Scholes, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1 (Admin)

Case No CO/381/2005

[2006] EWHC 1 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/01/2006

Before

MR JUSTICE BENNETT

Between

THE QUEENClaimant

on the application of Mrs Yvonne ScholesClaimant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Tim Owen QC and Mr Hugh Southey appeared for Claimant

Mr Neil Garnham QC and Miss Jennifer Richards appeared for Defendant

Judgment

[1]Joseph Scholes (“Joseph”) was born on 20 February 1986. On 15 March 2002, when he was 16 years old, he pleaded guilty to three offences of (street) robbery and was sentenced by a judge at the Manchester Crown Court to a detention and training order for two years. Previously he had been living under the care of Trafford social services in a children’s home. After Joseph was sentenced he was allocated by the Youth Justice Board (“YJB”) to Stoke Heath Young Offenders Institution. On 24 March 2002 Joseph hanged himself in his cell in the health care unit.

[2]An inquest was held into Joseph’s death. It lasted for ten days in April 2004. The jury returned a verdict of accidental death and answered the questions in a questionnaire submitted by the Coroner after submissions by the parties’ legal representatives. The Claimant, Joseph’s mother, was represented throughout by Counsel.

[3]On 5 May 2004 the Coroner wrote to the Secretary of State recommending a public inquiry, following submissions by the Claimant’s counsel. He was of the opinion that there should be an urgent and comprehensive review of :- “the pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children’s Homes (“LASCH”).” The Coroner was concerned that the allocation of a vulnerable, sixteen year old boy, like Joseph ought to be to a LASCH and on a needs basis, not a resource basis. In conclusion he wrote:- “In all the circumstances, and so that it can include Sentencing Policy which is an essential ingredient but outside the scope of the Inquest, I consider that the Review should take the form of a Public Inquiry where all interested parties can make their views known.”

[4]This letter was followed up by letters from the Claimant’s solicitors to the Secretary of State.

[5]On 16 September 2004 the Private Secretary wrote to the Claimant’s solicitors as follows:- “Paul Goggins, Minister for Correctional Services, has asked me to thank you for your letter of 14 July, which he has now been able to consider along with the recommendations the Coroner made in his letter of 5 May following the inquest into Joseph’s death. “The coroner identified a number of issues requiring further consideration. These fall into three broad categories: the appropriateness of the sentence Joseph received; operational issues relating to the Youth Justice Board, youth offending teams and secure establishments; and the provision in the juvenile secure estate for vulnerable young offenders. Paul Goggins has decided on a series of action to address these issues. I attach a copy of the Minister’s reply to the coroner, which explains what is being done. “Having given proper consideration to the question, the Minister did not consider that a full public inquiry would be the best or most appropriate response. The main reason given by the coroner for recommending a public inquiry was to enable the sentencing issue to be considered. Clearly, a public inquiry would not be as well placed as the Sentencing Guidelines Council to review sentencing issues. The other matters can most suitably be addressed by the independent review by Mr David Lambert which the Minister has commissioned, and by the Youth Justice Board. “You refer to the Government’s investigative obligations under

Article 2 of the ECHR

. The Minister is satisfied that these obligations have been fully met by the inquest into Joseph’s death. The further action now being taken is the proper response to issues that the inquest jury identified.”

[6]However, the Secretary of State did not let matters rest there. On 27 August 2004 a letter was written on his behalf to Lord Woolf, the then Lord Chief Justice, in his capacity as Chairman of the Sentencing Guidelines Council. A brief background of Joseph’s case was given. The Coroner’s letter was enclosed. The Secretary of State asked the Sentencing Guidelines Council:- “to review the Joseph Scholes case in the context of its current consideration of guidelines for robbery offences.”

[7]The Secretary of State took two further steps. He appointed Mr Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to examine the operational issues raised by Joseph’s case. Furthermore, he asked the YJB, in preparing its proposals for the future juvenile custodial estate, to take full account of the matters raised in the Inquest as to the adequacy of custodial provision for vulnerable young offenders.

[8]The Claimant seeks an order quashing the refusal of the Secretary of State to set up a public inquiry. The sole, but important, issue raised by the Claimant’s claim in these proceedings is whether the United Kingdom has complied with its duty under

Article 2 of the European Convention on Human Rights

to investigate the circumstances of the death of Joseph. Mr Owen Q.C, for the Claimant, made it clear that the sole challenge to the decision of the Secretary of State was that it was unlawful. He specifically disclaimed any suggestion that it was perverse, irrational or that the Secretary of State had not taken into account all relevant matters.

[9]Mr Owen Q.C and Mr Southey, for the Claimant, and Mr Garnham Q.C and Miss Richards, for the Secretary of State, helpfully produced core submissions (as well as full skeleton arguments) which I summarise as follows:- (i). The Article 2 investigative obligation requires that where lives are lost in circumstances potentially engaging the responsibility of the State, there must be an investigation capable of identifying any shortcomings in the legislative, administrative and/or regulatory system designed to protect the right to life (ii). there has been no Amin/Jordan compliant investigation into the sentencing regime (embracing both sentencing policy and the adequacy of the conditions under which the sentence would be served) which resulted in Joseph being detained in Stoke Heath YOI, a penal institution that was wholly unsafe in the light of his known vulnerabilities. Nor is it proposed to have any such investigation in the future. (iii). A particular sentencing regime may directly give rise to a breach of Articles 2 and/or 3 (of the ECHR) and hence may fall within the scope of the Article 2 investigative obligation in relation to an individual, or series of deaths, in state custody. (iv). there is overwhelming evidence that the circumstances in which Joseph came to be detained in Stoke Heath YOI exemplify a chronic, systemic problem, rather than an isolated, individual aberration, and that the problem is a sentencing regime which repeatedly causes vulnerable children (especially 15 to 17 year old boys) to be locked up in unsafe penal institutions. (v). There is no principle of domestic law that an inquest which (because of the engagement of Article 2) was conducted in accordance with Middleton will invariably discharge the Article 2 investigative obligation in each and every case. Furthermore, the state is not relieved of its obligation under Article 2 because Joseph, had he lived long enough, might have appealed successfully his sentence by reference to Articles 2 and/or 3.

[10]The Defendant.(i) As the Claimant’s claim is founded solely on Article 2 (and thus owed to Joseph and his family and there being no challenge on any other basis) the views of other individuals and bodies as to the sentencing of children are of no direct relevance.

(ii) the Inquest fully discharged the State’s investigative obligation under Article 2. It was Amin/Middleton/Jordan compliant.

(iii) Although the Inquest did not consider issues of sentencing policy or the merits of Joseph’s sentence:- a) Article 2 does not require an examination of such matters b) the “vice” in Joseph’s case was not the sentence but the question of where it should be served given Joseph’s background. These issues, it was submitted, were explored in detail in the Inquest. c) Joseph, and/or his family after his death, could have appealed his sentence on the grounds that it breached his rights under Article 2 and/or 3, but no such appeal was brought.

(iv) The Inquest considered in great detail Joseph’s placement at Stoke Heath YOI and the adequacy of its conditions. The transcript of the Inquest demonstrates, it was submitted, that issues such as pre-sentence procedure, allocation and placement, post-sentence procedure, the conduct of staff at Stoke Heath YOI, the adequacy of, and resources, for the juvenile estate, the difference in care between LASCHs, Secure Training Centres and YOIs and the nature of discrimination between boys and girls, were all considered. The parties in the Inquest were at liberty to, and did, explore all these matters in questioning the witnesses. The only issue in relation to the adequacy of the juvenile secure estate which was not explored in detail was the question of how much funding is made available to the juvenile secure estate generally. Article 2 does not, and does not now, require a full inquiry into the financial policy, or decisions, of government about resource allocation.

(v) If the Claimant was unhappy about the scope of the Inquest (which was known in advance by reason of the Coroner’s interim ruling) the appropriate course would have been to challenge the Coroner’s interim ruling by way of judicial review.

(vi) if the Secretary of State is wrong about the scope of Article 2 the investigative obligation has been satisfied nonetheless by the Inquest and by the various investigations and enquiries which I have referred to in paragraphs 6 and 7 above and further in paragraph 60 of the Defendant’s skeleton argument. There is sufficient element of public scrutiny of these investigations and/or of their results and the next of kin are involved to the requisite extent.

[11]Joseph had had a troubled life with regard to self-harming. In April 2001 Joseph was referred to Dr. Helen Fitzpatrick, a child and adolescent psychiatrist, in connection with him allegedly having been sexually abused. She diagnosed that he suffered from a conduct disorder, and commented that he was very vulnerable and at risk of self- harming.

[12]Joseph’s self-harming dated back to at least 1998 and continued until his death. By way of example, two weeks before he was sentenced he slashed his face over thirty times in his room in the children’s home.

[13]Joseph pleaded guilty to the offences of robbery on the basis that he took no physical part in any of the three offences. He had one previous conviction for affray in a domestic situation with his father. There was, before the court on 15 March 2002, a pre-sentence report of Mr. Brabazon, the social worker with the YOT. He referred to the vulnerability of Joseph and his likelihood of self-harm, including suicide. Mr. Brabazon commented that Joseph would be at particular risk if he received a custodial sentence and recommended a community punishment and rehabilitation order. Mrs. O’Brien, Joseph’s key worker, supported that proposal and expressed concern at the impact on Joseph of a custodial order. During mitigation on

[14]The judge, in his sentence remarks, gave full credit to Joseph for his plea of guilty. He referred to the judgment of the Court of Appeal, presided over by Lord Woolf C.J in Attorney-General’s Reference Nos 4 and 7 of 2002

[2002] 2 Cr. App. R. (S) 77

where the Court commented that courts have no alternative but to adopt a robust sentencing policy toward those who commit (street) offences of robbery (mobile telephones). It said:- “Custodial sentences will be the only option available for the Courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions.”

[15]The judge felt bound to follow those observations in respect of Joseph and his four co-defendants. He referred to Joseph’s psychiatric difficulties and that they would be drawn to the attention of the authorities. He sentenced Joseph in the way I have indicated. Joseph was then allocated by the YJB to Stoke Heath YOI.

[16]On arrival at Stoke Heath YOI Joseph was initially put in strip clothing and put in a cell with reduced ligature points, a surveillance camera, and was under a high level of observation. Later he was moved to a single cell with no surveillance camera or reduced ligature points, and was then under a lower level of observation. On 18 March 2002 Dr. Fitzpatrick was contacted by a member of staff at Stoke Heath YOI when she again expressed concerns that Joseph was a high risk of self-harm and suicide.

[17]After Joseph’s death a number of injuries and/or investigations were set up. They included a Prison Service investigation conducted by a governor external to the Stoke Heath YOI, an internal investigation by the YJB, and a comprehensive Part 8 review undertaken by Mr Robin Hughes.

[18]The Inquest conducted by Mr J P Ellery, HM Coroner for the Mid and North Division of the County of Shropshire, heard submissions about (inter alia) the scope of the Inquest. On 27 February 2004 he gave his ruling. He said, inter alia:- “I am grateful for the written submissions from Messrs. Bhatt Murphy and the Treasury Solicitor following the further Pre-Inquest Review (by telephone) on the 30th January 2004. I additionally received written submissions from Messrs. Beesley & Co. which were succinct and essentially supported the position put forward by Messrs. Bhatt Murphy. With that letter was a witness statement from their Client, Mr John Palmer (Joseph’s father) and that statement I am told has been circulated to all interested parties. “My approach today is to set out the position in principle as it would be unwise to be dogmatic and too specific about matters which are wide ranging and may well develop over the Inquest itself. I want to identify the issues but have flexibility to move within them. In particular, I am mindful that the House of Lords has heard the linked cases of Amin and Sacker (2nd to 4th February 2004) and that written judgment may be expected towards the end of next month (March 2004). It may well be that the position in Law, as we understand it, may alter and/or be clarified. “1. Scope of Inquest. In my view the core issues are: a) Joseph having been sentenced (we cannot go behind the sentence) was all relevant and necessary information available to properly reach a decision as to the appropriate allocation for Joseph? b) With that information and the sentencing Judge’s remarks, what allocation options were available, what were considered and what criteria was used to exercise them? The Inquest cannot go into matters of resources, save perhaps for observing that, if it is the case, that lack of resources may have been a factor whether critical or contributory. c) Having been allocated to Stoke Heath Young Offenders Institution, what then should have happened to Joseph? d) What should have been the correct approach once Joseph was on the hospital wing? Should more liaison have taken place between the Agencies. Did Stoke Heath have all the necessary relevant information, did it make the risk/care plan assessment? e) To what extent did the differing Agencies know what the other was doing? It appears that the Trafford Youth Offending Team were still trying to get Joseph transferred to a Local Authority secure unit whereas those within the Young Offenders Institution were seeking to integrate him onto the main wing i.e. further within the Prison system. On the face of it these aims conflict. f) Should it have been clear that Joseph was to remain on the hospital wing until secure accommodation was found? If so, should Joseph have been told this? g) Is it correct that in the light of the experience of others in Joseph’s position being successfully integrated into the main wing that it was then right for Joseph? What if anything was there to distinguish Joseph from any other inmate who had exhibited similar history and symptoms? What if anything could have been done to indicate that Joseph was different to the previous inmates and that he would react in the way that he did? h) Allocation and re-allocation I take as the same issue. The fact that the initial allocation did not succeed would that, as a matter of principle, negate the need to continue that process? “2. Article 2. I do not consider it helpful to look at these issues in the stark terms of whether or not they breached Article 2. The fact is, this is the Article 2 investigation into Joseph’s death he having died in State custody and there being no other State investigation (that I am aware of). It is clear from current Case Law that systemic neglect can be and arguably is more serious than any individual acts of neglect. Having acknowledged that this is an Article 2 investigation everything takes place under that umbrella. “3. Judicial Sentencing. Such policy or change in policy, which may or may not increase the number of children in custody, is not within the scope of this Inquest. It is a matter of national interest which should be dealt with at that level.”

[19]It is a central submission of Mr Garnham that the Inquest was the discharge of the State’s investigative obligation under Article 2 and that in fact that obligation was discharged therein. At paragraph 2.2 of his skeleton argument Mr Owen said that the Secretary of State had implicitly acknowledged and accepted that there were three important issues which were not capable of investigation by the Inquest, namely:- a). juvenile sentencing, b) operational issues, and c) the adequacy of the juvenile estate to accommodate vulnerable, young persons.

[20]It is therefore necessary to give an account of the course of the Inquest as concisely as I can.

[21]Mr Garnham and Miss Richards have set out between paragraphs 17 and 36 of their skeleton argument a précis of the witnesses and their evidence before the Coroner and the jury. Mr Owen did not dispute its accuracy or comprehensiveness. I shall therefore broadly adopt it.

[22]On the first day of the Inquest, 19 April 2004, the Coroner, following his opening remarks to the jury, read out the report of Dr Mark Poulson, a doctor at the North Staffordshire Royal Infirmary, as to the medical care provided to Joseph in hospital and the attempts at resuscitation. Professor Archibald Malcolm, who conducted the post-mortem, gave evidence about the cause of Joseph’s death.

[23]The jury heard about Joseph’s troubled personal and family background from the Claimant and from his father including that fact that in November 2001 Joseph was admitted in to the care of the local authority.

[24]The Coroner read out a detailed report from Dr Helen Fitzpatrick, a consultant child and adolescent psychiatrist who had been involved with Joseph prior to his death. This report provided information about Joseph’s family background, allegations of sexual abuse by a family member and the care provided to him in the community and discussed Joseph’s history of aggressive and violent behaviours, substance misuse and self-harm.

[25]Various witnesses from the local authority gave evidence, namely Marie O’Brien (Joseph’s key worker), Alicia Cooper (manager of the children’s home where Joseph lived prior to his sentence), David Boulger (social worker with the Youth Offending Team), Mike Brabazon (social worker with the Youth Offending Team), Joyce Boyd (manager of the Youth Offending Team), Ken McDonald (manager of the Youth Offending Team) and Mark Rudden (social worker at the children’s home). A further local authority witness, Mark Adshead, subsequently gave evidence on 28 April 2004.

[26]These witnesses gave evidence as to their knowledge of, and interactions with, Joseph. They also covered a wide range of operational and systemic issues. The evidence covered, inter alia:-(i) the information about Joseph, his needs and the risk of self-harm and suicide which was available at the time of his sentence.

(ii) the extent to which this information was made available to the sentencing court.

(iii) the extent to which this information was passed on to the Youth Justice Board to enable it to make a decision about Joseph’s allocation and placement.

(iv) the information which was passed onto Stoke Heath once Joseph had been allocated there.

(v) the extent of contact between the Youth Offending Team (YOT) and the prison. (v) the preparation and content of the pre-sentence report.

(vi) the production of the ASSET assessment.

(vii) the extent to which the ASSET was adequately completed by the YOT.

(viii) whether the ASSET was an adequate tool for the provision of information. (x) the make-up of the juvenile estate and in particular the availability of places in LASCHs and the difference between LASCHs and YOIs. (xi) procedures for the provision of information to the YJB for allocation decisions. (xii) new arrangements and protocols developed in the light of Joseph’s death.

[27]In the course of hearing this evidence, the Inquest considered the documentation which was available at the pre-sentencing and sentencing stages, including Joseph’s pre-sentence report, the ASSET form and correspondence from Dr Fitzpatrick.

[28]The Inquest considered the transcript of the sentencing hearing on 15 March 2002. The jury heard what information was given and what submissions were made to the sentencing court as well as the sentencing judge’s comments, sentence and reasons. The inquest also considered relevant parts of the Lord Chief Justice’s judgment in Attorney-General’s Reference Nos. 4 & 7 of 2002.

[29]The Inquest next considered the process of allocation and placement for juveniles who have received sentences of detention. Peter Minchin, the Head of Placement for the YJB, gave detailed evidence about this process and about the allocation decision in Joseph’s case. He was cross examined at length by the Claimant’s counsel. Mr Minchin’s evidence covered a wide range of issues including:(i) the role and functions of the YJB, particularly in relation to the allocation of placements in YOIs, STCs and LASCHs.

(ii) the YJB’s general policies, procedures and guidance relating to placement decisions.

(iii) the configuration of the secure juvenile estate.

(iv) the different priorities given to young persons of different ages and the reasons for those priorities.

(v) the different priorities given to girls of certain ages and the reason for those priorities.

(vi) the number of available placements in STCs, LASCHs and YOIs at different stages and the contractual arrangements which the YJB have with LASCHs.

(vii) the process for transferring an individual from a YOI to a STC or LASCH.

(viii) the differences between STCs, LASCHs and YOIs in terms of ethos, care, physical structure etc.

(ix) how in practice placement decisions are generally made.

(x) changes in the system since Joseph’s death.

(xi) the procedure whereby the YJB alerts YOIs in the event of a vulnerable juvenile being allocated there.

(xii) whether there had been increases in the numbers of juveniles being detained.

(xiii) the extent to which demand for placements in LASCHs outstrips supply.

(xiv) the process whereby the YJB regularly reviews placements in LASCHs and STCs.

(xv) the review of placements which took place in response to the Street Crime Initiative. (xvi) the impact of budgetary constraints on placement decisions. (xvii) changes in the regimes and facilities available for juveniles placed in YOIs (xviii) the vacancies in YOIs, STCs and LASCHs at the time of Joseph’s allocation. (xix) the information provided to the YJB about Joseph. (xx) how the allocation decision in relation to Joseph was taken. (xxi) how the transfer request in relation to Joseph was dealt with.

[30]Mr Minchin’s evidence encompassed individual and systemic issues and general policies and procedures as well as a detailed consideration of the decision-making process and the available documentation concerning Joseph.

[31]Two other witnesses from the YJB gave evidence. The first was Brendan Finegan, the Director of Policy at the YJB who had undertaken an inquiry into Joseph’s death on behalf of the YJB and had prepared an interim report into his death. Mr Finegan’s report was read out. Mr Finegan gave evidence about his inquiry and the series of recommendations which he produced for the YJB, the YOT and the Prison Service. He explained the extent to which the recommendations had been acted upon.

[32]The second witness was Mark Perfect, the Chief Executive of the YJB. His evidence covered a wide range of issues including:(i) the role, functions and constitution of the YJB and its aims and objectives.

(ii) the configuration of the juvenile estate.

(iii) changes which had been or were being made to the configuration of the juvenile state.

(iv) the appropriateness of prison service accommodation for juveniles.

(v) the standards expected by the YJB in relation to prison service accommodation for juveniles.

(vi) whether there were sufficient beds available in LASCHs to accommodate all 15 or 16 year old boys identified as vulnerable.

(vii) whether budgetary constraints had an impact on placement decisions.

(viii) the way in which allocation and placement decisions are taken.

(ix) the actions taken by the YJB in response to the internal review by Brendan Finegan and in response to the Part 8 Review undertaken on behalf of Trafford Social Services by Mr Robin Hughes. As with Mr Minchin, there was extensive cross examination of Mr Perfect by the Claimant’s counsel about the YJB’s priorities and policies.

[33]Between day 4 and day 6 the Inquest heard from the witnesses who had come into contact with Joseph during his time at Stoke Heath. These witnesses are set out at paragraph 28 of Mr Garnham’s skeleton argument. They all went to operational issues which, Mr Owen has accepted, the Inquest covered with great thoroughness. It is therefore unnecessary to detail them in this judgment.

[34]In addition to the evidence dealing specifically with Joseph’s time at Stoke Heath, the Inquest heard a range of evidence as to general systems, policies and practices at Stoke Heath, in particular in relation to the health care centre:(i) Dominic Donaldson, the Head of Healthcare at Stoke Heath, gave detailed evidence on a range of issues including: the facilities and care on the health care unit at Stoke Heath, information sharing processes, the care provided to Joseph, the F2052SH procedure, the arrangements for medical care (GP and psychiatric) for trainees, arrangements for record keeping, the safer and normal cell accommodation, the process of risk assessment, Prison Service policy on self harm and suicide awareness, the use of safer clothing, suicide awareness training and changes that had been made within Stoke Heath in response to the investigations into Joseph’s death.

(ii) The inquest heard from two of the visiting GPs to Stoke Heath (Dr Christopher Lisk and Dr Jane Bright) who had been involved in undertaking assessments and making decisions about Joseph’s placement, care and levels of observations whilst on the health care unit, including matters relating to the use of safer cells and safer clothing. Their evidence explored not only the decisions concerning Joseph in which they participated but also wider issues including the adequacy of the health care unit.

(iii) The evidence of Peter Small (the current Governor of Stoke Heath) covered issues including general policies and procedures for the reception of new trainees; the care provided on health care centre; the physical facilities at the health care centre; the arrangements for trainees suffering from mental health problems; the action taken by Stoke Heath in response to the recommendations made by the Part 8 review undertaken after Joseph’s death on behalf of Trafford Social Services; the number of trainees detained at Stoke Heath; the use of safer cells; the use of safer clothing; assessment procedures; and the continuing steps being taken at Stoke Heath to try to address self harm and suicide.

(iv) Catherine James, the Governor of Stoke Heath at the time of Joseph’s death, gave evidence about a wide range of issues including general policies and procedures at Stoke Heath, the process of individual assessment, care planning, the inadequacy of the physical facilities on the health care unit, the steps taken to obtain funding for a new healthcare centre, the installation of safer furniture, the risk of suicide in custody, the mixing of young offenders and juveniles, the regimes on the health care unit, the use of safer cells and safer clothing and the process of reintegration onto the wing for juveniles held in the health care unit.

[35]The Inquest considered in some detail the steps which were taken when Joseph was discovered hanging in his cell on 24 March. I need not detail these.

[36]The Inquest considered evidence relating to three independent or quasi-independent investigations/reviews arising out of Joseph’s death. The first was the detailed report by Neil Croft, a prison governor who was independent of Stoke Heath, who undertook the Prison Service’s own internal investigation into Joseph’s death. The second was the report of Robin Hughes, an independent social care consultant specialising in children’s services who was commissioned by Trafford Area Child Protection Committee to prepare an overview report following Joseph’s death. The purpose of his report was “to see what lessons can be learnt from the experience of the various agencies involved in order that they can incorporate those in future policies, procedures and practices and hopefully prevent things happening again”. He conducted a wide ranging review which went back far earlier than Joseph’s involvement with the criminal justice system. Mr Hughes looked in particular at what could be learnt about the way agencies worked together; what could be learnt about the decision to send Joseph to Stoke Heath; what could be learnt about the way Stoke Heath was equipped to look after vulnerable children like Joseph; and what actually happened in Joseph’s case. He explained to the Inquest his conclusions and recommendations on a wide range of issues raised by Joseph’s case.

[37]The third review was undertaken by Dr Malcolm Bourne, a Consultant Child and Adolescent Psychiatrist. Dr Bourne was an independent expert commissioned by the Coroner to undertake a “detailed and independent investigation into Joseph’s death”. In his report, he considered the sentencing process and Joseph’s allocation and care at Stoke Heath and addressed a number of specific questions posed to him by the Coroner, including; was all relevant and necessary information available to reach a proper decision as to the appropriate allocation for Joseph? what should have happened when he had been allocated? what should have been the correct approach once Joseph was on the hospital wing? and to what extent did the differing agencies know what the other was doing?

[38]Mr Croft’s report was, by agreement, read to the jury. Mr Hughes and Dr Bourne both gave oral evidence and were cross-examined, including by the Claimant’s counsel.

[39]Finally, the inquest heard from Inspector Shakesheff as to the police investigation into Joseph’s death and the conclusions from that investigation.

[40]Mr Garnham took me through parts of the evidence of witnesses particularly relevant to these judicial review proceedings. He, in my judgment, amply demonstrated that the Coroner did not restrict questioning of the witnesses, that questioning of witnesses from the YJB in particular went, inter alia, to the issues of resources to fund LASCHs, and the priority that girls of 15 to 17 years had over boys of the same age for accommodation in LASCHs, and to all the matters covered by the witnesses and their evidence which I have summarised in paragraphs 19 to 35 inclusive above.

[41]The Coroner’s summing-up began on 29 April 2004 and was not concluded. On 30 April 2004 he completed it. It must have lasted for the better part of a day or more. The transcript covers in all 122 pages, including taking the jury through the questionnaire. The summing-up was very thorough.

[42]At just before 4.30pm on 30 April 2004 the jury returned and delivered its verdict of accidental death. The answers of the questionnaire were confirmed orally by the Coroner (see 1/62-70). I will not set them all out, only those that are particularly pertinent to the judicial review proceedings. The jury said that there had been a failure in the system generally due to lack of documentation and communication. It did not think it was appropriate to allocate Joseph to a YOI. It did not consider any better information would have in practice made any difference to Joseph’s allocation and:- “There was no place available on the day and from the evidence given it was policy not to transfer 16 year olds straight into local authority secure units. Perhaps more money could be put into building more secure units.”

[43]The jury considered it “most unlikely” that vulnerable children, like Joseph, would be allocated to a secure local authority unit. It answered in the negative a question whether the sentencing judge, before sentence, should have been aware that his recommendation would not be complied with:- “….we consider this would not make a difference to the availability or not of beds. Could extremely vulnerable children have somewhere separate to go or stay pending placement in a secure unit, but not a Youth Offenders’ Institution.”

[44]Finally, the jury said that according to the reports there were no budgetary constraints as to places in local authority secure units but “….there are just not enough LASUs.”

[45]I now turn to Article 2. At the beginning of his submissions Mr Owen sought to crystalise the issue before the court as – where an inquest following Regina (Amin) v. Secretary of State for the Home Department

[2003] UKHL 51

[2004] 1 AC 653

has been conducted in a way that seeks to satisfy Article 2 within the confines of the inquest process, does that invariably discharge the State’s Article 2 investigative obligations? He accepted that in Amin and Regina (Middleton) v. West Somerset Coroner and another

[2004] UKHL 10

[2004] 2 AC 182

the House of Lords had said that an inquest was “normally” the appropriate way for the State to discharge its Article 2 investigative obligation but submitted that there will be cases, such as Joseph’s, in which the circumstances of the death require further investigation beyond a lawfully conducted inquest. This is such a case, he submitted, because of a chronic, systemic problem. The sentencing regime or policy and penal estate must be investigated so that the state’s Article 2 obligation is discharged. This can only be done by a public inquiry.

[46]He took me then to the Claimant’s Core submissions which I have summarised in paragraph 9 above. He also took me through some of the evidence given to the Inquest and passages in the Coroner’s summing-up.

[47]So far as Core submission (iv)is concerned, he referred me to a lecture of Baroness Hale of Richmond at the end of 2004 (2/771), the report of the Joint Committee of Parliament on Human Rights in November 2003 (2/645), the report of the same Joint Committee on Deaths in Custody of December 2004 (2/677) and the Government’s response, the Children’s Rights Alliance Report of November 2004 (2/709), the report of the UN Committee on Rights of the Child of October 2002 (2/718), and the report of the Council of Europe (2/736). I shall now refer to the lecture and some of the reports.

[48]The title of Baroness Hale’s lecture was “Blaming the victims: Women and Children in the Criminal Justice System” which was given on the 70th anniversary of the founding of Liberty. Mr Owen highlighted various matters in her lecture. First, the UN Convention on the Rights of the Child stated in article 37 (b) and (c) that the restriction of liberty shall only be used as a last resort and for the shortest appropriate time and that each such child shall be treated with humanity and respect. Second, there has been a massive increase in the UK over the last decade in the use of custody for children i.e. from 4,500 in 1994 to over 7000 in 2000. In September 2004 the figure was 2755.

[49]Third, the key retributive principle of proportionality was laid down in the Criminal Justice Act, 1991 (now see the relevant sections in the Powers of Criminal Courts (Sentencing) Act 2000). 16 and 17 year olds could be sentenced to detention in YOIs. YOIs were not brought within the welfare safeguards of the Children Act, 1989.

[50]Fourth, more worrying is where the children were being locked up. Of the total of around 3500 places in local authority secure children’s homes, secure training centres and YOIs, the number of places available were 320, 194, and 2965 respectively i.e. the vast majority in YOIs. The number of LASCHs were going down, STCs were going up, and YOIs remaining much the same.

[51]Fifth, LASCHs and STCs have a ratio of 4 staff to 8 youngsters; YOIs have a ration of 4 to 60. LASCH places cost £186,000 p.a, STC places £165,000 and YOI £50,800.

[52]Sixth, Baroness Hale said at p. 9 (2/779):- “If I am right that this is indeed a human rights issue, it is one which should particularly concern us, because it is not an egregious aberration, or an exceptional response to an emergency, but the product of the ordinary system operating in the ordinary way. It is systemic.”

[53]Seventh, she referred to the risk of suicide and self-harm and to Joseph’s case amongst others. She described the problems of drugs and alcohol and mental health difficulties but the “worst aspect of all” is the risk of suicide and self-harm.

[54]The recommendations of the Joint Committee (of Parliament) on Human Rights in 2003 was that all offenders under 18 should be removed from the Prison Service into the care of people “whose outlook is firmly grounded in a culture of respect for children’s human rights, devoted to rehabilitation and care” (2/653). The Government did not agree (see also 2/653).

[55]The Joint Committee also produced a report on Deaths in Custody in December 2004. It recommended (see 2/681) that the Government should legislate to empower the YJB to direct the form of custody for a sentenced child assessed as vulnerable and provide adequate funding for suitable forms of accommodation for vulnerable children, both on remand and after sentence.

[56]Mr Owen further referred me to passages in the statements in these proceedings of the Claimant of 27 October 2005 and Deborah Coles of 14 November 2005, for the purpose of his submission that there is a chronic problem in respect of young persons in their formative teenage years before adulthood and their sentencing and incarceration which has not yet been addressed, particularly for vulnerable children like Joseph. Ms Coles wrote of the “systemic failings”. Vulnerable children are being sentenced to custody and placed within the Prison Service which has neither the resources, facilities or trained staff to deal with their needs. There is a need for a thorough investigation following the death of a child in custody, which should be by way of a public inquiry.

[57]The Claimant complained in her statement (paragraphs 16 and 17) of what she perceived as the limited scope of inquiry at the Inquest which did not cover sentencing policy and juveniles (and vulnerable juveniles) nor the juvenile estate. She concluded at paragraph 33, having referred to the death in custody of two other young persons as follows:- “I do feel that a public inquiry into Joseph’s sentence, the reasons for his allocation to Stoke Heath and his treatment there provide a real opportunity for the state to properly address and acknowledge the features that are relevant when sentencing children to custody, how to safeguard children in custody if a custodial sentence is imposed, whether there have been and still are any systemic failings in that duty, whether there were any specific failings in relation to Joseph and for there to be proper lessons learned from Joseph’s death for the future.”

[58]I accept – for it is absolutely plain – that there is great concern within (and without) this country as to whether young persons under the age of 18 years should be locked up at all, whether they should be in secure units outside the prison service (and if so, what type of units), whether young persons should be incarcerated in YOIs, what form of incarceration is necessary for protection of the public from young offenders, and what financial resources should be devoted to young offenders. Deaths in custody of young offenders must be an unimaginable and terrible trauma for the deceased, and must leave their families completely distraught. They rightly should attract a high degree of public scrutiny.

[59]Both Mr Owen and Mr Garnham cited to me R (on the application of Plymouth City Council) v. County of Devon Coroner

[2005] EWHC 1014 (Admin)

, [2005] 2 FCR 428, a decision of Wilson J. (as he then was) and in particular paragraph 64 of his judgment, as a helpful summary of the duties on the State under Article 2 and the Human Rights Act 1998:- “SECTION C: TRIGGER FOR THE DUTY TO INVESTIGATE THE ROLE PLAYED BY THE CHILD PROTECTION AGENCIES [64] Article 2 read in conjunction with s 6(1) and (6) of the Human Rights Act 1998, imposes three distinct duties on the state:(a) A negative duty, namely a duty not by its agents intentionally to take a person’s life save in the circumstances specified in the article. The facts in McCann v UK

(1995) EHRR 97

, namely the fatal shooting by soldiers of suspected terrorists in Gibraltar, therefore gave rise to a breach of this duty in that none of the specified circumstances existed.

(b) A positive duty, namely to take all reasonable steps to protect a person’s right to life under the article. In some situations this duty (‘the protective duty’) requires the state to do more than effectively to operate a criminal justice system designed to deter the taking of life. One example is that the state is required to take all reasonable care to protect the life of a person involuntarily in its custody: per Lord Bingham of Cornhill in R (on the application of Amin) v Secretary of State for the Home Dept

[2003] UKHL 51

at [30],

[2003] 4 All ER 1264

at [30],

[2004] 1 AC 653

. Another example is that the state is required to seek to protect a person from death as a result of incompetent medical treatment or care by its effective operation of a system of professional and other regulation: Calvelli v Italy

[2002] ECHR 32967

/96 at [49].

(c) A second positive duty, collateral to the first, namely the investigative duty. Art 2 requires the state to furnish an appropriate investigation into the cause of a death which has been, or may have been, caused or contributed to whether by a violation of such domestic laws , criminal and civil, as protect the right to life or by a breach of the state’s protective duty under art 2: see Edwards v UK

(2002) 35 EHRR 487

at [69]. In R (on the application of Khan) v Secretary of State for Health

[2003] EWCA Civ 1129

at [67] (3), [2003] 3 FCR 341 at [67] (3),

[2003] 4 All ER 1239

the Court of Appeal observed:

“The procedural obligation introduced by article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public.”

I gratefully adopt those dicta. (a) A negative duty, namely a duty not by its agents intentionally to take a person’s life save in the circumstances specified in the article. The facts in McCann v UK

(1995) EHRR 97

, namely the fatal shooting by soldiers of suspected terrorists in Gibraltar, therefore gave rise to a breach of this duty in that none of the specified circumstances existed. (b) A positive duty, namely to take all reasonable steps to protect a person’s right to life under the article. In some situations this duty (‘the protective duty’) requires the state to do more than effectively to operate a criminal justice system designed to deter the taking of life. One example is that the state is required to take all reasonable care to protect the life of a person involuntarily in its custody: per Lord Bingham of Cornhill in R (on the application of Amin) v Secretary of State for the Home Dept

[2003] UKHL 51

at [30],

[2003] 4 All ER 1264

at [30],

[2004] 1 AC 653

[2002] ECHR 32967

/96 at [49]. (c) A second positive duty, collateral to the first, namely the investigative duty. Art 2 requires the state to furnish an appropriate investigation into the cause of a death which has been, or may have been, caused or contributed to whether by a violation of such domestic laws , criminal and civil, as protect the right to life or by a breach of the state’s protective duty under art 2: see Edwards v UK

(2002) 35 EHRR 487

at [69]. In R (on the application of Khan) v Secretary of State for Health

[2003] EWCA Civ 1129

at [67] (3), [2003] 3 FCR 341 at [67] (3),

[2003] 4 All ER 1239

the Court of Appeal observed:

“The procedural obligation introduced by article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public.”

I gratefully adopt those dicta.

[60]There is no dispute between Mr Owen and Mr Garnham that the State does have an investigative obligation under Article 2 in cases such as Joseph’s, but they disagree as to its scope and in particular whether the Inquest discharged the State’s obligation in Joseph’s case. They also agree that Article 2 imposes certain minimum standards but otherwise leaves each state to decide how to carry out its investigative obligation.

[61]It is necessary now to turn to the decisions of the House of Lords in Amin and Middleton and of the Grand Chamber of the European Court in Oneryildiz v. Turkey (Application no. 48939/99)

(2005) 41 EHRR 20

[62]In Amin the deceased, while serving a custodial sentence in a YOI, was murdered by his cellmate who had a history of violent and racist behaviour. There were a number of investigations. An inquest was opened, adjourned when the cellmate was charged with murder, and never reopened after his conviction. The Secretary of State refused the request of the family of the deceased for a public inquiry. Hooper J. (as he was then) granted a declaration in judicial review proceedings of the decision of the Secretary of State that an independent public investigation with the deceased’s family legally represented, provided with the relevant material and able to cross-examine the principal witnesses should be held in order to satisfy the State’s procedural duty under Article 2 into the deceased’s death. The Court of Appeal set aside the declaration, holding that the series of inquiries already held satisfied the State’s investigative duty under Article 2. The House of Lords allowed the appeal holding (see the headnote at p.653):- “that the state’s duty to secure the right to life guaranteed by article 2 required it, in particular, to take steps to protect the lives of those involuntarily in its custody from the criminal acts of others, and, where death occurred, the state’s procedural obligation to carry out an effective investigation of the circumstances required, whatever mode of inquiry was adopted, as a minimum standard of review, sufficient public scrutiny to secure accountability and an appropriate level of participation by the next-of-kin to safeguard their legitimate interests; that, having regard to the absence of an inquest and since none of the investigations which were undertaken satisfied the minimum threshold, the state’s procedural duty under article 2 had not been discharged; and that, accordingly, the judge’s order would be restored.”

[63]I was referred to a number of passages in the speeches of their Lordships but in particular to that of Lord Bingham of Cornhill. At paragraph 19 Lord Bingham described the primary purpose of Article 2:- “19. The primary purposes of article 2 were well described by the European Court in paragraph 115 of its judgment in Osman v United Kingdom

(1998) 29 EHRR 245

when it said (I omit the footnote):

“115. The Court notes that the first sentence of article 2 (I) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.” “But the scope of article 2(I) goes beyond the primary purposes thus defined, as the Commission explained in para 193 of its opinion in the report of McCann, p 140: “193. Having regard therefore to the necessity of ensuring the effective protection of the rights guaranteed under the Convention, which takes on added importance in the context of the right to life, the Commission finds that the obligation imposed on the State that everyone’s right to life shall be ‘protected by law’ may include a procedural aspect. This includes the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a state may receive public and independent scrutiny. The nature and degree of scrutiny which satisfies this minimum threshold must, in the Commission’s view, depend on the circumstances of a particular case. There may be cases where the facts surrounding a deprivation of life are clear and undisputed and the subsequent inquisitorial examination may legitimately be reduced to a minimum formality. But equally, there may be other cases, where a victim dies in circumstances which are unclear, in which event the lack of any effective procedure to investigate the cause of the deprivation of life could by itself raise an issue under article 2 of the Convention.” “115. The Court notes that the first sentence of article 2 (I) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.” “193. Having regard therefore to the necessity of ensuring the effective protection of the rights guaranteed under the Convention, which takes on added importance in the context of the right to life, the Commission finds that the obligation imposed on the State that everyone’s right to life shall be ‘protected by law’ may include a procedural aspect. This includes the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a state may receive public and independent scrutiny. The nature and degree of scrutiny which satisfies this minimum threshold must, in the Commission’s view, depend on the circumstances of a particular case. There may be cases where the facts surrounding a deprivation of life are clear and undisputed and the subsequent inquisitorial examination may legitimately be reduced to a minimum formality. But equally, there may be other cases, where a victim dies in circumstances which are unclear, in which event the lack of any effective procedure to investigate the cause of the deprivation of life could by itself raise an issue under article 2 of the Convention.”

[64]At paragraph 20 Lord Bingham set out the propositions established by the European cases. I cite those referred to by Mr Owen and Mr Garnham:- “(4) The obligation to ensure that there is some form of effective official investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by any agent of the state: Salman, para 105. “(5) The essential purpose of the investigation was defined by the Court in Jordan, para 105:

“to secure the effective implementation of domestic laws which protect the right to life and, in those cases involving State agents or 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.” (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 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 form 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 interest.” (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.” “to secure the effective implementation of domestic laws which protect the right to life and, in those cases involving State agents or 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.” “it is capable of leading to a determination of whether the force used in such cases 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.” “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.”

[65]At paragraph 21 he continued:- “21. As pointed out above, the propositions I have sought to summarise were, in the main, laid down in cases involving deliberate killing or alleged killing by agents of the state. Edwards v United Kingdom

(2002) 35 EHRR 487

is of central importance in this appeal because it was not such a case. Factually it bore strong similarities to the present case. ……There was in that case a thorough inquiry conducted by independent Queen’s Counsel. But the case is important because, although addressing a case in which there had been no killing or alleged killing by state agents and the responsibility of the state (if any) could only rest on its negligent failure to protect the life of Christopher Edwards, a prisoner in its custody, the European Court applied essentially the same principles as in the cases already considered. 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.”

[66]At paragraph 22 Lord Bingham set out paragraphs 69 and 73 of the judgment of the European Court in Edwards. Counsel emphasised to me that the European Court there said that what form of investigation would achieve those purposes may vary in different circumstances and that whatever form is chosen 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. To satisfy Article 2 the investigation must have certain features i.e.(1) it must be independent,

(2) it must be effective,

(3) it must be reasonably prompt,

(4) there must be a sufficient element of public scrutiny, and

(5) the next-of-kin must be involved to an appropriate extent (see paragraph 25).

[67]Under “Conclusions” Lord Bingham said at paragraph 31, 32, and 33:- “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; Menson v United Kingdom (Application No 47916/99) (unreported) 6 May 2003, p 13. 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 in paragraph 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 as 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 wrongdoings (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. “32. 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 v United Kingdom 37 EHRR 52 and Edwards v United Kingdom 35 EHRR 487, has laid down minimum standards which must be met, whatever form the investigation takes. Hooper J loyally applied those standards. The Court of Appeal, in my respectful opinion, did not. It diluted them so as to sanction a process of inquiry inconsistent with domestic and Convention standards. “33. There was in this case no inquest. The coroner’s decision not to resume the inquest is not the subject of review, and may well have been justified for the reasons she has given. But it is very unfortunate that there was no inquest, since a properly conducted inquest can discharge the state’s investigative obligation, as established by McCann v United Kingdom 21 EHRR 97. It would overcome the problems exposed by this appeal if effect were given to the recommendations made in Death Certification and Investigation in England, Wales and Northern Ireland; The Report of a Fundamental Review 2003 (Cm 5831) (June 2003), and no doubt that report is receiving urgent official attention.”

[68]In Middleton the deceased, serving a long custodial sentence, hanged himself in his cell. The Coroner directed the jury that it could not express any opinion on whether the deceased was a suicide risk. The jury found that the deceased had killed himself while the balance of his mind was disturbed. It handed a note to the Coroner that the Prison Service had failed in its duty of care to the deceased. The Coroner refused the family’s request to append the note to the inquisition. The claimant, the deceased’s mother, sought judicial review of the coroner’s direction and of his refusal to publish the note. Stanley Burnton J granted the declaration. The Court of Appeal allowed the Secretary of State’s appeal in part. The House of Lords held that an inquest, being the means by which the State sought to discharge its investigative obligation under Article 2, ought ordinarily to culminate in an expression of the jury’s conclusion on the central, factual issues in this case. It further held that “how” in s.11(5)(b)(i)(ii) of the Coroner’s Act, 1988 and rule 36(1)(b) of the Coroners Rules 1984 should be construed as “by what means and in what circumstances”. Finally it held that the jury should have been entitled to express its opinion on the central issues whether the deceased was a suicide risk and whether appropriate precautions should have been taken to prevent his suicide.

[69]Lord Bingham gave the considered opinion of the Appellate Committee. At paragraph 20 he said:- “20. The European court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public inquiry is ordered into major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2, an inquest ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case.”

[70]At paragraph 29 he posed the question:- “How far, then, does the current regime for conducting inquests in England and Wales match up to the investigative obligation imposed by article 2?”

[71]He endorsed the submission of Counsel for the Secretary of State that the House should propose no greater revision of the existing regime than is necessary to secure compliance with the Convention, (paragraph 34).

[72]At paragraph 35 he expressed the Committee’s opinion that only one change was necessary i.e. the construction of the word “how” (see my paragraph 65 above).

[73]At paragraph 38 he said:- “38. The power of juries to attach riders of censure or blame was abolished on the recommendation of the Report of the Departmental Committee on Coroners under the chairmanship of Lord Wright (1936) (Cmd 5070). It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precaution, if any, whereby the death might have been avoided (section 6(I)(c)). Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held. Compliance with the Convention does not require that this power be exercisable by the jury, although a coroner’s exercise of it may well be influenced by the factual conclusions of the jury. In England and Wales, as in Scotland, the making of recommendations is entrusted to an experienced professional, not a jury. In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make.”

[74]Finally, at paragraph 45 he said:- “45. It follows from the reasoning earlier in this opinion that the judge’s declaration was correctly made, although not for all the reasons he gave. There was no dispute at this inquest whether the deceased had taken his own life. He had left a suicide note, and it was plain that he had. The crux of the argument was whether he should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent him taking his own life. The jury’s verdict, although strictly in accordance with the guidance in Ex p Jamieson [1995] QB I, did not express the jury’s conclusion on these crucial facts. This might have been done by a short and simple verdict (e g “The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so”). Or it could have been done by a narrative verdict or a verdict given in answer to the coroner’s questions. By one means or another the jury should, to meet the procedural obligation in article 2, have been permitted to express their conclusion on the central facts explored before them.”

[75]In Oneryildiz there was a methane explosion in a household refuse tip in 1993. Thirty-nine people died in the accident. Proceedings were taken against the relevant authorities. Fines were imposed by the Istanbul Criminal Court for negligent omissions in the performance of their duties within the meaning of Article 230 para 1 of the Criminal Code (see paragraph 116 of the Grand Chambers’ judgment).

[76]At paragraph 91 et seq the Grand Chamber said:- “91. The obligations deriving from the Article 2 do not end there. Where lives have been lost in circumstances potentially engaging the responsibility of the State, that provision entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see, mutalis, mutandis, Osman cited above, p. 3159, para 115, and Paul and Audrey Edwards, cited above, 54). “92. In this connection, 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 (see, for example, Vo v. France [GC], no. 53924/00, 90, ECHR 2004-VII; Calvelli and Ciglio, cited above, 51; and Mastromatteo, cited above, 90, 94 and 95). “93………Where it established that the negligence attributable to State officials or bodies on that account goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity (see, mutatis mutandis, Osman, cited above, pp. 3159-60, 116), the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative (see paragraphs 48, 49 and 50 above); this is amply evidenced by developments in the relevant European standards (see paragraph 61 above). “94. To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to the effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, 105-109, ECHR 2001-III, and Paul and Audrey Edwards, cited above, 69-73). In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue. “95. That said, the requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts; the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. “96. It should in no way be inferred from the foregoing that Article 2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence (see, mutatis mutandis, Perez v. France [GC], no. 47287/99, 70, ECHR 2004-I) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see, mutatis mutandis, Tanli v. Turkey, no. 26129/95, 111, ECHR 2001-III). On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see, mutatis mutandis, Hugh Jordan, cited above, 108 and 136-140). The Court’s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by

Article 2 of the Convention

, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined.”

[77]At paragraphs 116-118 the Grand Chamber concluded:- “116. ………Having regard to its task, the Court would simply observe that in the instant case the sole purpose of the criminal proceedings in issue was to establish whether the authorities could be held liable for “negligence in the performance of their duties” under Article 230 of the Criminal Code, which provision does not in any way relate to life-endangering acts or to the protection of the right to life within the meaning of Article 2. Indeed, it appears from the judgment of 4 April 1996 that the trial court did not see any reason to depart from the reasoning set out in the committal order issued by the Administrative Council and left in abeyance any question of the authorities’ possible responsibility for the death of the applicant’s nine relatives. The judgment of 4 April 1996 does, admittedly, contains passages referring to the deaths that occurred on 28 April 1993 as a factual element. However, that cannot be taken to mean that there was an acknowledgment of any responsibility for failing to protect the right to life. The operative provisions of the judgment are silent on this point and, furthermore, do not give any precise indication that the trial court had sufficient regard to the extremely serious consequences of the accident; the persons held responsible were ultimately sentenced to derisory fines, which were, moreover, suspended.117. Accordingly, it cannot be said that the manner in which the Turkish criminal-justice system operated in response to the tragedy secured the full accountability of State officials or authorities for their role in it and the effective implementation of provisions of domestic law guaranteeing respect for the right to life, in particular the deterrent function of the criminal law.

118. In short, it must be concluded in the instant case that there has been a violation of

Article 2 of the Convention

in its procedural aspect also, on account of the lack, in connection with a fatal accident provoked by the operation of a dangerous activity, of adequate protection “by law” safeguarding the right to life and deterring similar life-endangering conduct in future.”

[78]Mr Owen laid great stress on Oneryildiz. He submitted that, depending on the facts, the decision supported his proposition that the State’s investigative obligation under Article 2 encompasses a duty to hold an inquiry into sentencing policy in cases such as Joseph’s. I disagree. I do not consider that Oneryildiz provides support for Mr. Owen’s submission. The European Court and the Grand Chamber were concerned with the failure of Turkey to prosecute the authorities in connection specifically with the deaths of those that died in the accident. The authorities were only prosecuted for negligent omissions in the performance of their duties. What, the Grand Chamber held, Article 2 required was an appropriate response which was not forthcoming – see in particular paragraph 117. I agree with Mr. Garnham’s submission that this case falls properly within paragraph 64(b) and not paragraph 64(c) of the judgment of Wilson J in Plymouth.

[79]Mr. Owen referred me to Keenan v United Kingdom 33 EHRR 93. The applicant alleged that his son had died from suicide in prison due to a failure by the prison authorities to protect his life which constituted, inter alia, a breach of Article 2. As Lord Bingham said at paragraph 9 of Middleton the argument in Keenan re Article 2 was directed to the State’s performance of its substantive, not its procedural, obligation and the European Court noted the limited scope of an inquest which was relevant to the applicant’s complaint under Article 13 that national law afforded her no effective remedy. The European Court held there had been no violation of Article 2.

[80]Mr. Owen relied in particular on paragraph 116 where the European Court said:

“116. The lack of effective monitoring of Mark Keenan’s condition and the lack of informed psychiatric input into his assessment and treatment disclose significant defects in the medical care provided to a mentally ill person known to be a suicide risk. The belated imposition on him in those circumstances of a serious disciplinary punishment – seven days’ segregation in the punishment block and a additional twenty-eight days to his sentence imposed two weeks after the event and only nine days before his expected date of release – which may well have threatened his physical and moral resistance, is not compatible with the standard of treatment required in respect of a mentally ill person. It must be regarded as constituting inhuman and degrading treatment and punishment within the meaning of Article 3 of the convention. Accordingly, the Court finds a violation of this provision.”

Accordingly, the Court finds a violation of this provision.”

[81]With respect to Mr. Owen I do not accept that that paragraph assists him. The factual matrix (giving rise to an argument under Article 3 rather than Article 2) was quite different. Keenan concerned the lack of effective monitoring in prison i.e. operational matters. It did not involve issues of sentencing policy prior to the reception into custody. The belated imposition of a punishment within the prison system leading to suicide is of a quite different category from the perceived wrongs of sentencing children to custody at all and/or of incarcerating vulnerable children in YOI’s such as Joseph.

[82]Mr. Owen also referred me to Regina (P) v Secretary of State for the Home Department and another, Regina (Q & another) v Secretary of State for the Home Department and another

[2001] 1 WLR 2002

. P & Q were women prisoners serving long sentences of imprisonment. Both had very young babies. The issue raised in the case concerned the prison services’ mother and baby units and the legitimacy of its policy in separating mother and babies by the time the child was 18 months old. I was referred to paragraphs 79 and 87 of the Court of Appeal’s judgment delivered by Lord Phillips of Worth Matravers M.R. But it is apparent that that case was concerned with P & Q’s Article 8 rights. In my judgement those paragraphs do not assist Mr. Owen. They may indeed go to the issue of how a sentencing judge should approach a case where a sentence of imprisonment may threaten the separation of mother and baby. But I do not see that it helps to resolve the central issue in the instant case.

[83]Mr. Garnham relied on two European cases which, in my judgement, do give me some considerable assistance, namely Jordan v United Kingdom

(2001) 37 EHRR 52

and Taylor v United Kingdom (1994) 18 EHRR CD 215. Taylor was a decision of the European Commission declaring the complaint inadmissible. At that time, but I understand not now, judges of the European Court itself would take part in the Commission proceedings re admissibility. Taylor involved the killing by Beverley Allitt, a state enrolled nurse in Grantham Hospital, of child patients. An inquiry was set up under Sir Cecil Clothier Q.C. His report criticised many matters but, of relevance in the instant case, inadequate staffing levels on the ward. It commented only indirectly on the allegations of failure properly to fund and staff Grantham Hospital. The applicants complained that they had been the victims of a violation of Article 2. It was said that the inquiry had not examined the responsibility of the authorities in the NHS for inadequate systems, staff shortages and weak leadership. The Commission in its decision concluded as follows:

“The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four. The procedural element contained in Article 2 (Art. 2) of the Convention however imposes the minimum requirement that where a State or its agents potentially bear responsibility for the loss of life the events in question should be subject to an effective investigation or scrutiny which enable the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commission’s opinion, matters for public and political debate which fall outside the scope of Article 2 (Art. 2) and the other provisions of the Convention. The Commission concludes that the present application does not disclose any failure by the State to comply with the positive obligations, including any procedural requirements, imposed by Article 2 (Art. 2) of the Convention. It follows that it must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention….”

[84]Jordan was a decision of the European Court. The applicant alleged that his son had been unjustifiably shot and killed by a police officer in Northern Ireland. An inquest was held. In Northern Ireland any person suspected of causing death may not be compelled to give evidence. Thus police officers do not attend such inquests. The implicated police officer in Jordan did not attend the inquest (see paragraph 127 of the judgment.)

[85]In my judgment what the Court said at paragraph 128 is particularly pertinent:- “128. It is also alleged that the inquest in this case is restricted in the scope of its examination. According to the case-law of the national courts, the procedure is a fact finding exercise and not a method of apportioning guilt. The Coroner is required to confine his investigation to the matters directly causative of the death and not to extend his inquiry into the broader circumstances. This was the standard applicable in the McCann inquest also and did not prevent examination of those aspects of the planning and conduct of the operation relevant to the killings of the three IRA suspects. The Court is not persuaded therefore that the approach taken by the domestic courts necessarily contradicts the requirements of Article 2. The domestic courts accept than an essential purpose of the inquest is to allay rumours and suspicions of how a death came about. The Court agrees that a detailed investigation into policy issues or alleged conspiracies may not be justifiable or necessary. Whether an inquest fails to address necessary factual issues will depend on the particular circumstances of the case. It has not been shown in the present application that the scope of the inquest as conducted so far has prevented any particular matters relevant to the death being examined.”

[86]The “policy issues” referred to therein was whether or not there was a policy within the security forces in Northern Ireland, including the Royal Ulster Constabulary, of shoot to kill.

[87]In my judgment the Inquest conducted by the Coroner into Joseph’s case was, as Mr Garnham submitted, a model of what was required to discharge the State’s investigative obligation under Article 2. If such needs any confirmation, it is confirmed by the absence of any challenge to it by way of judicial review. The Coroner was right to exclude from the scope of the Inquest the sentencing policy or regime in relation to juveniles and in particular in relation to cases such as Joseph’s. Indeed Mr Owen did not suggest the contrary. Furthermore, it is abundantly plain that the whole focus of the Coroner and the various parties was to make certain it did comply with the investigative obligation under Article 2. The contrast with Amin where there was no inquest and with Middleton where there was only a truncated inquest, could not be starker. Further, I am satisfied that the only issue relating to the juvenile estate which was outside the scope of the Inquest was the financial resources available.

[88]I accept Mr Garnham’s submission that the domestic authorities of Amin, Middleton and the European authorities of Jordan and Taylor support the proposition that inquests are the normal method, absent some quite exceptional set of circumstances, of the State discharging its investigative obligation under Article 2 where there has been a death of a prisoner, whether adult or juvenile, in custody. Furthermore, where an inquest does not, correctly in my judgment, bring within its scope sentencing policy and/or broad issues of government funding or resources, both the domestic and European authorities are to the effect that it is not incumbent upon the State under Article 2 to set up a public inquiry to cover these issues. And that is so whether or not a systemic problem is said to exist in any particular case. Whether the setting up of a public inquiry in the instant case may be said to be desirable is a matter of debate; but it is, in my judgment, not unlawful for the Secretary of State to decline to do so. In my judgment the law as expounded by the House of Lords and the European Court does not support Mr. Owen’s central submission; indeed it is to the contrary.

[89]I have not forgotten, indeed I am very conscious of, the very great concern of many persons – not only those persons and bodies I have mentioned in paragraph 44 above but also sections of the wider public in the United Kingdom – who are deeply concerned like the Claimant with the provision and imposition of custodial sentences for offenders under the age of 18 years and/or the incarceration in YOIs of vulnerable children like Joseph. It is, I well understand, a matter of huge concern. These concerns conceivably might have gone to issues of irrationality or perversity of the Secretary of State’s decision not to order a public inquiry, which, as I have said, Mr Owen, in my judgment correctly, expressly disavowed. With respect, I do not believe they can impact on a decision whether or not the Secretary of State’s decision was, or was not, lawful. They are, as the European Commission said in Taylor, matters for public and political debate which fall outside the scope of Article 2. In any event I agree with Mr Garnham that the “vice” (to use his description) in the tragedy that befell Joseph was his allocation to a YOI and not a LASCH, which was gone into in great detail in the Inquest. Mr Owen, in his reply, sought to persuade me that the Claimant was not seeking an inquiry into juvenile sentencing, only a focus on Joseph’s case i.e. whether a two year detention and training order was compatible with Article 2. But he acknowledged that a public inquiry would not stop at that stage and would most likely embrace the issue whether a person under the age of 18 should ever be incarcerated (or whether only in exceptional circumstances). For the debate about incarcerating vulnerable young persons cannot be divorced from the issue as to whether young persons (vulnerable or not) should ever be incarcerated, and if so, in what circumstances.

[90]Mr Owen laid great stress on paragraph 31 of Lord Bingham’s speech in Amin, in particular his conclusion that part of the purpose of the public investigation into deaths in custody was that:- “dangerous practices and procedures are rectified.” I do not think this can assist Mr Owen. The role of an inquest, which is the normal method of the State discharging its investigative role, is to identify defects not to rectify them. That is the responsibility of the Government and the relevant agencies. I do not consider that Lord Bingham was saying that it was the function of an inquest to lay down the remedies or the mechanics of putting the defects right.

[91]I am therefore driven to the conclusion that Mr Owen’s central submission fails. I consider Mr Garnham is correct when he submitted that in cases of death in custody although one should be careful never to say “never”, the overall guiding principle is that enunciated by Lord Bingham at paragraph 20 of his speech in Middleton. An inquest is the normal method by which the State discharges its Article 2 investigative obligation save where a criminal prosecution intervenes or a public inquiry is ordered in a major accident. In the instant case there was a full and thorough Inquest conducted with Middleton well in mind. The State, in my judgment, has discharged its Article 2 obligation in the instant case. Sentencing policy and funding for the juvenile estate were outwith its investigative obligations under Article 2.

[92]Finally, I should mention the submission by Mr Garnham at his Core Submission (iii) (c). It is that in judging whether the State’s investigative obligation under Article 2 has been discharged in the light of the Coroner ruling against including sentencing policy within the scope of the Inquest, it is appropriate to take into account in Joseph’s case that he and/or his next of kin were entitled to seek leave to appeal against his sentence to the Court of Appeal, Criminal Division (“CACD”) but did not do so. Furthermore, he submitted that the proper place to make submissions as to Joseph’s Article 2 and 3 rights (given his history and vulnerability) was before the Crown Court and/or the CACD. He relied upon paragraph 79 in the judgment of the Court of Appeal in P and Q. It was open to Joseph and his lawyers to seek bail pending an appeal, no doubt on condition that he lived in the children’s home where prior to 15 March 2002 he had been living.

[93]I reject those submissions. I agree with Mr Owen that if the facts give rise to concern about sentencing policy and if otherwise the State’s investigative obligations under Article 2 have not been discharged by the Inquest and/or by the Inquest in combination with the enquiries by the SGC, the YJB, and other persons or bodies, then the State’s obligations cannot be deemed to be discharged by the existence of an entitlement i)to raise Article 2 and/or 3 points to the sentencing court and/or (ii) to seek leave to appeal (and if granted, to appeal) to the CACD. It is not permissible in my judgment to seek to defeat this claim for judicial review of the Secretary of State’s decision of September 2004 not to hold a public inquiry upon the ground that in 2002 Joseph and/or his next of kin could, but did not, bring these matters under Article 2 and/or 3 to the attention either of the sentencing court and/or the CACD.

[94]Mr Garnham advanced further arguments in the event that I did not accept his core submissions nos. (i) to (iv) inclusive. I take core submission (vi) first.

[95]In considering that submission I should first give an account of the three inquiries referred to.

[96]Sentencing Guidelines Council (“SGC”).

[97]By s. 170(8), where the SGC has prepared or revised any sentencing guidelines it must publish them as draft guidelines and consult about them with, inter alios:- “(iii) such other persons to the Council considers appropriate.”

[98]As I have said, in August 2004 Joseph’s case was referred to the SGC by the Defendant. In July 2005 the Claimant’s solicitors wrote asking if the SGC had any proposals to “review the sentencing of juveniles generally” and if so, the timescale, and what provision was to be made for the participation by the Claimant. On 3 August 2005 the SGC responded as follows:

“Joseph Scholes “Thank you for your letter of the 27th July…. “The Sentencing Guidelines Council was asked to consider issues arising in the sentencing of Joseph Scholes when preparing a draft guideline in relation to sentencing for the offence of robbery. This draft guideline is still under consideration and we expect to publish it later in the autumn. “The Council’s work programme also provides for consideration to be given to the sentencing of youths as a general issue and it is anticipated that the issues arising from the sentencing of vulnerable young people will be considered also under that topic. The Sentencing Advisory Panel will be starting consideration of that issue later this year and we expect that a consultation paper will be published in the spring of 2006. “Anyone may respond to any of the Panel’s consultation papers which are published on our website as well as being sent directly to a range of organisations and individuals. I have noted your client’s interest and we will endeavour to ensure that you are sent a copy of the consultation paper.”

[99]In late November 2005 Draft Guidelines were published. The starting point, it is proposed, for a first time offender aged 17 years old who pleads not guilty to a street robbery where there was a threat or use of minimal force and removal of property should be a Community Order. The sentencing range, it is proposed, should be a Community Order up to a twelve month detention and training order. For younger offenders it is proposed that sentences should consider whether a lower starting point is justified in recognition of the offender’s age or immaturity. Where there is a plea of guilty a reduction to the sentence taking account of all factors, will need to be made.

[100]In Joseph’s case he was 15 at the time of the offences and 16 at sentence. He could not be described as mature. Thus, had he come before a court with these Draft Guidelines in force he might reasonably have expected not to have been made the subject of a detention and training order.

[101]So far as the enquiry by Mr. Lambert is concerned, I need not consider it. Mr. Owen expressly disavowed earlier submissions on the part of the Claimant that the Inquest had not discharged the Article 2 obligation in so far as operational matters were concerned. Mr. Lambert was asked to inquire further into operational matters.

[102]So far as the YJB inquiry is concerned Mr. Richard Hughes, an administrator employed by the Home Office, set out in his statement of 28 September 2005, at paragraphs 16 and 17 the extent of the inquiry. In November 2004 Mr. Goggins wrote to the Claimant’s Solicitors inviting the Claimant’s proposals for the future of the “secure juvenile estate.” Mr. Hughes detailed the very wide body of consultees. The YJB received 67 responses but nothing from the Claimant or her solicitors.

[103]In November 2005 the YJB published its “Strategy for the Secure Estate for Children and Young People – Plans for 2005/06 to 2007/08.”

[104]Mr. Owen criticised these methods of inquiry. They are not sufficient either individually or together or in conjunction with the Inquest to satisfy the State’s Article 2 investigative obligation. They are separate investigations. The investigations of the SGC and YJB cannot consider the relationship between sentencing policy and the provision of LASCHs. If “dangerous practices” are to be rectified the relationship between the provisions of LASCHs and sentencing policy need to be considered by one single inquiry.

[105]Furthermore, he submitted, there was insufficient public scrutiny of the form of the enquiries of the SGC and YJB and/or the results. Joseph’s family would not be able to play an adequate role and they would be treated no differently from other members of the public.

[106]Mr. Owen relied on a decision of Munby J. in the Queen on the application of D (a patient by the Official Solicitor his litigation friend) v The Secretary of State for the Home Department

[2005] EWHC 728 (Admin)

. D was not quite 22 years old when remanded in custody. He was a self-harm/suicide risk. Whilst on remand he tried to self-harm and then hanged himself but fortunately was discovered in time and cut down. There was an investigation by Ms. Draper, a Senior Investigating Office in the Prison Service, whose report that Claimant accepted was a conscientious and thorough report. The Secretary of State accepted (see paragraph 19 of the judgment) that the case triggered the State’s investigative duties under Article 2 but that it was fact specific. The Secretary of State accepted that the Draper Report did not itself satisfy the Article 2 obligation because neither D nor his representatives played any part in it. The Secretary of State proposed that the Prisons and Probation Ombudsman should carry out an investigation into D’s suicide attempts. D maintained that that did not meet the State’s Article 2 obligations.

[107]The judge held (paragraph 29) that the Draper investigation and report were not independent, neither D nor his family were involved in any shape or form and the report was never published. He further held (paragraphs 30, 33 and 34) that a great deal of highly relevant documentation had either been destroyed or inexplicably gone missing in circumstances involving a lack of compliance with the Prison Service’s own guidelines.

[108]The Secretary of State submitted that probably civil proceedings contemplated by D could be taken into account in determining whether or not the investigative obligation is satisfied. Munby J. concluded (paragraph 39), having reviewed the authorities, that the fact D might start proceedings was irrelevant.

[109]At paragraph 40 Munby J. concluded that the Ombudsman’s inquiry would not meet the State’s investigative obligations for the first four reasons listed at paragraph 41 i.e. it would not be held in public, there would be no power to compel witnesses, the role of D’s representatives would be limited, and only statements and taped interviews would be made available, (see, further, paragraphs 48 to 50 inclusive).

[110]Mr. Garnham submitted that if the Inquest was not a complete meeting of the State’s investigative obligation under Article 2, then if it is taken with all the other enquiries listed at paragraph 60 of his skeleton which include the investigations by the SGC and the YJB referred to above, Article 2 is satisfied. He submitted that the authorities do not prescribe that an Article 2 enquiry shall take any particular form. As long as they meet the minimum standards it is left to the State to decide the method – see paragraph 32 of the speech of Lord Bingham and paragraph 63 of that of Lord Hope of Craighead in Amin. The two important minimum requirements are that there should be sufficient element of public scrutiny of the inquiry and/or its results and the next of kin must be involved to the extent necessary to safeguard his or her legitimate interests. There are other minimum requirements namely their investigation must be independent, effective, and reasonably prompt. It is not necessary that there should be one compendious enquiry but if there is more than one the overall test must be satisfied.

[111]The principal, if not almost exclusive, focus of both Mr. Owen and Mr. Garnham in their oral submissions was on the SGC and the YJB. In my judgement if both, taken in conjunction with the Inquest, do not meet the Article 2 obligation, then the other “enquiries” set out in paragraph 60 of Mr. Garnham’s skeleton argument will not avail the Defendant’s case.

[112]In my judgement it must be a highly significant factor that Parliament has set up two specialist bodies, the Sentencing Advisory Panel and the SGC, to look at sentencing policy and its guidelines from time to time. Both are completely independent. Although their internal deliberations are, as I understand it, private, nevertheless the results are published and attract close examination, and either approval or fierce criticism. The Draft Guidelines are published specifically to stimulate public debate and to attract constructive comments and criticism. The next of kin are consulted and can express their views. I am sure that, if the Claimant chose to take part, which she has not done so far, the Panel and/or the SGC would listen with the very greatest care to her views. She will thus be able to participate in the debate on sentencing policy for young (and vulnerable) offenders. When the final Guidelines are published I have no doubt that in respect of the sentencing of young offenders such as Joseph they will be the subject of intense public scrutiny and debate.

[113]Mr. Garnham properly conceded that the YJB is not independent, in contradistinction to the SGC and Mr. Lambert, because it is part of the Home Office. That in my judgement is not fatal to his submissions. Its report, like the Draft and the final Guidelines of the SGC, are open to public scrutiny and debate. Mr. Hughes asked the YJB (see paragraph 11 of his statement) specifically to include Joseph’s case in its considerations. The YJB, whose employees gave evidence to the Coroner and jury, are aware of the need to take account of the case, the jury’s verdict and answers to the questions, and the Coroner’s observations to the Secretary of State. The Claimant was free, but declined, to give to the YJB such views and comments as she considered appropriate. Finally, it is important to note that in looking at the independence of the overall investigation comprising the Inquest, SGC and YJB to judge whether overall the investigation can be said to be sufficiently independent so as to satisfy the minimum requirements of Article 2, Lord Slynn of Hadley said at paragraph 47 of Amin:- “Nor is it necessarily wrong to show that, if not in one compendious inquiry, through different inquiries, the overall test has been satisfied. But here in my opinion, even looking at all the inquiries, the test overall has not been satisfied either as to the degree of public scrutiny or as to the participation of the next of kin and the relatives.”

[114]In my judgment if, contrary to my finding, the Inquest did not fully discharge the State’s investigative obligation under Article 2, the combination of the Inquest, the SGC and YJB do satisfy the State’s investigative obligation in this case. I do not consider that D can assist Mr Owen. In his skeleton argument he submitted that D emphasised the importance of family participation and public scrutiny. In his oral submissions Mr. Owen appeared to go further by submitting that if a public inquiry was ordered in a case of attempted suicide in custody then Article 2 must require the State to set up a public inquiry in a case of suicide in custody. However in my judgment D is a case of the application of the principles in Amin/Middleton to a case of attempted suicide in custody where there had been no Article 2 compliant inquiry and would not be, for the reasons given by Munby J. In the instant case there has been an Article 2 compliant inquiry either through the Inquest or through a combination of the Inquest and of the inquiries of the SGC and YJB.

[115]Mr Garnham submitted (Core Submission (v)) that the appropriate course for the Claimant to have followed was to have sought judicial review of the interim ruling of the Coroner on 28 February 2004, in particular as to his ruling that sentencing policy was outside the scope of the Inquest. Mr Garnham said that Ms Monaghan, counsel for the Claimant at the Inquest, had submitted to the Coroner prior to his ruling that:-(i) since the Inquest was the method by which the State had to fulfil its Article 2 investigative obligation, it is for the Coroner to construe that Coroners Rules to comply with s. 6(2)(b) of the Human Rights Act, 1998 i.e. so that they are compatible with the Convention.

(ii) accordingly the Coroner should permit a scrutiny of “relevant systemic failure and neglect” (see paragraph 23 of her written submissions at 3/838) and,

(iii) the Inquest would need to deal with the detention of children i.e. sentencing policy for children and vulnerable children and the mechanism for liaison between the agencies when proposed changes in sentencing policy leads to an increase in the confinement of children (see paragraph 26 of the submissions at 3/839). The Secretary of State’s submissions were that it was not appropriate for the Inquest to review sentencing policy or practice for (vulnerable) children (see paragraphs 14 to 17 inclusive of the written submissions of Ms Eleanor Grey of counsel).

[116]Thus Mr Garnham submitted that the Coroner’s ruling was susceptible to, and that it was at that point (before the Inquest heard evidence) that the Claimant should have sought, judicial review.

[117]Mr Owen submitted that Ms Monaghan’s submissions to the Coroner were made without prejudice to the primary contention (see 3/832) that the Inquest was an unsuitable vehicle for the State to comply with its obligation under Article 2. Furthermore, the Secretary of State had not ruled out the possibility of a public inquiry and no decision could be made until after the Inquest - see the Claimant’s statement at paragraph 10 about the meeting with Mr Goggins on 15 December 2003.

[118]Mr Owen further submitted that if indeed the Inquest was not the appropriate method for investigating sentencing policy then the Coroner reached the correct decision. There was no point in challenging a correct decision. If however the Inquest did not discharge the State’s investigative duty under Article 2, then there was a continuing breach after the Inquest and indeed a further breach by the refusal of the Secretary of State to set up a public inquiry. Thus it could not be right for the court now to refuse relief to the Claimant on the ground that a challenge could have been, but was not, made to the Coroner’s ruling.

[119]I reject Mr Garnham’s submissions on this point. In my judgment the overwhelming probability is that any challenge mounted against the Coroner’s ruling would have failed, either at the permission stage or at a final hearing. A coroner’s inquest with a jury is, with respect, an inappropriate method of investigating sentencing policy which is a matter for public and political debate in Parliament, the media, the SGC and the Panel, and the wider public. There was nothing in the least unlawful or irrational about the Coroner’s ruling nor could it possibly be said to be perverse. Any public law challenge at that stage would have manifestly failed in the light of Amin and Middleton. Furthermore, in the circumstances of this case I see the wisdom of the Claimant biding her time until after the Inquest and then asking the Secretary of State to make a decision which he said he would do. He did make a decision and it is that decision which is being challenged. It would hardly be sensible to make a (hopeless) application for judicial review after the interim ruling of the Coroner in the knowledge that the Secretary of State would make a decision as to a public inquiry after the conclusion of the Inquest which might meet the Claimant’s wishes and requirements. The fact that the decision was not to the liking of the Claimant is, in this respect, irrelevant.

[120]For the reasons I have sought to give the application for judicial review will be dismissed.