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

A public authority investigating credible allegations of mistreatment must provide a fair opportunity for the complainant to understand, comment on, correct or contradict evidence relied upon adversely. A standard practice of withholding underlying evidence is procedurally unfair where effective participation requires engagement with that evidence. The court assesses fairness independently and may review the lawfulness of an unfair system, despite a subsequent appeal or review mechanism.

Under Equality Act 2010, the reasonable-adjustments duty concerns disadvantage arising from disability and is distinct from general procedural fairness. An Article 3 investigative duty may be satisfied by a combination of internal investigation, independent review and civil proceedings, even if the internal stage has procedural shortcomings.

The claimant, an Albanian national with serious psychiatric illness, challenged the lawfulness of investigations by the Secretary of State’s Professional Standards Unit into alleged mistreatment while he was detained under immigration powers. The principal issue was whether the PSU’s policy or practice of withholding underlying material, including video footage and witness accounts, was lawful where that material was relied upon adversely, including where accounts were inconsistent or the complainant lacked mental capacity.

The claim relied on common-law fairness, Articles 3, 6 and 14 ECHR, and the reasonable-adjustments duty under the Equality Act 2010. The court determined three grounds: procedural fairness, reasonable adjustments and compliance with the Article 3 investigative duty.

1. Ground 1 succeeded. The PSU operated a discernible policy or practice of generally withholding underlying evidence from complainants, rather than a genuinely flexible case-by-case approach. It relied on that undisclosed material when deciding the complaints.
2. Natural justice requires a fair opportunity to know and effectively challenge the opposing case. The court must determine for itself what fairness required; its role is not confined to reviewing the reasonableness of the decision-maker’s view. A person must have an opportunity to correct, contradict or explain evidence relevant to a decision affecting their rights or interests. That principle may apply to an unfair system or policy, not only to an individual decision.
3. The PSU’s offer of written questions based on material viewed by the investigator was insufficient. Effective participation required the claimant or his representative to engage directly with key evidence, such as body-worn video footage and witness accounts. The availability of an appeal to the PPO did not provide an adequate alternative remedy for a challenge to the lawfulness of the first-instance procedure. Subsequent disclosure did not make the claim academic.
4. Ground 2 failed. The relevant reasonable-adjustments issue concerned the method of interaction with the complainant, distinct from the disclosure issue. Permitting responses to written questions instead of requiring a face-to-face interview was a reasonable adjustment. No separate Article 14 claim was established.
5. Ground 3 failed. The Article 3 investigative duty is flexible and depends on the circumstances. A combination of the PSU process, independent PPO oversight and available civil proceedings was capable of providing an effective investigation. The PSU’s shortcomings did not, in the circumstances, establish a failure by the State to discharge its Article 3 duty.