R MG v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 20 July 2022 |
| Neutral Citation | [2022] EWHC 1847 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4057/2021 |
and
[2022] EWHC 1847 (Admin)
Mr Justice Johnson
Case No: CO/4057/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nick Armstrong and Camila Zapata Besso (instructed by Duncan Lewis) for the Claimant
Lisa Giovannetti QC and Jack Holborn (instructed by Government Legal Department) for the Defendant
Benjamin Tankel (instructed by Plexus Law) for the Interested Party
Hearing dates: 29 – 30 June 2022
Approved Judgment
The claimant seeks asylum in the United Kingdom. He was provided with accommodation by the defendant at the Park Inn Hotel in Glasgow (“the Park Inn”). Others seeking asylum, including Badreddin Adam, were also residing at the Park Inn. On 26 June 2020, Mr Adam stabbed six people, including the claimant. Mr Adam was shot dead by police. The claimant sustained a serious injury which resulted in the removal of his spleen and on-going psychological consequences.
The claimant says that the obligations that arise under article 3 of the European Convention on Human Rights (“ECHR”) (the prohibition of inhuman and degrading treatment) require the defendant to commission an independent investigation into the events which culminated in the attack. The defendant disagrees, saying that article 3 does not impose a duty to investigate these events, and, anyway, the events have been investigated by the police, are being investigated by the Scottish Fatalities Investigation Unit (“SFIU”), and the claimant could bring a civil action for damages. The claimant seeks judicial review of the defendant's refusal to initiate an investigation.
Legal framework
Asylum support
Section 95(1)(a) Immigration and Asylum Act 1999 empowers the defendant to provide support for asylum seekers who are destitute. By section 96(1)(a) such support may include the provision of adequate accommodation for the needs of the supported person. Where support is provided to a vulnerable person, the defendant must take account of that person's special needs: regulation 4(1) of the Asylum Seekers (Reception Conditions) Regulations 2005. A vulnerable person is defined in regulation 4(3). The definition encompasses “a person who has been subjected to torture… or other serious forms of psychological [or] physical… violence… [and] who has had an individual evaluation that confirms he has special needs.”
Section 6(1) of the Human Rights Act 1998 requires public authorities to act in a way that is compatible with “Convention rights”. By section 1(1)(a) of the 1998 Act, the Convention rights include articles 2 and 3 ECHR. Article 2 protects the right to life. Article 3 prohibits torture and provides that no one shall be subjected to torture or to inhuman or degrading treatment (“IDT”) or punishment.
Articles 2 and 3 have been interpreted as imposing certain positive obligations on public authorities. The adjectival descriptions of the different positive obligations are not always consistent. I will use the language of a “systems obligation”, an “operational obligation” and an “investigative obligation.” The parties agree that so far as the present case is concerned, there is no practical difference between the positive obligations that arise under article 2 on the one hand, and article 3 on the other hand.
Systems obligation: The authorities establish that:
(1) The state must put in place a system that protects life and safeguards against IDT: Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50 [2009] 1 AC 225 per Lord Bingham at [28], and MC v Bulgaria (2005) 40 EHRR 20 at [149].
(2) This systems obligation operates at different levels: Smith v Ministry of Defence [2013] UKSC 41 [2014] AC 52 per Lord Hope at [68].
(3) At a “high level”, the state must ensure that there are effective criminal law provisions to deter offences against the person, a police force to investigate such offences, and a court and judicial system to enforce those criminal law provisions: Osman v United Kingdom (1998) 29 EHRR 245 at [115].
(4) In certain situations, public authorities fall under a “lower level” duty to adopt administrative measures to safeguard life: Smith at [68].
(5) Such additional administrative measures are required in the context of any activity in which the right to life may be at stake: Öneryildiz at [71].
(6) In particular, the lower level duty arises whenever a public body undertakes, organises or authorises dangerous activities: Öneryildiz at [71]. It also arises in the context of public health and social care: Calvelli and Ciglio v Italy (2002) (Application No 32967/96), Dodov v Bulgaria (2008) (Application no. 59548/00). It also arises in cases where a public body is responsible for the welfare of individuals within its care and under its exclusive control — particularly young children who are especially vulnerable: Ilbeyi Kemaloglu and Meriye Kemaloglu v Turkey (2012) (Application no 19986/06) at [35].
(7) The contexts in which such additional measures are required therefore include hospitals ( Calvelli), prisons ( R (Scarfe) v Governor of Woodhill Prison [2017] EWHC 1194 (Admin)), the detention of mentally ill persons ( Renolde v France (2009) 48 EHRR 42 at [84]), immigration removal centres ( R (CSM) v Secretary of State for the Home Department [2021] EWHC 2175 (Admin) [2021] 4 WLR 110), military operations ( R (Smith) v Secretary of State for Defence [2010] UKSC 29 [2011] 1 AC 1), dangerous industrial activities, such as the operation of waste collection sites ( Öneryildiz at [71]) or building sites ( Pereira Henriques and others v Luxembourg (2003) (Application No 60255/00)), safety on board a ship ( Leray and others v France (2008) (Application No 44617/98)), packs of stray dogs which were known to be a public health and safety issue ( Georgel and Georgeta Stoicescu v Romania (2011) (Application No 9718/03)), derelict buildings ( Banel v Lithuania (2013) (Application No 14326/11)), road safety ( Rajkowska v Poland (2007) (Application No 37393/02)) and flooding reservoirs giving rise to a risk of drowning ( Kolyadenko v Russia (2013) 56 EHRR 2).
(8) The contexts in which the Strasbourg court has found that the systems duty applies are not exhaustive of the situations in which it may apply: Banel at [65].
(9) Where the lower level system obligation arises, the public authority must implement measures to reduce the risk to a reasonable minimum: Stoyanovi v Bulgaria (2010) (Application No 42980/04) at [61]. The content of this duty depends on the particular context and what is required adequately to protect life. It may involve ensuring that competent staff are recruited, that they are appropriately trained, that suitable systems of working are in place, that sufficient resources are available and that high professional standards are maintained. It may also involve regulatory measures to govern the licensing, setting up, operation, security and supervision of the activity in question, together with procedures (depending on the technical aspects of the activity) for identifying shortcomings in the processes concerned and any human error: Öneryildiz at [89] – [90].
(10) In interpreting and applying the systems obligation, the court must not impose an impossible or disproportionate burden on public authorities, and must have regard to the operational choices made by public authorities in terms of priorities and resources: Osman at [116].
Operational obligation: The authorities establish that:
(1) An operational obligation arises where a public authority knows or ought to know of the existence of a real and immediate risk of IDT from the criminal acts of a third party: Osman at [116], Z v United Kingdom (2002) 34 EHRR 3.
(2) In deciding what a public authority “ought to know” a court should take account of risks that the public authority ought to have appreciated on the information it had available: Van Colle per Lord Phillips CJ at [86]. It might also extend to risks that the public authority would have appreciated if it had carried out reasonable enquiries: Van Colle per Lord Bingham at [32].
(3) Serious physical assaults causing significant harm amount to IDT for these purposes: Šecic v Croatia (2009) 49 EHRR 408 at [50] – [51], DSD v Commissioner of Police of the Metropolis [2018] UKSC 11 [2019] AC 196 per Lord Neuberger at [128].
(4) A risk may be “real” if it is substantial or significant, but not if it is remote or fanciful: Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 per Lord Dyson at [38].
(5) A risk that is “present and continuing” may amount to an immediate risk: In re Officer L [2007] UKHL 36 [2007] 1 WLR 2135 per Lord Carswell at [20].
(6) In practice, in cases involving risk due to the criminal acts of someone who is not a state-agent, the level of risk required to cross the “real and immediate” threshold is very high: Van Colle per Lord Brown at [15], G4S Care and Justice Services Ltd v Kent County Council [2019] EWHC 1648 (QB) at [74] – [75], R (Kent County Council) v HM Coroner for the county of Kent [2012] EWHC 2768 (Admin) at [44] – [47], and compare the facts of Osman and Van Colle.
(7) In assessing whether there was a real and immediate risk, the court must only take account of that which was known, or ought to have been known, by the public authority. Hindsight must be left out of account: Mitchell v Glasgow City Council [2009] UKHL 11 [2009] 1 AC 874 per Lord Hope at [33].
(8) It is not necessary that the identity of the target of the risk is identifiable in advance of the risk materialising: Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252 [2014] QB 411 per Lord Dyson MR at...
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The Home Office v ASY and Others
...and “procedural/investigative”, helpfully set out with reference to relevant authorities by Johnson J in the case of MG v SSHD [2022] EWHC 1847 at [6] to [8]. The “procedural” obligation contended for by the Claimants in the present case appears to me to fall into the “low-level systems” ca......