England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FGROM THE ADMINSTRATIVE COURT
(The Hon Mr Justice Moses)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 December 2004

Lord Justice Laws:

INTRODUCTORY

1. This is an appeal, with permission granted by myself on 27 May 2003, against the decision of Moses J given in the Administrative Court on 16 April 2003 when he dismissed the appellant's application for judicial review. That application was directed to the decision of the National Asylum Support Agency ("NASS") – an agency of the Secretary of State – made on 6 September 2001 to disperse the appellant and his family to Glasgow, and also to the later decision of November 2001 to return them to Glasgow. The appeal requires the court to revisit the scope of the United Kingdom's obligations under Article 3 of the European Convention on Human Rights ("ECHR") in a case where the suffering relied on by the alleged victim is the consequence, not of any violence by servants of the State, but of the actions of others to which the victim was exposed following an administrative decision by the Secretary of State. As is well known Article 3 provides: "No one shall be subjected to torture or to inhuman or degrading treatment". By force of the Human Rights Act 1998 public bodies, including the courts and the Secretary of State, are obliged as a matter of domestic law to respect and uphold this and the other Convention rights set out in the Schedule to the statute.

THE FACTS

2. The appellant is of Turkish nationality and Kurdish ethnic origin. He is married with four children of whom the youngest, Ibrahim, was born on 1 June 1988. In December 1999 his two oldest sons, Huseyin and Hasan, arrived in the United Kingdom and claimed asylum. On 19 September 2000 the appellant arrived in the United Kingdom with his daughter Esme (then aged 14) and claimed asylum on arrival. On 30 September 2000 the appellant's wife and youngest son Ibrahim also arrived and claimed asylum. The two older sons had earlier rented a one-bedroom flat in Tottenham, and the whole family now took up residence there. Plainly the conditions were extremely overcrowded. The appellant, his wife and the dependent children (that is to say, the two youngest) were offered accommodation by NASS in Hull. I shall deal with the statutory provisions which provide for NASS' functions in due course. This offer was refused: they preferred to stay in London with the two elder sons. In consequence of that refusal they were issued with vouchers only. So for the time being the family all remained in the Tottenham flat.
3. I should say at this stage that the appellant has a history of psychiatric problems. When he was first seen in the Department of Psychological Medicine at the Barnet, Enfield and Haringey Mental Health NHS Trust on 17 January 2001, he claimed to have suffered from depression for seven or eight years, which he associated with having been tortured in Turkey. He reported nightmares, lethargy, loss of weight and of concentration and other symptoms. He had an appointment with the Medical Foundation for the Victims of Torture in February 2001, and was reviewed at the Barnet NHS Trust in March and June 2001. There is a report from the Department of Psychological Medicine dated 17 July 2001 which confirmed a diagnosis of depression or psychotic depression. The local Social Services wrote to NASS regarding the appellant's medical problems on the same day, 17 July 2001.
4. On 30 May 2001 solicitors instructed by the appellant approached the Haringey Social Services Department with a request for assistance under the National Assistance Act 1948 and/or the Children Act 1989. Then in August 2001 the two elder boys' asylum claims were refused and their social benefits stopped. Subsequently, however, they have both been granted indefinite leave to remain following successful appeals. Also in August 2001 (after he had re-applied to NASS for accommodation), with the assistance of the Refugee Council the appellant was placed in a two-bedroom flat in Thornton Heath.
5. On 6 September 2001 NASS notified the appellant of their decision to provide accommodation for the family at an address on the Toryglen council estate in Glasgow. This decision was taken pursuant to what is referred to in the papers as NASS' dispersal programme to Glasgow, which had been agreed to in June 2000, to be phased in by Summer 2001. Less than 24 hours notice of this dispersal decision was given. O n the same day, 6 September 2001, the appellant's son Huseyin showed NASS copies of medical reports relating to his father. But the decision was maintained, and it was clear that if the offer of accommodation in Glasgow was not accepted, all financial support would cease.
6. So it was that the appellant, his wife, daughter and youngest son travelled to Glasgow on 7 September 2001. The Toryglen estate is predominantly populated by white people. There is a high level of poverty and deprivation. The appellant's family were placed in a flat of a type known as "deck access accommodation": a covered walkway runs along each floor of the building, and the front doors of the flats open on to the walkway. There is no controlled entry system, nor any kind of concierge arrangement.
7. The evidence, in particular that contained in the appellant's wife's witness statement, shows that the family was subjected to extremely distressing levels of racial abuse and harassment within a very short time of their arrival on the Toryglen estate. They were abused in the street. They were threatened with dogs. They were spat at and sworn at. They were warned by other asylum-seekers not to go out at night. There were problems with shopping in the supermarket. Ibrahim was bullied at school. Esme, the daughter, was too frightened to go to school at all. The appellant's health got worse. His wife says in her statement: "the hatred we encountered was shocking".
8. Then on 27 October 2001 the appellant's family's flat was attacked by a group of men. They threatened Ibrahim with a knife. This incident was treated by the police as a racist attack and the family was housed in emergency accommodation elsewhere in Glasgow that night. They returned to London the next day, 28 October 2001, and moved in with the appellant's brother-in-law and his family, again in overcrowded accommodation.
9. On 6 November 2001 the appellant's solicitors wrote to NASS requesting emergency accommodation. They said this:

"In view of their traumatic experiences in Glasgow, we trust that you will agree that future dispersal to Glasgow would be inappropriate. Our client and his family would, however, be prepared to consider a dispersal to Leicester where they have family."

The letter describes the racist attack which had taken place on 27 October 2001. NASS indicated very promptly that it would investigate these allegations of racial violence, but stated "that it would be reasonable for you to stay in your allocated accommodation [that is to say, on the Toryglen estate] until there has been a comprehensive investigation and decision made on whether relocation is warranted". The appellant's solicitors indicated by letter of 13 November 2001 that their clients would remain in London pending the Home Office investigation. They stated also that the decision to return the family to the same address in Glasgow meantime was "perverse given the circumstances". Then on 22 November 2001 there was a substantive letter from the Home Office, which stated:

"The police have recommended that Mr Gezer and his family should be allocated alternative housing within the Glasgow dispersal area.

After careful consideration of the information available the Secretary of State is satisfied that it is reasonable for Mr Gezer to return to Glasgow. Mr Gezer and his family should travel back to Glasgow on Wednesday 28 November 2001…"

It should be noted, though it is plain enough, that this was not a proposal to return the family to the Toryglen estate.

10. The appellant's solicitors asked for this decision to be withdrawn, stating that the children were too terrified to return to Glasgow. But the decision was maintained. The family declined to return to Glasgow, and in consequence were held to be entitled only to subsistence support. So much was confirmed by letter from the Home Office dated 27 November 2001. However, no vouchers underwriting that support were provided until 30 January 2002. It seems that the Home Office accepted that this was due to a "clerical error". We were told at the hearing that the shortfall was made up by the Home Office retrospectively.
11. At length upon consideration of a report from the Medical Foundation for the Victims of Torture, it was decided on 11 March 2002 to withdraw the decision to disperse the family back to Glasgow. Permission to seek judicial review was granted the next day by His Honour Judge Wilkie, as he then was.
12. For completeness I should indicate what as a matter of fact has happened since. The appellant and his family were all granted indefinite leave to remain on 22 June 2004. NASS terminated their support on 21 July 2004. An application was made to the London Borough of Enfield pursuant to Part VII of the Housing Act 1996 for accommodation as homeless persons. After some dispute the application was accepted on 17 August 2004 and the family are now accommodated in Edmonton.
13. I shall have to say more about a particular aspect of the facts, namely the extent to which racial abuse and violence on the Toryglen estate was known to various public bodies before 6 September 2001, in order to address the principal complaint made in these proceedings by Mr Rabinder Singh QC for the appellant. But it is convenient first to introduce the relevant legislation, and then to formulate the issues that arise for this court's determination.

THE IMMIGRATION AND ASYLUM ACT 1999

14. Apart from the Human Rights Act 1998, which I need not cite, the material legislative provisions are contained within the Immigration and Asylum Act 1999 ("the 1999 Act"), as follows:

"95(1) The Secretary of State may provide, or arrange for the provision of, support for –

(a) asylum-seekers, or

(b) dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute…

96(1) Support may be provided for under section 95 -

(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants…

97(1) When exercising his power under section 95 to provide accommodation the Secretary of State must have regard to –

(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim;

(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation…

(2) But he may not have regard to –

(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided…"

THE ISSUES

15. The issues in the case were not adequately formulated in the judicial review claim form. The first and major question is whether, because of what they should have known, and what they in fact knew, NASS should not have dispersed this family to the Toryglen estate in September 2001. The reference to what they should have known is to the history of racial abuse and violence on the estate. The reference to what they in fact knew is to the state of the appellant's mental health.
16. If this issue were to be resolved in the appellant's favour, another question would arise, namely whether the appellant should be entitled to damages and if so in what amount. The decision of NASS given by letter of 22 November 2001 that the family should be returned to Glasgow is relevant to that issue. It became plain, to my satisfaction at least, after some discussion at the outset of the hearing, that this second decision does not give rise to a separate free-standing public law complaint.

THE APPROACH OF THE JUDGE BELOW

17. Moses J said this:

"(47) It seems to me the essential question is whether the risks of which NASS ought to have known at the deck access housing on the Toryglen estate were of such gravity as to require a decision to have been made before October 2001 not to accommodate asylum seekers in such housing on the Toryglen.

(48) This depends on whether the risk of racial violence coupled with abuse had reached such a level that it was no longer reasonable to rely upon police protection. Unless it had reached such a level, the policy considerations which I have identified made it reasonable to rely upon the protection afforded by the police, coupled with the support provided to asylum seekers.

(49) I should say at the outset that I am concerned at the apparent ignorance of NASS as to increasing problems on the Toryglen estate. Whilst much of that information has only been made available in consequence of the order after the first day's hearing before a different judge, it does not seem to me sufficient that NASS relied upon statistics available in September 2002, which were only relevant up to the end of December 2001. It seems to me that there ought to have been in place a system whereby such information was updated to cover at least the first part of 2002. But that is of no avail to the claimant unless on receipt of such information, NASS ought to have declared the deck access property, a 'no go' area before the dispersal of the claimant and his family to such accommodation. In my judgment the obligation to provide adequate protection against the risk of racial violence and abuse in such accommodation did not require NASS to ensure that asylum seekers were not accommodated in deck access accommodation on the Toryglen estate. Prior to the incident on 27 October 2001, the police had not advised Glasgow City Council to provide alternative accommodation. It appears from the letter from Chief Inspector McKinlay that it was only after the incident of 27^th October 2001 that he took the view that the situation had deteriorated to the extent that it was necessary to have a meeting to discuss the future use of such accommodation. It was only then that the police appear to have taken the view that such accommodation was no longer viable. I appreciate there were concerns before, but until the police took the view that advice to discontinue the use of deck access accommodation should be given, NASS was under no obligation to discontinue their use. Absent such advice, the measures of protection were, in my judgment, reasonable involving, as they did, police protection which included, as the evidence of the claimant's wife discloses, the provision of an alarm system in at least one flat. The police appear to have taken the view that before the incident on 27^th October 2001, the situation had not deteriorated to the extent that advice to discontinue deck access accommodation should be given. In those circumstances I do not find that the level of protection was inadequate."

18. So it was that the judge stated at paragraph 52 that the decision to disperse the appellant and his family to the Toryglen estate did not involve a violation of ECHR Article 3. He proceeded to consider the question of damages lest he was wrong, and would have awarded (paragraph 55) the sum of £5,000.

THE STATE OF KNOWLEDGE OF THE CONDITIONS ON THE TORYGLEN ESTATE

19. Mr Rabinder Singh drew our attention to a number of documents to demonstrate that various agencies were well aware of the grave extent of racial violence and abuse prevailing on the Toryglen estate. I will not cite all of them. A body called Positive Action Housing wrote to the appellant's solicitors on 21 March 2002 to say:

"Around half of current casework surface users are asylum seekers and refugees and 90% of them cite racial harassment as their primary problem. This ranges from verbal racist abuse to spitting, stone throwing, and physical assault."

20. The same body, in a report of 13 February 2003, stated that "Toryglen is something of a no-go area for ethnic minorities, refugees… and dispersed asylum-seekers", and gave some detailed reasons. The Strathclyde police collected statistics of "racist incidents" for the period April 2001 to March 2002. They show, in general terms, a particularly high rate of such incidents in the area covered by G Division, which includes the Toryglen estate.
21. In addition to these materials there are letters from Chief Inspector McKinlay which, if I may say so, are conspicuously careful and balanced. Writing to the Glasgow Asylum Support Project on 1 November 2001, in relation particularly to the appellant and the deck access property at Toryglen where he had stayed, the Chief Inspector said:

"The situation at this location causes me considerable concern. There is a significant problem of disorder by young people, many of whom are targeting asylum seekers in what can only be described as racially motivated attacks.

Despite increased police patrols the acts of disorder continue. Local officers feel that the 'deck access' houses there are not suitable for asylum seekers due mainly to the lack of concierge support and controlled entry systems. They feel that this family [viz. the appellant's] should be allocated alternative housing in Glasgow and I fully support this view."

Then on 4 April 2002 the Chief Inspector wrote to the appellant's solicitors. He drew attention to the difficulties (in terms of accommodation for asylum-seekers) caused by the "deck access" properties from the beginning. Then he said this:

"The situation regarding the houses deteriorated to such an extent that on Thursday 1 November 2001, a meeting was held in Toryglen to discuss their future use. Representatives of Glasgow City Council Housing, Glasgow Asylum Seekers Support Project and Strathclyde Police were present.

As the police representative, I took the view that the continued use of the 'deck access' houses as accommodation for asylum seekers was no longer viable due to the number of incidents where they were victims. Although this view caused them severe difficulties the City Council accepted this advice and decided to discontinue their use. …

In general the situation for asylum seekers is Glasgow is not as bad as the media would portray …

There are now between 7,500 and 8,000 asylum seekers and refugees resident in Glasgow, the vast majority of whom have settled well and seem happy there. Health, education and social services facilities are in place and are well structured, offering a wide range of services to dispersed asylum seekers.

In conclusion, while it is acknowledged that your client suffered trauma while at 86 Prospecthill Circus, from a policing point of view there is no reason why he and his family could not have been accommodated elsewhere in the city."

22. I should also record the fact that a Kurdish asylum-seeker was murdered during 2001 in another area of Glasgow, Sighthill. On 22 April 2002 Chief Inspector McKinlay wrote to NASS, stating:

"… no evidence of a racial motivation was led during the trial and the charge was abandoned by the prosecution before the jury were asked to consider their verdict. The police stance has always been that we would not rule out a racial motivation."

23. It will be apparent that none of the materials to which I have referred pre-date 6 September 2001 when NASS decided to disperse the appellant and his family to the Toryglen estate. However it is submitted for the appellant that the lamentable state of affairs at Toryglen must have been ascertainable, if it was not notorious, before September 2001, and if NASS in truth were not aware of it, they should have been; and had they made reasonable and adequate inquiry they would have been. The Secretary of State for his part has put in evidence before us in the shape of statements made by Mr Meares, who until late April 2002 was Senior Investigation Officer within NASS. He states at paragraph 6 of his third statement:

"The material Ms Guest [sc. the appellant's solicitor] has provided relates to information made available to either Strathclyde Police or Glasgow City Council, and not to NASS. I repeat that I had no knowledge of any specific problems with 'deck access' accommodation prior to November 2001, and that if any information had been received elsewhere in NASS I would have expected it to have been passed to me."

There is no reason to doubt this evidence and I accordingly accept it.

THE LAW

24. There is now a good deal of learning, of these courts and of the European Court of Human Rights, as to the impact of ECHR Article 3 upon a case where the suffering relied on by the alleged victim is the consequence, not of any violence by servants of the State, but of circumstances or the actions of others to which in either case the victim was exposed following an executive decision by the State. Now, it is plain that the paradigm case of a violation of Article 3 – what I have called category (a)^[1] – consists in the deliberate use of unlawful violence (or, no doubt, other grave ill-treatment) by servants of the State; but the courts have also allowed other instances^[2] - category (b). There is a sub-division within category (a) between acts of violence by State servants which the State has actually authorised, and other such acts by State servants which are not so authorised. And this latter class may be further subdivided, into cases where the State servant is acting in the course of his duty but uses excessive force, and cases where he has no colour of authority whatever for what he does^[3]. All other breaches of Article 3 belong to category (b). In consequence they cover a wide range of factual circumstances, from the prisoner in his cell who is assaulted or murdered by a cell-mate, or indeed who kills himself^[4], to the terminal AIDS patient sent away to die in a hostile environment, suddenly deprived of the comfort and support which he has enjoyed here^[5].
25. Overall, the cases have raised two broad questions. First, what level of suffering will be required in order to demonstrate "inhuman or degrading treatment" contrary to Article 3? Secondly, what kind of action in any given case will exonerate the State from liability under Article 3?
26. Upon the first question, the Strasbourg court has referred^[6] to ill-treatment which "attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering" as being required to fall within Article 3. But there is not a single measure of severity, uniformly applicable across all instances of categories (a) and (b). Cases of unlawful violence (whether by State servants or otherwise) are especially degrading, in a sense in which exposure to other forms of suffering (eg. the consequences of a want of medical care) may not be^[7]. In the present case, however, this first question need not detain us. Moses J has held^[8] that the treatment to which the appellant and his family were exposed crossed the Article 3 threshold, and there is no cross-notice to challenge that finding; indeed it is expressly accepted on behalf of the Secretary of State.
27. This appeal is in truth concerned with the second question: what kind of action in any given case will exonerate the State from liability under Article 3? Now, there is to be found in the cases a well-recognised distinction between a negative obligation not to inflict inhuman or degrading treatment and a positive obligation to take steps to protect persons from forms of suffering sufficiently grave to engage Article 3: see Osman v United Kingdom^[9], R(Pretty) v DPP^[10], Pretty v United Kingdom^[11], R(Q) v Secretary of State^[12], Limbuela v Secretary of State^[13]. It reflects, but is not identical with, the distinction between category (a) and category (b). Category (a) always involves a negative obligation: the State and its servants must absolutely refrain from unlawful violence. Within category (b), however, there are cases where the violation of Article 3 is constituted only by a failure by the State to take positive steps to protect the individual from harm. They include, as the Strasbourg court noted in Pretty^[14], instances of abuse or assault of children by their parents^[15].
28. However the utility of this distinction in the context of Article 3 is limited. It is as I have said not identical with that between categories (a) and (b); some scenarios give rise to both obligations; and sterile arguments can arise, as has happened in this appeal, as to whether the case is one of negative or positive obligation. Thus Mr Rabinder Singh insists^[16] that it is a negative obligation case, thus implicitly seeking to gain advantage from the sharp line which such an obligation entails: it consists in a prohibition to which there are no exceptions. By contrast Miss Carss-Frisk QC for the Secretary of State submits^[17] that the case requires consideration of the State's positive obligation to provide protection, thus implicitly seeking to gain advantage from the measure of judgment and discretion which that concept generally involves.
29. While I would not resile from the reasoning in my judgment in Limbuela, I regret its having encouraged such legalistic classifications. I should, I think, have added a general observation as follows. The State's duty to protect individuals from Article 3 ill-treatment will, depending on the circumstances, sometimes involve refraining from action, and sometimes involve taking action. In the context of the duty to protect the difference is serendipitous. But in category (a) cases – and especially their most heinous instance, State-sponsored violence – it is misleading to speak merely of a duty to protect: such things are, simply, absolutely forbidden.
30. In my judgment this case is not about any such absolute prohibitions. It engages, simply, consideration of the State's duty to protect individuals from Article 3 ill-treatment. What is the rigour or intensity of this duty? Mr Rabinder Singh much pressed the decision of this court in R(A & ors) v Lord Saville of Newdigate^[18], a judicial review case which concerned the question whether the soldiers' evidence to the Bloody Sunday Inquiry must be given in Londonderry (as the tribunal had ruled) or might be received in Great Britain. This court upheld the decision of the Divisional Court which had allowed the soldiers' claim and quashed the tribunal's ruling. Giving the judgment of the court Lord Phillips of Worth Matravers MR said this^[19]:

"28. In R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 987, after adumbrating the various phrases which he considered expressed the same degree of risk, Lord Diplock referred… to the alternative of 'applying, untrammelled by semantics, principles of common sense and common humanity'. We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera… Of one thing we are clear. The degree of risk described as 'real and immediate' in Osman v United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was 'a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party' which was, or ought to have been, known to the authorities… Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.

29. In R v Lord Saville of Newdigate Ex p A [2000] 1 WLR 1855, 1877, para 68(5) Lord Woolf MR said:

'the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk?'

…

30. In the present appeal, the fact that the soldier witnesses will have subjective fears if called to give evidence in Londonderry is a relevant factor when considering whether it will be fair to require them to do so. Those fears will, however, have much more significance if they are objectively justified…

31. We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision…"

31. Mr Rabinder Singh submits that (at least in a context such as the present, where the danger flows from a proposed action by the State itself) the State's duty is to provide protection where the individual faces a real risk of Article 3 ill-treatment; and by "real risk" he contemplates, as I understood him, a risk that is not merely fanciful. This position, it is said, is supported by the court's insistence in Lord Saville that the Convention right (in that case Article 2) is engaged upon its being shown that a degree of risk exists which is distinctly below the "real and immediate" threshold in Osman. Mr Rabinder Singh points to Strasbourg authority such as E v United Kingdom^[20] which, he says, marches with this argument. In E the court said this^[21]:

"The obligation on High Contracting Parties under Art. 1… taken together with Art. 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge."

The reference to vulnerable persons calls up Mr Rabinder Singh's particular submissions relating to the appellant's poor mental health to which I will come in due course.

32. Miss Carss-Frisk submits that Lord Saville establishes no separate or special rule. She drew our attention to the judgment of Auld LJ in Bagdanavicius v Secretary of State^[22], where this is stated^[23]:

"In… the Lord Saville case… Lord Phillips MR adopted a lower threshold, or, put another way, a higher obligation on the state than one of a 'real and immediate risk' because, there, the risk from non-state actors flowed from a proposed positive action of the state itself. But that does not seem to me to establish a separate rule for such a circumstance so as automatically to put it in a 'Soering^[24] category', if such exists. As Lord Phillips MR reasoned, at paragraphs 28-31…, where the threshold lies is a matter of degree and common sense in the circumstances of each case…"

33. In Limbuela I proposed the metaphor of a spectrum, between the worst class of category (a) cases where State-sponsored violence is absolutely prohibited (call this end of the spectrum A) and, at the other end of the spectrum (Z), "a decision made in the exercise of lawful policy, which however may expose the individual to a marked degree of suffering, not caused by violence but by the circumstances in which he finds himself in consequence of the decision"^[25]. The metaphor was intended to demonstrate a sliding scale of instances in which Article 3 might be engaged: from those where the State enjoyed no power of discretion or judgment but was simply forbidden to cause or perpetrate the act which would violate Article 3, to those where the State might enjoy a considerable margin of discretion as to the adoption and exercise of policy notwithstanding that the action taken might be sufficiently grave to meet the Article 3 standard. I said^[26]:

"This figure of a spectrum seems to imply the existence of a point upon the spectrum which marks the dividing line, in terms of State acts or omissions, between what violates Article 3 and what does not. There is such a point, but it does not, I fear, provide a brightline rule by which the court may readily determine whether any particular set of facts falls on this or that side of the line. The point is at the place between cases where government action is justified notwithstanding the individual's suffering, and cases where it is not. Various factors will determine where this place is to be found. They will include the severity of the threatened suffering, its origin in violence or otherwise, and the nature of the government's reasons or purpose in acting as it does."

34. The outcome of the present appeal will in my judgment largely be driven by the view the court takes of a feature not present in Limbuela, and certainly not in Lord Saville. It consists in the question, what if any duty of enquiry was owed by the State (in effect, NASS) to obtain information as to the conditions prevailing on the Toryglen estate before offering accommodation there, pursuant to s.95(1) of the 1999 Act, to asylum-seekers such as the appellant and his family. We know that NASS (through Mr Meares^[27]) were at the material time unaware of any specific problems relating to the deck access accommodation. Should they have armed themselves with greater knowledge of the facts on the ground? The existence and scope of such a duty will depend upon where the case falls on the spectrum. If it lies closer to A, the more appropriate it will be to impose a duty of enquiry, for the case will be nearer to those instances where the State must absolutely avoid the ill-treatment in question. The less so if it lies closer to Z, for then it will be nearer the instances where the State enjoys a power of discretion or judgment in the formation and execution of policy notwithstanding that an individual's exposure to treatment crossing the Article 3 threshold may be the outcome.
35. The point on the spectrum which the case occupies will plainly be affected by those considerations of common sense and common humanity to which the Master of the Rolls referred in Lord Saville. Such considerations themselves suggest that there can be no brightline rule, since their application is wholly dependent on context. I think that Miss Carss-Frisk's submission (made by reference to the judgment of Auld LJ in Bagdanavicius) that Lord Saville establishes no special or separate rule is correct.
36. Features which affect this case's position on the spectrum include the following. First, the case is plainly not within category (a). But secondly, it is a case where the Article 3 ill-treatment in question is not illness or destitution but violence (albeit violence by non-State actors): the racist conduct endured by the appellant and his family was surely nothing else. Thirdly, however, there is the fact that the context of the appeal is not the use of State power to compel the appellant into this or that situation to his detriment but the State's advantage, but rather the offer of material assistance to him which he was free to decline or to reject at any time. It is true that Moses J did not accept "that the family had any real choice as to where to go"^[28]. Plainly he had in mind the extremely limited support that would be provided for the family, in the shape of vouchers for basic supplies, that would be available if the Toryglen placement were refused. Miss Carss-Frisk refers to an observation of Lord Hope in Al-Ameri v Kensington & Chelsea RLBC^[29] stating that asylum-seekers offered NASS support have a choice whether or not to accept it. However that is no statement of law or principle, and with respect cannot have been intended as such.
37. The real point here is that this was a case of choice for the appellant, however bleak and difficult refusal of the support might have been. Miss Carss-Frisk reminds us, as it happens, that at an early stage the appellant in fact refused s.95 accommodation in Hull (though the family was, of course, able to live in the elder sons' small flat in Tottenham, albeit in overcrowded conditions). In short the case is not one where the State has imposed a compulsory result on the individual. That is a circumstance which in my judgment points to a place towards the Z end of the spectrum.
38. Before leaving this general discussion of the law I should notice a distinct submission advanced by Miss Carss-Frisk to the effect that the court should pay a degree of deference to the Secretary of State in relation to his approach to the administration of s.95 of the 1999 Act, and in particular (as I understood her) to the extent of any duty of enquiry into the conditions at Toryglen. She cited R(Bloggs 61) v Secretary of State^[30]. The case involved a decision by the Prison Service to withdraw the claimant's status as a protected witness and to return him to the general prison population. That is a particular context where executive discretion inevitably has a large place. In those circumstances the observations of Auld LJ as to the need "to show some deference to and/or to recognise the special competence of the Prison Service in making a decision going to the safety of an inmate's life"^[31] are simply not in point.

CONCLUSIONS ON THE MERITS

39. It is crucial to have in mind that it is not the appellant's case that NASS should in the summer of 2001 have avoided any placements at all (pursuant to s.95 of the 1999 Act) in Glasgow in general or even on the Toryglen estate in particular. Had such a case been advanced, I would for my part have firmly rejected it. Apart from anything else such a stance on the part of the State would hand an unpalatable victory to the perpetrators of racist violence and intimidation. So much is well recognised in the NASS Policy Bulletin 18, which is before us. But the argument in the present case is rather that the special circumstances of this appellant and his family, and in particular the facts relating to the appellant's mental disability, should have been specifically weighed and balanced against the risk of ill-treatment arising from a placement at Toryglen; and had that been done NASS would, certainly should, have concluded that the appellant's family should not be sent there.
40. I should make it clear that Mr Rabinder Singh rightly accepts that his client's mental disability is not itself a factor which increased the risk that he and his family would be targeted as victims of racial abuse. His case^[32] therefore comes to this. NASS owed no general duty of enquiry into the conditions of the Toryglen estate. But they were on notice of the appellant's fragile psychological state. They should therefore have appreciated that he was especially vulnerable, and accordingly should have made enquiries so as in due course to ensure that he was not exposed to the treatment he and his family suffered at Toryglen.
41. What then does the proposed duty of enquiry actually amount to in the circumstances of this appeal? The suggestion is that NASS, being apprised of the appellant's difficulties, should have looked into the conditions at Toryglen to see that he in particular would be saved from harm. I cannot accept that Article 3 imposed any such requirement. Weighing all the factors, this case is far closer to Z than to A on the Article 3 spectrum. The Secretary of State, through his agency NASS, enjoyed in my judgment a wide power of discretion as to the administration of any scheme of support to be administered pursuant to s.95 of the 1999 Act. He was not required to make special enquiries to save the appellant from harm. Any other conclusion would drive, at least tend to drive, the Secretary of State close to a duty within s.95 to pick accommodation suitable to the particular asylum-seeker.
42. It is, I think, not without interest that the author of the July 2001 report from the Department of Psychological Medicine at the Barnet NHS Trust stated that the appellant's mental difficulties amounted to "an experience which seems to be fairly common amongst other people who have suffered torture and imprisonment and abuse in their native countries". Of course NASS will beg no questions, in the administration of s.95 of the 1999 Act, as to whether any given claimant has in fact been subjected to such abuse; that will be for decision according to the appropriate immigration procedures. But the doctor's comment reveals how problematic the duty of enquiry would be if Mr Rabinder Singh's argument prevailed. And to drive the Secretary of State close to a duty within s.95 to pick accommodation suitable to the particular asylum-seeker would, in my judgment, cut across the grain of the 1999 Act: see s.97(1)(b) and (2)(a). On the facts here, Article 3 ECHR imposes no such duty.
43. The truth is that once NASS became aware of the real problems encountered at Toryglen, and had investigated them, they withdrew any requirement that the appellant and his family return to their address there as a condition of their support pursuant to s.95. That was right and proper. I would hold in terms that the State's duty to protect the appellant from Article 3 ill-treatment was fulfilled. Nothing has persuaded me (given the learning on the subject) that anything in the history of this case discloses a violation of Article 3 by the State.
44. I would accordingly dismiss the appeal. If my Lords agree, no question as to any award of damages arises. Having heard no argument either as to the principle of such an award, or its quantum, I think it inappropriate to say anything more about it.

Lord Justice Carnwath :

45. I agree.
46. Most cases turn on questions of fact rather than law. Human rights cases are no exception, as the present appeal illustrates. We were referred to a large number of authorities from the English and Strasbourg courts dealing with the application of Article 3 to widely varying factual situations. The general proposition which emerges is unremarkable. It is that, in areas of state responsibility, where state action or inaction may lead to suffering sufficiently serious to engage Article 3, the relevant state agency has a duty to take reasonable steps to avoid it.
47. I doubt if it is possible to state a general proposition with greater precision, since the content of the duty depends so much on the nature of the state's responsibility, and on the legal and factual context. It is not surprising that one finds different formulations across the wide spectrum of factual situations covered by the cases; for example, on the one hand, cases concerned with the state's responsibilities in relation to protecting children from violent treatment by their parents (see for example E v UK [2003] 36 EHRR 31, or, on the other hand, the state's responsibilities to British soldiers being required to give evidence in Northern Ireland (see R v Lord Saville [2002] 1 WLR 1249).
48. Emphasis on the factual nature of the enquiry also underlines the importance of the discipline of a properly pleaded case. Central to the complaint in such cases will be an allegation that the state agency has failed to do something which it should have done, against the background of what it knew or ought to have known. The respondent to such a case is entitled to particulars to support each allegation. In the present case the allegation seems to have been formulated for the first time (somewhat unusually) by His Honour Judge Wilkie when granting permission to apply for Judicial Review. He put it in this way:

"…that by the initial decision to disperse to Glasgow made in September 2001 to an estate where there was already evidence of clear hostility and a neighbouring estate in which a Kurdish asylum seeker had been murdered, the Secretary of State for the Home Department ought to have appreciated there was a risk of harm to someone suffering from the effects of torture who had fled to this country…"

49. At the heart of the case, on this formulation, is an allegation that by September 2001 there was evidence of a serious risk and that the Secretary of State should have appreciated that risk. That is the allegation which was answered in the witness statement of Simon Meares, the Senior Investigations Officer responsible in NASS. He referred to the statement of the claimant's solicitor that "the problems facing asylum seekers in Glasgow were widespread and well-known", and should have been known to the Secretary of State by September 2001.
50. He commented that this was "not an accurate picture to paint". He supported this by reference to statistics showing that Glasgow, as compared to other parts of the country, was not "a disproportionately dangerous place for asylum seekers to live", and by reference to a letter from the Chief Inspector of Strathclyde Police. In a later witness statement, he referred again to the letter from the Chief Inspector, to show that deck access accommodation ceased to be used for asylum seekers in December 2001, but that prior to November 2001 NASS had no knowledge of specific problems with deck access accommodation.
51. The judge's conclusion on this evidence is set out in paragraph 49. He said:-

"Prior to the incident on 27^th October 2001, the police had not advised Glasgow City Council to provide alternative accommodation. It appears from the letter from Chief Inspector McKinlay that it was only after the incident of 27^th October 2001 that they took the view that the situation had deteriorated to the extent that it was necessary to have a meeting to discuss the future use of such accommodation. It was only then that the police appear to have taken the view that such accommodation was no longer viable. I appreciate that there were concerns before, but until the police took the view that advice to discontinue the use of deck access accommodation should be given, NASS was under no obligation to discontinue their use. Absent such advice, the measures of protection were, in my judgment, reasonable involving, as they did, police protection which included, as the evidence of the claimant's wife discloses, the provision of an alarm system in at least one flat. The police appear to have taken the view that before the incident on 27^th October 2001, the situation had not deteriorated to the extent that advice to discontinue deck access accommodation would be given. In those circumstances I do not find that the level of protection was inadequate."

52. This finding of the judge, which is wholly supported by the evidence, and was not seriously controverted by Mr Rabinder Singh QC, seems to me the beginning and end of the case. In the light of the knowledge which NASS had, and the advice which it was receiving from the responsible authorities in the Glasgow area, the steps taken were reasonable.
53. I would therefore dismiss the appeal.

Mr Justice Elias:

54. I agree that the appeal should be dismissed and will add just a few brief observations of my own.
55. The legal principles in issue in this case are well established. Where there is a real risk of ill treatment at the hands of non State agents, and the treatment would, absent any protection afforded by the State, involve a breach of Article 3, the State must provide reasonable protection in the circumstances: see the analysis of the relevant caselaw by Auld LJ, with whose judgment the Lord Chief Justice and Arden LJ agreed, in R (Bagdanavicius) v Home Secretary [2004] 1WLR 1207; [2003] EWCA Civ 1605. Sufficiency of protection is not, however, a guarantee that no treatment of the level of severity sufficient to engage Article 3 will occur. Consequently, contrary to the submissions of the appellant, the fact that the treatment did, as the judge found, reach that level of severity does not prove that the protection was inadequate and thereby infringed Article 3. What is required is that there must be an ability and willingness to provide an effective system of protection, having regard to the practical realities: see the observations of Lords Hope and Clyde in Horvath v Secretary of State for the Home Department [2001] AC 489 pp.500 and 510 respectively. In this case the willingness is not in issue, but the ability is. It is alleged that there was no reasonable system of protection in place, and that NASS ought to have been aware of this. However, what constitutes an effective system is fact sensitive and depends on all the circumstances of the case.
56. The appellant submitted that this was a case where NASS was under a negative duty, namely a duty not to send the appellant to deck access accommodation on the Toryglen estate, and that where a negative duty was engaged, there is no balancing exercise involved. It was argued that in such cases there is an absolute duty to prevent Article 3 ill treatment. I do not agree. As Laws LJ has pointed out, and as his judgment in Limbuela v Secretary of State [2004] 3 WLR 561 demonstrates, whilst the distinction between negative and positive obligations is a valuable tool for analyzing the jurisprudence in this area, it does not establish the touchstone by which the nature of the State's obligation can be defined. In this case the negative obligation relied upon only arises if there is a failure by the State to provide appropriate positive protection from the feared ill treatment. The fact that NASS is choosing to place the appellant in this potentially vulnerable environment is, I would accept, a factor to be weighed in the balance when considering whether proportionate steps have been taken to safeguard against the risks. To that extent the appellant can draw some support from the decision of the Court of Appeal in R (A and Ors) v Lord Saville of Newdigate [2002] 1WLR 1249. But as the Court of Appeal noted in Bagdanavicius, the Lord Saville case established no separate rule for those cases where the risk arises as a result of positive action by the State. That, with respect, must be right. There will frequently be action taken by the State in the exercise of its discretionary powers which will involve the risk of treatment at the hands of non State agents of a level of severity sufficient to engage Article 3. The allocation of public sector housing is an obvious example. Sadly there are areas where members of ethnic minorities in particular will be at risk from such hostile treatment, but it would be an unacceptable and disproportionate- and sometimes, I suspect, impossible- burden on public authorities exercising such powers if they had to acquire and provide such housing in areas where there was no such risk at all. Save where there is clear evidence to suggest otherwise, the assumption can surely properly be made that the forces of law and order will provide adequate protection. Indeed, in my judgment it is a material factor to be weighed in the balance that one of the adverse consequences of alleviating the risk by giving up the use of this property altogether is that the individuals who have carried out this despicable conduct will, by their unlawful bullying and intimidation, have achieved their objective. They will have frustrated the democratic process. Of course a situation may unfortunately be reached where it has to be recognized that there is a "no go" area and that the forces of law and order are not adequate. Affected individuals cannot be kept in unacceptable danger simply to uphold the integrity of the democratic process. But it is a perfectly cogent position for the police to seek to control the situation for as long as, and by such means, as they can, and for government policy, whether of NASS or other public agencies, to give due weight to that objective. Whether adequate policing is possible will inevitably be determined in the first instance by the local police force, who will be aware of local conditions as well as available resources. In this case they took the view that they could continue to provide proper safeguards, and they maintained that position until the knife attack referred to by Laws LJ. Once the police had notified NASS that deck access accommodation should no longer be used for asylum seekers, NASS withdrew it. No doubt NASS should be in contact with local police so that NASS are kept aware of any concerns which the police have; but there is no suggestion that that did not occur. What the appellant submits is that the evidence which was available to NASS, and which with proper inquiry it ought to have obtained, clearly demonstrated that the police could not provide adequate protection. As my Lords have said, that is essentially a matter of fact, and I am satisfied that NASS were fully entitled to take the view that the protection was adequate, essentially for the reasons that my Lords have given.
57. However, I respectfully disagree with my Lord Justice Laws' conclusion that a relevant factor to weigh in the balance was that the appellant had a choice whether to go to this accommodation or not. I agree with Moses J. that he had no real choice, at least if he were to take advantage of the rights conferred on him by this legislation. NASS had a duty to provide accommodation; it must exercise that duty in a manner which is compatible with Article 3. In my view it cannot qualify its Article 3 duty on the grounds that the appellant has the opportunity not to exercise the right which the performance of that duty entails. Either the State has provided adequate protection compatible with Article 3 or it has not. It cannot in my opinion be justified in requiring the appellant to accept a higher risk of treatment whose severity would infringe Article 3 because he could choose to give up altogether the rights which Parliament has conferred upon him. The appellant's human rights are not to be traded off, either in whole or in part, for his statutory rights. If the appellant has already turned down accommodation elsewhere which would not have involved any breach of his Article 3 rights (and it seems that he may have refused accommodation in Hull) that may be a reason for NASS refusing to make any further offer, but it cannot in my opinion justify the making of an offer which, but for that refusal, would be in breach of Article 3.
58. Another argument advanced by the appellant was as follows. As NASS had been told, the appellant was suffering from mental illness. This, said Mr Rabinder Singh Q.C. for the appellant, made him and his family particularly vulnerable to the effects of the unlawful treatment by third parties. Yet, he submits, there was no evidence that NASS had even taken account of this particular factor at all. It ought to have considered his specific difficulties when assessing what constituted reasonable steps to protect his Article 3 rights. I do not accept that submission. The appellant's illness clearly did not affect the risk of attack or harassment. At best it could be material to the gravity of the injury suffered from any such conduct, but even that is not plain from the medical evidence. This may be because the argument barely surfaced before the judge, which no doubt explains why he did not expressly deal with it in his careful judgment. In any event, I agree with Laws LJ that there was nothing sufficiently exceptional in the position of this appellant which ought to have caused NASS to conclude that he merited consideration as an exception to the general policy. His particular psychological fragility is unfortunately all too common with asylum seekers, as the report from the Department of Psychological Medicine at the Barnet NHS Trust makes clear.
59. Accordingly, I agree that the appeal should be dismissed and the question of damages therefore does not arise.

.

Note 1   This language of “categories” comes from my judgment in Limbuela v Secretary of State [2004] 3 WLR 561, paragraphs 59 ff. It is convenient to retain it here for the purposes of shorthand and cross-reference. I was in the minority in Limbuela, but Carnwath and Jacob LJJ did not differ from the general approach to the application of Article 3 which I sought to sketch at paragraphs 69-77.    [Back]

Note 2   See, for a general statement, Pretty v UK 35 EHRR 1,32, paragraph 50.     [Back]

Note 3   See Limbuela paragraph 65.    [Back]

Note 4   See for example Keenan v United Kingdom (2001) 33 EHRR 913. Of course ECHR Article 2, which guarantees the right to life, will or may be engaged where there is a death.    [Back]

Note 5   See for example D v United Kingdom (1997) 24 EHRR 423.    [Back]

Note 6   Pretty, paragraph 52.    [Back]

Note 7   See Limbuela at paragraph 71.    [Back]

Note 8   Judgment, paragraphs 16 and 19.    [Back]

Note 9   (1998) 29 EHRR 245 (in fact an Article 2 case).    [Back]

Note 10   [2002] 1 AC 800, 816-817.    [Back]

Note 11   35 EHRR 1 paragraph 51.    [Back]

Note 12   [2004] QB 36, paragraphs 54-55.    [Back]

Note 13   [2004] 3 WLR 561, paragraphs 61 ff.    [Back]

Note 14   Paragraph 51.    [Back]

Note 15   A v United Kingdom (1998) 27 EHRR 611, Z v Untied Kingdom (2001) 34 EHRR 97.    [Back]

Note 16   Appellant’s supplementary skeleton argument, paragraph 14.     [Back]

Note 17   Respondent’s supplementary skeleton argument, paragraph 4.    [Back]

Note 18   [2002] 1 WLR 1249. As will be evident the case involved ECHR Article 2, but if everything else were equal there would be no bar to the reasoning being read across to Article 3.    [Back]

Note 19   Paragraphs 28-31.    [Back]

Note 20   (2003) 36 EHRR 519.    [Back]

Note 21   Judgment, paragraph 88.    [Back]

Note 22   [2004] 1 WLR 1207.    [Back]

Note 23   Paragraph 46.    [Back]

Note 24   Soering v United Kingdom (1989) 11 EHRR 439. The Strasbourg court held that the applicant’s extradition by the United Kingdom authorities to Virginia on a charge of capital murder would violate his rights under Article 3, because he was liable to be incarcerated on death row.     [Back]

Note 25   Limbuela, paragraph 70.    [Back]

Note 26   Paragraph 71.    [Back]

Note 27   See paragraph 23 above.    [Back]

Note 28   Judgment, paragraph 35.    [Back]

Note 29   [2004] 2 AC 159, paragraph 44.    [Back]

Note 30   [2003] 1 WLR 2724.    [Back]

Note 31   Paragraph 64.    [Back]

Note 32   Clarified by a helpful note put in after the hearing.    [Back]