ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT AND DIVISIONAL COURT)
HIS HONOUR JUDGE SEYS LLEWELLYN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE BEATSON
| THE QUEEN ON THE APPLICATION OF VC (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
EQUALITY AND HUMAN RIGHTS COMMISSION
Ms Julie Anderson and Ms Belinda McRae (instructed by the Government Legal Department) for the Respondent
Ms Helen Mountfield QC (instructed by the Equality and Human Rights Commission) filed written submissions on behalf of the Intervener
Hearing dates : 28, 29 November 2017
Further submissions : 1, 3 December 2017, 22 January 2018
Crown Copyright ©
|II. The legal and policy framework||9|
|(b) The Secretary of State's policy||14|
|(c) The Hardial Singh principles||20|
|III. The facts||22|
|IV. Evidential matters||28|
|V. The public law duties and errors and their consequences||38|
|(b) Misinterpretation of the policy||40|
|(c) Breach of the public duty of inquiry||43|
|(d) Consequences of the public law errors||46|
|(e) Was the appellant's detention lawful notwithstanding the public law errors?||49|
|(f) Nominal or compensatory damages?||57|
|(i) Satisfactory management||69|
|(ii) "Very exceptional circumstances"||86|
|(iii) Would the Secretary of State have detained the Appellant in any event?||98|
|(h) The Hardial Singh principles||106|
|VI. Article 3 ECHR||108|
|(a) The claim||108|
|(b) The decision below||109|
|(c) What does article 3 require?||111|
|(d) The appellant's submissions that the judge made errors of law||120|
|(i) Failure to consider the positive element of article 3||121|
|(ii) The standard of proof||124|
|(iii) Did the judge treat HA as setting a minimum threshold?||127|
|(e) The balancing exercise||128|
|VII. The Equality Act 2010 and procedural fairness under the common law||137|
|(a) The claims||137|
|(b) The decision below||138|
|(b) Preliminary points concerning the appeal||143|
|(d) The claim under the Equality Act||147|
|(i) Identifying the PCPs||148|
|(2) Removal from association||150|
|(ii) Substantial disadvantage||152|
|(iii) Reasonable adjustments||155|
|(1) Absence of power||164|
|(2) Conflicts and confidentiality||165|
|(4) A Substantial Trigger||170|
|(e) Procedural fairness||178|
|(i) Removal from association||181|
Lord Justice Beatson:
a. His detention was unlawful because of public law errors made by the Secretary of State. The first limb of this public law ground is that the Secretary of State (i) misinterpreted chapter 55 of her policy on the detention of those with mental illness, and, (ii) failed to make enquiries into the appellant's mental health. The second limb is that the detention breached the established common law principles applying to immigration detention under the 1971 Act derived from the decision of Woolf J in R v Governor of Durham Prison, ex p Hardial Singh  1 WLR 704 and known as the Hardial Singh principles. The appellant claimed damages in respect of the unlawful detention.
b. His treatment in detention was inhuman and degrading amounting to a breach of article 3 of the European Convention on Human Rights ("the ECHR").
c. The Secretary of State's decision-making processes did not meet common law requirements of procedural fairness, and failed to make reasonable adjustments to avoid discrimination against detainees suffering from mental illness as required under the Equality Act.
II. The legal and policy framework
"(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
"(a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(b) he is in urgent need of such treatment;
(c) appropriate medical treatment is available for him;
a. Section 29(7)(b), which provides that "[a] duty to make reasonable adjustments applies to… a person who exercises a public function that is not the provision of a service to the public or a section of the public".
b. Section 20(3), which provides that the duty to make reasonable adjustments includes "a requirement, where a provision, criterion or practice of [the body exercising the public function] 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".
i. Under section 6(1) "a disabled person" includes a person with a "mental impairment" where "the impairment has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities".
ii. Under section 212(1) "substantial" means "more than minor or trivial".
iii. Under schedule 2 paragraph 2(5) "Being placed at a substantial disadvantage in relation to the exercise of a function means… if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment".
c. Section 21(1) and (2) which respectively provide: "[a] failure to comply with [the duty in section 20(3)] is a failure to comply with a duty to make reasonable adjustments" and, "A discriminates against a disabled person if A fails to comply with that duty in relation to that person".
The Equality Act's Statutory Code of Practice provides that the duty is anticipatory and continuous, and only requires the body exercising a public function to take such steps as is reasonable, which will depend on all the circumstances of the case: see the extracts from §§7.20 - 7.21 and from §7.30 on the factors to be taken account in determining what is reasonable at  and  below.
"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." (emphasis added)
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.
III. The facts
(1) 5 June 2014: The minute of the Secretary of State's decision to detain the appellant recorded "subject claims to be bipolar however no evidence has been provided to support this. This condition would be manageable in detention". The judge was satisfied that consultation of the Secretary of State's own records would have revealed a history of serious mental illness.
(2) 27 June 2014: Morton Hall IRC informed the Home Office that the appellant "is subject to a Community Compulsory Treatment Order and under CPA for aftercare" and recorded that Glasgow Immigration Enforcement was informed and "Dungavel IRC [in Scotland] informed of potential transfer".
(3) 30 June 2014, the first Rule 35 report: This stated that "[t]his detainee's health is likely to be injuriously affected by continued detention or any conditions of detention". It also stated:
"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."
(4) 2 July 2014, the Secretary of State's caseworkers' review in the light of the Rule 35 report: In a letter to the appellant's solicitors it was 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. You have been convicted of a total of 27 offences in the United Kingdom. On 19 September 2013 you were issued with a warning that should you continue to offend, your behaviour may make you liable to deportation. You chose to ignore this and continue to offend".
The judge stated that there was no evidence that the case worker dealing with the appellant's case in fact contacted the relevant mental health authorities for further advice.
(5) 31 October 2014: The appellant attended a hearing in his immigration appeal without representation. The judge was concerned by his mental health. He personally telephoned the medical centre at the IRC, adjourned the hearing because of the appellant's health, and directed that medical information be provided. The information was not provided.
(6) Detention Reviews between July 2014 and May 2015: As required by the Detention Rules 2001, reviews took place on a monthly basis to consider whether detention should be continued. The reviews are entered on pro-forma review forms.
a. Paragraph 13 of the pro-forma review form is entitled "[c]onditions rendering person suitable for detention only in very exceptional circumstances (see section 55.10 of Enforcement Instructions and Guidance)". In each of the appellant's reviews between July 2014 and March 2015 this section was completed as follows: "None – unless his condition deteriorates to the extent that he is hospitalised". What §55.10 in fact states (see  above) is that "those suffering from serious mental illness which cannot be satisfactorily managed within detention" are considered suitable for detention "in only very exceptional cases".
b. Each of the detention reviews in this period also recorded that "[t]he risk of absconding is considered to be greater than the norm"; "[s]ubject is considered to be a high risk of reoffending"; "[s]ubject is considered to pose a high risk of harm to the public", and each of the summary front sheets assessed the risks of absconding, reoffending and harm each as "high".
c. As to individual detention reviews:
- 18 December 2014: "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" (emphasis added).
- 3 February 2015: "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…." (emphasis added).
- 18 March 2015: "He is currently being non-cooperative with the appeals process even though that may be to his benefit".
The remaining reviews occurred after the second Rule 35 report, see (10) below, dated 25 March 2015)
- 27 March 2015: "Subject's mental health has be [sic] 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".
- 10 April 2015: "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 [the appellant] and that his mental health is being managed whilst in detention".
- See (15) and (17) below for the reviews dated 9 June and 2 September 2015.
(7) Material in medical and other records: Morton Hall IRC, June to October 2014, Brook House IRC, between December 2014 and March 2015: On various dates the following are recorded: persecutory thoughts; meaningless speech; elation, hypo mania, psychosis, lack of insight, refusing to take his medication (throughout October 2014, and also recorded on dates in December 2014, and between January and March 2015); inability to engage rationally or answer questions; delusions of grandeur; having erratic sleep patterns and conducting tangential and pressured speech (at Brook House in February and March 2015) "in every conversation" with detention and health care staff; drinking dirty water and unable to meet his daily needs; deluded, seeing visual hallucinations and messages from angels; unkempt delusional and thought disordered; and strange and challenging behaviour including asking for the telephone number of the Royal Navy and demanding to go to his palace. On 10 February, the appellant was placed in "medical single occupancy … with a review [a month later] due to worsening mental health concerns by health care". On 17 and 20 February 2015, soon after he was segregated on 15 February, see (8) below, the GP and a psychiatrist were more positive, respectively stating "no thought disorder or evidence of psychosis or hallucinations. Currently has capacity", and "no formal thought disorder or psychotic symptoms". But see (9) below for deterioration in March.
(8) Removal from association on 15-16 and 21-25 February, and 3, 18 and 24-27 March 2015:
a. The appellant was forcibly removed from association and segregated for a period of approximately 25 hours on 15 February. One of the 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. … [H]e 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". Other officers recorded that he was behaving erratically and strangely, and rambling incoherently. It is stated that he aggressively refused to move to the segregation block. There is a detailed account of the team entering his room in arrow formation and striking him with a shield, how he resisted when they were trying to get handcuffs on him, and how an officer "took control of" his hands and legs. One officer stated that a mental health nurse suggested that he should be sectioned due to his behaviour.
b. On 21 February, after removing a metal postbox from the wall, saying that he had done so as he was sure he was sent mail that he did not receive, he was placed in segregation for four nights.
c. On 22 and 23 February detention officers noted that he was displaying random outbursts of aggression, incoherent, and refusing his medication on the basis that it was illegal. He is recorded as rambling incoherently, unpredictable and unable to understand why he had been removed from association, but on 27 February the psychiatrist who saw him recorded "an improvement from last week".
d. On 3 March, the appellant was placed in segregation for just under 24 hours, and on 18 March for two and a half hours (see (9) below for concerns raised in March).
e. The appellant was segregated for seven days between 24 March and 31 March because of threats of violence by him to officers.
(9) Concerns raised in March 2015: It is clear that the appellant's condition deteriorated in March. On 10 March, it was decided to keep him in a single room because of his worsening mental health. On 20 March, the mental health nurse recorded deterioration in his mental state and his refusal to accept anti-psychotic medications, and stated that the continued deterioration "is now having a negative impact on his active daily living, [and] it is becoming difficult for his needs to be met here at Brook House". On 21 March detention officers were warned by health care to be aware of the appellant's presentation. On 23 March, a detention officer recorded that he was "very confused" and "very out of touch with reality … he seems to have lost contact with reality"; and the mental health nurse concluded that he lacked capacity and needed to be in hospital. He was also recorded as having pressured and tangential speech, and believing that he was a member of the royal family and going to parties at Buckingham Palace. On 25 March, he was recorded as being "very confused", appearing to have "lost all contact with reality",  and as drinking tea with dirty water and buttons in it.
(10) 25 March 2015: The second Rule 35 report stated:
"This detainee has serious mental health issues. These are long standing mental health issues and historically he has been non compliant with antipsychotic medication issued. … He has been reviewed regularly by the Mental Health Nurse 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)". 
On 26 March 2015, detention officers recorded the appellant to be "acutely mentally unwell/psychotic and mania" and attempting to pass on messages to the Prime Minister. A GP who had not met him before recorded that he needed to be sectioned as soon as possible.
(11) 27 March 2015: The response in the light of the second Rule 35 report stated:
"You have not been complying with your medication and are currently unstable, with the stress of detention impacting negatively on your mental health. The medical practitioner has stated that there are significant concerns that, should you continue to deteriorate, you will be unfit for detention and will pose a risk to yourself or others. The medical practitioner also states that you will be seen by a psychiatrist some time today (27 March 2015) who will assess your condition in more detail.
As a result, a decision has been made 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. If your psychiatric assessment suggests otherwise then your continued detention in an immigration removals centre will be reassessed.
Furthermore, it is considered that there are very exceptional circumstances to justify maintaining your detention. It is considered that you present an unacceptable high risk of you absconding …."
(see (6c) above for the detention reviews dated 27 March and 10 April 2015).
(12) 27 March - 6 April 2015: The appellant is recorded by the GP as being "delusional and hallucinatory", "unkempt, thought disordered between periods of lucidity" saying that messages from fallen angels were being related to him and having visual hallucinations of these angels. On 30 March, the GP recorded that the appellant "has demonstrated signs of relapse of his Bipolar affective disorder". At the request of the medical staff in the IRC, the appellant was assessed by Dr Kassia Lowe, a forensic psychiatrist. Dr Lowe's report, dated 13 April 2015, concluded:
"His mental state is deteriorating due to his lack of compliance with treatment and possibility [sic] exacerbated by his current stressful environment …. I agree that this man is not currently in the best environment to treat his mental health and he would benefit from treatment in hospital." 
(13) 25 - 27 April 2015: The appellant was removed from association and segregated for two days because of his aggressive and disruptive behaviour. On 27 April, it was determined that he met the criteria for compulsory treatment in a mental hospital and a direction was given under section 48 of the 1983 Act for him to be removed to a hospital.
(14) 5 May 2015: The appellant was "sectioned" under the 1983 Act and transferred to a psychiatric unit.
(15) 9 June 2015: The detention review recorded at section 13 "Whilst in immigration detention, [VC] has been diagnosed as suffering from a bipolar disorder with psychotic features. He has now been transferred to a secure unit and it is considered that he is appropriately sectioned and being assessed/treated in hospital. His circumstances are considered very exceptional, thus warranting his detention". The review and the subsequent reviews assessed the appellant's risk of absconding as medium, risk of reoffending as high, and risk of harm as low.
(16) 28 August 2015: The appellant was made subject to a civil section under section 3 of the 1983 Act.
(17) 2 September 2015: The final detention review described the appellant as a "habitual low-level criminal" and noted "serious administrative blunders" in the appeals process with the result that "removal cannot said to be imminent or even to be a prospect on a reasonable timescale". It stated that "the responsible clinician has given their opinion that [his] treatment … is likely to be a long and slow process. If that is the case we cannot justify holding him under immigration powers … Recommended that detention be maintained, but only so that an orderly transition to Section 3 [civil section] can be managed".
IV. Evidential matters
V. The public law duties and errors and their consequences
"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 …."
"(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."
"183. The other issue of construction is what is meant by the phrase, "those suffering from serious mental illnesses which cannot be satisfactorily managed in detention". The issue concerns the stage at which this part of the policy is engaged. Mr Kellar's submission is that the policy is only engaged if the detainee is currently, and obviously, suffering from a condition which cannot be managed in detention. This part of the policy was not engaged in the initial stages of BA's detention, because when he was discharged from hospital, he was stable, and, indeed, euthymic. Mr Buley submits that this part of the policy is engaged when the Secretary of State is deciding whether or not to detain a person who is suffering from a mental illness which may mean that his illness cannot be managed satisfactorily in detention, even if he is well at the time his case is considered. Here, on the information available to UKBA, there was a clear risk that BA, though initially stable, could quite quickly deteriorate, and as a result of detention, to a point where his illness would not be manageable in detention."
184. I prefer Mr Buley's submission. It seems to me that Mr Kellar's interpretation of the policy is likely to lead to the very problems which occurred here. 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. Mr Buley's construction, on the other hand, is likely to lead to a more conscious approach to the identification, and care and custody, of those with serious mental illnesses, because it requires the Secretary of State to confront this issue at the outset, to make plans for the detainee's welfare if the decision is to detain, and to be alert, in detention reviews, for signs of deterioration which may tilt the balance of factors against detention."
Ms Anderson submitted that this decision was made "without an understanding of the systems in place". I consider that submission to be entirely unfounded.
"22. … has thrown up an issue as to the test to be applied when determining what, if any, loss was caused by the unlawful detention….
23. …. Lord Hope stated in Kambadzi at  that "an award of damages for false imprisonment is based on normal compensatory principles". It seems to me that on normal compensatory principles it would be for a claimant to prove his loss on the balance of probabilities. It well may be that in circumstances such as these the burden shifts to the defendant to prove that the claimant would and could have been detained if the power of detention had been exercised lawfully, but again I see no reason why the standard of proof should be anything other than the balance of probabilities.
24. In reality, however, the debate is academic in this case. Irrespective of where the burden of proof lies and whether the standard of proof is balance of probabilities or inevitability, I am satisfied that the appellant would in fact have been detained during the first period if account had been taken of the paragraph of the policy relating to mental illness. That is clear from what happened in practice in the second period, from 29 April 2010, when the Secretary of State did take the relevant paragraph of the policy into account … The question whether the appellant could lawfully have been detained is a matter of legal assessment in relation to which the burden and standard of proof are of no materiality. The assessment has two separate strands to it. The first, concerning the policy itself, depends on normal Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case? The second requires the lawfulness of continued detention to be assessed by reference to Hardial Singh principles."
"71. In my judgment it is implicit in the judgments in both Lumba and Kambadzi that their Lordships were not contemplating that a claimant would be required to prove a negative should the question of damages arise. It is not for him to prove that he would not have been detained, but rather for the Secretary of State to establish positively that she would have detained the claimant anyway, to avoid having to pay compensatory damages. …
72. Lord Dyson dealt with the matter at paragraph 95 in Lumba:
"The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused."
73. He went on to conclude that it was inevitable that the appellants in that case would have been detained anyway. "… It would to my mind produce a strange outcome if the claimant were to prove the detention and the defendant then failed show it was lawful, but the claimant was then obliged to establish that the defendant would not have detained him if the policy had been correctly applied. …."
(a) Could the Secretary of State have lawfully detained the appellant, i.e.
(i) Was it rationally open to the Secretary of State to conclude that the appellant's mental illness could be satisfactorily managed in detention? (considered at  –  below.)
(ii) If not, was it rationally open to the Secretary of State to conclude that "very exceptional circumstances" applied so as to justify the appellant's detention in any event? (considered at  –  below.)
(b) Can the Secretary of State demonstrate, on the balance of probabilities, that she would have detained the appellant in any event? (considered at  –  below.)
The judge considered (a)(i) and found that it was rationally open to the Secretary of State so to conclude until the second Rule 35 report, although he did so in the course of his incorrect approach that the determination of these questions went to the question of lawfulness. He stated that in view of that finding, consideration of (a)(ii), the "very exceptional circumstances" point, did not arise until the second Rule 35 report. For the reason I give at  –  below it appears that he did not implicitly consider that there were such circumstances after that report between 27 March and 3 April, and between 27 April and 5 May, when he found the detention lawful even though the appellant's condition could not be satisfactorily managed in detention, and he cannot have considered that such circumstances existed between 3 April and 27 April as he found the detention to be unlawful during that period.
"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."
To the extent that the judge did consider that it was for the appellant to establish that he could not have been lawfully detained by the Secretary of State, he fell into error. As stated by Richards LJ in OM's case, this is a question of legal assessment to which the burden of proof does not apply.
"38. Counsel for the Defendant in reply drew my attention to JS (Sudan) -v- SSHD  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. …"
"Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party …. The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment  UKPC 6 at )] 'to co-operate and to make candid disclosure by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings. …' "
I remain of the view that this is the right approach. It follows that the approach of the judge below in this case was over generous to the Secretary of State. I now turn to the questions set out at  above.
"30. In formulating policy that, save very exceptionally, management of serious mental illness in an IRC, if not "satisfactory", should precipitate release, the Home Secretary has adopted a word of extreme and appropriate elasticity. It catches a host of different factors to which the circumstances of the individual case may require her to have regard. In R (Das) v Secretary of State for the Home Department (Mind and another intervening)  EWCA Civ 45,  1 WLR 3538, in a judgment with which Moses and Underhill LJJ agreed, Beatson LJ, at paras 45 to 47 and 65 to 70, offered a valuable discussion of the phrase "satisfactory management". I respectfully disagree with him only in relation to an aside in para 71 of his judgment. Beatson LJ there expressed an inclination to accept the Home Secretary's contention that, if the management of the illness in an IRC was likely to prevent its deterioration, it would be satisfactory even if treatment was available in the community which was likely to secure its improvement. I would not exclude the relevance of treatment, available to the detainee only if released, which would be likely to effect a positive improvement in her (or his) condition. If it was likely that such treatment would actually be made available to the detainee (rather than be no more than on offer in principle to all members of the community in NHS publications), its availability should go into the melting-pot; and the burden would be upon the Home Secretary to inquire into its availability. If, contrary to the Partnership Agreement quoted in para 29 above, the standard of care (expressly aimed at improving health as well, of course, as preventing it from deteriorating) provided to a detainee in an IRC were for some reason not equal to that which would be made available to her if released, it would in my view be questionable, subject to the strength of other relevant factors, whether the management of her illness in the IRC was satisfactory. While satisfactory management does not mean optimal management, a narrow construction of the word "management" as meaning no more than "control" of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained in the IRC pursuant to the policy notwithstanding the unsatisfactory management of her illness there."
"In the Claimant's case, the offences to date had not been of the highest order of seriousness but the persistent and prolific nature of the offending gave rise to a significant risk of reoffending. The use of immigration powers of detention was necessary since no civil detention powers were in place. At that stage, the Claimant's mental health was being assessed to determine how responsive his condition was to the treatment and his prognosis."
It is thus clear that, although the appellant's history of offending was a factor in the decision to continue detention, so too was the fact that, because no civil detention powers were in place, the use of immigration powers was required to retain him in a psychiatric hospital until 28 August 2015 when he was made subject to a civil section under the 1983 Act.
"105 … 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 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 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."
But, towards the end of his judgment, when considering the recovery of damages, he stated:
"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 claimant has not established that this was a conclusion rationally not open to her."
Several points arise from these two passages.
VI. Article 3 ECHR
"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." 
" … that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance."
"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" but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact."
The distinction which was drawn in MT (Algeria)'s case is important. It is clear from Ocalan that the standard of "beyond reasonable doubt" applies to the factual question of what has taken place. In her oral submissions, Ms Anderson correctly accepted that it does not apply to the legal question.
"[w]hile it is true that the severity of suffering, physical or mental, attributable to a particular measure has been a significant consideration in many of the cases decided by the Court under Article 3, there are circumstances where proof of the actual effect on the person may not be a major factor. For example, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 … [citations omitted] …. Similarly, treatment of a mentally ill person may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity, even though that person may not be able, or capable of, pointing to any specific ill-effects."
The question is then whether the judge, having found that the appellant's mental illness was exacerbated by detention, took this into account when reaching his conclusion that there was no breach of article 3. There is nothing in the judgment to suggest that he did not.
VII. Procedural fairness under the common law and the Equality Act 2010
" … 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." 
a. Identifying the "provision, criterion or practice" (commonly abbreviated as "PCP") which is said to put the disabled person at a substantial disadvantage.
b. Determining whether the PCP in fact puts disabled persons at a substantial disadvantage.
c. Assessing whether the Secretary of State took such steps as it was reasonable to take to avoid the disadvantage.
I first consider each stage. I then consider whether there is, additionally, a requirement to show detriment, or that the adjustments proposed would have made a difference on the facts of the appellant's case.
"A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."
It is not disputed that the appellant was disabled for the purposes of the Equality Act.
"(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule."
- whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question;
- the extent to which it is practicable for the service provider to take the steps;
- the financial and other costs of making the adjustment;
- the extent of any disruption which taking the steps would cause;
- the extent of the service provider's financial and other resources;
- the amount of any resources already spent on making adjustments; and
- the availability of financial or other assistance.
Paragraph 2(8) of Schedule 2 to the Equality Act provides that the duty to make reasonable adjustments does not require the exerciser of a public function to take a step which she has no power to take.
"(1) The Secretary of State must make rules for the regulation and management of removal centres.
(2) Removal centre rules may, among other things, make provision with respect to the safety, care, activities, discipline and control of detained persons."
I consider this provision is sufficiently wide to give the Secretary of State power to set up a system to provide mentally ill detainees with assistance in making representations. I therefore do not need to consider whether she would also have such power under the common law or the Equality Act.
"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." (emphasis added)
I understand from this passage, and from the judgment as a whole, that the judge did consider that the appellant was disabled from making effective representations for at least a limited period. His reference to the comments made in detention reviews that the appellant was not co-operating with his immigration appeals when his non-attendance or participation was in fact due to his mental illness, albeit in the context of identifying a "potential lacuna", is also indicative of detriment. There was therefore a detriment to him, which would satisfy the Finnigan test.
"…. in order for Mr Paulley to succeed in his claim, he must not only establish that FirstGroup should have made an adjustment to its PCP, but also that, had that adjustment been made, there is at least a real prospect that it would have made a difference."
This is a slightly less stringent formulation than that in Finnigan's case.
"(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type
(3) 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.
(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.
(5) 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 a favourable result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"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".
I do not, however, understand the appellant's case to be that such a formal structure is required or that it should be possible to make representations in advance of the segregation commencing. The thrust of the submissions made on the appellant's behalf is that additional steps should be taken for mentally ill detainees to help safeguard their interests, including assistance in having informal representations made by or for them.
"… 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…., in 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 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".
(a) The judge erred in deciding that, notwithstanding the Secretary of State's misinterpretation of chapter 55 of her policy, the breaches only rendered the appellant's detention unlawful for the period 3 to 27 April 2015: see  above.
(b) The detention of the appellant was unlawful between the Secretary of State's receipt of the first Rule 35 report on him on 30 June 2014 and 27 April 2015: see  - ,  –  and  –  above.
(c) The Secretary of State has not discharged the burden of demonstrating, on the balance of probabilities, that she "would" in any event have detained the appellant. Accordingly, the appellant is entitled to compensatory damages in respect of the period 30 June 2014 to 27 April 2015: see  –  above.
(d) The damages should be assessed on the basis that in the period 30 June 2014 to 2 April 2015 the appellant would have been in the community rather than in detention and that in the period 3 to 27 April 2015 he would have been detained in a psychiatric unit rather than in detention: see  above.
(e) The assessment of such damages shall, if not agreed, be determined by a Master of the Queen's Bench Division: see  above.
(f) These conclusions mean that it is not necessary to determine the second, Hardial Singh, limb of this ground: see  –  above.
Lord Justice Lewison :
Lady Justice Arden :
Note 14 See §§11, 13 and 15 of the current version of the policy, published on 6 December 2016, which can be accessed at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/574970/adults-at-risk-policy-guidance_v2_0.pdf. [Back] Note 38 Dr Lowe’s report was provided to the judge after the hearing, and after the judgment had been drafted (see J, ). We were informed by Ms Harrison that this was because the Secretary of State had originally refused to produce it to the appellant’s lawyers. At J,  , the judge stated that he considered the reportde bene esse, but that as its content was not inconsistent with the conclusion he had reached, he did not propose to alter or revise the draft judgment. Ms Anderson did not object to us considering Dr Lowe’s report. We did so cautiously, noting that it appears not to have been properly adduced and that we have an unsigned copy only. Whilst I record Dr Lowe’s assessments I have not relied on them in any of the conclusions which I have reached. [Back]
Note 14 See §§11, 13 and 15 of the current version of the policy, published on 6 December 2016, which can be accessed at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/574970/adults-at-risk-policy-guidance_v2_0.pdf. [Back]
Note 38 Dr Lowe’s report was provided to the judge after the hearing, and after the judgment had been drafted (see J, ). We were informed by Ms Harrison that this was because the Secretary of State had originally refused to produce it to the appellant’s lawyers. At J,  , the judge stated that he considered the reportde bene esse, but that as its content was not inconsistent with the conclusion he had reached, he did not propose to alter or revise the draft judgment. Ms Anderson did not object to us considering Dr Lowe’s report. We did so cautiously, noting that it appears not to have been properly adduced and that we have an unsigned copy only. Whilst I record Dr Lowe’s assessments I have not relied on them in any of the conclusions which I have reached. [Back]