ON APPEAL FROM SPECIAL IMMIGRATION APPEALS COMMISSION
THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE ETHERTON
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Mr Robin Tam QC & Mr Steven Gray (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 6th July 2011
Crown Copyright ©
Lord Justice Longmore:
1) His full name;
2) His place of birth and birth certificate, or any other documentation in support;
3) The full names of both parents and their current addresses;
4) All addresses at which he lived in Algeria.
He was also ordered to provide:-
5) Written consent for a non-invasive sample to be taken for the purposes of DNA testing.
B did provide a DNA sample but failed to comply with the first 4 directions. In the light of that refusal, the Secretary of State applied for a new order with a penal notice in the event of non-compliance.
"By order dated 19th July 2007 you were directed to provide the following information:-
1. Your full name.
2. Your place of birth and birth certificate, or any other documentation supporting this.
3. The full names of both parents and their current addresses.
4. All addresses at which you lived in Algeria.
You must within 14 days of service of this order upon you comply with 1-4. If you, [B] disobey this order you may be held in contempt of court and may be imprisoned, fined or have your assets seized. Any other person who knows of this order and does anything which helps or permits the appellant to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized."
1) committal to prison would violate B's Article 3 rights because he would refuse to take prescribed medication for his mental health problems and he would therefore be liable to suffer a relapse into his paranoid psychotic condition;
2) B's Article 8 rights would also be violated by reason of the probability of his relapse;
3) there has been unreasonable delay in bringing the contempt proceedings;
4) 4 months was not only excessive but there should have been no sentence of imprisonment at all or indeed any other sentence.
"46. This took the form of a schedule of matters of agreement and disagreement concerning the appellant in relation to the following questions:-
(a) diagnosis of the appellant's mental health;
(b) whether his mental health is causative of his unwillingness to disclose his identity; and
(c) whether re-imprisoning the appellant in the near future would be detrimental to his mental health, and if so what the likely effect would be.
47. The statement answered the questions as follows:-
(a) Dr Payne diagnosed [the appellant] with psychological symptoms, which have fluctuated in severity and, which in his opinion, are probably most usefully classified as an adjustment disorder (ICD-10 F42.22 mixed anxiety and depressive reaction). Dr Deeley has diagnosed [the appellant] with a depressive illness associated with psychotic symptoms. This has been formally classified as ICD-10 F33.3, recurrent depressive episodes, current episode severe with psychotic symptoms. In addition, [the appellant] has psychological and body symptoms of anxiety.
(b) Dr Payne believes that [the appellant's] mental health is not causative of his unwillingness to disclose his identity. Dr Deeley believes that [the appellant's] delusional system reinforces his unwillingness to disclose his identity. However, his decision not to disclose his identity is based on an understandable fear that his family may be mistreated or tortured should he do so, and that he may be deported to Algeria and subjected to mistreatment and torture. These beliefs and motivations are likely to persist even if his mental health problems were met.
(c) Dr Payne believes that reimprisoning [the appellant] would lead him to repeat his behaviours when imprisoned, namely being uncooperative with prison authorities and mental health in reach teams; complaining of psychotic symptoms; raising anxieties about his physical health, food and fluid intake, and suicide risk, would result in readmission to a psychiatric facility. Dr Deeley also believes that this pattern of presentation would recur, although attributed to the exacerbation of depressive and psychotic symptoms under conditions of stress and perceived intensification of persecution rather than malingering or exaggeration of symptoms as argued by Dr Payne."
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"iii) It is only in circumstances where the very fact of imprisonment itself might expose the individual to a real risk of an Article 3 breach that the court will be called upon to enquire into whether sentencing a person to custody will mean a breach of Article 3. That is a quite different circumstance from the kind of enquiry carried out in Hetherington as to whether facilities in a particular prison were adequate. It is an enquiry that can only arise where there is proper medical evidence before a court that any sentence of imprisonment ipso facto would cause a breach of Article 3. We are doubtful if circumstances will ever arise in which such a submission could be made, but if they should ever arise, it would be an exceptionally rare event.
v) Once a sentence of imprisonment has been imposed, unless it is to be contended on appeal that the judge should not have imposed a sentence of imprisonment because imprisonment anywhere would ipso facto cause a breach of Article 3, the relevance of an appellant's medical condition relates solely to the assessment of the overall length of the sentence "
"discloses a determination on the part of all concerned, including the appellant's advisers, to ensure that the present proceedings have not been reached prematurely and without seeking other means of compliance, short of committal (such as by the provision of the respondent's undertaking)."
Such delay as there has been has been caused by B's continuing violation of SIAC's order not the vagaries of judicial process.
Lord Justice Etherton:
"If [B] were to be re-detained the consequent increased restrictions on his freedom of movement and communication would certainly cause him distress and discomfort. However, it is to be noted that his core mental illness (psychosis) has been manifest both within and without prison settings in the past and he has been able to accept and benefit from treatment for it while in custody."
Lord Justice Laws: