England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		2nd December 2010

(This transcript has been prepared without the assistance of any documents)

1. SIR ANTHONY MAY: Article 3 of the European Convention on Human Rights prohibits torture and inhuman or degrading treatment or punishment. Although inhuman or degrading treatment is often thought of in extreme terms, Convention case law shows that on occasions it may apply to conduct which falls below that extreme level at least descriptively. Examples may be where the victim is in custody, and where the victim is young and vulnerable. The special vulnerability of children is a factor relevant to judging whether treatment to which they are subjected reach the minimum level of severity for Article 3 to apply. Exposing children, who are dependent on adults to a terrifying experience which affects their emotional or psychological welfare may, depending on the circumstances, constitute a breach for them of Article 3. Separating young children from their parents may be an important consideration.
2. As to adults who are in custody, recourse to physical force which is not strictly necessary may diminish human dignity and, again depending on the circumstances, amount to an infringement for them of Article 3. The state has an obligation to ensure that those in detention are not subjected to treatment which exceeds the unavoidable level of suffering and hardship inherent in detention. None of this is contentious in the present proceedings.
3. In the R (AM) v Secretary of State for the Home Department [2009] EWCA Civ 219, Sedley LJ said this at paragraphs 3 and 4:

"A body of European and domestic case-law has established that, when there is credible evidence of a breach of art. 2, the state has an obligation to provide or to institute an effective official investigation. The purposes of such an investigation were described by Lord Bingham in R (Amin) v Home Secretary [2004] 1 AC 653, §31:

'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 learnt from his death may save the lives of others.'"

4. It is also well established that an analogous duty is created by Article 3, where credible evidence suggests that one or more individuals have been subjected by or with the connivance of the State to treatments sufficiently grave to come within the Article.
5. The issue in this appeal is whether, on the evidence before the court about the disturbances at Harmsworth Immigration Detention Centre in late November 2006 this obligation was engaged and, if engaged, discharged. A major aspect of this issue is whether there are differences of kind as well as of degree between the Article 2 obligation and the Article 3 obligation.
6. Sedley LJ then proceeded to say this in paragraph 32 of the AM judgment:

"32. There is at least agreement between Ms Simor and Mr Eadie that the ECtHR jurisprudence establishes the following requirements (as formulated in Mr Eadie's skeleton argument) of any art. 3 investigation:

41.1 The investigation should be capable of leading to the identification and punishment of those responsible;

41.2 It may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence;

41.3 It must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances;

41.4 It must be thorough, in that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident; and

42.5 It must permit effective access for the complainant to the investigatory procedure."

7. It is not, I think, necessary to dwell for present purposes on any difference there may be between the investigative obligation of the State for the purposes of Article 2 and 3 respectively. As the parties agree, and as Sedley LJ said in paragraph 60 of AM, so long as the minimum requirements are met, the distinction between a need for an independent ad hoc inquiry and the satisfaction of the investigative obligation through existing procedures is a fact sensitive and pragmatic one.
8. Jackson J had said in R v Margaret Wright v Secretary of State for the Home Department [2009] EWHC (Admin) 520, that there is no universal set of rules to determine the form which and effective official investigation must take. That will depend on the facts of the case and the procedures available in the particular state. This was approved by the House of Lords in Amin and adopted by Longmore LJ in AM (see paragraph 70 of the AM, see also Elias LJ in AM at paragraph 103, and the potential differences between an Article 2 case, and an Article 3 case which he gives in paragraph 104.)
9. It is uncontentious in the present case that there may often be cases in which the State's investigative obligations for the purposes of Article 3 are satisfied by the availability of the criminal proceedings or civil proceedings or a reference to an ombudsman (see in this respect the case of AM throughout) or a combination of these. It is not always or perhaps even often necessary to have an expensive independent public investigation.
10. Yarl's Wood is an Immigration Removal Centre where unsuccessful asylum seekers may be detained administratively by the United Kingdom Borders Agency. In addition no doubt to individuals, there may be families there, some with young children. In mid June 2009 the two claimants in the present proceedings were detained there. The first claimant is an adult, there with his wife, daughter and niece. The second claimant is a child; she was there with her mother. Some of the families were concerned that their children and babies were becoming sick and not receiving adequate medical treatment. They were concerned that the children were showing signs of trauma. There were other complaints relating to health and nourishment. No doubt tensions were raised by the prospect of their removal and perhaps by attempts to forestall this. Concerns had been publicly expressed about the harmful effects of immigration detention on children, in the light of which the government and the UKBA are, I understand, considering modifications to procedures.
11. The families concerned and their perception that UKBA were unwilling to meet the families together led to a peaceful protest which included, on 16th June 2009, the families taking mattresses and so forth into the corridors, where they would remain until a UKBA representative came to speak with them. It is unnecessary for present purposes to consider the detail of this process, nor the rights and wrongs of the events which led to it. Suffice to say that UKBA and Serco, UKBA's contractor who managed the detention centre, were sufficiently concerned to consider taking action to stop the protest.
12. On 17th June 2009, there was a conference call in which 18 people of various disciplines participated which considered and planned an intervention to stop the protest. The Secretary of State defending these proceedings says the ensuing intervention operation was carefully and properly planned. The claimants say that there were deficiencies in the planning especially with regard to the children.
13. The plan was that groups of officers would identify named detainees including the first claimant to be accompanied by force, if necessary, to a secretion unit. Other officers were to identify distressed children to take them to a large classroom prepared to receive them.
14. The intervention took place in the early afternoon of 17th June 2009 when approximately 30 detention custody officers executed the planned intervention. There are issues of fact as to the extent to which force was used or was necessary. It is accepted that children were separated from their parents. I was told that at some stage the incident became very noisy and that this appeared to coincide with the intervention officers approaching and taking hold of a man referred to as Solomon. The first claimant says that he suffered bruising and pains as a consequence of the manner in which he was restrained. Another man says that he was pushed, kicked and had his hair pulled. It is said some children were hurt. The children became distressed and women, mothers in particular, became very distressed not least when an officer sought to separate one mother from her baby.
15. A number of children separated from their parents were placed in a nursery or classroom. It was recorded that at least two children were very distressed but later calmed down. At least two of the parents were separated from their children for significant periods. The first claimant was separated from his family for nine days. Subsequent statements from detention centre officers indicate that the atmosphere and tension was very high. The word "pandemonium" is used. Children were very upset. Public concern was expressed after the incident by the Children's Society and an organisation called Bail for Immigration Detainees which subsequently applied to intervene in these proceedings but were refused.
16. This brief account of the intervention could be greatly enlarged but it is not necessary to do so for the relatively confined purposes of the present proceedings. Importantly however, there is CCTV material recording the incident which was also the subject of a video recording which is available. It has not been necessary for me to view the video, but it represents valuable contemporary visual evidence, no doubt available to resolve or help resolve factual disputes which might arise.
17. On 29th June 2009 the claimant's solicitors wrote to UKBA making a number of complaints about the treatment of the families. UKBA treated this as a letter of complaint to be investigated by its Professional Standards Unit. The PSU undertook this investigation and asked the claimant's representatives for evidence. The claimant's representatives proceeded to obtain signed statements from nine families, which they provided in August and September 2009, with the other statements provided in late September 2009.
18. There were difficulties because some of those detained on 17th June 2009 were subsequently removed from the United Kingdom including so I was told Solomon, who was removed on the very day following the intervention.
19. The PSU is, I understand, a formally established complaints investigation unit within UKBA. It had in this instance at least a measure of independence because it was so far as the intervention itself was concerned investigating the actions of its contractors Serco, who alone carried out the physical intervention.
20. However UKBA had been itself been concerned with planning and Mr Eadie QC, for the Secretary of State, does not suggest that the PSU was other than part of UKBA so as to be hierarchically independent of UKBA. An investigation by the PSU alone would not by itself constitute an independent investigation for the purposes of Article 3, if such were required.
21. On 14th July 2009 the claimant's solicitors wrote saying that all nine families by whom they were then instructed wanted to complain about their treatment. The complaint was not limited to the incident on 17th June 2009, but extended also to the treatment of the families which led up to the protest as well as to the intervention itself. I say in parenthesis that although these antecedent complaints were made and may be maintained, I do not understand it to be suggested that events prior to 17th June 2009 reached a minimum degree of severity for Article 3 purposes. The letter enclosed a report from a consultant child adolescent psychiatrist about one of the children, not the second claimant in these proceedings, which in short expresses the opinion that this child (a boy) was suffering from post traumatic stress disorder as a consequence of a number of factors relating to his detention with his mother, including the stress resulting from his presence at the events of 17th June 2009.
22. The letter of 14th July 2009 invited UKBA to commission an independent investigation into the family's treatment at Yarl's Wood including the intervention and its aftermath. Reference was made to the Court of Appeal decision in AM, it being said in essence that the threshold for an Article 3 violation was potentially crossed so that it was then incumbent on the Home Office to commission an independent investigation.
23. The letter pointed out that in AM it was considered that such an investigation could have been referred to the prisons and probation ombudsman "and resulted in a breach of Article 3". It is not entirely clear to me whether this letter is to be read as a request for an investigation by the Ombudsman, it is certainly a request for an Article 3 compliant investigation in whatever form.
24. Mr Southey QC, for the claimant, maintains the case in these proceedings that this request of 14th July 2009, triggered the Secretary of State's obligation to initiate an independent investigation then and there and that the Secretary of State acted unlawfully in not doing so at that time. The claimants seek in these proceedings a declaration to that effect even if no other relief is obtained, much as the Court of Appeal in AM by a majority granted a declaration, even though by the time that court's decision no other relief was regarded as practical.
25. The letter of 14th July 2009 summarised the complaints of the nine families including the first claimant who is said to have suffered bruising as a result of assault by Serco officers and the second claimant child, of whom it was said simply at that stage that she witnessed assaults on 17th June 2009. As I have said, the complaints extend beyond the intervention incident itself and thus outside potential Article 3 territory.
26. On 17th July 2009 Mr Wood of UKBA wrote saying that it was not accepted that there was an arguable claim for breach of Article 3. He also stated that a complaint could be made to the Prison and Probation Ombudsman. These positions were maintained in further correspondence, including a letter before claim dated 17th August 2009. The Treasury Solicitor responded to that letter on 6th October 2009 saying that no arguable violation of Article 3 had been established. The claimant and others had not provided any detailed account of the incident and unsupported assertion was insufficient to establish a breach. The letter continued that the intervention in the process had been necessary, as the protest created risks for the safety and security of Yarl's Wood. It had been carefully planned to safeguard the interests of children. The incident had been filmed. Psychologist had subsequently assessed three of the children who were present. In addition social workers were available to discuss the welfare of the children. Incident reports were prepared. In addition video footage of the incident was obtained. This would be made available once the Secretary of State's investigation had been completed. As a consequence it was said that Article 3 had not been violated.
27. Even if Article 3 had arguably been violated, the investigation into the incident would comply with the procedural obligations imposed by that Article. In particular it was said that UKBA's Professional Standards Unit was investigating the complaints made. A complaint to the Prisons and Probation Ombudsman could be renewed. Civil proceedings be brought. A number factual claims which had been put forward were disputed. It was said that the video evidence undermined them. For example, it was said that the first claimant was compliant with the requests of officers to accompany. However it was accepted the first claimant suffered bruising when seen in health care on 17th June 2009. It does not appear to have been accepted that a number of adults were restrained.
28. The PSU proceeded with its investigation. It had the statements from the families obtained by their solicitors and took statements from those involved in the intervention. Its report is dated 2nd March 2010 and was soon provided to the claimant's solicitors.
29. It recites that its terms of reference were:

"To consider

1. The circumstances surrounding protest on the family unit in four days leading up to the intervention.

2. Whether the intervention plan was an appropriate response to the situation staff faced in the centre 3. Whether there was any evidence that staff acted inappropriately in carrying out the intervention plan."

Mr Eadie points out that the first of those three terms of reference related to events before the intervention and the second and third in substance, he submits, addressed the Article 3 issues. Mr Southey submits these terms of reference and the report itself did not sufficiently address questions whether the welfare of the children received adequate attention in the planning and execution of the intervention.

30. The PSU report is, as I read it, an admirably thorough document which in its 68 closely typed pages examines in detail and with to the reference the evidence obtained the health care, education, catering and social work services complaints of each individual complainant and then, with reference to the second and third of the terms of reference, the planning and execution of the intervention, with reference to individual adult complaints including Solomon and the first claimant. It concludes that the intervention was necessary giving detailed reasons for that conclusion.
31. As to the first claimant the report summarises what he and others alleged happened and how he was treated. It recounts the evidence of the team assigned to remove him and of other officers. It is then stated on page 704 of the bundle as follows:

"It is clear from the video evidence that the first claimant [and he is named] was held by the officers but not in the manner he alleged nor was he pulled or dragged at any time. He was removed as quickly as possible for the safety of all concerned especially once the female residents tried to become involved. Reference to video footage showed that he retained his bible in his hand until reaching the Kingfisher Unit when it was placed on the bed in the room prior to him being searched. The video footage corroborated officers' accounts which indicate that officers who have provided the accurate version of events as they happened. The CCTV and video footage was also considered in full by an independent expert witness regarding control and restraint, Owen Glenda Williams of HMP Prison Services Control and Restraint College. Mr Williams has advised the control and restraint techniques adopted by Serco staff on 17th June 2009 were appropriate to the circumstances. He stated further that, 'I cannot recall an instance in this incident where I feel that a member of staff acted in an unacceptable manner. Staff have to make instant judgments when involved in such a incident and some of them may be tough calls like when to apply C and R techniques. I felt staff's conduct throughout this incident was highly commendable. There were occasions during the incident I felt staff showed much tolerance, empathy sensitivity and compassion towards the residents."

After further consideration this part of the report concludes in relation to the first claimant as follows:

"On the balance of probabilities it is unlikely the first claimant sustained any serious injury during his removal and any minor injures received were likely to be the result of failed attempts by the female detainees to prevent his removal rather than improper use of control and restraint techniques."

32. As will appear, the Secretary of State maintains that the first claimant does not raise an even arguable claim that in his case there was an infringement of Article 3. The passages I have referred to are relied on and it is pointed out that any lack of independence by the PSU is moderated by the fact that conclusions derive in part from video evidence, which no doubt shows what it shows and the fact that no attempt has been made in these proceedings to show that the conclusions of the PSU relating to the first claimant are wrong.
33. As will appear and is agreed, it is not necessary for me to decide whether the first claimant has an arguable Article 3 case and I do not do so. I did however indicate during the hearing that my impression was that he would have an uphill struggle in this respect.
34. The second claimant features in the PSU report in respect of the complaint about her medical treatment before the intervention, but not in respect of the way in which her Article 3 claim is now formulated.
35. The summary conclusion of the PSU report, and I have said the report covers many pages, was as follows:

"The investigation has found there was no excessive use of force by officers nor did they act in an aggressive manner. The control and restraint employed were proportionate to the circumstances in each case. The officers involved did not use racist language or make racist statements during the intervention. Beatrice [her name is given] was not left naked by the actions of the officers. She removed her wrap skirt herself and attempted to remove her own top. Officers made efforts to cover her up to protect her dignity. There was no mistreatment or carelessness towards the children on the unit and there was no evidence that any of the children sustained injuries during the intervention."

36. As to the second claimant and in summary, a psychotherapist, Ms Melzak, reported on 26th September 2009 when she concluded that the second claimant's experience of detention had resulted in several symptoms of post traumatic stress disorder, and that her mind had been affected by the intervention incident. She was arrested again on the 15th October 2009 and appears to have made an attempt on her life during this second period of detention. A report by a child psychologist, Professor Yule, provided in these proceedings, which were started on 15th December 2009, on January 19th 2010, concluded that she suffered from severe depression and post traumatic stress disorder.
37. The reports from Ms Melzak regarding other children, expressed the opinion that they too are suffering post traumatic stress disorder. A subsequent and larger report of Ms Melzak on the second claimant, provided to the Treasury Solicitor in May 2010, concludes that the second claimant is suffering from complex post traumatic stress disorder and that four particular events most profoundly contributed to her trauma, including as one of them the witnessing of the breakup of the peaceful protest on the family unit at Yarl's Wood on 17th June 2009.
38. Moving forward in time, a very recently prepared report, dated 24th October 2010, by Malcolm Stevens of Justice Care Solution Limited has been provided. Mr Stevens is an independent consultant, advising providers of services for children, youth justice, health and education. This long and detailed report criticises material aspects of the planning and implementation of the intervention, expressing the opinion that in material respects particularly relating to the children it was inadequate and inappropriate. The details do not matter for the present purposes.

In the light of the consideration of Ms Melzak's opinion about the second claimant and Mr Stevens' report, taken together, it is now accepted on behalf of the Secretary of State that the second claimant, but not the first claimant, has shown an arguable breach of her Article 3 rights, so as to trigger to Article 3 investigative obligations. Mr Eadie emphasises the submission that Ms Melzak's opinion alone did not show an arguable breach without a properly formulated case that conduct in arguable breach of Article 3 had resulted in the post traumatic stress disorder. Nor he says was an arguable case established in this respect merely by a solicitor's assertion of it in the letter of 14th July 2009. That assertion required investigation, and the investigation in the form of PSU report positively indicated otherwise. There was no material to set against that until the recent arrival of Mr Stevens' report.

39. The Secretary of State's concession relating to the second claimant carries with it an obligation to achieve an Article 3 compliant investigation, sufficient for the purposes of the second claimant's arguable breach of Article 3, that is an investigation into the allegation that her post traumatic stress disorder resulted from her witnessing an intervention which itself constituted in her case an infringement of her Article 3 rights. It would be necessary to investigate the intervention and its immediately surrounding facts. Hence the consensus between the parties that it is not necessary for me to determine whether the first claimant alone could sustain this position. It is not appropriate for the court to determine in these proceedings the scope of such an investigation and I do not do so.
40. In the light of this concession by the Secretary of State, the issues in these proceedings are very considerably narrowed. Given the acceptance that second claimant now raises an arguable case under Article 3, so as to trigger the investigative obligations, the real issue of substance is whether, as Mr Eadie puts it, that obligation is satisfied by a combination of the PSU report, the claim in civil proceedings which the claimants and others have started, and, if the availability of those proceedings alone are not sufficient, a reference to the Prisons and Probation Ombudsman. There is also the to my mind largely academic issue whether the Secretary of State acted unlawfully historically by not putting in train an independent Article 3 compliant investigation in July or August 2009 upon receipt of the letter of 14th July 2009. Mr Southey says that European authority entitles the claimant to a declaration to that effect, even if no other relief is achieved.
41. The claim form in these proceedings seeks a mandatory order requiring the Secretary of State for the Home Department to make arrangements for an independent inquiry compliant with Article 3 and a declaration that the Secretary of State acted unlawfully in the way that I have just described. McCombe J gave permission to apply for judicial review on 29th April 2010.
42. The letter of 14th July 2009 alluded in somewhat ambiguous terms to the possibility of a reference to the Ombudsman. The jurisdiction of the Ombudsman is non- statutory but clearly defined by ministerial terms of reference and a framework document. The Prisons and Probation Ombudsman is independent and Mr Southey accepts his independence for the purpose of an Article 3 investigation. The terms of reference provide that the Ombudsman will investigate complaints submitted by various categories of persons, including, by addition to earlier terms which comprise only prisons and prisoners, immigration detainees who have failed to obtain satisfaction from the UKBA complaints system (paragraph 10 (iii)). Matters which the Ombudsman will be able to investigate include decisions and actions, including failures or refusals to act, in relation to the management, supervision, care and treatment of immigration detainees and those held in short term holding facilities by UKBA staff, people acting as agents or contractors of UKBA and other people working in immigration removal centres (paragraph 12(iii)). This in my view is plainly sufficient to encompass an investigation concerning the necessity and appropriateness of the conduct of the intervention on 17th June 2009, including the treatment of the children, that is an investigation such as the second claimant by concession establishes the Secretary of State is obliged to see achieved. An indication in correspondence by the Ombudsman in this case that the terms of reference would not extend to health care and social work services was plainly in its context a reference to some of the other complaints advanced outside the matters concerning the intervention, which were incidentally dealt with in the first part of the PSU report.
43. Matters which the Ombudsman may not investigate include cases currently subject of civil litigation or criminal proceedings (paragraph 14(iv)). Before putting a grievance to the Ombudsman, a complainant must first seek redress through appropriate use in this case of the UKBA procedures (paragraph 17). Thus, the claimants were unable to make a complaint to the Ombudsman until the conclusion and receipt of PSU report. But they have done so since then by letter dated 30th March 2010, which was within the time limits required by the terms of reference (paragraph 21).
44. The Ombudsman has indicated that he cannot proceed with the reference while these judicial review proceedings are in progress but they will soon, subject to an appeal, be concluded. Mr Southey submits that the civil proceedings to which I shall refer in a moment are also an impediment to the Ombudsman proceeding. The framework document provides that following consultation with the Ombudsman the Secretary of State may commission the Ombudsman to undertake special investigations outside his formal remit. It is evident that this would be so any way since the terms of reference were put in place by the Secretary of State in the first place and it is plainly open to him or her to amend them.
45. By two claim forms issued within time for the purposes of the Human Rights Act 1998 on 13th May 2010, various claimants including claimants in these judicial review proceedings claimed damages against the Home Office including with reference to the intervention on 17th June 2009, and damages under the Human Rights Act for violation of their rights under Article 3 of the European Convention. I am told that there is some progress with these actions such that they are to be regarded as live litigation, not just the subject of protective claim forms, but that extensions of time have been agreed in the light of these judicial review proceedings.
46. As I say, the issues for court now to decide are reduced to a narrow compass. The main, and to my mind only, issue of substance is whether the court should make a mandatory order requiring the Secretary of State to initiate an Article 3 compliant independent investigation or whether existing available processes, either singly or combination, are sufficient for that purpose. A mandatory order such as I defined would normally suggest a special independent investigation set up for that purpose outside existing structures. That is what I had understood, perhaps mistakenly, Mr Southey is opening submissions were aimed at. He submitted correctly that the PSU investigation and report, thorough though it was, was not for present purposes hierarchically independent. He submitted, further, that its scope did not sufficiently embrace, as was necessary, child welfare considerations and the like. I am unconvinced by the generality of this but certainly it did not address some of the matters which now comprise the second claimant's arguable Article 3 claim.
47. He submitted with reference to passages in the judgment, in AM (paragraph 61 and 115 to 118) that the civil proceedings were insufficient because they would be directed to resolving particular damages claims of individual claimants, without addressing systemic questions, without necessarily exposing culpable or discreditable conduct, if such there were, and without spelling out the lessons to be learnt. Mr Southey also made the unpersuasive pragmatic point that there was a likelihood that civil claims would be compromised without a judicial determination of the issues. There is an element of wanting to have your cake and eat it here. Mr Eadie submits on this point that the State provides by means of civil proceedings which the claimants have chosen to initiate an investigative structure capable in this case of achieving the Article 3 investigative obligation.
48. Mr Southey then submitted that there were problems with an Ombudsman's investigation. It would not, he said extend to a sufficient scope, since the Ombudsman has expressed the view that terms of reference do not extend to health and welfare matters. I have already indicated my rejection of that submission. Paragraphs 12(iii) of the terms of reference embraces decisions and actions in relation to the management, supervision, care and treatment of immigration detainees, which, in my view, amply extends to enable the Ombudsman to investigate the intervention on 17th June 2009, and its immediately surrounding facts, that is to conduct an investigation, which the second claimants arguable Article 3 claim obliges. The fact that one or two of the many people indirectly involved may not have been UKBA staff or their agents or contractors or other people working in immigration control centres is in the circumstances immaterial.
49. Mr Southey then submits that the currency of civil claims precludes an Ombudsman's investigation at least until the civil claims are concluded which may be a long way off (see paragraph 14 (iv) of the terms of reference). Mr Eadie says of this that paragraph 14(iii) should be sensibly construed as referring to civil litigation which is genuinely active, which this civil litigation may not be. He has instructions to the effect that the Secretary of State agrees that the Ombudsman can proceed under the terms of reference where there is in existence a protective claim. The Secretary of State is happy for this to be conveyed as his view to the Ombudsman, who is in any event able to proceed on modified terms of reference at the Secretary of State's request (see paragraph 2.1 of the frame work document and paragraph 27 of the judgment of Sedley LJ in AM). The Secretary of State it is said would remove the glitch to proceeding before the Ombudsman if necessary, but maintains the position that civil proceedings are in this instance adequate.
50. Thus it was, that Mr Southey had arguable objections to the sufficiency of both the civil litigation and the Ombudsman, and thus it was that I understood his opening submission to be aiming at a mandatory order for a separate ad hoc independent inquiry with all its attendant expense. Mr Southey accepted, however, that an Ombudsman's investigation would in this case be sufficient subject to the points he made which I have addressed. It is right to say that the original solicitors letter of 17th July 2009 adverted to Ombudsman investigation, although in ambiguous terms. The Ombudsman could not then proceed because the UKBA internal complaints investigation by its PSU was then complete. It is also fair to say that Mr Southey in his responding note says that the problems he put forward about the Ombudsman's investigation could and should be addressed by the Secretary of State making a special reference to the Ombudsman or some other properly qualified investigator.
51. He says that special terms of reference are required to ensure that the scope of the investigation is broad enough to cover systemic matters such as those raised by Mr Stevens, as to the extent to which social services provided proper protection for the children.
52. Since, as I have said, in my view the Ombudsman's terms of reference are sufficient to enable him to investigate the intervention on 17th June 2009 and its immediately surrounding facts, they are sufficient for an investigation into the extent to which proper protection was provided for the children during and in the aftermath of the intervention, which is the heart of the second claimant's arguable Article 3 claim. The Ombudsman's jurisdiction could also extend to some other matters not within the ambit an arguable Article 3 claim but that is not a matter for present consideration.
53. In the result therefore the only arguable impediment to the otherwise compliant Ombudsman's investigation which the claimants themselves initiated is the current existence of the civil claims which the claimants have themselves initiated. There is no suggestion that it is too late for either of these to proceed. The claimants could remove the impediment by discontinuing civil proceedings, but it may be that they would be advised that there are advantages for them if there is an independent investigation in parallel with the civil proceedings which could remain in obeyance meanwhile. However that may be, on the claimant's case in this court as it has turned out, the only remaining question is whether the court should make a mandatory order for an Article 3 compliant independent investigation which could readily be achieved by the Secretary of State taking steps to remove the paragraph 14(iv) impediment, such as it is, to the Ombudsman proceeding with the complaint which has already been made. I should be strongly disinclined to make such an order when the Secretary of State has in effect offered, through Mr Eadie, to take such steps if occasion requires.
54. Mr Eadie however submits that the occasion does not so require, because on the facts of this case and in the light of the PSU's very thorough inquiry and report and its gathering and preservation of the evidence, the civil proceedings alone are entirely adequate for Article 3 purposes. Mr Eadie referred me to a number of authorities including R (L) v Secretary of State [2009] 1 AC 588, for the requirements of an Article 2 compliant investigation, and at paragraph 31, for the proposition that the duty to investigate imposed by Article 2 covers a very wide spectrum and that different circumstances will trigger the need for different types of investigation with different characteristics. He referred to AM itself for much assistance generally including the proposition that civil litigation alone or in combination may suffice for Article 3 purposes. He referred to Banks v United Kingdom [2007] EHRR, in which a number of prisoners were seriously assaulted by prison officers but whose Article 3 claims were inadmissible because they had availed themselves of civil proceedings, some of which had been settled (see especially the large central paragraph on page 23 of the report). He referred to R (P) v Secretary of State for the Home Department [2010] QB 317, in which Stanley Burnton LJ recited long passages from Banks and the judgment of Longmore LJ in AM. He referred to paragraph 69 of the judgment of Lord Rodger of Earlsferry in the L case, to the effect that the Article 3 investigative obligation will mainly come into play if the court is unable to determine, as a matter of fact, whether there has been treatment prohibited by Article 3. Stanley Burnton LJ concluded that good reason for an Article 3 inquiry must be shown.
55. Mr Eadie referred also to Morrison v IPCC [2009] EWCA 2589 (Admin) for a particular very careful first instance application of the principles by Nichol J who concluded on the facts of that case that the future possibility of a criminal trial, or proceedings before the Independent Police Complaints Commission, meant that there would not inevitably be a breach of the claimant's right to effective Article 3 investigation. Nichol J would not have held that the possibility of civil proceedings was a means of providing the investigation required by Article 3, reckoning the European authorities reject that formality and that domestic authorities to the contrary are not necessary for the decisions in their cases. This last point was not an issue in the present proceedings, Mr Southey concentrating instead on whether as a matter of fact the civil proceedings in this case would suffice.
56. I am satisfied that civil proceedings may in appropriate circumstances, either alone or in combination, provide an Article 3 compliant investigative structure. This appears, if nowhere else, from paragraph 79 of Longmore LJ's judgment in AM, adopted by Stanley Burnton LJ in P at paragraph 54 (see also paragraph 61 of Sedley LJ's judgment and paragraph 115 of Elias LJ's judgment in AM). If analysis of any of this might be said to be obiter, it is overwhelmingly consonant with the general principles of flexibility to which I have briefly referred.
57. Mr Eadie submits that the investigative obligation is on the authorities less onerous under Article 3 than Article 2. The court should look at all the circumstances and, if appropriate, at a combination of processes. The availability of civil proceedings may be sufficient either alone or combination. The fact that an in-house investigation was not by itself Article 3 compliant does not deprive it of all value. Mr Eadie says there is a need to focus on the individual allegations and the extent to which they raise an arguable Article 3 case. He says issues such as these are fact sensitive and that the court should be astute not to create financial burdens on the State unnecessarily. There needs to be good reason for an Article 3 investigation. He points out that in Banks civil proceedings were held to be sufficient even though all those proceedings had been settled. If Article 3 victims choose to settle their claims, that is their choice, but the State has in place the civil litigation mechanism for an Article 3 investigation.
58. I accept that these submissions are well founded on the authorities. I did not understand Mr Southey to argue otherwise. His case is that in this case the civil proceedings will not suffice because of the complexity of the issues and because the scope of the civil litigation concerning individual claims will not extend to systemic issues, in particular, those relating to child welfare and protection.
59. The notable feature of this case is that the families have actually started their civil litigation in which they actually claimed damages for violation of their Article 3 rights. It seems to me that the resolution of these claims will require the court to determine the very matters which a legitimate Article 3 investigation would need to look at. In the case of the present second claimant, for instance, the court will need to determine whether her psychological trauma, assuming that is established, was the result of an unjustified inadequately planned and executed intervention, which did not adequately take care of the second claimant's welfare and needs. Her case will not stand alone because other claimants have their claims. The court will not be without factual material because of the report and efforts of the PSU. The evidential position is unlikely to be much different from that before an Ombudsman or other investigator. There should be little difficulty in identifying individual officers who may be culpable because of their preserved statements and availability of the video tend CCTV material. Those who participated in the planning are all known and recorded. In short, I find it difficult to see how the necessary scope of the civil proceedings would differ from the legitimate scope of an Ombudsman's or other investigator's investigation. I do not see that there are systemic questions beyond an analysis of the system which was actually used in this intervention.
60. I note the problems which Elias LJ referred to in paragraph 115 to 118 of AM in that case, but the present case seems to be materially different in the respects which I have identified. I conclude that in the present case the availability of civil proceedings which the claimants have started and are conducting, in the light of the antecedent PSU investigation, fulfils the State's Article 3 investigative obligation and that there is no good reason for the court to require the Secretary of State to put in place a different independent investigation.
61. Whether in the light of this, the claimants choose to enable themselves to proceed before the Ombudsman by discontinuing the present proceedings, or whether the Secretary of State chooses to enable the Ombudsman to proceed notwithstanding civil proceedings are matters for the parties.
62. There remains the question whether the court should declare the Secretary of State acted unlawfully historically in July or August 2009 in not instituting an independent investigation then. I am quite clear that this is not established.
63. I take account of Mr Southey's reliance on Ramsahai v Netherlands application 52391/99, for the proposition that compliant investigation may need to be put in place with appropriate speed once an arguable claim is established. But the facts of that case are markedly different from the present. I note also Mr Southey's reference to European authority to the effect that a victim may be entitled to recognition of the violation of Article 3 even if no other consequences follow. This happened in the result in the majority decision in AM.
64. I am not however persuaded that a breach of Article 3 was even arguably established in July 2009 by the solicitor's assertion that such was the case, nor by the production of one or more psychiatric or psychological reports for one or more of the children. Violation of Article 3 requires an offending cause as well as a consequence of minimum severity. The existence of an offending cause, was neither obvious nor sufficiently established in summer of 2009 and the Secretary of State was entitled and the UKBA were obliged to have matters investigated. This was done by the PSU report whose outcome, admittedly not independent, did not support an Article 3 offending cause. There was no material available to the Secretary of State from the claimants to counter that until Mr Stevens report arrived in October 2010.
65. There is little or no factual content to Mr Southey's general submission that the earlier appointment of independent investigator might have preserved evidence which is now lost. All or most of the evidence that was ever going to be available to any form of investigation has been gathered and preserved by the PSU. There is no permanent evidential taint. Solomon was removed on the very day after the intervention.
66. Judging credibility would be much the same operation for an investigator appointed in 2009, as for a judge in the civil proceedings, since the investigator would not in all probability have reached that stage for a significant period of time. Yet further, the sufficiency today for Article 3 purposes, as I have held, of the combination of the PSU investigation and civil proceedings and, if necessary, the availability of the Ombudsman is an equally persuasive reason why the Secretary of State was not, in my judgment, obliged to institute a snap independent investigation in the summer of 2009. The only difference is that the process has now taken place in the case of the PSU or has been started in the case of the complaints to the Ombudsman and the civil claims.

For these reasons these claims fail.

67. MISS BROWN: Please your Lordship. I appear on behalf of the claimant in this matter in place of course of Mr Southey, my learned friend, Miss Fatima, appears on behalf of the defendant.
68. SIR ANTHONY MAY: Thank you very much for being here.
69. MISS BROWN: There are three matters, my Lord, that I am asked to raise by way of the order that your Lordship might make. The first is that there be a transcript of the judgment and for that to be expedited.
70. SIR ANTHONY MAY: I am sure it will be done as soon as possible. It has been recorded of course and it would require me to read it through and put in the commas and full stops. No doubt it can be done, yes.
71. MISS BROWN: The second aspect of the order would be for the parties to submit written representations on any consequential matters and that would include costs, within 14 days of today my Lord.
72. SIR ANTHONY MAY: You just hold on while I find my note. Yes transcript, yes.
73. MISS BROWN: The written representation or any consequential matters within 14 days of today.
74. SIR ANTHONY MAY: Yes.
75. MISS BROWN: The third matter, the period for filing an appellant's notice, be extended to 21 days after the date on which the court determines the application to appeal.
76. SIR ANTHONY MAY: Sorry? After the court determines what?
77. MISS BROWN: The application for permission to appeal.
78. SIR ANTHONY MAY: You are asking for that now?
79. MISS BROWN: No.
80. SIR ANTHONY MAY: You are supposing it may be in the written representations.
81. MISS BROWN: Yes, that must be. I did seek clarification on that, it must be something to consider and would be in those consequential matters.
82. SIR ANTHONY MAY: What you are really asking for an extension of time for any appellant's notice until 14 days after the court determines the consequential matters. That sounds reasonable to me.
83. Is there any trouble with that?
84. MISS FATIMA: I would ask for 21 days rather than 14. Fourteen days to postpone any submissions on consequential matters, and 21 days from the date on which the court decides whether or not to give permission effectively.
85. SIR ANTHONY MAY: There is a period in the rules, is there not?
86. MISS BROWN: Twenty-one days from today's date. Mr Southey indicated after yesterday that he wanted an extra 21 days but for that 21 days to run from the date on which this court decides whether or not to grant permission, rather than from today's date and we have no objection to that my Lord.
87. SIR ANTHONY MAY: It sounds all right, does it not? Right okay, I am not sure that I am going to order a transcript. You can ask for a transcript. I am being cautious about that. I shall get in deep water if I make and order and somebody says that therefore the court has to pay for it. I guess the parties have to pay for the transcript. They can certainly have one.
88. MISS BROWN: I am grateful for that indication my Lord. But if the matter, I believe it if your Lordship, if my Lord makes that order that there should be a transcript -- well your Lordship said you do not want to make an order.
89. SIR ANTHONY MAY: I actually do not want to make the order. A transcript will, once I have corrected the proof, be available upon request in the normal way.
90. MISS BROWN: I am quite sure that will be satisfactory. I will say that the parties should provide, in writing, submissions on any consequential matters to my clerk please, within 14 days of today and I will extend time to the appellant's notice until 21 days after the court determines consequential matters. All that is preceded by the proposition that the claims are dismissed.
91. Thank you very much, I am very grateful.