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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> SS, R (on the application of) v Secretary of State for the Home Department & Anor [2015] EWCA Civ 652 (26 June 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/652.html Cite as: [2015] EWCA Civ 652 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Anthony Thornton Q.C.
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal, Civil Division)
LORD JUSTICE ELIAS
and
LORD JUSTICE McCOMBE
____________________
THE QUEEN (on the application of SS by his litigation friend the Official Solicitor) |
Claimant/ Respondent |
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- and - |
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SECRETARY of STATE for the HOME DEPARTMENT |
Defendant/Appellant |
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NESTOR PRIMECARE SERVICES LTD |
Intervener |
____________________
Mr. Richard Drabble Q.C. and Mr. Graham Denholm (instructed by Deighton Pierce Glynn) for the respondent
____________________
Crown Copyright ©
Lord Justice Moore-Bick :
(a) that the appellant had failed to apply the policy set out in Chapter 55.10 of the Enforcement Instructions and Guidance in relation to the detention of the mentally ill;
(b) that the use of the Detained Fast Track to consider his asylum claim was unlawful;
(c) that in detaining him the appellant was in breach of the Hardial Singh principles;
(d) that the appellant had failed to provide him with adequate healthcare;
(e) that his detention involved a breach of his rights under Articles 3 and 8 of the European Convention on Human Rights ("the Convention");
(f) that the clinicians responsible for his healthcare failed to conduct any or any adequate medical examination of him under Rule 34 of the Detention Centre Rules 2001 and failed to make a report under Rule 35 of those Rules.
(a) Matters not argued
In paragraphs 281-289 of his judgment the judge dealt at length with Code C of the Police and Criminal Evidence Act 1984 and Chapter 38 of the appellant's Enforcement Instructions and Guidance ('Role of the custody officer') and their effect on the lawfulness of the respondent's detention. His analysis of these provisions materially informed his consideration of the lawfulness of S's detention between 3rd and 5th December 2011. However, neither the appellant nor the respondent had contended that either of those documents had any bearing on the issues in the case or had sought to rely on them in any way. If the appellant had been aware that the judge might consider them to be relevant, she would have made submissions on them which might have affected the judge's conclusions. The respondent accepts, therefore that in this respect there was significant procedural unfairness affecting the judge's decision.
(b) Approach to the challenge based on the appellant's policy
The first ground on which the respondent challenged his detention was that the appellant had failed to apply her policy on the detention of the mentally ill. On 9th May 2012, shortly after the respondent's grounds had been drafted, this court gave judgment in LE (Jamaica) v SSHD [2012] EWCA Civ 597, in which Richards L.J. indicated that the court should adopt a Wednesbury approach to a challenge of this nature. The respondent relied on that statement of principle and, in the absence of any countervailing guidance of equal authority, the parties accept that the judge should have applied it. They also accept, however, that it is not clear from the judgment what approach the judge actually took to that question. He did not refer to the relevant guidance in LE (Jamaica) and he does not appear to have directed himself in terms similar to those indicated by Richards L.J. The parties therefore accept that one way or another the judge was in error, either in failing to apply the correct test or in failing to explain clearly what test he did apply.
(c) Art.3 of the Convention
The judge based this part of his decision on what had been said by David Elvin Q.C., sitting as a judge of the High Court, in R(S) v SSHD [2011] EWHC 2120 (Admin). In paragraph 417 of his judgment he made various findings of fact highly critical of those who were responsible for the respondent's care and treatment, but in doing so he failed to explain why the relevant legal test was satisfied. Moreover, the respondent accepts that none of the findings in paragraph 417 are capable as they stand of justifying the conclusion that there was a breach of the respondent's rights under Art. 3 of the Convention.
(d) Breach of the rules of natural justice
In the course of his judgment the judge found that certain officials or clinicians whose accounts were relied upon by the appellant had wilfully breached the appellant's published policy or had conducted themselves in a manner which was grossly negligent. He did so without having heard them give evidence and therefore without having given them an opportunity to deal with the allegations against them. The parties accept that in doing so he failed to observe the basic principles of natural justice and that his findings cannot stand.