DD v Secretary of State for Home Department

Factual and Procedural Background

This opinion concerns a preliminary issue in an appeal by the Appellant against the revival, on 3 July 2014, of a Terrorism Prevention and Investigation Measure (TPIM) under the TPIM Act 2011. The substantive appeal was scheduled for a later date due to the disclosure timetable and the Appellant’s mental health and the impact of the TPIM led to an expedited hearing on the preliminary issue. The issue, as framed by an order of Judge Cranston, was whether the imposition of the TPIM on the Appellant breaches his rights under Article 3 of the European Convention on Human Rights (ECHR) and consequently section 6 of the Human Rights Act (HRA).

The Appellant is a Somali national who arrived in the UK in 2003, granted asylum and indefinite leave to remain. He was charged in 2008 with fundraising for a terrorist organisation but acquitted in 2009. A TPIM was first imposed in October 2012. The Appellant was charged and convicted multiple times for breaching the TPIM conditions, resulting in periods of custody and revocation and revival of the TPIM. His mental health deteriorated during this period, with psychiatric evidence beginning from October 2013. The TPIM conditions include residence restrictions, financial limitations, association prohibitions, reporting requirements, exclusion zones, and the requirement to wear an electronic GPS tag.

Legal Issues Presented

1. Whether the imposition and continuation of the TPIM on the Appellant constitutes a breach of Article 3 ECHR, which prohibits torture or inhuman or degrading treatment or punishment.
2. Whether the TPIM conditions, particularly in light of the Appellant’s mental health, amount to inhuman or degrading treatment.
3. The relevance of the legitimacy, necessity, proportionality, and management of the TPIM in assessing any breach of Article 3.

Arguments of the Parties

Appellant's Arguments

• The TPIM causes intense mental suffering amounting to inhuman treatment and fear and anguish capable of humiliating and debasing, thus breaching Article 3.
• The electronic GPS tag is the single most distressing condition, exacerbating paranoid delusions.
• The cumulative effect of the TPIM conditions and the manner of their management by the Secretary of State have caused severe mental health deterioration.
• The Home Office failed to adequately manage the conditions, such as delayed restoration of computer access affecting the Appellant’s children’s education, and insufficient community mental health support.

Respondent's Arguments

• The TPIM is a legitimate and necessary measure to address the national security risk posed by the Appellant.
• The threshold for inhuman or degrading treatment under Article 3 is not met as the Appellant receives appropriate psychiatric treatment.
• The Appellant’s mental illness would require treatment regardless of the TPIM, and any stress or flare-ups are not solely attributable to TPIM conditions.
• The Secretary of State assumes the Appellant is receiving necessary treatment and that the TPIM conditions are proportionate to the risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the severity of the TPIM conditions and their impact on the Appellant’s mental health, particularly focusing on the electronic GPS tag, restrictions on association, reporting requirements, financial limits, and computer access. Psychiatric evidence from two independent experts was carefully considered, showing that the Appellant suffers from severe mental illnesses including PTSD and a schizoaffective disorder or schizophrenia, with symptoms exacerbated by the TPIM conditions.

The Court acknowledged that the TPIM is a legitimate and necessary measure to counter the national security risk posed by the Appellant, and that the conditions were proportionate to that risk, as assumed for this preliminary issue. The Court emphasized that the assessment of an Article 3 breach must consider the legitimacy, necessity, proportionality, intent, and availability of alternatives regarding the treatment or restrictions imposed, not solely the intensity of suffering.

The Court found that while the TPIM conditions cause severe distress and exacerbate the Appellant’s mental illness, the suffering does not cross the high threshold required to constitute inhuman or degrading treatment under Article 3. The absence of any intention to humiliate or degrade the Appellant was significant. The Court also considered the manner in which the TPIM was managed, noting some delays and difficulties (such as the computer repair and community mental health support), but did not find these sufficient to amount to an Article 3 breach.

The Court held that appropriate medical treatment and support must be provided while the TPIM remains in force, and failure to do so could constitute an Article 3 breach. The Court recognized that removal of certain onerous restrictions, especially the electronic tag, would alleviate distress but concluded that the presence of the tag itself did not breach Article 3 at this stage.

Holding and Implications

The Court DISMISSED the application challenging the revival of the TPIM on the ground of breach of Article 3 ECHR.

The holding confirms that the TPIM, including its conditions, is a legitimate, necessary, and proportionate measure to address the national security risk posed by the Appellant, despite the severe mental health impact. The Court requires that adequate medical care and management accompany the TPIM to avoid breaching Article 3. No new precedent was established; rather, the decision applies established principles emphasizing the balance between individual rights and public security, the importance of legitimacy and proportionality, and the need for proper medical treatment in cases involving vulnerable individuals.