State Obligation to Conduct Public Investigation into Potential Violations of the Right to Life and Prohibition against Ill-Treatment

AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009) The UK Court of Appeal has affirmed that the government has an obligation to conduct an independent investigation where there is credible evidence of a potential breach of arts 2 (right to life) and 3 (prohibition against ill-treatment) of the European Convention on Human Rights.

Facts

In November 2006, a disturbance broke out at the privately-operated Harmondsworth Immigration Detention Centre regarding the treatment of detainees.  Detainees not involved in the disturbance were allegedly subject to ill-treatment amounting to a breach of art 3 of the European Convention due to the manner in which the disturbances were managed and controlled.

In May 2007, the Appellants wrote to the Home Secretary alleging that the Centre's operators had infringed their art 3 rights during the management of the disturbance, and calling for a 'full public inquiry' into the underlying cause and the treatment of detainees.  The state has a well-established obligation to instigate an official investigation where there is credible evidence of a breach of art 2, or credible evidence that one or more individuals have been subjected by, or with the connivance of, the state to treatment sufficiently grave to fall within art 3.

At first instance it was held that, but for the fact that the state had been alerted too late, the Home Secretary's investigatory obligation would have been engaged and unsatisfactorily discharged.  The Appellants appealed.  The Home Secretary and the Centre operator cross-appealed against the finding that they had not fulfilled their duty of investigation.

Decision

By majority, the Court of Appeal held that the Home Secretary ought to have conducted an independent public inquiry when the Appellants alerted him to the possibility that their art 3 rights may have been infringed.  The Court of Appeal held that the High Court had erred in finding that the claim had been made too late and granted declaratory relief.

Purpose and scope of investigation

Fulfilling the obligation to investigate must involve informing the public of 'what may have gone wrong' in order to maximise future compliance with art 2 and 3.  Here, the Court was divided as to whether the scope of the investigation extended beyond the particular allegations brought by the Appellants so as to require a broader inquiry into the circumstances leading up to the disturbance and its underlying causes.

Sedley LJ held that the obligation should extend to include an appraisal of the Centre's management, institutional culture and systems.  Such issues were not reserved for public and political debate only.

By contrast, Longmore and Elias LJJ held that the obligation did not extend to wider investigation as sought by the Appellants.  Elias LJ agreed that although the purpose of the investigation was to learn lessons for the future, the focal point of the investigation must still be on 'the immediate reasons surrounding the death or ill-treatment' (at [108]).  His Honour nevertheless concluded that the obligation was triggered in this instance, based on the wide range of mistreatment alleged by the Appellants.

Ambit of issues to be considered in determining whether to conduct public inquiry

Whether a public inquiry is required is a fact-sensitive question that must be determined on a case-by-case basis.  Civil and/or criminal proceedings may sufficiently discharge the obligation.  The question in this case was whether the state, in making that determination, should consider the full circumstances of the incident of which it had knowledge (including previous reports of a culture of oppression), or only the specific allegations of art 3 breach brought by the Appellants.

Sedley LJ suggested that the state should consider the full circumstances of the breach in determining whether a public inquiry is required.  In his Honour's view:

"The degree of involvement or suffering of the particular claimants - unless they were to found a submission that they are mere meddlers who lack standing - are largely irrelevant.  What matters is whether the entirety of what they have brought to the court's attention requires, or at least at some point required, the Home Secretary to set up an inquiry."  (at [35])

Elias LJ disagreed that the individuals' particular suffering is irrelevant and emphasised that the obligation 'is parasitic on alleged substantive breaches of the Article ... The nature of that obligation is inextricably linked to the specific nature of the alleged breaches' (at [91]).  In this case, however, his Honour characterised the alleged substantive breach as comprising the whole range of treatment of which the state had notice (at [88]).

Longmore LJ did not agree that a public inquiry was required whenever allegations of systemic breach were made.  The state must be able to exercise discretion, particularly given the resources required for a full scale inquiry.  His Honour held that in this case the state was entitled not to hold a public inquiry as the obligation was discharged by 'ordinary processes of law'.  It is unclear, however, to what extent Longmore LJ considered that prior allegations of systemic violation of art 3 should inform the state's consideration of whether a public inquiry is required.

Minimum requirements of an investigation

The Court confirmed earlier formulations of the minimum requirements of any investigation - namely, the investigation should:

• identify and punish those responsible;
• be independent and impartial;
• be effective in the sense that it is capable of leading to a determination of whether force was justified;
• be thorough; and
• permit access by complainants to the procedure.

The state should consider these minimum requirements in assessing whether a public inquiry is required.

In light of these minimum requirements and the scope of issues which, in their view, the Home Office should have taken into consideration, Sedley and Elias LJJ held that neither civil or criminal proceedings, nor the Home Office's independent inquiry, were sufficient to discharge the obligation in the present case.

Differences between procedural obligation under Articles 2 and 3

The Court found there were no substantive differences between the content of the procedural obligation under arts 2 and 3.  The only practical difference is that victims of a breach of art 2 are unable, by definition, to advance their own case, whereas art 3 victims may seek direct recourse to law.  As a consequence, it is more likely that a public inquiry will be required to discharge the obligation in art 2 cases.

Relevance to the Victorian Charter

The right to life and prohibition against ill-treatment are protected by ss 9 and 10 of the Victorian Charter.  This decision assists in defining the nature and scope of the state's obligation to investigate alleged breaches of these rights and the scope of issues which should be considered when determining whether to instigate a full public inquiry.  The majority judgments will offer particular guidance on this question where there are allegations of systemic breaches of these rights.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/219.html.

Stephanie Chu, Human Rights Law Group, Mallesons Stephen Jaques