AB, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin)

[2013] EWHC 3453 (Admin)Case No CO/11191/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/11/2013
Before
MR JUSTICE MOSTYN
Between
THE QUEENClaimanton the application ofClaimantABClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Martin Westgate QC and Bojana Asanovic (instructed by Wilsons) for ClaimantBen Collins (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 30 October – 1 November 2013
Judgment
[1]At the start of his oral submissions Mr Westgate QC, who represents the claimant, reminded me that on 16 December 2011 this court had made what he described as a "wide ranging reporting restriction order". That order had, as reporting restriction orders go, unusual aspects. It provided that this judgment was to be the subject of wholesale anonymisation preventing identification not only of the claimant but also of his expert witness, as well as of the country to which the claimant was deported, any holders of public office there, and any political parties there (in particular the opposition organisation of which the claimant says he is a member). Further, there was an order made preventing any skeleton arguments being made available to anybody other than a party to the proceedings.[2]Naturally, that order was subject to any further order to be made by the court; no one has suggested that I cannot review it. The puzzling aspect of that order is that while it seeks completely to disembody the terms of my judgment it did not prevent, whether directly, or in my opinion by implication, anybody from coming into court, whether a journalist or a member of the public, and reporting everything that was said during the hearing. Further, any reporting restriction order by definition involves an encroachment on the freedom of expression of any journalist who wants to report the matter fully. In such circumstances section 12 of the Human Rights Act 1998 directly applies. This provides that a reporting restriction order should not be made unless the applicant has taken all practicable steps to notify "the respondent", or that there are compelling reasons why the respondent should not be notified. For these purposes the "respondent" is any person (generally speaking a journalist) who wants to report the case fully. The section goes on to require that the court must have "particular regard" to the importance of the right to freedom of expression.[3]It is accepted that in this case no attempt was made to notify the press of the intention to seek the reporting restriction order here. I suppose that it might be argued that section 12 did not apply here because in fact no order was made preventing the reporting of the case should the press in fact turn up at the hearing.[4]In circumstances where no members of the press or members of the public were in fact present both parties were content to proceed with the existing order in place unmodified. Of course, where both parties agree that there should be reporting restrictions then the court should be especially vigilant: see Spencer v Spencer [2009] EWHC 1529 (Fam) [2009] 2 FLR 1416 at para 44 where Munby J stated:
“The fact that both parties join in making the application is not, of course, any reason why the application should succeed. If anything, quite the contrary – see the observation of Sir Christopher Staughton in Ex p P [1998] Court of Appeal (Civil Division) Transcript No 431 of 1998, quoted with approval by Lord Woolf MR in R v Legal Aid Board ex p Kaim Todner [1999] QB 966 at page 977: "When both sides agreed that information should be kept from the public that was when the court had to be most vigilant."”
[5]I confess to being distinctly uneasy at the course proposed. In the circumstances I am reluctantly prepared to go along with the previous anonymisation order. Therefore I will not refer to the claimant or to his non-medical experts by name, and I will ensure that I do not name anybody else which would enable identification of the claimant or where he is. Following the rules of the previous order I will refer to the country to which he has been deported as Country A and I will refer to the political opposition organisation of which he says he is a member as Organisation 1 (or just “the organisation”). However I wish to make it abundantly clear that if on reading this judgment the press wishes to apply for it to be de-anonymised then I will hear such an application, if necessary on short notice, at which the reporting restrictions will have to be justified anew and from first principles.[6]This is my judgment on the action by the claimant whereby he seeks an order that the Secretary of State do permit him to return to this country and for damages also. The claim was originally formulated as consequential relief sought in proceedings for judicial review issued on 26 October 2010 against a decision of the Secretary of State also made on 26 October 2010 to refuse to treat a series of representations made by the claimant as a fresh claim for asylum pursuant to paragraph 353 of the Immigration Rules. The claimant's removal to country A had been set for the following day, 27 October 2010. Cranston J refused an application for interim relief preventing his removal and he was duly removed, arriving in the capital of Country A in the early hours of the following morning, 28 October 2010.[7]On 20 July 2011 permission to apply for judicial review was granted. On 24 February 2012 Sales J gave directions which included a provision that the main judicial review challenge to the Secretary of State’s decision should be heard as a preliminary matter. That was determined by His Honour Judge Sycamore on 15 November 2012; he dismissed that claim. In his consequential rulings he refused an application by the claimant that the Secretary of State should allow him to attend this trial of the claim for further relief in person. That claim for further relief has been heard by me over three days from 30 October to 1 November 2013. The claimant has participated in the proceedings by video link from a United Nations building in the capital of Country A.[8]The claimant's case is that the Secretary of State by her servants or agents caused confidential documents to be placed in his baggage prior to his removal. These confidential documents related to his failed asylum claim and to his participation in the activities of Organisation 1. These confidential documents came to the attention of government agents of Country A on his arrival at the airport of the capital. He was detained, taken to a distant place, and brutally tortured. The following day, 29 October 2010, by virtue of a bribe paid by his aunt to a colonel in the army, he was released since when he has been in hiding in Country A (although he has not been forced so deep underground that he has not been able to arrange through the British Embassy attendance at the United Nations building in order to participate in these proceedings by video link).[9]The claimant formulates the legal basis for his claim in the following way. He complains that the Secretary of State: i) acted in breach of her public law duty not to place the claimant at real risk of being tortured; ii) acted in breach of article 3 of the European Convention On Human Rights by placing the claimant at real risk of being tortured; iii) acted in breach of her duty of confidentiality to the claimant by causing or permitting the disclosure of confidential information to the authorities in Country A; iv) unlawfully interfered with the claimant's rights under article 8 of the European Convention On Human Rights and article 7 of the Charter of Fundamental Rights of the European Union by causing private information to be disclosed to the authorities in Country A; and v) failed to protect the claimant's personal data in breach of article 8 of the Charter of Fundamental Rights of the European Union.[10]It can be seen that the legal basis of the claimant's claim rests in part on alleged violations of the Charter of Fundamental Rights of the European Union. When I read this in the skeleton argument on his behalf I was surprised, to say the least, as I was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law.[11]The seventh protocol to the Lisbon Treaty provides as follows: WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union; WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself; WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article; WHEREAS the Charter contains both rights and principles; WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character; WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles; RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally; NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter; DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom; REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter; REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States; REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union: Article 1 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law. Article 2 To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom. Article 1

Article 2

[12]Although the language of this protocol reveals a certain amount of political haggling, to my mind it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts. The assertion in the sixth recital of the protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950.[13]However, my view that the effect of the seventh protocol is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union in Luxembourg. In Secretary of State for the Home Department v ME and others (21 December 2011) it was held in paragraph 120 that: "Article 1(1) of [the seventh] protocol explains article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligations to comply with the provisions of the Charter or to prevent a court of one of those member states from ensuring compliance with those provisions".[14]The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.[15]This may be illustrated by the claim in this very case. As I have explained above the claimant asserts that his right to privacy under article 8 of the European Convention on Human Rights has been violated. Article 8(1) provides "everyone has the right to respect for his private and family life, his home and his correspondence". But the claimant also says that his right to privacy under article 7 of the Charter of Fundamental Rights of the European Union has been violated. This provides “everyone has the right to respect for his or her private and family life, home and communications”. Apart from expanding the concept of correspondence into communications it can be seen that this is exactly the same. So it can be seen that even if the Human Rights Act were to be repealed, with the result that article 8 of the European Convention on Human Rights was no longer directly incorporated into domestic law, an identical right would continue to exist under the Charter of Fundamental Rights of the European Union, and this right is, according to the Court in Luxembourg, enforceable domestically.[16]Further, as I have explained above the claimant here asserts a violation of article 8 of the Charter of Fundamental Rights of the European Union. This provides: Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority This right to protection of personal data is not part of the European Convention on Human Rights, and has therefore not been incorporated into our domestic law by the Human Rights Act. But by virtue of the decision of the court in Luxembourg, and notwithstanding the terms of the opt-out, the claimant is entitled, as Mr Westgate QC correctly says, surprising though it may seem, to assert a violation of it in these domestic proceedings before me.

Protection of personal data

[17]I now revert to the facts of this case. The history was set out in the judgment of His Honour Judge Sycamore (R (on the application of AB) v Secretary of State for the Home Department [2012] EWHC 3215 (Admin)). He stated:
“1. The claimant is a national of country A who arrived in the United Kingdom on 6 August 2005. His claim for asylum, made on the day of his arrival, was rejected by the defendant on 8 September 2005. His appeal against that refusal was dismissed and was finally determined on a second stage reconsideration appeal in May 2007 by an Immigration Judge. The Judge produced a lengthy and detailed determination and reasons. He found the claimant not to be credible and made a number of findings relevant to the claimant's credibility including the following: i. The "appellant's claim to be in need of international protection, even to the lower standard of proof is not credible …….." ii. The claimant's claim that soldiers in country A attended a hotel to arrest him and, when they could not arrested his sister instead was "….. an embellishment to assist his claim to be in need of international protection." iii. "…. the giving of false information and the production of false documents seriously undermined (the claimant's) credibility." iv. Inconsistent and evasive evidence as to how the claimant obtained a passport undermined his credibility. 2. Permission to appeal the decision of May 2007 was refused in July 2007. The claimant then failed to comply with his bail conditions. His details were circulated on the Police National Computer as an absconder. He was not encountered again until his arrest on the 21 January 2010 when he was found to be working in a factory under a false identity.”
[18]I have read the judgment of Immigration Judge Irvine, and I agree with this assessment of it by Judge Sycamore. What is particularly relevant for my purposes was the finding that the claimant had used false documents to bolster his asylum claim. Further, when he was discovered after having disappeared for the better part of 2½ years, he was again using false documents. What this demonstrates to me is not only that the claimant is no naïf when it comes to documentation but that he has no scruples about manufacturing and advancing false ones.[19]On 29 January 2010 the claimant was convicted for possession of false instruments and sentenced to 6 months imprisonment. On his release from prison on 29 April 2010 he was transferred to an Immigration Removal Centre. It therefore follows that from the time that he was arrested on 21 January 2010 he was in continuous detention.[20]I have mentioned above the claimant's alleged participation in the activities of Organisation 1. This was founded in June 2005 by the “formerly all-powerful security adviser [to the former president of Country A]” (as the claimant's expert put it in his report). The regime of the former president had been overthrown by the current incumbents in 1997. The organisation, according to the expert’s report is largely operational as a pressure group in Europe, but is still regarded as dangerous and subversive and is closely monitored by government agents and spies.[21]Within the agreed bundle are three documents from Organisation 1: i) A copy of a membership card dated 11 February 2008 issued to the claimant in London. The card has spaces for signature by both the member and the president. The card here was signed by the president of the organisation, but curiously not by the claimant himself. ii) A letter signed on behalf of the president of the organisation dated 19 October 2010 which states that the claimant "decided to join the platform in September 2007 and then became an active member since 11 February 2008". It goes on to state that "[the claimant] being a member of [Organisation 1] the resistant (sic) movement which actively opposes the current government he is reasonably very likely exposed to suffer persecution if he was sent back to [Country A]". iii) A letter signed on behalf of the president of the organisation dated 25 October 2010 stating that the claimant was enrolled as a member of the organisation on 11 February 2008 and stating further "we know of several of our activists who have been sent back to [Country A] and who have disappeared, or been tortured or killed. It is for this reason that we believe [the claimant] may face torture and probably killing (sic) if he was sent back to [Country A]". This document, unlike the other two, bears a fax header imprint showing that it was faxed on the same day, 25 October 2010, from a place in Seven Sisters to the claimant's solicitors Wilsons.[22]Although the claimant alleges that he was a member of the organisation, carrying with it the risks referred to above, he did not mention this to the authorities here following his detention in January 2010. Instead he instructed his solicitors to make further representations on 21 July 2010 which enclosed documents which the Secretary of State found to be forged when rejecting those representations on 23 July 2010. Those further representations were made in the context of removal directions set for 24 July 2010.[23]These forged documents were(1) three summonses,(2) a wanted persons notice and(3) an order to attend at a police station purportedly addressed to the claimant by the Ministry of the Interior and the National Police of Country A. I have seen these forgeries and they are clever forgeries indeed, especially when one considers that they must have been commissioned while the claimant was in detention. It is highly noteworthy that even at this late stage the claimant considered that his attempts to stay in this country were better served by advancing these forged documents rather than by mentioning his membership of the organisation with all the attendant risks.[24]The removal on the following day was frustrated by the claimant becoming disruptive at the airport. On that day the claimant made representations in writing directly; again no mention was made of his membership of the organisation. The Secretary of State then set 4 August 2010 for the claimant's removal. On 3 August 2010 the claimant’s then solicitors, Knights, made fresh representations for a human rights claim on the grounds of the claimant’s family ties to his brother and partner. Again, it is striking that even at this late stage the claimant made no mention of his membership of the organisation. Those representations were rejected by the Secretary of State who decided that they did not constitute a human rights claim. The removal the following day was again frustrated by the claimant’s disruptive behaviour at the airport. The Secretary of State then made on 8 August 2010 yet further directions for removal on 13 August 2010.[25]On 10 August 2010 Knights solicitors made further representations for a fresh asylum and human rights claim alleging risks to former asylum seekers returned to Country A. But they made no mention of his membership of the organisation. If he was in fact then a member of the organisation this failure to mention it is bizarre and inexplicable. The claimant now says that he told Knights of this but that they failed to act on it. On 12 August 2010 the claimant made an application for permission to apply for judicial review against the removal decision of 8 August 2010; in the light of this the removal plan for 13 August 2010 was cancelled. On 2 September 2010 the Secretary of State rejected the representations made on 10 August 2010 and decided that they did not constitute a valid fresh asylum and human rights claim. On 14 September 2010 Nicol J rejected the application for permission as being totally without merit. Again it is extraordinary that in those judicial review proceedings the claimant did not once mention his membership of the organisation.[26]On 12 October 2010 the claimant instructed his current solicitors, Wilsons. The following day they wrote a letter to him a copy of which is in my papers. That letter was sent to him at the Immigration Removal Centre at Brook House. It would have been kept within his paperwork in his room there. That letter refers to the claimant's membership of the organisation. So far as I can judge this is the very first reference anywhere to his membership of the organisation.[27]I have mentioned above that on 19 and 25 October 2010 the president of the organisation wrote the letters "to whom it may concern". Meantime on 21 October 2010 the Secretary of State set directions for the claimant's removal on 27 October 2010. Wilson's solicitors on behalf of the claimant prepared fresh representations based on the claimant's membership of the organisation and faxed these to the Secretary of State on the evening of the 25 October 2010. In those submissions the claimant asserted that he had told his previous solicitors Knights about his membership of the organisation but that they had not included this in the prior representations, and he had not seen these in draft before they were submitted. If this were true it would be the easiest thing to produce the relevant attendance note from Knights’ file recording the claimant’s instructions. But no such attendance note has been produced. With the representations Wilsons solicitors included an expert report which opined that the organisation documentation referred to above was "likely to be genuine" and that the claimant "would be at serious risk on return to [country A] because of his profile as an active member of [ the organisation] and because of the tougher attitude of the government towards political opposition from within and outside the country".[28]Those representations were rejected by the Secretary of State the following day in a fully reasoned letter. She was unimpressed by the failure of the claimant to explain to his expert that he had a lamentable history of forging documents. Even if she were to accept that the documents were genuine there was nothing in the expert's report suggesting that the claimant had a high profile in the organisation and that his activities would come to the attention of the authorities upon his return.[29]I have explained above how on that same day the claimant applied for permission to seek a judicial review and how his application for an interim order preventing removal was refused by Cranston J.[30]The claimant states that within his personal possession in his room at Brook House was a yellow folder and two or three plastic folders in which he kept his private paperwork. His room-mate confirms that he kept paperwork in his room in such a manner. The claimant has not been consistent about what the paperwork comprised. In his first witness statement he stated that it included his organisation membership card and the letter from the organisation saying he was active in recruitment. In his second witness statement he stated that he had documents relating to his earlier asylum and human rights claims, correspondence from the police and letters from his solicitors. He stated he had copies of letters from the organisation but did not mention his membership card.[31]According to the claimant at about 19:00 on the evening of 26 October 2010 he was told by an officer at Brook House to pack all his things into a bag which he was given. He did not do so. At about 21:00 a supervisor came to his room and asked if he was ready. The claimant says that he replied that he was not going to be ready as he did not want to be sent back to Country A as he feared persecution there. Of course, the claimant had already frustrated at least two removals by disruption and so one must readily apprehend that he was setting in train a similar pattern of events. A little later the supervisor returned with three other officers; they left and then returned with a number of G4S officers some of whom were wearing helmets. This party handcuffed the claimant and removed him to the segregation room. I have seen a photograph of him in transit to the segregation room and it is clear that he was wearing a white T-shirt.[32]The claimant had not packed up his belongings and so after his removal a team was sent to the room to do that. This room clearance team comprised Tamara Burns, Marilyn Bennett and Matthew Newman. The room clearance was completed at 23:15 and the certificate was prepared and signed by Ms Burns. The certificate clearly shows that "various paperwork" was packed up. I will explain below that the certificate was later corruptly redacted in order to eradicate the reference to "various paperwork". The original clean certificate was only produced by the Secretary of State following a request made by the claimant’s solicitors after the doctored certificate has been produced in evidence as exhibits to the witness statements of Tamara Burns, Marilyn Bennett and Matthew Newman.[33]At 03:55 the following day 27 October 2010 the G4S escort team took custody of the claimant at the segregation room. I have seen the detainee custody record. In the instructions printed on this document the need for recording in full detail every possible significant event is emphasised, as the document will be used in a court of law should there be any allegations made against individual officers. From this document one can follow very clearly the sequence of events until the arrival in the capital of Country A.[34]The escort team comprised Keith Barrow, Owen Gibbs, and Gary Costin. In addition, Elaine Williams was the record-keeper but she in fact had little to do with the claimant. The detainee custody record has the handwriting of all of these four people on it. At the top of the record Gary Costin has recorded that the claimant was wearing a dark striped T-shirt – it therefore follows that at some point after his arrival in the segregation room he was able to access his luggage to change his shirt.[35]The claimant was handcuffed and placed in a van with his luggage for the journey from Croydon to Luton airport.[36]In compliance with the instruction for a full record a number of banal things are written in the detainee custody record. For example at 04:20 Keith Barrow recalls that the claimant was worried about his DVD player – this led to several phone calls being made to Brook House. At 08:40 they cleared security at Luton and boarded the flight to Brussels. There they changed aeroplanes departing for the capital of Country A at 11:45. An example of the sort of mundane entry made in the detainee custody record is that of Owen Gibbs at 21:00 where he wrote "food and drink given throughout flight and toilet used as and when requested. [The claimant] is calm and pleasant, not happy about returning but understands he has no choice". The detainee custody record states that before takeoff of the second flight the claimant made two telephone calls on a cell-phone provided by the escort officers at 11:15 and 11:20.[37]There is no reference at all in the detainee custody record to the claimant asking whether his documents were placed in his luggage. I was told by each member of the escort team that deportees are often anxious about documentation being in their luggage and make reference to this; when this happens a record is most certainly made. They were emphatic that no such request or reference was made in this case. Yet the claimant states that he asked the escort officers to remove his documents from his bag twice in the segregation room; once in the van; once on the first flight; and on numerous occasions on the second flight. I will have to decide who is telling the truth here. Either the claimant is, or all three escort officers are, telling me a pack of lies.[38]On arrival in the capital the claimant was offered his medical records which had been kept separately by a medical officer on board; he declined these and they were left on his seat. He was also given €50 for onward travel.[39]The claimant’s aunt has made a witness statement. She was not made available for cross-examination over the video. She explains how the claimant warned her on 27 October that he was being deported to the capital of Country A. It is a reasonable assumption that this was a result of one of the telephone calls made by him from the second aeroplane while it was awaiting takeoff. In her statement she said this:
“ I had to do something to prevent [the claimant] being checked at airport control for fear that he might be identified and arrested following his conflict with the authorities before he fled his country in 2005. Straight away I hired an influential colonel in the Armed Forces (who prefers to remain anonymous) to ensure his safety on arrival at the airport. The colonel was agreeable to doing this service to me as I offered him the chance to be spared payment of the sum of $2,000 that he owed me in which he was already late in paying. Unfortunately, [the claimant] was arrested all the same”
[40]From this point in the narrative onwards I am dependant to a very great extent on the claimant’s evidence. The claimant states that he was interviewed for a short while in a room at the airport by immigration agents. At some point there was a power cut. In his first witness statement the claimant explained that the colonel later told him, after he had been released from the place of torture, that the Secret Service had been waiting for him at the airport and they themselves cut the electricity supply so they could take him out without anybody seeing.[41]According to the claimant he was then taken out and placed in a dark jeep. He was made to cover his eyes with a black bandana and his hands were tied with electrical cable. He was driven for about an hour to a place which he later recognised in the light of day as a garage. There he saw what he believed to be dried blood on the floor. He could hear someone being whipped and crying in pain in an adjoining room. When he asked for a drink his captors tried to drown him in a bucket of water. He was not given any food until nightfall. He was then interrogated about events in 2002 and specifically about the activities of his uncle and the events in the hotel about which he had given evidence in the immigration proceedings in 2007. One of the men then produced from his bag documents which the claimant recognised as his paperwork from Brook House including his organisation membership card and a letter from the president of the organisation. They then extensively questioned him about his activities with, and the plans of, the organisation.[42]The claimant then describes the torture meted out to him in his first statement as follows:
“They tied my hands to a metal table with electricity cables. They then hit me on the back with a hot metal bar. The things they hit me with had a handle, and then some chain connecting the handle to a metal bar that was about 10 cm long. In my handwritten account I said it was string that connected the handle to the bar, because I could not think of the word for chain at the time. It was a chain, not string. It looked like something home-made. There was a thing with a gas flame in the room – I don't know if it was there before or if they brought it in. They heated a metal bar on the gas flame so it was very hot when they hit me with it. They beat me with this metal bar until I could not move because the pain was so bad. Then they left me. They didn't ask me any questions when they were beating me. They were talking in [the local language] though and just saying things like "fuck you" ”
[43]In his second statement the claimant explained that in addition to all this he was raped by his assailants. He explained that he had not mentioned this in his first statement because he was so humiliated by this. He also stated that he had made a drawing of how he was tied to a metal table when he was tortured and raped. The image that he exhibited to his statement was obviously not a hand made drawing but it is obviously a skilfully created digital image. The image shows a person tied face down with belts both at hands and feet. It can be seen that there are significant discrepancies between the accounts in the first and second statements.[44]The following morning, 29 October 2010, the claimant was released. He was put in the boot of a car and driven for about 20 minutes before he was pulled out and put in another car with two men inside. One of those men was the colonel, and it was during the journey in the second car that the colonel told him how the Secret Service had been waiting for the claimant at the airport. The colonel delivered the claimant to a Catholic church. That evening the claimant was moved to a Protestant church where he stayed for some time and where photographs of his injuries were taken.[45]In her statement the claimant's aunt explained that she paid the colonel $7,000 to procure the claimant's release.[46]In his first witness statement the claimant stated that two sets of photographs of the injuries to his back were taken, the first on 2 November 2010 and the second on 5 November 2010. The first set was numbered A1 to A10, and the second set B1 to B5. The claimant's solicitor has made a witness statement in which she explained that she received the first set by e-mail (not the claimant's e-mail address) on 19 November 2010 and the second set by e-mail from the claimant's e-mail address on 20 November 2011 (sic, but I have no doubt that she meant 2010).[47]The photographs showed many unpleasant and no doubt painful wounds on the claimant’s back. In all there appear to be 16 separate wounds or abrasions.[48]At first glance the first set of photographs do all appear to be taken on the same occasion in the same place but on careful examination this is shown not to be so. Photographs A1 and A3 clearly shows the claimant wearing an earring in his left ear, and in the latter there is visible resting on his back the hand of a third party the nail polish of which is pink. The lady’s hand with pink nail polish is also visible in photographs A1 and A2.[49]But in photographs A8, A9 and A10 the earring has gone. And in photographs A5, A7 and A9 the lady with him has brown nail polish.[50]Plainly the first set of photographs was not taken on the same occasion. I was given no explanation for this important discrepancy in the claimant's evidence.[51]Given that these were digital photographs I asked that the embedded dates should be established. Research has revealed that the date for each of the photographs, both the A and B sequences, is 27 May 2009 which suggests that the date function on the camera was not working. So nothing turns on that.[52]In support of his claim the claimant produced a report from Mr Andrew Mason, a specialist in accident and emergency medicine. During his clinical career Mr Mason specialised in A and E work but for some years now he has not practised clinically but has devoted himself to medico-legal work writing reports often in asylum cases for claimants. In paragraph 2 of his report he explained that he had been provided with 15 digital photographs, which he lists as A1 – 10 and B1 – 5. Yet in paragraph 11 of his report he refers to "the five photographs provided to me". When asked by me to explain this strange discrepancy he explained that the reference to five photographs derived from an earlier draft of his report when he had only five photographs available to him. He was not able to tell me which were the five available photographs when he first drafted his report, and by reference to which he had reached his conclusions, which he did not alter. In paragraph 11 he stated his conclusions as follows:
“it is my opinion that the appearance of the claimant’s back as illustrated in the five photographs provided to me is diagnostic of burns deliberately inflicted by being beaten with a hot object of a type such as described by the claimant. The burns are recent and the photographs in my opinion would have been taken within 2 to 3 days of the injuries being inflicted. The burns are fresh and have not healed or had time to form scars”
[53]In his oral evidence Mr Mason accepted in answer to questions from me that he could not possibly “diagnose” a beating with a hot object from these photographs. Rather, the furthest he properly could go would be to say that the photographs "don't tell us any more than that they are burns with a hard hot object". It was also pointed out to him that according to the claimant the first set of photographs was taken on 2 November 2010, i.e. at least four days after the injuries were caused, and the second set on 5 November 2010 i.e. at least a week after the injuries were caused. He was asked whether this chronology caused him to revise his opinion that the photographs showed fresh burns caused 2 to 3 days earlier. He stated that he did not revise his opinion. I was surprised by this.[54]The Secretary of State required the claimant to be medically examined by a dermatologist in the capital. He gave evidence in French over the video. The combination of video transmission and translation made his evidence slightly difficult to follow. His opinion was that the injuries were not all caused on the same occasion because the healing of them over the three-year period had not been at the same rate. The regular placement of the wounds on the back made him sceptical of the claimant’s case that these were the result of a violent beating. Further, he was of the view that the injuries could equally have been caused by a caustic product as by a hard object. I have to say that I was not greatly assisted by this evidence.[55]As I have stated, the claimant's case is that since these events he has been effectively in hiding. However it is more than merely surprising that he has with ease been able to communicate via e-mail with his solicitors and directly with the British Embassy to enable his participation by video from the United Nations building. This would suggest that in fact the agents of the regime have not been interested in him since these events, if they ever truly were.[56]In early November 2011 Marilyn Bennett, Matthew Newman and Tamara Burns all made witness statements in identical terms on behalf of the Secretary of State. Marilyn Bennett could not be found to give oral testimony. Matthew Newman and Tamara Burns gave oral evidence on oath and were cross-examined. In their witness statements they each stated:
“I do not recall the particular details of this room clearance; however I can confirm that when a room clearance takes place, every item removed from the room and placed into a bag is recorded on the relevant room clearance certificate. If any documentation was removed from the claimant's room it would have been clearly referred to on the attached certificate. Having looked at the room clearance certificate I am confident that no documentation would have been removed from the claimant’s room.”
[57]As I have mentioned above the certificate exhibited to each of these statements had been redacted. It is obvious that a semi-translucent piece of paper was placed over part of it when copies were made to obliterate the reference to “various paperwork” (as well as some other things of no consequence). I have the original of Marilyn Bennett's statement (but not of the other two which appear to have gone astray) and it is obvious that the corrupt redaction has been crudely done because not only are the printed lines on the original pro forma certificate missing but you can also faintly see the writing that the redaction was designed to obscure.[58]I have seen attendance notes prepared by the caseworker at the Treasury Solicitor dated 26 October 2011 where she spoke to each of these officers and asked them to make statements. Each of them explained that they had no recollection of the clearance in question. In the attendance note on Ms Burns the caseworker explained that she had the room clearance certificate. The caseworker will know who provided it to her. I did not press Mr Collins to reveal that information.[59]I was also given a copy of a letter written to Ms Burns and Mr Newman by the caseworker at the Treasury Solicitor dated 4 November 2011 enclosing the engrossed drafts of the statements for their signature.[60]Before giving evidence Ms Burns and Mr Newman had been warned that they did not have to say anything that might incriminate them.[61]In her oral evidence Ms Burns stated that she was just given a copy of the statement to sign while at work and nothing was said at the time. I regret that I cannot accept this evidence. The material from the Treasury Solicitor shows clearly that there was a conversation with the caseworker and that a letter was written to her enclosing the draft statement. Mr Newman vaguely remembered speaking to someone about his statement that he could not remember who or how. Neither of these witnesses noticed anything untoward about the copy certificate that they were each exhibiting, even though, as I have explained, the redaction was crude and obvious. I regret to have to find, but I must, that both of these witnesses were well aware that the certificate had been altered by somebody who felt that it was helpful to this defence to obliterate a reference to “various paperwork”. I am doubtful whether these witnesses were actively complicit in what was an act of forgery but I am convinced that they knew more than they were letting on to me. I will state my conclusions in relation to this shameful episode later.[62]Each of Ms Burns and Mr Newman explained to me that their training dictated, as I would expect, that when clearing paperwork they would not read it but would merely flick through it to see if there were any forbidden items within it such as razor blades. Manifestly it would be entirely wrong, and to my mind inconceivable, that officials at the immigration detention centre would be either expected or allowed to read in any detail at all private and confidential correspondence which would, in the nature of things, likely include privileged material. The privileged material might well, for example, include advices from solicitors and counsel about suing the Secretary of State for damages. Is it remotely conceivable that officials at the detention centre should either be allowed or expected to read such correspondence? I think not.[63]I now state my conclusions on the evidence. The claimant is a highly intelligent, manipulative, unscrupulous and deceitful person. The history of his dishonesty since his arrival in this country in 2005 until his deportation in 2010 speaks for itself. The fact that he could procure the manufacture of such plausible fake documents as those purportedly emanating from the Ministry of Interior and the National Police speaks volumes about his deceitful skills. On the balance of probabilities I consider that the documents emanating from the organisation are also fake. The absence of the claimant’s signature on the membership card is striking. It was also notable that his knowledge of the organisation was decidedly limited.[64]I do not believe that the documents from the organisation were ever sent to the claimant at Brook House. I am prepared to accept that the letter from Wilson's dated 13 October 2010 was within his paperwork there. However I am convinced that the claimant, when he realised that he was at the end of the line, would not have left it within his files of personal correspondence when he knew that if he did not pack his belongings they would be packed for him. Rather, I am convinced that he would have destroyed it, or put it in the bin in his room. I reject the claimant’s evidence that he repeatedly asked the escort team to reassure him that the documents had been removed from his luggage. I accept the evidence of the escort team that this request was never once made. This finding of blatant lies by the claimant is very relevant to my assessment of his evidence about what happened shortly afterwards following his arrival in the capital. I am not satisfied that any dangerous or compromising documents of the kind alleged were placed in the claimant’s baggage.[65]My principal factual findings are therefore: i) There was no dangerous or compromising material emanating from or referring to the organisation placed in the claimant’s luggage; and ii) The claimant did not once ask the escort team to remove such material from his luggage.[66]Having considered the matter carefully I do not consider that the claimant has discharged the burden of proof in respect of anything that he says happened to him after his arrival. I am not satisfied that he was detained or tortured. There are, as I have explained, a number of significant discrepancies in the claimant’s story and in relation to the taking of the photographs. These, combined with the claimant’s general overall lack of credibility, lead me to the conclusion that the burden of proof has not been discharged by the claimant. Of course, I do not doubt that the claimant suffered wounds although how they were inflicted and by whom and with what motive I can only speculate. Having found that the claimant has not satisfied the burden of proof in relation to his case about what happened after his arrival in Country A I do not need to go further and to advance any alternative explanations.[67]I have not been assisted by the expert medical evidence adduced on behalf of the claimant which I find to be both parti pris and sloppy, for the reasons I have already indicated. Experts should be very careful not to go beyond the remit of their expertise. If they do it is inevitable that they are regarded as little better than mercenaries on behalf of their clients. In my opinion experts would be well advised to keep in mind the vivid metaphor of Thorpe LJ in Vernon v Bosley (Expert Evidence) [1998] 1 FLR 297 at 302C:
“'The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever-mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.”
[68]It is agreed by both counsel by reference to high authority that the non-derogable duty under article 3 of the European Convention on Human Rights is absolute. It is the cornerstone of the convention. The proscription not only extends to the infliction of torture or inhuman or degrading treatment but also to the knowing exposure of people to “a real risk” (as opposed to “a mere possibility”) of such mistreatment in the place to which they are sent. The authorities make it clear that the knowledge (which is a key requirement) may be actual or constructive. If the Secretary of State knows or ought to know that in a certain place to which she is sending a failed asylum seeker there is a real risk of mistreatment being meted out then she will be in breach of article 3: see, inter alia, Vilvarajah v UK [1992] 14 EHRR 248 at paras 107 – 113. When a court is assessing the probability of the risk in order to determine on which side of the line the case falls I believe it would do well to bear in mind the words of Lady Hale in the very recent case of Re B (a Child) [2013] UKSC 33 at para 188:
“The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nicholls did not contemplate that a relatively small degree of likelihood would be sufficient in all cases. The corollary of "the more serious the harm, the less likely it has to be" is that "the less serious the harm, the more likely it has to be".”
Torture involves very serious harm both physically and psychologically. Therefore only a relatively small degree of likelihood needs to be shown to engage Article 3.[69]On my factual findings the claimant was not exposed to any risk, let alone a real risk, of torture or inhuman or degrading treatment in the circumstances in which he was returned with his personal possessions. In such circumstances it is hardly necessary for me to go further and to express my opinion on the claim to a violation of the right of privacy, or the right to protection of personal data under the European Charter. It is not suggested that the Secretary of State should through her agents have actually read the claimant’s personal correspondence to ensure that there was nothing compromising or dangerous within it before packing it up and putting it in his luggage. Rather, it is argued by Mr Westgate QC that the Secretary of State should have engaged in a conversation with the claimant as to whether the belongings packed up by her agents, where he had refused to do so, might contain compromising or damaging material. I simply cannot accept this argument. It involves an interpretation of the convention which is a world away from the prevention of abuses that the framers of the convention originally had in mind. At the end of the day it must not be forgotten that the core complaint against the Secretary of State is that by her agents she did nothing more than to pack up his personal belongings in circumstances where he had refused to do so.[70]In the light of my findings it is not strictly necessary for me to go further and to make findings as to whether the Secretary of State ought to have known that a dire fate might befall someone who is identified as a member of the organisation at the airport of the capital of Country A. The authorities at Tabs 17 and 34 of the bundle of cases (which I do not specify in order to avoid identification of Country A) show that failed asylum seekers with no political profile are at no risk on their return. There is no court country guidance in relation to the organisation. The principal evidence relied on by the claimant (from Mr E2) suffers not only from being hearsay upon hearsay but also from “he would say that wouldn’t he” problems in that the principal source of the measures taken against, and the perils faced by, members of the organisation is the organisation itself. The report of Ms E4 can fairly be described as highly tendentious (in the true sense of that word). I agree with the submission of Mr Collins that it is far from clear that the organisation has the profile asserted by the claimant. I am not prepared on the evidence before me to fix the Secretary of State with the constructive knowledge that there was a real risk that a member of the organisation identified as such at the airport would suffer torture or inhuman or degrading treatment.[71]The conduct of the Secretary of State's agents in falsifying the room clearance certificate is corrupt and truly shocking. When agents of the state falsify documents it undermines, if not fatally, then certainly very seriously, the trust of the people in the operation of the rule of law. It makes no difference if, as here, the agents are private contractors to whom the Secretary of State has outsourced her powers. Corruption by state officials is insidious and corrosive and it is the duty of the authorities where it is found to root it out ruthlessly. In judicial review proceedings, where the evidence is almost invariably given on paper and not subject to cross examination (unlike this case), it is especially important that deterrent measures are taken where such conduct is exposed.[72]In this case I am satisfied that there is prima facie evidence of the offence of forgery and I direct that a copy of this judgment be sent to the Director of Public Prosecutions along with the relevant documents. Further, to make a false witness statement is a contempt of court. Proceedings for such contempt are a matter for the Attorney General, and I direct that this judgment and the relevant papers be sent to him also.[73]However, my finding as to the turpitude of the agents of the Secretary of State does not affect at all my overall findings as to the lack of credibility of the claimant. Further, the fact that some officials at Brook House have behaved disgracefully does not alter my assessment of the truthfulness of the escort team.[74]For all these reasons the claim is dismissed.

Cited in 1 later judgment