MM and AO (A Child), R (on the application of) v Secretary of State for the Home Department

An arguable breach of Article 3 engages a procedural duty to consider what investigation is required, but it does not routinely require a prompt public or independent inquiry, even where children are affected. The court must assess the nature, scale and consequences of the incident, the likelihood of recurrence, investigations already undertaken or available, and the cost of further investigation. A thorough non-independent investigation may retain significant value. Civil proceedings, criminal or disciplinary processes, and an ombudsman investigation may operate alone or in combination. The duty focuses on alleged ill-treatment and closely related planning and management issues. Wider political questions fall outside it. The state need not provide parallel avenues merely because a claimant chooses civil proceedings.

MM and AO, a child represented by her mother and litigation friend, were detained at Yarl’s Wood Immigration Removal Centre during a protest. An intervention separated children from parents and allegedly involved inadequate planning, excessive force and serious distress. A Professional Standards Unit investigation was conducted, and the claimants commenced civil proceedings.

The Divisional Court, in [2010] EWHC 3541 (Admin), refused a mandatory order and declaration requiring an independent Article 3 investigation. The appeal concerned whether the presence of children, the seriousness of the incident and the alleged defects in planning required a prompt independent inquiry, despite the existing investigation, civil claims and possible Prisons and Probation Ombudsman investigation.

Appeal dismissed. Lord Justice Pill gave the judgment, with Lord Justices Patten and McFarlane agreeing.

1. Once evidence raises an arguable case of substantive ill-treatment, the procedural obligation under Article 3 of the European Convention on Human Rights is engaged. Whether a further independent investigation is required is fact-sensitive. Relevant considerations include the nature, scale and consequences of the incident, the likelihood of recurrence, investigations already conducted or available, and the cost of further investigation. The involvement of children does not make an independent inquiry routine.
2. Article 3 procedural requirements are generally less onerous than those under Article 2. Civil, criminal, disciplinary and ombudsman processes may satisfy the obligation alone or in combination. An internal investigation which is not independently compliant may nevertheless provide valuable evidence and preserve material for later proceedings.
3. The investigation must focus on the alleged ill-treatment and matters sufficiently closely connected with it, including relevant planning, management and institutional issues. It need not extend to wider political questions, such as whether children should be detained or removed. The court relied on Banks v United Kingdom application no. 21387/05, R (AM) v Secretary of State [2009] UKHRR 973, R(P) v Secretary of State [2010] QB 317 and R (on the application of Mousa) v Secretary of State [2010] EWHC 3304 (Admin).
4. Here, the PSU investigation was thorough and had promptly preserved substantial evidence. The civil proceedings required investigation of the planning and conduct of the intervention, while a PPO investigation remained possible after those proceedings. The claimants’ choice to commence civil proceedings did not make the existing combination of processes insufficient. The possibility of settlement did not itself require a declaration or parallel investigative system.

The events did not require an immediate independent inquiry in 2009, and the subsequent material did not create a present need for one. The mandatory order and declaration were therefore refused.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the refusal of mandatory and declaratory relief.
• Queen’s Bench Division, Divisional Court: Sir Anthony May P, in [2010] EWHC 3541 (Admin), held that the existing PSU investigation and civil proceedings satisfied the Article 3 investigative obligation, with a PPO investigation remaining possible.