be required in due course, but the need for an inquiry and the precise scope of the issues that any such inquiry should cover can lawfully be left for decision at a future date.”

“that is an investigation into the allegation that her [the second appellant’s] post traumatic stress disorder resulted from her witnessing an intervention which itself constituted in her case an infringement of her Article 3 rights.”

“In the light of this concession by the Secretary of State, the issues in these proceedings are very considerably narrowed. Given the acceptance that second claimant now raises an arguable case under Article 3, so as to trigger the investigative obligations, the real issue of substance is whether, as Mr Eadie puts it, that obligation is satisfied by a combination of the PSU report, the claim in civil proceedings which the claimants and others have started, and, if the availability of those proceedings alone are not sufficient, a reference to the Prisons and Probation Ombudsman.”

“This in my view is plainly sufficient to encompass an investigation concerning the necessity and appropriateness of the conduct of the intervention on 17th June 2009, including the treatment of the children.”

“Since, as I have said, in my view the Ombudsman's terms of reference are sufficient to enable him to investigate the intervention on 17th June 2009 and its immediately surrounding facts, they are sufficient for an investigation into the extent to which proper protection was provided for the children during and in the aftermath of the intervention, which is the heart of the second claimant's arguable Article 3 claim. The Ombudsman's jurisdiction could also extend to some other matters not within the ambit of an arguable Article 3 claim but that is not a matter for present consideration.”

“In the result therefore the only arguable impediment to the otherwise compliant Ombudsman's investigation which the claimants themselves initiated is the current existence of the civil claims which the claimants have themselves initiated.”

“The notable feature of this case is that the families have actually started their civil litigation in which they actually claimed damages for violation of their Article 3 rights. It seems to me that the resolution of these claims will require the court to determine the very matters which a legitimate Article 3 investigation would need to look at. In the case of the present second claimant, for instance, the court will need to determine whether her psychological trauma, assuming that is established, was the result of an unjustified inadequately planned and executed intervention, which did not adequately take care of the second claimant's welfare and needs. Her case will not stand alone because other claimants have their claims. The court will not be without factual material because of the report and efforts of the PSU. The evidential position is unlikely to be much different from that before an Ombudsman or other investigator. There should be little difficulty in identifying individual officers who may be culpable because of their preserved statements and availability of the video tend CCTV material. Those who participated in the planning are all known and recorded. In short, I find it difficult to see how the necessary scope of the civil proceedings would differ from the legitimate scope of an Ombudsman's or other investigator's investigation. I do not see that there are systemic questions beyond an analysis of the system which was actually used in this intervention.”

“60 . . . I conclude that in the present case the availability of civil proceedings which the claimants have started and are conducting, in the light of the antecedent PSU investigation, fulfils the State's Article 3 investigative obligation and that there is no good reason for the court to require the Secretary of State to put in place a different independent investigation. 61. Whether in the light of this, the claimants choose to enable themselves to proceed before the Ombudsman by discontinuing the present proceedings, or whether the Secretary of State chooses to enable the Ombudsman to proceed notwithstanding civil proceedings are matters for the parties.”

“. . . the Secretary of State was not, in my judgment, obliged to institute a snap independent investigation in the summer of 2009.”

“To the extent that the applicant also alleges that civil proceedings are per se an ineffective way of challenging the adequacy of the training of and instructions given to soldiers, the Court would note that civil proceedings are a standard method of challenging negligent conduct and practices of official bodies.”