JL, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2558 (Admin)

Case No CO/7500/2005[2006] EWHC 2558 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 01 st November 2006
Before
THE HON MR JUSTICE LANGSTAFF
Between
The Queen on the Application of JLClaimantSecretary of State for the Home DepartmentDefendant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Kristina Stern (Instructed by Bindman’s & Co) for ClaimantMr James Eadie (Instructed by Treasury Solicitors) for Defendant
Judgment
[1]At Feltham Young Offenders’ Institution on the 19th of August 2002, Prison Officer Chalcraft discovered the claimant hanging from the bars of his cell window by a sheet which formed a noose around his neck. A code 1 alert was promptly called (timed at 14.55) through the agency of a prisoner, Thomas, who had accompanied Chalcraft to the cell. It took 3 minutes before a pulse was detected. No breathing was noted. The claimant’s pulse then stopped. He required resuscitation for a second time. It is not disputed for the purposes of the application before me that the effect of the lack of oxygen which the claimant suffered has left him with serious, permanent brain injury. He is likely to require permanent care and supervision.[2]In short, if this was (as it appears to be) an attempt at suicide it was very nearly successful.[3]The London Area Manager of the Prison Service promptly directed Mr Sheikh, a retired governor at the Prison Service to investigate what had happened. He submitted his report to the Area Manager on the 16th October 2002 – but this did not become apparent to the claimant or his immediate relatives, acting for him, until it was disclosed in correspondence from the Treasury Solicitor on the 26th January 2005. It follows that the scope of the investigation, the questions raised in it, and by it, and the answers it purported to give were private to the defendant and, I infer, would have remained so but for receipt by the Treasury Solicitor of a letter before action from the claimant’s solicitor.[4]The claimant asserts that the state has a duty to carry out an effective investigation of the circumstances in which the claimant came to attempt suicide. He asserts that such an investigation must, as a minimum, satisfy those requirements identified by the European Court of Human Rights and, derivatively, in our own domestic authorities as representing the minimum standards with which such an investigation must comply.[5]The defendant, for his part, does not accept that “the investigative obligation implicit in Article 2 of the ECHR is triggered so as to require a public enquiry.” However, he accepts that if the investigative obligation is triggered, then at least the minimum standards referred to by the claimant must be satisfied.[6]The issue for my determination is thus whether in the circumstances of the present case the defendant was, or should be, obliged, to conduct an enquiry satisfying the minimum standards required by Article 2.[7]Both Ms Stern for the claimant, and Mr Eadie, for the defendant, say that this particular issue has not been addressed in earlier cases. Those cases have dealt with the content of an investigation, it being accepted that Article 2 required such an investigation to be held: they asked me to address whether the threshold requiring any “Article 2 investigation” has been crossed.[8]To explain the way in which this question arises, and how it is to be answered in the present case, it will be necessary to set out the relevant law, then the relevant facts, before addressing the appropriate answer. However, I must first observe that the importance of this case to the parties is a practical one. What the claimant seeks, and the defendant refuses is an enquiry by a person (or body) institutionally and practically independent from those implicated in the circumstances which led to the life-threatening injury, who (or which) takes steps to secure all relevant evidence in relation to them, open to public scrutiny, and involving the next of kin. So far as the investigation thus far conducted is concerned, it plainly did not have either of the latter two qualities, its independence is not clearly established, and the claimant makes points of detail which indicate the enquiry did not secure (and certainly did not reveal) some relevant evidence in relation to the near death. However, I am not asked to determine in these proceedings precisely what Article 2 (if it applies) requires to be done in the present circumstances by way of enquiry. I am asked simply to decide whether it does necessitate an enquiry, it being assumed by the parties that any such enquiry must necessarily have the characteristics which I have identified, amongst others.[9]I have some concern that the issue that I am asked to determine may be artificial: Article 2 must necessarily be engaged in every situation to which it might conceivably apply, since it is an absolute obligation (within its terms) resting upon the state. To talk about it being “engaged”, or aspects of it being “triggered” may be no more, therefore, than to ask what, in given circumstances, satisfaction of the Article requires. I wonder, therefore, whether a clear line can be drawn between the “threshold” type of question which I am asked to determine, and the “content” issues which the early cases have considered at the highest level. However, both parties wish me to approach the issue in such terms, and, with the reservation I have expressed, I shall do so. However, those wishing to rely upon my decision subsequently should note the reservation.[10]Article 2 of the European Convention on Human Rights provides by Article 2.1:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law. ”
It is unlawful for a public authority to act in a way which is incompatible with a Convention right (Human Rights Act 1998, section 6). “Act” includes a failure to act (section 6(6))[11]In R (ex parte Amin) v Secretary of State for the Home Department [2003] UKHL 51 [2004] 1AC 653, Lord Bingham of Cornhill cited the judgment of the European Court in Osman v United Kingdom (1998) 29 EHRR 245 (at paragraph 115) to identify the primary purposes of Article 2 as encompassing substantive obligations(a) to refrain from the intentional and unlawful taking of life(b) to take appropriate steps to safeguard the lives of those within its jurisdiction, the latter implying “…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”, and a procedural aspect,(c) expressed in the following terms in Osman, adopting the report of the Commission in McCann v United Kingdom (1995) 21 EHRR 97:
“Having regard therefore to the necessity of ensuring effective protection of the rights guaranteed under the Convention, which takes on added importance in the context to 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 the 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 deprivation of life could by itself raise an issue under Article 2 of the Convention.”
[12]As to this, Lord Bingham summarised that which recent European cases had established in ten propositions (see paragraph 20). Those propositions include the following, particularly relevant to the present case:
“(2) where agents of the State have used lethal force against an individual the facts relating to the killing and its motivation are likely to be largely, if not wholly, within the knowledge of the State, and it is essential both for the relatives and for public confidence in the administration of justice and in the State’s adherence to the principles of the rule of law that a killing by the State be subject to some form of open and objective oversight… (3) As it was put in Salman (Salman v Turkey (2000) 34 EHRR 425), paragraph 99: “persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused…The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent were that individual dies.”
Where the facts are largely or wholly within the knowledge of the State Authorities there is an onus on the State to provide a satisfactory and convincing explanation of how the death orinjury occurred: Salman paragraph 100; Jordan (Jordan v United Kingdom (2001) 37 EHRR 52), paragraph 103.” (emphasis added) “(4) The obligation to ensure 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 an agent of the State: Salman, paragraph 105.”[13]As a fifth principle he recognised (summarising) that the form of investigation effective to ensure accountability for deaths occurring under the responsibility of the State might vary in different circumstances but:
“.. 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 take responsibility for the conduct of any investigative procedures.”
[14]Further, (6), the investigation must be effective in that it must be:
“… capable of leading to a determination of whether the force used.. was or was not justified in the circumstances… and to the identification and punishment of those responsible… this is not an obligation of result, but of means.”
[15]In paragraph 21, Lord Bingham noted that the case of Edwards v United Kingdom (2002) 35 EHRR 487 importantly demonstrated that the principles which applied where agents of the State had used lethal force against an individual applies to 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 a prisoner in custody. He observed that:
“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. ”
[16]His view to this effect was echoed by that of Lord Steyn (paragraph 50):
“…the investigation of cases of negligence resulting in the death of prisoners may often be more complex” (than cases where acts of State agents cause death) “and may require more elaborate investigation. Systemic failures also effect more prisoners. The European Court of Human Rights has interpreted Article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases. And in the decision in Edwards the European Court of Human Rights applied the same minimum standards to a case of omissions as it had previously applied in Jordan v The United Kingdom37 EHRR 52 to acts by State agents.”
[17]Lord Hope of Craighead, at paragraph 62 also agreed that an allegation of negligence leading to death in custody did not bear a different quality from a case where it was said the prisoners death resulted from the laying of lethal hands on him by the State:
“In my opinion failures by the Prison Service which lead to a prisoner’s death at the hands of another prisoner are no less demanding of investigation, and of “the widest exposure possible”, than lethal acts which State agents have deliberately perpetrated. Indeed there is a strong case for saying that even more rigorous investigation is needed if those who are responsible for such failures are to be identified and made accountable and the right to life is to be protected by subjecting the system itself to effective public scrutiny…”
[18]Lord Slynn of Hadley said (paragraph 41): “The duty to investigate is partly one owed to the next of kin of the deceased as represented the deceased: it is partly to others who may in similar circumstances be vulnerable and whose lives may need to be protected. The significance of this duty to those detained in prison, not least where prisons are crowded and prisoners often dangerous is obvious. It does not seem to me to be possible to say there is a clear dividing line between those cases where an agent of the State kills and those cases were an agent of the State or the system is such that a killing may take place. The result of “an incident waiting to happen” may just as much as an actual killing require detailed and profound investigation, though in some cases the procedure to be adopted may be justifiably different.[19]I take it from this that Article 2, as applied in the domestic jurisdiction, requires an effective investigation not just when State agents are directly responsible for a death, but also where the system is such that it permits, or fails to prevent, a death. The duty extends to life threatening injury, as it does to death, for the difference between the two may be no more than an accident of circumstances, in particular that of timing. It was put even more broadly by Lord Bingham in paragraphs 30 and 31 of his speech in Amin:
“A profound respect for the sanctity of human life underpins the Common Law as it underpins the jurisprudence under Articles 1 and 2 of the Convention. This means that a State must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not stop there. The State owes a particular duty to those involuntarily in its custody. As Anand J. succinctly put it in Nilabati Behera v State of Orissa (1993) 2 SCC 746, 767:- “There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life.”
Such persons must be protected against violence or abuse at the hands of State agents. They must be protected against self-harm: Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm. 31. The State’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life threatening injuries have occurred: Menson v United Kingdom [2003] ECHR 47916/99. 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…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 the relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”[20]Although those remarks are directed principally toward the purposes fulfilled by a Coroner’s inquest, they apply, too, in my judgment to an investigation conducted in compliance with Article 2, whether or not that investigation is into a death, or “near miss” caused by State agents, or by others, or by self harm.[21]As Munby J. pointed out in R(LD) v Secretary of State for the Home Department [2005] EWHC 728 (Admin), paragraph 9:
“A corresponding obligation to carry out “an effective investigation” arises under Article 3 where an individual raises an arguable claim that he has been “seriously ill-treated” by the police or other agents of the State in breach of Article 3: Assenov and Others v Bulgaria (1998) 28 EHRR 652 at paragraph 102.”
[22]As part of his submissions, Mr Eadie draws attention to the width of situations in which an Article 2 investigative duty might arise: cases such as McCann, and Jordan, in which there was a shooting by agents of the State; those in which the killing was by another in prison (Edwards, Amin); cases of unexplained disaster (such as that of loss of life caused by explosion at a rubbish tip controlled by a local authority): Oneryildiz v Turkey [2004] ECHR 48939/99; suicide in prison: Middleton; failure by the authorities to protect those whom they know or ought to know require protection to minimize an immediate risk to life: Osman, Van Colle v Chief Constable of the Hertfordshire Police [2006] EWHC 360 (Cox J.); those cases which concern the failure of the State to provide protection, or to remedy omissions endangering life, in the context of medical treatment or child health care: R (Goodson) v HM Coroner for Bedfordshire and Luton [2004] EWHC 2931 (Admin) (Richards J.): Takoushis v HM Coroner for Inner North London [2005] EWCA Civ 1440: Powell v United Kingdom (application number 45305/99): Plymouth City Council v HM Coroner for Devon [2005] EWHC 1014 (Admin). Part of Mr Eadie's submissions was directed to identifying a unifying principle across this range of circumstances in which the State has an obligation to carry out an effective investigation. However, in my view, this approach is of little assistance to me: in R (D) v The Secretary of State for the Home Department and Another[2006] EWCA Civ 143, the Master of the Rolls (Sir Anthony Clarke) recognising that the cases both here and in Strasbourg have principally concerned either deaths in custody or death as a result of medical negligence in hospital went on to observe:
“The authorities have drawn an important distinction between the two classes of case: See e.g. R (Takoushis) v HM Coroner for Inner North London[2005] EWCA Civ 1440 and Oneryildiz v Turkey …at paragraphs 91 to 96…”
[23]Thus, the Court was able to say in Takoushis at paragraph 105 that, so far as deaths in an NHS hospital were concerned, although the state must have a system that provides for the practical and effective investigation of the facts, and for the determination of civil liability, “..unlike in the cases of death in custody the system does not have to provide for an investigation initiated by the state, but may include such an investigation..” (emphasis added). I note that although Mr Eadie (recognising that the courts had distinguished between at least these two classes of case) sought to say that the distinction was as to the content of any duty once the threshold requirement for that duty had been passed, and not as to the threshold itself, the language used here suggests the contrary.[24]Consistently with earlier authority, and usefully in the context of the present case, the Master of the Rolls added (paragraph 11):
“The judge held (at paragraph 8 of his judgment) that..” (an obligation upon the State to investigate) “..may arise under art 2 when the victim does not die but has sustained 'life threatening injuries' (see Amin's case at paragraph 31, referring to Menson v UK [2003] ECHR 47916/99). Indeed, the obligation arises even if the case is one of self-harm (see Amin's case at paragraph 30, referring to Reeves v Comr of Police of the Metropolis [2000] 1 AC 360). We agree.”

Submissions as to Law

[25]For the Secretary of State, Mr Eadie submitted that the Convention requires a threshold test to be satisfied before the investigative obligation is triggered. It needs to be such as to avoid subjecting the State to unduly onerous and expensive duties such as may be involved in holding a “super enquiry” augmenting that of the normal Coroner’s inquest (as was decided appropriate in Middleton), in supplementing civil procedures (found (broadly speaking) adequate in many child care and clinical negligence cases) or imposing onerous and expensive requirements altering the character of what would otherwise be a private, in-house inquiry (such as was conducted in the present case). The appropriate trigger was not the simple fact of death or life-threatening injury sustained whilst in prison, but sufficient material to conclude, or at least reasonably to suspect, that the prison authorities either knew or ought to have known of the danger to life.[26]In responding on behalf of the (successful) claimant in the appeal to the House of Lords in Middleton, counsel of great experience had himself adopted the test of actual or constructive knowledge whether the prisoner poised a real and immediate risk of suicide and if so whether the prison authorities did all that reasonably could have been expected of them to prevent that risk as the test (see [2004] 2AC 185H and 189 C to D). This test derives from Osman v United Kingdom (see paragraph 116):
“...where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew, or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk…”
[27]Further support for the submission that some threshold test consistent with that indicated in Osman is appropriate is, Mr. Eadie submitted, implicit in Lord Bingham’s speech in Middleton, at paragraph 3:
“the European Court has also interpreted Article 2 as imposing on member States a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations” (for which see paragraph 2) “..has been, or may have been violated and it appears that agents of the State are, or maybe, in some way, implicated…”
[28]Mr. Eadie argued that the judgment of Wilson J. in Plymouth City Council v HM Coroner for Devon [2005] EWHC 1014 was to the same effect. At paragraph 66 the court held that:
“in the present case a subsisting investigative duty exists only if there has been at least an arguable breach by the State of its protective duty..”
[29]Richards J. in Goodson similarly held that it would only be in exceptional circumstances, where the circumstances gave rise to the possibility of a breach of the State’s positive obligation to protect life under Article 2, that the separate procedural obligation to investigate would arise (see paragraph 59 (v)).[30]Underpinning his submissions as to the appropriate test were Mr Eadie’s two principal arguments: that the function of the investigative obligation is to secure the accountability of those agents of the State who might be said to be at fault; and that no proper distinction was to be made as to the threshold test to be applied across the entire range of cases to which (as noted) he drew the attention of the court.[31]I reject both of these principal arguments.[32]Although the judgment of Wilson J. in Plymouth, on which for other purposes Mr Eadie placed reliance, identifies at paragraph 64(c) (when adopting a passage from the Court of Appeal’s judgment in R (Khan) v Secretary of State for Health [2004] 1 WLR 971) three functions of the investigative obligation, none of which is “accountability”, I accept that holding State agents accountable is a purpose of the investigative obligation. It is, however, not the only purpose. As Wilson J. indicated, and the speeches of Lords Bingham, Steyn, Hope and Slynn in Amin, cited above make clear, there are other functions of significant importance. So far as accountability is concerned, where a person is compelled by the coercive power of the State to be and remain in prison there is a duty to account for his physical integrity which rests not simply upon the civil or criminal law, nor just upon State agents, but upon the State itself. Where the complaint may be made that a person knew or ought to have known of a potential risk to life, it is easy to hold him or her accountable. Where, however, the system itself holds risks which are not apparent (and which may be revealed for the first time by a life threatening injury), no one person may be held accountable. However, the lessons of history must be learned. The State needs not simply to hold individuals accountable, but to learn of potential systemic problems. An analogy might be with the aviation industry: a crash is always investigated. But so is a “near miss”: not because any one person is at fault, but because lessons might be learned for the future. It is both necessary and important that such an investigation be conducted, because the airline carrier takes particular responsibility for the safety and wellbeing of its passengers. An airline is not directly subject to Article 2, as is the State, but the practical utility and importance of an investigation in circumstances where there is particular responsibility for given individuals is illustrative. The prison service necessarily takes a particular responsibility for those incarcerated within the prisons it manages. It is a public service. Both it, and the public, therefore have a particular interest in knowing that risks to the life of those imprisoned are eliminated as far as can reasonably be, just as the State has an interest in ensuring that public concern as to what might be happening within institutions solely within the control of the State is assuaged, and any unjustified fears allayed.[33]I reject, too, the suggestion that the same watershed test is applicable in determining whether the investigative obligation arises at all (leave aside what its content is) in all cases, as I have already discussed above. There is a clear need for a threshold where what is in issue is whether the State has sufficiently effective criminal or civil laws apt to protect life where that life is threatened not by an agent of the State, but by a third party or by the victim’s own hand. Plainly, where the victim is otherwise free within society, not every suicide or suicide attempt necessarily requires investigation. The distinction between such cases, and those such as the present is that in the latter the individual concerned is involuntarily in the care and under the direct control of the State.[34]The authorities upon which Mr Eadie relies do not compel any other result. He recognised that the argument in Middleton, and Lord Bingham’s remarks at paragraph 3 were obiter (though naturally highly persuasive). Those expressions of view in Middleton deal with the general scope of the obligation in a case in which the issue, though concerning a prisoner who had committed suicide, related to the content of the investigation. Neither Goodson nor Plymouth was a case involving prisoners. Moreover, properly understood the judgment in Plymouth does not support the view that the threshold for the investigative obligation to arise had not been crossed. The opening words of paragraph 66 (upon the latter part of which Mr Eadie relied) recognises that “on any view” the State was under a duty to set up an appropriate investigation into the death there considered. The issue was not whether there should be an investigation, but whether a subsisting investigative duty existed in circumstances in which there was already to be an inquest. Miss Stern’s point that the context was very different from that of the present case is in my view well taken.[35]The formulation of the test applied in the context of cases such as Osman cannot be extrapolated across the panoply of other cases to which Article 2 might conceivably apply. As Wilson J. pointed out in Plymouth (see paragraph 69) the Court of Appeal in R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249 commented that the Osman test was “well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself.” The action of authority in that case threatened to create conditions in which a risk to life was increased. The fact of imprisonment by authority carries an increased risk too (as the statistics quoted both in Middleton, and updated by Mr Justice Munby in R (D) v Secretary of State for the Home Department [2005] EWHC 728 (see paragraphs 5 and 6) indicate).[36]As Miss Stern pointed out, the European Court in Salman said in respect of a death in custody that “the mere fact that the authorities were informed of the death in custody” gave rise “ipso facto” to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death.” Although earlier passages (in particular paragraphs 99 and 100) address what might be termed the burden and standard of proof which a State has to satisfy where it appears that an individual may have been mistreated in custody, both paragraphs 104 and 105 from which these words come are dealing with more general considerations as to circumstances giving rise to the investigative obligation.[37]Paragraphs 69 and 74 of the Court’s decision in Edwards may be seen as supporting this. The latter paragraph begins: “The court finds, first of all, that a procedural obligation arose to investigate the circumstances of the death of Christopher Edwards. He was a prisoner under the care and responsibility of the authorities when he dies from the acts of another prisoner and in this situation it is irrelevant whether state agents were involved by acts or omissions in the events leading to his death…”.[38]Osman was not a case in which agents of the State took direct action with fatal consequences. The breach of Article 2 was not a breach of the negative obligation. What was asserted was a failure to take that positive action required by Article 2. In such a context, the need to recognise some threshold the crossing of which was necessary before Article 2 might be engaged is obvious, and was recognised by the Court. Such obligations may indeed be onerous and expensive to discharge. Deaths, or life-threatening injuries, sustained when the victim and the perpetrator were at the relevant time at liberty as citizens inevitably attracts a higher threshold than a situation in which the State has accepted responsibility for one or both of the victim or perpetrator, and where the factual circumstances in which the victim is placed at the time of the actions causing death or life-threatening injury are under the direct control of the State or agents of the State.[39]Both parties before me recognised the need for some threshold. That which Mr Eadie propounded – that the State knew or ought to have known of a real and immediate risk to life - seems to me for the reasons that I have expressed to place that threshold far too high. That which Miss Stern advanced for the claimant – the simple fact of a death or life-threatening event in custody – is more attractive. However, Mr Eadie’s charge that this test was too absolute in its nature has some force. To take one example, it would mean that if a prison vehicle in which a prisoner was being transported to court were to be involved in a road traffic accident as a consequence of which the prisoner suffered life-threatening injury, the Article 2 investigative obligation would automatically be triggered, requiring an investigation which however flexible its nature had at least the minimum characteristics that it be conducted by an independent person, with appropriate involvement of the next of kin, and probably in public.[40]I have concluded that:- i) To search for a single unifying threshold test appropriate to all cases is to search for an illusory holy grail; ii) Whether the investigative obligation is, or is not triggered must depend upon the particular circumstances of any given case (in the road traffic example given above, the facts which are known and publicly accessible may well be such that it is plain that the State should not be required to conduct an investigation to which the minimum standards required by Article 2 apply). I am therefore reluctant to propound some general test, applicable in all circumstances in which a prisoner suffers a life-threatening injury, or dies. iii) However, I am satisfied that the approach by Miss Stern comes closer to recognising the appropriate threshold in most “prison” cases than does Mr. Eadie’s. iv) In many of the Strasbourg authorities (see, for instance, Taylor, Crampton, Gibson and King v United Kingdom: application 23412/94) it is said that the procedural element contained in Article 2 of the Convention imposes the minimum requirements it does “...where a State or its agents potentially bear responsibility for loss of life…”. This phrase permits of a flexible application depending on the circumstances of a case, to be judged with common sense and common humanity. It both avoids the dangers of a over prescriptive threshold and permits distinctions between those cases where the “the potential responsibility” arises because of failings by the police service to protect potential victims (e.g. Osman, Van Colle) and those where it arises out of that direct and effective control of the behaviour of individuals which the State is expected to have (e.g. over those who by exercise of the State’s coercive powers are subject to imprisonment). It requires an investigation (of some kind, satisfying Article 2) unless the particular circumstances are such that it is plain that the State can bear no responsibility. v) It will thus usually (though not always) be the case the fact of an unexpected death in custody will cross the necessary threshold that requires an investigation sufficient to satisfy the Article 2 obligations.[41]To an extent, this approach is reflected in the Coroner’s Act 1988, Section 8, which requires a Coroner to hold an inquest where there is reasonable cause to suspect that “the deceased…has died in prison or in such a place or in such circumstances as to require an inquest under any other Act…”[42]I turn, then, to examine the relevant facts of the case before me in the light of the approach I have identified.

The Facts

[43]The claimant was born on the 5th October 1981. He had a daughter on 23rd December 1999 by his girl-friend Keisha in Jamaica. She suffered from a hole in the heart, severe asthma and breathing problems.[44]On 18th July 2002, having come to the United Kingdom, the claimant was arrested for the possession cocaine with intent to supply. He was remanded to Feltham Young Offenders Institution.[45]On 19th July, on reception at Feltham, he complained that he had been hit in the lower abdomen at the police station by a policeman, and claimed to have been kicked. Subsequently he was to allege a sexual assault.[46]Within the first 2 days at Feltham it was noted that he was very upset about his family circumstances and very tearful. His mood was described as unpredictable though he had not said that he was suicidal. This information is drawn from one of a series of records kept in respect of the claimant as a prisoner. This consists of Form F2050, a Core Record; F2050A, Record of Events; F2051, Custodial Documents; F2050A (History sheet, Osprey block); and F2052E, Adjudication Record, as well as the important document to which I now turn.[47]Where there is concern about the possibility that a prisoner might self-harm, a Form F2052SH (a self harm risk form) is raised. This initiates a system of regular observation and review. The guidance for staff in relation to the form records that “continuity of care is essential to increasing the prisoner’s confidence and ability to cope: involve the same people in the case review where possible.”[48]On the 21st of July such a form was opened in respect of the claimant. As a consequence of the assessment which led to the F2052SH being opened, he was relocated to a “safer cell” (i.e. one with no ligature points).[49]On the 23rd July he was described as very tearful, and was admitted to the Health Care Centre “anxious tearful and distressed”. He expressed fears for the health of his daughter worrying that she might die.[50]The next day a report was made which, somewhat impenetrably, reads:
“SIR states (claimant) observed climbing out of cell window HCC his whole body apart from one leg and climbing back in again in seconds – this is unlikely in a 4” wide window – claimant was in the HCC with abdominal pains which was unfounded. Any further information on claimant should be treated with the utmost suspicion especially if taken on escort to outside hospital”
[51]On 27th. July, the claimant told a Registered Mental Nurse that his daughter in Jamaica was critically ill, and that “he will die if she does”.[52]On 31st. July, the claimant was very distressed. He spoke to Father Reader, Roman Catholic chaplain, for some time. He claimed that his daughter in Jamaica had died. This caused particular concern, since for some four days previously he had said (for instance to Prison Officer Johnson of Outreach) that if his daughter died he would kill himself. A noose made out of bed sheets was found in his cell. He had to be persuaded to go the Health Care Centre. Father Reader stayed with him there for some time, recording in his journal that he “is a very high suicide risk”.[53]When Mr. Sheikh came to write his report, he omitted any reference to the discovery of this noose. This may perhaps have been because, surprisingly to me, no record of the discovery of the noose appears in the various forms F2050, nor in the medical notes in respect of the claimant. Indeed, if from his perusal of the records Mr Sheikh failed to notice any reference to the discovery, it may possibly be that prison officers who had only the core record and record of events to go on, or the medical notes, would deal with the claimant in ignorance of its having occurred. Reference to it appears to have been made only in the F2052SH which, as I shall recount, was to be closed 11 days before the attempt at suicide.[54]On 1st August 2002, despite his claims the night before, the claimant admitted to Reverend Debbie Goddard, of the Chaplaincy, that the story of his daughter dying was not true. She recorded that he was “Overwhelmed by anxiety…extremely upset, and told us a scenario that he fears will happen has actually happened. Feels powerless…”[55]Whilst form F2052SH was in place, the daily supervision and support records show that there was regular monitoring every half hour or thereabouts. One entry made in retrospect, appear more significant than it might have done at the time: that for the 5th August at 15.30 in which Officer Hogg noted that the claimant: “…doesn’t appear to cope too well when he hasn’t the company of his cellmate and I would advise close monitoring if this occurs.” (This was already at a time when monitoring was every three quarters of an hour if not more often).[56]The Chaplaincy, had, in view of his state, decided that they would see him two to three times weekly. The inmate records do not contain particular notes of what transpired on those visits, if indeed they occurred.[57]On 8th August 2002, the 2052SH was discharged. The records do not show, and Mr Eadie was unable to tell me, whether there had indeed been the desired continuity of staff in those making this decision. In his report, Mr Sheikh concluded that if the Chaplaincy had been consulted at the time of the proposed discharge, there might not have been such a discharge. Indeed, the Reverend Foster (Anglican Chaplain) wrote to Mr Sheikh on the 1st October 2002 recording that after the 1st August the Assistant Chaplain, Debbie Goddard, had been extremely concerned that the claimant was at risk of doing himself a serious harm simply because he was so prone to acting impulsively when emotional. He said her concerns were further shared by SO Boyes. He recorded, no doubt in the light of this, that:
“When the Chaplaincy team heard what had happened, most of us were surprised that his 2052SH had been closed without our input….He appeared to be a fairly high risk of self-harm, and certainly if Debbie had been invited to a case review she says that she would have recommended that it be kept open for the foreseeable future.”
Reverend Foster added that he felt that Chaplaincy should have been consulted about the care of the claimant, but were generally by-passed when:
“.. .decisions of this nature are made”
[58]It may be commented that if the same team had been involved in review as had been in the opening of the 2052SH the comment attributed to the claimant (see page 144: discharge summary 8/802) that: :
“He denied thought of self-harm or suicidal ideation at present and has not felt like that for over a week”
(emphasis added) would have indicated that he had indeed felt suicidal a week or so previously - yet that was precisely what the records show he was denying at that time. Had this been appreciated, as it may not have been, his claim not to feel suicidal as at the 8th August might have deserved closer scrutiny[59]On the night of the 18th/ early morning of 19th August it appears (from a memorandum from P. Clarke to the Governor, of 20th August 2002, concerning worries by a member of the support staff, one Sharp, that he may not have discharged his duties towards the claimant properly) that the bell of the claimant’s cell had been rung on a number of occasions. On one of the occasions when Mr. Sharp responded to those calls, the claimant was seen by him to have a short wide piece of bed sheet around his neck. This did not appear to the officer as a noose but more like a loosely tied scarf. It seems that (perhaps remarkably) he made no note of this in the inmate record.[60]There is no information as to whether anyone, and if so who, was alerted to this observation, and no suggestion that it was viewed as having any relationship to the finding of the noose on 31st. July.[61]The following day, 19th. August, after lunch, the claimant was released from his cell which he had shared with another inmate, in order to attend education. For reasons unknown to me, he was not on the list for education, and was returned, alone, to his cell.[62]The records suggest that after that Thomas, a fellow inmate, asked Officer Chalcraft if “he could go” to the claimant’s cell. Although it was suggested to me by Miss Stern that these words were indicative of concern by Thomas that the officer, Chalcraft, should go to the cell, I think the more natural reading of the (just possibly ambiguous) statement to this effect from Mr Sheikh’s report is that he, Thomas, wished association with the claimant in the claimant’s cell: there is no obvious indication of any sense of urgency about Thomas’s request, nor any expressed reason why Thomas would know that the claimant was at risk. When the officer reached the cell at about 14.30, however, he found the claimant hanging by a noose from the bars. He untied the knot, assisted in lowering the claimant to the floor, and administered mouth to mouth resuscitation until relieved by medical staff.[63]From Mr Sheikh’s report it emerges that fellow inmates had heard the claimant often talk of suicide. However, they did not believe that he was serious.[64]Amongst his belongings in his cell was found a note which was dated 18th August 2002, and appears to be a suicide note (see pages 206 to 207 of the Hearing Bundle).[65]Miss Stern draws attention to 8 matters arising from this factual background: i) The claimant had spoken a lot about suicide to other prisoners: this did not come to light until afterwards. ii) Officer Sharp’s observations, as to the noose around the neck, were not noted in the claimant’s record: what was recorded as to the early morning of the 19th. August was his “repeatedly pressing on call bells”. This is despite the fact that the claimant appeared to have been awake late at night and exhibiting unusual and unpredictable behaviour. She maintains that this unpredictability should have alerted the prison to the risk he posed to himself. iii) The records do not appear to show the totality of the events at the time they occurred: and cannot, therefore, be relied on safely as being comprehensive; the core records omit important features, such as both of the “noose” incidents; iv) It remains unknown whether the Rev. Margaret Wilkinson knew that the Form FS2052SH had been closed or not: a letter written after the attempted suicide by Rev. Paul Foster suggested the overall view of the chaplaincy was that of surprise that the FS2052 SH had been closed; v) It is unknown whether the same people attended the review meeting at which the decision was taken to close the FS2052SH as had been present when it was opened, although the system demanded that there should a continuity of personnel; vi) The circumstances in which the claimant came to be left on his own in a cell on 19th. August, when it was recognised that he might be at greater risk were this to happen, were unclear. The interactions with his cell mate (and in particular whether his cell mate knew of the nature of the suicide letters he had been writing the day before) had not been clarified by Mr. Sheikh’s report; vii) Mr. Sheikh’s report had other shortcomings. All documentation was said to have been inspected in depth, yet surprisingly no reference was made to the discovery of a noose in the cell on 31st. July, nor of the observation by Officer Sharp in the early morning of the 19th. August that the claimant had a strip of sheet around his neck. It also begs questions: for instance, no detail is given of the expressions of suicidal ideation which were voiced to fellow inmates. viii) Rev. Foster’s letter indicates(a) that the chaplaincy were to see a person they regarded as a high risk patient 2 to 3 times per week after the 31st. July, yet there is no documented evidence that this happened;(b) that the risk assessment reached by members of the chaplaincy team – that the claimant was at high risk of self harm – was not reflected in the core records, nor was it taken account of when the decision was taken to close the FS2052SH; and(c) it appears that the chaplaincy did not know that the form had indeed been closed (suggesting at least a lack of communication).[66]Mr. Eadie conceded that he had to satisfy the court that there was no arguable case of a breach of the test he proposed (that of actual or constructive knowledge) if there were to be no triggering of the investigative obligation. As to the facts, he contended that:- i) The judgments made were those of professionals across a wide range of disciplines. They included the Counselling and Referral Assessment Team (“CARAT”), “Outreach”, and nursing staff, as well as the prison officers themselves. They had concluded there was no significant risk of self-harm, let alone any immediate risk of suicide; ii) The observations recorded were full and detailed. This was especially so of the period during which the form FS2052SH was open, when the claimant was continuously monitored. This rightly demonstrated not a real risk of self-harm, but an appropriate precautionary approach; iii) There had been a reaction to the discovery of a noose in his cell, namely moving him to the Health Care Centre; iv) The period between 1st. August and 8th. August was of particular importance: he appeared to cope well during that time, so it was not at all inappropriate that the form should be closed when it was. v) The period between 8th. and 19th. August was one during which there was no obvious problem with the claimant’s behaviour. Anyone might be excused for thinking he had begun to settle in, after his initial disturbed reaction to imprisonment. vi) In all these circumstances, it could not be said that the prison knew or ought to have known that he was at immediate risk of causing himself life-threatening injury.

Conclusions

[67]When adopting the approach set out in concluding my review of authority above to the particular circumstances of this case, it is not for me to determine whether the State, through the systems it adopted or failed to adopt, ultimately has responsibility for the injuries sustained by the claimant. The question is whether potentially it may do so. Similarly, if I were to apply the test propounded on behalf of the Secretary of State, the determinative issue is whether it is arguable that the State or its agents ought to have known that the claimant was at immediate risk: Mr. Eadie specifically accepts this.[68]In my view there is such a potential responsibility here, applying the approach identified: and, though with less confidence, I would also conclude that if the appropriate test is that advanced by the Defendant, it too is satisfied.[69]I reach this conclusion for four principal reasons, though having had regard to all the circumstances put before me. The context in which each of these reasons has force is that the prisoner exhibited contradictory and unpredictable behaviour whilst in custody, with some sudden episodes of apparently deep distress.[70]First, there are some grounds for regarding the records kept in respect of the claimant as deficient. In particular, those documents to which ready reference might be made by those who had supervision of the claimant for the moment were silent as to the “noose” incidents. Had they not been, it is arguable a different approach might have been taken towards him.[71]Second, the views of the chaplaincy were arguably not, or not sufficiently, heeded. Individual ministers had significant contact with the claimant, and according to Rev. Foster regarded him as remaining a high risk to himself. Regard to these views might (as Mr Shaikh also concluded) have influenced the decision whether or not to cancel the Form FS2052SH on the 8th. August, and the conduct of authority towards the claimant thereafter. The level of communication between the chaplains and other professionals involved with the claimant is questionable.[72]Third, it is arguable that what the claimant said about his (lack of) suicidal ideation should not have been taken at face value, as it seems to have been. If what he said at any one time (which was, broadly, to deny such ideas) had been compared with what he said about his own state a few days earlier (which was, on the occasion of the discharge of the 2052SH on 8th. August effectively to admit to it) it might have been incumbent upon the prison authorities to ask further questions.[73]Fourth, it is not clear that there was a continuity of personnel involved in both opening and closing the Form FS2052SH, and, if there was not, what difference that might have made.[74]I emphasise that I am in no position to make any determination of these questions. Powerful arguments are available to suggest that on a realistic view of their responsibilities and resources the prison authorities may not have been able to prevent what occurred: equally, I cannot determine these now.[75]However, I can, and do, recognise that this is not a case in which it is obvious that the State can have no responsibility for the near death. It was not argued before me that the inquiry by Mr Shaikh satisfied any investigative obligation arising, such that I should take the approach of Wilson J. in Plymouth by asking whether any subsisting obligation remained beyond that which had been done. Accordingly, in my judgment, in the particular circumstances of the present case such an obligation arises, and has not yet been satisfied.[76]I stress, again, that I have not been asked to determine what precise form the investigation should take in order to discharge the obligation I have found to rest upon the state.[77]Following consideration of this judgment in draft, counsel are agreed that I should declare that there is a requirement to conduct an Article 2 compliant investigation into the suicide attempt by JL on the 19th August 2002 at HMP Feltham, and I do so.

Cited in 2 later judgments