Khosa v The Secretary of State for Justice

A claim alleging breach of Article 3 must contain sufficient particulars to enable the respondent to understand and answer the case. A bare assertion of physical and mental torture, without particulars of the alleged treatment, is too vague to proceed. An appellate court will generally not consider evidence that was available but not placed before the lower court, absent a proper application and explanation. Evidence merely showing unexplained marks, without identifying when or how they were caused, does not cure an unparticularised claim.

A serving prisoner brought proceedings alleging indecent assaults by prison officers and breaches of Articles 3, 6, 8 and 10 of the European Convention on Human Rights. The claim was initially struck out. On appeal, HHJ Saggerson reinstated eight specific indecent-assault allegations but left the Article 3 and other claims struck out.

Permission to appeal to the Court of Appeal was limited to the Article 3 claim. The central issues were whether that claim was sufficiently particularised and whether witness statements not before the lower court could be relied upon.

1. Appeal dismissed. Lord Justice Coulson held that the only issue before the court was the Article 3 claim. Lord Justice Simon agreed.
2. The pleaded Article 3 case consisted only of an assertion that the defendants had subjected the appellant to physical and mental torture over a period at the prison. No particulars were given in the List of Facts or Grounds. The claim was therefore entirely unparticularised and too vague to allow the respondent to respond or the issues to be fairly determined.
3. The judgment and order of HHJ Saggerson, read together, showed that the Article 3 claim had been treated in the same way as the other claims that remained struck out. The fact that eight specific allegations of indecent assault had been reinstated did not justify reinstating the separate Article 3 allegation.
4. It was generally inappropriate on appeal to consider witness statements that had not been before the lower judge. The appellant made no application to rely on the statements and gave no proper explanation for failing to provide them, although they had been available before the hearing. Further statements that no one had seen could not be considered.
5. In any event, the statements merely suggested that the appellant had marks on his face at an unspecified date. None of the witnesses saw how the marks were caused. Even if the statements were admitted, they did not provide proper evidence capable of supporting the unparticularised Article 3 complaint. The appeal was accordingly refused.

• Court of Appeal (Civil Division): Permission was limited to the Article 3 claim. The appeal was dismissed.
• Central London County Court: The claim was initially struck out by DDJ Travers. DDJ Skelly refused to set aside that order. HHJ Faber granted permission to appeal, and HHJ Saggerson reinstated eight specific indecent-assault allegations while leaving the Article 3 and other claims struck out.