R (on the application of EO, RA, CE, OE and RAN) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin)

The High Court judge has ruled that the Secretary of State’s detention of 3 victims of torture was unlawful following legal action brought by 5 claimants who had been subjected to lengthy periods of detention in Immigration Removal Centres.  The claims were assisted by Medical Justice and the Helen Bamber Foundation, who believe there are systemic failings in the application of the Home Office’s own policy that where there is independent evidence that an individual has been the victim of torture, they should only be detained in very exceptional circumstances. One of the five cases was settled by the Home Office at the doors of the Court. In his ruling on the remaining four claims, Burnett J. provided important guidance on the meaning of “torture”, and the application of the Supreme Court decisions in Lumba and Kambadzi in the context of the Secretary of State’s policy on the detention of torture victims. In summary, the judge concluded that:

1. If, in the absence of good reason and in breach of Rule 34 of the Detention Service Order, an immigration detainee is not medically examined within 24 hours of his arrival at a detention centre, his detention thereafter will be unlawful.  If a subsequent examination and Rule 35 Report demonstrates that the decision to detain would have been the same, damages will only be nominal;
2. It is not possible to “spin out” of Rule 35 a stipulation concerning the content of a Rule 35 report which could bear upon the legality of detention.  There is no failure by the Secretary of State to comply with her policy simply because a medical practitioner misses the signs of torture – even if that failure is negligent;
3. The Secretary of State’s policy does not require case-workers to seek more detailed information when presented with a Rule 35 report which expresses concern that a detainee may have been a victim of torture but contains insufficient information to say whether there is independent evidence of this;
4. It is not a breach of Rule 35(3) for a Rule 35 report to be prepared by a nurse and countersigned by a doctor, and such a breach would not render the detention unlawful;
5. In determining whether there is independent evidence of torture, the credibility of the detainee is irrelevant.  Although credibility may be relevant when deciding whether there are very exceptional circumstances for maintaining detention, commonplace doubts would not be sufficient;
6. Once false imprisonment is established, it is for the Secretary of State to demonstrate, on the balance of probability, that she would have detained the claimant anyway in order to avoid having to pay compensatory damages;
7. Under DSO 03/2008, “torture” means any act by which severe pain or suffering (whether physical or mental) is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, publishing him for an act which he or a third person has committed, or intimidating or coercing hi or a third person, or for any reason based on discrimination of any kind.  It is not necessary that the act be instigated by or with the consent or acquiescence of a public official.

Applying these principles to the four live cases before him, Burnett J concluded that all four had been detained unlawfully, but that RAN would have been detained in any event, and so was only entitled to nominal damages.  In relation to EO, CE and OE, the judge concluded that they were entitled to compensatory damages for periods ranging from three and a half weeks in the case of EO, to 11 months in the case of OE. Paul Brown QC acted on behalf of the Claimants. A copy of the judgment is available here.