AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors

Credible allegations of serious ill-treatment in state custody may require an independent investigation under article 3 of the European Convention on Human Rights. The form and scope of the investigation depend on the circumstances. Civil, criminal or disciplinary proceedings will often suffice, but they may be inadequate where allegations concern systemic methods of managing detainees and the victims cannot readily identify those responsible.

The investigation must remain focused on particularised allegations of prohibited treatment. Article 3 does not authorise a general inquiry into wider political questions or every underlying cause of an institutional disturbance. Delay may justify withholding a mandatory order, although the court may declare that the investigative obligation was breached.

Three immigration detainees alleged that, during disturbances at Harmondsworth Immigration Detention Centre, they were assaulted or subjected to prolonged confinement, cold, smoke, water, lack of food and inadequate sanitation. They sought judicial review of the Home Secretary’s failure to establish an independent investigation compliant with article 3 of the European Convention on Human Rights.

Mitting J held in [2008] EWHC 11598 (Admin) that an investigation had been required but dismissed the claim because the allegations had emerged too late for a useful inquiry. The detainees appealed. The Home Secretary cross-appealed, contending that civil proceedings, possible criminal investigation and an internal Home Office inquiry discharged any procedural obligation.

The central questions were whether the allegations triggered an article 3 investigative duty, whether existing procedures fulfilled it, and whether effective relief remained possible.

1. Appeal allowed to the extent of granting declaratory relief; cross-appeal dismissed. Sedley and Elias LJJ formed the majority on the disposition. The Home Secretary ought to have instituted an independent investigation when sufficiently particularised allegations were presented in May 2007. By the time of the appeal, an effective investigation was no longer practicable, so no mandatory order was appropriate.

2. The alleged assaults and the conditions imposed during the disturbance were capable of constituting inhuman or degrading treatment. That conclusion did not depend on proof of an intention to humiliate. Serious incidental or unintended suffering may cross the article 3 threshold.

3. An article 3 investigation must be initiated when the authorities know or ought to know of an arguable breach. Its form is fact-sensitive. It must be effective and thorough, be practically and institutionally independent, permit appropriate participation by complainants and contain sufficient public scrutiny. Ordinary criminal, civil or disciplinary processes will often meet those requirements.

4. Those ordinary processes were insufficient here. The complainants were detained and vulnerable. Their allegations concerned both individual assaults and systemic methods used to manage the disturbance. Numerous officers had participated, making identification of individual wrongdoers especially difficult. The departmental inquiry conducted by Mr Whalley neither addressed the alleged ill-treatment nor possessed the necessary appearance of independence.

5. The majority’s narrow common position limited the required investigation to specific, particularised allegations and their immediate circumstances. It could examine relevant policies, procedures and methods of managing the disturbance. It did not extend to a general inquiry into why the disturbance occurred, the detention system as a whole or broader political questions.

6. Longmore LJ dissented. He considered that available criminal and civil proceedings sufficiently discharged article 3 and that the Home Secretary’s refusal to hold a public inquiry fell within her proper discretion.

1. Court of Appeal (Civil Division): By a majority, allowed the detainees’ appeal to the extent of declaring that the Home Secretary had failed to meet the article 3 investigative obligation. It dismissed the cross-appeal and refused a mandatory order because an effective investigation was no longer practicable: [2009] EWCA Civ 219.
2. High Court, Administrative Court: Mitting J held that an article 3 investigation had been required and that the existing processes did not fulfil the obligation, but dismissed the claim because a useful investigation was no longer practicable: [2008] EWHC 11598 (Admin).