Sonali Naik QC, Raza Halim and Stephen Clark of the Garden Court Chambers Public Law Team represented the Applicant. They were instructed by Jamie Bell and Toufique Hossain of Duncan Lewis Public Law Team.
This application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in immigration detention, in his cell at IRC Harmondsworth. Mr Okwurime’s death was not discovered until the morning afterwards when despite his body being in an advanced state of rigor mortis, attending healthcare professionals attempted to administer CPR. Since his arrival in IRC Harmondsworth, Mr Okwurime had tried but failed to secure healthcare, including not being provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.
The Secretary of State for the Home Department [SSHD] has a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead she elected to continue with her plans to remove a number of potential witnesses, including the Applicant in this judicial review, Mr Lawal, by charter flight on 17 September 2019.
Mr Lawal was a close friend of Mr Okwurime who had been detained in the same wing at IRC Harmondsworth at the time of his death. Mr Lawal and a handful of others were able to instruct lawyers through last minute referrals from frontline organisations such as Medical Justice and Movement for Justice. He requested that his removal be deferred to enable a proper investigation as to whether he would be a relevant witness for the forthcoming investigation, but this request was refused by the SSHD. He was thus compelled to issue last minute judicial review proceedings challenging the lawfulness of his removal in circumstances where the SSHD was removing potential witnesses to a death in her custody that was due to be investigated.
On 17 September 2019, the High Court per Mr Justice Butcher ordered an injunction on Mr Lawal’s removal “on the basis that there is a serious issue that there should not be the removal of persons for whom there are grounds to believe that they may have material evidence to give in relation to the death of Mr Oscar Okwurime”.
On 21 October 2020, the Area Coroner for West London, informed the SSHD and Mr Lawal that he was an ‘important witness of fact’ as the ‘only live witness who can speak to certain parts of the evidence particularly the presentation of the deceased in the days before his unfortunate death.’
Mr Lawal gave evidence in person, as directed by the Coroner. Following the hearing which took place in November 2020, the jury found that Mr Okwurime had died unnaturally, as a result of neglect:
We find the death to be considered unnatural. Mr Oscar Lucky Okwurime died of a spontaneous subarachnoid haemorrhage which can rupture due to hypertension. His blood pressure reading on 22nd August 2019 demonstrated Grade II hypertension. This reading was not repeated due to multiple failures to adhere to healthcare policy. Given the multiple opportunities to repeat this basic medical test on a vulnerable person, neglect contributed to the death.
The Judicial Review
This application for Judicial Review raised the following two issues:
a) Whether the SSHD can lawfully remove a potential material witness to a death in custody such as Mr Lawal, in circumstances where their evidence has not been secured and a coroner has not made a decision as to whether they are required to give evidence at the final inquest hearing; and
b) Whether the SSHD’s failure to have in place a policy framework, which makes clear provision for a proper investigation into witnesses to a death in custody prior to any enforcement action being taken, is lawful.
The case was heard by the President of the Upper Tribunal, Mr Justice Lane and Upper Tribunal Judge Canavan on 3 and 4 March 2021. The Court granted Mr Lawal’s application for judicial review on both grounds, holding as follows:
- The policy in place at the time of the death of Mr Okwurime (DSO 08/2014, Version 2.0 of June 2016) created an ‘unacceptable risk that the Respondent would fail to comply with her Article 2 procedural duties of securing relevant evidence, following a death in immigration detention.’ The ‘inadequacy’ of this policy was confirmed and illustrated by the failings of the SSHD after the death of Mr Okwurime.
- The decision of SSHD to remove the Applicant to Nigeria was unlawful as she had failed to take reasonable steps to secure his evidence and take other minimum steps in contrary to her Article 2 procedural obligations.
- The replacement DSO policy dated August 2020 was also found to be unlawful as it failed to direct individuals within the immigration detention estate to identify and take steps to secure the evidence of those who may have relevant information concerning the death in detention.
- The SSHD’s present policy framework concerning removals of foreign nationals (Judicial Reviews and Injunctions – Version 20.0 (10 October 2019)) was found to be ‘legally deficient’ as it failed to make any reference to her Article 2 procedural requirements following a death in detention. The Judges held that the absence of a policy to govern the position following a death in immigration detention was unlawful and concluded that there needed to be such a policy
Of further note is that the judges found that that the SSHD seriously breached her duty of candour in judicial review proceedings by failing to disclose correspondence sent by the Coroner following the inquest into the unnatural death of Carlington Spencer in IRC Morton Hall in which the Coroner had expressed severe criticism of the SSHD for attempting to remove relevant witnesses. This has sounded in an award of indemnity costs for the Applicant for the relevant period.
This is a ground-breaking judgment that marks the first time that the Secretary of State has been held accountable for her role, and failure, in ensuring the effective investigation of deaths in the immigration detention estate. It is also represents a first in confirming that the duty to ensure an effective investigation under Article 2 ECHR affects the exercise of the Secretary of State’s immigration powers. The SSHD cannot frustrate or undermine an inquiry into how and in what circumstances a vulnerable person died where Article 2 ECHR is engaged.
This case also demonstrates serious failings on behalf of the SSHD in developing any or adequate policies to ensure against compromising an investigation into a death in custody. Serious failings within the detention estate that led to a death in detention were compounded by the failures of the SSHD to comply with her Article 2 ECHR procedural requirements and ensure that best evidence was available for the subsequent coronial inquest.
This case also shows that it is not, nor should it be, incumbent on the witness to a death in custody to identify themselves as witnesses, keep in contact with the investigating authorities, and prevent their own removal, in order to ensure the effectiveness and integrity of the coronial process.
At a time when judicial review and the conduct of publically funded lawyers acting in the field of immigration and public law is under scrutiny, it is salient to observe that but for the intervention of publically-funded lawyers and last minute judicial review action, necessitated by what is now known to have been unlawful decisions to remove and failures to have in place adequate policy frameworks to ensure that evidence is secured, this important witness to a death in custody would have been removed from the jurisdiction and the coronial investigation weakened. Amongst other things, the case is a vindication of the rule of law and access to justice, guaranteed by judicial review.
Public Law Solicitor for the Claimant, Jamie Bell says:
"This case demonstrates the cavalier attitude of the Home Office when enforcing removals. Despite a tragic death within her detention centre, the Home Office did not hesitate to maintain her plan to remove potential witnesses by charter flight, ignoring anyone who wished to come forward to give evidence. This risked scuppering the future coronial proceedings in this case and may have prevented the failings that led to a man’s death in custody being identified.
We welcome the judgment in this case and note that it is of great significance that it has been found that three of the SSHD’s detention policies have been found to be in breach of her Article 2 ECHR procedural obligations."
With sincere thanks to Medical Justice and Movement for Justice for their ongoing, tireless work with detainees and referring potential witnesses prior to the charter flight in September 2019 and Detention Action for providing evidence in this case.