VC, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 273 (Admin)

Case No CO/1968/2015

[2016] EWHC 273 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16 February 2016

Before

HIS HONOUR JUDGE SEYS LLEWELLYN QC

(Sitting as a Deputy Judge of the High Court)

Between

THE QUEEN on the application of ‘VC’ (by his Litigation Friend THE OFFICIAL SOLICITOR)Claimant

SECRETARY OF STATE FORDefendant

THE HOME DEPARTMENTDefendant

Martha Spurrier (instructed by Messrs Bhatt Murphy) for Claimant

Julie Anderson (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 24 November 2015

Judgment

HHJ Seys Llewellyn QC :

[1]On 11 June 2014 the Claimant was detained under Schedule 3 of the Immigration Act 1971 pending deportation. This is a challenge to the lawfulness of his detention and/or of his treatment while in detention. He is a national of Nigeria, now aged 37. He had entered the United Kingdom with his wife and daughter, on 5th March 2004; he was granted residence in April 2005 for a five year period as a dependant of a wife entitled to EEA residence, but his wife left him when, in 2008, he was sectioned under the Mental Health Act 1983 (“MHA 1983”).

[2]Prior to the events giving rise to the present claim he had been admitted to hospital on some ten occasions for treatment under the MHA 1983. The Claimant says that at the time of his initial detention in June 2014 the Defendant was on notice of his mental illness, (see below); but in any event on 30th June 2014, when he had been in detention for 19 days, there was a Rule 35 report by the medical professionals under the Detention Centre Rules 2001 which identified that “Mr [C] has been diagnosed with bipolar affective disorder with psychotic features. He has had multiple hospital admissions under section and a compulsory treatment order in the community (Trial Bundle 1/2/19).

[3]As of 25 March 2015 there was a further Rule 35 report, which referred to a real but gradual deterioration in his mental state (1/2/49). On 27 March a detention officer noted “[He] is currently waiting to be section (sic) under Mental Health section 48, is waiting to be seen by the forensic psychiatrist and then be transferred to a medical bed” (1/2/53). He was seen by a psychiatrist, and he was transferred to psychiatric hospital on 5 May 2015. On 9 September 2015 the Defendant ceased to exercise her power of detention over the Claimant, although he remained and remains in hospital compulsorily under section 3 MHA 1983. I was told that it is likely that he will stay there for many months.

[4]The challenge in this case. There are two strands to the contentions made by the Claimant in this claim, as argued before me: i) a challenge to the lawfulness of his detention on the basis that it was in breach of a) the Defendant’s policy on detaining the mentally ill which, had it been applied lawfully, would have precluded the Claimant’s detention; b) Hardial Singh principle 3 because from 31 October 2014 there was no realistic prospect of the Claimant’s removal within a reasonable timescale; and c) Hardial Singh principle 2 because the Claimant was detained for an unreasonable length of time. ii) a challenge to the treatment of the Claimant in detention on the basis that it was: a) in violation of

Article 3 ECHR

; b) contrary to the Mental Capacity Act 2005 (“MCA 2005”); c) discriminatory, contrary to the Equality Act 2010; and d) procedurally unfair.

[5]There was, in the original grounds of claim, a challenge to the lawfulness of segregation of the Claimant on occasions during his detention but following disclosure this is no longer pursued.

[6]The Defendant’s policy on enforcement of immigration decisions and detention, (Enforcement Instructions and Guidance chapter 55), makes particular provision for the case of foreign national offenders (for brevity, “foreign criminals”). I therefore record briefly here his history.

[7]The Claimant’s criminal history. In the period from October 2007 to May 2014 the Claimant had 16 convictions for 27 criminal offences, the majority relating to possession of drugs and theft.

[8]These included convictions on 7 May 2010 for 2 offences of possessing a controlled drug with intent to supply, for which he was sentenced to 9 months imprisonment, and on 8 August 2013 when he was convicted of 2 offences of possession of a controlled drug with intent to supply and was sentenced to 6 months in prison. I identify these in particular because the Defendant’s policy distinguishes between more and less serious offences, and these are offences which are there defined as included among the more serious offences.

[9]I refer below in more detail to the Defendant’s assessment of the likelihood of re-offending and/or of absconding if released, but it is convenient to note here that in one of the more recent monthly reports, that of 9 June 2015, the officer authorising continued detention described him thus, “[He] is a low level, but a persistent offender amassing 16 convictions arising from 27 offences mainly related to drug use. Against this backdrop it is likely that he would re-offend and in doing so present a risk of harm to the public” (1/2/141).

[10]In passing only, I note that the grounds of claim, as initially pleaded, argue first breach of Hardial Singh principle 3 and then Hardial Singh principle 2, before arguing breach of policy, but in skeleton argument and oral submissions the policy claim is placed first in sequence.

[11]The Defendant’s policy. Her policy, Enforcement Instructions and Guidance, deals with Detention and Temporary Release at Chapter 55. I have read and considered the whole of chapter 55, and the passages to which I was referred in skeleton argument and oral submissions, but I cite the following. “55.1 General. The power to detain must be retained in the interests of maintaining effective immigration control. However there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55.20 chapter 57). Detention is most usually appropriate: to effect removal; initially to establish a person’s identity or claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. – To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy….. 55.1.2 Criminal Case Work Case. Cases concerning foreign national offenders – dealt with by criminal case work – are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release and the special consideration in cases involving children. Thus the starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. However the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the ‘deportation criteria’) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending or the risk of absconding. 55.3A. Decision to detain – criminal case work cases. As has been set out above, public protection is a key consideration underpinning our detention policy. Where a foreign national offender meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release may well be outweighed by the risk to the public of harm from re-offending and or the risk of absconding, evidenced by a past history of lack of respect of the law. However detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate. In assessing what is reasonably necessary and proportionate in any individual case, the case worker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment what is reasonably necessary, the Home Office distinguishes between more and less serious offences. A list of those offences which the Home Office considers to be more serious is set out in the list accessible underlined here. [This list includes possession of drugs with intent to supply, see above]. More serious offences. A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result the high risk of public harm carries particularly substantial weight when assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Case workers must balance against the increased risk, including the particular risk to the public from re-offending and the risk of absconding in the individual case, the types of factors normally considered in non-FNO detention cases, for example, if the detainee is mentally ill…. Imminence. 55.3.2.4 In all cases, case workers should consider on an individual basis whether removal is imminent. If removal is imminent, then detention or continued detention will usually be appropriate. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next 4 weeks. Risk of absconding. 55.3.2.5 If removal is not imminent, the case worker should consider the risk of absconding… Risk of Harm….. 55.3.2.11 Those assessed as low or medium risk should generally be considered for management by rigorous contact management or under the instructions in 55.20.5. Any particular individual factors related to the profile of the offence or the individual concerned must also be taken into consideration and may indicate that maintaining management by rigorous contact management may not be appropriate in an individual case. In cases involving serious offences on the list underlined here [the same list which includes possession with intent to supply, see above] a decision to release is likely to be the proper conclusion only when factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug related and similar offences.”.

[12]All of the above are relevant, not least the presumption in favour of temporary admission or release; among them, the Defendant contends that the likelihood of re-offending or absconding, such as would defeat the purpose of this statutory power, is of conspicuous relevance in this case.

[13]Mental illness: the provisions of the policy. Central to the claim and contentions of the Claimant, are the particular provisions within chapter 55 as to mental illness. “55.8A. Rule 35 – Special Illnesses and Conditions. Rule 35 of the Detention Centre Rules 2001 sets out requirements for health care staff at removal centres in regards to any detained person: whose health is likely to be injuriously affected by continued detention or any conditions of detention; suspected of having suicidal intentions; and for whom there are concerns that they may have been a victim of torture. Health care staff are required to report such cases to the centre manager and these reports are then passed, via Home Office contact management teams in centres, to the office responsible for managing and or reviewing the individual’s detention. The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case”. Upon receipt of a Rule 35 report, case workers must review continued detention in the light of the information in the report (see 55.8 - detention reviews) and respond to the centre, within two weeks of receipt, using the appropriate Rule 35 pro forma.” “55.10 Persons considered unsuitable for detention. Certain persons are considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. .. In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention. The following are considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons: those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act. If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file. (each emphasis supplied). those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.

[14]Thus the first question under the policy is whether there is serious mental illness which “cannot be satisfactorily managed” within detention; if there is, there must be consideration of whether there are very exceptional circumstances such as to justify continued detention.

[15]In R (Das) -v- SSHD CA

[2014] 1WLR 3538

the trial judge had held that to qualify as a “serious mental illness which cannot be satisfactorily managed” within detention, the illness had to be of a level requiring in-patient medical attention or being liable to be sectioned under the MHA 1983, or a mental condition of a character such that there was a real risk that detention could reduce the person to that state.

[16]The Court of Appeal held that that was too narrow a test. Having considered the legislative framework, including the Detention Centre Rules 2001 and prior case authorities, Beatson LJ first warned that the existence of a serious mental illness was not enough to engage Chapter 55.10:

“57. It is clear from [the cited cases] that the diagnosis is not in itself the key to the applicability of the policy, even if the individual has been referred for treatment by specialist secondary services. It is also necessary for the individual concerned to be “suffering” and for the illness to be one which “cannot be satisfactorily managed within detention”

. Accordingly, although (see Sullivan LJ in R(MC(Algeria)) –v- SSHD

[2010] EWCA Civ 347

at 41) the policy is in principle capable of applying to anyone with a “mental disorder” within the definition in the MHA 1983 as amended by the MHA 2007, the mere fact that they are does not suffice. The effects of the illness on the particular individual the effect of detention on him or her, and on the way that person’s illness would be managed if detained must also be considered”. The Secretary of State (by counsel who appears in the present case), disclaimed the narrow test adopted by the trial judge for a serious mental illness ‘which cannot be satisfactorily managed’. As to this requirement Beatson LJ continued, “61 … my starting point is that the authorities in particular Anam’s case

[2009] EWHC 2496

and the LE (Jamaica) case

[2012] EWCA Civ 597

do not support a link to hospitalisation or “sectioning” under the Mental Health Act 1983, even in rough and ready terms…. 62. Secondly, care needs to be taken before using criteria developed for one purpose for a very different purpose. The purposes of and criteria for detention under the Mental Health Act 1983 differs substantially from the purposes of and criteria for immigration detention and for the operation of the policy in the bullet point in paragraph 55.10 of the policy about those with mental illness….. As Miss Rose submitted, the criteria in the 1983 Act seek to identify those who, because of their mental illness, are suitable for detention in a hospital in order to enable treatment to be given for the benefit of the patient, whereas the policy seeks to identify those who, because of their mental illness are not suitable for detention in an Immigration Centre”.

[17]The Claimant contends that in the Claimant’s case the officers of the Defendant did wrongly apply the narrow test which Das authoritatively proclaimed to be wrong. I deal with this further below.

[18]Counsel for the Claimant argues that the evidence of the Claimant’s serious mental illness engaged a public law duty of enquiry into whether it could be satisfactorily managed within detention. I deal with this further below. However counsel accepted that such a duty of enquiry must be triggered by something, but says that the issue of mental illness clearly arose before the Claimant was detained, and the fact of serious mental illness was known to the Defendant before he was detained. It is convenient to deal with the relevant factual matters here.

[19]The minute of decision to detain dated 5 June 2014 recorded, “Subject claims to be bipolar however no evidence has been provided to support this. This condition would be manageable while in detention” (1/2/8).

[20]I am satisfied that consultation of the Defendant’s records would have revealed a history of serious mental illness. Counsel was able to point to the following : i) a letter from his solicitors to the UKBA of 10.2.2012 that he was currently being held in a secure ward of a mental health hospital; ii) a letter from a consultant psychiatrist sent to the UKBA on 6.2.2013 that the Claimant his patient “has a history of severe and enduring mental health problems” (2/3/63); iii) a letter dated 13.11.2013 from Glasgow Social Services to UK Visa and Immigration that he had a “severe and enduring mental illness and is subject to compulsory measures [under] Dr…… a community based Compulsory Treatment Order” (2/3/96); iv) a letter dated 18.3.2014 from his solicitors to UK Visas and Immigration that their client “suffers from mental health issues and we have had great difficulty in contacting him…. We are continuing to liaise with our client and his mental health team”; v) his own written representations that he suffered from hypomanic bipolar 2 disorder and took medication by way of injection, (received by the Defendant on 12.5.2014, see 2/3/134); and vi) the representation by his solicitors, on an appeal form to the FTT, that he suffered from hypo manic bipolar 2 disorder and “requires issues to be discussed slowly, step by step approach” (received 12.5.2014 – 2/3/138 at 141).

[21]Lawfulness of detention by reference to the Defendant’s own policy. The Claimant says that the detention was unlawful in that(i) there was a breach of the public law duty of enquiry into his known illness and whether that serious mental illness could be “satisfactorily managed” within detention within the meaning of chapter 55.10; and/or

(ii) the Defendant failed properly to apply the policy in considering a prospect of release only if his condition deteriorated to the extent that he was hospitalised; and/or

(iii) that the decision to detain was irrational given that which was known or ought to have been known to the Defendant about his mental illness.

[22]Typically, Hardial Singh challenges compel some close attention to factual detail, but such is necessary here in order to consider the ‘policy’ challenge; namely whether under the correct test the Defendant was rationally required to release the Claimant from detention.

[23]Ms Spurrier counsel for the Claimant contends that the Claimant was subject to serious and enduring mental illness, and that it was known (or ought clearly to have been known) to the Defendant that it would be exacerbated by detention, a matter as to which the Defendant made no enquiry on initial detention and as to which the Defendant was alerted by the first Rule 35 report of 30 June 2014) and that detention resulted in a serious deterioration in the Claimant’s mental health such as led to his transfer to psychiatric hospital.

[24]I have referred above to evidence of the Claimant’s mental illness which was available prior to the date of his detention on 11 June 2014.

[25]A Rule 35 report was made on 30 June 2014: “Mr [C] has been diagnosed with bipolar effective disorder with psychotic features. He has had multiple hospital admissions under section and a compulsory treatment order in the community. Mr [C] has little insight into his mental illness and does not therefore comply with medication. Mr [C] is very unstable currently and the stress of detention is impacting negatively on his mental illness. I have significant concerns that should he continue to deteriorate he will be unfit for detention and will pose a risk to himself or others” (1/2/19, emphasis supplied). A letter in reply to the Claimant, sent to his solicitors, stated, “The decision has been taken to maintain your detention. The report is of the opinion that should you continue to deteriorate you will be unfit for detention. This suggests that you are currently fit for detention. The case worker dealing with your case will contact the relevant mental health authorities for further advice on your case. In the meantime your detention will be reviewed on a regular basis and any changes in your condition will be taken into account. Furthermore it is considered that there are very exceptional circumstances to justify maintaining your detention. It is considered that there is an unacceptably high risk of you absconding” (1/2/23). (The sense of “furthermore” is “further or alternatively”). For the Claimant, it is stressed that whilst it is said that the case worker will contact the relevant mental health authorities for further advice on the case, there is no evidence of this having been done. Also, in this Rule 35 report the box is ticked at “this detainee’s health is likely to be injuriously affected by continued detention or any conditions of detention” (1/2/18).

[26]Counsel further contends that there was a series of further records of serious and deteriorating mental condition, which mandated consideration of release from detention and/or were triggers engaging a duty of further enquiry, which was not made.

[27]A snapshot of deterioration. On 30 June 2014 the Rule 35 report expressed ‘significant concerns that should he continue to deteriorate he will be unfit for detention and will pose a risk to himself or others’ (full citation above).

[28]On 10 February 2015 it was noted on his GCID case record sheet (‘General Case Information Database’) that he was subject to “medical single occupancy granted with a review set for 10/03/2015 due to worsening mental health concerns by health care” (2/3/251).

[29]Most pungently, on 20 March 2015 the mental health nurse at Brook House noted his deterioration (3/5/91) and on 23/03/2005 noted “No positive change in…. mental state/health when seen, still non compliant with his prescribed anti-psychotic medications. Continues to display psychotic and manic features. Jumbled thought, pressured speech and erratic behaviour observed, aggressive at times also. At present Mr [C] does not appear to have the capacity that will enable him to promote his mental and physical health, neither does he have the capacity that will illuminate or minimise risk to himself or others. Because Mr [C]’s mental health continues to deteriorate and is now having a negative impact on his active daily living, it is becoming difficult for his needs to be met here at Brook House”. (3/5/88, emphasis supplied).

[30]Detail of his mental condition during detention. Counsel for the Claimant referred to a considerable number of entries in the records which indicated that the Claimant remained seriously mentally ill throughout. i) The Morton Hall IRC medical records covering the period June to October 2014 note on various dates pressured speech, flight of ideas (3/5/22) persecutory thoughts (3/5/28), meaningless speech (3/5/29), elation, hypo mania, psychosis, lack of insight, non compliance with medication (3/5/30) inability to engage rationally or answer questions (3/5/35), poor sleep (3/5/39), failure to understand the implications of taking legal highs (3/5/44) and delusions of grandeur (3/5/49);. ii) In early October 2014 the Claimant was transferred to Haslar IRC “due to his vulnerability” and on the basis of “drugs being supplied to him which he takes, but he does not know what drugs he is actually taking. Just needs a break from his environment” (3/5/53). iii) The Claimant was refused bail on 7 October 2014 on the grounds of his mental illness (1/2/44 although there were being other grounds also for refusal). iv) The Claimant remained non compliant with his medication throughout October (3/5/59, 60, 69). v) The Claimant’s appeal was adjourned on 31 October 2014 because he was non compliant with medication and too mentally unwell to represent himself (2/3/233). vi) [No records relating to the Claimant’s health in November 2014]. vii) In December 2014 the Claimant was moved to Dover IRC where he was again non compliant with his medication and had no insight into his condition (3/5/71). viii) In January 2015 the Claimant was again non compliant with his medication (3/5/107, 111); ix) On 4 February 2015 the Claimant was displaying strange behaviour asking for the telephone number of the Royal Navy and demanding to go to his palace (3/6/24). x) On 6 February 2015 the Claimant was displaying challenging behaviour and refusing to take his medication (3/5/106). xi) On 10 February 2015 detention officers raised concerns about his mental health. He was observed to have stained clothing, manic, rapid and pressured speech and no insight into his condition (3/5/104). He was placed in a single occupancy room because of his worsening mental health (2/3/251). xii) On 15 February 2015 one of the Defendant’s officers recorded, “I’ve had several dealings with [him] over the past 2 weeks and noticed that his mental state seems to be diminishing over time. At 10.50 he made threats of violence to me and other detainees on the wing. His capability for mental reasoning has now got to the point of he doesn’t see reality [sic]. [He] has been acting in very strange ways” (3/6/38). Other officers recorded that the Claimant was behaving erratically and refusing his medication (3/6/25) behaving strangely (3/6/54) and rambling incoherently (3/6/60). xiii) On 22 February 2015 detention officers noted that the Claimant was displaying random outbursts of aggression, incoherent, and refusing his medication on the basis that it was illegal (3/6/75,80). The following day he was recorded as rambling incoherently, unpredictable and unable to understand why he had been removed from association (3/6/81-82). xiv) In February to March 2015 medical records from Brook House IRC record him variously as elated, lacking in insight and not sleeping (3/5/100) inappropriate when answering questions (3/5/99), unpredictable and aggressive (3/5/98) experiencing formal though disorder with tangential speech (3/5/91), very manic and drinking tea with beads in it, irritable and prone to outbursts of shouting (3/5/90), hoarding possessions, having erratic sleep patterns and conducting tangential and pressured speech “in every conversation” with detention and health care staff (3/5/89) drinking dirty water and unable to meet his daily needs (3/5/87), refusing to take his medication (3/5/86), deluded seeing visual hallucinations and messages from angels (3/5/84), unkempt delusional and thought disordered (3/5/82). xv) On 10 March 2015 the Claimant was kept in a single occupancy room because of his worsening mental health (3/5/125). xvi) On 21 March 2015 detention officers were warned by health care to be aware of the Claimant’s presentation (3/5/90). xvii) On 23 March 2015 a detention officer recorded the Claimant was “very confused” and “very out of touch with reality….he seems to have lost contact with reality” (observations 23.03.15). xviii) Also on 23 March 2015, the mental health nurse concluded that the Claimant lacked capacity and needed to be in hospital (3/5/88). xix) On 25 March 2015 the Claimant was recorded as being “very confused” and appearing to have “lost all contact with reality” (3/6/108); xx) On 26 March 2015 the Claimant was observed by detention officers to be “acutely mentally unwell/psychotic and mania” (3/6/111) and attempting to pass on an “irrational message” (3/6/112).

[31]The decisions to detain. The present case concerns(i) whether the Defendant applied her policy correctly in accordance with Das, or a narrower policy to detain the Claimant until and unless he was of a condition to be detained in hospital under the MHA;

(ii) whether she could rationally conclude that his serious mental illness could be ‘satisfactorily managed’ within detention;

(iii) if not, whether she could rationally conclude that very exceptional circumstances existed which justified detention.

[32]The system requires monthly review of whether it is justified to continue to detain. The focus of submissions has been on the decisions to continue detention, after the Rule 35 report of 30 June 2014 and in response to the deterioration of his condition to date or at risk by further detention. As I understand it, the challenge is also to the initial decision to detain, on the basis that there was failure to make proper enquiry as to his mental health.

[33]The Claimant criticises the decision to detain on 5/6/201 since, of his claim to be bipolar, it minutes merely, “However no evidence has been provided to support this”, without any evidence of enquiry for further relevant evidence.

[34]The monthly reviews include standard paragraphs. Under “8. Assessment of risk of absconding” each review of the Claimant’s detention states, “The risk of absconding is considered to be greater than the norm”. Under “9. Assessment of risk of re-offending”, each review of his detention states, “Subject is considered to be a high risk of re-offending”. Under “10. Assessment of risk of harm to the public” each review states, “Subject is considered to pose a high risk of harm to the public”. Under “12.Known or claimed medical conditions (including mental health and/or self-harm issues”, each review states, “The subject has been diagnosed with bi-polar affective disorder with psychotic features”. Under “13. Conditions rendering person suitable for detention only in very exceptional circumstances (see section 55.19 of Enforcement Instructions and Guidance)” in each and every review, the Defendant states, “None – unless his condition deteriorates to the extent he is hospitalised” (emphasis supplied).

[35]The monthly reviews also contain boxes for comments by a reviewing officer, and by the officer who authorises continuing detention. i) In the first detention review the authorising officer states, “the subject is a prolific criminal who has continued to offend despite numerous convictions and threats of deportation from the Home Office. His crimes are of a serious nature, particularly his conviction for possession with intent to supply drugs. He poses a risk to the public and his complete disregard for authority make it unlikely that he would comply with any terms of release” (08/07/14, 1/2/68). ii) On 07/08/2014 the authorising officer states “The subject poses a high risk of both absconding and re-offending. His detention until the appeal on 21st August is necessary to ensure the safety of the public” (1/2/74). iii) On 30/9/2014 the authorising officer states, “The subject is a persistent offender who has blatantly ignored Home Office threats to deport him and continued to commit crime. He has no family ties in the UK and little incentive to comply with any terms of release. Detention maintained” (1/2/80). iv) On 27/10/2014 the authorising officer adopts the reviewing officer’s recommendation, “Subject is a serial offender, who did not mitigate his behaviour when threatened with deportation. Subject is a risk to the public. This risk outweighs the presumption on liberty.” (27/10/14 1/2/86). v) In November 2014, the authorising officer adopts the comments of the reviewing officer starting in identical terms and continues “His flagrant breach of UK laws shows he cannot be relied on to abide by conditions and is thus a greater risk of absconding. Recommendation agreed” (1/2/92). vi) As of 18/12/14 the authorising officer states “The subject poses a high risk of harm, re-offending and of absconding. I have applied a presumption of liberty while considering this case. The subject has a current legal barrier to removal though we have engaged to have all current hearings amalgamated. The hearing has been postponed due to the subject’s own behaviour. I am content that removal can be said to be achievable in a reasonable timescale” (1/2/98, emphasis supplied). vii) On 19/1/15 the authorising officer adopts comments of the reviewing officer in substantially the same terms as earlier reviews. viii) On 3/02/15 the authorising officer states, “The subject is a prolific criminal whose offending has continued despite numerous warnings of deportation. This blatant disregard for the law indicates that he is not likely to comply with any terms of release. He has shown non compliance with the appeal process which has resulted in him prolonging his own detention. I am content that the appeal is being satisfactorily monitored and progressed. Meantime the subjects risk of re-offending or absconding outweigh the presumption on liberty” (1/2/110, emphasis supplied). ix) On 18/3/2015 the authorising officer states, “I have considered the full facts of the case with a presumption on liberty. However [he] presents a high risk of absconding serious harm to the public and is likely to re-offend given his previous history of re-offending. He has a history of criminality involving drugs and shown little regard for authority in the UK. He is currently being non cooperative with the appeals process even though that may be to his benefit. Given his previous criminal history (including committing a crime whilst in detention) and his disregard for the laws of the UK, it appears very unlikely that [he] would comply with any conditions of temporary release. Given the risks posed, including high harm to the public, I agree with the recommendation above and consider continued detention appropriate and lawful” (1/2/116, emphasis supplied). x) It is of some interest that, the last review having been on 18/3/2015, there was further review as early as 27/3/15, in the days following the deterioration in his condition reported in the medical notes, which includes the following officer’s comments “Subject is a habitual offender who is a risk to the public and greater risk of absconding. Subject’s mental health has to be treated in detention. If he is moved to a secure unit after assessment he will be managed effectively. Detention pending this assessment considering the risk and exception (sic) circumstances is appropriate” (1/2/122) xi) As of 10/04/15, 14 days later, but where there had not yet been a move to the psychiatric hospital, there was further review where the authorising officer recorded the following comment “detention remains appropriate and proportionate; the barrier to removal is the outstanding appeal the hearing is set for 21/04/15. I note the risk assessments for Mr [C] and that his mental health is being managed whilst in detention” (1/2/128).

[36]The test for the policy challenge. It is common ground that in a “policy” challenge the test is Wednesbury unreasonableness. See R(O) –v- SSHD

[2015] 1WLR 641

at paragraphs 37-39: albeit the word “satisfactorily” in ‘satisfactorily managed’ requires an objective judgment to be made, the Court should uphold the Secretary of State’s decision unless it is shown that no reasonable decision maker could have done so. I was told that an appeal on the point is to be heard by the Supreme Court in January 2016 but I direct myself in accordance with authority as it currently binds me.

[37]Relevance of absence of witness evidence. The Defendant filed a witness statement from Mr Alistair Albosh a member of the Mentally Disordered Offenders Team (“MDOT”) in respect of the period after the Claimant was compulsorily detained under the MHA, namely between 27 April 2015 and 28 September 2015. The Claimant drew attention to the lack of witness evidence from the Defendant in respect of the period prior to transfer to the psychiatric hospital.

[38]Counsel for the Defendant in reply drew my attention to JS (Sudan) -v- SSHD

[2013] EWCA Civ 1378

, where McFarlane LJ said “I consider that whether or not the burden of proof is strictly engaged on a particular issue is largely dependent upon context…. where however as in the present case, the issue relates to a period of detention, the basic facts relating to the dates upon which an individual was detained and the administrative steps that were undertaken are unlikely to be in issue. The initial burden of proof would be upon the Claimant to establish the fact of detention; thereafter the burden will shift to the Secretary of State to establish lawful authority for detention as a matter of principle. The main focus of the hearing however is likely to be the evaluation of whether or not what had occurred was, in all the circumstances, “reasonable”. In that context consideration of the burden of proof seems to me neither apt nor useful”.

[39]I note that JS (Sudan) was a Hardial Singh claim, but I consider that these observations are no less applicable in a policy challenge subject to a Wednesbury test of unreasonableness. Thus the Defendant has elected not to introduce witness evidence, but it is not a case in which I should draw adverse inference from the fact that the Defendant has not lodged witness evidence. However there is no evidence that the case worker dealing with the case of the Claimant contacted the relevant mental health authorities for further advice as it was said he/she would in the reply of 02 July 2014 to the first Rule 35 report.

[40]The public law duty of enquiry. It is perhaps trite law that whenever a public function is being performed there is an inference, in the absence of express requirement to the contrary, that the function is to be performed fairly; that what fairness requires will vary according to the circumstances; and that in some circumstances there may be a duty to enquire.

[41]As I note above, the Claimant contends that a duty to enquire was engaged here, namely that in order to give effect to her policy, the Defendant is under a duty of enquiry, namely to take reasonable steps to inform herself about a detainee’s mental health so as to be able to make lawful decisions about his ongoing detention. Counsel contends that here there was a series of records of serious and deteriorating mental condition, which mandated consideration of release from detention and/or were triggers engaging a duty of further enquiry, which was not made, and she cites R (Das) –v- SSHD

[2014] EWCA Civ 45

at paragraph 70, “The Secretary of State is not entitled to abdicate her statutory and public law responsibilities to the relevant health authorities or clinicians in the way deprecated by Singh J in the HA (Nigeria) case…… However, where (unlike the present case) the Secretary of State through the UKBA officials has conscientiously made reasonable enquiries as to the physical and mental health of the person who is being considered for detention, has obtained such reports of clinicians who have previously treated the person as being made available, and considered the implications of the policy in paragraph 55.10 for the detention of that person, leaving aside the cases in which there has been negligence by the clinicians at the detention centre, she should generally be entitled to rely on the responsible clinician…..”.

[42]Conversely, counsel for the Defendant, Ms Anderson, emphasises that in relation to the policy claim, it is the Wednesbury test of irrationality which applies, and thus the role of the Court is a supervisory one to determine whether the interpretation or acts of the Defendant are outside the reasonable range; that the courts and particularly the appellate courts have repeatedly recognised that the exercise is not for the Court to apply its own view of what might or should have been done on a minute examination of the facts; and that the Administrative Court is ill equipped for a fact finding exercise.

[43]The Defendant argues that the structure of the detention centre system requires the employment of experienced medical personnel for the care of detainees, the Detention Centre Rules requires that medical personnel bring concerns for the mental health of the detainee to the attention of those responsible for authorising his further detention, and this is set in place against a statutory scheme of monthly review of whether detention should be continued.

[44]I recite the provisions to which I was referred. Detention Centre Rules. “Rule 3. Purpose of Detention Centres. The purpose of Detention Centres shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment .. Rule 35. Special Illnesses and Conditions (including torture claims). (1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention….. (4) The manager shall send a copy of any report under paragraphs (1)….. to the Secretary of State without delay. (5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care”. Detention Services Operating Standards Manual for Immigration Services Removal Centres. “Minimum Auditable Requirements. Qualifications Training and Professional Development. (1) The Centre must employ experienced professional qualified medical personnel for the care of detainees….. (4) The Centre must employ qualified nurses and must require and retain evidence of qualifications…. (6) The Centre must ensure that all members of the healthcare team attend training relevant to the identification of those presenting with mental illness and those who may have been tortured….. Access to healthcare within the Centre14. The Centre must ensure that all detainees are medically screened….. within 2 hours of admission…

15. As required by Rule 34 of the DC Rules, the Centre must ensure that arrangements are in place for detainees to have a physical and mental examination by the medical practitioner within 24 hours of their arrival at the removal centre. The purpose of the initial health assessment is to identify any immediate and significant mental or physical health needs, the presence of a communicable disease and whether the individual may have been the victim of torture. Suicide, Self Harm and Torture 29. The healthcare team must report to the Centre manager in cases where a detainee’s health is likely to be significantly harmed by being detained (Rule 35 (1) refers). In doing so the health care team must be mindful of the need to maintain medical confidentiality unless the patient has given consent to disclosure of information. Access to healthcare within the Centre

Suicide, Self Harm and Torture

[45]As to the contended duty of enquiry, counsel for the Defendant says i) In deciding whether the decision maker as to enquiry is in breach of the duty it is only where the view taken is Wednesbury irrational that the Court can impose a different approach, it is not a question of what the Claimant considers would be ideal or even sensible; ii) that any duty to enquire was contextual; and iii) that the context here was of a closely prescribed system of medical care and oversight of any detainee pursuant to the Detention Centre Rules and the operational standards formally adopted and used for audit within the Detention Centre system.

[46]In R(K) -v- SSHD

[2014] EWHC 3257 (Admin)

, Haddon-Cave J approved and applied the approach adopted by Mr C M G Ockelton Vice President of the Upper Tribunal sitting as a Deputy High Court Judge in SA(Holland) –v- SSHD

[2014] EWHC 2570 (Admin)

that “The Secretary of State is generally entitled to rely on the responsible clinicians where reasonable enquiries had been made and the requirements of chapter 55.10 were considered where applicable, so long as there was not a total abdication of the Secretary of State’s own responsibilities to the clinician”.

[47]I respectfully agree with that view of Haddon-Cave J in R (K), and with the submissions of counsel for the Defendant at paragraph 45 above. In my judgment this is not to say that the Defendant is entitled to be simply passive, or to review and decide against continuing detention only if advised by the medical staff that it should do so; but I consider that the Defendant was entitled to act in the expectation that there is (in default of evidence to the contrary in an individual case) a closely prescribed system of medical care and oversight of any detainee, and that the centre will be informed by medical staff if in their opinion the detainee’s health(a) is likely to be significantly harmed by being detained further or

(b) has become more likely than before to be so harmed.

[48]In the context of the Claimant’s case this required the responsible clinicians to assess him within 24 hours of induction successively here to Morton Hall IRC, Haslar IRC, Dover IRC, and on 23/12/2014 to Brook House IRC; as well as more generally to report to the centre manager if of the opinion that his health was likely to be injuriously affected by continued detention.

[49]For completeness, I record that counsel for the Defendant also maintained that the Secretary of State is not entitled to seek confidential information upon a detainee where this involves confidential medical matters or that which the detainee has told the medical professional in that role.

[50]First, confidentiality is not an absolute matter and the question is whether disclosure is rational and proportionate to the harm which may be done by interference with the right to privacy (W, X, Y and Z –v- SSHD

[2015] EWCA Civ 1034

at paragraphs 35, 48 and 49). Second, the system expressly contemplates Rule 35 reports, and I do not see why the Defendant should be inhibited from asking for report in general terms as to the like matters of mental health of the detainee and any risk of deterioration arising from detention, if circumstances demand it.

[51]A recurrent theme in the submissions for the Claimant is that for him to be satisfactorily managed within detention required the taking of measures which would enable or facilitate his recovery.

[52]In R(DK) -v- SSHD (citation above), Haddon-Cave J said “For the purposes of decision in Das, the Court did not decide whether ‘satisfactory management’ involved facilitating possibility of recovery but at (71) the Court ‘strongly doubted that this was the correct approach as: this was unlikely to be the intention of the policy given its purpose; it was unlikely to be the natural construction of the words used; it was inconsistent with the established jurisprudence of the higher Court; it was impractical given the variants of treatment available in the community; it was inconsistent with the context of the purpose of removal from the UK as soon as possible’. I agree. The Claimant relies on observations of Elizabeth Laing QC in R(BA) -v- SSHD

[2011] EWHC 2748 (Admin)

. “The submission is that [Chapter 55.10] is only engaged if the detainee is currently, and obviously, suffering from a condition which cannot be managed in detention….The laissez faire approach entailed in this construction would permit the Secretary of State to detain someone who is potentially unsuitable for detention, and to forget about him, leading to risks that the detainee’s condition will not be monitored, and of deterioration to a point where the illness cannot be managed” (paragraphs 183–184). I do not understand the judge thereby to interpret the policy as requiring a positive facilitating of recovery, and if she did I respectfully prefer the view of the Court of Appeal in Das.

[53]The submissions on deterioration in the Claimant’s health. Counsel contends that “It is plain that the deterioration that began in June 2014 and continued; and that the Claimant’s mental illness was incapable of being and was not, satisfactorily managed in detention. Had the Defendant turned her mind to this question, that would have been the only rational conclusion available to her. This is in large part because the Claimant continued to have little or no insight into his condition and so remained largely non-compliant with his medication, which could not be given to him compulsorily in the detention setting. Although there are some records of the Claimant appearing calm and coherent, which is to be expected for a relapsing and remitting mental illness like bipolar effective disorder… the overwhelming picture is that he remained seriously mentally ill throughout”.

[54]Under this head of claim, and under the Hardial Singh and treatment claims, counsel drew particular attention to references in the records where the Claimant is observed to be out of touch with reality; and submits that it appears the Claimant’s mental capacity fluctuated in accordance with the fluctuations in his mental condition but that in January 2015 he appears to have lost capacity on an almost permanent basis because of the drastic deterioration in his condition.

[55]I was invited to consider the records as a whole. I have conscientiously done so, in relation to his condition generally and as to capacity, reminding myself that under the policy challenge the test is of rationality of the Defendant’s decision, (and mindful that later in this judgment I am required to take an objective view of what period was reasonable for detention under Hardial Singh principles (iii) and/or (ii) ).

[56]As to capacity, whilst there was marked deterioration as of 21 March 2015 and on 23 March 2015 the mental health nurse was of opinion that the Col lacked capacity (3/5/88), I respectfully disagree that lack of capacity was permanent or almost permanent significantly before those dates.

[57]First, in my judgment the Claimant presented as a man with a condition which fluctuated throughout the period up to 21 March 2015 or immediately before. There were periods of florid presentation as reflected in the illustrations given by counsel at paragraph 30 above. At other times – and whether he was or was not compliant with medication - the Claimant was calm or relatively calm and compliant with his detention.

[58]Second, counsel placed particular reliance on comments recorded by detention officers as to whether the Claimant was “seeing reality” or in touch with reality, and in particular the entry for 15 February 2015 at paragraph 30(l) above, a date when he was forcibly removed to segregation. However closer consideration of the records reveals that(a) on 17/2/2015 (ie 2 days later), at the GP surgery, where he was being examined for any injury the GP expressly recorded “no thought disorder or evidence of psychosis or hallucinations. Currently has capacity” (3/5/101);

(b) on 20.2.2015 a psychiatrist saw him and recorded “no formal thought disorder or psychotic symptoms”, and made no suggestion expressly or impliedly of lack of capacity on the part of the Claimant (3/5/100);

(c) on the succeeding days the Claimant is recorded as agreeing to take his medication on some of the days (3/5/99 and 97);

(d) on 27.02.2015 the psychiatrist who had seen him on 20.2.2015 recorded “improvement from last week”.

[59]Third, whilst I am immediately considering whether the Defendant failed properly to enquire as to his mental health, this is in the context not of whether the Defendant must have appreciated that the Claimant had a serious mental illness, but whether she must have appreciated that he had a serious mental illness which could not be satisfactorily managed within detention.

[60]Counsel for the Defendant suggested that mental illness was very common in the UK population at large, that it was not unusual to have a bipolar disorder (suggesting a ratio for the UK population) and that ‘there is nothing unusual in having a psychotic illness’. Insofar as this ventured to contain information taken from websites, I guard against accepting the submissions as evidence. However the jurisprudence does make clear that having a serious psychotic illness does not in itself engage the 55.10 policy. In LE (Jamaica) -v- SSHD

[2012] EWCA Civ 597

, Richards LJ approved observations of Cranston J in Anam and said “It is difficult to see why special provision requiring detention to be justified by very exceptional circumstances should have been made with those with a mental illness that could be satisfactorily managed in detention so that the illness was not significantly affected by detention and did not make detention significantly more burdensome” (

[2012] EWCA Civ 597

at paragraph 41).

[61]In the present case the first Rule 35 report of 30 June 2014 is important in that it did say that the Claimant’s mental condition was likely to be injuriously affected by detention.

[62]However counsel for the Claimant sought to derive from this an inevitable likelihood that it would be injuriously affected to the extent that his serious mental illness could not be satisfactorily managed in detention. This is not express, and in my judgment not implicit, in the Rule 35 report of 30 June 2014: the author expresses significant concerns, “should he continue to deteriorate”; what it did was to alert the Defendant to the risk of this.

[63]There is no evidence before me that the case worker dealing with the case contacted the mental health authorities for further advice, as the letter of 2 July 2014 to the Claimant and his solicitors said he would. I consider that the Rule 35 report, in addition to his known history of mental health, engaged a public law duty of fairness so to enquire. In default of witness evidence to explain the omission, in my judgment this was a breach of the duty in the immediate aftermath of 2 July 2014.

[64]However I do not consider that the decisions to detain thereafter were unlawful by breach of the public law duty of enquiry. This overlaps with whether the Defendant could rationally conclude that his mental illness could be satisfactorily managed within detention and I illustrate my reasons here.

[65]First, the Claimant had served two sentences of imprisonment where his mental illness had been managed in an ordinary regime.

[66]Second, one cannot fairly divorce the Rule 35 report made on 30 June 2014 from the observations thereafter. Thus on 30 June his mental health nurse (MHN) was told by his former nurse that his usual cycle was to become high, get detained, receive depot medication get released, and disappear, but on 1 July 2014 the entry is that he was happy. On 2 July he was agreeing to consider medication, and was “fairly stable, some incongruous laughter but able to focus and stay even”. On 9 July the MHN had seen him most days that week and he “appeared relatively stable until today”. On 13 July he saw the psychiatrist, who did record psychosis but also that he agreed to consider medication, as he did with another doctor the next day. On 21 July 2014 the MHN wrote that he appeared settled and calm (3/5/27-33).

[67]Third, after the date of the report of 30 June 2014, (of significant concerns “should he” continue to deteriorate), no entry expresses concern that his condition needed to be dealt with elsewhere or could not be managed within detention.

[68]Fourth there was no further Rule 35 report until 25 March 2015, despite transfer successively to Haslar IRC, Dover IRC and Brook House IRC where in each case he would have undergone formal medical examination within 24 hours of arrival.

[69]Fifth, at other times up to 20 March 2015 mental health professionals made a large number of observations similar to those I cite here for the period after 30 June 2014, and above as to mental capacity in February 2015. Illustratively only - in a judgment already long as dictated by the nature of the challenges - I here cite only: 3/5/71, 3/5/114, 3/5/112, and 3/105, and the medical request of September 2014 “bipolar, well managed, compliant with medication…. Just needs a break from this environment” (3/5/53).

[70]In addition, the Defendant was entitled to act in the expectation that there is (in default of evidence to the contrary in an individual case) a closely prescribed system of medical care and oversight of any detainee (see paragraph 47 above).

[71]Having considered in detail the records both medical and general, I am not persuaded that the duty to enquire engaged in general a greater, or in the end different, scope than the anxious review which was in any event required on monthly review, until the serious deterioration after 20 March 2015, reported by further Rule 35 report dated 25 March 2015 and which was followed by review two days later on 29 March 2015. Whether the Defendant failed properly to apply the policy in considering a prospect of release only if his condition deteriorated to the extent that he was hospitalised.

[72]As fully set out above, there was a standard paragraph in each review pro forma, “Conditions rendering person suitable for detention only in very exceptional circumstances (see section 55.10 of Enforcement Instructions and Guidance)” . What this required was consideration whether his mental illness could be satisfactorily managed within detention – see Das above.

[73]In each and every review the Defendant inserted the answer “None – unless his condition deteriorates to the extent he is hospitalised” (emphasis supplied). Upon the face of the words used this is a plain indication that the author considered that Chapter 55.10 was not engaged unless and until the Claimant’s condition deteriorated to the extent that he was hospitalised. This is the very interpretation which was authoritatively refuted in Das.

[74]Ms Anderson argues this must be read contextually to the Claimant.(i) If there were to be deterioration, the alternatives to treatment in compulsory detention had been tried without success.

(ii) Therefore there was no viable alternative to hospitalisation if his condition did deteriorate seriously.

(iii) At no point was there a clinical recommendation to release him. In addition, his history was of being satisfactorily managed in prior prison detention.

[75]I do not accept this submission. First, no detention review expresses any alternative to hospitalisation being considered or rejected as not viable. Second, there may have been no viable alternative to hospitalisation at the end of his period of detention but it does not follow that this was so earlier. Third, there is no evidence from any witness that this was the process of thought. On the contrary, a minute in his GCID case record on 26/09/2014 states, “using... legal highs which is adversely affecting his mental illness and leaving him vulnerable to ridicule from other detainees. Failing a transfer [to a smaller IRC] the only other option would (sic) to release him and have him engage with the area of mental health and substance misuse services. [He] has a dual diagnosis of Bi-Polar Disorder and Substance Misuse and was being treated in the community in Scotland for this, prior to being transferred to Morton Hall IRC” (2/3/245).

[76]Also the clinicians could only report on his condition, not determine whether he should be released, a decision which was to be made by the Defendant applying a correct test under the policy. (iii). Whether the Defendant could rationally conclude that the mental illness could be satisfactorily be managed within detention.

[77]This is an issue which has to be addressed independently, and in oral argument counsel for the Claimant dealt with this issue first.

[78]Counsel for the Claimant relied on a number of individual strands or threads as demonstrating that it could not, either taken individually, or cumulatively. These were(i) the nature and severity of his illness

(ii) whether his illness was significantly affected by detention

(iii) whether facilities were available to manage his condition. She summed up his experience as being an ‘arc of deterioration, exacerbated by detention, from June 2014 on a downward spiral throughout’.

[79]Under (i), counsel pointed to his psychotic symptoms, and submitted there was no period greater than 2 weeks without reference in his records to meaningless or bizarre speech or behaviour on his part. As to (ii) the Rule 35 report of 30 June 2014 stated the Claimant had little insight into his mental illness and did not therefore comply with medication, and counsel relies on the references in the records which I cite at paragraph 30 (a) – (t) above. As to (iii) namely whether facilities were available for managing his mental illness, in the IRC there was no power compulsorily to administer medication. And the second Rule 35 report of 25 March 2015 noted an “observed deterioration in mental state exacerbated by environment” (emphasis supplied), and that “the current environment is not conducive with the management of this mental health condition. He is not receiving any medication which will likely improve his condition and is not surrounded by professionals equipped to deal with difficult and severe health conditions”

[80]I am not dealing with whether the mental health professionals were right or wrong not to make a Rule 35 report between 30 June 2014 and 25 March 2015, or to assess or treat the Claimant differently, but with what view could rationally be taken by the Defendant.

[81]The initial Rule 35 report was expressly couched as to concerns, “should [the Claimant] deteriorate” (emphasis supplied). It was open to the Defendant rationally to conclude that the clinicians did not consider that he was then unfit for detention, as set out in the reply to that Report.

[82]It is argued that it was nonetheless inevitable that his condition would continue to deteriorate to the point that it could not be satisfactorily managed in detention if detention continued.

[83]With hindsight, there was deterioration in the mental condition of the Claimant to the point where he could not be satisfactorily managed within detention, and this was exacerbated by his environment. The second Rule 35 report, of 25 March 2015, stated “… He has been reviewed regularly by the MHN and the Psychiatrist from the 20/02/2015. There has been a real but gradual deterioration in his mental state. It has been observed that his behaviour is more erratic and labile. …Observed deterioration in mental health state exacerbated with environment, as well as failure to comply with medication advised. He does not seem to have capacity to make decision and poses a risk to staff, other detainees and himself (through neglect). … The current environment is not conducive with the management of his mental health condition. He is not receiving any medication which will likely improve his condition and is not surrounded by professionals equipped to deal with difficult and severe mental health conditions. He needs to be transferred to a secure mental health facility for assessment and treatment. He will see a his (sic) psychiatrist in two days for assessment (and sectioning)” (1/2/46 at 49-50).

[84]However the court examines the evidence on the basis of the evidence as known to the Secretary of State at each stage when she made the decision, i.e. without hindsight (e.g. onlyFardous

[2015] EWCA Civ 931

Lord Thomas LCJ at paragraph 42).

[85]First, no clinician expressed this view (until March 2015). There were fluctuations in his condition, variously for the worse and for the better. Over the period from 30 June 2014 (first Rule 35 report) I adopt here and do not repeat the conclusions I set out above as to the months into January 2015, and then to the end of February 2015 respectively at paragraphs 64-67 and 57-58 above.

[86]Second, I do not accept the submissions of counsel for the Defendant as evidence, but I can take judicial notice of the large number of persons both in prison and in detention who have mental illness, which may be serious, and which is managed there. In the case of this particular Claimant, he had served 2 sentences of imprisonment, of 9 months and 6 months respectively, in 2010 and in 2013 the year before his admission to detention, during which his mental illness appeared to have been satisfactorily managed.

[87]His mental condition did indeed spiral downwards in March 2015. Once the Rule 35 report of 25 March 2015 was received, the only rational conclusion open to the Defendant was that the mental condition of the Claimant could not be satisfactorily managed within detention; but prior to this I consider that it was rationally open to the Defendant to take a different view certainly up to the end of February 2015 (see above) and, guarding against hindsight, up to receipt of the 25 March 2015 Rule 35 report prompted by the intense deterioration which started on 21 March 2015.

[88]For completeness, I have considered the fact of 7 occasions of segregation in all, (now not the subject of individual challenge), and, during March 2015, segregation on 3 March 2015 (aggressive and threatening behaviour towards staff), request for single occupancy on 10 March (worsening mental health) and segregation on 18 March.

[89]In a judgment on judicial review I do not set out every detail, but on close examination the circumstances are less striking in favour of the Claimant’s case than might be supposed. Thus the two segregations of March 2015 were respectively of one day and 2 ½ hours only; the request of 10 March 2015 circled ‘Yes’ for suitability of transfer “to another centre” (ie another detention centre see 3/6/88, 3/5/129-130 and 3/6/98, emphasis supplied). Whether the Defendant could rationally conclude that there were “very exceptional circumstances” within the meaning of Chapter 55.10 which justified his continuing detention.

[90]If the Claimant could not be satisfactorily managed in detention, her own policy stated that detention was to be continued only if such circumstances existed. Counsel for the Claimant contends that the kind of exceptionality envisaged by the policy is where the detainee “poses a high risk of killing someone” or the like, or removal is going to take place within a very short period of time. She draws attention to the observations in Das by Beatson LJ, “But the balancing process described in Anam’s case

[2009] EWHC 2496

may, particularly where the case concerns a foreign national prisoner who poses a serious risk to the public, for example a person who poses a high risk of killing someone else, or where there are cogent grounds for believing that removal will take place in a very short time, mean that detention will be justified. In the case of a person who poses a high risk of killing someone else, this will be because the circumstances can be regarded as “very exceptional” so that detention pursuant to the policy of ensuring the firm and fair application of immigration controls is justified…. I add that, whether or not the policy is strictly engaged, as part of the operation of the Hardial Singh principles (see paragraph 16 above) in assessing whether to detain a person known to have a mental illness, particular care is needed. The Secretary of State, through her officials, should consider whether, if the decision is taken to detain, particular arrangements will need to be made for the detainee’s welfare and to monitor him or her for signs of deterioration” (paragraphs 68,69).

[91]The reported authorities call for a purposive and pragmatic construction of the policy, repeatedly stating it is an important consideration that the purpose of the statutory power of detention in aid of enforcement of immigration decisions should not be frustrated. “The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place”” (Lord Thomas LCJ in Fardous cited above at paragraph 44); “I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention.” (Lord Dyson JSC in Lumba

[2011] UKSC 12

at paragraph 121).

[92]Conversely, they refer to the very exceptional circumstances as being a “high hurdle” to be achieved when considering both the likelihood of re-offending if released and the risk of absconding.

[93]The latter indeed reflects the use of the words “very exceptional” circumstances.

[94]However I consider that some caution must be applied before replacing the terms of the policy itself by illustrations of what is towards the upper spectrum of seriousness. First, these are illustrations, and fall well short of a statement that there must be a risk of the detainee killing someone or the like in order for the circumstances to qualify as very exceptional. Second, the Secretary of State has chosen in her policy to categorise the offences of possession of drugs with intent to supply, for which this Claimant had twice been imprisoned in 2010 and 2013, as serious offences and it is the Defendant’s own policy against which the test of rationality must be applied. That policy states that where there is a conviction for one of the serious offences, “particularly substantial weight” should be placed on the high risk of public harm to the public (there emphasised in bold see Chapter 55.3A above) and states that a decision to release is likely to be the proper conclusion ‘only when factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug related and similar offences” (see Chapter 55.20 above) .

[95]Equally, I consider that the seriousness of the offence even as so categorised must be balanced against the individual circumstances of the detainee. The greater the effect upon the detainee of continued detention, and the greater the distress or risk at which detention may place him, the greater the weight to be placed in the scales against the risk of harm to the public by re-offending if released.

[96]As set out above, I consider that up to the date of considering the report of 25 March 2015 it was open to the Defendant to conclude that the Claimant’s mental condition could be satisfactorily managed within detention. Thus consideration of whether there were ‘very exceptional’ circumstances does not arise until then.

[97]However from receipt of the report of 25 March 2015, the landscape for application of the policy had changed. Under Chapter 55.10, “in exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act”.

[98]As of 10/04/2015 the officer authorising continued detention observed, “Detention remains appropriate and proportionate; the barrier to removal is the outstanding appeal. The hearing is set for 21/04/15. I note the risk assessments for Mr [C] and that his mental health is being managed whilst in detention” (cited above). As to there being a possibly short time before removal, this was accurate: and notwithstanding the mental condition of the Claimant, the immigration appeal set for 21 April 2015 was heard and determined on that date. (In the event, it was successful albeit then subject to appeal by the Defendant). However as to the observation that the Claimant’s mental health was being ‘managed’ whilst in detention, it seems to me that the only conclusion rationally available was that it was not being satisfactorily managed.

[99]Counsel for the Defendant said the Claimant was subject to medical assessment, and could be admitted to hospital under section only if a bed was available, which notoriously might take some time to find. The report of 25 March 2015 made clear that the Claimant would be sectioned. If there were evidence that there was no bed available and this was the reason for delay in transfer of the Claimant after receipt of the report I could consider it. It would have been open to the Defendant to serve evidence to this effect, but there is none.

[100]In contrast, there is witness evidence in respect of the period after 27 April 2015. Mr Alistair Albosh a Senior Executive Officer within the Home Office with responsibility the Mentally Disordered Offenders Team [MDOT’) did not himself have direct involvement with the Claimant until 20 May 2015. However he relates correctly that there was power for the Defendant to make the Claimant subject to direction under sections 48 and 49 of the Mental Health Act 1983 (“MHA 1983”) for removal to hospital and unless and until civil powers were exercised to ensure compulsory treatment then if decision were made to cease detention the powers under sections 47 and 48 would fall away. It was determined on 27 April 2015 that the Claimant met the criteria for compulsory treatment in a mental hospital and direction was given under sections 47 and 48. On 5 May 2015 the Claimant was sectioned under the MHA 1983 and he was so transferred.

[101]Mr Albosh relates the detention reviews and authorisation of continued detention of 8/9 June, 6 July, 4/5 August, and 26 Aug/2 September; and the authorisation of release on 9 September 2015. He states, “Whilst not directly relevant during a period of detention in a secure mental hospital the Chapter 55.10 policy is kept in mind as it is possible that the foreign national may no longer meet the criteria for detention in a mental hospital so the question of transfer to [an IRC] may arise”.

[102]The Defendant had consciously to keep detention under review pursuant to the policy, including detention or release in accordance with Chapter 55.10. This required consideration of whether his condition could be satisfactorily managed within detention, whether very exceptional circumstances existed, whether he could properly be managed by treatment in the community, and/or the absence of facility in detention to administer medication.

[103]In my view the Defendant did not simply defer decision on detention so long as he was currently detained in hospital.(i) The records show that review of whether detention was necessary was maintained.

(ii) At no time before 9 September 2015 (or continuing) was there any prospect of release from mental hospital; whether in the near or medium term.

(iii) The assessments she actually made of risk of absconding or reoffending were rationally open to her.

(iv) She concluded as of 8/06/2015 that the Claimant was being assessed to determine how responsive his condition was to treatment and prognosis; as at 6/07/2015 that there was no firm diagnosis as to his mental illness or an indication of how long it was expected he would be detained for compulsory health treatment (Albosh statement paragraphs 15 and 16);and notably, as of 04.08.2015 “what we can do is advise the Responsible Clinician that we are proposing to cease immigration detention, thus placing the emphasis on [him] to seek a civil section should he be of the opinion that [VC] continues tot require treatment for his mental illness”. Each was rationally open to her.

[104]Conclusion. From 08/07/2014 the Defendant misinterpreted her policy but further or alternatively considered detention justified because his condition could be satisfactorily managed. Such a conclusion was rationally open to her, until receipt of the Report of 25/3/2015 (see above). The policy claim fails up to that point.

[105]Transfer to hospital was then urgently required. Detention cannot on any view be defended from 10 April 2015, when the officer authorised continued detention on the basis that the Claimant’s condition was being “managed” within detention. Allowing a week from review on 27/03/2015 for steps and location of a bed I consider the claim succeeds for the period of unexplained delay from 3 April 2015 but only to 27 April 2015. It was on 5 May 2015 that he was actually transferred but I can take notice that it may have taken several days to find a placement. During the period from 27 April to 5 May 2015 I consider the Defendant could rationally decide not to release the Claimant pending compulsory sectioning for hospital detention and in the light of risk of absconding and re-offending if released.

[106]It is argued that he was subject to unlawful continued authorisation of detention until 9 September 2015, when he should have been subject only to detention in hospital under section and thereby entitled to release if discharged from hospital.

[107]In the light of his history of convictions and the assessment in fact made of risks of harm to the public from re-offending if released in the respective detention reviews, which I consider were properly open to the Defendant, and in the absence of any prospect of release from hospital in the near or future term, it would be surprising if his immediate technical release from detention were required. I consider the decisions of the Defendant to continue to detain were rationally open to her. If I am wrong about that, I consider it unreal to suppose that the Claimant suffered any real detriment thereby, after the date when he was admitted compulsorily to hospital. The claim under Hardial Singh principle (iii) and/or (ii).

[108]It is convenient to cite first the authoritative statement of Hardial Singh principles made by Dyson LJ (as he then was) in I –v- SSHD

[2002] EWCA Civ 888

. “46. There is no dispute as to the principles that fall to be applied in the present case…. In my judgment, Mr Robb correctly submitted that the following four principles emerge:(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) the deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) if before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) the Secretary of State should act with the reasonable diligence and expedition to effect removal. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or maybe relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond, and the danger that, if released, he will commit criminal offences”.

[109]Counsel draws my attention to Richards LJ in MH v SSHD

[2010] EWCA Civ 1112

, “As the period of detention gets longer, the greater the degree of certainty and proximity of removal which I would be expected to be required in order to justify continued detention”.

[110]Counsel submits that by latest 31 October 2014 there was no realistic prospect of removing him within a realistic timeframe. She relies on the fact of(i) adjournment of the hearing before the Immigration Tribunal on 31 October 2014 on account of his mental health, and

(ii) asserts a downward spiral in his condition which was observable and predictable to that suffered at the time of the second Rule 35 report of March 2015. It is said that even if removal was a realistic prospect following that adjournment, such was extinguished by 4 March 2015 when the Tribunal contacted the Defendant to inform her that there was no listing for the substantive hearings and seeking confirmation that the Claimant would be medically fit to attend (2/3/233).

[111]As to the latter, I have not accepted that there was a downward spiral, predictably leading to him not being fit to be detained in a detention centre, before March 2015. As to the former, in October 2014, or in early 2015, the prospect was a possible delay of some months, but he had been in detention only since June 2014. His condition was a fluctuating one. There were times (see above) when he was calm and compliant with medication. I adopt again my assessment above of his condition up to mid March 2015. In the event, an immigration appeal did proceed in April 2015 notwithstanding his condition, an intervening hearing having been lost but not on account of his mental condition actual or perceived, and his appeal was dealt with. (In fact, it was successful, albeit it is subject to appeal by the Defendant).

[112]The Claimant was a person with a number of offences, and who had continued to offend despite warning from the Home Office of the likely impact upon him in respect of immigration matters. He was not a man with family in the UK; and the assessment made by the Defendant of the risk of absconding as being greater than the norm if released could not be categorised as irrational. In my judgment, given the Defendant’s own policy, the assessment of the risk of public harm which she made given his two convictions for ‘more serious offences’ cannot be regarded as irrational.

[113]The June 2015 assessment was of a ‘low level but persistent offender” and referred merely to “the risk of harm” upon his likely reoffending but his offending had increased in tempo by early 2014 and the later assessment does not mean that earlier reviews were unjustified in adopting a stricter view, or noting (as they did) that he had continued to offend despite warning from the Defendant as to the likely consequence in immigration terms.

[114]The period of detention overall in the present case is not of the length which has typically led this court to intervene. I adopt my assessment above of his condition from June 2014 to March 2015, and of the view taken by the Defendant of the likelihood of offending or harm thereby. Accordingly I do not consider the Claimant has established breach of Hardial Singh principle (iii), or given the length of detention overall as at May 2005 breach of Hardial Singh principle (ii).

[115]Treatment in detention. It is claimed that there was(i) violation of

Article 3 ECHR

(ii) breach of the Mental Capacity Act 2005

(iii) discrimination under the Equality Act 2010 and

(iv) breach of the duty of procedural fairness.

[116]Violation of

Article 3 ECHR

. Counsel summarises the requirement for breach of Article 3 as follows: that treatment causes intense physical or mental suffering; it arouses feelings of fear, anguish and inferiority capable of humiliating and debasing the person and going beyond the inevitable element connected with legitimate treatment or punishment; a detainee is detained in conditions incompatible with his dignity; the manner and method of execution or measures used subject a detainee to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; and, counsel for the Claimant says, the detainee is not provided with requisite medical assistance. (For brevity see the resume of Kudla principles by Singh J in HA at 173).

[117]As to the last, counsel says (and I summarise)(i) the Claimant was not given the requisite medical treatment in detention;

(ii) in consequence there was deterioration which led to lack of capacity;

(iii) since his mental illness caused him to behave aggressively, he was treated with force on at least one occasion;

(iv) his periods of segregation were ‘particularly egregious’ and between February and May 2015 he was held on Eden Wing where it is said association and access to facilities was limited (I have no agreed statement of fact or witness evidence on the point);

(v) he was held in detention from 26 March 2015 until 5 May 2015 despite the Rule 35 report. The claim under Article 3 is maintained in respect of treatment from January 2015.

[118]As a matter of principle, the decisions of the European Court, and courts of the United Kingdom by reference to those decisions, require(i) a high standard of proof and

(ii) a minimum intensity of suffering. As to standard of proof, “in assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt”; (adding that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or a similar un-rebutted presumption of fact). As to the degree of suffering, ““Ill treatment must attain a minimum level of severity …the assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. (Ocalan –v- Turkey EC [Application 4621/99] pp 64, 65 paragraph 161).

[119]There is “no general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain any particular kind of medical treatment. Rather Article 3 requires the state adequately to secure the wellbeing of prisoners (and therefore detainees) by providing the required medical assistance” (IM

[2013] EWCA Civ 1561

, following the principles set out in Kudla –v- Poland

[2002] 35 EHRR 198

64–65).

[120]The Claimant’s symptoms were acutely distressing, on a number of occasions. To cite illustratively an extreme act of his thinking and behaviour, on one occasion he blocked a sink with food by trying to feed his friends in the pipes.

[121]However to engage Article 3 the Claimant must show that his treatment caused the relevant intensity of suffering, beyond that inherent in his mental illness and in his being detained. The European Court has consistently stressed that the suffering and humiliation involved must go beyond that inevitable element connected with a given form of legitimate treatment or punishment, and that measures depriving a person of liberty may often involve such an element (e.g. Kudla at paragraph 93).

[122]In the case of the present Claimant, he had been detained in ordinary prison conditions during both of his sentences of imprisonment, including that leading up to his transfer to detention on 12 June 2014. The Rule 35 report of 30 June 2014 alerted the Defendant to the risk of deterioration in his mental condition if he were detained. The claim under Article 3 is maintained from January 2015 only, doubtless reflecting the fact that before this he had two transfers, respectively from Morton Hall IRC to Haslar IRC in early October 2014, and to Dover IRC in December 2014, when on each occasion a medical examination was required within 24 hours of admission by Rule 34 of the Detention Centre Rules, there is no suggestion that such was not carried out, and no Rule 35 report was made in respect of him such as to suggest that he was unfit for detention.

[123]The present submissions are in practice closely aligned with the argument that he should in any event have been released from detention in order to receive medical treatment elsewhere, whether on release into the community or in hospital, and that it was observable and predictable that he would continue to deteriorate by reason of detention to the state reported in the Rule 35 report of 25 March 2015. As I set out above, in January and February 2015 I consider that his condition was fluctuating; and I do not find justified a blanket finding that he could not be satisfactorily managed within detention, or that his condition required release from detention. It was in and from later March 2015 that his condition plummeted.

[124]I respectfully prefer and adopt here my conclusions recited above at paragraphs 57-58, 64-67, and 80-84 above, based on both the general observations of the Claimant and those of the mental health medical professionals who saw him throughout.

[125]I am conscious of his more extreme presentations, notably of and around 10 February and 22 February 2015, (paragraph 30 above) but there was a fluctuating illness and there were equally periods of calm and/or compliance. The precise circumstances of Eden Wing are unclear. In my judgment this is not a case where the Secretary of State has ‘abdicated her statutory and public law responsibilities to the relevant health authorities in the way deprecated by Singh J in HA’ (Beatson LJ in Das at paragraph 69).

[126]Counsel drew my attention to five cases in which the Administrative Court has found breaches of Article 3 in cases concerning the mentally ill: S v SSHD

[2011] EWHC 2120

(Admin;) BA v SSHD,

[2011] EWHC 2748 (Admin)

; HA v SSHD EWHC [2012] 979 (Admin); D v SSHD [2012] 2501; MD v SSHD

[2014] EWHC 2249 (Admin)

[127]I have read those cases; naturally, each case turns on its own facts. In particular, Singh J found a breach of Article 3 in HA v SSHD. In that case the Claimant was suffering from a serious mental illness, he spent ‘prolonged’ periods in isolation in segregation or temporary confinement, was sleeping on the floor, often naked, in a toilet area, drank and washed from the toilet and did not maintain adequate nutrition; he did not wash or change his clothes for prolonged periods, ‘perhaps for over a year’; his behaviour alienated him from others, and he was not given appropriate medical treatment to alleviate his mental illness ‘for a prolonged period of more than 5 months’. On the view I take of the present case, the facts in HA v SSHD are plainly distinguishable.

[128]In short, I am not persuaded that in these proceedings the Claimant has discharged the high standard of proof, or shown that intensity of distress caused by the lack of measures complained of, as would establish breach of his rights under Article 3 EHCR before 25 March 2015, and with more hesitation I take the like view in respect of the Article 3 claim for the period after 25 March 2015 to 5 May 2015. The claim that there was direct breach of the Mental Capacity Act 2006 (“MCA 2005”).

[129]The Claimant makes three submissions, as set out in skeleton argument for trial.(i) Pursuant to the public law duty of enquiry and in order to facilitate compliance with the MCA 2005, the Defendant is under an obligation to arrange for a detainee to have a capacity assessment where there is a reasonable suspicion that the detainee may lack capacity.

(ii) Where a detainee is assessed as lacking capacity in relation to areas of decision making that are the sole responsibility of the Defendant the Defendant is obliged to make those decisions compliantly with section 4 MCA 2005, namely in the detainee’s best interests;

(iii) In order to make best interests decisions the Defendant must ensure that the incapacitated detainee’s wishes and feelings are put forward, and that the detainee is supported to participate so far as is possible and that the detainee’s interests are represented.

[130]Counsel contends that where a person does not have the capacity to make a decision, that decision must be made in their best interests (section 4 MCA 2005). When making a best interests decision for someone, the decision maker must, so far as is reasonably practicable, “permit and encourage the person to participate, or to improve his ability to participate” in the decision (section 4(4)). In turn, the decision maker must, so far as reasonably practicable, take account of(i) the incapacitated person’s past and present wishes and feelings (section 4(6));

(ii) the views of anyone engaged in caring for the person or interested in his welfare (section 4(7)).

[131]Counsel also seeks to rely on the Code of Practice for the MCA 2005 which gives guidance on the application of the Act. The Code states that those who are required to have regard to the code include anyone acting in a professional capacity in relation to a person who lacks capacity, which is stated to include “a wide range of people such as police officers and social workers and others who may be involved in the care of people who lack capacity for the particular decision” (Code of Guidance p2). She says that the Defendant plainly falls within this category: by her officers she is acting in a professional capacity in relation to incapacitated detainees and making decisions that they may not have capacity to participate in.

[132]In oral submissions counsel for the Claimant appeared willing to some degree to accept that even if a person lacks capacity within the meaning of the MCA not all immigration decisions must be taken in his best interests but I was unclear as to the extent of this concession.

[133]The high water mark of submissions for the Claimant is section 4(4) MCA 2005 which refers to encouragement of the person concerned to participate as fully as possible in any decision “affecting him”.

[134]In my judgment this must be read in the context of the whole of the Act and it is important to consider the express provisions of the MCA 2005 itself. By section 1(3), “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”. By section 2(1) “for the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of, the mind or brain”. By section 3, dealing with inability to make decisions, it provides, “(1) for the purposes of section 2, a person is unable to make a decision for himself if he is unable –(a) to understand the information relevant to the decision

(b) to retain that information

(d) to communicate his decision…. By section 4, dealing with “best interests”, it provides, “(1) in determining for the purposes of this Act what is in a person’s best interest, the person making the determination must not make it merely on the basis of – [age or appearance, or condition or aspect of his behaviour] … and (4) he must so far as reasonably practicable permit and encourage the person to participate, to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him”. (emphasis supplied in each case).

[135]In my judgment it is clear that the provisions of sections 1, 2, and 3 Mental Capacity Act 2005 are concerned with the capacity of an individual himself to make a decision: see the passages which I have underlined above. If the person lacks capacity to make a decision on a specific issue, there is power for the court to make a declaration of lack of capacity in respect of that issue (section 15 MCA 2005). The court may by making an order itself make the decision on behalf of the person lacking capacity to do so himself, or appoint a deputy to do so (section 16(1) and

(2) MCA 2005). The powers of the court to do so are subject to the provisions of the Act and in particular section 1 (above) and section 4 (best interests) (section 16(3)). Of course, such a decision may be one ‘affecting him’ but this single phrase cannot be wrenched out of context so as to require all and any decisions affecting him in life as ones which must be taken in his best interests.

[136]The like approach, namely to consider the autonomy of the decision himself to make decisions, infuses and is reflected by the Mental Capacity Act Code of Practice, Introduction, Chapter 5 and Chapter 10. Chapter 5, which deals with best interests, itself states, “One of the key principles of the Act is that any act done for, or on behalf of a person who lacks capacity must be done, or made in that person’s best interests” (emphasis supplied). A decision to detain is not one made for, or on behalf of, the detainee.

[137]Further it is trite that the Act approaches capacity on an issue specific basis: does the individual have capacity to make a decision on a particular issue? The decision here in question is whether to detain. That is a decision which is the sole responsibility of the Defendant. The detainee does not make, or participate, in the decision itself.

[138]First, therefore as a matter of construction of the Act I consider misconceived the submission that in areas of decision making which are her sole responsibility the Defendant is obliged to make those decisions compliantly with section 4 MCA 2005, namely in the detainee’s best interests. Further if the Act thereby required any decision “affecting” a person without capacity to be made in his best interests it would lead to remarkable results: for instance, on his conviction in an ordinary criminal case his individual best interests would trump other interests when considering whether or for how long he should be imprisoned.

[139]Second, the decision to detain is one to be made in accordance with a policy made by the Defendant, balancing a presumption in favour of liberty with other interests, such as not frustrating the purpose for which the power to detain is given, the likelihood of absconding or of harm in the event of re-offending, and so on. To require that the decision must be made in his best interests is inconsistent with that balancing exercise. It would override, and render otiose, the individual provisions in Chapter 55.10 which do permit the Defendant to continue detention in “very exceptional circumstances” notwithstanding that the mental illness of the detainee cannot be satisfactorily managed within detention.

[140]Third, the submission is novel. The Hardial Singh and policy cases recognise that the detainee may have an interest in receiving medical treatment and this may be (or become) relevant, but that it is not decisive. It has not been considered or argued in those cases that the decision whether to detain must be made in compliance with the best interests of the detainee, as opposed to whether the period of detention was reasonable in the light of the interests to be balanced or whether the Defendant could rationally detain under her policy. A requirement for compliance with the best interests of the detainee would override those matters. By way of illustration only, the state of a person’s mental health will “affect” [not decide] the determination of what is a reasonable period for which to detain that person Baroness Hale in Lumba at [218] and Dyson LJ in R(M) –v- SSHD

[2008] EWCA Civ 307

at [39]].”

[141]Fourth, in my view the contrary does not lead to a strange or unfair result.

[142]As to submission (iii), that the Defendant must ensure that the incapacitated person’s feelings and wishes are put forward, such can be considered under a challenge for procedural unfairness (see below); his mental condition is engaged already under the policy in Chapter 55; it is scarcely to be doubted that any detainee will wish not to be in detention; and the policy expressly requires a presumption in favour of liberty to be considered.

[143]As to submission (i), of an obligation to arrange for a detainee to have a capacity assessment whenever there is a reasonable suspicion that they may not have capacity ‘to participate in’ decisions,(a) similar considerations apply; and

(b) such must in my judgment be contextual. To take a strong case, if it were all but certain that the detainee was to be removed from the UK within days and by his history and convictions he was likely to kill and maim if released in the UK, a capacity assessment might be otiose.

[144]Fifth, this does not leave a lacuna in the system, in that the Detention Centre Rules and Detention Centre Operation Standards do make provision for mentally ill detainees, notably Rule 35 of the Detention Centre Rules itself, “The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”

[145]Standing back more generally, the Secretary of State has lawful authority to detain the Claimant under the Immigration Act 1971 Schedule 3. That is subject to the policy published by the Defendant. I respectfully adopt the words of Cranston J in Anam -v- SSHD

[2009] EWHC 2496

(Admin, “The law requires adherence to the clearly expressed policy of a public authority absent compelling reasons for departure from it”. It may habitually not be in the best interests of a detainee himself to be kept in detention. It would be surprising if the MCA 2005 were intended to require that a decision made in respect of his detention must be made in his own best interests.

[146]Counsel for the Defendant submitted, (tersely and without the more extended analysis which I make above), that the MCA 2005 is concerned with decisions which would usually be made by an individual as part of their personal autonomy and so reflect their wishes and feelings and does not purport to extend to any other type of decision such as those made under immigration powers tax powers or criminal justice powers and it cannot do so. For the reasons which I have set out, I agree.

[147]I therefore reject the claim that there has been direct breach of the MCA 2005.

[148]Discrimination under the Equality Act 2010. The contention of the Claimant is succinct. The Defendant is under a duty pursuant to ss 20 and 29 Equality Act 2010 to take such steps as it is reasonable to take to avoid any substantial disadvantage faced by a disabled detainee. The Claimant is disabled by reason of his mental illness. In particular, there is a duty to make anticipatory adjustments to ensure that there are policies and procedures in place capable of avoiding the disadvantages faced by incapacitated detainees. There is no policy or procedure in place for an incapacitated detainee to avoid substantial disadvantage; no adjustments or steps were put into place to ensure that his interests could be represented, eg by a mental incapacity advocate.

[149]The mental illness of the Claimant is longstanding and I accept that he is disabled by mental illness within the meaning of the 2010 Act.

[150]Under section 29(7) of the 2010 Act, a duty to make reasonable adjustments is placed on a person who exercises a public function that is not the provision of a service to the public or a section of the public, thereby embracing the Defendant in her exercise of functions in relation to detention. The contrary is not argued. By section 20(1) “where this Act imposes a duty to make reasonable adjustments on a person, sections 1 and 22 in the applicable Schedule apply”; at section 20(2) the duty comprises three requirements including as the first of these “a requirement, where a provision, criterion or practice [PCP] of [the person on whom the duty rests] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”. Here, there are PCPs in relation to considering detention.

[151]The Secretary of State argues that she cannot be legally required to have regard to mental incapacity since section 1 MCA 2005 requires her “to treat the Claimant as having mental capacity in the absence of certification of a lack of capacity by the responsible clinicians in the requisite form applying the required safeguards’.

[152]I respectfully disagree. If one is considering a decision made or to be made by the detainee himself, there is a presumption of capacity. This is not such a decision. In addition, the serious mental illness of a detainee may be one of fluctuating capacity, whereby conceptually it is possible that the PCP would nonetheless place the detainee at a disadvantage; or the lack of capacity might be flagrantly obvious: if the detainee exhibits the sustained conviction that he is a lump of green cheese, one would not need a declaration of the court to see that he appears to lack capacity and/or may be at a disadvantage if representations are not facilitated which might otherwise be made in his interests (e.g. that he would be successfully treated by release from detention to hospital treatment or by compulsory medication in the community rather than in his current detention centre).

[153]Counsel for the Claimant concentrated on the absence of provision in respect of the Claimant, or systemically for those in his category, of any independent mental capacity advocate service to support detainees and represent their interests in relation to decisions made in respect of them. Counsel for the Defendant contended that there are systems in place for legal representation at the public expense including engagement of the Official Solicitor to act for the mentally incapacitated.

[154]Mr Albosh states, “Cases are referred to the MDOT [Mentally Disordered Offenders Team] once a section under the Mental Health Act has been authorised or through a direct referral from the Public Protection Unit of the Ministry of Justice….To assess those cases the MDOT will seek to establish stakeholder relationships with the foreign criminal’s clinician to ascertain the nature of their mental illness and their mental capacity to understand any immigration decisions issued to them, the medication prescribed and the time frame for treatment administered….. the attendance of MDOT at care plan approach meetings are used to inform the decision making process of the case…” (witness statement paragraphs 22-23).

[155]Help is available where a person has been sectioned under the Mental Health Act 1983. An independent mental capacity advocate (IMCA) will be appointed, either by a local social services authority in England or under arrangements made by the Welsh Ministers in Wales (section 130A and 130C, and 130E and 130I respectively MHA 1983). The IMCA is to be available to help the patient, to obtain information about and understand the provisions of the 1983 Act for his compulsory treatment, what treatment is proposed and by representation or otherwise in respect of exercising his rights under the 1983 Act (sections 130B and 130G respectively). Likewise they must be instructed to act for incapacitated people in relation to decisions about serious medical treatment or accommodation provided by the NHS or a local authority (MCA 2005 Sections 36-37); and IMCAs may act for incapacitated people in relation to adult protection procedures or care reviews (Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006).

[156]This is in each case a specific statutory remit. Once there has been a civil order for compulsory treatment under section 3 MHA 1983, it may be that as Mr Albosh states, the responsible clinicians can obtain independent advocacy representation for the individual from a designated UK body (statement paragraph 22). However I accept the submission of counsel for the Claimant that there is no such provision for IMCA help or representation in respect of matters that do not arise under section under the MHA 1983 and do not concern health or care home accommodation under the primary and secondary legislative provisions to which I refer in the preceding paragraph.

[157]Counsel argues that the Claimant, as a detainee lacking capacity, was unable to understand the reasons for decisions being made about him, and thereby “unable to participate in the decision making process”. Insofar as this implies participation in the decision, I respectfully do not accept that the detainee participates in the decision itself to detain him. Further it may be that for considerable periods there is little which a detainee can contribute to the determination whether to continue to detain him which is that of the Defendant alone. Again, he may have solicitors, or a charity or a voluntary group, who are able to make representations on his behalf, although this did not apply in the case of the Claimant for several months.

[158]However I can readily envisage circumstances which would make it important that help is available to make representations on behalf of a detainee otherwise unrepresented, if he is mentally unwell enough to do so himself. What if there is a change in circumstances, eg by a crisis of health in a partner not in detention who has been caring for the detainee’s children? What, (as counsel would say here), if his mental health deteriorates and it is not, but ought to be, recognised that his serious mental illness can no longer be satisfactorily managed within detention? What if his mental health improves so as to make arguable release for treatment in the community?

[159]There is thus a potential lacuna in the system. This ties closely with the submissions that absence of representation or provision of help for a detainee who lacks capacity amounts to procedural unfairness. Each is highly contextual. Under the Equality Act, the statutory provisions require a public authority to take “such steps as it is reasonable to have to take” to avoid relevant substantial disadvantage (section 20(2) Equality Act, emphasis supplied). Under common law procedural unfairness, “the principles of fairness are not to be applied by rote identically in every situation, what fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects” (Lord Mustill in Doody

[1994] 1AC 531

HL ).

[160]The Detention Centre Rules and Detention Centre Operating Standards (extracted at paragraph 44 above) do make provision for monitoring and treatment of the mental health and care of a detainee and the Defendant’s policy does require her to consider whether the mental condition of a detainee can be satisfactorily managed within detention. Conversely the detainee himself does not participate in the decision to detain but there is potential need for representations to be made in respect both of whether to detain and what is done during his detention, including where he is detained and what is done while he is in detention. Decision to segregate him would fall within the latter. Therefore on the arguments and materials presented in the present case I consider that the duty to make adjustments under sections 29(7) and 20(2) Equality Act 2010 in essence concern what safeguard or safeguards should be provided against procedural unfairness.

[161]Procedural unfairness during detention. The Claimant advances three categories of administrative decision as being so important for his rights and interests that high standards of procedural fairness were required:(i) the decision to maintain detention, taken at and communicated to him after each detention review;

(ii) the decisions to segregate him; and (ii) the decisions relating to his immigration appeals.

[162]I first remind myself of the further remarks of Lord Mustill in the same passage cited in Doody above, “Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing as favourable result; or after it is taken with a view to procuring its modifications; or both. Since the person affected usually cannot make worthwhile representations without knowing what factors may way against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”(emphasis supplied)

[163]I was referred to Hirst v SSHD

[2001] EWCA Civ 378

and Osbornv Parole Board

[2014] AC 1115

. In the Hirst case a male ‘lifer’ prisoner was re-categorised from Category C to Category B. The principal issue on appeal was whether he was entitled as a matter of fairness to be informed of the reasons for a proposed decision to re-categorise him and have an opportunity to make representations as to that re-categorisation before it had taken place. The court held in his favour. Counsel for the present Claimant draws an analogy with the decision to continue detention upon monthly review, whether to authorise further detention, that the detainee should have the opportunity to make representations: if the detainee is mentally ill, and in particular lacks capacity, the Secretary of State must consider and facilitate what steps should be taken to safeguard his interests, and ensure that representations which might be made on his behalf were entertained.

[164]Hirst (cited above) was a case of unusual intensity of need for fairness. Re-categorisation of a prisoner from category C to category B significantly affected the prospects of his being released on licence, Lord Woolf sympathising with the proposition that in practical terms the decision was likely to result in his release being postponed for at least 2 years; the Court stressed that the case related and related only to prisoners serving sentences of discretional life imprisonment who had served the tariff part of their sentence in full, and were so in a special position (Lord Woolf at [18-19], May LJ at [29]); notwithstanding all this, Lord Woolf found the outcome of the appeal ‘by no means easy to determine’. On the other hand, in the present case each decision on review affects whether the detainee is or is not to be released immediately.

[165]In Osbornv Parole Board (cited above) a prisoner recalled from release on licence challenged the refusal to allow him an oral hearing. The Supreme Court considered that the Parole Board should hold an oral hearing before determining an application for release. It was impossible to define exhaustively the circumstances in which an oral hearing would be necessary, but these included cases where facts which the Parole Board considered important were in dispute; where it was maintained on tenable grounds that a face to face encounter with the Board, or questioning of those who had dealt with the prisoner, might substantially assist his case; where it would be unfair for a “paper” decision made by a single member of the Parole Board to become final without allowing an oral hearing ‘for example, if the representations raise issues which place in serious question anything in the paper decision’ (at [2(ii)] of the joint judgment.) This again concerned longer term detention, but it is closer to the decisions in the present case to segregate.

[166]The case of Bourgass v SS for Justice [2015] 3 WLR SC directly concerned the decision to segregate, and the inability of a prisoner by reason of mental illness to understand why he had been segregated. The decisions under scrutiny were for much longer term segregation than in the present Claimant’s case. However two passages from the joint judgment are illuminating: “Whatever the position may have been in the past, the approach described in Doody and Osborn requires that a prisoner should normally have a reasonable opportunity to make representation before a decision is taken by the SoS under rule 45(2). That follows from the seriousness for the prisoner of a decision authorising his segregation for a further 14 days; the fact that authority is sought on the basis of information concerning him, and in particular concerning his conduct or the conduct of others towards him; the fact that he may be able to answer allegations made, or to provide relevant information, and in those circumstances, from the common law’s insistence that administrative power should be exercised in a manner which is fair.” at [98] “A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to respond” (at [100] ). (The actual decision was that segregation beyond the initial period of 72 hours was not authorised by the Secretary of State and was therefore unlawful).

[167]It seems to me clear that there can be issues upon which representations might be made by or on behalf of a detainee, but which are not considered because the detainee is mentally not able to make them himself. In the present case, adverse comment was made in three later reviews that the Claimant was not co-operating with his immigration appeals (and thereby prolonging his own detention) whereas his non-attendance or participation was instead on account of his mental illness. In another case, (or, for all I know, in the present), where decision is made to segregate him a detainee may, if he were able to express himself, not accept that his conduct was as alleged. If it is, and is repeatedly as alleged, and requires his segregation for his own safety or the safety of others, it may be arguable that treatment elsewhere (whether under section or by community treatment order) should be considered; in respect of need for treatment there are already in place the defined responsibilities of clinicians which I identify above but there is a balancing exercise to be performed in the judgment of the Secretary of State by her officers and representation might be made on behalf of the detainee as to that aspect. If the detainee is not represented by solicitors or any other person or group, mental illness may deny him sufficient understanding to seek to challenge his continuing detention in a case such as the present, whether as to misinterpretation of her policy or its justifiable application. The longer the period of serious mental illness and continuing detention, the more likely it seems to me that the Secretary of State will be required to consider by her officers whether independent representation of his interests is required by some third party or someone akin to an IMCA.

[168]I do not seek to define the circumstances which fairly require independent representation by an IMCA or the like but I would not restrict them to cases of sustained or formally declared lack of capacity. If over a very long period there is a fluctuating condition of detachment from reality, it may become clear that his interests cannot fairly be represented or put forward by the detainee himself. Under present legislation there is no discretion or power to enlist the services of an IMCA proper if the decision in question falls outside the statutory remit in the categories I identify above. Unless and until the detainee is sectioned, the present system has no provision to fill the gap even where procedural fairness would require it.

[169]Since the presumption of the policy is one of liberty subject to the further provisions of that policy, the decision to detain is not one in which the detainee himself truly “participates”, and detention is subject in the ordinary case to challenge by review, some substantial trigger is in my view required before the Secretary of State would be required to effect, invite, or secure independent representation. If there has been only a restricted period of such lack of capacity or detachment from reality, I consider it is for the Claimant to show that it would not be artificial or over-burdensome for the Defendant not so do so. Equally I accept that temporary segregation decisions are often taken for individual operational reasons which will often demand a rapid response. It would be heavy handed and often difficult to require some formal representations in each such case, particularly where segregation may be of short duration as it was up to 24 March 2015 in each case here save one (that of 21/02/2015 to 24/02/2015). If segregation occurs repeatedly, and for longer duration, that may become a substantial trigger.

[170]On 24 March 2015 the Claimant was placed in segregation and remained there until 31 March 2015. I remind myself that notice of a determination is usually required before it can have the character of a determination with legal effect in order that there is an opportunity to challenge it (cf Anufrijeva

[2004] 1 AC 604

at 621B) and if it cannot be understood by the recipient the opportunity of challenge may be rendered illusory. This was the fifth occasion of segregation in less than 5 weeks and lasted for 7 days. On 31 March 2015 the records indicate that the Claimant attended a segregation review. Counsel says that since he was incapable of understanding the reason for his segregation or making representations about it, a mechanical review was rendered meaningless and the Claimant was subject to detriment. I understand the argument but I do not accept it in the present case: the review on 31 March 2015 was followed by his release from segregation on that date.

[171]Overall, I do not consider that the claim procedural unfairness succeeds in respect of segregation in the present case. The Claimant has not pursued the challenge to the lawfulness of his segregation on individual occasions during his detention made in the original grounds of claim. The increasing use of segregation lies within a period of some 5 weeks. The last occasion led to review which was effective in his interests.

[172]The present is a case of a detainee who had no representation by solicitors or a third party. As to continued detention overall, (at least on the evidence and material available to the Court in the present case), I consider that Ms Spurrier has shown that systemically the present arrangements for detention do have a risk of procedural unfairness in the case of a detainee who for a long and sustained period is lacking in capacity or otherwise by mental illness disabled from making effective representations in his own interest upon or otherwise challenging the justification for his continued detention, whether by misinterpretation of policy or its justifiable application. The misinterpretation of policy made in the present case, as to a mental condition being “satisfactorily managed” within Chapter 55.10, shows that in a given case the detainee may need help to consider or to make such a challenge.

[173]It is not for the Court to define generally what adjustment or provision should be made by the Secretary of State so as to satisfy the duty of procedural fairness and/or provision under the Equality Act 2010 for such a detainee.

[174]It is not suggested here (as I understand it) that monthly review requires a formal hearing on each occasion of review. As set out above, I do not accept that the Claimant lacked capacity on a sustained basis from January 2015; further I adopt my assessment above as to the period during which there was very serious and plummeting deterioration in his condition. Whilst sustained formal lack of capacity may not be required for a successful challenge, (see paragraph 171 above), in the light of that assessment I do not consider that it has been shown that the Claimant was disabled from making effective representations in his own interest upon, or otherwise challenging the justification for his continued detention, for the sustained period which I consider necessary to support a claim that his detention was unlawful for procedural unfairness.

[175]As to decisions relating to immigration appeals, it seems to me that no duty can rest on the Secretary of State to facilitate, or support the detainee in, appeals to the Tribunal in proceedings which are in the remit of the Tribunals service (or now, part of Her Majesty’s Courts and Tribunals Service) and counsel expressly disclaims any argument that the Defendant should appoint or fund a legal representative in those appeals.

[176]It follows that in the present case I find against the claims to treatment in detention in breach of the Equality Act and/or under procedural safeguards.

[177]Recovery of damages and/or whether claim is barred by reason of section 31(2A) Senior Courts Act 1981. The Defendant asserts in respect of each claim that the Claimant is not entitled to declaratory relief in relation to his unlawful detention challenge because “it is highly unlikely that the outcome for the Claimant would be substantially different if the matters complained of did not occur”, and therefore comes within the words and purpose of section 31(2A) of the 1981 Act which bars declaratory relief.

[178]Section 31(2A) was introduced by amendment under the Criminal Justice and Courts Act 2015. I therefore consider first the law as it stood prior to this amendment.

[179]In the case of Lumba v SSHD

[2012] 1AC 245

SC it was established that where a policy is unlawful, or the application of the policy is in unlawful breach of the policy, a Claimant may be entitled to a declaration of unlawfulness and to nominal damages even if he could and would have been detained if the power had been exercised lawfully. “…. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim…. Errors of this kind do not bear on the decision to detain…..” “Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort [of false imprisonment] has not been committed”. (Lord Dyson at paragraphs 68, and 71).

[180]I gratefully adopt the distillation of Lumba principles by Singh J in R(HA (Nigeria)) –v- SSHD

[2012] EWHC 979 (Admin)

, namely: “I derive the following principles from those passages:(1) The tort of false imprisonment requires proof that the Claimant was detained directly and intentionally.

(2) The Defendant must then be able to show that there was lawful authority for that detention.

(3) If the Defendant had the power to detain but exercised that power in a way which is vitiated by an error of public law, the apparent authority will fall away and the Defendant will not in truth have the lawful authority she needs in order to justify the detention.

(4) Not all public law errors will vitiate the authority to detain, only those which bear upon and are relevant to the decision to detain.

(5) Since the tort is actionable per se and does not require proof of damage, the Defendant will have committed that tort even if, had she not made the relevant error of law, she could and would have detained the Claimant. There is no requirement for ‘causation’ in that sense.

(6) However the question of whether the Claimant would have been detained in any event will be relevant to quantum of compensatory damages.” (Singh J at paragraph 143).

[181]Prior to enactment of section 31(2A) of the 1981 Act as amended, the courts have repeatedly emphasised the importance of the liberty of the subject. Unlawful detention by reason of public law error is not a technicality but a matter of central importance. In particular, since the tort of unlawful imprisonment does not require proof of damage, the Defendant will have committed the tort if exercise of the power to detain is vitiated by error of law irrespective of whether she could and would have detained the individual had she not made the error; that it is a question which goes to damages and not to liability. It would be surprising in the extreme if Parliament intended by that section, which goes to declaratory relief, to deny recovery of damages in respect of unlawful detention. There is a natural candidate for exclusion in, say, discretionary award of damages in respect of technical default in notifying each and every relevant person to whom notice of a planning application should have been sent; or other entirely technical default. I accept the submission of the Claimant that it is not credible that section 31(2A) was intended to prohibit declaratory relief in circumstances where the Defendant has falsely imprisoned someone. It is not therefore necessary for me to consider the submission which counsel filed following the hearing inviting me under Pepper v Hart to examine the content of Parliamentary proceedings or any Governmental Explanatory Note.

[182]It is also submitted for the Defendant that the outcome was no worse for the Claimant at any stage, because he would have been compulsorily detained in any event: the one in detention, and the other in hospital. I disagree. In March/April 2015 the Claimant would be subject to compulsory detention whether placed in hospital under section or in continued detention in the IRC, but in the one he would have the treatment and medication (enforced if necessary) which he urgently required, administered by professionals ‘equipped to deal with difficult and severe mental health conditions’ (Rule 35 report); whereas in ordinary detention he would not.

[183]For the avoidance of doubt, I consider that from June 2014 detention was not unlawful, notwithstanding the error of interpretation of whether his mental condition could be “satisfactorily managed”, since further or alternatively the Defendant considered and exercised her power to detain on the basis that “exceptional circumstances” existed; and the Claimant has not established that this was a conclusion rationally not open to her.

[184]R (IM) (Nigeria)) -v- SSHD

[2013] EWCA Civ 1561

. I mention this case because counsel for the Defendant placed considerable emphasis on it. There the detainee was declining to take diet and regular fluids for a prolonged period, stating he would rather die than be deported. It is undoubtedly a stark case in which the medical assessment at the IRC was that he was unfit for detention, that remaining in detention he was at risk of further deterioration to his physical and mental wellbeing and a part of the summary contemplated at least for the future an end of life plan. Yet the court at first instance and on appeal upheld his continuing detention as lawful.

[185]I consider IM to be wholly different from the present case. The Claimant had capacity to understand the significance and consequences of his decision (so that the officer responsible for refusing release “was faced with a situation in which the only thing which prevented the Claimant from receiving hospital treatment was the Claimant’s refusal to receive it, save on the condition that he should first be released from detention” (Lloyd Jones LJ paragraph 7(3) and 77). Further the Court was principally concerned with the interpretations of sections 47 and 48 MHA 1983 and interlocking provisions as to what statutory power there was to detain persons, pending their removal from the United Kingdom, in a hospital. It was not contended there that Hardial Singh principles had been breached.

[186]In order to minimise costs, I propose to hand down judgment in writing in the absence of the parties, reserving judgment as to any consequential matters if not agreed for oral hearing which shall be an adjourned hearing of the handing down of judgment. Counsel are invited if possible to agree the form of the Order including consequential matters, but counsel for the Claimant shall in any event lodge a form of order for approval within 21 days of formal handing down of judgment, and shall if consequential matters are not agreed inform the court of the extent of disagreement so that directions may be given either for written submissions upon the matters outstanding or for restoration for oral argument.

[187]Circulation of judgment in the present case has been delayed, by technical and then by (severe) family medical mishap. I much regret that and I hope it has not occasioned undue difficulty to counsel or the parties.

[188]Postscript 1. Since return from leave, I have received a written submission from counsel for the Claimant dated 21 January 2016 which identifies further disclosure of medical notes made since the hearing and makes short submissions in the light of it. Counsel recognises that judgment has been drafted but states that it is in a spirit of candour that the relevant material and submissions are submitted for consideration. I have received a submission in reply on behalf of the Defendant which expressing strong opposition to the material being considered when the hearing in long over and no application as such has been made to receive further evidence.

[189]Counsel for the Claimant identifies a number of individual entries describing thought disorder, delusional ideas and chaotic behaviour on and after 8 April 2015, and a report from Dr Kassia Lowe on examination of the Claimant himself on 9 April 2015 and consideration of his records.

[190]Out of caution, I have considered this material albeit only at this stage de bene esse. The entries as to 8 April 2015 and thereafter (as summarised by counsel) are not inconsistent with the conclusions I formed in the judgment; the report of Dr Lowe dated 13 April 2015 is made upon examination on 9 April 2015 and would not itself have been available to the Defendant until some later date; on their face the observations of Dr Lowe, insofar as made upon consideration of the prior records of the Claimant, are made upon records which I have myself already seen and considered with care and in any event are not inconsistent with the conclusions which I have reached.

[191]Accordingly I do not propose to alter or revise this judgment in the light of the submission of counsel dated 21 January 2016.

[192]Postscript 2. On circulation of the judgment for correction of typographical or obvious error, I received an e-mail from counsel for the Defendant, asking me to clarify a particular point. First, it also seeks to make submissions on the point; second, I have not fully grasped the ambit of pure clarification required; third, I consider it better that handing down of judgment is not further delayed and that matters of remedy be dealt with in the usual way as part of consequential matters. If further submission is to be made as such, it is better that it be done in full and considered form and with opportunity to opposing counsel to articulate any objection, (already foreshadowed by e-mail in reply), and/or to submit a considered submission in reply.