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England and Wales High Court (Administrative Court) Decisions
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AK, R (On the Application Of) v Secretary of State for the Home Department [2025] EWHC 1651 (Admin) (01 July 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1651.html
Cite as:
[2025] EWHC 1651 (Admin)
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Neutral Citation Number: [2025] EWHC 1651 (Admin) |
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Case No: AC-2023-LON-003316 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
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Royal Courts of Justice Strand, London, WC2A 2LL |
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01/07/2025 |
B e f o r e :
THE HONOURABLE MR JUSTICE SWEETING
____________________
Between:
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The King (on application of AK)
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Claimant
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- and –
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Secretary of State for the Home Department
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Defendant
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Stephanie Harrison KC and Emma Fitzsimons (instructed by Duncan Lewis) for the Claimant
Julian Blake and Aliya Al-Yassin (instructed by the Government Legal Department) for the Defendant
Hearing dates: 16th - 17th July 2024
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
This judgment was handed down remotely at 10.00am on 01.07.2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
THE HONOURABLE MR JUSTICE SWEETING
Mr Justice Sweeting:
Introduction
- The Claimant is an Albanian national. He was detained under immigration powers by the Defendant, the Secretary of State for the Home Department, from 22 January 2023 until 6 July 2023. His detention was pursuant to a deportation order which the Claimant contests via outstanding asylum, human rights, and trafficking claims. The Claimant was held at HMP Elmley, then Brook House Immigration Removal Centre (IRC), and subsequently Harmondsworth IRC.
The Claimant's Health
- It is not in dispute that the Claimant is a highly vulnerable person and was at particular risk of harm in detention. He has been diagnosed with serious psychiatric disorders. Since his release, he has also been recognised as a potential victim of trafficking. The Claimant's serious psychiatric illness in detention was manifested by strong suicidal and self-harm ideation.
- Specific diagnoses were provided by a Consultant Forensic Psychiatrist, Dr Nuwan Galappathie, following an assessment on 1 June 2023 at Harmondsworth IRC. In a psychiatric report dated 13 June 2023, Dr Galappathie identified that the Claimant was suffering from Severe Single Episode Depressive Disorder (without psychotic symptoms), Severe Generalised Anxiety Disorder, and Severe Post-traumatic Stress Disorder (PTSD). Dr Galappathie's PTSD diagnosis and presentation were consistent with the Claimant's account of being subjected to trafficking for the purposes of forced criminality in Albania. The separation from his daughter following deportation in 2015 and continued separation while in detention were considered likely to have contributed to his initial vulnerability towards developing mental health problems.
- Symptoms described in Dr Galappathie's report included low mood, difficulty sleeping, anhedonia (lack of enjoyment), poor appetite, weight loss, tearfulness, and hearing voices, related to the severe depressive disorder. Symptoms of Severe Generalised Anxiety Disorder include feeling anxious and worried all the time, heart racing, muscle pain and tension, shortness of breath, and panic attacks. Dr Frank Arnold, a Forensic Medical Practitioner, in a medico-legal report dated 26 June 2023, agreed with Dr Galappathie's assessment, and noted that the panic attacks described by the Claimant frequently co-existed with these conditions.
- Dr Galappathie's addendum report dated 2 August 2023 concluded that the Claimant continued to suffer from severe depression, generalised anxiety disorder, and PTSD. Incidents in detention, including the use of force, were likely to have been highly distressing and re-traumatising given his history of trauma and trafficking.
Allegations of Mistreatment and PSU Investigation
- The Claimant's solicitors submitted detailed complaints regarding the alleged mistreatment of the Claimant in immigration detention in relation to incidents occurring on 4, 5, and 11 May 2023 at Brook House IRC and on 23 June 2023 at Harmondsworth IRC. These complaints were set out in correspondence dated 1 and 5 June 2023, and 23 June 2023. The allegations included treatment allegedly in breach of Article 3 of the European Convention on Human Rights (ECHR).
- The specific incidents were as follows:
i) On 4 May 2023, the Claimant was allegedly subject to the unlawful use of force, involving an unplanned restraint by a detention custody officer believed to be the Wing Manager, possibly in the Clyde wing office at Brook House IRC. It is alleged that this involved a restraint or pain-inducing technique on his right hand, which he had previously injured.
ii) On 5 May 2023, the Claimant alleges he was subject to the unlawful use of force when placed on removal from association pursuant to Rule 40 of the Detention Centre Rules 2001. He was removed by force to the Care and Segregation Unit (CSU) by a team in full riot gear and shields, which he found intimidating and frightening.
iii) On 11 May 2023, the Claimant alleges he was subject to the unlawful use of force during a planned handover from the CSU into the custody of an escort crew for his transfer to Harmondsworth IRC. He alleged officers in full PPE/riot gear entered his cell. Medical records confirmed force, including 'pain' and 'locks', was used against him, based on his non-compliance.
iv) On 23 June 2023, the Claimant alleges he was subject to the unlawful use of force and removed from association pursuant to Rule 40 of the Detention Centre Rules 2001, when detained at Harmondsworth IRC.
The Brooke House Inquiry
- The Brook House Inquiry (BHI) was established following a successful judicial review challenge brought by two individuals, MA and BB, who had been detained at Brook House Immigration Removal Centre (IRC). These proceedings arose after a BBC Panorama documentary aired on 4 September 2017, which contained covert footage showing alleged abuse of detained persons at the centre by contracted service provider staff. The documentary footage was described as "utterly shocking", and the behaviour displayed by some staff as "totally unacceptable".
- The judicial review ruling by Mrs Justice May DBE in MA and BB v SSHD [2019] EWHC 1523 (Admin) led to the requirement for an effective investigation to discharge the State's obligations under Article 3 of the European Convention on Human Rights (ECHR). It was contemplated that this duty would be fulfilled by an inquiry constituted under the Inquiries Act 2005.
- The establishment of the BHI was announced by the Home Secretary on 5 November 2019. The stated purpose was to investigate and report on the decisions, actions, and circumstances surrounding the mistreatment of individuals detained at Brook House IRC between 1 April 2017 and 31 August 2017, as depicted in the Panorama programme. The aim was to establish the facts of what had taken place and to ensure that lessons were learnt to prevent a recurrence. The Home Secretary confirmed that the inquiry was instigated to comply with Article 3 investigative duties and with the express intention that the Chair would make recommendations to ensure that future mistreatment was prevented.
- Ms Kate Eves, an experienced and highly qualified investigator, was appointed as the Chair of the Inquiry. She had previously been engaged in the Prisons and Probation Ombudsman (PPO)'s special investigation into Brook House. The conversion of the PPO investigation to a statutory inquiry under section 15 of the Inquiries Act 2005 granted the BHI statutory powers to compel witnesses.
- The BHI's Terms of Reference defined "complainants" as any individual detained at Brook House IRC during the specified period (1 April 2017 to 31 August 2017) where there was credible evidence of mistreatment. "Mistreatment" was defined as treatment contrary to Article 3 ECHR. The inquiry was specifically required to include investigation into the mistreatment of MA and BB.
- The inquiry's purpose included reaching conclusions on whether the actions of individuals and management arrangements (both of the Home Office and contractors) caused or contributed to any identified mistreatment, and whether changes to methods, policies, practices, and management would help prevent recurrence. The scope was intended to be manageable and realistic, focusing on the specific issues identified. It was noted that the inquiry would need to address healthcare provision and potentially draw on expert witnesses and specialist assessors.
- The BHI produced its report on 19 September 2023. The report found 19 separate incidents where there was credible evidence of acts or omissions capable of amounting to mistreatment contrary to Article 3 ECHR over the five-month period under investigation. Many individuals in relation to whom Article 3 findings were made had previously had their allegations dismissed following investigation.
- The BHI report included 33 recommendations across 10 areas of concern. The findings highlighted significant failures, including deficiencies in staff using whistleblowing processes and the processes themselves being insufficient and ineffective. The inquiry also heard evidence of fundamental deficiencies in the operation of safeguards for vulnerable people, which left them exposed to harm and deterioration in their mental health.
- The BHI saw evidence of force being routinely used on mentally unwell and vulnerable detained people, noting an "unusually high" number of instances. It found that force was often used as a response to, and a form of management of, symptoms of mental illness. The inquiry was highly critical of the use of force as a method for preventing self-harming by detained individuals. The Chair found that the full use of Personal Protective Equipment (PPE), which was standard practice, was entirely unjustified and could add to the frightening and humiliating nature of incidents.
- The BHI made detailed findings on the adequacy of investigations into complaints of mistreatment by detained persons.
PSU Investigation Process and Outcomes
- The Claimant's complaints in relation to the alleged incidents of mistreatment were made to the Professional Standards Unit ("PSU"), which is responsible for investigating complaints by detained persons in relation to allegations of serious misconduct against Home Office staff or contractors.
- The PSU an internal complaints mechanism operating within the Home Office. Its primary objective is to investigate serious misconduct complaints and serious incidents concerning Home Office staff and contractors. The aim of these investigations is to ensure prompt remedial action is taken and that lessons are learned for the future. Having a specialist team of appropriately trained investigators is intended to ensure that serious complaints can be investigated independently from line management. The PSU also acts to satisfy independent monitoring bodies, such as the HM Inspectorate of Prisons that serious complaints are dealt with appropriately.
- The PSU is tasked with investigating certain types of serious misconduct complaints that are not suitable for local or informal resolution. These defined categories include specific allegations of racism or other discrimination, allegations of criminal behaviour (such as assault, sexual assault, fraud, or theft), unfair treatment (including harassment), and other unprofessional conduct likely to bring the Home Office into disrepute or cast doubt on a person's integrity, honesty, or suitability to work for the department. The PSU also holds the remit to investigate the most serious instances of misconduct under the discipline policy and grievances relating to bullying, harassment, and discrimination. The PSU is also responsible for the investigation of complaints or incidents that engage the oversight of external bodies such as the Independent Office for Police Conduct (IOPC), the Police Ombudsman for Northern Ireland (PONI), or the Police Investigations and Review Commissioner (PIRC). PSU investigations are instrumental in enabling the Home Office to exercise its authority, on behalf of the Secretary of State, to determine whether a Detainee Custody Officer is a fit and proper person to perform escort or custodial functions.
- In conducting its investigations, the PSU follows a defined process. This includes interviewing involved parties and witnesses and securing evidence such as CCTV footage where possible. An acknowledgement letter is typically sent to the complainant, requesting any further relevant evidence within seven days. The PSU aims to provide a substantive response within 12 weeks of allocation. Records of complaints are maintained in a log or database. Where criminal allegations are made, these are referred to the police. PSU investigating officers are expected to adhere to the principles within the relevant guidance in investigating misconduct complaints. The Defendant's relevant published policies on the PSU are: (i) the Detention Services Order 03/2015, Handling of Complaints, dated April 2023 ("DSO 03/15") and (ii) the Detention Services Order 02/2020, Commissioning reviews of serious incidents occurring in the immigration detention estate and during escort ("DSO 02/2020").
- The purpose of an investigation is to establish the facts, determine if the complaint is substantiated (in full or part) or unsubstantiated, and provide a reply to the complainant. During interviews with the subjects of complaints, all aspects of the complaint and any corroborative evidence must be put to them, affording them every opportunity to respond.
- Upon conclusion of an investigation, the PSU submits a full report to the Detention Services Head of Operations, setting out whether the complaint has been substantiated, partially substantiated, or unsubstantiated. A decision letter is usually issued to the complainant, designed to help them understand the reasons for the outcome. For detention cases, this letter should also include information about the right of appeal. Lessons learned and recommendations, with clear action points, are identified from reports and shared internally within the Home Office.
- Although part of the Home Office, the PSU is structured to operate with a degree of independence from the parts of the department it investigates, such as Immigration Enforcement. The PSU falls under the Director General of Corporate and Delivery, which is separate from Immigration Enforcement. This separation is intended to prevent influence being brought to bear upon the PSU in matters relating to Immigration Enforcement. The PSU also has physically separate locations, which are secure from other Home Office teams and contracted service providers working on-site.
- However, it is acknowledged that the PSU is not wholly independent of the Home Office. Concerns have been raised in relation to the independence of the PSU, or at least the perception of independence, from the Home Office and those being investigated. A recommendation has been made by the BHI for the Defendant to take steps to enhance the independence of the PSU from the Home Office. The Defendant maintains that the PSU, as part of the Home Office's internal mechanism, is part of a wider overarching scheme (including the Prisons and Probation Ombudsman, "PPO", and courts) that together ensure that an individual can obtain an independent investigation.
- The PSU process is considered the first instance complaints procedure. Where a complainant is not satisfied with the outcome of a PSU investigation, they have a right of appeal to the PPO. The PPO is an independent body that investigates complaints and deaths in custody, including those made by individuals detained under immigration powers who have failed to obtain satisfaction from the Home Office complaints system. The PPO's remit includes investigating decisions and actions in relation to the management, supervision, care, and treatment of detained individuals. The PPO is appointed by and reports directly to the Secretary of State for Justice and operates independently of the services in its remit. The PPO has the power to ensure greater disclosure to the complainant should it be considered necessary and appropriate. The complaints system as a whole must take into account both the PSU and PPO stages. The PSU's remit is specifically focused on investigating serious misconduct allegations against staff and contractors. It does not investigate complaints relating to general service delivery or minor misconduct. The PSU's role is not to review why decisions are made by either the Home Office or the management of Immigration Removal Centres.
- Recommendation 29 of the BHI report specifically addressed the PSU. It recommended that the Home Office must update Detention Services Order 03/2015: Handling of Complaints to clarify that in investigations by the PSU into allegations of serious misconduct against contractor staff:
i) PSU investigators must carry out interviews themselves.
ii) Where inconsistencies exist between accounts, relevant evidence (including footage and documentation) obtained by an investigator must be shown to the complainant and the subject of the complaint prior to reaching a conclusion.
iii) Full reports must be sent to complainants (and their solicitors if applicable).
- The PSU's usual procedure does not involve the release of all gathered material to a complainant. While there is no explicit Home Office policy prohibiting disclosure of evidence such as CCTV or Body Worn Video footage, the PSU does not ordinarily require that all gathered material be given to the complainant. The PSU, it was said by the Defendant, takes case-by-case decisions as to whether it is necessary to disclose materials to complainants. This is to be contrasted with the position of staff members who are the subject of a complaint, who are entitled to see all relevant evidence gathered, subject to redaction in specific, sensitive cases. Additional papers do not normally accompany an investigation report unless deemed essential by the investigating officer, with the issues being fully addressed within the body of the report. The PSU provides a summary decision letter to the complainant, although the full report is submitted internally. Although full reports have now been disclosed in the Claimant's case, the Defendant maintains that there was no requirement for this. Requests for information under the Data Protection Act are handled separately by the Information Rights Team.
The Investigation
- On 12 and 13 June 2023, the Claimant's solicitors, Duncan Lewis, received correspondence confirming that the PSU would be investigating the use of force incidents. The PSU informed them that evidence had been secured and would be reviewed and detailed in the findings letter, which the Claimant would receive.
- The PSU's letter of 12 June 2023 stated that the PSU would be following its "usual procedures in this regard, which does not involve disclosure of evidence to the complainant". It was noted that during an interview, the Claimant would have the opportunity to respond to the officers' version of events, especially if it differed from his own recollection.
- On 14 June 2023, Duncan Lewis responded, seeking disclosure of the contemporaneous evidence and any evidence obtained in relation to the investigation. They argued that the PSU's stance on non-disclosure would prevent the Claimant from fairly or effectively engaging in the process, putting him at a serious disadvantage. They also sought disclosure of the PSU's "usual procedures" document. The solicitors highlighted that it would be procedurally unfair for the Claimant and his lawyers not to see the underlying material.
- Following further communications, the Claimant's solicitors informed the PSU that due to the Claimant's significant mental health issues he would be less prejudiced in the investigation by responding to written questions rather than undergoing a direct interview. The PSU agreed to this approach and sent written questions to the solicitors, asking for a response by 5 July 2023 (subsequently extended by agreement to 3 August 2023).
- On 3 August 2023, the Claimant's solicitors wrote to the PSU (attaching the addendum psychiatric report referred to above), reiterating that the Claimant could not be directly interviewed or respond to direct questions from the PSU due to the likely adverse impact on his mental health. They again emphasised that disclosure of the underlying evidence was "obviously necessary" for them, as his representatives, to ensure his participation in the complaint process.
- In her submissions on behalf of the Claimant Ms Stephanie Harrison KC distilled the PSU's reasons for ultimately refusing disclosure as being:
i) Because it was not the "usual procedure."
ii) Because the Claimant did not require the footage as he was "present during each incident."
iii) Because the PSU could not disclose evidence that belonged to the private contractors, even if it believed it to be appropriate.
- It might be observed that these are generic objections to disclosure which would arise in many if not all cases.
PSU Investigation Outcomes
- Following the investigation of each incident, the PSU issued individual decisions on 8 August 2023 (for 5 May incident), 10 August 2023 (for 4 May incident), 17 August 2023 (for 11 May incident)), 6 September 2023 (for 23 June incident). These decisions dismissed the allegations in full for the incidents on 4 May, 11 May, and 23 June 2023. In relation to the incident on 5 May 2023, the PSU dismissed the complaints save in relation to the number of staff present, which was partially upheld as potentially amounting to degrading and inhuman treatment. The decisions outlined the methodology used by the Investigating Officer, which included reviewing various types of evidence such as statements, CCTV, and Body Worn Camera footage.
- Ms Harrison submitted that across all four decisions, several common themes and characteristics were evident. Notably, the PSU did not provide the Claimant with disclosure of the underlying evidence that it had reviewed as part of the investigation. This included evidence such as video footage from sources such as body-worn cameras, use of force reports, and interviews conducted with detention staff.
- Despite the absence of disclosure, the PSU's decisions repeatedly referenced and relied upon this underlying material, including body-worn camera footage and use of force reports, to inform its findings and draw conclusions. In some instances, the PSU used this evidence to draw adverse conclusions in relation to the Claimant's allegations.
- The PSU decisions indicated that the investigations were limited to examining the actions and conduct of detention officers in relation to the specific use of force incidents. The PSU maintained that it would not investigate the reasons or justification for any associated Rule 40 decisions (removal from association or segregation) or consider the impact of the Claimant's mental health at the time of the incidents. This position was taken despite the Claimant's submissions that the Rule 40 decisions were part of the wider mistreatment and intrinsically linked to the uses of force.
- The PSU's stated policy is that decisions concerning Rule 40, or the CSU are not within its remit for investigation, unless a specific Management Review is commissioned, and that its focus is on potential serious misconduct by staff.
- It was also a characteristic of these decisions that the PSU provided the Claimant with only summary decision letters, rather than the full investigation reports. At the time, it was not the PSU's policy to provide the full report, instead offering a detailed decision letter. While the policy in relation to this has since changed, the Claimant was not provided with the full reports at the time the decisions were issued. These full reports, which have since been disclosed to the Claimant during the course of these proceedings, contained additional information which was not present in the summaries provided to the Claimant.
- In each of the four decision letters, the Claimant was informed of his right to appeal the PSU's findings to the Prisons and Probation Ombudsman ("PPO").
- The Claimant challenges these decisions and the underlying process as being unlawful. While the PSU reports asserted that the investigations were conducted independently, the Claimant has raised concerns regarding the institutional and functional independence of the PSU from Immigration Enforcement.
The Litigation
- On 22 September 2023, the Claimant's solicitors sent a detailed pre-action letter to the Defendant, challenging the lawfulness of the PSU's policy and/or practice in relation to disclosure, as applied to the investigation of the Claimant's complaint. The letter again sought disclosure and requested a response by6 October 2023.
- On 12 October 2023, the Government Legal Department (GLD) sent a holding response on behalf of the Defendant, requesting a further extension of time to respond by 12 October 2023. On 20 October 2023, the GLD indicated that it was not in a position to provide a substantive response to the pre-action letter. The Claimant's solicitors responded, notifying the GLD that they would be proceeding to issue this claim. The claim was issued on 7 November 2023.
- On 28 March 2024, the Claimant's solicitors sent a letter requesting further information from the Defendant following review of the Detailed Grounds of Defence and a witness statement from Mr Mohammed Ash Khan served by the Defendant.
Mr Khan's Evidence
- Mr Khan was the Head of PSU Operations. He was in post from 7 December 20202. Prior to his tenure at the PSU, he was a civil servant at HM Revenue and Customs ("HMRC"), where he worked in the Commercial Directorate. His experience includes fifteen years within HMRC's internal governance unit, during which he served as an investigator, Senior Investigator, and manager. Mr Khan provided live evidence to the Brook House Inquiry on 24 March 2020. He was not the decision-maker in the Claimant's case.
- In his witness statements filed in these proceedings, Mr Khan has elaborated on the PSU's position in relation to the disclosure of underlying material to complainants. He sets out various reasons why disclosure might not be deemed appropriate or beneficial. Among the considerations he raises are concerns that a complainant's account might become less authentic or reliable if given after reviewing evidence provided by others. He suggests this could expose the complainant to allegations that their evidence has been influenced. Mr Khan acknowledged that the PSU process, in relation to subjects of complaints, is covered by the Advisory Conciliation Arbitration Service ("ACAS") Code of Practice, which includes a right to be accompanied.
- The other reasons Mr Khan provided for potential non-disclosure include the possibility of causing delays to the investigation process, causing distress to complainants by potentially re-traumatising them, interfering with the privacy of third parties, the cost associated with editing or pixilating footage, the risk of losing control over sensitive footage or materials, and the potential prejudice to the safe and secure operation of the immigration detention estate. He maintains that the decision to disclose CCTV or body-worn camera footage, or other underlying material, is an operational decision made on a case-by-case basis.
- Mr Khan cites the Claimant's case as a "good illustration" of issues in providing CCTV to complainants, referencing an alleged threat made by the Claimant. In this context, he questioned the extent to which he could rely on an undertaking from a solicitor, given the Claimant's immigration history. It appears that Mr Khan had obtained the Claimant's immigration history, including documents related to his trafficking claim, from another part of the Home Office.
- While Mr Khan outlines various reasons for not disclosing evidence, I note that he has not provided details as to the circumstances in which the PSU would disclose footage, despite suggesting to the Brook House Inquiry that it could be "helpful" in particular instances, such as where there is a disagreement or inconsistency. He was aware that the PSU has previously disclosed CCTV footage in at least one case where the complainant needed it to identify the subject of their allegations, describing this as a "good example" of beneficial disclosure.
Mr Kett's Evidence
- The Claimant's solicitors maintained that the detailed grounds of defence and the first witness statement from Mr Khan necessitated witness statements in reply and served evidence from Mr Lewis Kett, a solicitor at Duncan Lewis Solicitors (a witness statement dated 26 April 2024 and a second witness statement dated 6 June 2024). Mr Kett had also prepared an earlier witness statement dated 30 June 2023, which was included as an exhibit. He is the principal solicitor with conduct of the Claimant's case in these proceedings. He acts on behalf of the Claimant in his immigration detention matters and in relation to his complaints regarding treatment in detention. Mr Kett has previously provided a witness statement in the cases of MA and BB which led to the Brook House Inquiry.
- The purpose of Mr Kett's evidence was to directly respond to a number of issues raised by the Defendant in their Detailed Grounds of Defence and the witness statement of Mr Khan. Mr Kett's statements draw upon his involvement in representing the Claimant and his past experience with similar cases involving immigration detainees and serious misconduct complaints. His second statement was also intended to provide a case example of another client with similar grounds for judicial review to further assist the Court.
- Mr Kett's evidence addresses various aspects of the PSU investigation and complaints process. He responds to Mr Khan's reasoning concerning the non-disclosure of underlying evidence, such as CCTV and body-worn camera footage, to complainants. He disputes Mr Khan's view that a complainant's evidence might become less authentic or reliable if they receive legal assistance, highlighting the professional obligations of solicitors as officers of the court. He also questions the validity of the reasons given for non-disclosure, noting that an alleged threat by the Claimant, referenced by Mr Khan as a potential ground for withholding CCTV, was not mentioned in the PSU investigator's report as a reason for not providing the footage in this specific case.
- Mr Kett exhibited relevant extracts of the transcript of Mr Khan's live evidence to the Brook House Inquiry on 24 March 2022. He draws attention to Mr Khan's evidence to the Inquiry that decisions on disclosing material to a complainant would be made "on a case-by-case basis" and that it might be "helpful" to show footage in particular instances, such as where there is a disagreement or inconsistency. He suggests that the PSU's reliance on reasons such as the footage belonging to third-party contractors is undermined by Mr Khan's own evidence that disclosure could be beneficial.
- Mr Kett confirmed that the full PSU investigation reports were not provided to the Claimant until they were disclosed with the Defendant's Detailed Grounds of Defence on 19 March 2024, despite him having requested them after the first summary decision some seven months earlier. Correspondence related to these requests is exhibited or referred to in his statements. The PPO also confirmed to Mr Kett via a Freedom of Information request that they did not disclose investigation documents to immigration detainee complainants between April 2019 and March 2023.
- Mr Kett raised concerns about the PSU's structural and functional independence from Immigration Enforcement, detailing these in his statement. He also highlights that Mr Khan obtained the Claimant's immigration history, including documents related to his trafficking claim, from another part of the Home Office without notice or apparent attempts to obtain consent. Mr Kett questions the relevance of this information and whether this action is consistent with the PSU's claimed independence and Mr Khan's assertion that he had no dealings with the Claimant's immigration status.
- Mr Kett challenges the position, articulated by Mr Khan, that complaints concerning Rule 40 decisions are not investigated by the PSU as they do not constitute "serious misconduct". Mr Kett's statement provides examples which he contends demonstrate that the PSU has previously investigated Rule 40 matters.
- Mr Kett's evidence also provides the Claimant's account and perspective regarding the incidents that gave rise to the complaints, drawing on his communications with the Claimant. This includes detailing the events of 23 June 2023, which involved the Claimant experiencing a mental health and suicidal crisis, and the alleged use of force against him during this time, resulting in a purported injury. Mr Kett suggests that procedural fairness in the complaints process requires the disclosure of underlying material, particularly when it is relied upon to make adverse findings or reject a complaint.
The Grounds in Summary
- The Grounds advanced by the Claimant are that the Defendant's policy and/or practice as applied to the Claimant's particular case is unlawful as contrary to:
i) Ground 1: Common law principles of legality, fairness and natural justice and Article 6 ECHR read alone and/or with Article 14 ECHR.
ii) Ground 2: Section 20 and s 29 of the Equality Act 2010 in failing to make reasonable adjustments to the process for the Claimant taking into account the disability arising from significant mental illness.
iii) Ground 3: The Defendant's investigative duties under Article 3 ECHR to an independent, speedy, fair, and effective investigation into a credible allegation of mistreatment read alone and/or with Article 14 ECHR.
- The Claimant's challenge therefore extends to the lawfulness of the procedure in which the Defendant investigated his allegations. The core argument is that the PSU investigation was procedurally unfair for failing to provide the Claimant with the underlying evidence and an opportunity to comment on it before adverse decisions were taken. It is submitted that the Claimant's right to be heard requires him to see and comment on underlying evidence being adversely relied upon to reject his complaint.
Agreed Substantive Issue
- The principal question that I am asked to determine, and which is agreed between the parties as the central substantive issue, is whether the policy and/or practice operated by the Professional Standards Unit, hereafter referred to as the PSU, in relation to the disclosure of underlying material, including footage obtained during investigations, is lawful. This question specifically extends to circumstances where there are inconsistencies between accounts given of events and where a complainant may lack mental capacity. As set out in the revised issues list the issue is formulated as follows:
"Is the policy and/or general practice operated by the PSU in respect of disclosure of underlying material including footage obtained in the course of an investigation unlawful where the PSU places adverse reliance upon it to reject the complaint, including:
a. where there are disputes and/or inconsistencies between any accounts given of events and/or
b. where a complainant lacks mental capacity?"
Agreed Preliminary and Procedural Matters
- For the purpose of determining the lawfulness of the PSU's policy and/or practice, the parties agree that I am to proceed on the basis that Article 3 of the ECHR, is engaged. It is further agreed that, given the nature of this case which raises a challenge to a policy, an appeal to the PPO, is not an adequate alternative remedy.
- The parties have also reached an agreement in relation to the use of the BHI Report. The agreed list of issues records at [§5]: 'Neither party will rely on any findings contained in the Brook House Inquiry Report for the purpose of determining these issues (without prejudice as to their positions as to the admissibility and relevance". Whilst factual reference to the report is unavoidable, for the purpose of determining the issues before me, neither party will rely on any findings contained within that report.
Ground 1
- Ground 1 is founded upon alleged breaches of common law principles of fairness and natural justice, and Article 6 of the European Convention on Human Rights, read alone and/or in conjunction with Article 14 ECHR. The Claimant challenges the lawfulness of the procedure employed by the Defendant's Professional Standards Unit in investigating his allegations of mistreatment. This challenge specifically concerns the PSU's policy and/or practice, which the Claimant asserts was applied to his particular case.
- The Claimant contends that the PSU investigation procedure is unlawful and unfair. The core of this contention is that the Claimant was deprived of a lawful, fair, and effective investigation at first instance, which he maintains is required by common law and Articles 3 and 6 ECHR.
- A central plank of the Claimant's argument, as set out in paragraphs 83-84 of his Statement of Facts and Grounds, is that the PSU investigation failed to meet the necessary requirements because he was not afforded the right to see and review the material obtained by the PSU. He asserts that natural justice required him to be given a fair opportunity to comment on this material and to correct, contradict, or explain the evidence and its significance before any adverse findings were made in reliance upon it. The Claimant also argues that effective participation in the investigation process was not possible without sufficient disclosure of the underlying evidence, such as body-worn video footage or details of witness accounts. He contends that sight of such material is necessary to enable him to ask questions and raise issues for the investigator to consider. He relies on Al Rawi and Others v The Security Services & Others [2011] UKSC 34, [2012] 1 AC 531 and Tariq v Home Office [2011] UKSC 35, [2013] 1 AC 452 for the principle that natural justice requires the opportunity to know and effectively challenge the opposing case.
- The Defendant argued that the Claimant's assertions in relation to procedural fairness rest on a fundamental confusion as to his entitlement to disclosure of information. On behalf of the Defendant, Mr Blake submitted that the Claimant's reliance on cases concerning the right of an accused person to know the case made against him, such as Al Rawi and Tariq, is misplaced. He pointed out that the Claimant is the complainant making allegations, not an accused defending himself against prejudicial allegations. Consequently, he submitted it is not clear how an "adverse decision" would be taken against the Claimant on the basis of evidence obtained during the investigation.
- Furthermore, the Defendant argues that the PSU investigation is only one element within a wider overarching system of complaints mechanisms, which includes the Prisons and Probation Ombudsman, the courts, and the police. This combined system, the Defendant submits, ensures that individuals alleging mistreatment have access to an effective investigatory and complaints process so that a combination of available routes, such as a PSU investigation, civil proceedings, and a PPO investigation, can be sufficient to comply with investigative obligations (including those under Article 3 ECHR noting that a breach of Article 3 is not pleaded as part of Ground 1).
- The Defendant placed significant reliance on the House of Lords decision in R (Green) v Police Complaints Authority [2004] 1 WLR 725 submitting that the Claimant's core argument is contrary to this authority. In Green, the Defendant argues, the House of Lords unanimously dismissed the argument that there was a general right of disclosure to a complainant in disciplinary proceedings (in that case, police disciplinary proceedings) and held that a refusal to do so was not contrary to common law. The Defendant characterises the legal argument in Green as "near identical" to the Claimant's submission in relation to disclosure.
- The Defendant also asserts that there is no authority or principled position supporting the contention that reasons provided in decision letters are insufficient. These letters are said to demonstrate that the investigator grappled with the main points and explained why complaints were or were not upheld, sufficiently enabling the Claimant to appeal to the PPO. The Defendant points out that the since the full PSU reports have now been disclosed to the Claimant, arguments in relation to this are academic.
Discussion and Conclusions
- The Claimant asserts that the PSU applies a general policy and/or practice which is procedurally unfair, primarily because it involves a failure to provide complainants with the underlying evidence gathered during investigations. It is submitted that this policy or practice was applied to the investigation of his specific complaints concerning incidents on 4, 5 and 11 May 2023 and 23 June 2023.
- In support of this, the Claimant points to the fact that, during the investigation of his complaints, the PSU refused to provide him or his legal representatives with underlying material such as video footage, use of force reports, and interviews with staff. The basis for this refusal, as communicated to the Claimant's solicitors, was that providing such disclosure was not the "usual procedure". The PSU issued its decisions having assessed this undisclosed evidence.
- The Defendant, in its Summary Grounds of Defence, suggested that the PSU does not operate a policy or practice of non-disclosure, but rather a "usual procedure". It was stated that the usual procedure involved interviewing complainants and providing sufficient information to the subject of the complaint to allow them to respond, but that beyond that, it was for the Investigating Officer to determine the stage at which material would be disclosed. The Defendant later provided the Claimant with the full underlying decisions in the course of these proceedings.
- Describing the approach taken as a "usual procedure" strikes me as a way of avoiding the conclusion that a general policy issue is involved, and that the invariable application of a "usual procedure" constitutes a practice. Correspondence in relation to the Claimant's case suggests that disclosure was refused on the basis that it was not the 'usual procedure', to disclose rather than as a result of a case-by-case assessment tailored to his particular circumstances. This contrasts with evidence given by Mr Khan to the Brook House Inquiry, where he indicated that decisions on disclosure would be made "on a case-by-case basis". Furthermore, the Defendant's description of its "established practice" in relation to disclosure in similar proceedings provides some support for the Claimant's characterisation of a consistent approach. An internal Standard Operating Procedure indicates that third-party evidence is not usually disclosed. While the PSU stated that it would provide the Claimant with an opportunity to respond to questions based on evidence viewed by the investigating officer, this was in my view insufficient without actual disclosure of the underlying material itself. The truncated summary decision letters provided initially, as opposed to full reports, also point towards a standardised, limited disclosure approach.
- Drawing the threads together, the evidence indicates that the PSU applied a consistent approach to disclosure in the Claimant's case, characterised by the withholding of underlying evidence such as video footage and witness accounts. This approach was described by the Defendant as a "usual procedure", but as the Claimant argues, its application was not based on the specific facts and needs of his case, but rather a standard practice of non-disclosure. The very description of it as "usual procedure" or even "established practice" suggests a level of consistency that goes beyond individual discretion. On the material before me, I find that the PSU's handling of disclosure in the Claimant's case was conducted pursuant to a discernible policy or practice of generally withholding underlying evidence from complainants, rather than a flexible, case-by-case approach.
- Natural justice is recognised as a fundamental common law principle. It has been described as encompassing "the right to know and effectively challenge the opposing case" (per Lord Kerr in Tariq v Home Office [2011] UKSC 35, [2013] 1 AC 452 at [§102]). This principle mandates that a party has a right to know the case against him and the evidence on which it is based.
- The common law readily implies requirements of procedural fairness into statutory frameworks, even where the legislation is silent. When assessing questions of procedural fairness, the court's function extends beyond merely reviewing the reasonableness of the decision-maker's judgment of what fairness required. The court must determine for itself whether a fair procedure was followed, and its function is not limited to a Wednesbury review. Fairness requires that procedures provide a fair opportunity for individuals to present their cases properly. The principle of natural justice includes the requirement that an individual be given a fair opportunity to correct, contradict, or explain evidence relevant to a decision concerning them.
- The Court of Appeal in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812, [2018] 4 WLR 123 confirmed that it is possible to challenge a system as being unfair, and not merely an individual decision. In the same case, Singh LJ set out general principles concerning the duty of fairness at common law, including when reasons must be given and their adequacy:
i) What fairness requires depends on the particular legal and factual context. As observed by Lord Mustill in Doody [1994] 1 AC 531, [1993] 3 WLR 154, it sometimes may not be possible to give a person the opportunity to make representations before a decision is taken and that opportunity may have to be given afterwards, e.g. for reasons of urgency or the need to maintain confidentiality [§85].
ii) The fact that adverse decisions were sometimes taken because a person is not believed reinforced the view that procedural fairness did apply to the SSHD's operation of the expedited scheme [§87].
iii) Fairness requires that a person is provided with reasoning such that they have a meaningful way of knowing how to achieve a different outcome; fairness requires that a person knows what the "target" was to aim it [§90].
iv) One of the fundamental reasons why the law imposes a duty to act fairly is to provide for the ability to challenge the legality of a decision and so to vindicate the rule of law [§91].
- Article 6 ECHR reflects the guarantees protected at common law. While Article 6 primarily applies to the determination of civil rights or criminal charges, its underlying principles of fairness and effective participation are instructive in other contexts.
- The procedural duty under Article 3 ECHR, which requires an effective investigation into credible allegations of mistreatment, also imports requirements of fairness and victim involvement. While it is true that the Claimant is not facing disciplinary or criminal charges as a result of the PSU investigation, the investigation's findings directly affect his ability to pursue his allegations of mistreatment further, including via the PPO or potential civil claims. A decision by the PSU not to uphold a complaint, even if not formally an "adverse decision" against the Claimant personally, is functionally adverse to the Claimant's case and his legitimate interest in seeing his allegations properly investigated. The principles of natural justice are not confined to criminal or disciplinary proceedings but apply to any decision-making process by a public body that affects an individual's rights or interests. The Claimant has a clear and significant interest in the fair and effective investigation of his allegations of mistreatment.
- It is correct that the House of Lords in R (Green) v Police Complaints Authority held there was no general right of disclosure to a complainant. However, Green concerned disclosure in disciplinary proceedings against officers. Green does not establish a general principle that complainants are never entitled to disclosure in any investigatory process; rather, it concerned the specific context of disciplinary proceedings. Lord Roger's concerns as to the consequences of disclosure in Green do not translate easily into the circumstances of the Claimant's complaint about his treatment on a number of occasions. The principles of effective participation in an investigation into alleged mistreatment, particularly where ECHR rights may be engaged or serious allegations are made, require a more nuanced approach to disclosure. The present case relates to disclosure and participation during the initial investigation process conducted by the PSU. Furthermore, domestic jurisprudence on procedural fairness and the requirements of effective participation has developed since Green was decided in 2004, particularly in contexts involving vulnerable individuals or significant interests, as evidenced by cases such as Citizens UK which emphasise the court's role in independently assessing fairness and the possibility of challenging the fairness of a system itself.
- The more recent decision of Ritchie J in Dunne & Dunne v IOPC [2023] EWHC 3300, considered the procedural requirements of an investigation into alleged police misconduct that engaged Article 2/3 ECHR. Ritchie J found that the investigation in that case failed to allow the complainants "effectively to participate" because they were not provided with sufficient disclosure (including body-worn video details and witness accounts) to enable such participation. He reasoned that providing such disclosure was "necessary to permit the Claimants to participate in relation to the nascent decisions". Whilst this is a factually different case it appears to me that the reasoning is equally applicable in a case such as the present. I conclude that the PSU's practice of conducting investigations without providing the complainant with key underlying evidence, such as body-worn video footage and witness accounts, to allow them a fair opportunity to comment and make submissions, fails to meet the required standards of procedural fairness. Fairness is not satisfied by merely allowing the Claimant to answer questions based on the investigator's review of the material. True, effective participation requires the Claimant, or his representative, to engage directly with the evidence informing the investigation's conclusions.
- The Defendant's argument regarding an alternative remedy via the PPO and the assessment of the overall process is relevant to the court's discretion. However, it is accepted that it is not a true alternative in this case. The Claimant's challenge is, in part, to the lawfulness of the first instance procedure itself. As the Court of Appeal recognised in Citizens UK procedural unfairness arising from the system itself may require relief from the court, notwithstanding the existence of an appeal or review process. If the initial investigation is procedurally flawed by design, a subsequent review body may be limited in its ability to cure that fundamental unfairness, especially if it relies on the inadequate first instance material. The Claimant has framed Ground 1 as a challenge to the PSU's policy and practice, arguing that the PPO cannot provide an alternative remedy for this policy challenge. I accept this submission.
- While the Defendant states that reasons provided in decision letters are sufficient, the Claimant's grievance goes beyond the adequacy of the final reasons; it concerns the lack of fair opportunity to engage with the evidence that led to those reasons during the investigation process. The fact that PSU reports may now have been disclosed to the Claimant does not render the claim in relation to the fairness of the procedure at the time the investigation was conducted, and the decision letters were issued academic. The Claimant seeks a declaration regarding the unlawfulness of the procedure applied to his complaints.
- For the reasons set out above, I find that the Claimant's case on Ground 1 is made out. The PSU procedure, as it was applied to the Claimant's complaints, failed to provide him with a fair opportunity to participate effectively in the investigation by denying him access to the underlying evidence necessary to understand, comment on, correct, or contradict the material considered by the investigator. This constitutes a breach of the Claimant's right to procedural fairness under common law. While the precise scope of Article 6 ECHR's application to such internal investigations may be debated, the common law principles of fairness are engaged and have been breached.
Ground 2: Reasonable Adjustments under the Equality Act 2010 and Article 14 ECHR
- Ground 2 asserts that the Defendant failed to comply with the duty to make reasonable adjustments under the Equality Act 2010 (the EA 2010) and thereby also infringed Article 14 of the European Convention on Human Rights (ECHR), read alone and/or in conjunction with other Convention rights.
- The EA 2010 imposes a duty on service providers (which includes the Defendant in this context) not to discriminate against disabled persons. Section 20 of the EA 2010 sets out the duty to make reasonable adjustments, which applies where a provision, criterion, or practice (PCP) applied by a service provider puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. In such circumstances, the service provider must take such steps as it is reasonable to have to take to avoid the substantial disadvantage [EA 2010, s 20, s 29(7)]. The case of R (VC) v Secretary of State for the Home Department [2018] 4 WLR 478 provides relevant guidance in relation to claims under the EA 2010 concerning mentally ill detainees. Beatson LJ, giving the judgment of the Court of Appeal, explained that a claim under the EA 2010 is distinct from a procedural unfairness claim, although they may relate to the same decision-making processes. The EA 2010 claim requires the identification of the relevant PCP, a showing that it puts the claimant at a substantial disadvantage because of his disability, and a demonstration that reasonable adjustments were not made to avoid that disadvantage.
- In the present case, the Claimant asserts that he has evidence of mental illness which impacted his ability to participate effectively in the process undertaken by the PSU. The relevant PCP for the purposes of this ground appears to be the standard PSU investigation process in relation to obtaining evidence from complainants, specifically the interaction method employed. While the Defendant's Detailed Grounds of Defence initially suggested the Claimant needed to satisfy the Court as to his disability status, the Summary Grounds had earlier conceded this point. I proceed on the basis that the Claimant is a disabled person for the purposes of the EA 2010. The Claimant submits that issues in relation to reasonable adjustments in the PSU process were specifically raised in his judicial review grounds.
- The evidence indicates that the PSU investigator adopted an adjusted approach in relation to the Claimant. Rather than requiring the Claimant to attend a face-to-face interview, the PSU investigator chose to accommodate him by allowing him to respond to questions based on the written evidence and video footage viewed by the investigating officer. The Defendant submits that this afforded the Claimant an opportunity to correct, contradict, or explain the evidence and its significance.
- The question for my determination is whether this adjustment was reasonable in the circumstances and whether it discharged the Defendant's duty under the EA 2010, or whether a failure to make further adjustments resulted in the Claimant being placed at a substantial disadvantage specifically due to his mental illness. The Claimant's argument regarding disadvantage appears to be linked, in part, to the lack of full disclosure of the PSU reports during the process. I have addressed the issue of disclosure and the Claimant's effective participation in relation to the investigation under Ground 1. The focus here must be on whether adjustments were necessary and made to accommodate the Claimant's disability in the method of interaction itself, distinct from the content of the information provided. The PSU did make an adjustment by offering written questions as an alternative to an interview. This represents a step taken to accommodate the Claimant, in recognition of potential difficulties he might face with a standard interview format, exacerbated by his circumstances and mental health issues.
- In my judgment, the Claimant has not demonstrated that the Defendant failed to make reasonable adjustments required by the EA 2010. The adjustment offered by the PSU, permitting the Claimant to respond to written questions, was, on the information before me, a reasonable step taken to facilitate the Claimant's participation in the investigation process. While the Claimant's mental health may have presented challenges to his engagement, the Defendant did not insist on a standard procedure that might have been more onerous given those challenges. The Claimant has not established that this adjustment was insufficient to avoid a substantial disadvantage arising specifically from his disability, separate from any disadvantage he may have experienced due to the extent of disclosure provided during the investigation, which was the subject of Ground 1. Accordingly, I find that Ground 2 is not made out. As the primary basis for this ground fails, there is no free-standing claim under Article 14 ECHR in this context.
Ground 3: Article 3 Investigative Duty
- The Claimant asserts that the Defendant breached the investigative duties owed under Article 3 ECHR, read alone or with Article 14 ECHR, arguing that the PSU process is incompatible with the requirement for an effective investigation into credible allegations of mistreatment. He contends that the PSU investigation did not meet the investigative requirements set out by Mrs Justice May in MA and BB, and that the PSU process lacks independence, particularly from private contractors and its location within an IRC.
- Article 3 ECHR imposes a substantive obligation to refrain from torture, inhuman or degrading treatment or punishment. It also imposes a procedural obligation on the State to conduct an effective investigation into credible allegations of ill-treatment contrary to Article 3. This obligation is parasitic on alleged substantive breaches of the Article.
- The form of investigation required is not fixed but depends on the circumstances of the case. Flexibility is required. As Lord Rodger of observed in R (L) v Justice Secretary [2009] 1 AC 588, where the victim is alive and able to act on his own behalf and give evidence, so far as any spontaneous independent investigation under Article 3 is concerned, "there is a different emphasis" and the absence of any prompt independent investigation will mainly come into play if the court is unable to determine, as a matter of fact, whether there has been any treatment prohibited by Article 3. The European Court of Human Rights in Banks v United Kingdom (2007) 45 EHRR SE15 similarly noted that in the context of Article 3, "the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred".
- The State is not required to conduct an inquiry in every case where there is an arguable breach of Article 3. Civil, criminal, and disciplinary procedures can, often or generally, be sufficient to satisfy Article 3 procedural requirements, particularly where intentional violence is not the issue. These various forms of intervention can be combined.
- The European Court of Human Rights in Banks v United Kingdom held that where applicants had brought civil proceedings and recovered damages, and some officers had been prosecuted, applications alleging breach of the investigatory obligation under Article 3 were inadmissible. The Court stated that, in the normal course of events, a criminal trial furnishes the strongest safeguards, and a civil or disciplinary remedy may be sufficient, especially where systemic failings can be included. Longmore LJ in R (MM) v Secretary of State for the Home Department [2012] EWCA Civ 626, in a dissenting judgment whose analysis of the duty under Article 3 was unanimously adopted in R (P) v Secretary of State [2010] QB 317, summarised the view of the ECtHR in Banks; if the procedural aspect of Article 3 was engaged, recourse to the ordinary processes of law available would normally be adequate. Domestic courts have considered whether a combination of processes, such as an internal investigation (like the PSU report), civil proceedings, and a reference to the Prisons and Probation Ombudsman (PPO), is sufficient to satisfy the Article 3 procedural requirements. While an in-house investigation may not be Article 3 compliant by itself, it does not deprive it of all value and can be part of a combination. Sir Anthony May P's judgment in R (MM), cited by Pill LJ, accepted that 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 in combination with other avenues. He also noted that a PPO investigation, which would on any view be Article 3 compliant, cannot be commenced if civil proceedings have been initiated, but the option of a PPO investigation once the civil proceedings are resolved remains open.
- In this case, the Claimant's complaints relate to alleged mistreatment while in detention, falling within the potential scope of Article 3. An investigation was conducted by the PSU, an internal unit responsible for such matters. The PSU issued decisions on the Claimant's complaints. The Claimant was informed of his right to appeal the PSU's decisions to the PPO. The PPO provides independent oversight of detention complaints. The PPO's jurisdiction and independence have been recognised in domestic jurisprudence, and it has been accepted that a PPO investigation, on its own, could be Article 3 compliant.
- Furthermore, it is open to a detained person alleging mistreatment to bring civil proceedings for damages. Such proceedings can involve disclosure of documents, examination of witnesses, and a determination of facts sufficient to satisfy substantive Article 3 rights. As noted in R (P), the availability of civil proceedings may be sufficient either alone or in combination with other avenues. A fully contested civil claim can determine the facts of an individual claim and grant relief sufficient to satisfy the substantive Article 3 rights.
- The Defendant argues that the combination of the PSU investigation, the right to appeal to the PPO, and the availability of civil proceedings provides a sufficient investigative framework to comply with the State's obligations under Article 3 ECHR. I accept this submission. While the PSU investigation itself might have procedural shortcomings, as addressed under Ground 1, it is a preliminary step. The overall system, including the independent oversight provided by the PPO and the robust fact-finding mechanism available through civil litigation, is capable of providing an effective investigation into credible allegations of mistreatment.
- The Claimant's arguments concerning the alleged lack of independence of the PSU and its process, while relevant to procedural fairness (Ground 1), do not, in my judgment, demonstrate that the State has failed to discharge its Article 3 investigative duty when the totality of available remedies is considered. The case law, particularly Banks v United Kingdom and its subsequent application in domestic courts, supports the proposition that a combination of internal processes, independent review (PPO), and judicial remedies (civil claims) can satisfy Article 3 requirements. This case does not, on the facts presented, appear to engage the need for a broader public inquiry into systemic issues in the way discussed in cases like R (L) v Justice Secretary or the Brook House Inquiry, which concerned widespread allegations following a disturbance. The Claimant's challenge focuses on the investigation of his specific complaints.
- For these reasons, I conclude that the Claimant has not established that the Defendant's policy or practice for investigating complaints of mistreatment, when viewed as part of the overall system of available remedies including the PPO appeal and civil proceedings, falls short of the State's investigative duty under Article 3 ECHR. This ground therefore fails.
Overall Conclusion
- In summary, I find that the Claimant has succeeded in establishing a breach of procedural fairness under Ground 1. However, the Claimant has not persuaded me that there was a breach of the duty to make reasonable adjustments under Ground 2, nor has he demonstrated that the overall system of investigating complaints of mistreatment falls short of the State's investigative duty under Article 3 ECHR, meaning that Ground 3 also fails.
END