No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
An absolute right under the European Convention and carrying “operational” (proactive) duties on public servants involved.
The Conservative Party HR Strategy 2014 proposed that criteria for degradation be weakened. These cases illustrate just how badly in our imperfect world we need all the Convention rights with their modern criteria, together with the HR Act’s Section 6 duty on public authorities to work according to those that apply to all these cases.
- The NHS and degradation. Articles 2 (Life) and 8 (Dignity) also apply
The HR Act was very widely used in the aftermath of the Mid-Staffs and other hospital scandals. Hearings were usually out of court, the cases being too stark for the hospital trust to challenge them in public. Judges ruled that well over 1000 elderly people had suffered degradation and many also death. Lawyers at the medical and human rights law firm Leigh Day emphasise that money was far from the main concern of victims or their families, but the judges did also rule that victims should be compensated, as recovering from degradation can be costly as can death itself.
It was the Human Rights Act that allowed these lawyers to cut through the complex requirements of our traditional medical negligence laws and to present evidence of systematic failure of these hospitals to work in compliance with the Convention rights, as required by HR Act Section 6
- Degradation and asylum.
Until 2002 the Home Office provided allowances for food and shelter to applicants who were on the verge of destitution, but the Nationality, Immigration and Asylum Act (2002) limited this to applicants who registered their asylum claim as soon as practicable after arrival in the UK. Adams, Limbuela and Tesema had registered on the day or the day after arrival, which the Home Office judged too late.
However, emphasising that freedom from degradation and inhuman treatment is an absolute-right under the European Convention, the House of Lords unanimously judged that this would cause the destitution of all asylum seekers other than those lucky enough to have family or friends in the UK. Further the judges noted that the government itself created this situation by banning asylum seekers from working.
Although financial relief for asylum seekers remains absolutely minimal (£40 / week for a single adult), and there are restrictions about where it can be spent, it is noticeable that this House of Lords ruling has at least held since 2008, the human rights of asylum seekers still having some protection in the recent Asylum and Immigration Act (2013-14).
3. Degradation and looked after children: A and S v Lancashire CC. Articles 8 (Dignity) and 6 (Fair Trial) also apply
A and S became “looked after” children at 2 yrs 9 months and 6 months when their mother was convicted of wilful neglect. Extended family options for their care quickly fell through, their father committed suicide and their first foster carers substantially abused them.
Social Services then applied for them to be freed for adoption but the poor case management massively compounded a vicious cycle of behavioural, emotional and cognitive difficulties. In the next 14 years A had 77 placements (12 main , 29 shorter and 36 respite which were with 19 different respite carers). Twelve of the placements were with S whose total number was similar. There was a second abusive placement and one reasonably stable placement that lasted 6 years. At that time freeing for adoption minimised social services’ responsibilities to encourage links with the extended birth family and also to help them express their own wishes about their situation.
At age 16 while in foster care A asked a solicitor to arrange for the adoption freeing order to be lifted so he and S could contact their brothers and aunts, so the case came to the High Court. Psychological and psychiatric assessments described “irreparable damage” with both boys showing very severe disturbance and lack of trust likely to continue for many years.
Like the hospital scandal settlements (1. above) the HR Act allowed the judge to cut through traditional proof beyond reasonable doubt of gross negligence and to rule that Lancashire Social Services Department violated three European Convention rights: the Prohibition on Torture and Degradation (due to the two abuse placements); the Right to Family Life (Article 8); and Article 6 (the Right to a Fair Trial / to state one’s case). The hefty penalty that the judge ordered recognised that being disturbed is expensive, e.g. that high quality therapy will be needed, possibly for long periods of their lives.
- Black Cab case: police “operational” duty in cases of particularly severe violence
The sequence of possibly 100 drug and alcohol assisted rapes committed from 2002 by black cab driver John Worboys is notorious. He was found guilty in 2009 at Croydon Crown Court of five of the sexual assaults. 14 of the women had complained to the police over several years about similar incidents.
In a test case the High Court found that two of the women were subject to degrading treatment by Worboys and that under the HR Act the police, in this case the Metropolitan Police Force, had an operational (proactive) duty to thoroughly investigate reports of severe violence in the interests of justice for the victim and for the wider prevention of similar attacks.
Like the 1. Protest case this one adds to pressure on the police to reduce their traditional HR immunities.
Black-Cab-Guardian (shortly to appear on www.bailli.org).
More discussion: Positive obligations
- Mental health of detainees refused asylum and awaiting deportation Article 5 – Liberty – also applies)
HA came to Britain in 2007 and overstayed his visa. He was imprisoned for selling cannabis, and when due for release was detained for deportation. In jail he was a loner but much worse followed precipitated by the chaotic detention conditions of fortnightly transfers between jails often without records. He became anorexic dragging his mattress into the cell toilet doorway and drinking only from the toilet. He was only calm in conditions of isolation. No lawyer attended and very few doctors but after 4 months, a psychiatrist recommended NHS Mental Health Unit (MHU) assessment away from detention, and activation of regular questions to determine if detention itself was causing the mental health problems .
6 months bureaucracy followed at highest UK Border Agency & Home Office (HO) levels before MHU placement. Unsurprisingly the diagnosis was paranoid schizophrenia. Stabilisation by drugs and counselling was slow and difficult. The MHU psychiatrist strongly recommended that he not be detained again, but this was refused at very high HO levels and the Border Agency immediately entered the Unit and re-detained him.
HA’s symptoms quickly returned. A solicitor became involved and he was freed on bail by the High Court who found that the Home Secretary had violated the Prohibition on Degradation in the form of the psychosis; and had committed false imprisonment in the form of the post-treatment refusal of an alternative to detention.
HR Act Section 6;
See also Shaw’s review for the Home Office of detention of the vulnerable (01-2016): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/490782/52532_Shaw_Review_Accessible.pdf