AK, R (on application of) v Secretary of State for the Home Department

The court considered the lawfulness of the Professional Standards Unit's (PSU) policy and/or practice of generally withholding underlying investigative material (including body-worn video and CCTV) from complainants in detention allegations. The claimant, an Albanian national detained under immigration powers and a vulnerable person with serious psychiatric diagnoses, alleged mistreatment and challenged the PSU process on three grounds: (1) common law fairness and Article 6 read alone and with Article 14 ECHR; (2) failure to make reasonable adjustments under the Equality Act 2010 (s 20 and s 29); and (3) breach of the State's Article 3 investigatory duty.

The court held that, as applied to the claimant, the PSU operated a discernible practice of non-disclosure of underlying evidence and that that practice denied the claimant a fair opportunity to participate effectively in the investigation. That failure breached common-law principles of natural justice (Ground 1). The court rejected the claimant's Equality Act claim (Ground 2), finding the PSU had made a reasonable adjustment by allowing written responses in place of a face-to-face interview. The court also rejected the Article 3 investigatory duty challenge (Ground 3), concluding that, viewed as part of the overall system (PSU investigation, right of appeal to the Prisons and Probation Ombudsman and the availability of civil proceedings), the State's procedural obligations under Article 3 were not shown to be breached.

Background and parties:

• The claimant, an Albanian national detained between 22 January 2023 and 6 July 2023, alleged multiple incidents of unlawful use of force and mistreatment while held at HMP Elmley, Brook House IRC and Harmondsworth IRC. He is a vulnerable person with serious psychiatric disorders and subsequently identified as a potential victim of trafficking.
• The defendant is the Secretary of State for the Home Department. The claimant brought judicial review proceedings challenging the PSU investigation process and decisions in relation to incidents on 4, 5 and 11 May 2023 and 23 June 2023.

Nature of the claim and procedural posture:

• The claimant sought declarations and relief challenging: (i) procedural unfairness and common-law rights (and Article 6 ECHR) arising from the PSU's refusal to disclose underlying evidence; (ii) failure to make reasonable adjustments under the Equality Act 2010 (s 20 and s 29) given his mental health; and (iii) breach of the Article 3 ECHR investigatory duty.
• The PSU had issued summary decision letters dismissing the complaints (with one partial uplift as to number of staff present). The claimant contended that underlying material relied upon by the PSU was not provided to him or his representatives during the investigation; full PSU reports were disclosed later in the litigation.
• The Brook House Inquiry and related material formed background context; the parties agreed that Article 3 was engaged for the purposes of determining lawfulness of the PSU policy and that the PPO was not an adequate alternative remedy for a policy challenge.

Issues framed by the court:

• Whether the PSU policy and/or general practice of withholding underlying material is unlawful where the PSU places adverse reliance upon that material to reject a complaint, including (a) where there are disputes/inconsistencies between accounts and (b) where a complainant lacks mental capacity.
• Whether reasonable adjustments under the Equality Act 2010 were made.
• Whether the State's Article 3 investigatory duty was breached by the PSU process.

Court's reasoning and conclusions:

• On Ground 1 (procedural fairness): the court found that, on the evidence, the PSU applied a consistent practice of withholding underlying evidence rather than engaging in a genuinely case-by-case assessment. Natural justice requires that a person has a fair opportunity to know and effectively challenge the opposing case. Merely allowing the claimant to answer written questions based on an investigator's view of material was insufficient where the PSU placed adverse reliance upon that material. The court followed recent authority emphasising the need for sufficient disclosure to permit effective participation and found the claimant's common-law fairness claim made out.
• On Ground 2 (Equality Act 2010): the court accepted that the claimant is disabled for the purpose of the Act but concluded that the PSU did make a reasonable adjustment by permitting written answers in lieu of a face-to-face interview. The claimant did not establish that the adjustment was insufficient to avoid substantial disadvantage; this ground failed.
• On Ground 3 (Article 3): the court reviewed authorities recognising flexibility in the form of an effective investigation. It concluded the combination of the PSU investigation, the right to appeal to the independent Prisons and Probation Ombudsman and the availability of civil proceedings were capable, in combination, of satisfying the State's procedural obligations under Article 3. The claim that the overall investigatory duty was breached was not made out.

Subsidiary findings: the court noted the PSU had published Detention Services Order material and internal guidance and that evidence from the PSU head (Mr Khan) and the claimant's representatives was relevant to whether a fixed practice of non-disclosure existed. The subsequent disclosure of full reports did not cure the unfairness of the initial investigatory process.

This is a first-instance Administrative Court judgment. The claimant's judicial review is allowed in part. The court declared that the PSU procedure as applied to the claimant was procedurally unfair and breached common-law principles of natural justice because the claimant was not given a fair opportunity to see and comment on underlying evidence relied upon to reject his complaints. The claimant's Equality Act 2010 reasonable adjustments claim (s 20 and s 29) is dismissed because the PSU's offering of written responses was a reasonable adjustment. The claimant's Article 3 investigatory-duty challenge is dismissed on the basis that, viewed in the round together with the right of appeal to the Prisons and Probation Ombudsman and the availability of civil proceedings, the State's investigatory obligation was not shown to have been breached.