QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of D
|- and -
|Secretary of State for the Home Department
|The Queen on the Application of K
|- and -
|Secretary of State for the Home Department
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Official Shorthand Writers to the Court)
Ms Jenni Richards (instructed by Treasury Solicitors) for the First Defendant
Mr Richard Furniss (instructed by Berrymans Lace Mawer) for the Second Defendant
Mr Timothy Pitt-Payne (instructed by Michael Simkins LLP) for the Third Defendant
Crown Copyright ©
Davis J :
The background facts
1. Are you taking any medications for current health problems?
2. Do you wish to speak to a nurse or doctor about any health problem?
3. Is the health problem urgent?
D answered no to the first question and yes to the other two. The questionnaire also stated that should she need a nurse or doctor at any time she should ask a house officer to make an appointment. A Detainee Reception Report recorded that D had no obvious illness, injury or visible marks.
"[D] tells me she was imprisoned in April of this year for 4 days and was beaten. Showed me numerous linear scars now healed on her back. (To complete Allegation of Torture form when interpreter available)."
Although there is some conflict in the evidence on this, this note seems to bear out what is said elsewhere - for example, the witness statement of Mr Kelso dated 15th September 2005 that no such form was put in (or, therefore, considered) at this time, just because an interpreter's involvement was awaited.
"They walked on me, they beat me on my back and my sides. They hit me with steel wire on my back. They spat on me and insulted me. They didn't stop walking on me. They didn't cease hitting me."
She confirmed at the end that she had understood all the questions.
"Had been beaten in prison since then back pains, multiple scars on back."
He also noted abdominal pains and noted other medical comments.
"I have assessed the above named detainee today and she has informed me that she has been subjected to torture, by means of: [and the following words are then written in manuscript]:
Severely beaten with iron wires, kicked, trodden on (was in crouching position in attempt to protect her unborn child) by police in Ivory Coast.
The following wounds/scars were visible [and then in manuscript]:
Multiple linear scars on back, arms and legs (attack resulted in miscarriage)."
That form was forwarded to the Oakington Centre Manager, D consenting to its release for that purpose, and "thence to IND" [that is, is the Immigration and Nationality Directorate].
"Rt leg pain intermittently since Oct 1999[sic]. Claims he was tortured in police custody. His right leg was beaten with batons over period of a week. Since then his leg has been swollen nearly the full length of the leg. Has numerous varicose veins of his Rt leg which may be causing the swelling? Painful to walk any distance. Given Paracetamol. AOT form completed. T/S doctor for review."
The nurse completed the AOT form on that day and, with the consent of K, passed it to the Centre Manager for onward submission to IND. The AOT form recorded the following:
"Claims whilst in police custody in Turkey Oct 1999 for a period of 1 week was tortured. Hot irons applied to his neck and top of his head. Blind folded and kicked on the right leg and hit with batons."
The following scars were noted as visible: "Several round small scars, back of neck and top of head. Scars front fore leg Rt and Lt (small and round)."
"Evidence of torture: scars on back of head and neck consistent with burns inflicted with a hot iron and [?] symmetrical therefore most likely done deliberately."
The notes also record a swollen right leg, with extensive varicose veins, and records: "this occurred after having been beaten severely [?] to his legs about six years ago". It was suggested that a referral to a vascular surgeon was needed. No further or revised AOT form was submitted by the doctor.
"They blindfolded me, handcuffed me I don't know where they took me, it carried on for 1 1/2 hours.
We carried on until they started torturing me."
He said that he was held for seven days, and that his detainees had a "hot rod" and kept touching his head and shoulders, burning him.
The Litigation history
"The Claimant seeks the following declarations, namely that:
a) The decision by the first Defendant to attempt to seek to process his asylum claim under the Oakington fast-track procedure, subsequent to him raising an allegation that he had been tortured and stating that he bore physical torture injuries, was unlawful as it was outwith prescribed rules and stated policy;
b) the failure by the first Defendant to ascertain whether he may be a victim of torture before authorising his detention (and at all times thereafter) was unlawful as it was outwith prescribed Rules and stated policy and/or was irrational;
c) the failure by all Defendants to ensure that he was medically screened and assessed within 2 hours of his arrival at Oakington was unlawful as it was outwith stated policy;
d) the failure by all Defendants to ensure that he was medically examined him (sic) within 24 hours of his arrival at Oakington was unlawful as it was outwith stated policy;
e) the failure by all Defendants to take steps, by way of medical examination, to ascertain whether he may be a victim of torture was unlawful as it was outwith prescribed Rules and stated policy and/or was irrational;
f) that in such circumstances his detention at Oakington from 4 May 2005 to 11 May 2005 was unlawful
g) Policy No 25 of the Third Defendant prohibiting a documentation of opinion of how wounds were sustained is unlawful as it is outwith prescribed Rules and stated policy and/or was irrational."
In each case, compensation and/or damages for unlawful detention and treatment in breach of Articles 3,5 and 8 of the Convention are also sought.
The law and published policy relating to fast-track detention.
"12.3 It is regrettable that detention is necessary to ensure the integrity of our immigration control. The Government has decided that, whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances ..
12.4 The Government also recognises the need to exercise particular care in the consideration of physical and mental health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered."
"We made it clear in our 1998 White Paper, Fairer, Faster and Firmer, that evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release when deciding whether to detain while an individual's asylum claim is being considered. That remains the case.
The instructions to staff authorising detention are clear on that. Independent evidence that a person has a history of torture is one of the factors that must be taken into account when deciding whether to detain and would normally render the person concerned unsuitable for detention other than in exceptional circumstances. Such evidence may emerge only after the detention has been authorised. That may be one of the circumstances referred to by the noble Lord, Lord Hylton. If that happens, the evidence will be considered to see whether it is appropriate for the detention to continue.
We reinforced that in the Detention Centre Rules 2001. Rule 35(3) specifically provides for the medical practitioner at the removal centre to report on the case of any detained person who he is concerned may have been the victim of torture. There are systems in place to ensure that such information is passed to those responsible for deciding whether to maintain detention and to those responsible for considering the individual's asylum application.
However, unfortunately, there cannot be a blanket and total exclusion for anyone who claims that they have been tortured. There may be cases in which it would be appropriate to detain somebody who has a history of torture. For example, the person concerned might be a persistent absconder who is being returned to a third country. It might be necessary to detain such a person to effect removal. There will be other cases in which the particular circumstance of the person justifies such an action. There will be yet other cases in which we do not accept that the person concerned has been the victim of torture. Despite that, I repeat my earlier comments about the importance of seeking to interpret these cases with the utmost care and not lightly using the exceptions to which I referred."
"38.3 Factors influencing a decision to detain
1. There is a presumption in favour of temporary admission or temporary release.
2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3. All reasonable alternatives to detention must be considered before detention is authorised.
4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
5. Each case must be considered on its individual merits.
6. The following factors must be taken into account when considering the need for initial or continued detention "
The factors said to weigh against detention include "has the subject a history of torture?" In paragraph 38.4, there is set out a description of those who will usually be unsuitable for fast track. That includes cases "where detention would be contrary to published criteria". In paragraph 38.10 this is said:
"38.10 Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated IS accommodation or elsewhere. Others are unsuitable for IS detention accommodation, because their detention requires particular security, care and control.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated IS detention accommodation or elsewhere:
¨ unaccompanied children and persons under the age of 18 (but see 38.7.3 above);
¨ the elderly, especially where supervision is required;
¨ pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this;
¨ those suffering from serious medical conditions or the mentally ill;
¨ those where there is independent evidence that they have been tortured;
¨ people with serious disabilities;"
"Oakington Reception Centre will strengthen our ability to deal quickly with asylum applications, many of which prove to be unfounded. In addition to the existing detention criteria, applicants will be detained at Oakington where it appears that their application can be decided quickly, including those which may be certified as manifestly unfounded. Oakington will consider applications from adults and families with children, for whom separate accommodation is being provided, but not from unaccompanied minors. Detention will initially be for a period of about seven days to enable applicants to be interviewed and an initial decision to be made. Legal advice will be available on site.
If the claim cannot be decided in that period, the applicant will be granted temporary admission or, if necessary in line with existing criteria, moved to another place of detention .."
"A key element in the Government's strategy to speed up the processing of asylum claims has been the introduction of the fast track asylum processes operated initially at the Oakington reception centre and now also at Harmondsworth removal centre and other locations. The use of detention to fast track suitable claims under these processes is necessary to achieve the objective of delivering decisions quickly. This ensures, among other things, that those whose claims can be quickly decided can be removed as quickly as possible in the event that the claim is unsuccessful When deciding whom to accept into fast-track processes account is taken of any particular individual circumstances known to us which might make the claim particularly complex or unlikely to be resolved in the timescales however flexibly applied "
That statement also repeated that decisions should ordinarily be made within 10-14 days.
"~ any case which does not appear to be one in which a quick decision can be reached.
~ any case which has complicating factors, or issues, which are unlikely to be resolved within the constraints of the Oakington, process model."
" When officers come across a person who makes an application for asylum, they should consider whether he or she meets the Fast Track suitability criteria. All potentially suitable applicants must be referred to the Oakington co-ordinator who will confirm if they are accepted into either the process at Oakington, Harmondsworth or and Yarl's Wood. The use of detention to fast track suitable claims under these processes is necessary to achieve the objective of delivering decisions quickly."
The Detention Centre Rules and Operating Standards
"Rule 2 - Interpretation
2. In these Rules, where the context so admits, the expression -
"manager" means, in relation to any detention centre, the person appointed under section 148(1) of the Immigration and Asylum Act 1999;
"officer" means an officer of a detention centre (whether a Crown servant or an employee of the contractor or otherwise) and, for the purposes of rule 8(2), includes a detainee custody officer who is authorised to perform escort functions in accordance with section 154 of the Immigration and Asylum Act 1999 or a prison officer or prisoner custody officer performing those functions under that section.
. . . .
Rule 33 Medical Practitioner and Health Care Team
(1) Every detention centre shall have a medical practitioner who shall be vocationally trained as a general practitioner
(2) Every detention centre shall have a healthcare team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at the centre.
. . . .
Rule 34 - Medical examination upon admission and thereafter
34. - (1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre.
(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.
(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.
. . . .
Rule 35 - Special illnesses and conditions (including torture claims)
35. - (1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.
. . . .
Rule 45 - General duty of officers
45. -(1) It shall be the duty of every officer to conform to these Rules and the rules and regulations of the detention centre, to assist and support the manager in their maintenance and to obey his lawful instructions.
(2) An officer shall inform the manager and the Secretary of State promptly of any abuse or impropriety which comes to his knowledge.
(3) Detainee custody officers exercising custodial functions shall pay special attention to their duty under paragraph 2(3)(d) of Schedule 11 to the Immigration and Asylum Act 1999 to attend to the well-being of detained persons.
(4) Detainee custody officers shall notify the health care team of any concern they have about the physical or mental health of a detainee.
(5) In managing detained persons, all officers shall seek by their own example and leadership to enlist their willing co-operation.
(6) At all times the treatment of detained persons shall be such as to encourage their self-respect, a sense of personal responsibility and tolerance towards others.
. . . .
Rule 49 Contractors Staff
49. All contractors' staff employed at the detention centre shall facilitate the exercise by the contract monitor of his functions."
"The Centre must ensure that all detainees are medically screened (this must include an assessment for risk of self-harm/suicidal behaviour) within two hours of admission (see also the standards on Suicide and Self-Harm and Health Care)."
"6. The Centre must ensure that all members of the healthcare team attend training relevant to the identification of those presenting with mental illness and those who may have been tortured. Details of relevant training including who attended and when must be retained by the Centre.
. . . .
14. The Centre must ensure that all detainees are medically screened (this must include an assessment for risk of self-harm/suicidal behaviour) within two hours of admission (see also the standard on Suicide and Self-Harm).
15.As required by Rule 34 of the DC Rules, the centre must ensure that arrangements are in place for detainees to have a physical and mental examination by the medical practitioner within 24 hours of their arrival at the removal centre. The purpose of the initial health assessment is to identify any immediate and significant mental or physical health needs, the presence of a communicable disease and whether the individual may have been the victim of torture".
"The Centre must ensure that all detainees are first assessed for risk of self-harm/suicidal behaviour within two hours of admission (see also the minimum requirement in the healthcare standard)."
"Furthermore and contrary to the suggestion in the claimants' evidence, it is not the Secretary of State's position that a report of or expression of opinion from a GP is incapable of constituting independent evidence of torture."
She was prepared in oral argument to translate that rather grudging negative proposition into a positive proposition: viz that such an opinion was capable of constituting independent evidence of torture. In my view, that indeed is the case.
The health-care screening service provided at Oakington.
"149 Contracting out of certain removal centres
(1) The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any removal centre or part of a removal centre.
(2) While a removal centre contract for the running of a removal centre or part of a removal centre is in force
(a) the removal centre or part is to be run subject to and in accordance with the provisions of or made under this Part; and(b) in the case of a part, that part and the remaining part are to be treated for the purposes of those provisions as if they were separate removal centres.
(4) The Secretary of State must appoint a contract monitor for every contracted out removal centre.
(5) A person may be appointed as the contract monitor for more than one removal centre.
(6) The contract monitor is to have
(a) such functions as may be conferred on him by removal centre rules;(b) the status of a Crown servant.
(7) The contract monitor must
(a) keep under review, and report to the Secretary of State on, the running of a removal centre for which he is appointed; and(b) investigate, and report to the Secretary of State on, any allegations made against any person performing custodial functions at that centre.
(8) The contractor, and any sub-contractor of his, must do all that he reasonably can (whether by giving directions to the officers of the removal centre or otherwise) to facilitate the exercise by the contract monitor of his functions."
"It was the Secretary of State's view that the requirement for each detainee to be examined by a medical practitioner within 24 hours of their admission to a detention centre was neither necessary nor appropriate and that GP examination should be targeted at detainees in need rather than all detainees".
"To this end Primecare Forensic Medical (PFM) produce "Allegation of Torture" forms (ATFs), these are sent by the Health Care Manager to the G.S.L. Centre Manager and copied to the CIO and Contract Monitor. PFM nurses are not trained or qualified to make assessments as to whether applicants are victims of torture, but are contracted to assist in identifying the needs for the care of those detainees who may have been subject to torture. The ATFs record the applicant's account of how they say they claim to have been tortured, together with any visible wounds/scars. AFTs will be considered, along with all other relevant information, when scheduled detention reviews take place. It is not usually considered that these forms provide independent evidence that the applicant has been tortured. This is because the forms usually record the detainee's allegation and sometimes the existence of visible wounds or scars but do not generally set out an opinion from someone with appropriate expertise as to whether or not these might be the result of torture."
Decision to transfer to Oakington
Initial Medical Screening at Oakington
The Rule 34 Examination
i) Rule 45 states that it is the duty of every "officer" to conform with the Detention Centre Rules.
ii) A sub-contractor such as PCFM is not an "officer" within the meaning of the definition contained in Rule 2.
iii) Accordingly PCFM is not liable to be subject to declaratory relief in respect of a failure to comply with Rule 34.
iv) Further, and in any event, PCFM exercises no regulatory, or comparable, function at all; it provides services at Oakington solely pursuant to a contract made with GSL; and appropriate public law relief is available against the First Defendant and GSL, on whom, by statute, the relevant obligations are imposed and powers are given.
"No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
Article 5 (5) provides:
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation".
Section 8 of the Human Rights Act 1998 confers a discretion on the court with regard to judicial remedies. For the purpose of these particular cases the Defendants do not dispute that compensation should be awarded if the detention of D and/or K was unlawful. It also is agreed that, if that is the result, then the amount of that compensation should be assessed at a later hearing (if not previously agreed in the interim), the assessment to be reserved to myself.