“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 occurs 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.”
“Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies … Where the events in issue lie wholly, or in large part, within the 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 such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.”
“whatever mode [of investigation] 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.”
“In a succinct and accurate judgment Jackson J reviewed the domestic and Strasbourg case law, deriving from Jordan v United Kingdom(2001) 37 EHRR 52 the requirement that an investigation, to satisfy article 2, must have certain features: (1) The investigation must be independent. (2) The investigation must be effective. (3) The investigation must be reasonably prompt. (4) There must be a sufficient element of public scrutiny. (5) The next of kin must be involved to an appropriate extent.”
“(6) The investigation must be effective in the sense that (Jordan, para 107) “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.” (7) For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, para 106) “for the persons responsible for and carrying out the investigation to be independent from those implicated in the events … This means not only a lack of hierarchical or institutional connection but also a practical independence.” (8) While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, para 121), there must (Jordan, para 109) “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.” (9) “In all cases”, as the Court stipulated in Jordan, para 109: “the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests”. (10) The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, para 143. But it is “indispensable” (Jordan, para 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force.”
“In my respectful opinion, the Court was fully justified in doing so, for while any deliberate killing by state agents is bound to arouse very grave disquiet, such an event is likely to be rare and the state’s main task is to establish the facts and prosecute the culprits; a systemic failure to protect the lives of persons detained may well call for even more anxious consideration and raise even more intractable problems.”
“The state owes a particular duty to those involuntarily in its custody … Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self-harm … Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm. 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 … But in any case where a death has occurred in custody it is not a minor or unimportant duty … 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 wrongdoing (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.”
“Mr Crow was right to insist that the European Court has not prescribed a single model of investigation to be applied in all cases. There must, as he submitted, be a measure of flexibility in selecting the means of conducting the investigation. But Mr O’Connor was right to insist that the Court, particularly in Jordan and Edwards, has laid down minimum standards which must be met, whatever form the investigation takes.”
“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 between those cases where an agent of the state kills and those cases where an agent of the state or the 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.”
“has a potential claim for personal injury arsing from the [Secretary of State’s] negligence. The Home Office owed a duty of care to protect [D]. A claim in negligence arises for having allowed [D] to be in a situation where he could attempt suicide on two occasions …, the later resulting in catastrophic damage. This has not been pursued further at the present time, because it was hoped that a full independent investigation will provide a far fuller evidential basis on which to instruct a doctor and to found a negligence claim. However, there is prima facie evidence that [D] has suffered brain damage. There is prima facie evidence that he will need care for the rest of his life. Potentially he has substantial damages claims. The sooner an independent and effective investigation is carried out, the sooner we will be able to particularise those claims.”
“The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides 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.”
“There is a real distinction between cases of medical negligence, which were specifically addressed as a discrete area in Calvelli, and cases of intentional killing or failure to protect someone in custody.”
“Calvelli is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate … Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it.”
“It still does not follow, however, that a death in hospital, even one allegedly resulting from negligence by the medical professionals concerned, requires an inquiry of the same kind or intensity as that required in relation to deaths in custody. The minimum criteria or standards may be the same, but there is room for some flexibility in their application. There is, for example, a marked contrast between what has satisfied the Strasbourg court in practice in the cases of alleged medical negligence (irrespective of how precisely they are analysed under article 2) and what has been held to be required in cases of intentional killing or deaths in custody such as Jordan and Edwards.”
“I would add that any issue of negligence can be pursued by the deceased’s family in a civil claim; and although in other contexts that would not assist in establishing compliance with the investigative obligation under article 2, in the context of medical negligence the Strasbourg authorities, as I have said, show that it is not only a relevant factor but an important factor in establishing compliance with article 2.”
“civil proceedings would provide a judicial fact finding forum, with the attendant safeguards and the ability to reach findings of unlawfulness, with the possibility of damages. It is however a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator. As such, it cannot be taken into account in the assessment of the State’s compliance with its procedural obligations underArticle 2 of the Convention .”
“a procedural obligation arose to investigate the circumstances of the death of Christopher Edwards. He was a prisoner under the care and responsibility of the authorities when he died from acts of violence of another prisoner and in this situation it is irrelevant whether State agents were involved by acts or omissions 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 that 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.”
“[92] … the Court has held that if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an “effective judicial system” does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available to the victims. [93] However, in areas such as that in issue in the instant case, the applicable principles are rather to be found in those which the Court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases. In this connection, it should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability, but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities. In the Court’s view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents.”
“liability was admitted at an early stage. There never was a hearing at which evidence concerning the circumstances of Mr. Wright’s death was adduced or tested. I do not of course criticise the defendant's admission of liability in April 2000. On the contrary, I commend it. The civil proceedings in this case are irrelevant to the defendant’s procedural obligations under articles 2 and 3 of the Convention. I am reinforced in this conclusion by paragraph 141 of the European Court of Human Rights judgment in Jordan v United Kingdom.”
“The Court finds that the proceedings for investigating the use of lethal force by the police officer have been shown in this case to disclose the following shortcomings: – a lack of independence of the police officers investigating the incident from the officers implicated in the incident; – a lack of public scrutiny, and information to the victim’s family, of the reasons for the decision of the DPP not to prosecute any police officer; – the police officer who shot Pearse Jordan could not be required to attend the inquest as a witness; – the inquest procedure did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed; – the absence of legal aid for the representation of the victim’s family and non-disclosure of witness statements prior to their appearance at the inquest prejudiced the ability of the applicant to participate in the inquest and contributed to long adjournments in the proceedings; – the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.”
“[79] The Court finds that the lack of compulsion of witnesses who are either eyewitnesses or have material evidence related to the circumstances of a death must be regarded as diminishing the effectiveness of the inquiry as an investigative mechanism. In this case … it detracted from its capacity to establish the facts relevant to the death, and thereby to achieve one of the purposes required byArticle 2 of the Convention . [87] The Court finds that the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded, save when they were giving evidence, failed to comply with the requirements ofArticle 2 of the Convention to hold an effective investigation into Christopher Edwards’s death.”
“[83] … In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the Court considers that the public interest attaching to the issues thrown up by the case was such as to call for the widest exposure possible. No reason has been put forward for holding the inquiry in private … [84] The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to the witnesses, whether through their own counsel or, for example, through the inquiry panel … ”
“The report has been published. But the CRE inquiry, conducted under theRace Relations Act 1976 , was necessarily confined to race-related issues and this case raises other issues also (as did Edwards, where there was no race issue). Save for a single day devoted to policy issues, the inquiry was conducted in private. The family were not able to play any effective part in it and would not have been able to do so even if they had taken advantage of the limited opportunity they were offered. Whether assessed singly or together, the investigations conducted in this case are much less satisfactory than the long and thorough investigation conducted by independent Queen’s Counsel in Edwards' case, but even that was held inadequate to satisfy article 2(1) because it was held in private, with no opportunity for the family to attend save when giving evidence themselves and without the power to obtain all relevant evidence.”
"The claimant's representatives must be able in person to put questions to witnesses."
"... the very real forensic advantage of probing a witness's answers immediately will be lost."
"... but it may assist if I give an indication of what is likely to be required."
"It is declared that ..."