R(AH) and R(IS) v Secretary of State for the Home Department [2025] EWHC 3269 Admin, judgment (15 December 2025) here
Article 2 ECHR encompasses a ‘systems duty’ which requires public bodies to protect all citizens by having both appropriate state regulation and functional procedures and policies in place to offer protection where life might otherwise be at risk. Spotting flaws in a system is an important exercise for inquest lawyers, as when death arises from an arguable breach of the systems duty this will trigger a ‘Middleton’ ‘Article 2 Inquest’.
However it can sometimes be tricky to spot whether what one is looking at is an error by an individual in how they have operated the system in question (which is not a systems breach), rather than a flawed or wholly absent system (which is). Someone operating within an adequate well-functioning system and making a mistake (even a very bad one) is insufficient for a systems failure. A single cog failing to turn within an otherwise functional and well well-oiled machine will not reach the standard necessary to show a breach.
However, this judgment by Mrs. Justice Jefford might make you think again about when repeated individual failings might reveal more than someone simply having a bad day at work, but actually reveal that the system although capable of working effectively was not being implemented and so was not working effectively. Where the failure is not in the system’s design, but in ensuring the implementation of the system an ECHR systems breach may still be made out.
Background
Much of the lengthy background to this case will be irrelevant to inquest lawyers. It relates to applications for Judicial Review by two men with serious mental health issues who were held in immigration detention at Brook House Immigration Removal Centre (‘IRC’). During their detention each had suicidal ideation and carried out acts of self-harm. They were placed under constant supervision but were not the subject of a report under Rule 35 (1) or 35 (2) of the Detention Centre Rules 2001[1], and neither had his detention reviewed.[2]
The Judicial Review Challenge
The Claimants brought several challenges in this case. The crux of the challenges ‘both in respect of the individual grounds and the systems ground, is that the intent of the system is that the AAR [Adults At Risk] Policy should act to protect those vulnerable from detention.’[3]
The law in relation to systems duty can be found from §188 of the judgment where the judge takes us eruditely through the law in relation to Article 2/3 and the lower-level systems duty. The principles to be distilled from the authorities are helpfully summarised by Jefford J at §197:
- There is a requirement that public bodies ensure that there is a legal and regulatory system in place to reduce risk to a reasonable minimum.
- There is an operational duty to take measures to protect specific individuals from the risk of treatment contrary to Article 3.
- The court is required to examine the adequacy of the relevant system and/or whether that system is effective where there is an arguable claim.
- That examination and analysis is fact and context specific.
- The court should not impose too high a burden on a public body, having regard to its priorities and resources.
It is not sufficient to have create a framework which, if operating correctly would reduce the risk, there is also a duty to ensure the system is working
As the judge stated: it is not sufficient merely for the state to have created a framework which, if operating correctly would reduce the risk to a reasonable minimum, there is also a duty to ensure the system is working[4] and that what is involved in meeting that duty will be context specific. The fact that the Claimants were vulnerable individuals with mental health issues and in immigration detention was relevant to that context but did not amount to a reason to impose a more stringent duty.[5]
At paragraph 200, the issue of resourcing is considered and quickly dismissed. This is not a case where there would be disproportionate cost or unrealistic training required to ensure the system was functioning. In the case of Brook House and the background of Public Inquiry findings into the failings that took place,[6] the issue was not one of resourcing but rather it is a case ‘where the issues centre on the understanding and application of the policies.’ In other words, there were no bespoke, gold-plated cogs needed to be sourced and fitted- the existing ones simply needed to be oiled and turn in sequence.
Instead, what emerged from the facts was ‘a clear and persistent picture of a failure of the system intended to protect the Article 3 rights of adults at risk. It is characterised by a failure to apply properly or at all the provisions of Rule 35… IRC staff are responsible for referring detainees to a GP for assessment and the defendant has a duty of inquiry under the AAR policy.’[7]
Indeed, the judge felt that the statistics spoke for themselves: It was inconceivable that if the system were operating effectively, the numbers of detainees referred for GP assessments would be so low. The numbers had remained low despite the issue, and the causes of the issue having been raised in an Inquiry, and in subsequent reports.[8]
In the judge’s view there had not been any satisfactory evidence that between 2017 (the Inquiry period) and the period in issue in these cases that ‘any effective steps were taken to address the failure in the system.’[9] In summary therefore, the safeguarding system was so ineffectively operated that it breached the systems duty owed under Article 3 ECHR.
Commentary
The big takeaway from this judgment is: It’s not good enough to have a policy on paper which isn’t adhered to and then claim that you’ve fulfilled your duty under Article 2.[10] It is even less acceptable to do this when the flaws in implementing the system have been pointed out to you in big red marker pen (like a Public Inquiry) and you still haven’t acted to put it right. The state cannot hide behind a theoretically functional system when they have knowingly allowed staff to fail to use it properly and then claim that amounts to compliance. The failure is not because the policy was missing or wanting, but because those practically charged with ensuring then system’s functioning had failed in their obligations. This is greater than a single act of individual negligence and has potential implications for coroners and inquest practitioners when considering the systems duty and how a number of individual failings are to be assessed. This isn’t a case of the archetypal ‘bad day at work’ by one or more people. When policy has been knowingly and repeatedly flouted, it demonstrates that breach of duty can be established on the basis of failure of implementation, not merely by design.
This re-enforces the need for state bodies to ‘practice what they preach’ and ensure that the policies established to protect life are worth more than the paper they are written on. If you are aware that you have a faulty cog, and can hear the machine clunking, it is incumbent upon you to get the spanner and the can of WD40 out and jolly well fix it.
There is also a smaller point embedded in this case worth noting for inquest lawyers. One claimant’s ground of review related to the issue of the use of force. The Claimant’s contention was that, as he had become calm and compliant, there had been no need for force at all. Jefford J did not find the Defendant’s actions to be unlawful and accepted the argument that, in a developing situation, fine distinctions about the amounts of force being used against someone are difficult to make. The issue here was a lack of evidence as to how material that use of force was in ensuring that the Claimant had become compliant and in control. When considering the necessity and extent of force in a restraint context, how material the force being applied is in bringing about a de-escalation of the restrained person’s behaviour can be a relevant factor.
Footnotes
[1] These provisions required that the medical practitioner is required to report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or conditions of detention OR the case of any detained person he suspects of having suicidal intentions, the person should be kept under continuous observations and a record of treatment be kept throughout that time.
[2] § 2.
[3] §30
[4] §198
[5] §199
[6] The Inquiry made 33 recommendations in relation to Rule 35.
[7] §248.
[8] §250.
[9] §252.
[10] Or, in this case Article 3 as the Claimants were the subject of harm rather than deceased.