UK’s detention of individual suffering mental illness amounted to torture and ill-treatment

The Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011) Summary

The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to his mental illness, the High Court of England and Wales held that S's detention amounted to false imprisonment and a violation of Articles 3 and 5 of the European Convention of Human Rights, which prohibit inhuman or degrading treatment and protect an individual's right to liberty and security of the person, respectively.

Facts

When S, an Indian national, was 14 years old, four masked gunmen murdered his parents and violently sexually assaulted him. He left India in 1994 and travelled to Germany via Moscow where he was subjected to further sexual abuse, raped and forced into prostitution. S entered the UK illegally in 1995. In January 2009, he was convicted of unlawful wounding and assault occasioning actual bodily harm, for which he received a 16 month prison sentence.

Whilst in the UK, S became engaged to a Polish woman who, as a national of an EU member state, had the right to remain in the UK. In February 2009, S claimed asylum and made a human rights claim for leave to remain, submitting evidence of his relationship with his fiancée and her children.

At the conclusion of S’s prison sentence, the UK Border Agency (the UKBA) detained him under the UK Borders Act 2007, pending deportation. It was noted at the first review of his detention on 9 May 2009 that he was in good health and that there were “no compelling or compassionate circumstances” in relation to his case. Whilst in detention, however, S suffered from visual and auditory hallucinations and frequently self-harmed. At detention reviews conducted by the UKBA in June and July 2009, no mention was made of S’s apparent mental illness, despite reports from mental health professionals indicating cause for concern. In December 2009, S was transferred to a low security mental health unit under the Mental Health Act 1983. There, he continued to engage in self-harm.

A deportation order was issued for S on 1 February 2010, which rejected his asylum and human rights claims. This order was not served on S until 30 April. On 6 May, S filed a notice of appeal against the decision to deport him. He continued to experience auditory hallucinations during this period and engaged in numerous further acts of self-harm. On 4 August 2010, S was finally transferred to a hospital under the Mental Health Act 1983. A final detention review was held on 8 September which again authorised his ongoing detention. S instigated judicial review proceedings on 21 September 2010 and was subsequently released on conditional bail.

Decision

The Court considered the following issues:

• whether the initial detention of S was unlawful since it had begun before he was served with a deportation order;
• whether the UKBA had failed to apply its own policy relating to the detention of individuals suffering from mental illness adequately, and whether this rendered S's subsequent detention unlawful; and
• whether S’s treatment by the UKBA breached Articles 3, 5 and 8 of the European Convention.

With respect to the UKBA's initial decision to detain S, the Court considered that the failure of the UKBA to notify S of its deportation order until some months after the deportation order was made rendered S's initial period of detention unlawful. The Court stated that “a decision which gives rise to the power to deprive an individual of liberty must a fortiori be subject to the principle of notification.” The Court correspondingly held that this conduct breached Article 5 of the European Convention, which protects the right to liberty and security of the person.

The Court then considered whether, in the context of S's ongoing detention, the UKBA had adequately applied its policy relating to the detention of persons suffering from mental illness. The policy requires an exceptional justification for the detention of the mentally ill and seeks to balance the need for detention with other considerations, such as the potential deleterious effects of detention on an individual’s mental health. The Court noted that S’s mental health problems were exacerbated by detention and that the “[detention] reviews failed to grapple with the need to understand and apply the policy requirement of exceptional circumstances, to recognise properly S’s mental condition and to consider properly objective evidence as to the effect of detention on it.” The Court therefore concluded that even if the initial detention had not been unlawful, the UKBA’s policy breaches, including its failure to consider the deterioration of S's mental health, would nevertheless have rendered his detention unlawful.

The Court engaged in a lengthy analysis of European human rights case law and concluded that S’s unlawful detention amounted to a breach of Article 3 of the European Convention. The Court noted that the exacerbation of S's mental health whilst in detention amounted to “both a debasement and humiliation of S since it showed a serious lack of respect for his human dignity.” The Court highlighted the “negative” duty of States to refrain from inflicting serious harm and the corresponding “positive” duty of States to take measures designed to ensure individuals are not subjected to torture or inhuman and degrading treatment or punishment, which together form the basis of Article 3 protections. In this case, the Court held that both of these obligations had been breached.

Given its findings in relation to articles 3 and 5, the Court considered it unnecessary to consider whether there was also a breach of Article 8 (which protects an individual's right to respect for private and family life) of the European Convention. The Court did state, however, that it would have found there to have been a breach, had it been necessary to decide this issue.

The Court requested further submissions on the form of relief and the issue of damages.

Relevance to the Victorian Charter

Sections 10 and 21 of the Charter are analogous to Articles 3 and 5 of the ECHR. In light of the relative lack of Victorian jurisprudence with respect to interpretation of the Charter, the Court’s analysis in S v Secretary of State may help to inform the construction and define the breadth of application of Charter provisions, particularly in the context of administrative decision-making and the application of government policy.

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2120.html

Elliot Luke is a Law Graduate and Abigail Gill is a Senior Associate with Allens Arthur Robinson.