QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the applicant of EO, RA, CE, OE and RAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Tim Eicke QC and Joanne Clement (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 29, 30, 31 January and 1 February 2013
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The Hon Mr Justice Burnett:
The Power to Detain
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 and a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise.
(2) Every detention centre shall have a health care 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 that centre.
(3) Each member of the health care team shall (as far as they are qualified to do so) pay special attention to the need to recognise medical conditions which might be found among a diverse population and the cultural sensitivity appropriate when performing his duties.
(4) The health care team shall observe all applicable professional guidelines relating to medical confidentially.
(5) Every request by a detained person to see the medical practitioner shall be recorded by the officer to whom it is made and forthwith passed to the medical practitioner or nursing staff at the detention centre.
(6) The medial practitioner may consult with other medical practitioners at his discretion.
(7) All detained persons shall be entitled to request that they are attended by a registered medical practitioner or dentist other than the medical practitioner or those consulted by him under paragraph (6), so long as
a) The detained person will pay any expense incurred;
b) The manager is satisfied that there are reasonable grounds for the request; and
c) The attendance is in consultation with the medical practitioner.
(8) The medical practitioner shall obtain, so far as reasonably practicable, any previous medical records located in the United Kingdom relating to each detained person in the detention centre.
(9) The health care team shall ensure that all medical records relating to a detained person are forwarded as appropriate following his transfer to another detention centre or a prison or on discharge from the detention centre.
(10) All detained persons shall be entitled, if they so wish, to be examined only by a registered medical practitioner of the same sex, and the medical practitioner shall ensure that all detained persons of the opposite sex are aware of that entitlement prior to any examination.
(11) Subject to any directions given in the particular case by the Secretary of State a registered medical practitioner selected by or on behalf of a detained person who is party to legal proceedings shall be afforded reasonable facilities for examining him in connection with the proceedings.
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.
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.
To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy.
55.3.1. Factors influencing a decision to detain
- Does the subject have a history of torture?
55.8A. Rule 35 - Special Illnesses and Conditions
Rule 35 of the Detention Centre Rules 2001 sets out requirements for healthcare staff at removal centres in regards to:
- Any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention;
- Any detained person suspected of having suicidal intentions; and
- Any detained person for whom there are concerns that they may have been a victim of torture.
Healthcare staff are required to report such cases to the centre manager and these reports are then passed, via UKBA contact management teams in centres, to the office responsible for managing and/or reviewing the individual's detention.
The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case. If it appears that the matters being considered under Rule 35 represent a significant risk to children, then it should be referred to the case owner and the Children's Champion simultaneously for advice on how to safeguard the children and promote their welfare.
Upon receipt of a Rule 35 report, caseworkers must review continued detention in light of the information in the report (see 55.8 Detention Reviews) and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro- forma.
If the detainee has an asylum or HR claim (whether concluded or ongoing), consideration must be given to the instruction:
55.10 Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
- Unaccompanied children and young persons under the age of 18 (but see 55.9.3 above);
- The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention;
- Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl's Wood);
- Those suffering from serious medical conditions which cannot be satisfactorily managed within detention;
- Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act;
- Those where there is independent evidence that they have been tortured;
- People with serious disabilities which cannot be satisfactorily managed within detention;
- Persons identified by the Competent Authorities as victims of trafficking (as set out in Chapter 9)."
"This instruction is intended to provide instruction on mandatory actions and considerations to be taken where a report is issued under Rule 35 of the Detention Centre Rules 2001. There are no exceptions to the mandatory character of the actions and considerations."
Further aspects of this guidance include (with underlining as in the original):
Under Rule 35 of the Detention Centre Rules 2001, healthcare teams at Immigration Removal Centres (IRCs) who have concerns that a detained person has a special illness or condition or may have been a victim of torture, are required to report such cases to the centre manager. These reports are then passed via the UK Border Agency teams at the IRCs, to the office responsible for managing and/or reviewing the individual's detention and to the casework unit/case owner dealing with the individual's substantive case.
Detention Service Order 03/2008 lays out the policy and actions required of contractors and Detention Services staff and officers in IRCs, but these points will be repeated for clarity.
The principal purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing their detention. The information contained in such reports will in every case need to be considered in deciding whether continued detention is appropriate, and may also need to be considered in relation to its possible impact on the prospects for removal. It is also important that due consideration is given to these reports in connection with considering the substantive asylum and Human Rights Act application.
Many Rule 35 reports relate to torture allegations or concerns, and so accordingly, there is a certain focus on such cases in this instruction (particular at section 3). For the purpose of this instruction an allegation or claim of torture is defined as any act of torture which occurred outside of the United Kingdom.
However, it is important to note that many Rule 35 reports relate not to torture, but to the health or suicidal intentions of detainees.
All Rule 35 reports, regardless of subtype, must be handled professionally and promptly, according to the processes laid out in this instruction.
2 Administrative and Management Process
2.1 IRC Healthcare Team
Actions and considerations:
- Compile a Rule 35 report where any of the terms of Rule 35(1) to (3) are met, ensuring that the detainee signs the consent form;
- Pass any Rule 35 report immediately to the IRC contact management team, according to the locally arranged transaction process (e.g. by hand, faxed, scanned/emailed, etc.).
2.2 IRC UK Border Agency Contact Management Team
Actions and considerations:
- Ensure that all Rule 35 reports are allocated within 24 hours of receipt
- Ensure that the Rule 35 report from the healthcare team sets out the nature of the issue such that a response is possible. If it does not, ask the healthcare team for clarification. This must happen without undue delay, within the 24 hour receipt period, pre-allocation;
- Perform relevant quality checks (that the returned response relates to any substantive information identified in the Rule 35 report and clearly shows reasons for continued detention, if applicable). Ask the case owner for the report to be re-written if necessary;
- If the detainee has been transferred to another IRC, receive the response from the case owner, and forward the report to the relevant IRC, telephoning to confirm receipt;
- Compile management information returns for the period and send for collation to the central Detention Services contact, according to the established reporting process.
2.3 Case Owner
Actions and considerations:
- Respond to Rule 35 reports no later than two days after the second day after receipt;
3 Rule 35 Reports Responses and Detention Reviews
3.1 Rule 35 Report Content
Rule 35 reports are not solely produced to communicate concerns that the detainee may have been tortured. They can also identify and communicate health issues and suicide risks, and all officers must be alert to this. However, it is acknowledged that reports identifying concerns about torture are the most common type.
The weight to be placed on a Rule 35 report will depend upon what the report qualitatively states, and what is already known about the applicant and his/her case.
Any particularised concerns outlined in a Rule 35 report by a medical practitioner will constitute independent evidence, which is relevant to all considerations, about especially to the published detention policy that independent evidence of torture weighs heavily against detention. However, particularised Rule 35 evidence, though independent, will not necessarily constitute evidence that a person has in fact been the victim of torture.
Rule 35 reports are not medico-legal reports, but the evidence they contain must not be simply dismissed or undue inferences drawn because of the failure of the report to address an issue in the way that a detailed medico-legal report might.
Regardless of the source or nature of the information in a Rule 35 report (for instance, whether as a medical fact, as a concern, or simply as record of a claim made by the detainee), all information must be carefully and critically considered.
3.1.1 Rule 35 Responses
Irrespective of other actions that may be required, the strict Rule 35 timescales must be met for the formal Rule 35 response and detention reviews.
3.1.2 Rule 35 Report Discloses No Information
In rare cases, a report may be received by a case owner, without any content to identify any possible concern, or even to highlight the sub-category of Rule 35 that applies (e.g. where the report indicates Rule 35(3), it is at least known that torture is a consideration that the response must address). In such cases, there can be no meaningful consideration of the detainee's welfare or the appropriateness of detention in any other circumstances.
Actions and considerations:
- Inform the IRC officer that without any indication of the nature of the concern triggering the report, the blank report cannot constitute a Rule 35 report;
- Request further information from the IRC officer, and record on CID Notes the fact of the blank report, the outcome of the telephone call and the IRC officer's name;
- Only if and when further information is received (even if brief) must the case owner raise a CID Rule 35 case type (see 2.3 Case Owner).
"DETENTION SERVICE ORDER 03/2008
Special Illnesses and Conditions (including torture claims)
This Detention Service Order replaces DSO D1/2007 and seeks to strengthen the way in which reports of special illnesses and conditions, including allegations of torture are recorded processed and considered in order to comply with the Detention Centre Rule 35.
For the purpose of this DSO, an allegation of torture is defined as any relating to an act of torture which occurred outside of the United Kingdom.
Allegations received by the UKBA Contact Management Teams in Immigration Removal Centres should be recorded and processed as outlined below.
The purpose of this DSO is to ensure that all staff operating in an Immigration Removal Centre are aware of the procedures for recording and dealing with reports of special illnesses and conditions, including allegations of torture and the appropriate forms.
It will be usual for the UKBA Contact Management Team to receive reports of special illnesses and conditions from Healthcare in the Centre. However, UKBA staff should be aware that reports may be received from other contractor staff or prison officers (in the case of IRCs operated by the Prison Service).
Upon receipt of a report, it should be faxed directly to the UKBA case-working office responsible for conducting the detainee's detention review within 24 hours to allow for the decision to maintain detention to be reviewed in light of the information.
The fax should take the form of the Rule 35 pro-forma (attached at Annex A) requesting that the report be considered as part of a review of the decision to maintain detention and that the detainee and/or his/her representative has been notified that the information has been received and reviewed. The pro-forma also requests that a copy of the report is passed to the relevant asylum case owner or caseworker (who may be different from the person responsible for the detention review).
A log should be kept of forms that are sent to detention/case-working offices and the log should include a record of the receipt of the confirmation. A review should be conducted no later than 2 working days, starting on the working day after the pro-forma has been faxed, to ensure that such confirmation has been received and a review of the decision to maintain detention completed.
The caseworker's response should be reviewed by the UKBA Manager in the IRC to satisfy him/herself that the information has been considered before forwarding to the detainee.
Arrangements should additionally be made for a copy of the report and the Rule 35 pro-forma to be placed on the detainee's medical file once it has been faxed to the relevant case-working office. Equally a copy of the case-working office's response should be placed on the file once received.
Reports received from third parties outside of the Immigration Removal Centre fall outside the terms of this DSO. Such persons making allegations should be referred to the relevant case-working office."
"21.(1) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations.
(2) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall pay special attention to any prisoner whose mental condition appears to require it, and make any special arrangements which appear necessary for his supervision or care."
A comparison between this rule and Rule 35 of the 2001 Rules shows that the latter draws directly on the former. The prison rule makes no mention of suicide risk or torture, although the identification of prisoners at risk of suicide and measures designed to ameliorate that risk are at the heart of policies relating to the care of prisoners. In the context of prisons and serving prisoners, there are statutory provisions which enable the Secretary of State to transfer a prisoner to a hospital (while still being 'detained') but also, in appropriate circumstances, to sanction his early release from custody.
Common ground between the parties
"The decision on such questions is for the court itself, and does not depend upon on the application of the Wednesbury principles of review."
In each of those cases the contrary was not argued. On the other hand in R (LE) Jamaica v. Secretary of State for the Home Department  EWCA Civ 597 at para 29 Richards LJ said that compliance with the policy limitations should be reviewed on Wednesbury grounds, echoing the same conclusion he had reached in R (OM) v. Secretary of State for the Home Department  EWCA Civ 999 at para 24. The observation in LE was obiter, but in OM it formed part of the essential reasoning of the court.
a) A report produced pursuant to Rule 35 must be passed by the healthcare team to the UKBA contact management team at the detention centre, who have an obligation to ensure that all such reports are allocated to a case worker within 24 hours of receipt, in accordance with the Detention Rule 35 Process.
b) The contact management team at the detention centre must "ensure that the Rule 35 report from the healthcare team sets out the nature of the issue such that a response is possible." If a response is not possible the contact management team must ask for clarification without undue delay, and within the 24 hour period allowed for allocation to a case worker: Detention Rule 35 Process.
c) The case worker must review continued detention in the light of the content of the report and respond to the contact management team within two working days of receipt, as required by paragraph 55.8A of the Enforcement Instructions and Guidance. The Detention Rule Process suggests that case workers must respond to Rule 35 reports no later than two days after the second day following receipt. The Detention Service Order requires that the response must come no later than two working days, starting on the working day after the Rule 35 form has been faxed to the contact management team. (There is likely to be no difference between those formulations because the Rule 35 report is "received" in the detention centre whose staff then have 24 hours to forward it.)
d) If detention is maintained a detention review must be completed according to ordinary procedures but ensuring that the material contained in the Rule 35 report is considered. Any written response to the report must deal with the substantive issues raised: Detention Rule 35 Process.
e) Case workers are required to carry out an ad hoc review of detention within a reasonable period of receiving a medico-legal report raising issues covered by Rule 35.
These aspects of the policy, which apply to all components of Rule 35 and not only to the torture element, are procedural matters which inform the substantive decision relating to detention. In the context of these cases the substantive question is whether there is independent evidence that a person has been tortured. If so, the Secretary of State may normally maintain detention only if there are very exceptional circumstances.
The Legal Issues for Decision
(i) Does a failure to comply with Rule 34 of the 2001 Rules (i.e. to conduct a medical examination within 24 hours) result in detention thereafter becoming unlawful? And, if so, does the detainee have to show that he would have been released at an earlier date?
(ii) In cases where a medical practitioner has a concern that a detainee may have been tortured, does Rule 35 of the 2001 Rules require him to go on to express a view upon whether his medical examination supports that concern?
(iii) In the absence of such an expression of view, does the Secretary of State's policy require the case worker (a) to ask the medical practitioner for such information; or (b) to seek further information by referring the detainee to a suitably qualified practitioner to produce a medico-legal report?
(iv) Is it a breach of Rule 35(3) for a report to be prepared by a nurse but subsequently approved by a medical practitioner?
(v) What is the relevance, if any, of a detainee's credibility in assessing whether there is independent evidence of torture? Alternatively, does this matter fall to be considered when weighing whether 'very exceptional circumstances' exist to maintain detention?
(vi) If false imprisonment is established, what standard of review should the court apply to the question whether he would have been detained anyway?
(vii) Who bears the burden of proving that a person would have been detained anyway, assuming that a material breach of the Secretary of State's policy has been established?
(viii) What does "torture" mean in the 2001 Rules and the Secretary of State's policy?
An additional question arises in the case of EO namely, by what measure should a 'reasonable period' be judged during which detention must be reviewed following receipt of an independent medico-legal report?
Lumba and Kambadzi
(1) A breach of public law duties when exercising a discretionary power to detain renders the subsequent detention unlawful (i.e. amounts to the tort of false imprisonment) if the breach bears on and is relevant to the decision to detain;
(2) Whilst it is no defence to a claim for false imprisonment to show that the Claimant could and would have been detained lawfully, if such were established the Claimant would be entitled to nominal damages only.
"I would therefore answer "yes" to the first question. I would also answer the second question in the way proposed by Lord Dyson JSC. In other words, the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach."
"The essential question must be whether there is an adequate connection between compliance with the duty and the lawfulness of the detention."
" Sometimes a statute puts the effect of a failure to follow procedural requirements beyond doubt. Section 34(1) of the Police and Criminal Evidence Act 1984 states that 'A person shall not be kept in police detention except in accordance with the provisions of this Part of this Act'; those provisions require regular reviews; failure to conduct those reviews on time renders the detention beyond the time when they should have been conducted unlawful; see Roberts v. Chief Constable of Cheshire Constabulary  1 WLR 662. Sometimes a statute does not say in so many words that failing to comply with one of its procedural requirements will render the resulting detention unlawful' but the courts will construe the statute to mean that it does. An example is the prohibition in s 11(4)(a) of the 1983 Act, of making an application for compulsory admission to hospital if the patient's nearest relative objects: Re S-C (mental patient: habeas corpus)  QB 599. In these cases, it is irrelevant that the person concerned could have been lawfully detained had the correct procedures been followed. Sometimes, however, the court will conclude that the lawfulness of the detention does not depend upon the fulfilment of a particular statutory requirement. For example, in R (on the application of D) v Secretary of State for the Home Department, R (on the application of K) v Secretary of State for the Home Department  EWHC 980 (Admin), it was common ground that failing to comply with the requirement in the (Immigration) Detention Centre Rules 2001, SI 2001/238 that immigration detainees be given a medical examination within 24 hours of arrival did not render the detention unlawful unless the detainees could show that it would have led to their earlier release.
 In short, there are some procedural requirements, failure to comply with which renders the detention unlawful irrespective of whether or not the substantive grounds for detention exist, and some procedural requirements, failure to follow which does not have this effect. If the requirement is laid down in legislation, it will be a matter of statutory construction into which category it falls. A clear distinction can be drawn between a requirement which goes to whether or not a person is detained and a requirement which goes to the conditions under which a person is detained. If the grounds exist for detaining a person in a mental hospital, for example, and the procedures have been properly followed, it is not unlawful to detain him in conditions of greater security that are in fact required by the nature and degree of his mental disorder."
" Before I come to the published policy I should mention that the Secretary of State was given power by the Immigration and Asylum Act 1999 to make Rules for the regulation and management of detention centres. Rule 9 of the Detention Centre Rules 2001, SI 2001/238 provides:
'(1) Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial decision, and thereafter monthly.
(2) The Secretary of State shall, within a reasonable time following any request to do so by a detained person, provide that person with an update on the progress of any relevant matter relating to him.'
Rule 9(3) sets out a list of relevant matters for the purposes of that paragraph.
 In the Court of Appeal, at , Keene LJ said that it was clearly implicit in the Rule that the Secretary of State has to reconsider the justification for detention, month by month, in the light of changing circumstances. At  he said:
" The need for such regular reviews stems from the necessity for the Secretary of State to monitor changing circumstances in a given case, lest his power to detain, on the principles set out in R v. Governor of Durham Prison, ex p Singh  1 All ER 983,  1 WLR 704, no longer exists. Even if the power still exists, he has a discretion to exercise which he must also keep under review. The importance of the detainee receiving regular statements of the reasons why he is still detained is self-evident: he needs to be in a position to know whether he can properly challenge the Secretary of State's decision in the courts by way of an application for habeas corpus or judicial review or whether he can apply for bail on a meaningful basis. So the requirements imposed by r 9 cannot be treated lightly, especially when one is dealing with administrative detention which deprives a person of his liberty without a court order.'
I agree with these observations, but I would prefer to apply them to the system of review that is set out in the policy rather than to the system required by r 9(1). This is because it seems to me that the 2001 Rules are concerned with the regulation and management of detention centres, not with the way the discretion to detain is exercised. This is what the explanatory note says, and I think that Keene LJ was right to conclude in para  that r 9(1) is not concerned with limiting the Secretary of State's power to detain. In any event the appellant was detained in prison conditions to which the Rules do not apply for the first 14 months of the period of his detention. It was not until April 2007 that he was moved to a detention centre and the Rules applied to his case."
" The question then is what is to be made of the Secretary of State's public law duty to give effect to his published policy. In my opinion the answer to that question will always be fact-sensitive. In this case we are dealing with an executive act which interferes with personal liberty. So one must ask whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he has under the statute. Unlike the 2001 Rules, Ch 38 of the manual is concerned with the lawfulness of the detention. That is made clear in the opening paragraphs, see para , above. It has been designed to give practical effect to the Ex p Singh principles to meet the requirement that to be lawful, the measures taken must be transparent and not arbitrary. It contains a set of instructions with which officials are expected to comply: see para 1(3) of Sch 2 to the 1971 Act. As I see it, the principles and the instructions in the manual go hand in hand. As Munby J said in para , the reviews are fundamental to the propriety of continued detention. The instructions are the means by which, in accordance with his published policy, the Secretary of State gives effect to the principles. They are not only commendable; they are necessary.
 The relationship of the review to the exercise of the authority is very close. They too go hand in hand. If the system works as it should authorisation for continued detention is to be found in the decision taken at each review. References to the authority to detain in the forms that were issued in the appellant's case illustrate this point. Form IS 151F, which is headed 'Monthly Progress Report to Detainees', concludes at the top of page 3 of 3 with the words 'Authority to maintain detention given', on which the officer's comments are invited and beneath which his decision is recorded. The discretion to continue detention must, of course, be exercised in accordance with the principles. But it must also be exercised in accordance with the policy stated in the manual. The timetable which para 38.8 sets out is an essential part of the process. These are limitations on the way the discretion may be exercised. Following the guidance that Nadarajah v Secretary of State for the Home Dept  INLR 139 provides (see paras  and  above), I would hold that if they are breached without good reason continued detention is unlawful. In principle it must follow that tortious remedies will be available, including the remedy of damages."
"The only question, therefore, is what the limits are to the Home Secretary's power. In particular, are there procedural as well as substantive limits?"
" it is also not surprising that the majority of this court has now held, in R (on the application of Lumba) v Secretary of State for the Home Dept, R (on the application of Mighty) v Secretary of State for the Home Dept that a failure to comply with the Secretary of State's published policy may also render detention unlawful for the purpose of the tort of false imprisonment. While accepting that not every failure to comply with a published policy will render the detention unlawful, I remain of the view that
'the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach.' (See R (on the application of Lumba) v Secretary of State for the Home Dept at .)
The question remains, however, whether a material breach of a public law duty to conduct regular reviews that is, a procedural obligation has the same consequence as a material breach of a public law duty to detain only if certain criteria are fulfilled. Might there be a distinction between the substantive limitations on the power to detain and the procedural requirements for exercising it."
"It is not statute, but the common law, indeed the Rule of Law itself, which imposes upon the Secretary of State the duty to comply with his own stated policy, unless he has a good reason to depart from it in the particular case at the particular time. Some parts of the policy in question are not directly concerned with the justification and procedure for the detention and have more to do with its quality or conditions. But the whole point of the regular reviews is to ensure that the detention is lawful. That is not surprising. It was held in Tan Te Lam, above, that the substantive limits on the power to detain were jurisdictional facts, so the Secretary of State has to be in a position to prove these if need be. He will not be able to do so unless he has kept the case under review. He himself has decided how often this needs to be done. Unless and until he changes his mind, the detainees are entitled to hold him to that. Just as Mr Leachinsky's detention was unlawful even though there were in fact good grounds for arresting him, the detainees' detention is unlawful during the periods when it has not been reviewed in accordance with the policy, irrespective of whether or not the review would have led to their release. In my view, Munby J was right to hold that the reviews were "fundamental to the propriety of the continuing detention" and 'a necessary prerequisite to the continuing legality of the detention.' "
Subsequent Authority in the Court of Appeal and High Court
"For the reasons given in D & K and PB, the policy on medical examinations is closely related to the decision to detain because such examinations may well reveal independent, corroborating evidence that the person examined has been tortured and is not, therefore, generally suitable for detention."
He went on to refer to Lady Hale's endorsement of D & K (he had earlier quoted para 70 of Kambadzi). In D & K at para 50 Davis J had described Rule 34 as an 'important part' of the safeguards in place to determine whether a person should continue to be detained and the Rule 35(3) report as an important component in transmitting information relevant to the decision whether to detain. PB was an earlier decision of Kenneth Parker J following a similar approach.
"For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ."
In short, the difference between the parties on this last point concerns the underlined words.
Discussion on the legal issues
Non-Compliance with Rule 34 of the 2001 Rules
Is a medical practitioner obliged to express a view about whether his medical examination supports his 'concern' that a person may have been a victim of torture?
"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 must not be overlooked that the [Rule 34] 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 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 on the basis that there is an allegation of torture supported by independent evidence " (para 117)
Does the policy require the case worker to seek further information from the author of the Rule 35 report, alternatively to seek an outside medico-legal report?
Is it a breach of Rule 35(3) for a report to be prepared by a nurse but subsequently approved by a medical practitioner?
"It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. Thus, for example, a decision to detain made by an official of a different grade from that specified in the detention policy would not found a claim for false imprisonment."
He submits that even were there a breach of Rule 35 in these circumstances (and a breach of the Secretary of State's policy) it would not bear upon and be relevant to the decision to detain. The concern about torture would have been conveyed with the imprimatur of the medical practitioner. It is the content of the report that matters and which informs the decision whether to maintain detention. Furthermore, he suggests that it is far from accurate to suggest that nurses are necessarily less able to identify those about whom there are such concerns.
What is the relevance, if any, of a detainee's credibility in assessing whether there is independent evidence of torture? Alternatively, does this matter fall to be considered when weighing whether 'very exceptional circumstances' exist to maintain detention?
"[T]he lesion could not have been caused by the trauma described."
"[T]he lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes."
"Highly consistent" means:
"[T]he lesion could have been caused by the trauma described, and there are few other possible causes."
"Typical of" means:
"[T]his is an appearance that is usually found with this type of trauma, but there are other possible causes."
"[T]his appearance could not have been caused in anyway other than that described."
"The following are normally considered suitable for detention in only very exceptional circumstances."
The full list follows as set out in paragraph 8 above. If the detainee falls within one of the categories listed the default position must be release. The policy gives some help with what may inform whether there are very exceptional circumstances. It refers to the need to weigh risks to the public of releasing convicted offenders with particular care. A very high, rather than routine, risk that the detainee will abscond might well also provide a proper basis for maintaining detention. The rubric is such that a host of factors may come into play. It was not suggested by the claimants in these cases that credibility is an irrelevant consideration in determining this question. In my judgment, the credibility of a detainee may be a factor which informs the question whether there are very exceptional circumstances for maintaining detention. Doubts about the credibility of the detainee would not be sufficient that is commonplace. Acting on doubts would be tantamount to requiring the detainee to prove that the allegation of torture was true. The policy does not require that. However, there may be cases in which information available to the decision maker leads him to the firm conclusion that the torture claim is untrue, that is to say incredible or very unlikely to be true. It would be a perverse application of the policy to require the Secretary of State to release from custody someone in respect of whom there exists independent evidence of torture but also where it is clear that the claim is untrue. The policy does not require that. However, it should not be overlooked that the fact that a person is in detention in the first place will often have followed, or be associated with, a conclusion that an underlying claim has little or no substance. The fact that a person is in detention with usually suggest that an assessment has been made that there is a risk of absconding, or a risk of offending or some threat to the public. The policy assumes that these facts, presenting in a way which would ordinarily justify detention, are not without more sufficient to do so when there is independent evidence of torture
If false imprisonment is established, what standard of review should the court apply to the question whether the detainee could and would have been detained anyway and who bears the burden of proving that he would have been detained anyway?
" a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed."
In Kambadzi at para 89 he put it in similar terms:
" if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation "
Although Lord Kerr spoke in the passive, he must have had in mind the obligation resting upon the defendant to avoid paying compensatory damages.
"The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused."
"Torture can be taken to include, for example, rape or other serious forms of psychological, physical or sexual violence. [List is taken from Article 17 of the Reception Directive] The term torture has a very specific meaning in human rights law, as a particular severe form of ill-treatment. The use of the term 'torture' throughout this instruction is not generally intended to be understood in the legal sense unless it is clear from the content that this is the case. [Taken from the Torture Reporting Handbook produced by the University of Essex]"
"23. The definitions of torture, ill-treatment and serious harm were not intended as treatises on the subjects, but rather as broad guidance for the case owners. The definitions were developed by me in collaboration with the UKBA official involved in the negotiations at that time.
24. The definition of "torture" in the Asylum Policy Instruction is consistent with the Government's general approach to the meaning of torture in the asylum context. Section 1(5) of the Asylum and Immigration Act 1996 amended paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993 such that accelerated procedures will apply in certain circumstances but not (inter alia) "if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent." The Medical Foundation lobbied for this amendment which was tabled by the Government."
"Accelerated procedures" were introduced by the 1993 Act to deal with delays in the asylum system. There was no statutory definition of "torture" in the 1996 Act, just as there is no definition in the 2001 Rules or the policy. That is in contrast with the UNCAT definition in section 134 of the Criminal Justice Act 1988 which makes torture committed anywhere in the world a criminal offence justiciable in the United Kingdom. In a debate on the bill in 1996 the Minister of State, Baroness Blatch, indicated that she "had made clear that the term "torture" can indeed apply to any severe form of physical and indeed psychological abuse deliberately inflicted to cause suffering".
"In my clinical experience, people who have been subjected to detention and torture before coming to the UK and who are then placed in immigration detention find it particularly distressing to find themselves once again in a locked, prison-like environment; to hear or see the distress of other detainees (for example cell-mates who scream in their sleep as a result of nightmares); to interact with officers in uniforms (which may remind them of the of the clothes worn by their torturers); to see and hear doors being locked and unlocked repeatedly; and to be cut off from normal life. In these conditions they are at risk of experiencing involuntary and repeated reminders of their torture as re-traumatizations. Many torture victims who have subsequently been held in immigration detention in the UK have intrusive thoughts, nightmares and flashbacks related to their immigration detention that are as distressing (sometimes more distressing) than their re-experiencing of their past torture."
However, Professor Katona was not suggesting that the features he identified in this paragraph were necessary indicia for torture or for serious adverse consequences if an individual were to be detained. In that regard there is evidence before the court from Helen Bamber, whose experience and expertise in the field is unrivalled. Her work in supporting the victims of torture began at the end of the war in Europe in 1945 when she was appointed to one of the first rehabilitation teams to enter the concentration camp of Bergen Belsen. Her evidence contains a section headed "Extreme Inter-personal violence as Torture" and another entitled "Identity of perpetrator". She gives a number of examples (which could be multiplied) of the former and explains why the identity of the perpetrator is of little consequence. Importantly, she concludes that there is no significant difference between the therapeutic needs of victims of torture in the UNCAT sense, or in the wider sense.
The Individual Cases
"Allegation of torture in Nigeria in 2008-2009, was beaten and sustained injuries to nose and scalp
1. Nose deformed due to possible fracture? Nasal bone.
2. 0.3 cm scar bridge of nose.
3. Multiple scar x 4 on scalp ranging from 5 cm to 1 cm.
4. Scar 1 cm on lower lip."
"Information contained within the report has been considered and the decision to detain you has been reviewed.
Whilst a medical officer at Dover IRC has noted that you have alleged to have been a victim of torture in Nigeria. Although it has been noted that you have scars on your scalp and abdomen, no specific medical opinion or independent evidence that you have been tortured has been provided to indicate that you should be released from detention because of these injuries or because of any related physical or psychological condition. Furthermore, there is no record of a referral having been made to the Medical Foundation for the Care of Victims of Torture or of a full medico-legal assessment having been made of your torture claim and any resultant healthcare needs or requirements. You will need to produce evidence to support your allegation."
" it would be extremely unusual to see such extensive scarring in someone who has not been severely injured. Whilst there are credible alternative explanations for some of his marks for example the facial scarring could be the result of acne, on the whole I would see the pattern of scars which he attributes to his beating as typical of the extremely violent assault he describes.
In contrast to his uncertainty about individual scars from the assault, he is very clear in his account of how the scars which he attributes to the juju man were made. The appearance of these scars is diagnostic of cuts deliberately inflicted, and the keloid formation is typical of scars in which irritant material has been placed.
The psychological symptoms he describes are consistent with depression. His distress when describing the death of his wife and children was clear. "
"74. The question of whether the Claimant's circumstances were 'very exceptional' so as to render detention appropriate in any event is a finely balanced one. On the one hand there was the significant risk that the Claimant would abscond. The Claimant was an over-stayer who had gone underground for several years, only coming to the attention of the authorities on his arrest. He had shown a disregard for the immigration laws of the United Kingdom, culminating in his conviction for entering into a sham marriage (and using false documents to do so). In my view the history suggested that there was a significant risk that he would re-offend. Finally there were significant credibility concerns about the Claimant's account. If this was not taken into account in assessing whether the report was independent evidence of torture, I would have considered it in the balancing exercise to be carried out in assessing whether very exceptional circumstances justified detention.
75. However, I am also conscious that a decision in relation to the Claimant's asylum claim and deportation was awaited and was taking a considerable time to prepare I note further that the Claimant posed a low risk of harm to the public. For these reasons, on balance, had I accepted that the Claimant had provided independent evidence that he was a victim of torture my view is that I would have considered drafting a release referral at this point. That would have then gone to the Strategic Director of CCD for his consideration and final decision on whether or not the claimant should be released."
"with her partner had been a victim of persecution and murder attempt by a criminal band in Bolivia who wanted to force her to become drug trafficker but they refused and escape from Bolivia and came to the United Kingdom in order to save her life and liberty. However somehow they found out and on the 3 August 2009 criminals on the orders of they persecutors shot at them in London and her partner was wounded by having been shot in the right hip but was taken to hospital but survive this second murder attempt on them." (reproduced as written)
"As a young girl I was beaten by my father and mother at home. I was 21 and had a boyfriend and we agreed that we needed to leave this environment. My boyfriend knew gang members. They agreed to get us out of the country. They told us that we needed to carry drugs for them. I refused and ran away. They later captured me, abducted me and took me to a house where I was raped and beaten repeatedly. I was there for two days. I then agreed and complied with them to carry drugs. My boyfriend was given 1500 USD. I did not inform the Bolivian police as I was in fear of my life. My boyfriend left with the money. I hid myself in a small place called Copacabana. I entered the UK via Spain and Dublin Ireland. If I returned to Bolivia I will be captured by the gang. The police in Bolivia are not aware of what I did. The drugs were removed in Chile in a place called Chuychuy by a surgeon with ? men present. I was very frightened and returned to my mother and told her what happened. I am in great fear for my life."
"I am writing to you to acknowledge receipt of [the report] notifying us of a torture claim. Information contained within the report has been considered and the decision to detain you has been reviewed as per Detention Service Order 03/008. It is noted you last arrived in the UK on 28 June 2011 however you have only recently informed UKBA of your claim of torture and these circumstances once you were in detention and awaiting removal some 6 months later. Your Human Rights application submitted on 5 December was refused and certified on 21 December. Your judicial review lodged on 6 December 2011 is currently outstanding.
[He then summarised the material set out above from the rule 35 form.]
The allegation of torture form (rule 35) merely repeats your accounts of ill-treatment as opposing to making a diagnostic finding about your injuries. It is noted the Doctor writing the report has not suggested that your detention is inappropriate and there has been no recommendation to release you.
You were requested to confirm if you wished to claim Asylum and on 9 January 2011 you stated you did. We will therefore be making arrangements to complete a Screening Interview for you and your claim of ill-treatment will therefore be given full consideration in your Asylum claim."
Detention was maintained.
"I have considered the appellant's account with the most anxious scrutiny. I make the following findings. I do not find the appellant to be a credible person. I find that the appellant has advocated her claim solely for the purpose of obtaining status in the United Kingdom. I find that she did not arrive in the United Kingdom on 20 June 2011 but had been in this country all along. I find that the appellant was not abducted by the Sinaloa drug cartel. She was not asked or made to traffic drugs for them. She was not ill-treated by them. She was not abducted and raped by them in Spain in 2007. She was not abducted by them in Bolivia in 2009. I find the appellant's account was a total fabrication. The appellant would not be at risk on return to Bolivia. She was of no adverse interest to the Sinaloa or anyone else."
i) That she had been beaten by her parents and wanted to leave them;
ii) That a gang agreed to help her and her boyfriend, but they would be required to traffic drugs;
iii) CE refused and was captured and beaten, before agreeing;
iv) CE hid, and then came to the UK via Spain and Ireland;
v) Drugs were put in her breasts and then removed in Chile.
i) CE lacked all credibility such that little or no weight could be placed on her account;
ii) There was a high risk of absconding because CE had twice entered the United Kingdom without leave. She had no real ties here which would result in her remaining in contact;
iii) CE was removable at short notice, particularly after 20 January when her case was placed in the fast track.
i) Between 29 July and 9 September 2008 OE was detained pursuant to the 'secret policy' which has been condemned in Lumba.
ii) The Secretary of State cannot show that Rule 34 examinations were conducted promptly on five occasions between December 2008 and May 2010 as OE moved between removal centres.
iii) Dr Playforth's report of 12 January 2009 was never considered, even after 23 June 2009 when the Asylum and Immigration Tribunal found that the claimant's account of torture was reasonably likely to be true.
iv) On 21 August 2009 the Criminal Casework Directorate blocked the release of OE on the mistaken basis that OE had been convicted of a drugs offence.
v) The Rule 34 examination and Rule 35 report completed on 18 January 2012 were not fit for purpose.
vi) The case worker who considered the report failed to apply the policy.
vii) No Rule 34 examination was carried out when OE went to Harmondsworth on 23 January 2012.
viii) The whole of the second period in detention violated article 3 ECHR because detaining OE whilst he was on hunger strike and in a parlous medical condition amounted to inhuman and degrading treatment.
"The Defendant's treatment of the Claimant, in particular the forcible attempt at removal on 26 January 2012 whilst the Claimant was acutely unwell, amounted to inhuman and degrading treatment."
Mr Eicke objects, with justification in my view, that the general attack upon much of the second period of detention because of OE's medical deterioration following his going on hunger strike emerged only in a single paragraph in a 94 page skeleton argument before being elaborated upon at length in oral argument. Mr Eicke submits that OE should not be permitted to go outside his pleaded case, which was concerned with the attempted removal on 26 January. Further, complaints about OE's medical treatment during the second period of detention have already been the subject of judicial review proceedings. Permission was refused and the claim certified as being totally without merit. The Secretary of State had responded in detail to that claim, in particular to all the complaints concerning the way in which OE was cared for. There was no attempt to renew the application for permission. As Mr Eicke put it in argument:
"It is entirely inappropriate if not an abuse of process to attempt to reintroduce the earlier claim at the close of day three of a three day judicial review claim in circumstances where (i) OE's representatives must have been fully aware that the earlier claim for judicial review had addressed such matters; (ii) that permission to bring that claim had been refused; (iii) the claim had been certified as being totally without merit; and (iv) no attempt had been made to renew that application."
i) There was a significant risk that OE would abscond. He had been in the United Kingdom unlawfully for 16 years, apparently working. He had no apparent ties here.
ii) There was a risk of reoffending evidenced by his single conviction in the light of a 'flagrant disregard' of immigration laws;
iii) Removal was imminent once the appeal was out of the way and documents had been obtained from the Nigerian High Commission. There was no reason to suppose a problem over documents (although later OE's refusal to co-operate became an issue).
iv) The alleged torture had occurred 16 years before.
"States she has no scars from injuries she claims to have received from the torture."
The continuous medical record completed the same day confirmed that no body map was submitted with the Rule 35 report because there were no scars. The report and that note were completed by a nurse. The report was reviewed by a general practitioner and signed by him (before being sent to UKBA) on 13 January 2012. In a statement prepared in these proceedings RAN questions whether she was asked about scarring, although she does not suggest that she volunteered at the time that she had any scars. The interview with the nurse was conducted with the help of an interpreter on the telephone, she suggests. There may be room for misunderstanding. But there is no reason to suppose that the record is not other than as the nurse concerned understood it to be, particularly as it provides the explanation why there was no body map.
"We have not found the appellant to be a credible witness. We do not believe anything she says that forms part of her claim for asylum. We find her account to be fabricated."
The determination had been promulgated on 31 January 2012. The case worker concluded that Dr Beeks' report did not amount to independent evidence of torture because of the adverse credibility findings. She noted that UKBA intended to obtain its own medical assessment.
i) The nature of her offence (i.e. using a false document) suggests a propensity to deceive;
ii) RAN breached her conditions by working;
iii) She earlier stated she had no fear of returning to Sri Lanka;
iv) After being found working, RAN failed to comply with restrictions and absconded;
v) RAN attempted to leave the United Kingdom on a false document;
vi) RAN did not claim asylum on arrival. Asylum and torture claims followed her conviction;
vii) The Tribunal had made adverse credibility findings and there were limited barriers to removal.
"It was not, however, possible to serve the decision on the Claimant at this point owing to a more general issue in respect of returns to Sri Lanka. The decision that the Claimant would at least be given an in-country right of appeal was treated as a change in circumstances which required the Claimant's detention to be reviewed. It was assumed that the Claimant would exercise her right of appeal in respect of an adverse decision, and accordingly it was concluded that removal could no longer be said to be imminent. Further, a forthcoming appeal was likely to encourage the Claimant to comply with reporting restrictions until the date of that appeal, and therefore the risk of absconding prior to that appeal was reduced. Accordingly, it could not longer be said that there were 'very exceptional circumstances' such that detention should be maintained. Steps were therefore taken to release the Claimant, and she was released on 11 October 2012."
i) EO was unlawfully detained from 17 April 2012 (or as soon after as he would have been released if the correct approach had been taken on that day) until he was released on bail on 11 May 2012. He is entitled to compensatory damages during that period.
ii) CE was unlawfully detained from 10 January 2012 (or as soon after as she would have been released if the correct approach had been taken on that day) until she was released on 28 February. She is entitled to compensatory damages for that period.
iii) OE was unlawfully detained between 29 July and 9 September 2008 but is not entitled to compensatory damages for that period. From 9 April 2009 until his release on 1 April 2011 he was unlawfully detained. He is entitled to compensatory damages from 9 April 2009 until 23 March 2010. He was again unlawfully detained from 17 January 2012 until his release on 24 February but is not entitled to compensatory damages.
iv) RAN was unlawfully detained for a day in January 2012 and from the beginning of April 2012 until 28 June 2012, but is not entitled to compensatory damages.
Note 3 Much more recent evidence from Lucy Kralj concluded that CE suffers from a very severe and complex form of PTSD and Major Depressive Disorder with marked symptoms of dissociation. She is one of the most vulnerable clients I have assessed over the course of the past decade of professional, clinical work with survivors of severe trauma. She went on to speak of her vulnerable psychological state. [Back]
Note 3 Much more recent evidence from Lucy Kralj concluded that CE suffers from a very severe and complex form of PTSD and Major Depressive Disorder with marked symptoms of dissociation. She is one of the most vulnerable clients I have assessed over the course of the past decade of professional, clinical work with survivors of severe trauma. She went on to speak of her vulnerable psychological state. [Back]