MA & Anor v The Secretary of State for the Home Department

An Article 3 investigation must be independent, effective and sufficiently scrutinised to expose the facts, identify responsibility, protect complainants’ interests and secure lessons that reduce the risk of recurrence. The necessary procedures and powers depend on the circumstances. In a case involving repeated and apparently open abuse of immigration detainees, a real risk that former staff would not attend voluntarily made a power to compel witnesses necessary. Significant public scrutiny may require the power to hold hearings in public, although the precise format is for the investigator. Effective victim involvement may require properly funded representation.

MA and BB were detained at Brook House Immigration Removal Centre. Following a television programme showing apparent abuse of detainees, several investigations took place. The Secretary of State later commissioned a bespoke investigation by the Prisons and Probation Ombudsman.

The claimants challenged the adequacy of the Ombudsman’s powers and procedures to discharge the Secretary of State’s positive obligation under Article 3 of the European Convention on Human Rights. They argued that the investigation required powers to compel witnesses, hold hearings in public and fund proper representation. The central issue was whether those features were required on the facts.

1. Outcome. The court held that the PPO Special Investigation required additional powers and resources. The court would hear the parties on the form of order if necessary.
2. Applicable standard. An effective Article 3 inquiry must be institutionally and practically independent; seek, so far as possible, to establish the full facts and expose culpable conduct; provide effective access for complainants; identify and rectify processes contributing to any breach; and enable lessons to be learned.
3. Compulsion. Not every Article 2 or Article 3 investigation requires compulsory powers. Here, the alleged abuse was egregious, repeated and conducted openly. Former G4S staff had left employment, creating a substantial risk that alleged perpetrators and witnesses would not attend voluntarily. Their evidence was necessary to investigate individual acts and management, systemic and cultural causes. The PPO therefore required power to compel witness attendance.
4. Public scrutiny. The investigation required sufficient public scrutiny to secure accountability, maintain public confidence and prevent any appearance of tolerance or collusion. The PPO required power and funding to hold hearings in public where necessary. The court did not prescribe which hearings had to be public.
5. Victim participation. The allegations required detailed testing of witness credibility and reliability. An interpreter alone was insufficient. Properly funded representation was required to enable the claimants to review and comment on evidence and suggest lines of enquiry.
6. Timing. It was unjustified to adopt a wait-and-see approach when the need for additional powers was already apparent. The investigation should be augmented without delay.