M, R (on the application of) v Secretary of State for Home Department

The procedural obligation under Article 3 of the European Convention on Human Rights is fact-sensitive and pragmatic. It may be satisfied by existing procedures, including civil proceedings alone or combined with an internal investigation and an ombudsman process. A separate independent public inquiry is not invariably required. The court must assess whether the available processes can establish what happened, determine whether treatment was justified, identify responsibility, and address the issues raised by the arguable breach. A non-independent internal investigation may retain substantial evidential value when combined with other procedures. An arguable Article 3 breach requires both treatment reaching the necessary severity and an offending cause. A bare assertion or evidence of psychological consequences does not necessarily trigger an immediate duty to establish a separate investigation where the alleged offending conduct remains unsubstantiated.

The claimants were detained with their families at Yarl’s Wood Immigration Removal Centre. Following a protest on 17 June 2009, detention officers intervened, using force and separating children from their parents. The claimants alleged breaches of Article 3, including inadequate planning and protection of children.

UKBA’s Professional Standards Unit investigated and produced a detailed report. The claimants also commenced civil proceedings claiming damages under the Human Rights Act 1998 and referred complaints to the Prisons and Probation Ombudsman. The Secretary of State accepted that the second claimant had an arguable Article 3 claim, but contended that the combination of the PSU investigation and civil proceedings was sufficient. The central issue was whether a mandatory order requiring a separate independent investigation was necessary.

1. Article 3 obligation. Once an arguable breach of Article 3 is established, the State must secure an effective investigation. The form of investigation is not fixed. It depends on the facts, the procedures available, and the minimum requirements of independence, effectiveness, thoroughness and access identified in R (AM) v Secretary of State for the Home Department [2009] EWCA Civ 219.
2. Combination of procedures. Civil proceedings may, in appropriate circumstances, provide an Article 3-compliant investigative structure, alone or in combination with other procedures. A non-independent internal investigation is not thereby worthless. The PSU report had gathered and preserved relevant evidence, considered the planning and execution of the intervention, and identified the officers and decision-makers involved.
3. Application. The civil claims required determination of the same matters as an Article 3 investigation, including whether the intervention was unjustified, inadequately planned or executed, and failed to protect the second claimant’s welfare. The court rejected the argument that the civil proceedings were confined to individual damages claims or could not address systemic issues. The Ombudsman’s terms of reference also extended to the management, care and treatment of immigration detainees, including the intervention and its immediately surrounding facts.
4. Relief and timing. The combination of the PSU investigation and the live civil proceedings fulfilled the investigative obligation. There was no good reason to require a separate ad hoc inquiry. The claimants’ request for a declaration that the Secretary of State acted unlawfully in July or August 2009 also failed. At that time the alleged offending cause was neither obvious nor sufficiently established. Article 3 requires an offending cause as well as consequences of the requisite severity, and the PSU investigation was entitled to examine whether such a cause existed.
5. The claims were dismissed. Consequential matters, including costs, were to be addressed by written submissions.

First-instance judicial review proceedings in the Administrative Court. Permission to apply was granted by McCombe J on 29 April 2010. The claims were dismissed by Sir Anthony May.