JL, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 767

[2007] EWCA Civ 767Case No C1/2006/2464
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2006] EWHC 2558 (Admin)
ON APPEAL FROM Queen's Bench Division, Administrative Court
Mr Justice Langstaff
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/07/2007
Before
LORD JUSTICE WALLERVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE MAURICE KAYLORD JUSTICE WILSON
Between
The Queen on the application of JLRespondentSecretary of State for the Home DepartmentAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Kristina Stern (instructed by Messrs Bindman and Partners) for RespondentNigel Giffin QC (instructed by Treasury Solicitor) for AppellantHearing Hearing dates : 13th June 2007
JudgementLord Justice Waller :Introduction
[1]This appeal is concerned with whether there should in this case be something in the nature of a public investigation into the near suicide of a young man held in custody. Article 2 of the European Convention on Human Rights provides by Article 2.1:- “Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.”[2]That express obligation on each State has been construed as imposing(a) a negative obligation, not intentionally and unlawfully to take a life, and(b) a positive obligation, to take appropriate steps to protect lives within the jurisdiction of the State. It has further been construed as imposing procedural obligations. One such obligation imposed on a State is to have an effective criminal and civil law under which either a prosecution can take place or a civil suit can be commenced under which an investigation can be carried out as to the civil or criminal responsibility for a death. But in certain cases where the State itself is “accountable”, e.g. where the death has occurred through the act of an agent of the State, or where the death has occurred in custody, there can arise an obligation to carry out an investigation which (taking the same for the moment from R(on the application ofAmin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653) has certain features;(i) the State itself must commence the investigation;(ii) the investigation or inquiry must be public or open to public scrutiny;(iii) the investigator must be independent of those persons involved; and (iv) the family must have a proper opportunity to participate. It is common ground that the obligation to hold such an enhanced investigation may arise in the case of a suicide in custody. This, what can be called for convenience an “enhanced investigation”, can be and usually is complied with in the United Kingdom by holding an inquest as long as it contains the required features.[3]It is common ground that the obligation to hold the enhanced investigation may arise both in cases of near death following attempted suicide or serious injury cases where the person is in custody. In the case of near-death or serious injury there will of course be no inquest, making it the more important to be clear when the obligation to hold an “enhanced investigation” in such a case will arise.[4]On 28th February 2006 a Court of Appeal composed of Sir Anthony Clarke, MR, Tuckey and Dyson LJJ handed down a judgment relating to what was required of the State in fulfilling its obligation to carry out an enhanced investigation into the circumstances of an attempted suicide by a young man, D, while in custody. As the judgment recorded [see [2006] 3 All ER 946 at 952, para 12] the Home Secretary accepted, in that case, that by virtue of the combination of(a) the circumstances surrounding the attempted suicide by D, who was known by the prison authorities to be “a real and immediate suicide risk”,(b) the seriousness of that incident and its consequences and(c) the existence of issues as to whether more could have been done to deal with the risk, the enhanced investigative obligation had been triggered. The judgment further recorded that the Home Secretary’s acceptance that the enhanced investigative obligation was triggered in that case was fact-specific and that he did not accept that such an obligation would arise in all cases of self-harm or of attempted suicide in custody. Mr Giffin QC for the Secretary of State before us would I think add that it would not arise in all cases of suicide in custody itself.[5]This appeal is concerned with a young man, JL, who attempted to commit suicide while in custody at Feltham Young Offenders Institution. As in the case of D, the suicide attempt was very nearly successful. JL was revived in time to save his life but too late to save him from suffering permanent and irreversible brain damage. In this case the Home Secretary does not accept that the enhanced investigative obligation has been triggered. The position of the Secretary of State is that the appropriate trigger for such an investigation is not the simple fact of death or life-threatening injury sustained whilst in custody, but sufficient material to conclude, or at least reasonably suspect, that the prison authorities either knew or ought to have known of the danger to life. For JL Miss Kristina Stern argued before the judge that the obligation to hold the enhanced investigation flowed simply from the fact that JL had attempted and nearly succeeded in his attempt at suicide. Langstaff J, by a judgment dated 1st November 2006, was of the view that the appropriate trigger was nearer the simple fact of life-threatening injury sustained whilst in custody but modified it to a test that the requirement was imposed where a State or its agents “potentially bear responsibility for loss of life” unless “the particular circumstances are such that it is plain that the State can bear no responsibility”.[6]The Secretary of State appeals the decision of Langstaff J and before us the competing triggers were defined as on behalf of the Secretary of State by Mr Giffin “whether there has been an arguable violation of the substantive obligations imposed by Article 2, in this case the protective obligation imposed on the State in relation to those in its custody”; to be contrasted with that submitted by Miss Stern on behalf of JL that “the investigative obligation arises by reason of the circumstances of a death or near miss occurring in state custody, in any case where no convincing explanation has been provided by the State which excludes the possibility of responsibility of the state being engaged.”[7]What each side is seeking primarily is the answer to the question whether the enhanced obligation to investigate and particularly to carry out an investigation with the features laid down in R(D) v Secretary of State (a D-type investigation) has been triggered in this case, but the Secretary of State’s interest is seeking a definition of the trigger which can be applied also in the future, the concern being the resource implications that would seem to follow if a D-type investigationmust occur in every case of a suicide or near miss by someone in custody.[8]I confess (as did the judge) to feeling anxious in making an attempt at a definition to cover all cases of suicide or near suicide in custody because the Strasbourg jurisprudence emphasises the need for flexibility in considering whether such investigation as has been conducted complies with the State’s obligation. Different circumstances of different cases may call for different ingredients in the investigation process as reference to the authorities will demonstrate. The trigger might thus be different depending on the circumstances, and may alter depending on the stage of the inquiry. I will return to this point later but also recognise that R(D) has defined certain ingredients for a near suicide in prison, and the question one can address is what should trigger the obligation to hold such an inquiry.

Background

[9]I will start by quoting a passage from R (D) v Secretary of State:- “2. This is a shocking case but regrettably not unique. Suicides in prison have been a persistent problem for many years. As the judge put it (at [5[]), the problem of suicide and other forms of self-harm in our prisons is as well-known as it is depressing. He quoted a telling passage from the speech of Lord Bingham of Cornhill in R (on the application of Middleton) v West Somerset Coroner [2004] UKHL 10 at [5], [2004] 2 All ER 465 at [5], [2004] 2 AC 182, which is well worth setting out again:
‘The statistics . . . make grim reading. While the suicide rate among the population as a whole is falling, the rate among prisoners is rising. In the 14 years 1990-2003 there were 947 self-inflicted deaths in prison, 177 of which were of detainees aged 21 or under. Currently, almost two people kill themselves in prison each week. Over a third have been convicted of no offence. One in five is a woman (a proportion far in excess of the female prison population). One in five deaths occur in a prison hospital or segregation unit. 40% of self-inflicted deaths occur within the first month of custody. It must of course be remembered that many of those in prison are vulnerable, inadequate or mentally disturbed; many have drug problems; and imprisonment is inevitably, for some, a very traumatic experience. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much attention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state’s substantive obligations . . . but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern’. 3. At para [6] the judge gave prison service statistics for 2003 and 2004. In 2003 there were 94 suicides and 16,221 recorded incidents of self-harm, including 204 resuscitations and for the nine months from January to September 2004 the figures were 95, 11,822 and 102 respectively. INQUEST say that according to the National offender Management Service in t he period between January and July 2005 84 prisoners were successfully resuscitated following an incident of serious self-harm compared with 152 in 2004 and 210 in 2003.” ‘The statistics . . . make grim reading. While the suicide rate among the population as a whole is falling, the rate among prisoners is rising. In the 14 years 1990-2003 there were 947 self-inflicted deaths in prison, 177 of which were of detainees aged 21 or under. Currently, almost two people kill themselves in prison each week. Over a third have been convicted of no offence. One in five is a woman (a proportion far in excess of the female prison population). One in five deaths occur in a prison hospital or segregation unit. 40% of self-inflicted deaths occur within the first month of custody. It must of course be remembered that many of those in prison are vulnerable, inadequate or mentally disturbed; many have drug problems; and imprisonment is inevitably, for some, a very traumatic experience. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much attention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state’s substantive obligations . . . but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern’
.

The facts

[10]I can take the facts essentially from the claim form accepting that they are those alleged on behalf of the claimant, although I do not think there is any great dispute about them. These facts are in the main known to those representing JL by virtue not of a D-type investigation but as a result of correspondence with the Home Office and an investigation carried out by a Mr Sheikh, a retired prison governor, which it is accepted did not have the features necessary to comply with a D-type investigation.[11]On 18th July 2002 JL was arrested for possession of nineteen wraps of crack cocaine, with the intention of supplying to another. He was remanded in custody until 26th July 2002. He was also subject to a detention order under immigration powers. This was his first time in prison custody. On the second entry in the core record form he was noted on 20th July 2002 to be very anxious and stressed and to be vulnerable due to high anxiety. On 21st July 2002 an F2O52SH, self-harm at risk form, was opened because he was very upset about his family circumstances and was in tears. It was noted that this should remain open due to his unpredictable mood. He was admitted to health care on account of anxiety and remained there until 23rd July 2002. On 25th July 2002 it was recorded that he was denying thoughts of self-harm at the present and on 26th July 2002 he was remanded in custody until 23rd August 2002.[12]On 27th July 2002 an officer noted that he had concerns regarding JL and on the same day JL was said to be having increasingly negative thoughts about the future, to have subjectively low mood and to look a bit depressed. On 31st July 2002 concerns were expressed that JL might try to self-harm and he was found very distressed in his cell, and a noose made out of sheets was found in his cell. This fact was recorded in a chaplaincy report, although the health care note and other records of that day made no mention of it. He was noted by Father Roger to be a very high suicide risk and he was admitted to health care for observation. He was placed on intermittent observations and was placed in a safe cell with stripped bedding until seen by a GP.[13]On 1st August 2002 a note from a chaplain indicated that JL was overwhelmed by anxiety, worried about his children, extremely upset after an angry telephone call with his girlfriend, who said she could not visit, felt powerless and that any scenario he fears will happen has actually happened. The chaplaincy report indicated that at this time JL was very distressed and in need of support. It noted that the prompt for this episode was that he had had a row with his partner because she was not visiting him as often as he would have liked. The note also indicated that one of the chaplains and SO Boyes were concerned that JL was at risk of doing himself serious harm, as he was so prone to acting impulsively when emotional and he may see it as a means of getting out of prison.[14]On 4th August 2002 an officer recorded that JL did not appear to cope too well when he did not have the company of his cell mate and that he would advise close monitoring if company ceased. On that day he was noted to be denying thoughts of self-harm or suicidal ideation at present and saying that he had not felt like that for over a week. On 8th August the self-harm risk form was closed, following a review. A support plan was agreed, apparently, by a registered mental health nurse. On 9th August he was noted to have been distressed the previous night and to have been extremely anxious since his father and brother were shot and killed in 2001. On 15th August he was noted to be very quiet and withdrawn and worried about the outcome of the trial and about his family in Jamaica. On 19th August 2002 he was noted to have constantly used the call bell. The memorandum relating to this, based on information from OSG Sharp, indicated that in the early hours of 19th August JL repeatedly rang the cell bell and then asked to see a doctor. This was refused. It noted that JL gave a fictitious name and that at this time he appeared to have a short, wide piece of bed sheet around his neck. He was writing with the light on in the cell until 4am.[15]It was noted that OSG Sharp was after the event extremely concerned that his (Mr Sharp’s) performance overnight might have had something to do with JL’s self-harm attempt.[16]On 19th August JL was locked in his cell alone. After lunch on 19th August JL was unlocked for classes and made a telephone call. After this, following instructions, his name was not on the list for education classes and he was locked alone in his cell. It was on 19th August at approximately 14.45 that JL was found suspended from the cell bars, with a ligature made from bed sheets tied round his neck and attached to the window bars.[17]The ligature was removed and JL was given CPR. A pulse was detected after three minutes but no breathing was noted. His pulse then stopped and he was resuscitated a second time. He ultimately survived but has serious brain damage.[18]The London area manager of the prison service promptly directed Mr Sheikh, a retired governor within the prison service, to investigate what had happened. He submitted his report to the area manager on 16th October 2002 – but this did not become apparent to JL, or his relatives, or those acting for him, until it was disclosed in correspondence from the Treasury Solicitor on 26th January 2005.[19]Amongst the findings of Mr Sheikh were first (perhaps a somewhat surprising finding) at 11.3 that “JL did not express at any time, any thoughts of committing self-harm, though he did have continuous depressive moods and showed concerns about his children in Jamaica.”[20]Further he reported:- “11.7 On the evidence found, the decision to open F2052SH was correct, although the closure of F2052SH was correctly based upon the information as well as the improved behavioural pattern of JL. Had the chaplain been invited to attend the case review, the decision to close it might not have been taken in the light of information provided by him. 11.8 The chaplaincy was quite deeply involved with JL, yet none of the chaplains was consulted, and the decision to close the F2052SH was made, as was evidenced by the detailed entries in the self-harm form. Mr Sheikh appends a letter from the Reverend Paul Foster, Anglican chaplain, which records, amongst other things:- “When the chaplaincy team heard what had happened, most of us were surprised that this 2052SH had been closed without our input. JL has emotional ups and downs. He could not accept or understand why he is in prison. Some of his behaviour seemed to indicate that he would use any means to try to get out of prison – lying about the death of a child you love is extreme. He appeared to be a fairly high risk of self-harm, and certainly if Debbie had been invited to a case review she says she would have recommended that it be kept open for the foreseeable future. Chaplaincy has a large input into JL’s life here and I believe we should have been consulted about his care, but we are generally bypassed when decisions of this nature are made. From our perspectives, this is one of the biggest lessons.” “When the chaplaincy team heard what had happened, most of us were surprised that this 2052SH had been closed without our input. JL has emotional ups and downs. He could not accept or understand why he is in prison. Some of his behaviour seemed to indicate that he would use any means to try to get out of prison – lying about the death of a child you love is extreme. He appeared to be a fairly high risk of self-harm, and certainly if Debbie had been invited to a case review she says she would have recommended that it be kept open for the foreseeable future. Chaplaincy has a large input into JL’s life here and I believe we should have been consulted about his care, but we are generally bypassed when decisions of this nature are made. From our perspectives, this is one of the biggest lessons.”

Submissions summarised

[21]The argument of Mr Giffin has the following strands. First he submits it is well established that Article 2 may, depending on the circumstances, give rise to a substantive protective obligation recognised in Osman v UK (1998) 29 EHRR 245 paras 115-6; it will arise if the authorities knew or ought to have known of the existence of a real and immediate risk to the life of an identified individual. Second he submits that in the case of suicide in custody the Strasbourg jurisprudence has applied the Osman test of whether the authorities knew of a real and immediate risk to the question whether they were in breach of that positive protective obligation, relying on Keenan v UK (2001) 33 EHRR 38; Younger v UK (App. 57420/00); Trubnikov v Russia (App no. 49790/99 5 July 2005). Third he submits the duty to conduct an enhanced investigation is “adjectival” to the substantive protective obligation, relying on McKerr [2004]1 WLR 807 and R(Hurst) v London Northern District Coroner [2007] 2 WLR 726, particularly Lord Brown at paragraph 28. Fourth he submits that the purpose of the investigation is to secure accountability which, he suggests, means in this context accountability for possible substantive breaches. Therefore he says there is every reason to link the trigger for an enhanced investigation to an arguable breach of the substantive obligation. He recognises there may be wider purposes in an investigation, e.g. learning lessons; but submits the wider purposes are not undermined by a threshold test of arguable breach. He gains support he submits from the formulation of Wilson J (as he then was) in Plymouth City Council v Her Majesty’s Coroner for Devon [2005] EWHC 1014 (a case concerning the death of a child alleged to have been due to the failure by the social services department of the local authority) who recognised the need for an enhanced inquiry “only if there has been at least an arguable breach by the state of its protective duty”. He relies also on passages in the judgment of Richards J (as he then was) in R(Goodson) v HM Coroner for Bedfordshire and Luton [2006] 1 WLR 432.[22]Miss Stern’s submissions I would summarise in the following terms. Accountability in the case of a death or near death in custody is not limited to accounting for possible breaches of a substantive obligation. The situation is one in which a special duty arises from the fact that a person is in custody. The facts are likely to be all or nearly all in the hands of the State. The aim includes discovering whether there are lessons to be learned. Accountability includes the question whether the State may be in breach of its protective obligation and is designed to explore the facts in order to discover whether there is any case against the State. It is illogical to ask the question whether there is an arguable case until the investigation which is designed to discover the facts has taken place.

The Law

[23]To provide an overview as to how the issues arise in this case, Mr Giffin commenced his submissions with a reference to the two introductory paragraphs in Lord Bingham’s speech in R(Middleton) v West Somerset Coroner and Anr [2004] 2 AC 182 in which he was setting out the opinion of the committee in the following terms:- “2. The European Court of Human Rights has repeatedly interpreted Article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. See for example, LCB v United Kingdom (1998) 27 EHRR 212, para 36; Osman v United Kingdom (1998) 29 EHRR 245; Powell v United Kingdom Reports of Judgments and Decisions 2000-V, p 397; Keenan v United Kingdom (2001) 33 EHRR 913, paras 88-90; Edwards v United Kingdom (2002) 35 EHRR 487, para 54; Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I, p 1; Öneryildiz v Turkey (Application No 48939/99) (unreported) 18 June 2002. 3. The European Court has also interpreted Article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. See, for example, Taylor v United Kingdom (1994) 79-A DR 127, 137; McCann v United Kingdom (1995) 21 EHRR 97, para 161; Powell v United Kingdom Reports of Judgments and Decisions 2000-V, p397; Salman v Turkey (2000) (unreported) 29 March 2001; Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom, 35 EHRR 487, para 69; Öneryildiz v Turkey, 18 June 2002, paras 90-91; Mastromatteo v Italy (Application No 37703/97) (unreported) 24 October 2002.”[24]Mr Giffin sought to obtain some assistance from the language “that agents of the State are, or may be, in some way implicated . . .” as supporting his submission as to the correct trigger. In my view little can be gained from the language used by Lord Bingham, since these were clearly introductory paragraphs and there was no issue as to the trigger. It is however fair to say that the case was concerned with a suicide in custody and counsel acting for the claimant in that case is recorded as submitting (see page 189) first that in such a case the appropriate test for determining whether the State acted in breach of a positive obligation under Article 2 to take operational measures to protect life, was whether the authorities knew or ought to have known that the prisoner posed a real and immediate risk of suicide, and if so whether they did all that reasonably could have been expected of them to prevent that risk. Second and more relevantly, his submission was that “where it is arguable that the State has failed to discharge that obligation, it is under the further procedural duty to initiate and conduct an investigation which meets the requirements laid down in the jurisprudence of the European Court of Human Rights . . .”.[25]Mr Giffin would suggest that counsel correctly reflects that the obligation to initiate and conduct an investigation only arises where it is arguable that the State has failed to discharge its positive obligation i.e. where it is arguable that the authorities knew or ought to have known that JL posed a real and immediate risk of suicide. As I have said there does not appear to have been any issue as to the trigger calling for the type of inquiry found necessary in Middleton. It was the content of that enquiry which was the issue in that case. Nevertheless experienced counsel put the matter the way he did and that cannot be ignored.[26]Miss Stern relied for her fundamental plank on certain paragraphs of Lord Bingham’s speech in Amin. That case was concerned with a prisoner serving a sentence in a young offenders’ institute who was killed by his cellmate, whose institutional behaviour was known to the prison service to be dangerous. The prison service carried out an internal enquiry but the family played no part in that. An inquest into the death was opened and adjourned pending the trial of the killer. The police made investigations into the criminal culpability of the killer and of the prison service and an advice was obtained from counsel, who advised there was insufficient evidence to provide any realistic prospect of securing any conviction of anyone other than the killer. The killer was charged with murder and convicted but his trial was concerned solely with his mental responsibility. There was no exploration of the cell allocation procedures or other events before the murder. After the conviction the coroner declined to resume the inquest despite representations inviting her to reconsider. There was a formal investigation by the Commission for Racial Equality into racial discrimination in the prison service, but that enquiry was conducted chiefly in private with the victim’s family being unable to play any effective part in it. The Secretary of State refused to establish an independent public enquiry into the victim’s death, as requested by his family. Hooper J, at first instance, declared that there should be such a public enquiry; his decision was reversed by the Court of Appeal and the House of Lords reinstated the decision of Hooper J.[27]Lord Bingham analysed the Strasbourg authorities in relation to the obligation implicit in Article 2 to hold in certain circumstances what I have termed the enhanced investigation, tracing through in particular the development of the obligation to hold an effective investigation when individuals have been killed by agents of the State through into a similar obligation where a death has occurred in custody, this latter obligation including deaths caused by a fellow prisoner as in Edwards.[28]The particular paragraphs relied on by Miss Stern were those where after his analysis of the authorities Lord Bingham commenced his own conclusions as to why he was of the view that the investigation held so far in the case of Amin had not complied with the relevant obligation. Those paragraphs are 30 and 31 which read as follows:- “30. A profound respect for the sanctity of human life underpins the common law as it underpins the jurisprudence under arts 1 and 2 of the convention. This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not stop there. The state owes a particular duty to those involuntarily in its custody. As Anand J succinctly put it in Nilabati Behera v State of Orissa [1993] 2 SCR 581 at 607:
‘There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life’
. Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self-harm (see Reeves v Comr of Police of the Metropolis [1999] 3 All Er 897, [2000] 1 AC 360). Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm. 31. The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred (see Menson v UK [2003] ECHR 47916/00). It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted at [16] above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrong-doing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”[29]As is already apparent from the citation from Middleton, it is not in issue that a suicide in custody can give rise to the obligation to carry out an enhanced investigation. What is suggested by Mr Giffin is that the obligation arises out of the possibility that the state may be in breach of its positive obligation to protect life, and that there must be a threshold as to the arguability of that breach before the duty to hold the investigation arises. Miss Stern submits that what gives rise to the obligation is the accountability of the State for a person injured or killed in its custody and it simply is not possible or logical for someone to take a proper decision on arguability without the proper investigation having taken place.[30]As already indicated, I have the same difficulty as did the judge as to whether it is possible to answer the question as to threshold in isolation from the question as to precisely what type of investigation might be necessary having regard to the facts of individual cases. D appears to have laid down the ingredients necessary in an attempted suicide case, but since in that case there was no issue as to the trigger full consideration was not given to what circumstances gave rise to what degree of inquiry. The Strasbourg authorities consider the matter after the event simply asking whether in the circumstances a breach of the investigative obligation has occurred. They accept that there must be some flexibility in the type of investigation that will be necessary, and it may well be that the threshold for a full D-type inquiry could vary depending on the precise circumstances of the case. For example, it may be part of the investigation process that forensic experts investigate and the police investigate a death or serious injury in custody; they may not do that “in public” as D recognised and the next of kin may play very little part at that early stage. In Ucar v Turkey (application no. 52392/99, 11 April 2006)it seems such an investigation was (perhaps from the language of the judgment somewhat reluctantly) considered by the court to be sufficient compliance with the Article 2 obligation. The first issue was whether the State had breached its positive obligations where a suicide had occurred in custody. The court found that it had not. The court went on to consider whether the investigation which had occurred in that case complied with Article 2. It cited the authorities supporting the need for an enhanced investigation and it then found that it “could be described as adequate and effective.” The investigation which concluded that the victim had committed suicide was a public prosecutor’s investigation. Thus it was independent. The investigation included an autopsy. It concluded that Ucar had hanged himself. No further public inquiry was held. This seems to indicate that even an enhanced investigation may in certain circumstances, despite the death occurring in custody, not need to proceed to a full public investigation but it must still be effective and have been carried out by someone independent.[31]It is of relevance I should stress that there is no suggestion in the case that the obligation to investigate would only arise if some prima facie case or arguable case had been made out by the next of kin. In giving their opinion on this aspect of the case the court in its judgment said this:- “90. The Court recalls that, according to case-law, the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed. This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. Nor is it decisive whether members of the deceased’s family or others have lodged a formal complaint about the killing with the competent investigation authority. The mere fact that the authorities were informed of the killing of an individual gives rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (see Tanrikulu v Turkey [GC] no. 23763/94, paras 101 and 103, ECHR 1999-IV). This involves, where appropriate, an autopsy which provides a complete and accurate record of possible signs of ill-treatment and injury, and an objective analysis of clinical findings, including the cause of death (see Salman v Turkey [GC], no. 21986/93, para 105, ECHR 2000-VII, and Akdoğdu, cited above, para 54). The nature and degree of scrutiny which satisfies the minimum threshold of an investigation’s effectiveness depends on the circumstances of each particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velikova v Bulgaria no. 41488/988, para 80, ECHR 2000-VI, and Űlkű Ekinci, cited above, para 144).”[32]I am clear that the simple fact of a death or serious injury of a person in custody gives rise to an obligation on the State to conduct the enhanced type of investigation. The extent of that investigation will depend on the circumstances and in my view some consideration needs to be given as to whether different triggers may not operate at different stages. The weaknesses in Mr Giffin’s submissions (who would seek to suggest no form of investigation by an independent person needs to take place if there is “no arguable case”) are first that the accountability of the State means as it seems to me more than simply being accountable for a substantive breach; it means accountable in the sense of explaining how the death in custody occurred. Second the fact that the test in Osman as to whether the State is in breach of its substantive protective obligation has been applied in the cases relating to suicide in custody does not prevent in the case of a person in custody the State having the burden of explanation. It may well be that where the State is not accountable in that sense e.g. where the allegation is as in Osman, or in the Plymouth case, that the State is in breach of its substantive protective obligation without the starting point of the State being accountable because the deceased was in prison or killed by State agents, arguable case is the right trigger but those are different cases. In the light of the accountability of the State, it makes no sense to allow the State to be the judge as to whether an investigation should commence on the basis of whether there is an arguable case against it before an investigation has been carried out as to what the facts are.[33]As regards the nature of the investigation it seems to me that a death or near death in custody ipso facto means that the State must commence an investigation by a person independent of those implicated in the facts. The extent to which there must then be some further inquiry in the nature of a public hearing in which the next of kin or the injured person can play a part will depend on the circumstances. In the case of a death there will be an inquest, and the coroner may have to decide whether the circumstances are such as to require something containing all the Amin ingredients. In cases of serious injury the nature of the further inquiry necessary will depend on the facts as discovered by the independent investigator. It is at this stage that I would accept something more than the mere fact that the death or serious injury was in custody will dictate the extent of the necessity to hold a full D-type inquiry. But my emphasis is to stress that in my view where the death or suicide or near suicide is in custody the something is not best expressed in the words “an arguable case”, but in the language favoured by the judge “that the State or its agents potentially bear responsibility” and that in the particular circumstances ascertained by the independent investigator “it is not plain that the State or its agents can bear no responsibility”.[34]How do I reach the above conclusion? The starting point seems to me to be McCann v United Kingdom 21 EHRR 97, where in paragraph 161 of its judgment the court said:- “The obligation to protect the right of life under this provision, (Article 2) read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction rights and freedoms defined in the Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as the result of the use of force by inter alios agents of the state.”[35]There then followed the important case of Jordan v United Kingdom (2003) 37 EHRR 2 where what was said in McCann no longer stressed the killing by “agents of the state” but said as follows:- “The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the state’s general duty under Article 1 of the Convention to ‘secure to everyone within its jurisdiction the rights and freedoms to find in the Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of domestic laws which protect the right to life and, in those cases involving state agents of bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the offence. This means not only a lack of hierarchical or institutional connection but also a practical independence. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eyewitness tests, forensic evidence and, where appropriate, an autopsy, which would provide a complete and accurate record of injury and an objective analysis of clinical findings including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible, will risk falling foul of this standard. A requirement of promptness and reasonable expedition is implicit in this context. . . . . For the same reasons there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.”[36]I would stress that the essential purpose of the investigation identified in the above passage has two elements. First it has the element which will relate to any killing as a result of the use of force, which is “to secure the effective implementation of the domestic laws which protect the right to life”. The second element relates to “those cases involving state agents or bodies to ensure their accountability for deaths occurring under their responsibility.” This element of state accountability is important.[37]In the case of Edwards v United Kingdom (2002) 12 EHRC 190, the general principles, as I have set them out in the quotation from Jordan, were repeated. The case was concerned with a situation in which Edwards had been killed by his cellmate. The court, having set out the principles identified in Jordan, said this:- “The court finds first of all that a procedural obligation arose to investigate the circumstances of the death of Edwards. He was a prisoner under the care and under the responsibility of the authorities when he died from acts of violence from another prisoner, and in this situation it is irrelevant whether state agents were involved by acts or omission in the events leading to his death. The state was under an obligation to initiate and carry out an investigation which fulfilled the requirements set out above. Civil proceedings, assuming such were available to the applicants . . . which lie at the initiative of the victim’s relatives, would not satisfy the state’s obligation in this regard. The court observes that no inquest was held in this case and that the criminal proceedings in which RL was convicted did not involve a trial at which witnesses were examined, as he pleaded guilty to manslaughter and was subject to a hospital order. The point of dispute between the parties is whether the enquiry into the care and treatment of Edwards and Linford provided an effective investigative procedure, fulfilling the requirements identified above.”[38]There was a detailed enquiry as the court noted in that case but the court found that the lack of power to compel witnesses and the private character of the proceedings from which the next of kin were excluded, save when giving evidence, failed to comply with the requirements of Article 2 “to hold an effective investigation into Christopher Edwards’ death.”[39]In Menson v United Kingdom [2003] ECHR 47916/99, the court was dealing with a situation in which M had been killed and set on fire. The complaint related to the way in which the police had investigated the death. The court observed that:- “The applicant’s case is . . . . to be distinguished from cases involving the alleged use of lethal force, either by the agents of the state or by private parties with their collusion (see, for example McCann, Jordan . . .) or in which the factual circumstances imposed an obligation on the authorities to protect an individual’s life, for example where they have assumed responsibility for this welfare (see, for example, Edwards) or whether they knew or ought to have known that his life was at risk (see for example Osman v UK (1998 5 BHRC 293)”.[40]The court thus recognised that it was dealing with a situation in which the requirement by virtue of Article 2 was for the state to take appropriate steps to put in place effective criminal law provisions, backed up by law enforcement machinery and punishment of breaches. In that context it however concluded that:- “This obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances.” Ultimately the court, having criticised certain aspects of the investigation and the police’s handling of the case, concluded that there was no breach of Article 2 by virtue of the steps that the state had taken to correct the position.[41]The next case in time is Amin. I have already quoted the important paragraphs of Lord Bingham’s judgment so far as his conclusions were concerned. I have also indicated the type of investigations that had already been carried out in that case. What, as I understand it, Lord Bingham is stressing in paragraph 31 of his speech is not simply the investigation which must take place in relation to any death or life-threatening injury so as to bring into play, if necessary, the criminal law. He is stressing the special circumstances which apply where the death or life-threatening injury occurs while a person is in custody, which brings into play the accountability of the state. There is no indication at all that, where it is the accountability of the state which gives rise to the investigation, it would be necessary for the next of kin, or the person himself if he be injured, to be able to set up some form of prima facie case that the state had been negligent.[42]Indeed, in the speeches of Lord Slynn and Lord Steyn one finds support for the view that there cannot be a requirement for the next of kin to set up some form of prima facie case. Lord Slynn, at paragraph 41, said:- “The duty to investigate is partly one owed to the next of kin of the deceased as representing the deceased; it is partly to others who may in similar circumstances be vulnerable and whose lives may need to be protected. The significance of this duty to those detained in prison, not least where prisons are crowded and prisoners often dangerous, is obvious. It does not seem to me to be possible to say that there is a clear dividing line in those cases where an agent of the state kills and those cases where an agent of the state or system is such that a killing may take place. The result of ‘an incident waiting to happen’ may just as much as an actual killing require detailed and profound investigation, though in some cases the procedure to be adopted may be justifiably different.”[43]Lord Steyn said, having quoted a passage from the judgment of the Court of Appeal in Amin:- “The Court of Appeal plainly thought that in a case of killing by state agents, causing death in custody, there is a more exacting and rigorous duty to investigate than in cases of negligent omissions leading to death in custody. Cases in the former category may be a greater affront to the public conscience and cases in the latter category can readily be accepted. But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. . . .Given the crucial public importance of investigating all deaths in custody, I consider that full effect must be given to the Strasbourg jurisprudence.”[44]Further on in paragraph 52 he said:- “The Court of Appeal posed the question what would be the benefit of a further enquiry? The investigations conducted so far do not, either singly or together, meet the minimum requirements required to satisfy Article 2 but, in any event, it is vital that procedure and the merits should be kept strictly apart, otherwise the merits may be judged unfairly. . .”[45]It is right to say in passing that Lord Bingham in his speech did approve the judgment of Jackson J in R (on the application of Wright) v Secretary of State for the Home Department [2001] EWHC Admin 520 where Jackson J reviewed the domestic and Strasbourg case law following Jordan and from it derived five propositions, of which the fourth was:- “Where the victim has died and it is arguable there has been a breach of Article 2, the investigation should have the general features identified by the court in Jordan.”[46]This is a passage on which Mr Giffin relied as indicating that there had to be an arguable breach before the investigative obligation arose. In my view Lord Bingham was not directing his mind to that question when approving that proposition and it is inconsistent with the obligation to investigate, which arises by virtue of the accountability of the state for a person in custody, to impose on the next of kin or the victim the onus of establishing an arguable or prima facie case.[47]Further support for the view that it is not incumbent on a victim or the next of kin to establish a prima facie case comes from the following. In Salman v Turkey (2002) 34 EHRR 17, where the complainant alleged that her husband had died as a result of being tortured in police custody, the court in fact found a violation of Article 2 in respect of the husband and also found a violation of Article 2 in the failure of the authorities to carry out an adequate and effective investigation into the circumstances of his death. In their judgment they said:- “In assessing evidence, the general principle applied in cases has been to apply the standard of proof ‘beyond reasonable doubt’. However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly or in large part within exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during their detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.”[48]Furthermore in paragraph 105 the court said, in relation to the inadequacy of the investigation:- “In that connection the court points out that the obligation mentioned above [an effective official investigation] is not confined to cases where it is apparent that a killing was caused by an agent of the state. The applicant and the father of the deceased lodged a formal complaint about the death with the competent investigation authorities, alleging it was the result of torture. Moreover, the mere fact that the authorities were informed of the death in custody of Salman gave rise, ipso facto, to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death. This involves, where appropriate, autopsy which provides a complete and accurate record of possible signs of ill-treatment and injury and an objective analysis of clinical findings, including the cause of death.” I draw particular attention to the words “moreover” and “ipso facto”.[49]I should, for a moment, just come back to what was said in Menson, distinguishing the circumstances of that case from cases where the state was accountable by virtue of its obligation to protect an individual in its custody and further cases where the investigative obligation arose, where the state knew, or ought to have known, life was as risk, citing in that instance Osman. There are authorities which have considered whether the enhanced investigative obligation applies to cases where persons have died in hospitals run by the National Health Service. What Richards J said in Goodson [2006] 1 WLR 432 at para 59 included the following:- “My preferred analysis is that. . . there is no separate procedural obligation to investigate under Article 2 where a death in hospital raises no more than a potential liability in negligence. In such a situation an inquest does play a part, though only a part in the discharge of the state’s positive obligation under Article 2 to set up an effective judicial system for determining the cause of death and questions of liability. But it does not need to perform the function of discharging a separate investigative obligation on the state under Article 2. It will only be in exceptional cases where the circumstances give rise to the possibility of a breach of the state’s positive obligation to protect life under Article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation.”[50]In the Court of Appeal in R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461, the Court of Appeal had to consider a case where a voluntary mental patient committed suicide after absconding from hospital. In that case the question that arose was the extent of the investigative duty and in particular the extent of investigation required of an inquest. In the judgment of the court given by Sir Anthony Clarke, MR, the above citation from the judgment of Richards J in Goodson was approved but the court in approving it said this:- “It seems to us that however it is analysed the position is that where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state, but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of Article 2, as identified by the European Court . . . . namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability.”[51]The court’s decision was that while Article 2 was engaged in the context of the case before the court, the present system including the inquest did not fall short of the obligation under Article 2. But the court added “We do not accept Mr Fitzgerald’s submission that the principles in the custody cases, which had been analysed in some detail in Amin and Middleton apply here because MrTakoushis would have been detained if the hospital had been aware that he was about to leave the hospital. There is an important difference between those who are detained by the state and those who are not. Mr Takoushis was not.”[52]In its conclusion the court said:- “It is important to note that the principles applicable to a case of this kind are different from those which apply to a death in custody. In the result, however, we allow the appeal, quash the verdict of the inquest and order a new inquest, which should be conducted in accordance with the principles identified in [various cases including Middleton], without any reading down of the 1988 Act. On the facts of this case the system in operation in England, including an inquest conducted in such a way, will comply with Article 2 of the convention.”[53]In R (Gentle) v Prime Minister [2007] 2 WLR 195 the Court of Appeal again considered what it had said in Takoushis. Before the court on this occasion it was common ground between the parties that the government was under no obligation to carry out an investigation under Article 2 unless it was at least “arguably in breach of its substantive obligation under that article”. In the judgment of the court, again delivered by Sir Anthony Clarke, MR, the court did not accept that was an appropriate concession. By paragraphs 77 and 78 they expressed the view that following the decision of Richards J in Goodson and the decision of the Court of Appeal in Takoushis, the court had held that there was an obligation to carry out an appropriate investigation, even if the state was not arguably in breach of its substantive obligations under Article 2.[54]There was not agreement between Mr Giffin and Miss Stern as to precisely what the Court of Appeal was saying in the circumstances of the case before them. Mr Giffin submitted that the Court of Appeal were not distinguishing precisely between the obligation under Article 2 for an investigative procedure, required in all cases where there was a death or serious injury and which could be fulfilled by having an appropriate civil or criminal justice system, and the enhanced investigative procedure required where a person was in custody or where state agents were responsible for the death or serious injury. Miss Stern submitted that the passages supported her submission that it was not a requirement for there to be an arguable breach of duty under Article 2 before an appropriate investigation was required.[55]Without resolving precisely what the Court of Appeal had in mind, what I think can be said is that the Court of Appeal were placing cases, where somebody was injured or died in custody, in a totally different category from cases in which somebody was injured or died through negligence but not in custody. In the former category of case, where the state is bound to initiate the investigation, it seems to me unreal to suggest that before the state is under an obligation to do so there must be some prima facie case or arguable case raised. Even if as I have suggested there could be cases in which the State having commenced the investigation with an independent investigator that investigator could conclude that it was plain the State could have no responsibility, it still should not require at this stage the family or the victim to set up some sort of arguable case, and it could only be in such a plain case where there was no potential for liability that a further investigation with the D-type requirements should not be necessary. It is the obligation on the State to account which it seems to me places the trigger or bar as low as I would place it.[56]I should finally deal with McKerr, and Hurst relied on by Mr Giffin to which I should add passages in the speeches in Al- Skeini [2007] UKHL 26 (in which judgment was delivered by the House of Lords on the last day of the hearing , and on which we have notes from Mr Giffin and Miss Stern). Lord Brown in Hurst at paragraph 29 refers to McCann saying that case “..first identified the procedural duty implicit in Article 2 …a duty developed in subsequent Strasbourg case law to require the full investigation of any death involving or possibly involving a violation of the State’s substantive obligation to protect human life arising under Article 2 (essentially wherever state agents or bodies may bear responsibility for the death).” That paragraph and others in the above authorities submits Mr Giffin show a link between the state’s duty to investigate and the potential liability for breach of a substantive obligation. Miss Stern does not dissent from that – she accepts the investigative obligation only arises if the responsibility of the State is “potentially engaged”. But it does not detract from the point that where the State is accountable by virtue of a person being in custody, it is for the State to investigate the facts and explain how the death or near death occurred, and it is not for the victim or the family to establish some arguable case before that investigation takes place.

The facts of this case

[57]I have set out the facts at the commencement of the judgment. I have also set out the background statistics in relation to suicides and attempted suicides in prisons. In that context it is clear to me that the obligation on the State to initiate an enhanced investigation was clear. In this case without in any way casting aspersions on Mr Sheikh’s integrity an investigation by a former prison governor could not have had the degree of independence required.[58]I can however go further. If and insofar as there has been some investigation and some discovery of the facts from the records produced, for the reasons essentially given by the judge, this is a case in which a further enquiry conforming to that required in D is necessary.[59]JL having been correctly placed on Form F2052SH, was then taken off that form in circumstances which give rise to anxiety. First, it seems that the records may not have recorded the “noose” incidents. Perhaps more importantly the Rev. Foster regarded JL as remaining a high risk to himself but the chaplains were not consulted. Thus those who took the decision to discharge JL from F2052SH were unaware of their views. In the event the facts as disclosed from the records as I have set them out, but particularly the fact he was on the F2052SH form and then taken off it, taken together with his conduct on the night before he was found, all give rise to questions to which the family are entitled to answers. The situation, occurring in the context of the statistics to which I have referred relating to suicides and self harming by persons in custody, is one in which it is important (echoing the words of Lord Bingham in Amin) that the full facts are brought to light, that culpable conduct, if it exists, is exposed and that certain practices such as not consulting with the chaplain and his staff are considered.[60]An investigation by an independent investigator would in this case have had to form the view that potentially the State may have failed in its obligations to protect life giving rise to an obligation to hold the full D-type inquiry. He could not have concluded that it was plain that the State could never be responsible.[61]I would dismiss the appeal.

Lord Justice Maurice Kay :

[62]I agree and wish to add only this. Mr Giffin observes that, in relation to Article 3, the procedural or investigative obligation only arises where there is an arguable breach of the substantive obligation not to inflict torture or inhuman or degrading treatment. Miss Stern accepts this proposition which is supported by, for example, Assenov v Bulgaria (1998) 28 EHRR 652, at para 102. Mr Giffin then submits that, whilst we are in Article 2 territory in the present case by reason of the near-death, the circumstances are more analogous to those of torture and inhuman or degrading treatment and, for that reason, the threshold or trigger ought to be aligned with the Article 2 test of arguability. I do not accept this submission. The very fact that it is Article 2 that is in issue here, even though no death ensued, makes it far more appropriate to relate the threshold or trigger for the procedural or investigative obligation to that applicable to actual death cases. It is more sensible to have the same rule across the Article 2 board rather than one which encroaches into part of Article 2 from Article 3.

Lord Justice Wilson :

[63]I agree with both judgments.

Cited in 3 later judgments