Case Nos: CA-2024-002167 - [2025] EWCA Civ 1230

Ritchie J undertook his own analysis of the section 7 issue, reached the opposite conclusion to that of HHJ Brownhill and substituted his own view for it. He relied on potential information that was not before the court, such as what the police knew about DYP, DYP’s reaction to the allegation of rape, his mental state, his actions over the five months after November 2019 and his full police records.

He thus considered that HHJ Brownhill had been wrong to proceed on the basis that determination of the section 7 issue should be disposed of without awaiting further disclosure.

On the available material, and in the absence of an application for specific disclosure or any evidence in response to the application for summary judgment, we consider that HHJ Brownhill’s decision to proceed without more was well within the ambit of reasonable decision-making. She was entitled, in accordance with EasyAir, not to allow the claims to proceed to trial merely because something may turn up on disclosure. The burden was always on XGY to show that there would be specific material which had not been disclosed but which would (contrary to HHJ Brownhill’s view) make a difference to the assessment under section 7. XGY did not discharge that burden.

We have concerns that Ritchie J at times confused the entering of reverse summary judgment on the HRA claims (which is what happened) with their striking out (which is not what happened) (see for example [9], [121] and [125] of his judgment). We have concerns that he may have adopted too low a threshold on a summary judgment application (see [124] of his judgment). We also have concerns about the emphasis placed by him on XGY’s mental suffering (see [122] of his judgment). He did not (at least expressly) address whether the mental suffering met the high threshold for establishing a breach of Article 3. As confirmed in R (on the application of ASK) v Secretary of State for the Home Department [2019] EWCA Civ 1239 at [70], ill-treatment that attains the appropriate minimum level of severity usually involves the relevant individual suffering intense physical or mental suffering. Further, the focus needed to be on the objective nature of the assessment of real and immediate risk.

However, fundamentally, we consider there was no proper basis on which to interfere with HHJ Brownhill’s assessment that there was no real prospect of the section 7 criterion being met. HHJ Brownhill had expressly taken into account the police’s ongoing assessment of risk to XGY as “high” and the suggestion of a heightened risk of harm given DYP’s recent knowledge of the rape allegation. She was aware of DYP’s history including convictions for violence, the threats he made in early November 2019, including threats to kill and to assault XGY and her family members and that DYP was not always compliant with bail conditions. She was also aware that following the disclosure at court, a police officer advised XGY not to return to the Hampshire address.

Ritchie J stated (at [120] of his judgment) that HHJ Brownhill did not have sufficient or full evidence to know whether DYP had the ability to find or communicate with XGY in the five month period between November 2019 and April 2020. But HHJ Brownhill knew that DYP had not threatened XGY immediately before she left the Chichester address, or when she was at the Epsom address (despite its disclosure) and which she did not leave immediately following the granting of police bail. The disclosed police log provided no evidence that DYP, who had XGY’s (new) telephone number, had made any attempt to contact her on that number.

Ritchie J identified four matters which in his view HHJ Brownhill had overlooked. On analysis it can be seen that, to the extent that they were relevant, she did not overlook any of them. The first concerned the rape allegation and its effect on DYP in terms of threat towards XGY. She had regard to this even though, on strict analysis, it was of no particular relevance to the objective test. The second concerned the effect on XGY of the disclosure of the Hampshire address. HHJ Brownhill was fully aware that mental suffering was at the heart of XGY’s claim (see for example [121] of her judgment). It was set out in XGY’s statement of case. It also does not go to the knowledge of the authorities, and the objective test. The third matter was the police’s own assessment of the risk as “high”. That was, however, referred to repeatedly by HHJ Brownhill (see [8], [38], and [116] of her judgment). Similarly, in respect of the fourth matter, namely the advice from D.C. Wells to leave the Hampshire address, (Footnote: ⁵) that too was a matter recognised by HHJ Brownhill. This (no doubt sensible) advice did not mean that XGY would be able to establish that she fell within the section 7 criteria.

In short, there were no identifiable flaws in HHJ Brownhill’s treatment of the question that she was deciding. There was no lack of logic or reasoning, nor did she overlook any material factors. In essence, the absence of any contact over a five-month period, despite DYP’s knowledge of two of the relevant addresses, entitled her to conclude that there was no real prospect of establishing a real and immediate risk to XGY of treatment in breach of the Convention.

We conclude therefore that Ritchie J should not have interfered with HHJ Brownhill’s decision that there was no real prospect of XGY meeting the section 7 test (or any other compelling reason why there should be a trial). We reinstate HHJ Brownhill’s decision on summary judgment in respect of the HRA claims.