The approach taken by the Inquiry

7. The starting point is section 2 of the Inquiries Act 2005. In making my findings in this Report, I have not made any determination that any party has acted in “breach” or in “violation” of Article 3, or that any person has been subject to treatment in “breach” or in “violation” of it.
8. However, I am required to fulfil the Terms of Reference and so I must reach specific conclusions about the treatment of detained people, but – for the reasons explained below – I have formulated a two-stage test which I have applied to the incidents I have considered.¹ There is no ‘non-technical’ or ‘non-legal’ meaning of the phrase “mistreatment contrary to Article 3 ECHR”. To attempt any such definition would be artificial, and I have therefore considered the wording of Article 3, which is “inhuman or degrading treatment or punishment”. In any event, I have to identify the facts underlying that mistreatment and who is responsible for it.² I can only arrive at any such conclusions where I have already found that there is credible evidence of mistreatment.³
9. The Home Office referred to a determination made by the Chair of the Billy Wright Inquiry that, where its Terms of Reference used the terms “wrongful act or omission” and “intentional or negligent”, these should be considered in a “non-technical and non-legal sense only”.⁴ That inquiry’s Terms of Reference did not provide any definition of “negligent” or “wrongful act or omission” by reference to a legal standard.⁵ By contrast, the Terms of Reference for this Inquiry do provide definitions. Consequently, I consider that it is permissible for me to rely on the legal definition of Article 3 as well as the case law.
10. It is important to highlight that section 2(2) qualifies section 2(1) in providing that a chair of a public inquiry must not be inhibited in discharging their functions by any likelihood of liability being inferred from the facts that are determined. In his report for the Azelle Rodney Inquiry, Sir Christopher Holland identified “unreasonable” and therefore “unlawful” use of fatal force by a police officer who shot and killed Mr Rodney.⁶ He explained the tension between section 2(1) and section 2(2) as being:

“at once a restrictive and a permissive provision. I am not given the task of determining civil or criminal liability, but neither am I inhibited from making findings which amount to the constituents of civil wrongs or criminal acts.”⁷

11. Sir Christopher Holland made a direct finding that the force used by a police officer was disproportionate, unreasonable and unlawful.19 This provides an example of legal definitions being used and liability not being determined, although liability may be inferred from the Chair’s findings.
12. I considered Counsel to the Inquiry’s earlier suggestion that there are two essential questions to be answered before any finding regarding the ‘credibility’ of a claim of mistreatment can be made:

• Do the facts give rise to an identifiable incident of physical or verbal abuse capable of amounting to mistreatment contrary to Article 3?
• If so, does it amount to mistreatment contrary to Article 3?⁸

13. However, I concluded that the second part of this test may be considered an invitation to make a finding of civil liability – that a certain act would amount to mistreatment contrary to Article 3. As I am not permitted to make such a finding under section 2 of the Inquiries Act 2005, I have instead formulated the following test, which I have applied to each of the incidents that I have considered in Part C:

• Stage 1: Is there ‘credible’ evidence of acts or omissions that are capable of amounting to mistreatment contrary to Article 3 – that is to say, torture, inhuman and/or degrading treatment or punishment?
• Stage 2: Where that evidence is ‘credible’, what are the underlying facts?

Stage 1 acts as a filter for incidents about which I then go on, at Stage 2, to make factual findings.

14. In considering whether there was credible evidence of mistreatment, I assessed whether the treatment attained “a minimum level of severity”.⁹

14.1 In respect of people who are detained, the minimum level of severity is distress or hardship of an intensity that exceeds the unavoidable level of suffering inherent in detention.¹⁰ The ill treatment must be sufficiently severe to fall within the scope of Article 3, considering all the circumstances of the case, including the duration of the treatment or punishment, any physical or mental effects and, in some cases, the age and state of health of the victim.¹¹ Treatment may be “inhuman and degrading” in violation of Article 3 where the nature and extent of the injuries to which the applicant was subjected during police detention “must have caused him mental and physical suffering”, even though it did not result in any long-term damage to health.¹²

14.2 If the mistreatment was sufficiently severe, I considered whether it was “inhuman”, “degrading” or both. The circumstances in which treatment may be considered “inhuman” include acts which are premeditated, applied over long periods and cause either actual bodily injury or intense physical and mental suffering.¹³ Treatment may be considered “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, their human dignity, or arouses feelings of fear, anguish and inferiority capable of breaking their physical or moral resistance.¹⁴

14.3 Deliberate humiliation and debasement of a victim is a factor that may be taken into account when considering degrading treatment, but such a purpose is not required in law to find a breach of Article 3.¹⁵ Case law has also established that the use of unnecessary force on a detained person can diminish human dignity and can be contrary to Article 3, even where there has been no injury caused as a result.¹⁶ Evidence of the actual effect on the person may not be a major factor. For example, treatment of a mentally ill person may be incompatible with Article 3 in the protection of human dignity, even though that person may not be able to point, or be capable of pointing, to any specific ill-effects.¹⁷ Even without evidence of actual bodily injury or intense physical or mental suffering:

“where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3”.¹⁸

14.4 Although subjective suffering will often be ‘crucial evidence’, the test is an objective one.¹⁹ Treatment may also be degrading due to its intrinsic character.²⁰

14.5 If the treatment passes the “minimum level of severity” threshold, but goes further than “inhuman or degrading treatment”, consideration will be given to the definition of “torture”. “Torture” encompasses deliberate, inhuman treatment causing very severe and cruel suffering, whether physical or mental.²¹

14.6 Detained people with mental disorders are more vulnerable than other detained people.²² Certain aspects of life in detention pose a greater risk to their health, as these are a source of stress and anxiety.²³ A vulnerable detained person may be unable to complain coherently, or at all, about how they are being affected by any particular treatment.²⁴ This exacerbates the risk that such detained people suffer from a feeling of inferiority. It also means that they are more vulnerable to being mistreated. The authorities are under a duty to protect them.²⁵

15. In considering the evidence relating to the incidents discussed in this part of the Report, even if not expressly referred to in relation to specific incidents, I have had regard to the following non-exhaustive list of questions:

• Did the treatment attain a minimum level of severity, such that there is credible evidence that it was inhuman or degrading treatment or punishment?
  • Was it degrading – did it humiliate or debase an individual, showing a lack of respect for or diminishing the detained person’s human dignity, or arouse feelings of fear, anguish or inferiority capable of breaking the individual’s moral and physical resistance?
  • Was it inhuman – was it premeditated or applied for long periods, and did it cause actual bodily injury or intense physical or mental suffering?
  • If a minimum level of severity was attained, did the treatment in fact amount to torture, ie did it amount to deliberate, inhuman treatment causing very serious and cruel suffering?
• Was the treatment or punishment physical or verbal?
• What was the severity of the treatment or punishment?
• What was the context of the treatment or punishment? (For example, what was the apparent reason for the treatment? Did it take place in front of other members of staff? Did it take place in front of other detained people?)
• Did the severity of the treatment or punishment go beyond the inevitable element of suffering or humiliation connected with legitimate detention?
• What was its duration?
• If physical force was used, was this strictly necessary?
• Was there any discriminatory, racist, religious or homophobic element to it?
• Was there an intention to humiliate and degrade?
• What was the physical or mental effect of the treatment or punishment, if any?
• If there was a physical effect, did the detained person sustain actual bodily injury (although the absence of injury is not determinative) or did the treatment involve intense physical suffering?
• If there was a mental effect, did the treatment involve intense mental suffering (although the absence of intense mental suffering is not determinative)?
• Was the detained person’s state of physical or mental health such that it made them more vulnerable to the treatment or punishment?
• Did the detained person suffer from a physical or mental illness which was exacerbated by the treatment or punishment?
• Did the detained person’s age make them particularly vulnerable to the treatment or punishment?

16. As noted above, the Inquiry’s approach to the standard of proof and relevant weight of evidence is set out in detail in Appendix 1, reflecting key principles established in other public inquiries and case law.²⁶
17. I have not considered in isolation whether there is credible evidence that general and/or systemic failures in policy and procedure are capable of amounting to mistreatment contrary to Article 3. However, where general and/ or systemic failures have caused or contributed to an individual act of mistreatment, I have considered them in my overall conclusion in relation to that particular incident. I have also taken account of these types of failures where they may have contributed to an individual act of mistreatment, even though they alone would not have met the threshold for such a finding.

1. Terms of Reference, Brook House Inquiry, Purpose[↩]
2. Terms of Reference, Brook House Inquiry, para 1[↩]
3. Terms of Reference Brook House Inquiry Purpose[↩]
4. HOM0332165_015-016 paras 48-49[↩]
5. The Billy Wright Inquiry–Report, HC 431 (14 September 2010), p5[↩]
6. The Report of the Azelle Rodney Inquiry, HC 552 (5 July 2013), paras 1.6.2, 19.1-19.11 and 21.13[↩]
7. The Report of the Azelle Rodney Inquiry, HC 552 (5 July 2013), para 1.6.2[↩]
8. Counsel to the Inquiry 5 April 2022 3/4-14[↩]
9. Ireland v United Kingdom Application no. 5310/71 1978 2 EHRR 25 para 162; Soering v UnitedKingdom Application no. 14038/88 1989 11 EHRR 439 para 100; Vilvarajah v UK Application no. 13163/87 1992 14 EHRR 248 para 107; Keenan v United Kingdom Application no. 27229/95 2001 33 EHRR 38 para 109[↩]
10. Kudła v Poland(Application no. 30210/96) (2000) 35 EHRR 11 paras 92-94 Tyrer v United Kingdom Application no. 5856 72 1978 2 EHRR 1 para 30 Soering v United Kingdom Application no. 14038/88 1989 11 EHRR 439 para 100; and Tv United Kingdom Application no. 24724/94 2000 30 EHRR 121[↩]
11. Ireland v United Kingdom (Application no. 5310/71) (1978) 2 EHRR 25 para 162; Tyrer v UnitedKingdom Application no. 5856/72 1978 2 EHRR paras 29-30; Soering v United Kingdom Application no. 14038/88 1989 11 EHRR 439 paras 89 and 100[↩]
12. Nadrosov v Russia (Application no. 9297/02) 2008 paras 36-37[↩]
13. Labita v Italy (Application no. 26772/95) 2000 para 120 and Kudła v Poland (Application no. 30210/96) 2000 para 92[↩]
14. Ireland v United Kingdom (Application no. 5310/711978 2 EHRR 25 para 167; Abdulaziz, Cabalesand Balkandali v UK Application nos 9214/80; 9473/81; 9474/81 1985 7 EHRR 471 paras 90- 91; Soering v United Kingdom Application no. 14038/88 1989 11 EHRR 439 para 100; Bouyid vBelgium Application no. 23380/09 ECHR 2015 para 87[↩]
15. Gäfgen v Germany (Application no. 22978/05) ECHR 2010 para 89; Ilaşcu and Others v Moldova andRussia ECHR 2004 para 425; M.S.S. v Belgium and Greece ECHR 2011 para 220[↩]
16. Keenan v United Kingdom (Application no. 22978/05) (2001) 33 EHRR 38 paras 112-113[↩]
17. Keenan v United Kingdom(Application no. 27229/95) (2001) 33 EHRR 38 paras 112-113[↩]
18. Bouyid v Belgium (Application no. 23380/09) ECHR 2015 para 87[↩]
19. The Queen on the Application of ASK (by his Litigation Friend the Official Solicitor) v SSHD[2019] EWCA Civ 1239 paras 70-71[↩]
20. Separate Opinion of Judge Sir Gerald Fitzmaurice in Ireland v United Kingdom (Application no. 5310/71) 1978 para 28[↩]
21. Ireland v United Kingdom (Application no. 5310/71) (1978) 2 EHRR 25. See in particular paras 162- 164[↩]
22. Rooman v Belgium(Application no. 18052/11) (2019) ECHR 105 para 145[↩]
23. Rooman v Belgium(Application no. 18052/11) 2019 ECHR 105 para 145[↩]
24. Rooman v Belgium Application no. 18052/11) (2019) ECHR 105 para 145[↩]
25. Rooman v Belgium (Application no. 18052/11) (2019) ECHR 105 para 143[↩]
26. See, for example Undercover Policing Inquiry: Standard of Proof Ruling, 13 January 2016, paras 10-12 and in particular Annex 1 the submissions of Counsel to the Inquiry – see paras 35-39; The Report of the Baha Mousa Inquiry Volume 1 paras 1.114-1.115 Adali v Turkey Application no 3818797 ECHR 2005, particularly paras 216 and 239Ananyev Russia Application nos 4252507 6080008 2012 55 EHRR 18 paras 121-122; VargaHungary 2015 61 EHRR 30 para 68 and MursicCroatia 2016 10 WLUK 454 paras 127-128[↩]