R (MA and BB) v Secretary of State for the Home Department

This judgment applies the established Article 3 investigatory duty to allegations of systemic ill-treatment at Brook House IRC shown on a BBC Panorama programme. The court recognised that an effective Article 3 investigation must be independent, thorough, capable of identifying culpable conduct, permit effective access for victims and secure learning to reduce recurrence. The court concluded that, on the facts of this case, the Prisons and Probation Ombudsman’s bespoke Special Investigation must be afforded three particular powers from the outset: (i) a power to compel witnesses to attend and produce evidence, (ii) the power and funding to hold such hearings in public as are necessary to secure adequate public scrutiny, and (iii) properly funded representation for the two claimants so they can participate effectively.

The decision rested on material factors: the multiplicity and egregious character of the alleged ill-treatment, the involvement of managers and medical staff, evidence of collusion and non-reporting, prior investigations which did not afford complainants adequate participation, and a realistic probability that former staff would not attend voluntarily. The court rejected a mere “wait-and-see” approach and ordered that the PPO’s investigatory powers be augmented now so the Article 3 duty can be discharged.

The claimants (MA and BB), former detainees at Brook House Immigration Removal Centre, challenged the adequacy of investigatory arrangements made following a Panorama broadcast showing covert footage of staff mistreatment of detainees. MA and BB, supported by the EHRC, sought judicial resolution of whether the Secretary of State’s duty under Article 3 ECHR to investigate had been met and, if not, whether the Prisons and Probation Ombudsman’s Special Investigation needed additional powers.

The litigation followed earlier urgent proceedings and multiple inquiries and reviews (including the Home Office Professional Standards Unit, a Sussex Police investigation, the Lampard report for G4S, and other reviews). The Secretary of State accepted an investigatory duty but submitted that the PPO’s ordinary methods, tailored to the case, together with existing enquiries, could discharge the duty and that further powers could be provided later if necessary.

The court framed the issues as whether an effective Article 3 investigation here required: (i) a power to compel witness attendance and production of documents; (ii) the ability to hold some hearings in public to secure sufficient public scrutiny; and (iii) properly funded legal representation for the claimants to enable effective participation.

In reasoning the court applied the established Article 3 investigatory requirements (as explained in authorities such as AM, Al-Skeini and Edwards) and examined the factual matrix: repeated and open abuse captured on film, involvement of supervisory staff and medical personnel, evidence of concealment and failures of local oversight, and the limited participation available to complainants in earlier inquiries. The court found a realistic and substantial risk that relevant former staff would not attend voluntarily, and that private processes would be unlikely to expose the full facts, identify systemic causes or provide appropriate restorative engagement for victims.

The court therefore held that to discharge the Article 3 duty in this case the PPO must have from the outset the power to compel witnesses, the power and funding to hold public hearings where required, and funding to secure legal representation for MA and BB so they can see and comment on evidence and propose lines of enquiry. The court declined a deferential “wait-and-see” approach and indicated that the powers could be augmented immediately (including by conversion under s.15 of the Inquiries Act 2005) so the Special Investigation can be Article 3-compliant.

The court ordered that the Prisons and Probation Ombudsman’s Special Investigation must, to satisfy the Secretary of State's Article 3 investigatory duty in these circumstances, have (i) a power to compel attendance of witnesses and production of documents, (ii) the power and funding to hold hearings in public as necessary to secure adequate public scrutiny, and (iii) properly funded legal representation for the claimants to enable effective participation. The court rejected a 'wait and see' approach and required those powers to be available now so the investigation can fully discharge the Article 3 duty.