25 Feb 2020

On 5 November 2019, the Secretary of State for the Home Department announced that there is to be a public inquiry into the mistreatment of detainees at Brook House immigration removal centre. A culture of institutional abuse of detainees was highlighted by the BBC Panorama programme broadcast on 4 September 2017.  The footage recorded incidents of G4S security staff physically abusing detainees, including an officer strangling a detainee and threatening to put him “to sleep”. Detention and healthcare staff allegedly conspired to cover up the detainee’s complaint. There was evidence of a ‘control and restraint’ trainer teaching officers to use racist language, to assault detainees and to “scrub the CCTV”.

The decision to hold a public inquiry followed judgment in the case of MA & BB v Secretary of State for the Home Department [2019] EWHC 1523 (Admin). This case was an action by the Claimants to challenge the failure of the SSHD to order an investigation into the abuses in the detention centre pursuant to her obligations under Article 3 ECHR. In this context, Article 3 imposes a negative duty on the State to prevent individuals from being subjected to inhumane or degrading treatment, and a corresponding positive obligation to investigate when the substantive prohibition has arguably been breached.

The SSHD initially instigated a Special Investigation into the abuses by the Prisons and Probation Ombudsman (PPO), but this was challenged by the Claimants on the basis that the PPO would have no powers to compel witnesses or to hold public hearings and there would be no funding for representation for the victims of the abuses.

In finding for the Claimants, the Hon Ms Justice May DBE held that it was necessary for an effective inquiry to be able to compel the attendance of witnesses due to the “egregious nature of the breaches, the multiplicity and regularity of the abusive events and the openness of the activity within the units”. The questions regarding the alleged abuse would not be confined to whether it occurred, but would include “why and how they came to do it so openly, and so regularly, without complaint or criticism from other staff or detainees and without other supervising staff and/or monitoring bodies picking up on it”.  She found that there was “good reason” to believe that perpetrators and other former G4S staff will not voluntarily attend to give evidence to the PPO. Further, she commented that “immigration detainees are a uniquely vulnerable group of people. They are not convicted persons serving a sentence, they are not being detained as punishment. Unlike most prisoners, they do not know for how long they are going to be confined. Detention under these conditions is diminishing and depersonalising enough, but it is unacceptably degrading and dehumanising where there is repeated and apparently casual abuse on the part of staff employed by the state to supervise and look after such detainees. It is right, in those circumstances, to afford the abused detainee an opportunity to see and confront their abuser on equal terms, as a means of restoring dignity and respect to the person from whom it has been so wholly stripped away.” [§ 62].

In speaking to the need for the inquiry to be held in public, she commented on the “hostile environment” facing immigrants and the need for their rights to be “publicly vindicated”. Likewise, there was a need for the victims of the abuse to have access to professional representation in order to secure “Detailed questioning, informed by the complainants’ comments on the evidence … That cannot be done by MA and BB acting alone, even with the assistance of an interpreter; it requires expert representation.”

The purpose of the Inquiry as now announced is as follows:

“To reach conclusions with regard to the treatment of detainees where there is credible evidence of mistreatment contrary to Article 3 ECHR; and then make any such recommendations as may seem appropriate. In particular the inquiry will investigate:

1) The treatment of complainants, including identifying whether there has been mistreatment and identifying responsibility for any mistreatment.

2) Whether methods, policies, practices and management arrangements (both of the Home Office and its contractors) caused or contributed to any identified mistreatment.

3) Whether any changes to these methods, policies, practices and management arrangements would help to prevent a recurrence of any identified mistreatment.

4) Whether any clinical care issues caused or contributed to any identified mistreatment.

5) Whether any changes to clinical care would help to prevent a recurrence of any identified mistreatment.

6) The adequacy of the complaints and monitoring mechanisms provided by Home Office Immigration Enforcement and external bodies (including, but not limited to, the centre’s independent monitoring board and statutory role of Her Majesty’s Inspectorate of Prisons) in respect of any identified mistreatment.”

However, it is limited in scope to ‘any individual who was detained at Brook House Immigration Removal Centre during the period 1 April 2017 to 31 August 2017 where there is credible evidence of mistreatment of that individual”. Furthermore, funding will be limited to “individuals designated as core participant status by the Inquiry chairperson”.

It remains to be seen whether G4S as a legal entity or any of the individual security officers will seek an undertaking from the Attorney General that no criminal prosecution will be brought as a result of answers given to the Inquiry. Privilege against incrimination is afforded by section 14 of the Civil Evidence Act 1968. This provision applies in the context of the Inquiry because section 22 of the Inquiries Act 2005 provides that a person may not be required to give, produce or provide any evidence or document if he or she could not be required to do so if the proceedings of the inquiry were civil proceedings in a court in the relevant part of the United Kingdom. An undertaking of this nature was recently sought by the participants in the Grenfell inquiry. In approving the application, the Inquiry panel stated: “Without an undertaking of the kind described above it is very likely that witnesses who were involved … will claim privilege against self-incrimination, or, if they do not, that they will be considerably less candid than would otherwise have been the case as a result of trying to avoid saying anything that might harm their position in the future.”  Such an undertaking would not prevent the subsequent bringing of a civil claim.

Although the comments made by May J and the broad scope of the Inquiry are to be welcomed and applauded, there remains several obstacles in the way of ensuring the effectiveness of the investigation into the state breaches of Article 3. Firstly, the narrow time frame of the investigation may mean that relevant victims or witnesses are no longer in the UK, having been removed under Immigration powers. If they are still in the UK, they may no longer be in touch with their legal representatives if they have, for example, been granted some form of leave to remain and moved away from NASS accommodation to which they may have initially been released. There remains the question of what is to be accepted as “credible evidence of mistreatment” in situations where detainees are routinely disbelieved by immigration and detention staff, and may have struggled to get access to appropriate and timely healthcare in detention. It is to be hoped that the SSHD as a core participant in the Inquiry would not seek to make representations to the Inquiry chair against the selection of the witnesses.

However, there is opportunity for solicitors and legal representatives to be proactive in reviewing their current and past clients to see if they were detained during the relevant period and to inform them of the existence of the Inquiry. In strong cases, there may be scope for invoking Article 6 ECHR to seek entry clearance to return victims to the UK for the purpose of attending the Inquiry and any subsequent civil proceedings.

The findings that will flow from the Inquiry may be vitally important in a broader push to end indeterminate detention and to support calls for greater restriction and control over the use of immigration detention powers. There may also be personal benefit to potential victims of abuse in that cause for civil claims in damages could be brought to light.

Emma Stuart-King is part of the One Pump Court Inquests and Inquiries team. She, and many other members of the team hold a cross-disciplinary practice in both Inquests and Immigration so are able to advise and represent victims throughout the legal process.

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