Text:ICLR DD v SSHD [2014] EWHC 3820 (Admin), [2014] MHLO 140

HUMAN RIGHTS — Inhuman or degrading treatment — Suspected terrorist — Home Secretary imposing terrorism prevention and investigation measures on appellant suspected terrorist — Measures exacerbating appellant’s mental health issues — Whether imposition of measures and effect on appellant’s mental health being inhuman or degrading treatment — Human Rights Act 1998, Sch 1, Pt 1, art 3

DD v Secretary of State for the Home Department

[2014] EWHC 3820 (Admin)^M; [2014 ] WLR (D) 495

QBD: Ouseley J: 20 November 2014

A judgment as to whether article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been breached in a case of alleged inhuman or degrading treatment was reached not simply by reference to the impact of the treatment complained of on the individual, but by also having regard to the necessity and proportionality of the underlying treatment, and the possible alternatives, in the manner of its execution.

Ouseley J, sitting in the Queen’s Bench Division, so held in a reserved judgment determining as a preliminary issue, in an appeal by DD against the revival by the Secretary of State for the Home Department of a terrorism prevention and Investigation Measure (“TPIM”) on 3 July 2014, the question whether the imposition of the TPIM amounted to inhuman or degrading treatment thereby breaching his rights under article 3 of the Convention. DD suffered from post traumatic stress disorder and either paranoid schizophrenia or a schizoaffective disorder, depressive type and the alleged inhuman or degrading treatment stemmed from the effect of the TPIM, in particular a GPS tagging condition, on his mental health. For the purposes of determining the preliminary issue only, it was assumed that the Secretary of State’s national security case was correct, that the TPIM was in principle a legitimate form of treatment for an individual posing such national security risks and that the conditions under the TPIM were necessary to counter such risk.

Article 3 in Part 1 of Schedule 1 to the Human Rights Act 1998, provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

OUSELEY J said that the fundamental issue raised on the preliminary issue concerned the relevance of the TPIM itself to the question of an article 3 violation. Absolute though article 3 was, and a breach incapable of justification, that did not necessarily resolve the significance of the reasons for the TPIM, and its conditions. Did they merely seek to justify impermissibly a breach of article 3, or could they go to the question of whether article 3 had been breached in the first place, or to the level of suffering which would amount to breach of article 3, or to the provision of necessary medical care? In principle, the authorities seemed to show that the question whether acts might or might not have breached article 3, depended significantly on the nature or legitimacy of the acts themselves, the intent with which they had been done, the reason for them, their necessity, proportionality to that need, the availability of alternatives and consequential treatment, and not just on the degree of effect on the particular individual: see eg Sanchez v France (2007) 45 EHRR 1099; Aswat v United Kingdom (2014) 58 EHRR 1; H v Comr of Police of the Metropolis (Liberty intervening) [2013] 1 WLR 3021^B; and ZH v Hungary (Application No 28973/11) (unreported) given 8 November 2012, ECtHR. Accordingly, it was not sufficient simply look at the effect a measure had on the individual, and to conclude that, though, for example, detention was necessary, proportionate to the need, and the detainee was in receipt of proper treatment, the effect crossed some threshold of suffering such that he had to be released.

If the TPIM had not had a legitimate purpose, had been unnecessary for the achievement of that purpose, or had been wholly out of proportion to the risk it had been designed to meet, or had been imposed with the intention of humiliating DD or to cause him suffering, and had had those effects, it would plainly have breached article 3 of the Convention. But, although it had been deliberately imposed or revived, there had been no intention to humiliate or debase, nor had it been a premeditated act intended to cause suffering, though that was not conclusive on article 3. In the circumstances as they had been assumed for the purposes of the preliminary issue, it had to be concluded that the TPIM restrictions did not amount to a violation of article 3 of the Convention, provided that the requisite measures for the care of DD, including those care needs which arose from the imposition of the TPIM, were met. Those requisite measures could not include quashing the TPIM since the TPIM was, by necessary assumption, a legitimate measure necessary and proportionate to the risk posed by DD. Nor could they include quashing the TPIM with a view to its re-imposition, minus the tag requirement, for the same reason; that measure was legitimate, necessary and proportionate to the risk. Accordingly, although the TPIM had severe effects, it did not fall to be quashed on that ground on the preliminary issue.

Appearances: Dinah Rose QC and Charlotte Kilroy (instructed by Birnberg Peirce & Partners) for DD; Jonathan Hall QC (instructed by Treasury Solicitor) for the Secretary of State

Reported by: Giovanni D’Avola, Barrister.