K & Anor, R (on the application of) v Secretary of State for the Home Department & Anor

An arguable breach of Article 3 engages the State’s procedural obligation to secure an effective official investigation. The investigation required is fact-sensitive and need not take the form of a public inquiry. Where alleged ill-treatment is reported only after substantial delay, and no worthwhile police, disciplinary or ombudsman investigation remains practicable, Article 3 does not require a wide-ranging statutory or non-statutory inquiry. Civil proceedings may provide the only practicable route to determine the facts and obtain redress. Article 3 protects individual rights; it does not require an inquiry aimed principally at identifying general lessons for future detention-centre management.

The claimants were former detainees at Harmondsworth Immigration Removal Centre. They alleged that conditions and treatment during and after a serious disturbance in November 2006 arguably breached Article 3 of the Convention. Liberty notified the Home Secretary in May 2007 and sought a full public inquiry. The Home Secretary refused.

Black J granted permission on the public-inquiry ground and adjourned the remaining grounds. The issue before Mitting J was whether Article 3 required the State to establish the wide-ranging inquiry sought, notwithstanding the delay, the absence of contemporaneous complaints and the investigations already undertaken.

1. The public-inquiry claim was dismissed. The allegations were sufficient, for present purposes, to constitute arguable breaches of Article 3. That was enough in principle to engage the State’s procedural obligation to procure an effective official investigation.
2. The form of the investigation is not prescribed universally. It depends on the facts and procedures available. The obligation concerns the individual alleged victim’s ill-treatment and the need to establish the facts, expose culpable conduct where appropriate and prevent recurrence. It does not automatically require a large-scale police investigation or public inquiry.
3. The claimants had made no contemporaneous complaints to Kalyx, the police or the Prisons and Probation Service Ombudsman. The police had investigated possible offences by detainees, but not alleged assaults by detention officers. Mr Whalley’s report investigated the circumstances and lessons of the disturbance, but did not determine the claimants’ specific allegations.
4. By the time those allegations were notified, a worthwhile investigation into individual responsibility was practically impossible. The civil claims were the only practicable means of determining the facts and providing redress. The State would not therefore breach Article 3 by declining a statutory inquiry under Inquiries Act 2005, s 10, or another wide-ranging inquiry.
5. The inquiry sought concerned general lessons about Harmondsworth and other detention centres. Those wider questions belonged to public and political debate and fell outside Article 3. The court declined the declaration sought and refused to order an inquiry.
6. Permission was granted for the remaining substantive claims, which were stayed pending the proposed appeal. Any remaining witness action was to be transferred to the Queen’s Bench Division if pursued.

1. High Court (Administrative Court): Black J granted permission on the public-inquiry ground and adjourned the remaining grounds. Mitting J dismissed the tried part of the claim, granted permission on the remaining claims, stayed further proceedings pending appeal and directed that any remaining witness action be transferred to the Queen’s Bench Division.