DD v Secretary of State for Home Department

For Article 3 purposes, the severity of treatment cannot be assessed solely by its effect on the individual. The court must consider the nature and legitimacy of the measure, its purpose, necessity and proportionality, available alternatives, the manner of execution, and the medical or other care provided. Mental illness and vulnerability may make otherwise tolerable measures degrading or inhuman, requiring particular care and reasonable adjustments. However, severe effects do not automatically require release where the measure is a legitimate, necessary and proportionate response to a serious risk. A breach may arise from inadequate treatment or insensitive management of the measure. On the assumptions required for this preliminary issue, the TPIM, including electronic monitoring, remained below the Article 3 threshold.

DD challenged the revival of a Terrorism Prevention and Investigation Measure on 3 July 2014. He argued that the TPIM, considered cumulatively and in light of his schizophrenia or schizoaffective disorder and post-traumatic symptoms, subjected him to inhuman or degrading treatment contrary to article 3 of the ECHR, and therefore breached section 6 of the Human Rights Act 1998.

The preliminary issue was determined before the substantive TPIM appeal. The parties agreed, for this issue, that the national-security risk was accurately assessed and that the TPIM and its conditions were necessary and proportionate to that risk. The central questions were whether the effects of the TPIM, particularly the GPS tag, crossed the article 3 threshold, and whether its management and provision of medical care were deficient.

1. Article 3 test. Article 3 is absolute once a breach is established, but the existence of a breach is assessed in all the circumstances. Relevant matters include the nature and legitimacy of the treatment, its purpose and intent, necessity, proportionality, available alternatives, its physical and mental effects, the manner of execution, and the medical care provided. The assessment cannot focus solely on the claimant’s subjective suffering.
2. Vulnerability and mental illness. A measure acceptable for a person in sound mental health may breach article 3 when imposed on a mentally ill or otherwise vulnerable person. Authorities must provide requisite care and adapt the manner of execution where necessary. The fact that a measure causes serious deterioration does not automatically require release if the measure remains legitimate, necessary and proportionate; suitable treatment or other protective arrangements may instead be required.
3. Application to the TPIM. The evidence established that the TPIM exacerbated DD’s mental illness and caused severe, fluctuating anguish. The GPS tag was particularly distressing because it became the focus of paranoid delusions. Nevertheless, on the agreed assumptions, the TPIM was a legitimate and necessary measure proportionate to the national-security risk. The court could not determine at this preliminary stage whether lesser or alternative measures would adequately address that risk.
4. Management and care. The Secretary of State had to provide the treatment required while DD remained subject to the TPIM, including appropriate psychiatric care and community support. The TPIM also had to be administered with greater speed and sensitivity than would be required for a person in good health. The delay concerning the computer, the reporting requirement, the cash restriction and the exclusion area did not, individually or cumulatively, cross the article 3 threshold on the evidence.
5. The GPS tag was the most severe restriction, but its effects, considered with the other conditions and the requisite medical care, remained below the high article 3 threshold. The application was dismissed.