The role of legitimacy and proportionality in the (supposedly absolute) prohibition on inhuman and degrading treatment: the United Kingdom’s High Court decisions in DD v Secretary of State

In the United Kingdom High Court (Administrative) decision of DD v Secretary of State for Home Department [2014] (‘DD’) Ouseley J was required to consider, on a preliminary basis, whether the imposition of a Terrorism Prevention and Investigation Measure (‘TPIM’) (the successor of control orders) had violated the appellant’s right to freedom from inhuman or degrading treatment under article 3 of the European Convention on Human Rights (‘ECHR’). The decision, and the subsequent appeal decision of Collins J (DD v Secretary of State for Home Department [2015] (‘DD (No 2)’), is significant for what it says about the role of the legitimacy and proportionality of measures when considering whether they are inhuman or degrading. More specifically, the first instance decision of Ouseley J appears to impermissibly balance ill-treatment against national security interests. In addition to this ostensible and impermissible conflation, both decisions rely on the European Court of Human Rights (‘ECtHR’) jurisprudence to support various findings without properly engaging with the very significant differences between such decisions and the facts of the instant case (especially the difference between detention following conviction and the imposing of TPIMs on individuals based on various degrees of ‘belief’ held by the Secretary of State). Similarly, neither decision considers the potential impact of the principle, regularly restated by the ECtHR, that the alleged conduct of an individual is irrelevant to a consideration of whether article 3 has been violated.

The appellant, a Somali national who was granted asylum and indefinite leave to remain in the United Kingdom in 2003, had been acquitted of fund-raising for Al-Shabaab. Following his acquittal, he was made subject to a TPIM which restricted his freedom of movement in that he could not leave the house he shared with his wife and seven children between the hours of 9pm and 7am without prior approval and he could not enter certain areas or shops selling certain items. The TPIM also restricted his association with certain persons; his access to funds; his access to the internet; and, which required his monitoring by electronic tag (as well as his reporting to police). While a number of those restrictions were the subject of the proceedings before the High Court, of greatest concern was the electronic monitoring tag. Psychiatric evidence before both Justices Ouseley and Collins revealed that, as a result of his experience in Somalia between 1991 and 2003, the appellant was suffering from PTSD and a psychotic illness with auditory hallucinations and paranoid beliefs. Significantly, the psychiatric evidence was unanimous in its view that the TPIM and, in particular, the monitoring tag had exacerbated the appellant’s symptoms.

It was submitted on behalf of the appellant that that fact alone was sufficient to demonstrate a violation of article 3 and the TPIM (or at least the monitoring aspect of it) should be quashed. Article 3 being absolute, it was argued that the legitimacy of the TPIM regime was irrelevant.

Both Justices Ouseley and Collins disagreed. Placing significant emphasis on the decision of the Grand Chamber of the ECtHR in Ramirez Sanchez v France [2007], both Justices considered that:

the question is not simply whether the degree of suffering has reached a level of intensity which requires the actions to cease, regardless of their purpose, legitimacy, intent, alternatives and care provided. It is … contrary to all sense to ignore the reasons behind what is a legitimate and necessary form of treatment for an admitted risk (DD (No 2) at [74]).

In Sanchez, the majority Grand Chamber held, at para. 119, that:

In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment … In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured … The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant… (References omitted and emphasis added).

Drawing upon this principle (and similar statements in other decisions of the ECtHR such as Dybeku v Albania [2007]), Ouseley J (at first instance) held that (para. 115 – 116):

Absolute though Article 3 is, and a breach of it is incapable of justification, that does not necessarily resolve the significance of the reasons for the TPIM, and its conditions. Do they merely seek to justify impermissibly a breach of Article 3, or can 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 seem to me to show that acts may or may not breach Article 3, depending significantly on the nature or legitimacy of the acts themselves, the intent with which they were 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. Imprisonment is a legitimate form of treatment for those convicted of crimes, and transfer to a mental hospital is a legitimate form of treatment for mentally ill offenders.

Notwithstanding an acceptance that ‘…the TPIM … leads to an understandable sense of hopelessness’ and the effects of the TPIM ‘…are significantly more serious for [the appellant] than they would be for a person of normal health and insight’, Ouseley J found that there had been no violation of article 3: the TPIM being both legitimate and proportionate. It appears that Ouseley J first found that the TPIM had ‘…maintained and exacerbated [the appellant’s] illnesses, so that his mental health is worse that it would have been without the TPIM’ only to proceed to find that there had been no violation of article 3 because, it seems, the measures were legitimate and proportionate (contrast paras [112] with [116], [117], [123] and [124]). This seems to indicate an impermissible ex post facto justification of a violation of article 3 based on legitimacy and proportionality. However, on appeal Collins J stated that:

It seems that is was believed that Ouseley J had indicated that even if the effect of the TPIM was to breach Article 3 the interest of national security could prevail. He did not so indicate nor would it have been a correct application of the law if he had.

In reaching his decision, Ouseley J was required (given the preliminary nature of the proceedings) to assume that the ‘imposition and maintenance of the TPIM was properly based on assessments made by the Security Service.’ The decision (made by a different High Court justice) to raise the article 3 issue on a preliminary basis was, as Collins J opined, an ‘unfortunate’ one. This was because it required the making of assumptions (adverse to the appellant) the validity of which ought properly have been ‘determined when all the material evidence, both in open and closed hearings, is considered and evaluated’ (i.e not on a preliminary basis).

Collins J subsequently held on appeal that the ‘minimum threshold’ had been reached such that, inter alia, the monitoring element of the TPIM constituted inhuman or degrading treatment contrary to article 3 (and that aspect of the TPIM was quashed). However, the two DD decisions remain authority for the proposition that the legitimacy and proportionality of a measure are relevant to an assessment of whether treatment is inhuman or degrading in violation of article 3. While this may be an accepted proposition in ECtHR jurisprudence in the context of detention following conviction (or remand) (for instance, Sanchez and Dybeku), the decisions of the High Court extend that principle to a regime which is applied to individuals based on alleged conduct and, some might say, dubious standards of proof (previously the ‘reasonable belief’ of the Secretary of State that an individual has been engaged in a ‘terrorism-related activity’, and presently satisfaction on the balance of probabilities).

There is no dispute that the assessment of whether treatment has reached the ‘minimum threshold’ under article 3 is ‘relative’ (as a plethora of ECtHR decisions has reaffirmed since the landmark decision in Ireland v United Kingdom [1978], for example Selmouni v France [1999], Jalloh v Germany [2006] and Gafgen v Germany [2010]). The benefit of this relativistic approach to victims has been canvassed at length in academic literature (see, for example, Professor Yatuka Arai’s article). By engaging contextually with a complaint under article 3, the ECtHR has expanded State responsibility to address gender issues such as domestic violence against women (for example, Valiuliene v Lithuania [2013]) and, as the DD decisions themselves demonstrate, contextualism ensures the courts do not apply a objective measure to what is an inherently subjective assessment (see, also, The Commissioner of Police for the Metropolis v ZH [2013]).

Relativity must not, however, be conflated with proportionality. As Dr Stephanie Palmer has observed:

The Court is not carrying out a balancing exercise in determining whether the severity threshold has been met. By focusing on the individual case and the victim in question it is engaging in an exercise of relativity. The Court will examine the detention in context, including whether the conditions are compatible with respect for human dignity and whether the individual has been subjected to greater levels of distress or hardship than is required by the detention. The relativity element does not detract from the absolute nature of Article 3, as it does not qualify the right.

Notwithstanding Collins J’s insistence on appeal, the approach of Ouseley J in DD arguably demonstrates precisely the conflation Dr Palmer warns against. Having considered the relative facts of the case (and having expressly acknowledged that the TPIM had exacerbated and was maintaining the appellant’s mental health issues and these implications were more severe for the appellant given his mental health issues), the trial judge proceeded to nonetheless decide against a violation of article 3 on the basis that the legitimacy of the measure, and the inhuman and degrading treatment that could ‘properly’ be expected in executing that legitimate measure, effectively raised the minimum threshold. It seems Ouseley J, set the ‘minimum threshold’ by impermissibly balancing the effects of the TPIM on the appellant against the legitimacy of the measure and its ‘necessity’ and proportionality to the objective of ‘combatting terrorism’. Some small measure of comfort may be drawn from Collins J’s statement on appeal that if this was the approach espoused by Ouseley J, it was plainly wrong.

Leaving aside the conflation of relativism and proportionality, there are several additional issues with the two DD decisions.

Of particular concern is the lack of consideration of the distinction between the nature of the detention in the ECtHR cases relied upon in both DD decisions (i.e. imprisonment following conviction or awaiting trial in circumstances where the legitimacy of that detention is not in question (particularly by reference to article 5)), and the treatment in the instant case, namely restriction of movement and monitoring on the basis of the Secretary of State’s ‘reasonable suspicion’ or satisfaction on the ‘balance of probabilities’. There is no assessment of whether it is appropriate to rely upon ECtHR jurisprudence that concerns imprisonment which complies with article 5 in a case where the legitimacy of the measure must be assumed as a result of the nature of the proceedings.

Another issue is the lack of consideration in either DD decision of the impact, if any, of the principle (frequently reaffirmed by the ECtHR) that a person’s alleged conduct is not relevant when considering whether treatment violates article 3 (e.g. Chahal v United Kingdom [1996]); Saadi v Italy [2008]); and, indeed, Sanchez at [87]). It is at least arguable that that principle is even more relevant in circumstances where the legitimacy and/or proportionality of the TPIM is based on an assessment by the Secretary of State of the subject’s alleged conduct. Yet neither decision makes reference to it.

While these issues may, for now, be of little import insofar as the appellant was the only person subject to a TPIM at the time of the most recent report of the Independent Reviewer of Terrorism Legislation, David Anderson QC (available here), as long as the TPIM regime remains in place, and its legitimacy (at least insofar as it is compliant with the ECHR) is not properly tested, they are issues which need to be resolved. This is all the moreso in light of UNSC Resolution 2249 (2015) and its urging of Member States to ‘intensify their efforts to stem the flow of foreign terrorist fighters to Iraq and Syria and to prevent and suppress the financing of terrorism…’