QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PB||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Mr S Singh (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"Victim of torture form signed. Advise will book for a doctor tomorrow as she has not been seen since arriving."
A form filled out by the medical centre on 16th December 2006 also states that the claimant was alleging to have been a victim of torture. The form notes that the claimant was unable to attend an appointment with the general practitioner on 14th December as she was being interviewed and that an appointment was rebooked for 17th December 2006.
"Contrary to your submissions that your client has not had a fair hearing as the Detention Centre Rules were not adhered to, I draw to your attention that your client was examined mentally and physically after her entry into detention and that the representative of the Secretary of State was notified in accordance with the Detention Centre Rules that your client claimed to be a victim of torture."
The summary grounds of defence at paragraph 17(a) also state that a medical examination had been carried out within 24 hours of detention.
"(32) She has multiple scars on both lower legs and feet attributed to the kicks causing lacerations. The appearance of these scars is highly consistent with this attribution. The areas of hyperpigmentation on the front of the left lower leg and knees are attributed to bruising and abrasions sustained in detention, and their appearance is highly consistent with this. I use the Istanbul protocol recommended terms, appended.
(33) I have considered whether these findings could have arisen due to other causes. I note that she is an agronomist. She has a tertiary qualification and no history of manual labour or playing sports, which might otherwise cause such a high number of scars. In addition, while it is notoriously difficult to age scars, these scars do all appear to be of a similar maturity, indicating it is likely they were sustained at around the same time, and not one by one over a prolonged period of time as is more usual with accidental injuries.
(34) I also note that the location of the scars, which while again compatible with accidental causes is also that most exposed when a person is huddled defensively. Blows to the front of the lower leg are more likely to cause scars than blows elsewhere as they are over a bony prominence -- the tibia. Thus although she gives a history of being kicked on other parts of the body, the fact that only the lower legs are scarred is compatible with this."
"(b) Although you have kindly drawn to our attention that Dr Cohen's report records that your client's physical scars are 'highly consistent' with her claims of torture whilst in detention, this is considered to be very selective use of the Medical Report.
Dr Cohen has stated that 'The appearance of these scars is highly consistent with this attribution' (kicking). Closer inspection of the Istanbul protocol, from where the term 'highly consistent' is derived, records its meaning as: 'the lesion could have been caused by the trauma described, and there are fewer other possible causes' (emphasis added) (paragraph 32).
Dr Cohen also states that consideration has been given as to whether these scars could have arisen due to other causes. No findings have been made on this point save to say that these scars 'all appear' to be of a similar maturity 'indicating it is likely' that they were sustained at around the same time. There are no explanations as to why Dr Cohen thinks this, especially given her own earlier statement that 'it is notoriously difficult to age scars' (paragraph 33).
Dr Cohen notes that although your client's history of being kicked on her lower legs is compatible with the scarring, there is also the finding that the location of the scars is compatible with scarring of accidental causes.
In conclusion whilst the scarring itself is not in dispute, it is considered that Dr Cohen's findings in this respect are somewhat limited and that insufficient alternative explanations have been explored. The term 'highly consistent' cannot be used in isolation to accept in entirety your client's account of her treatment whilst in detention.
(c) Furthermore despite your client's claims that she was beaten twice daily with electrical cables, for a period of two months (AIR question 4), it is noted that her physical examination bore no scars or marks in relation to this.
Dr Cohen has kindly given an explanation that 'Physical evidence of whipping injuries . . . depends on the force used and the parts of the body hit' (paragraph 35). However, no other findings have been made in this respect, including considering whether such whippings actually took place. It is not considered that the findings (if any) are complete in this respect.
(d) In respect of the gynaecological problems which your client attributes to rape, Dr Cohen has made the following findings (in summary): that your client has an offensive vaginal discharge and heavy periods most likely as a result of a sexually transmitted disease (paragraph 36). There is no negative inference drawn from that fact that there is no physical evidence of rape (paragraph 30).
However, given that it is your client's own evidence that she suffers from fibroids and as such has had heavy bleeding during her monthly menstrual cycle in the past (paragraph 5) and the fact that sexually transmitted diseases are not just attributed to rape but most commonly unprotected sex, these findings cannot substantiate your client's claim of rape.
(e) Dr Cohen at paragraphs 38 through to 41 of the Medical Report offers medical opinion on your client's psychological health including a possible diagnosis that your client suffers from PTSD.
The Medical Report in this respect is not accepted to be of any substantial diagnostic or clinical value given that Dr Cohen is a General Practitioner and not according to the GMC on the Specialist Register in any specific area of medicine, including psychology or psychiatry (extract from www.gmc-uk.org attached). It is noted that such an opinion/finding has been derived primarily from your client's account which has been disbelieved by both the AIT and the Home Office.
Therefore in light of the previous credibility findings by the AIT it is not believed that this report would add such weight to your client's account that would mean that there would be a realistic prospect of success."
The First Issue
"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
(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)
(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."
"(50) In my view the combined effect of the Detention Centre Rules, the statement of Lord Filkin, the provisions of Chapter 38 of the Operation Enforcement Manual and the relevant provisions of the Detention Services Operating Standards Manual all point in one direction: which is that the medical examination required under Rule 34 of the Detention Centre Rules is a part -- an important part -- of the safeguards provided to assess whether a person, once removed to Oakington, should continue to be detained there under the fast-track procedure. Further, it seems to me to be a necessary corollary of that that any such concerns as to torture as may be identified by the medical practitioner would at least be capable of constituting "independent evidence" for the purposes of the Government's announced policy. Indeed if that were not so, it is difficult to see why so much emphasis has consistently been placed on the availability of -- indeed, requirement for -- such physical and mental examination. It is also to be noted that the structure of Rule 35 is such that the requirement under Rule 35(3) for the medical practitioners to report concerns as to torture is distinct from any requirement to report on grounds of injury to health by reason of detention (Rule 35(1)) and from any requirement to report concerns of suicide (Rule 35(2)) . . .
(52) I would, however, agree with Ms Richards that there is a separate question as to the I would, however, agree with Ms Richards that there is a separate question as to the weight to be given to such evidence; and I would not agree with Mr Rabinder Singh's submissions to the extent that such submissions connoted that any expression of concern arising from medical screening (whether or not arising from a Rule 34 examination) would "inevitably" mean that the asylum application in question would then have sufficient complications to render it inappropriate for the fast-track procedure (and concomitant detention) to be maintained. Indeed I do not read Lord Filkin's statement as making so wide-ranging a concession even with regard to a report made under Rule 35(3). A concern as noted on an AOT form by, for instance, a relatively inexperienced nurse after an initial screening may be regarded as very different from a concern noted by an experienced doctor contained in a Rule 35(3) report in deciding whether to continue to detain. In any event, always relevant will be the way in which such concerns -- whether or not by way of Rule 35(3) report -- are reported and, to some extent, the strength with which such concerns are raised. In some cases the result may then be the removal forthwith of the asylum-seeker from the fast-track procedure. If so, whether the asylum-seeker should then be detained elsewhere will depend on whether there are sufficiently exceptional other circumstances to justify such detention.
(53) I also here would record my view on two other matters. First, I consider that the existence of Rules 34 and 35 and the statement of Lord Filkin operate to displace any notion that in some way there is, as it were, an overriding burden on the detainee always himself to come up with the relevant "independent evidence". There may well be cases where an individual detainee can and should do that. But in other cases (whether for reasons of confusion, ignorance, language, lack of resources or otherwise) a detainee may be in no position to do so: at all events in the form of medical evidence. This in fact, as I see it, is precisely one of the reasons why Rules 34 and Rule 35 are framed as they are -- the obligation being on the detaining authorities in this regard to provide the medical attendance which may in turn, in some cases, lead to a report capable of being independent evidence of torture.
"(19) After the claimant arrived at Yarl's Wood on 13th December 2006, a full medical review was carried out by D Houghton at 22.40 on the same date and the claimant alleged then that she was the victim of torture (p.84 of the bundle). D Houghton was not a 'medical practitioner' as defined by rule 33(1) but was a nurse. Therefore, the defendant admits that the claimant was not given the examination required under rule 34(1).
(20) Rule 35(3) provides that 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. On 16th December 2006 the HCC Manager reported to the Centre Manager that the claimant claimed to be the victim of torture (p.116). The HCC Manager was a registered nurse and not a 'medical practitioner', and so the defendant admits that the requirements of rule 35(3) were not met."
In other words, there were admitted breaches of rules 34 and 35 of the Detention Rules. I must now explore the consequences of these admitted breaches. Article 5 of the ECHR provides, among other things:
"No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law."
Under subparagraph (f) it is said:
"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.
"(108) It is common ground that the fact that D and K were wrongfully denied a medical examination within 24 hours of admission contrary to Rule 34 does not of itself mean that they were wrongfully detained. It is common ground that it is for each of D and K to show that had they received (as they should) such examination within 24 hours then they would have been released at an earlier time than in fact they were. It is common ground that this issue of causation is to be assessed on the balance of probabilities: these are not 'loss of chance' cases . . .
(111) . . . So the questions are: what would (and should) have happened if they had received their Rule 34 examinations within the mandated 24 hours of admission? Would Rule 35(3) reports have resulted sufficient to bring about their release? (I add that no suggestion is made that a Rule 35(1) or Rule 35(2) report would have resulted).
"(117) There is, however, no evidence from the doctor actually involved in the case of D as to what his view or concern (if any) was or how he would have completed any AOT form in the absence of Policy No. 25. A doctor will not necessarily have concerns that there may have been torture where a detainee is alleging torture or where scars or marks are visible. In some cases there may be no scars or marks. In others the doctor may, for example, form the view that such scars or marks have no obvious relation to the torture alleged. Or, for example, it may be that the detainee is alleging only recent torture but such marks as are visible are clearly longstanding. It may be also that such marks as are noted are trivial. But in other cases -- and it is not to be overlooked that the examination is a mental examination as well as physical -- that may not be so. That is not to say, where the doctor has concerns, that he or she necessarily is positively required to express a view that there may have been torture. Really it is a matter for the doctor involved; but as it seems to me the medical practitioner is not to be precluded, if he or she has concerns, from at least expressing a view that the scars or marks or other injury noted are consistent with the detainee's claims of torture (the approach adopted, for example, by Dr Granville-Chapman in her conclusions). If a report is put in, in accordance with Rule 35(3), then that is at least capable of constituting independent evidence. It is for the IND then to assess it in deciding, considering the case as a whole, whether to release; either on the basis that there is an allegation of torture supported by independent evidence; or on the basis that the matter has become too complex to be suitable for the Oakington fast-track procedure; or both. What that decision will be will depend on the circumstances of each case.
(118) In D's case, I have, on balance, formed the view that had a medical examination of D taken place in accordance with Rule 34, and had there been no Policy No. 25 in existence, it should and would have resulted both in a Rule 35(3) report and in her release from detention at Oakington. D made complaints of, among other things, having been beaten by the authorities with a steel wire on her back. Those scars ('multiple linear scars') are extensive and, on examination, evident. They were observed both by the nurse and by the doctor. Further, her version of events was, it may be noted, maintained in the interview at Oakington. I think also that I am entitled to bear in mind the subsequent report and conclusion of Dr Granville-Chapman, which has not been countered by a medical report to the contrary from the Defendants in these proceedings. In such circumstances, and bearing in mind also the general presumption in favour of release, I therefore conclude that a Rule 34 examination, if made, should and would have brought about D's release from Oakington."
The Second Issue
"How many persons who were raped or tortured abroad have been held at (a) Yarl's Wood Removal Centre, and (b) all other detention and removal centres since April 2005; and for what purpose?"
On behalf of Her Majesty's government Baroness Scotland of Asthal, Minister of State of the Home Office replied:
"While there are allegations of torture abroad made in centres, these allegations are not centrally recorded, and could be collated only at a disproportionate cost. There is a system for reporting such allegations, and this system is laid down in the Detention Centre Rules 2001. An allegation of torture is reported to the case holder in the Immigration and Nationality Directorate, and they investigate using the detainee's medical records. Where it is judged appropriate the detainee's case is referred to the Medical Foundation for the Care of Victims of Torture."
The last two sentences are in unequivocal terms and are to the effect that the IND investigate allegations of torture made by detainees and assume responsibility for referring the case, in appropriate circumstances, to the MFCVT.
"What mechanism has been, or will be, put in place so that an asylum applicant who claims to have suffered torture is promptly referred to the Medical Foundation?"
The Minister of State replied:
"It is not for the Immigration and Nationality Directorate (IND) to judge whether a referral would be in the best interests of the claimant. Legal representatives, general practitioners and other health professionals, social workers, refugee agencies and others can help with that decision. NHS services are available to all asylum seekers whose claims are under consideration. Where appropriate, the IND will advise the claimant of the existence of the Medical Foundation for the Care of Victims of Torture."
The Fourth Issue: The Decision of 18th May 2007
The Fifth Issue
"My client is prepared to settle your client's unlawful detention claim on the following terms. My client will pay to yours a sum of £4,000 in settlement of the unlawful detention claim and pay your costs."
It is made clear that the hearing itself should be vacated for the purpose of settling. If you turn over the page, a form of consent is attached. The defence agree there to reconsider the claimant's submissions under paragraph 353. An interview was agreed and then a proposal was made to vacate the hearing, for the claimant to withdraw her claim and then judicial review of the proceedings stayed in order to settle quantum in terms of the unlawful detention claim. The defendant to pay the claimant's costs with detailed assessment.
"With regard to settling this matter, however, we would be prepared to vacate the forthcoming hearing on the following terms, in addition to those raised in the forms of consent --
• The representations be treated as a fresh claim.
• The Secretary of State agrees when reconsidering the fresh claim or opposing any appeal against refusal of a fresh claim to have no regard to previous interviews, decisions and determinations on her claim . . . "
And so on as my Lord sees. What became a sticking point, my Lord, was the claimant's solicitors' insistence that all previous interview, decisions and determinations were effectively wiped off the slate. That is a point you decided against the claimant. If you turn over the page, there are two draft letters of 11th January. Unfortunately I do not have the final letters dated 14th January. They are identical to these drafts. The first letter states at the penultimate paragraph:
"I therefore suggest that the hearing of 27th January be vacated for the purpose of settling quantum."
The claimant's solicitors are advised to respond by return. You can see from turning over the page that the amount offered in settlement was increased to £15,000. If you turn over the page, my Lord, you have the claimant's solicitors' letter of 15th January 2008. It states:
"Thank you for your offer of settlement as set out in the two letters of 14th January 2008. Without prejudice, we consider the level of damages being offered to be acceptable provided the remaining issues can be resolved. We wish to ensure that a full settlement can be reached and request that you alert us by 4 pm today to ensure we can, in the absence of a full settlement, proceed with the preparation for the hearing next week. A form of consent is enclosed."
If your Lordship could read the next paragraph also.
"Notwithstanding that my client's position is that it would be sensible to vacate the hearing . . . perhaps it should be reserved solely for the court to direct whether or not in all circumstances the previous material should be disregarded."
My Lord, the claimant's response to that letter came on 21st January, and again if my Lord reads the second paragraph.