MM and AO (A Child), R (on the application of) v Secretary of State for the Home Department  EWCA Civ 668 (18 May 2012)
This case adds to pre-existing UK and European authority about the circumstances in which an investigation of an allegation of torture or ill-treatment will be required. In this particular case, an intervention to stop a protest at an immigration detention centre caused such physical and psychological harm that a claim of ill-treatment was raised. The question was thus to what extent, especially in cases involving children, an independent investigation was required beyond procedures already in place.
The claimants in this case, a child with her mother and a man with his family, were unsuccessful asylum applicants awaiting deportation at Yarl’s Wood Detention Centre in June 2009. At that time, there were serious complaints about the living conditions at the detention centre, particularly as regards the adequacy of food and medical facilities. As such, the detainees started protesting, culminating on 16 June 2009 with a “sit in”, where detainees moved their mattresses out into the corridors and refused to move until someone came to speak with them and address their concerns.
An 18-person team met to devise a way to stop the protest, and it was decided that an intervention would be staged to move named adults out to one containment area and their children to a classroom. During the intervention on 17 June, a number of children and parents became quite upset at their separation, particularly two children, who were later calmed down. The children and their parents were then kept apart for a significant period, in some cases over a week.
This separation, and the level of violence used in removing the detainees from the corridors, gave rise to claims of ill-treatment, contrary to article 3 of the European Convention on Human Rights. This article contains the absolute prohibition of torture and ill-treatment.
On 29 June, the claimants wrote to the UK Border Authority, complaining about their treatment. This was investigated by the Authority’s Professional Standards Unit, who obtained statements from nine families, amongst other evidence. It concluded that the intervention was necessary and gave reasons why. The intervention was also the subject of an independent Justice Care report, prepared on behalf of the claimants, which criticised many aspects of the planning and execution of the intervention.
The appellants have also made civil claims, and the Prisons and Probation Ombudsman is investigating, although the Ombudsman’s investigation must be put on hold whilst the civil claims proceed.
Several UK and European Court cases, such as Banks v UK  and R(AM) v Secretary of State  UKHRR 973, have found that inherent in the prohibition provided by article 3 of the European Convention is an obligation on states to investigate suspected breaches of article 3.
In oral argument the Secretary of State accepted that there was sufficient evidence to consider a case under article 3, based on the allegations in the Justice Care Report. This then enlivened the procedural obligation to investigate, and as such the question was whether this obligation to investigate had been fulfilled by the reports, inquiries and legal claims outlined above.
Sir Anthony May P found at first instance that the civil claim brought by the claimants would require a court to investigate and decide upon their article 3 claim, and thus this would constitute a sufficient investigation. The scope of the civil case would be no different from what the Ombudsman, or another independent investigator, would consider. If the civil claim and Unit report were insufficient, the Ombudsman plainly had broad enough jurisdiction so as to adequately investigate the incident at Yarl’s Wood.
The Appeal Court generally supported the findings of Sir Anthony May P, both as to fact and law and found that
An application must be considered on its merits, having regard to the nature, scale and consequences of the incident, the likelihood of recurrence, and the existence of other investigations conducted or available. The costs involved in a further investigation may also be taken into consideration as a factor.
His Honour did not discuss in detail the “nature, scale and consequences of the incident”, aside from considering whether the duty to children in this case gave rise to a greater duty to investigate. It was submitted that, as is the case with the obligation to investigate breaches of article 2 (right to life), the obligation to investigate is greater in cases involving children.
As to the likelihood of recurrence, it was also emphasised by the applicants that the situation at Yarl’s Wood could be repeated elsewhere, and that lessons needed to be learned in planning a future such intervention. The regime regarding children’s migration detention has changed since 2009, and as such it is unlikely the exact situation would arise again. His Honour accepted that it was still necessary to take general lessons away from the Yarl’s Wood investigation, but that many forms of investigation would be able to produce this result.
Accordingly, the main question at issue in this case was whether the other investigations — the Unit report, the Justice Care report, the civil claim and the possibility of Ombudsman investigation — were sufficient.
The Unit investigation was found to be valuable given its promptness, thoroughness and the fact that it marshalled a large amount of evidence. Whilst the investigation was not independent of government (as the Unit sits within the Authority) and thus did not meet the article 3 requirement by itself, his Honour found it to have “significant relevance”.
The civil claims were equally found to be “relevant”, as a means of both investigating what happened and learning lessons for the future. The merit of this process is that there is an independent judge, and whilst it is an investigation of the situation of the specific claimants, it will inevitably involve a consideration of the planning and conduct of the intervention. The prospect was raised that this matter might settle before an investigation was carried out, thereby undermining its effectiveness (especially as it would be the litigation friend of a child who would make this decision, and thus the child’s voice would not be heard). His Honour found that whether the claim proceeds to final judgment or not “may be a factor in a subsequent decision as to what, if any, further investigation is required”, but the possibility of the claim settling in the future does not impact upon the current application.
Regardless of the outcome of the civil claim, the Ombudsman may also decide to investigate, and this investigation would be independent with a large volume of evidence available to it. The fact that this possibility has been deferred because of the civil claims does not undermine its adequacy. His Honour made reference to the fact that it was the claimant’s own decision to bring a civil claim that had deferred the Ombudsman’s investigation, and stated that the “exercise of choice does not in present circumstances convert something sufficient into something insufficient”.
As such, the combination of the Unit report, the Justice Care report and the civil proceedings did not currently give rise to a further obligation to investigate.
Relevance to the Victorian Charter
Article 10 of the Victorian Charter contains an equivalent provision to article 3 of the European Convention, prohibiting torture and cruel, inhuman or degrading treatment or punishment. The Victorian provision is phrased more broadly, but otherwise reflects the obligations contained in the European Convention and other instruments prohibiting torture.
This case will thus be relevant to instances of alleged torture or ill-treatment in Victoria, whether in the context of detention or otherwise.
This case will not, however, be relevant in the immigration detention context unless Victoria Police or another state body are involved.
The decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2012/668.html
Laura Bellamy is a law graduate at Allens.