Criminal Justice and Courts Bill

Written evidence submitted by Medical Justice (CJC 32)

1. This submission is concerned with Part 4 (Judicial Review) of the Bill. In particular, we shall make points regarding:

· Clause 50 (Likelihood of substantially different outcome for applicant)

· Clause 53 (Interveners and costs)

· Clause 54 (Capping of costs)

2. However, most of what we shall say will be way of general remarks intended to provide a context for Committee members to consider those clauses. We do not intend to indicate any particular view on any other matter addressed by this Bill by our silence in respect of other provisions.

Some general remarks:

3. Medical Justice is a charity with a particular expertise concerning those subjected to administrative detention in the UK under immigration powers, and how detention affects the health and healthcare of those detained under these powers.

4. We have brought judicial review claims and intervened in such litigation:

a. In 2009, we initiated judicial review proceedings against the Secretary of State for the Home Department to ensure access to independent medical practitioners to immigration detainees. The Secretary of State then conceded the matter without the need for it to proceed to a permission decision (that is a decision on whether permission should have been given for us to bring our claim before the High Court).

b. In 2010, we brought judicial review proceedings against the Secretary of State for the Home Department challenging her policy of removing persons from the UK without notice or with less notice than the standard minimum of 72 hours. That claim succeeded in the High Court, and the Secretary of State’s appeal to the Court of Appeal against that decision was dismissed. [1]

c. In 2011, we intervened in proceedings brought by three claimants making claims against the Secretary of State for the Home Department of unlawful detention. The case concerned the Secretary of State’s policy concerning the circumstances in which detention is to be considered unsuitable for those with serious illness, in the instant case the three claimants had each been diagnosed as HIV+. Whereas the Court of Appeal left open the question of whether the treatment of one of the claimants, in particular, may have breached Article 3 of the European Convention on Human Rights, the claims of unlawful detention were rejected and the challenge to the Secretary of State’s policy, with which our intervention was concerned, was unsuccessful. [2]

d. In 2012, we intervened in a claim brought against the Secretary of State for the Home Department. The case concerned the unlawful detention of a mentally ill person, and the Secretary of State’s policy concerning the circumstances in which detention is to be considered unsuitable for those suffering with mental illness. The Secretary of State had lost before the High Court, and we sought to intervene on the Secretary of State’s appeal to the Court of Appeal. However, after we had sought to intervene, the Secretary of State withdrew her appeal. [3]

e. In 2013, we intervened with Mind in a claim of unlawful detention against the Secretary of State for the Home Department. This case raised similar matters to those raised in the case in 2012 where we had sought to intervene, but where our intervention fell away by reason of the Secretary of State’s withdrawal of her appeal. The claim of unlawful detention against the Secretary of State was successful, but the High Court decided that only nominal damages should be awarded. However, the Court of Appeal has since remitted the matter to the High Court because its decision had been founded on an overly restrictive interpretation of the Secretary of State’s written policy – a matter of considerable importance to us and, more importantly, those who are detained while suffering from mental illness. [4]

5. We have two broad concerns in bringing or seeking to intervene in judicial review proceedings. Firstly, to ensure that the treatment of those detained under immigration powers is lawful and in accordance with published policy, where that policy is itself lawful. Secondly, to ensure that where the court is considering matters that will affect large numbers of people, it can do so on the basis of a full understanding of the implications of the arguments before it. This should have the advantage of reducing the need for individual claimants to bring further litigation, or reducing the complexity, length and cost of any such litigation. This should be achieved by a more fully considered and widely applicable ruling from the court, assisting the Secretary of State to better identify and avoid failings in her treatment of current and future detainees.

6. Given so much has been said, without any evidence-base being produced, about the misuse of judicial review by so-called campaigning organisations to attract attention or for ‘campaigning purposes’, [5] it is necessary that we should say a little more about the way in which we make decisions as to whether or not to bring a claim or seek to intervene.

7. We are very careful to consider the merits of bringing or engaging in litigation. As well as considering the merits internally among our experienced and expert staff and management committee, we have an advisory group of volunteers to assist us to consider merits and take advice from expert public lawyers when considering such matters. It is of considerable importance to us to exercise caution. Engaging in litigation can be costly in several respects. It consumes a considerable amount of our very busy staff’s time, and that of our volunteers. While we may secure pro bono representation and may secure a protective costs order, were our claim thought to be so unmerited as to be frivolous we might nonetheless incur financial consequences. Indeed, not only could we be liable to a costs order by the court, unmerited litigation would be likely to jeopardise the confidence of current and prospective funders. Moreover, given that an important aspect of our policy work involves maintaining a dialogue with the Home Office in an effort to both avoid excesses on its part and more generally to seek to improve the circumstances of those liable to detention, it is not in our interests to engage in frivolous litigation. Further, unsuccessful litigation is something we would very much wish to avoid since an unhelpful ruling by the court is likely to be relied upon by the Home Office in resisting our attempts to influence it to amend its policy or practice.

8. Insofar as we may be considered to be a campaigning organisation by reason of our undertaking policy work, we do not accept there to be any conflict between our policy and public activities and our considering, and where appropriate, engaging in litigation. We should always prefer to secure a desired end without the need to litigate. Regrettably, this is not always possible. Even in what might be thought to have been the clearest of matters (for example, access of independent medical practitioners to places of detention), it was ultimately only through the threat and initiation of judicial review litigation that the Secretary of State for the Home Department agreed not to implement proposed new restrictions on access.

9. Finally, so that members of the Committee may more fully appreciate what is at stake in many of these cases, with which we concern ourselves, we highlight that since 2011 there have been five rulings by the High Court of treatment of detainees that has been contrary to the Article 3 prohibition of torture, inhuman and degrading treatment or punishment. [6]

Clause 50

10. The intention behind clause 50 reveals a dangerous misunderstanding of judicial review and its purpose. Judicial review is essentially concerned not with outcomes, but with process. Decisions, actions or omissions, by public authorities should be reached or taken lawfully – that is they should be within the powers of those authorities, as decreed by Parliament, and be arrived at by a lawful process, in accordance with any published policy or statutory decree, and having regard to all relevant matters and discounting irrelevant matters. Subject to these considerations, the court is not concerned with the outcome.

11. We suggest that there is a very strong public interest in maintaining the court’s capacity to deal with such matters, and not to interfere with the court’s focus. Public authorities are often charged with making decisions that will be contentious to some individual or group or another. The legitimacy of such decision-making is greatly invested in the procedure by which the decision is reached. Where, for example, published policy is not followed, the legitimacy of a decision will generally be fundamentally undermined. Moreover, if public authorities are encouraged to think that they can avoid any consequences of their failure to abide by their published policies by advancing the argument that they would in any case have decided in the same way had they complied, it can be expected that they will more regularly flout their obligations.

12. The Home Office has an especially poor record in this regard. [7] Our experience strongly suggests that clause 50 if enacted will risk even more frequent and more serious breaches of policy and law by the Home Office.

13. As regards the court’s focus, by requiring the court to routinely and squarely confront the question of what will the public authority do if required to revisit its decision, clause 50 will invite the court into the very arena that currently is reserved, and rightly so, to the public authority – that is the question of what should be the ultimate outcome or decision. In doing so, this may spark further litigation, if a litigant is encouraged to think that the public authority will not and should not make the same decision by reason of the court’s reasoned decision that this is not expected.

Clauses 53 & 54:

14. We are a small charity. Clause 53 and 54 would introduce serious deterrents to our bringing or seeking to intervene in judicial review litigation.

15. We could not afford to face the all but inevitability of a costs order against us under clause 53 in a case where we intervened. We do not know what is meant by "exceptional circumstances" (clause 53(3) & (6)), which is a particularly unattractive term. If out of twenty or fifty cases, in all but one the intervention significantly aids the court and the public interest, and potentially saves future costs by assisting the public authority to better understand its obligations and avoid future unlawful action, does this mean these cases are not ‘exceptional’? It would seem so. In any event, clause 53 will likely mean we cannot intervene because of the likely financial consequences. Having regard to those cases where we have intervened (see previous), this would likely mean that the High Court when considering such matters as whether the Home Office policy purporting to offer safeguards against the unnecessary, excessive and harmful detention of torture survivors and mentally ill persons will in future not have the benefit of our intervention; and many more and more complex and time-consuming claims may have to be brought successively by individual claimants for want of the capacity of the High Court to review the matter more fully and provide clear guidance to the Secretary of State for the Home Department to avoid continued mistreatment of detainees.

16. We would similarly face great difficulty in proceeding with litigation without knowing whether we would receive any costs protection, until a decision on whether we were to be granted permission (leave) to bring the matter before the High Court, as would be the case under clause 54(3) if implemented.

17. The approach which clause 54(3) would introduce would moreover greatly increase the capacity of a public authority, faced with a claimant of limited means, to bring pressure upon that claimant not to pursue litigation following a letter before claim, or to withdraw a claim, by emphasising or indeed exaggerating the public authority’s potential costs and hence the risks to the claimant. In our experience, the Home Office is already far from a ‘well-behaved’ litigant, frequently failing to comply with directions of the court and failing to disclosure grounds or evidence in a timely fashion. [8] Clause 54(3), if implemented, would only increase incentives for it to continue to behave in such a way so as to increase the pressure upon a claimant to reconsider pursuit of a claim.

March 2014

[1] R (Medical Justice) v SSHD [2010] EWHC 1925 (Admin); [2011] EWCA Civ 269

[2] R (MD(Angola) & Ors) v SSHD [2011] EWCA Civ 1238

[3] R (HA(Nigeria)) v SSHD [2012] EWHC 979 (Admin)

[4] R (Das) v SSHD [2013] EWHC 682 (Admin); [2014] EWCA Civ 45

[5] Similar claims were repeated by the Secretary of State for Justice at Second Reading – Hansard HC, 24 Feb 2014 : Columns 57 & 58

[6] R (S) v SSHD [2011] EWHC 2120 (Admin), R (BA) v SSHD [2011] EWHC 2748 (Admin), R (HA(Nigeria)) v SSHD [2012] EWHC 979 (Admin), R (D) v SSHD [2012] EWHC 2501 (Admin), and R (S) v SSHD [2014] 50 (Admin)

[7] There are far too many examples to attempt any comprehensive catalogue of the Home Office record, and many cases doubtless do not come to light, but among the most egregious of which we are aware are (i) the continued unlawful detention for removal to Somalia of a Dutch national whose Dutch passport lay ignored on a Home Office file for several months (R (Muuse) v SSHD [2010] EWCA Civ 453); (ii) the maintaining and operating of a secret and unlawful policy on detention for over two years (R (Lumba) v SSHD [2012] 1 AC 245); (iii) the application of an unlawful policy in circumstances to which it in any event plainly did not apply so as to remove a refugee to his country of origin without notice deliberately to avoid his being able to contact his lawyer or others (R (N) v SSHD [2009] EWHC 878 (Admin)); (iv) the continued detention of children in contravention of the statutory duty to have regard to their welfare (R (Suppiah & Ors) v SSHD [2011] EWHC 2 (Admin)); (v) the continued detention of torture survivors having failed to give effect to policy providing for safeguards against continued detention of torture survivors (R (EO & Ors) v SSHD [2013] EWHC 1236 (Admin)); (vi) operating unlawful policy on the use of force against pregnant women and children (R (Chen & Ors) v SSHD CO/1119/2013); and repeated examples of continued detention of mentally ill persons in circumstances violating the prohibition on torture, inhuman or degrading treatment or punishment (op cit).

[8] It may be useful to reflect on the conduct of all parties to proceedings and the capacity of the court to regulate conduct, but it is clear that substantial savings could be made if the Home Office (as we expect other public authorities) were more astute to comply with court directions, respond to letters before action and generally improved its conduct of litigation; and gave effect to court rulings, desisting from repeat unlawful practices thereby necessitating new litigation.

Prepared 25th March 2014