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Cite as: [2011] ECHR 150
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24 January 2011
FOURTH SECTION
Application no.
52058/09
by A.M. and Others
against the United Kingdom
lodged
on 16 September 2009
STATEMENT OF FACTS
THE FACTS
The first applicant, A.M., is a Ugandan national who was born in 1975. The second applicant, H.M., was born in 1971 in the Sahara and is currently stateless. The first and second applicants live in the United Kingdom. The third applicant, L.M., is a Kenyan national who was born in 1974. He currently lives in Kenya. The applicants are represented before the Court by Ms C. Ferguson of Liberty, a lawyer practising in London.
The circumstances of the case
1. The factual background
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were detained in Harmondsworth Immigration Removal Centre (“the centre”) during a disturbance which took place in November 2006.
At the relevant time the centre was managed by Kalyx Ltd., a private company which had a contract with the Home Office. For many years, it had been the cause of considerable and persistent concern. Following an inspection in 2002, Her Majesty's Inspectorate of Prisons noted that it was not a safe or respectful environment and did not meet three out of four of the tests for a healthy custodial environment: safety, respect, purposeful occupation and preparation for release.
The centre was closed for three months following a disturbance on 20 July 2004, which resulted in extensive damage to the fabric and fittings of the buildings. A report into the incident found that in the weeks prior to the disturbance detainees had been required to pay for drinking water. More significantly, a detainee was found hanged and fellow detainees were suspicious about the circumstances surrounding the death.
A second inspection took place in February 2005. It found that some progress had been made since the 2002 inspection. However, a report produced following a third inspection in July 2006 painted a bleaker picture. The report noted that the centre was not performing well against any of the tests for a healthy custodial environment. At the heart of the problems were the poor relationships between custody officers and detainees and an over emphasis on physical security which “was more appropriate to a high security prison than a removal centre run under the rules that require 'secure and humane detention under a relaxed regime'”. More than sixty percent of detainees said that they felt unsafe at the centre and the main fear was of bullying by staff. In particular, detainees described officers as “aggressive”, “intimidating”, “rude” and “unhelpful”, especially to those who did not speak English. The use of force and temporary confinement were high but by contrast support systems for detainees were underdeveloped and the complaints system was distrusted and ineffective.
At 9.25 p.m. on 28 November 2006, the same day as the third report was published, a disturbance broke out at the centre which lasted for some thirty-three hours. Immediately following the disturbance, detainees were interviewed by the police with a view to establishing who had been involved.
On 1 February 2007 the Secretary of State for the Home Department commissioned Robert Whalley CB, a retired civil servant who had worked in the Home Office for most of his career, to investigate the circumstances surrounding the disturbance. However, Mr Whalley was not asked to investigate any specific incidents which took place during the disturbance and he did not speak with any of the detainees who were present at the material time.
2. Allegations of ill-treatment
During the disturbance two detainees managed to call Bail for Immigration Detainees (“BID”). The first call was taken at 10.50am on 29 November 2006. The detainee stated that he had been locked in his cell and was unable to breathe on account of a gas leak. He had not been given any food or water and was sharing a bottle of water with some other detainees. The second detainee called at 11.30 a.m. the same morning. He had been locked in a cell with no windows since 6 a.m., he was having difficulty breathing and he could smell gas. He had no access to a toilet and had had to urinate in a bag. He had also heard other detainees being beaten by riot police outside his cell. BID immediately contacted the Detention Services Policy Unit of the Home Office Immigration and Nationality Directorate to notify them of the reports. BID was later contacted by officers from the Metropolitan Police, whom they also informed about the telephone calls. Moreover, in a letter dated 9 March 2007, BID wrote to Mr Whalley setting out the allegations that detainees were ill-treated during the disturbance and requesting an independent public investigation.
Liberty obtained statements from a number of detainees, including the applicants, all of which supported the allegations made by the two detainees who had telephoned BID.
The first applicant stated that at 10 p.m. on 28 November 2006 detainees in his wing (C wing) were ordered outside into a cold exercise yard and were returned to the wing half an hour later. The first applicant was then locked in his cell, which was next to an association room. At 11.10 p.m., some detainees started a fire in the association room and the first applicant's cell was filled with smoke. He collapsed due to smoke inhalation and awoke in a reception room. He had been given oxygen by a doctor, but had to lie on the cold floor. He remained in the reception room until 9 a.m. the following morning. During this time he was allowed to use the toilet but was not given food or water. He was also refused a change of clothes. At 5 p.m. he was transferred to another centre where he was given food and water on arrival.
The second applicant had a cell in B wing. At 7 p.m. on 28 November 2006 he was evacuated to the exercise yard, where he was kept for three hours. A struggle ensued as detainees tried to return to the accommodation block and during the struggle he was punched in the cheek by an officer and knocked to the ground. He was then locked in his cell with three other detainees. When a fire started upstairs, the cell began to fill with smoke but detention officers did not let the second applicant or the other detainees out of their cells. After about three hours, another detainee forced the door open. The floor outside was flooded and everything was broken. From that time onwards, which the second applicant estimated to be approximately 1 a.m. on 29 November 2006, until the morning of 30 November 2006, he was made to stay outside in the cold while the fire continued to burn in B wing. During this time he drank water from a tap and ate some food from his possessions. He had no access to a toilet and had to urinate on the ground.
The third applicant's cell was in A wing. At 1 a.m. on 29 November 2006 he went into the corridor to find that the detention officers had fled and water was everywhere. He returned to bed and awoke at 3 a.m.. A fire had set off the corridor sprinklers and stopped the air circulation in the air conditioning system. As a consequence it became very hot. At 8 a.m., while returning from the toilet, he saw a Rapid Response team so he returned to his cell and closed the door behind him. Once the door was closed it could only be opened by an officer with a master key. Later he banged on the door to be let out but he was told to “shut up”. During the time he was locked in the cell, the third applicant had to urinate on the floor. He also noticed water seeping into his cell from the corridor. Eventually, at around 5.45 a.m. on 30 November 2006, the door to his cell burst open and 10 – 15 riot police came in. When the third applicant jumped up, he was struck on the right knee and hip with a baton and pinned to the bed. He was taken to an exercise yard, where he was made to stand in the cold for five hours. He was then given a packet of biscuits, fruit and water before being transferred to another centre. However, the journey took nine to ten hours and he was given nothing further to eat or drink until he arrived at his destination.
The applicants also complained of their treatment by detention officers prior to the disturbance. In particular, the second applicant, who suffered from a painful back problem, alleged that on one occasion he was “thrown” into a wheelchair and left in the clinic. He also described how detention officers tried to trip him up and called him a “fucking negro”. Moreover, the second applicant claimed that he had lodged six complaints against detention officers but had never received a response.
On 21 May 2007 Liberty wrote to the Secretary of State for the Home Department, enclosing statements from the applicants and other detainees. They asked for an independent public inquiry into the causes of the disturbance and the treatment that the applicants had suffered at the hands of the detention officers. They suggested the following terms of reference:
“1. To inquire into the circumstances leading up to the disturbance at Harmondsworth Immigration Removal Centre that began on 28th November 2006, including the conditions of detention and treatment of detainees by immigration staff, with the aim of establishing the underlying reasons why the disturbance took place.
2. To investigate the manner in which the disturbance was managed including the treatment of detainees by immigration officers, contract personnel, prison service officers, police and any other non-detained persons during the disturbance and its aftermath.
3. To investigate into the adequacy of the systems and procedures put in place by the Home Office to deal with disturbances in immigration detention centres.
4. To recommend what steps should be taken to prevent such a disturbance happening again and to ensure that the safety of immigration detainees is not compromised in the future, and to report its findings as soon as possible. The public inquiry should be chaired by a senior member of the judiciary.”
No reply was received and Liberty sent a further letter on 14 June 2007. On 2 July 2007 the Secretary of State replied to Liberty. In her letter she refused to initiate a public inquiry on the ground that Mr Whalley was already conducting an inquiry.
On 5 March 2008 Liberty wrote again to the Secretary of State, this time asking for an undertaking that she would not remove detainees who had been present at the centre during the disturbance pending determination by the courts as to whether an investigation was required. In April 2008 the Secretary of State agreed to send a letter from Liberty to all such detainees and undertook not to remove any who contacted Liberty without giving Liberty seventy-two hours notice.
3. The domestic proceedings
On 16 July 2007 the applicants applied for judicial review of the Secretary of State for the Home Department's refusal to initiate a public inquiry and of the failure of the Secretary of State and Kalyx to discharge their positive obligations under Articles 2, 3 and 8 of the Convention to take all reasonable steps to improve conditions at Harmondsworth to avert both the disturbance and the breach of the applicants' Article 3 rights before, during and after it.
At the hearing the Secretary of State accepted for the purposes of the claim that the applicants' allegations gave rise to an arguable claim that they had been subjected to treatment in breach of their rights under Article 3. However, counsel for Kalyx submitted that the Article 3 threshold was not even arguably crossed.
In a decision dated 16 June 2008, a High Court Judge agreed that if the applicants' allegations were true, they each had an arguable claim that their Article 3 rights were infringed in some or all of the following ways: being assaulted by detention officers or prison officers; being locked and kept locked in cells when smoke, the inflow of water and the need to urinate made continued occupation dangerous or potentially injurious to health; being kept outside in the cold for long periods; and not being provided with food or water for long periods. Moreover, the procedural obligation under Article 3 had not been met as the only investigation into the disturbance, which was carried out by Mr Whalley, did not consider the applicants' claims of ill-treatment. However, the judge concluded that the complaints had been communicated to the authorities too late, at a time when it would no longer have been practicable to hold an inquiry with a view to identifying and punishing those responsible. He therefore found that the Secretary of State had not been in breach of the obligation under Article 3 of the Convention to investigate the applicants' allegations of ill-treatment.
The High Court Judge granted the applicants leave to appeal to the Court of Appeal against the dismissal of their claim. The Secretary of State also cross-appealed against the finding that the duty to investigate had not been fulfilled. Prior to the case being heard by the Court of Appeal, counsel for the Secretary of State requested and was granted two extensions of time in which to lodge a Respondent's Notice. Consequently, although the Notice of Appeal was lodged on 22 July 2008, the Respondent's Notice was not lodged until 19 September 2008. The Secretary of State's skeleton argument, which was due on 10 October 2008, was not served until 17 December 2008. The hearing then took place on 5-6 February 2009 and the Court of Appeal gave its judgment on 17 March 2009.
In that judgment, the majority of the Court of Appeal allowed the appeal and dismissed the cross appeal. They agreed with the High Court Judge that the issues raised by the applicants were such as to trigger the State's obligation under Article 3 to investigate what was arguably inhuman and degrading treatment, but they did not agree that the applicants' allegations of ill-treatment had reached the Home Office too late to be given effect. With regard to the scope of the requirement to investigate, the majority indicated that in a case where there were allegations of multiple or systemic breaches of Article 3, criminal or civil proceedings would not normally satisfy the procedural requirements of that Article. Consequently, they made a declaration that the Secretary of State had failed to meet the United Kingdom's obligation under Article 3 to institute an independent inquiry. However, on account of the time that had since passed and the “major resource implications”, they did not order that such an inquiry should take place.
In his dissenting opinion, Lord Justice Longmore indicated that, if left to himself, he would not make such a declaration as he saw no reason why the Article 3 complaints could not be dealt with by recourse to the ordinary processes of the law available in the United Kingdom. In particular, he held that:
“It seems to me that in the present case the allegations of breach of Article 3 can be properly dealt with by the combination of the availability of criminal proceedings and civil proceedings, just as the allegations in Banks could be properly dealt with. The availability of those proceedings thus constitutes compliance with the procedural obligation of Article 3 on the facts of this case. The focus of any inquiry which the court is empowered to order has to be on the alleged breach of Article 3. The wider inquiry which Liberty wants is no doubt "a matter for public and political debate" but does not fall within Article 3.
My Lord takes the view that criminal and civil court proceedings will not ordinarily suffice when allegations of systemic and multiple breaches of Article 3 are made. I think that this puts the matter too widely. If a particular individual or, as in this case, three individuals make one or more allegations of conduct amounting to a breach of Article 3, I see no reason why they cannot be investigated by the police and the courts in the ordinary way. It cannot be right, in my view, that merely by adding an allegation that the conduct is systemic one can be entitled to a public inquiry. There can hardly be a requirement for a public inquiry every time somebody plausibly alleges institutional violence or institutional racism on the part of the authorities. Unless the state's recognised ways of investigating such allegations by the use of legal proceedings or the Ombudsman are appropriate, there will be a risk that there will be considerable public expenditure to little purpose.”
The applicants wrote to the Secretary of State on 15 April 2009 asking her whether she intended to abide by the finding that she had breached her investigatory obligation and initiate an independent investigation in order to remedy the breach. On 15 May 2009 she replied that she had carefully considered the Court of Appeal judgment and concluded that in line with that decision, no such inquiry was required.
On 16 July 2009 the applicants were refused permission to appeal to the (then) House of Lords.
The applicants had brought claims for damages in respect of the alleged violation of their Article 3 rights. On receipt of the Secretary of State's letter of 15 May 2009, they brought a further claim for damages in respect of the investigatory breach. In a decision dated 17 July 2009 the Court of Appeal held that the claim for damages in respect of the investigatory breach had to be made in the context of the civil claim in respect of the substantive breaches of Article 3. The claims were remitted to the Queen's Bench Division for determination.
COMPLAINTS
The applicants complain under Article 13 of the Convention that they were denied an effective remedy in respect of the violation of the procedural limb of Article 3. They further complain under Article 14 of the Convention that the State was in breach of its “additional duty” to investigate violent incidents motivated by racism. Moreover, they complain that the State took a less rigorous approach to investigating allegations of ill-treatment in Harmondsworth than it has shown in investigating allegations of ill treatment in prisons.
Finally, if the Court were to find that the delay in the proceedings was such as to prevent relief being afforded, the applicant's complain under Article 6 of the Convention that that delay was unreasonable.
QUESTIONS TO THE PARTIES