D1914 & Anor, R (on the application of) v Secretary of State for the Home Department

An Article 3 investigative duty requires an effective investigation into arguable ill-treatment, including appropriate scrutiny, participation and the identification of lessons. It does not extend to judicial supervision of the Government’s later response to the investigation or require implementation of inquiry recommendations. Recommendations made under the Inquiries Act 2005 are advisory unless legislation provides otherwise.

The Government retains executive discretion as to the measures adopted in response to an inquiry, subject to ordinary public-law and Convention constraints. The Administrative Court is not a substitute for a second inquiry into the current state of immigration detention. A claimant must be directly affected by the alleged continuing breach to have victim status under section 7 of the Human Rights Act 1998.

The claims concerned the Government’s response to the Brook House Inquiry, a statutory inquiry into mistreatment at Brook House Immigration Removal Centre. D1914, a former Brook House detainee and core participant, and AAA, who had been detained elsewhere, challenged the response under Article 3 ECHR, the Human Rights Act 1998 and the Inquiries Act 2005. AVY, who had been detained at Brook House after publication of the inquiry report, brought related challenges and alleged individual mistreatment.

The court first considered standing, Parliamentary Privilege, and whether the investigative and systems duties under Article 3 required implementation of the inquiry’s recommendations. Individual claims concerning AVY’s detention were transferred for trial because factual evidence was disputed. The central issue was whether the Government’s response to the inquiry could itself be supervised as part of the Article 3 investigative duty.

1. Standing. D1914 had sufficient interest and victim status because his direct experience at Brook House gave him a sufficiently direct connection with the alleged continuing failure to act on the inquiry’s findings. AAA lacked victim status because he had not been detained at Brook House and the connection between his detention at Colnbrook and the response to the Brook House Inquiry was too remote. Permission was therefore refused to AAA.
2. Parliamentary Privilege. Parliamentary reports, evidence and ministerial statements could not be used to prove disputed facts, meanings or conclusions. Article 9 of the Bill of Rights 1689 is a substantive jurisdictional rule. A ministerial statement could be used for the limited purpose of identifying the Government’s purposes and reasons for external action, but not to establish a disputed legitimate expectation.
3. Article 3 investigative duty. The duty requires an effective investigation into arguable breaches of Article 3. Its purposes include exposing relevant facts, identifying culpable or discreditable conduct, rectifying dangerous practices and enabling lessons to be learned. Those purposes describe the objects of the investigation itself. They do not convert the Government’s subsequent response into part of the investigation.
4. The Inquiries Act 2005 contains no express or implied duty to provide a substantive response to inquiry recommendations or to implement them. The recommendations were advisory. The Defendant was entitled to exercise executive judgment about whether and how to respond, and the court could not require a fresh inquiry into the current state of immigration detention.
5. The evidence did not establish an ongoing systems breach under Article 3. The Brook House findings principally concerned events in 2017, later evidence was disputed or untested, and the Defendant had provided a detailed response. Any apparent individual or systemic breaches should be determined in claims brought by affected victims, with a trial where factual evidence is contested.
6. Ground 3A disclosed no arguable breach of the Inquiries Act 2005. Permission was refused on that ground. D1914’s remaining challenges were dismissed. AVY’s challenges to the Government’s response were dismissed, while his individual detention claims were adjourned and transferred to the King’s Bench Division for trial.

First-instance judicial review claims. No prior determination of the substantive issues was stated. Sheldon J had linked the claims for case management and directed a rolled-up hearing, but had not finally ruled on standing.