R(K) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Sedley,Lord Justice Longmore,Lord Justice Elias
Judgment Date17 March 2009
Neutral Citation[2009] EWCA Civ 219
Docket NumberCase No: C4/2008/1754
CourtCourt of Appeal (Civil Division)
Date17 March 2009
The Queen on the Application of Am & Others
Secretary of State for the Home Department
1 st Respondent
Kalyx Limited
2 nd Respondent
Bail For Immigration Detainees

[2009] EWCA Civ 219


Lord Justice Sedley

Lord Justice Longmore and

Lord Justice Elias

Case No: C4/2008/1754





Mr Justice Mitting

Insert Lower Court NC Number Here

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Jessica Simor and Ms Samantha Knights (instructed by Liberty) for the Appellants

Mr James Eadie QC and Ms Kate Gallafent (instructed by Treasury Solicitors) for the 1 st Respondent

Mr Jim Sturman QC and Mr Jamas Hodivala (instructed by Messrs Devonshires) for the 2 nd Respondent

Mr Daniel Squires (instructed by Messrs Allen & Overy) for the Intervenor

Hearing dates: Thursday 5 and Friday 6 February 2009

Lord Justice Sedley

Lord Justice Sedley :


Article 3 of the European Convention on Human Rights provides:

No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.


Article 2 of the Convention begins:

Everyone's right to life shall be protected by law.


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

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


It is also well established that an analogous duty is created by art. 3 where credible evidence suggests that one or more individuals have been subjected by or with the connivance of the state to treatment sufficiently grave to come within the article. The issue in this appeal is whether, on the evidence before the court about the disturbances at Harmondsworth Immigration Detention Centre in late November 2006, this obligation was engaged and, if engaged, discharged. A major aspect of this issue is whether there are differences of kind as well as of degree between the art. 2 obligation and the art. 3 obligation.


In a carefully reasoned but not unproblematical judgment, [2008] EWHC 11598 (Admin), Mitting J held that, but for the fact that the state had been alerted too late, the duty would have been engaged. The claimants appeal against the dismissal of their claim; the Home Secretary cross-appeals against the finding that the duty of investigation was in any event not fulfilled.


Kalyx Ltd, the second respondent, manages the Centre on behalf of the Home Office. It is accepted by both respondents that in doing so it is deploying the state's powers and discharging the state's obligations. It is also common ground that those held at the Centre are not serving custodial sentences but are in administrative detention pending a lawful disposal. The establishment is required by the Detention Centre Rules 2001 to “provide for the secure but humane accommodation of detained persons in a relaxed regime”.


The facts which are assumed for present purposes (because they are untested allegations) include the following:

7.1 In the period before the disturbances of 28–29 November 2006, there was a culture of oppression, bullying, violence and neglect, much of it confirmed by a report of the Inspector of Prisons, Anne Owers, compiled in July 2006 and published, coincidentally, on the first day of these disturbances.

7.2 In consequence of a disturbance which broke out in B wing during the evening of 28 November 2006, uninvolved detainees (including the claimant AM) were first kept in confinement while water from the sprinkler system entered their cells, then ordered out into the exercise yard in the cold while many of them were still wet, then readmitted and locked into cells. There AM and others were affected by smoke from a fire started by other inmates in an adjacent room; others were soaked by the sprinklers; there was reduced ventilation and, for many, a complete absence of toilet facilities. Some inmates spent well over 12 hours in these conditions without food or water. Two of the claimants, HM and LM, were assaulted by detention officers or rapid response personnel.

7.3 The dispersal of detainees which followed was in many cases carried out callously; some were transported long distances without their belongings.


It was not suggested on behalf of the Home Secretary that these events did not need to be taken seriously. Indeed it was a major element of the case advanced by James Eadie QC on her behalf that the Home Office had done exactly that by appointing a retired civil servant, Robert Whalley CB, to inquire into the disturbance and to report. It will be necessary to consider to what extent, if at all, his status and remit met the requirements of art.3. Mitting J (§30) took the view that the remit was insufficiently claim-specific; but in my judgment this was not the major problem with the Whalley investigation.

Kalyx's knockout submission


Before Mitting J, however, and again before us, Jim Sturman QC for Kalyx – but not Mr Eadie for the Home Secretary —has contended that none of the evidential material is capable, even if accepted, of crossing the threshold of art. 3. For this reason he submits not only that the present claim for an inquiry fails but that the individual claims for damages which by order of Black J stand adjourned should also be dismissed. His grounds are summarised in his skeleton argument in this way:

i. Although his Lordship exercised discretion in determining that the claims were arguable under Article 3, the facts of this case are far removed from virtually every other case involving claims under Article 3. No other case could be found in which efforts to control widespread rioting started and maintained by detainees arguably violated the Article 3 rights of other innocent detainees;

ii. There is only tenuous evidence of direct and positive action which arguably violated any of these Appellants' Article 3 rights. Otherwise the complaint under Article 3 is the failure to act in a particular way during the course of a disturbance started and maintained by third parties;

iii' To hold that these Appellants arguably raise issues under Article 3 (where none of the Appellants actually sustained any injuries during the course of the disturbance) creates a precedent that would adversely impact on any public authority which is engaged in controlling public order. The threshold has been set far too low by Mitting J. in this case.

iv. The effect of that low threshold is to remove much of the relevant minister's discretion under the Inquiries Act 2005, as there would arguably have to be some form of public inquiry in every case in which the management of public order is criticised by those innocently caught up in that disorder (from disorder at football matches to riots and disturbances within and outside a place of detention), particularly in a prison or detention centre environment. That would potentially result in a huge diversion of time and resources in terms of negative policing of public order as well as state-funded inquiries.

v. Further or alternatively, this matter ought properly to be considered by the Court of Appeal when considering the Appellants' ground of appeal.


I will come in due course to the problem of demanding an investigative sledgehammer to crack a possibly modest nut. But Mr Sturman's oral submissions served if anything to illustrate how much there was, in principle, to inquire into. He pointed to the undisputed evidence of his witness Mr Gomersall that no detainee had taken the opportunity to give evidence to the Whalley inquiry; but, as Jessica Simor for the appellants pointed out in response, what Mr Gomersall had asked the Home Office to do was “to randomly select 5 or 6 detainees rather than advertising to all if you would find that easier”.


Mr Sturman went on to point to Mr Gomersall's evidence that detainees were “not normally locked in”; but had at once to accept that this was a contested question, as well as that the rapid response unit had locked up uninvolved detainees. If there was a fire, as there was, then there was necessarily going to be water: the claimants, submitted Mr Sturman, could not complain of both. But there were very plainly complaints, which were not visibly inconsistent, about failures to protect detainees adequately from either.


All of this, and much else besides (including the report of the Chief Inspector of Prisons), far from supporting Mr Sturman's claim to have an irrefutable answer to any allegation that art. 3 had been violated, showed how real the issues were. We did not find it necessary to hear Ms Simor in response.

The question of time


For the rest, Mitting J would evidently have granted a mandatory order for an inquiry had it not been that, in his view, by the date (21 May 2007) when the letter before action was sent by Liberty's in-house solicitor to the Home Office it was too late for a useful inquiry to take place. This was not a point which had been taken by the Home Secretary.


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