England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 June 2008

1. MR JUSTICE MITTING: Harmondsworth Immigration Detention Centre, near Heathrow, opened in September 2001. It was closed for three months on 20 July 2004 following a disturbance which resulted in extensive damage to the fabric and fittings of the buildings. A serious disturbance on 28 and 29 November 2006 resulted in further extensive damage and the partial closure of the site until June 2007. Since August 2007, it has operated with two out of its original four residential wings. Its original capacity was 501 detainees. Capacity is now 259 detainees. Its purpose is stated in rule 3(1) of the Detention Centre Rules 2001:

"The purpose of detention centres shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and the right to individual expression."

2. It is managed under a contract with the Home Office by Kalyx Limited. It has been the subject of four reports by Her Majesty's Inspector of Prisons and others. In the first, of August 2003, its problems were analysed. It was then a mixed facility. 15 per cent of the population were women, and 20 per cent of those admitted in the month before the inspection in September 2002 were families with children. The population included detainees perceived as control problems by other detention centres, who had been transferred to Harmondsworth because it was thought to be more secure than they were. In Ms Owers' opinion, Harmondsworth was in many respects unable to meet the challenges of dealing with a challenging population. She also found that Harmondsworth was not a safe or respectful environment, in significant part because of the actions of some detainees with no incentive to co-operate with the authorities, and did not meet three out of four of the tests for a healthy custodial environment: safety, respect, purposeful occupation and preparation for release.
3. The second inspection in February 2005 post-dated the first disturbance. It found that progress had occurred in a troubled centre. The third inspection in July 2006 produced a bleak picture, and is accurately summarised in the introduction:

"Harmondsworth is the largest immigration removal centre (IRC), holding around 500 men. Around 2,000 people each month pass through its reception area, at all hours of the day and night. Most will spend only a short time there; though some can spend months or even years there. Over recent years, the centre has experienced a major disturbance, and an apparently self-inflicted death.

It is therefore of considerable concern that this inspection found an establishment that was not performing sufficiently well against any of our tests of a healthy custodial environment. At the heart of the centre's problems were the relationships between custody officers and detainees together with an over-emphasis on physical security – which was more appropriate to a high security prison than a removal centre run under rules that require 'secure and humane detention under a relaxed regime'.

Over 60% of detainees said they had felt unsafe at Harmondsworth. This was much higher than the comparator for other centres. More worryingly, the main fear was of bullying by staff: 44% of detainees (compared to 28% in other IRCs) said they had been victimised by staff. In structured interviews, five of the 10 most common concerns about safety related directly to staff behaviour. Detainees described custody officers as 'aggressive', 'intimidating', 'rude' and 'unhelpful', especially to those without English – though they found senior officers better, and were extremely complimentary about education staff. Some staff also expressed concerns to us about language and behaviour they had witnessed from colleagues. We ourselves saw relationships that were often distant, and evidence of a lack of care or understanding of detainees' situations and anxieties.

We attributed these poor relationships, which were worse than any we have seen elsewhere at least in part to the centre management's over-emphasis on physical security and control. Many of the rules and systems would have been considered over-controlling in a prison, let alone a removal centre. Detainees were unable to have basic possessions, such as tins, jars leads for audio equipment and nail clippers. Their movements were strictly controlled. Use of force was high, as was the use of temporary confinement in segregated conditions – sometimes as a response to poor behaviour rather than for reasons of security or safety as specified in the Detention Centre Rules. The incentives scheme operated rather as a

punishment system, sometimes depriving detainees of basic entitlements, such as the ability to attend religious services.

By contrast, the systems that should exist to support detainees were underdeveloped. Suicide

and self-harm work was weak, in spite of the efforts of a good and committed coordinator. Reviews did not involve healthcare, support plans were poor, and night staff had limited access to ligature cutters. Most worryingly, a so-called action plan, to deal with problems identified by the inquiry into the recent self-inflicted death, had been shared with neither the suicide prevention team nor the staff in the centre. It was a purely bureaucratic exercise which had had no impact on the centre's practices. Equally, the complaints system was distrusted

and ineffective. It was not sufficiently confidential and tracking systems were ineffective. This was of particular concern as a third of complaints were about staff, and some that raised

serious allegations had not been investigated properly.

There were, of course, pockets of good practice in the centre. Some staff, and particularly the senior custody officers, were interacting well with detainees. The work of the chaplaincy team and the education department was extremely good, and greatly valued by detainees. Unfortunately, those staff felt much less valued by the centre's managers. Some healthcare provision was also good, though there was an over-reliance on GPs, and insufficient nursing

and particularly mental health support.

This is undoubtedly the poorest report we have issued on an IRC. Harmondsworth is not an easy place to run, and the serious disturbance it had experienced had clearly affected the confidence of managers and staff. However, it had been allowed to slip into a culture and approach which was wholly at odds with its stated purpose, and inimical to the proper care and treatment of detainees. This is not primarily the fault of staff, some of whom were trying without adequate support, to do a good job. It is essentially a problem of management, and it

is of some concern that this had not been fully identified and resolved earlier by the contractor

and the Immigration and Nationality Directorate."

4. The report was published on 28 November 2006, the first day of the second and more serious disturbance. The second disturbance caused the Home Office to commission a report from Robert Whalley CB, a retired civil servant, published on 25 July 2007. I will refer to this report later. The fourth report by Ms Owers, published in March 2008, was based on an inspection carried out in January 2008. It recorded a significant improvement, in particular in staff attitudes and respect for detainees.
5. There are three claimants. They did not instigate complaints to the Home Office, Kalyx or to the police, but provided witness statements to Liberty, whose representatives visited former detainees at Harmondsworth and presented their account to the Home Office under cover of a letter dated 21 May 2007. The author, Alex Gask, the solicitor to Liberty, called on the Home Secretary to set up a public inquiry into the disturbances. One of the grounds relied on was that it was arguable that the Article 3 rights of four claimants (one has now dropped out) and others had been infringed before during and after the disturbance. The Home Office mislaid the letter, but when reminded of it, responded by a letter received on 2 July 2007 with a refusal.
6. By a claim form filed on 16 July 2007, the then four claimants applied for judicial review of that refusal and of the Home Secretary's and Kalyx's claimed failure to discharge positive obligations under Articles 2, 3 and 8 of the European Convention on Human Rights to take all reasonable steps prior to 28 November 2006 to improve conditions at Harmondsworth to avert the disturbance; breach of Article 3 rights of the claimants and other detainees before, during and after it; and of the Home Secretary's claimed failure to prevent treatment by Kalyx of the claimants and other detainees in breach of Articles 3 and 8.
7. On 26 March 2008, Black J granted permission to argue the first ground, failure to conduct a public inquiry into the disturbance, and ordered that the application for permission on the remaining grounds be adjourned to the judge who determined the first ground. On 9 April 2008, McCombe J ordered that the claim should be heard before the end of July, hence the hearing yesterday and today.
8. The three claimants contend that a public inquiry should be held to satisfy the procedural requirements of Article 3. This claim is founded on their own claimed experiences. The second claimant, AM, is a failed asylum seeker. He was detained at Harmondsworth from 2 August 2006 until transferred to Colnbrook Immigration Removal Centre nearby on 29 November 2006. He claimed to have been threatened on an unspecified date before the disturbance with solitary confinement by an Asian detention officer, when he persisted in demanding a fax which he was expecting.
9. The disturbance, according to Mr Whalley's findings, started in B wing at 2115 hours on 28 November 2008. At 2200 hours, AM says that detainees in his wing, C wing, were ordered outside into a cold exercise yard and let back into the wing an hour and a half later. He was locked in his cell, which was next to the block's association room. At about 2310 hours other detainees started a fire in the association room, filling his cell with smoke. He collapsed due to spoke inhalation and awoke in the reception room in the block. He had been given oxygen by a doctor, but had to lie on the bare floor, where he remained until 0900 hours on 29 November 2008. He was allowed to use the toilet but was not given food or water. He asked for a change of clothes, but was told by a female detention officer at 1330 hours that there were none available. He left Harmondsworth at 1700 hours and was taken to Colnbrook, where he was given food and water.
10. The third claimant, HM, was convicted on 19 April 2006 of offences of dishonesty arising out of the use of a false passport to obtain a flight to Canada on 13 April 2006. He was sentenced to six months' imprisonment and recommended for deportation. He was placed in immigration detention on 16 July 2006 and transferred to Harmondsworth on an uncertain date, probably a few days before the disturbance. His cell was in B wing. He says that he had a painful back which was inadequately treated by the prescription of sleeping tablets. When he awoke in pain and, at the request of the men sharing his cell, detention officers arrived, they "forced" him from his bed and "threw" him into a wheelchair. They abandoned him at the clinic, tried to trip him up and called him a "fucking negro". At 1900 hours he was evacuated to the exercise yard and kept there for three hours. There was a struggle as detainees tried to return to the accommodation block, during which he was punched in the cheek by an officer and knocked to the ground. He was then locked into his cell with three other detainees. A fire started upstairs, filling his cell with smoke. The detention officers did not let him or other detainees out of their cells. After about three hours, another detainee forced open the door. The floor was flooded and everything was broken. From then on, on his timings, from about 0100 hours on 29 November 2006 until the morning of 30 November 2006, he was made to stay outside in the cold while the fire continued to burn in his block. He had to urinate on the floor. He drank water out of a tap and had some food from his belongings. He was not given anything else to eat or drink. He was taken to Campsfield on 30 November 2006.
11. The background of the fourth claimant, LM, is unknown because his witness statement has been redacted to preserve his anonymity. He was in A block. He went to bed on 28 November 2006 at 2330-2400 hours. He propped open the door to his cell. At 0100 on 29 November 2006, some friends came into his cell and he went into the corridor. He saw water everywhere and the telephone, sink and washing machine were broken. The detention officers had fled. He went back to bed but awoke at 0300 hours. A fire had set off the corridor sprinklers and stopped the air circulation in the air conditioning system. It got very hot. At 0800 hours he used the toilet. He saw a "Rapid Response" team and so returned to his cell and locked himself in. Later he banged on his cell to be let out and was told to "shut up". He urinated on the cell floor. Water seeped in from the corridor. At 0530 to 0545 hours on 30 November 2006 "10 to 15 riot police" burst into his cell. He jumped up:

"They must have mistaken this for threatening behaviour as they hit me on my right knee and hip with a baton and pinned me onto the bed with their shields. Their shields were pressing down on my chest, suffocating me."

12. They told him to forget his legal documents and took him to the exercise yard. He states that he was locked in his cell for about 21 and a half hours, with no food or water or access to a toilet. He then stood outside in the cold for five hours. He was then given a pack of biscuits, fruit and water. He then travelled for nine to ten hours to another detention centre without further food or drink.
13. Mr Eadie QC, for the Home Secretary, accepts for the purpose of the present claim that those allegations give rise to an arguable claim that each claimant was subjected to treatment in breach of Article 3. Mr Sturman QC, for Kalyx, submits that the threshold is not even arguably crossed.
14. I am satisfied that Mr Eadie's concession is justified. If what these claimants say is true, they each have an arguable claim that their Article 3 rights were infringed in some or all of the following ways: being assaulted by detention officers or prison officers; being locked and kept locked in cells when smoke, the inflow of water and the need to urinate made continued occupation dangerous or potentially injurious to health; being kept outside in the cold for long periods; not being provided with food or water for long periods.
15. It is not difficult to conceive of evidence which would explain and justify the measures taken by the authorities, and the discomfort, or worse, for detainees necessarily consequent upon them, but it is only necessary to establish that it is arguable that Article 3 rights were breached to engage the state's procedural obligations under Article 3. The following features are, however, noteworthy and relevant.
16. (1) Apart from an injury to the hand of one detainee, the heart attack sustained by another and the treatment for smoke inhalation received by the second claimant, there is no evidence or suggestion that any detainee sustained physical injury of a kind which required medical treatment. There is evidence from Leslie Fraser, formerly a councillor at Colnbrook, that many detainees seen by her in the period following the disturbance experienced feelings of panic and abandonment as a result of the disturbance, an unsurprising finding given its nature and extent. It is possible to conceive of circumstances which, by themselves, require a large-scale police investigation or public inquiry to fulfil the state's procedural obligations under Article 3 to a large number of individuals: for example, when steps taken by the authorities to quell a prison riot result in death or serious injuries to many. But this is not such a case. Still less is it such a case if it is confined to the claims of the three claimants.
17. (2) None of the three claimants made any complaint to the detention centre managers, Kalyx, under rule 3 of the Detention Centre Rules 2001, to the Prisons and Probation Service Ombudsman, who has had the remit to inquire into complaints concerning detention centres since 1 October 2006, or to the police. Unless and until such complaints were made, the state's Article 3 procedural obligations could not in practice arise simply because no state organ knew that there were, in the case of any of the three claimants, claimed breaches of Article 3.
18. It is instructive to note how the claims came to be made. As I have stated, Liberty visited detention centres holding former residents of Harmondsworth. They obtained evidence in the form of signed witness statements from the three claimants and anonymised statements from other detainees about the events leading up to, during and after the disturbance. Armed with this material, Liberty wrote to the Home Secretary on 21 May 2007. The introduction set out the purpose:

"Each of the above-listed individuals went through traumatic experiences during the disturbance that took place at Harmondsworth on 28 November 2006 and its aftermath (together 'the disturbance') and call on you to conduct a public inquiry into the underlying causes of the disturbance and the treatment of immigration detainees while it took place.

Each of these individuals has made a written statement of their experiences leading up to and during the disturbance. These statements are attached to this letter, together with further statements from individuals not represented

currently by Liberty. It is submitted that the statements reveal inhuman and degrading treatment on the part of immigration and prison service officers in violation of Article 3 of the European Convention on Human Rights ('ECHR') (or at least an arguable violation of Article 3).

We believe that the events surrounding the Harmondsworth disturbance warrant a full public inquiry in any event, particularly since it occurred:

(a) immediately after the publication of a damning report from the Chief Inspector of Prisons likening the regime at Harmondsworth to that of a 'high security prison';

(b) following a mysterious settlement for contract failures on the part of Kalyx totalling more than £5,000,000; and

(c) following another serious disturbance in the centre just 28 months earlier.

Nevertheless, the existence of an arguable breach of Article 3 by agents of the state mean that you are not only morally but also legally obliged to carry out a public inquiry.

You are asked to order a public inquiry to be held using your discretionary power to do so, or alternatively to order an inquiry under the Public[sic] Inquiries Act 2005."

19. The nature and purpose of the inquiry sought was set out in full at pages 18 to 19 of the letter:

"It is submitted that the terms of reference for the independent public inquiry should be as follows:

1. To inquire into the circumstances leading up to the disturbance at Harmondsworth Immigration Removal Centre that began on 28 November 2006, including the conditions of detention and treatment of detainees by immigration staff, with the aim of establishing the underlying reasons why the disturbance took place.

2. To investigate the manner in which the disturbance was managed including the treatment of detainees by immigration officers, contract personnel, prison service officers, police and any other non-detained persons during the disturbance and its aftermath.

3. To investigate into the adequacy of the systems and procedures put in place by the Home Office to deal with disturbances in immigration detention centres.

4. To recommend what steps should be taken to prevent such a disturbance happening again and to ensure that the safety of immigration detainees is

not compromised in the future, and to report its findings as soon as possible.

The public inquiry should be chaired by a senior member of the judiciary."

20. Thus from the first notification of the complaints of the three claimants to the Home Secretary, what was being sought was not a police investigation into allegations of criminal conduct, or a reference to the Ombudsman, but a full-scale public inquiry under section 10 of the Inquiries Act 2005, and for the purpose not of seeking information about and redress for the events which had befallen each claimant, but to draw conclusions of a general nature about the running of Harmondsworth and the lessons to be learned.
21. The judicial review proceedings inevitably and rightly focus on the claims of the three claimants: inevitably because a claim that the state has infringed the procedural requirements of Article 3 can only be made in respect of breaches of the rights of specific individuals; and rightly because only a breach of the rights in relation to specific individuals can found a claim for judicial review of the state's failure to satisfy the procedural requirements of Article 3.
22. The rights can be simply stated, and are as stated by Jackson J in R(Margaret Wright) v Secretary of State for the Home Department [2001] EWHC Admin 520 at paragraph 43:

"1. Articles 2 and 3 enshrine fundamental human rights. When it is arguable that there has been a breach of either article, the state has an obligation to procure an effective official investigation.

2. The obligation to procure an effective official investigation arises by necessary implication in articles 2 and 3. Such investigation is required, in order to maximise future compliance with those articles.

3. There is no universal set of rules for the form which an effective official investigation must take. The form which the investigation takes will depend on the facts of the case and the procedures available in the particular state."

23. The purposes of such an inquiry were authoritatively summarised by Lord Bingham in R(Amin) v Secretary of State for the Home Department [2004] 1 AC 653 at paragraph 31:

"The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.

24. In an Article 3 case in which the victim is alive, the last sub-sentence can be rephrased to read:

"... and that those who have been ill-treated may at least have the satisfaction of knowing that their ill-treatment has been acknowledged, and may save others from ill-treatment in the future."

25. There is an important distinction between the procedural obligations under Articles 2 and 3. The obligation to investigate under Article 2 arises by virtue of the death or near death of someone for whom the state is responsible. Under Article 3, it arises only if there is an arguable breach of the substantive rights under Article 3. Civil proceedings do not, in general, satisfy the state's obligations to investigate: Jordan v United Kingdom [2003] 37 EHRR 2 52, paragraph 142 (an Article 2 case), especially if meaningful findings as to the perpetrators of criminal assaults cannot be made: Khashiyev v Russia 57942/00, 24 February 2005, paragraph 121 (Article 2) and 177 (Article 3), though they can and generally will satisfy the obligation to afford adequate redress for breach of the substantive rights under Article 3: Jordan paragraph 163.
26. There is a hint in Banks v United Kingdom 21387/05 (an admissibility decision of the fourth section of the court) that the "scrutiny" afforded by civil proceedings may satisfy the procedural requirements of Article 3:

"... the Court would emphasise that the procedural element contained in Article 3 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for serious ill-treatment the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known." (Page 12)

27. There can be no doubt that a fully contested civil claim, by a court having available to it the right to make a declaration as well as to award monetary compensation, and having power to order disclosure of documents for the provision of further information, and which will hear evidence from witnesses who will be cross-examined, can determine the facts of an individual claim and grant relief sufficient to satisfy the substantive Article 3 rights. I have no doubt that a full hearing of these claimant's claims could achieve that, but it will still not satisfy that the state's investigative obligation, and I do not understand the Strasbourg Court to have watered down the requirement for such an investigation by the use of the word "scrutiny" in Banks. It is therefore necessary to examine what investigation was carried out into what by the police and by Mr Whalley.
28. The police investigated possible criminal offences committed by detainees. As far as can be ascertained, no complaints were made to the police by detainees of criminal conduct by the prison or detention centre officers. Certainly, no inquiry was conducted by the police into such claims.
29. Mr Whalley was appointed-

"to investigate the circumstances of the disturbance at Harmondsworth Immigration Removal Centre on 28/29 November 2006;

to establish the lessons to be learnt from this event for the management of immigration detainees and for the immigration detention estate; and

to report to you accordingly."

30. He fulfilled both of the substantive requirements, setting out a narrative of events in Part 3 and a series of conclusions and recommendations in Parts 4 and 5. He was provided with the observations of Liberty and with the witness statements obtained by them (see paragraph 93 of his report), and attempted to meet a small number of detainees in April 2007, not including any claimant, but he did not enquire into these claimants' specific allegations or express any conclusions about them. Thus neither of the two means used to investigate the disturbance examined the claims of the three claimants that their Article 3 rights had been infringed. By the time that they were communicated to the Home Secretary, the option of a police investigation into the only criminal conduct alleged -- the two assaults -- would almost certainly have served no practical purpose. The identification of prison or detention centre officers, unknown to the claimants who are alleged to have struck them, would have been exceptionally difficult, even if conducted contemporaneously. It is now, in my judgment, practically impossible. Mr Eadie submits that that conclusion is speculative. I disagree. I believe it to be realistic.
31. The opportunity for the Ombudsman to investigate has not been given. Even now, there has been no complaint under rule 38, and the Ombudsman could, according to his remit, only entertain a complaint to him exceptionally if such a complaint were to be made now. If the procedural requirements of Article 3 have been infringed, an inquiry into the specific complaints of each claimant is now the only means by which a state sponsored investigation would now in practice be possible, short of a full-scale public inquiry. It would be necessary, according to the material which I have seen, for the Ombudsman to exercise a discretion to conduct such an inquiry, but no doubt if the Home Secretary were to join with the claimants in asking him to perform that task, he would give serious consideration to it. But even so, little purpose would be served by an investigation now. All three claimants have been released from detention, and their civil claim affords a far better means of achieving practical redress for any wrong that may have been done to them than would a non-statutory inquiry by the Ombudsman.
32. The problem which has arisen in this case has not, as far as I can tell, arisen in any other case; it is: what is the state's obligation of investigation where an allegation of a breach of Article 3 rights is communicated at a time when it would be difficult or impossible to undertake a worthwhile investigation? In this case, that circumstance has arisen because none of the claimants made complaints to the relevant authorities: to the police, to the operators of the detention centre, or to the Ombudsman, at a time when events were fresh in mind. No inquiry is now practicable with a view to fulfilling the primary obligation of identifying and punishing those responsible for breaches of Article 3, whether by criminal sanction or disciplinary sanction. All that can now in practice be achieved is redress by civil proceedings under section 8 of the Human Rights Act 1998.
33. The circumstances of this case mirror those considered by the Strasbourg Court in Banks at page 10:

"It is important, with a view to ensuring respect for the rule of law and confidence of the public, that the facts, and any unlawfulness, are properly and swiftly established. In the context of Article 3, where the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred, there is a different emphasis and, as stated in the above-cited Ilhan case (see § 92), since Article 13 of the Convention requires an effective remedy to be provided for arguable breaches of Article 3, it will not always be necessary, or appropriate, to examine the procedural complaints under the latter provision. The procedural limb of Article 3 principally comes into play where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time ..."

34. Accordingly, and because no investigation is now possible into the claims of infringement of the claimant's Article 3 substantive rights, other than the civil proceedings, I am satisfied that the United Kingdom authorities would not be in breach of Article 3 if they decline the invitation afforded by this case to conduct a statutory inquiry under section 10 of the 2005 Act, or some other non-statutory wide-ranging inquiry, into events at Harmondsworth.
35. Because of the passage of time and the way in which these claims have evolved, the only practicable method of determining the facts is a civil trial. Accordingly, that is the only route by which, in practice, the claimants's Article 3 substantive rights can be given effect to. I therefore decline to make the declaration which by amendment I am invited to, that the state has been in breach of its procedural obligation under Article 3, or to order that there be a public inquiry.
36. Banks is also useful authority for the proposition that the wider-ranging inquiry sought by Liberty in its letter of 21 May 2007 and by the claimants in these proceedings is not the appropriate means of fulfilling their procedural rights under Article 3:

"The wider questions raised by the case as to the background of the assaults and the remedial measures apt to prevent any recurrence in a prison in the future are, in the Court's opinion, matters for public and political debate which fall outside the scope of Article 3 of the Convention ... " (page 12)

37. Both the substantive and procedural requirements of Article 3 concern the rights of individuals. The inquiry sought concerns the lessons to be drawn from the running of Harmondsworth before the disturbance and from the disturbance itself for the future running of Harmondsworth and other detention centres. This is not the function of Article 3. This aspect of the claim does not give rise to an obligation under Article 3 on the part of the state to conduct the inquiry sought.
38. For those reasons, I dismiss the part of the claim ordered to be tried by Black J.
39. There remain consequential matters, I believe. Can we deal with them first on the premise that that order remains in place, and then dealing with any matters that arise out of it?
40. MR EADIE: My Lord, I think on that basis the matters that principally fall to be dealt with are the future progress of the remaining claims that are made.
41. MR JUSTICE MITTING: Yes. First, you have accepted that they are arguable. Secondly, my judgment has stated that first they are arguable, and secondly the only way in which the claimant's Article 3 rights can be given effect to is civil proceedings.
42. MR EADIE: In those circumstances, the issue of permission is not a terribly live one.
43. MR JUSTICE MITTING: It is not. I grant permission for the remaining claims, although we may have to look at precisely how they are put in a moment.
44. MR EADIE: Yes, and then the question that then remains is how most conveniently and appropriately they should be tried and perhaps by whom. My Lord, I think our position in relation to that would be that there is no harm in leaving those claims in the Administrative Court. The advantage of doing that, rather than a straight transfer out into the QB Division, is that judges of the Administrative Court are extremely well versed in matters ECHR, and are well aware of that case law, so there is a saving there. Most of them have come from backgrounds where the cross-over is not a terribly traumatic one, so there is an advantage therefore in leaving them in the Administrative Court, but nevertheless trying to set them up so that they are most conveniently dealt with procedurally to enable the factual issues that might arise to be dealt with.
45. MR JUSTICE MITTING: This is a witness action.
46. MR EADIE: Yes, that is what it comes to.
47. MR JUSTICE MITTING: The Administrative Court listing office finds it difficult to accommodate claims of the likely length of this one, which I manage is going to be one week, perhaps two.
48. MR EADIE: My Lord, in that case one could transfer it out, but put a marking on it that if there is a judge with Administrative Court experience to hear it, it happens in the QB but with that sort of judge. That may be equally difficult, I know not.
49. MR JUSTICE MITTING: Well, there are actually two sets of expertise required here: one is some familiarity with the Convention rights; and the other is how you manage witness actions and what orders you make for reports, witness statements standing as evidence in chief and so forth, which are actually the province of the Queen's Bench Division rather than the Administrative Court. I think it ought to be transferred to the Queen's Bench Division, subject to anything anybody else has to say.
50. MR EADIE: My Lord, subject to anyone pulling my gown very hard now, and I feel nothing, I am sure we would not object to that course, certainly. I do not know if my learned friend has any views on that.
51. MR JUSTICE MITTING: Ms Simor?
52. MS SIMOR: My Lord, permission to appeal on this point --
53. MR JUSTICE MITTING: No, leave that aside. What I want for the moment is how we progress the remainder of the action.
54. MS SIMOR: Of course, we say it would have to be transferred. It is obviously a very heavy witness action, and it is not appropriate for the Administrative Court in its current form. The reason it was in the Administrative Court, of course, was, had there been a thorough and detailed investigation, then it might be a judicial review case, but it is certainly --
55. MR JUSTICE MITTING: It was undoubtedly correctly brought in the Administrative Court.
56. MS SIMOR: Currently it is not an administrative law court case. It must be transferred.
57. MR JUSTICE MITTING: Agreed. Do you agree?
58. MR EADIE: Yes, we agree.
59. MS SIMOR: That said, the reason I raised permission is that we do seek permission, particularly on, well, on several points, but particularly regarding the finding that unless and until complaints are made, the obligation could not have arisen, and as your Lordship said, there is no case on all fours with this. This is a very important point of law. So we would seek permission, and we would seek to have that appeal heard before any consideration moving forward with any kind of civil action. So that is my primary position.
60. MR JUSTICE MITTING: I understand why you make that application now, as it were, rather than after I have decided what should happen to the rest of the claim.
61. MS SIMOR: And that action would be stayed pending the outcome of the appeal.
62. MR JUSTICE MITTING: Yes. Mr Eadie, there is some sense in that, I think.
63. MR EADIE: My Lord, there certainly is. If my Lord is minded to grant permission to appeal -- perhaps even if not and my learned friend is going to go to the Court of Appeal to seek it, there is certainly sense in having that issue of permission sorted out in advance of the action going further.
64. MR JUSTICE MITTING: I think I am right in saying that the point is a novel one in the case law, and the answer I have given is also not mandated by any decision of a higher court. Consequently, I do think it is an appropriate case for permission.
65. MR EADIE: My Lord, I am not going to seek to dissuade you from that point of view; it is entirely sensible.
66. MR HODIVALA: Can I rise to my feet at this stage?
67. MR JUSTICE MITTING: Yes.
68. MR HODIVALA: Your Lordship has come to the conclusion that clearly the threshold for any kind of inquiry, whether it is a public inquiry of the nature sought or a civil proceedings inquiry, has been crossed. As your Lordship is well aware, the second defendant did not concede that point as such in the course of argument. Your Lordship indicated that it just fell the wrong side of the line as far as the second defendant is concerned. If there is going to be an appeal in respect of whether or not the procedural obligations kick into effect once a complaint is made or at an earlier stage, we would seek to cross-appeal on the point that effectively all of this is otiose because the threshold was not crossed in fact on these facts.
69. MR JUSTICE MITTING: Well, I think you will have to ask the Court of Appeal for that. That is just an ordinary matter of judgment on the facts; it is not something of any wider significance.
70. MR HODIVALA: I appreciate that. Thank you.
71. MR EADIE: My Lord, I rather wonder in the circumstances whether there is any point in making any further directions in relation to the action. One could have dealt with the grounds standing as a statement of case and consequential directions, but I suspect that given that you have given permission to appeal, the sensible thing is to get that out of the way.
72. MR JUSTICE MITTING: Yes, and I ought to, I think, impose a stay on any further proceedings in the action until the appeal is determined.
73. MR EADIE: I do not know whether there is currently a stay --
74. MS SIMOR: It is just that permission has not been granted. It is up to your Lordship whether you maintain that position or whether you grant permission and grant a stay.
75. MR JUSTICE MITTING: Yes, if you appeal successfully, you will end up with a public inquiry which will render the proceedings substantially unnecessary.
76. MS SIMOR: It may. We would then possibly have a JR.
77. MR JUSTICE MITTING: There will be a monetary claim which would be alive.
78. MS SIMOR: There might, but there might actually not be. There might be a decision not to do anything after that.
79. MR JUSTICE MITTING: The remaining claim might not be pursued.
80. MS SIMOR: Precisely.
81. MR JUSTICE MITTING: It is consequently probably better, is it not, to leave the permission application outstanding, simply to stay that as well as everything else.
82. MS SIMOR: Provided there is no technical problem in terms of the Court of Appeal. I am not the best person on the rules. If we get to the Court of Appeal without having been granted permission, I assume there would be no difficulty because technically I suppose we would still be before the High Court on those grounds.
83. MR JUSTICE MITTING: Yes, you would. Let me state for the avoidance of doubt that if your appeal to the Court of Appeal does not succeed, and so in consequence there is no inquiry, and there is to be civil proceedings, you should have permission to pursue the remaining claims, perhaps in amended form, and what I suggest is that if you appeal to the Court of Appeal and your appeal is rejected, you come back to the court on a short oral hearing simply to refine the grounds upon which you ought to be granted permission.
84. MS SIMOR: I am grateful. May I also ask for a --
85. MR JUSTICE MITTING: And the judge would then deal with the question of in which part of the Queen's Bench Division the claim is to proceed.
86. MS SIMOR: May I also ask for an additional seven days to serve the notice of appeal, taking us -- it is 21 days, I think, the requirement -- if we can have 28 days?
87. MR JUSTICE MITTING: Why do you need it?
88. MS SIMOR: We need it both to get instructions -- these people are very difficult to get instructions from -- but also because of the pressure of work on both myself and my junior. We are both under a lot of pressure. I am just looking at it realistically.
89. MR JUSTICE MITTING: Do you need Legal Services Commission authority?
90. MS SIMOR: We will need that as well, but I will be able to give them advice, but I envisage we will get legal aid, but it is being realistic. It may be possible, but it does not, on my schedule and on my junior's schedule, and getting instructions, we just seek a further seven days.
91. MR JUSTICE MITTING: Mr Eadie, I am sympathetic to that.
92. MR EADIE: I do not mind that. My difficulty with that, of course, is that the moment we get into respondent's notice territory, if we do, that is going land us smack bang in the middle of my summer holiday, which is very inconvenient.
93. MS SIMOR: Of course, you only need to serve a respondent's notice if there is a counter-ground.
94. MR EADIE: I am well aware of the nature of a respondent's notice; I am more worried about my holiday.
95. MR JUSTICE MITTING: Commendable frankness. When does it start?
96. MR EADIE: My Lord, I go away on 11 August, but I am in Gibraltar having a fight about whether or not they should have sacked their Chief Justice, pretty much until then. I may be back in the first week of August and I have a period of about four days in London and then I am gone for two or three weeks until the end of August.
97. MR JUSTICE MITTING: It may be you will have to use those four days in which to prepare a respondent's notice.
98. MR EADIE: My Lord, there does not seem to be a great deal of urgency to it. I rather wonder whether, if my learned friend's time is extended, whether we could have time which at least allows us to get a week or so at the very beginning of September to put things to bed. I do not think anyone is going to be inconvenienced by that given the state of the lists.
99. MS SIMOR: I am away in August, so I have no difficulty with that.
100. MR JUSTICE MITTING: So you want me to extend the time for serving a respondent's notice --
101. MR EADIE: Until 7 September.
102. MR JUSTICE MITTING: Until 7 September. That, I hope, is not a Sunday, is it?
103. MR EADIE: If so, we will do it the nearest Friday. It is a Sunday.
104. MR JUSTICE MITTING: Until the 5th?
105. MR EADIE: Two less days, we will do it by the 5th.
106. MR JUSTICE MITTING: Very well. I will extend time for the serving a notice of appeal until 4pm on Tuesday, 22 July, which is your 28 days, and then do you actually really need more than the four weeks before you go on holiday to serve the -- we are the 24th today, and 28 days from today is July 22.
107. MR EADIE: My difficulty is that I am physically abroad in Gibraltar and that finishes at the beginning of that first week of August.
108. MR JUSTICE MITTING: In which case I will extend your time for serving a respondent's notice until 4pm on Friday, 5 September.
109. MR EADIE: My Lord, I am very grateful.
110. MR HODIVALA: Could I raise one matter?
111. MR JUSTICE MITTING: Yes.
112. MR HODIVALA: It has clearly been an issue between the claimant and the second defendant because the second defendant is strictly simply an interested party in respect of this first ground, can I ask that the order that your Lordship makes today is incorporated to include an order that if the second defendant, if so advised, seeks to file a respondent's notice, the same time limit applies, for the avoidance of any doubt, apart from anything else.
113. MR JUSTICE MITTING: I am content with that.
114. MS SIMOR: Yes, my Lord.
115. MR JUSTICE MITTING: Could I ask one of you to draw up an order and circulate it for agreement, and then hand it in to the associate?
116. MR EADIE: Yes, I will undertake that.
117. MR JUSTICE MITTING: Thank you very much.
118. MS SIMOR: My Lord, I apologise, I should have sought an order for legal aid costs.
119. MR JUSTICE MITTING: Yes, public funding assessment of the claimant's costs.
120. MS SIMOR: Thank you, my Lord.