R (D) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 2005 |
| Neutral Citation | [2005] EWHC 728 (Admin) |
| Date | 28 April 2005 |
| Court | Queen's Bench Division (Administrative Court) |
: [2005] EWHC 728 (Admin)
Court and Reference: Administrative Court; CO/4876/2004
: Munby J
: A Nicol QC and K Stern (instructed by Bindman and Partners) for the claimant; J Eadie (instructed by the Treasury Solicitor) for the Home Secretary.
: D was a remand prisoner who was known to have recently self-harmed on several occasions whilst in custody. On 27 December 2001, having received distressing news from home, he was placed on special observation but was nevertheless able to hang himself using bed linen that had been left in his cell. He was discovered, cut down and revived but suffered irreversible brain damage.
An internal investigation produced a 22 page report in July 2002 which was critical of the prison service. Subsequently, relevant documentation had been destroyed or lost by the prison service including eight annexes to the internal report, records of the investigation and D's prison records and medical records.
The Secretary of State accepted that the circumstances of the case triggered the investigative obligation under Arts 2 and 3 ECHR and that the 2002 internal investigation did not satisfy that obligation. He proposed that the Prisons and Probation Ombudsman ('Ombudsman') should investigate the matter. The Ombudsman would conduct a formal inquiry but this would not be in public, he would have no powers to compel witnesses, D's representatives would not be permitted to cross-examine witnesses, not all evidence would be recorded and D's representatives would be funded at the Secretary of State's discretion.
D applied for judicial review on the grounds that the proposed investigation would be insufficient to meet the state's investigative obligations and sought a mandatory order requiring the Secretary of State to conduct a "full and effective investigation into the circumstances of" his attempted suicide.
1. D was born on 25 December 1979 and was thus not quite 22 years old when on 30 November 2001 he was remanded in custody on charges, inter alia, of attempted robbery and was taken to HMP Pentonville. He arrived from hospital, having apparently self-harmed at court, and was accompanied by a form indicating that he was a self-harm / suicide risk. Whilst in prison he self-harmed on 3, 4, and 7 December 2001 and on 13 December 2001 was again placed on 15 minute documented watch after an apparent suicide attempt. On the morning of 27 December 2001 (two days after his 22nd birthday) a broken razor and a noose were discovered in his cell. During a subsequent telephone call he discovered that his daughter had been taken into care by social services. He became very distressed. An entry was made on his form and in the health area observation book that staff should be extra vigilant. At about 3.45 that same afternoon he hanged himself using bed-linen which despite everything had been left in his cell. He was discovered, cut down and revived in time to save his life but too late to save him from suffering permanent and irreversible brain damage. That is why he brings these proceedings by the Official Solicitor as his litigation friend. He suffered brain injury secondary to anoxia and cardiac arrest. Since 4 September 2002 he has been detained under s. 3 of the Mental Health Act 1983. He is diagnosed as suffering from an organic personality disorder arising from a traumatic brain injury. He also has gait and balance difficulties associated with the brain damage.
2. There was an investigation by a Senior Investigating Officer in the Prison Service, Ms Carole Draper. She reported on 22 July 2002 in a 22 page report which contained 11 recommendations. So far as it went the Draper report and the investigation leading up to it ("the Draper Investigation and Report") were, and are accepted by the claimant to have been, conscientious, thorough and in some respects critical of the Prison Service.
3. It is a matter of great concern that some of the most important documentation relating to D seems to have been destroyed or lost by the Prison Service. The missing documents include:
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(i) Annexes 1-8 to the Draper Report. (It is an astonishing fact that it took a very long time even to locate a copy of the Draper Report itself: no copy could be found either at HMP Pentonville or in the London Area Office of Prison Service Headquarters.)
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(ii) Almost all the records of the investigation by Ms Draper.
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(iii) D's prison 'core record' and 'inmate medical records'. (The loss or destruction of the inmate medical records involved a clear breach of the Prison Service's own guidelines in PSO 9020, para 3.1 of which requires such records to be kept for 10 years. The loss or destruction of the core record was, it might be thought, inconsistent with what is said in para 3.1.3 of PSO 9020.)
4. Assuming that there is no more sinister explanation for the loss of all these documents (and no-one has suggested that there is) the picture is nonetheless profoundly disturbing. It suggests an alarming level of carelessness and incompetence, not merely in a major prison but also in Prison Service Headquarters. The evidence from a civil servant in the Deputy Director General's Directorate of the Prison Service is able to provide no explanation of how this came about save to say that "Ms Draper's report and annexes were stored within the London Area Office on disc only and this disc was inadvertently wiped after Ms Draper left the Office to take up a new post." The fact that a disc containing such seemingly important material could be "inadvertently" wiped by someone other than its author suggests an alarmingly casual and inefficient approach to record keeping which it might be thought is simply not acceptable.
5. The problem of suicide and other forms of self-harm in our prisons is as well-known as it is depressing. I refer to the comments of Lord Bingham of Cornhill in R (Middleton) v West Somerset Coroner[2004] Inquest Law Reports 17, [2004] 2 AC 182, at para [5]:
"The statistics … make grim reading. While the suicide rate among the population as a whole is falling, the rate among prisoners is rising. In the 14 years 1990-2003 there were 947 self-inflicted deaths in prison, 177 of which were of detainees aged 21 or under. Currently, almost two people kill themselves in prison each week. Over a third have been convicted of no offence. One in five is a woman (a proportion far in excess of the female prison population). One in five deaths occurs in a prison hospital or segregation unit. 40% of self-inflicted deaths occur within the first month of custody. It must of course be remembered that many of those in prison are vulnerable, inadequate or mentally disturbed; many have drug problems; and imprisonment is inevitably, for some, a very traumatic experience. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much attention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state's substantive obligations … but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern."
6. In R (Howard League for Penal Reform) v Secretary of State for the Home Department[2003] Prison Law Reports 128, [2003] 1 FLR 484, at para 12, I referred to the significant problems of self-harming, suicidal thoughts and even suicidal attempts, by children and young people in Young Offender Institutions. The most recent statistics supplied by the Prison Service in its evidence in the present case show that in 2003 there were 94 suicides and 16,221 recorded incidents of self-harm (including 204 resuscitations) across the Prison Service estate; the corresponding figures for the nine months from January to September 2004 were 95, 11,822 and 102.
7. As is now well known and clearly established, Art 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms requires that in certain circumstances the state has an obligation to carry out an effective investigation of the circumstances in which someone has died. That obligation can arise in many circumstances. It may arise in cases of medical malpractice: see Erikson v Italy(26 October 1999), Powell v UK [2000] Inquest Law Reports 19 (4 May 2000), Sieminska v Poland[2001] Inquest Law Reports 256 (29 March 2001) and Calvelli and Ciglio v Italy(17 June 2002). It can arise, for example, when a municipal rubbish tip explodes killing 39 people: Oneryildiz v Turkey[2004] Inquest Law Reports 108 (30 November 2004). More importantly for present purposes it will arise when someone dies either at the hands of an agent of the state or whilst in the custody of the state: see McCann and others v UK(1995) 21 EHRR 97 (killing of suspected IRA terrorists by the SAS in Gibraltar), Salman v Turkey(2000) 34 EHRR 425 (death whilst in police custody), Jordan v UK[2001] Inquest Law Reports 101, (2001) 37 EHRR 52 (shooting by police officer) and Edwards v UK [2002] Inquest Law Reports 27 (2002) 35 EHRR 487 (detainee in YOI killed by fellow detainee).
8. A similar obligation may arise under Art 2 when the victim does not die but has sustained "life threatening injuries": R (Amin) v Secretary of State for the Home Department [2003] Inquest Law Reports 1, [2004] 1 AC 653, at para 31 referring to Menson v UK[2003] Inquest Law Reports 146. And the obligation arises even if the case is one of self-harm...
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