Have a question?
033 3772 0409

Public Law Solicitors

Devilish Details: Detaining Victims of Torture (7 December 2016)

Date: 07/12/2016
Duncan Lewis, Public Law Solicitors, Devilish Details: Detaining Victims of Torture

A short parenthesis in Government policy has resulted in the continued detention of hundreds of victims of torture. The policy requires caseworkers and medical practitioners to interpret torture according to the definition used in the United Nations Convention Against Torture (‘UNCAT’).

This new policy on torture, promulgated on 12 September 2016, follows the ‘Shaw Review’, in which the eponymous senior civil servant exposed the Government’s systemic failures in addressing the ‘welfare in detention of vulnerable persons.’ Accepting the ‘broad thrust’ of the report, the Government stated its intention to ‘strengthen the existing presumption against the detention of those who are particularly vulnerable to detention’. The apparent purpose of the policies in 'Guidance on adults at risk in immigration detention' (‘the guidance’) and ‘Detention Services Order 9/2016’ (‘DSO’), was to put this intention into practice.

In practice, however, far from strengthening the safeguards for vulnerable people, the new policy quietly sweeps away the existing barriers to the detention of victims of non-state torture.

Rule 35 of the Detention Centre Rules 2001 requires ‘the medical practitioner [to] report to the manager [of the detention centre] on the case of any detained person who he is concerned may have been a victim of torture’. The stated presumption was, and is, that a victim of torture should not be detained. The courts have defined torture in a way that includes acts perpetrated by both state and non-state agents (per Burnett J in R (EO & others) v SSHD [2013] EWHC 1236 (Admin)). The UNCAT definition, however, restricts the definition of torture to that which has been ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’ (emphasis added).

Essentially, using the UNCAT definition enables Government caseworkers to disregard evidence of torture where it has been perpetrated by non-state agents when considering whether or not the individual is particularly vulnerable to harm in detention. This is an affront to humanity and common sense. Is the shock of a non-state electric-prod weaker? Is it a consolation to know that the whip splitting your back is not wielded by a state agent? UNCAT was drafted to prevent the perpetration of torture worldwide, it was not written with an eye to the welfare of victims of torture in immigration detention.

Duncan Lewis Solicitors and Bhatt Murphy (instructed by Medical Justice) are challenging the legality of the new definition of torture on the following grounds:

First, the DSO directs medical practitioners to act in a way that contradicts their obligations under the Detention Centre Rules. Rule 35 requires practitioners to report concerns of torture, whether or not the nation state was culpable, while the DSO directs practitioners to only report concerns when the torture is the responsibility of the state.

Second, the narrowing of the definition of torture is irrational. Whether the torture was perpetrated by a state or a non-state agent is irrelevant to whether or not it is appropriate to detain the individual.

Third, implicit in Rule 35 is Parliament’s recognition that all torture is relevant to the vulnerability of the detainees, but the new policy denies the relevance of non-state torture.

Fourth, the new definition conflicts with EU law. The EU Reception Directive, which sets minimum standards for the reception of asylum-seekers, requires member states to take torture into account when implementing the directive in national legislation. In the EU legal order, the definition of torture includes acts perpetrated by non-state agents.

Fifth, in each individual case, the caseworker’s decision to maintain detention was tainted by the caseworker’s application of the flawed guidance.

In this riot of acronyms, policy and law it is easy to lose sight of the human suffering resulting from this new definition. The welfare of extremely vulnerable people is at stake. Detention centres are violent and unhappy places, as the murder last Friday of a 64 year old detainee in Colnbrook IRC reminded us all too emphatically. Those left in detention under the new policy include victims of torture at the hands of organised criminal gangs, human smugglers, traffickers, rival tribes, vigilante mobs or even their own families. They are now victims of the Government’s new policy on torture.

Dr Michael Korzinski, a trauma and psycho-social expert, submitted a report to the Court which outlines the particularly severe harm that detention has on a victim of torture. Korzinski reports that ‘the total loss of control and helplessness’ resulting from detention can remind victims of their torture and can cause extreme emotional distress. Even ‘the clanking of doors and rattling of keys’, Korzinski notes, ‘may replicate the physical environment which has accompanied some victims’ experience of torture’. Korzinski’s report is supported by that of Dr David Lawrence Bell, a consultant psychiatrist, who describes how for victims of torture, ‘it is common for detention to result in complete loss of hope, worsening of depression and suicidal idealisation resulting in suicide attempts or other forms of self-harm such as self-cutting and head-banging’.

Korzinski and Bell clearly and definitively demonstrate the consensus in their field that detention is particularly harmful to victims of torture and that therapy for such victims is inadequate in detention. Both experts are unequivocal that, as Korzinski puts it, ‘the experience of torture is not defined by the hands that perpetrate the act, nor by the location where that act occurs’. Korzinski conclusively damns the new policy on torture:

‘The Government’s policy has at its core a false distinction that risks in practice placing the needs of victims who have been subjected to one form of torture over the needs of victims whose torture experience does not fall within the strict criteria they have set (i.e torture perpetrated by non-state rather than state agents). I have not been able to find any scientific evidence that supports such a delineation’ (his emphasis)

On Monday 21 November, Mr Justice Ouseley granted interim relief to the Claimants. In an order sealed on 2 December 2016, the High Court judge ruled that the Government must, with effect from 00.01am on 7 December 2016, and pending the conclusion of the proceedings, revert to the unrestricted definition of torture. The order directs that the full judicial review hearing be listed for March 2017.

Lewis Kett, a Solicitor at Duncan Lewis who is part of the team representing the Claimants, had the following to say:

“The temporary suspension of the UNCAT definition of torture could potentially affect hundreds of immigration detainees between now and March, many of whom were told by the Home Office their detention would be maintained simply because they did not meet this restrictive definition. As a result, we expect this to lead to some of the most vulnerable persons in immigration detention finally being released. We hope the Court will agree in March that the adoption of the UNCAT definition in the policy was unlawful and thus ensure that in the long-term all victims of torture will be sufficiently protected.”

Patrick Page is a Caseworker in the Public Law department at Duncan Lewis' Harrow office. He specialises in immigration and asylum law.

Duncan Lewis’ Public Law department, recommended by Legal 500 2016 for its depth of experience in immigration and civil liberties challenges, is now well established and known by the Legal Aid Agency, the Courts, and the Treasury Solicitor. This enables us to quickly and effectively obtain funding, manage cases with the Court (get quick listings, direct access to Court lawyers) and communicate effectively with team leaders at Treasury Solicitors.


For all Public Law related matter contact us now.Contact Us

Call us now on 033 3772 0409 or click here to send online enquiry.
Duncan Lewis is the trading name of Duncan Lewis (Solicitors) Limited. Registered Office is 143-149 Fenchurch St, London, EC3M 6BL. Company Reg. No. 3718422. VAT Reg. No. 718729013. A list of the company's Directors is displayed at the registered offices address. Authorised and Regulated by the Solicitors Regulation Authority . Offices all across London and in major cities in the UK. ©Duncan Lewis >>Legal Disclaimer, Copyright & Privacy Policy. Duncan Lewis do not accept service by email.