R (Imtiaz Amin) v Secretary of State for the Home Department; R (Middleton) v West Somerset Coroner

JurisdictionEngland & Wales
JudgeMR JUSTICE HOOPER
Judgment Date05 October 2001
Neutral Citation[2001] EWHC 719 (Admin)
Docket NumberCase No: CO/3249/2001
CourtQueen's Bench Division (Administrative Court)
Date05 October 2001

[2001] EWHC 719 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

QUEENS BENCH DIVISION

Before:

The Honourable Mr Justice Hooper

Case No: CO/3249/2001

The Queen on the Application of Imtiaz Amin
Claimant
and
The Secretary of State for the Home Department
Defendant

Mr P O'Connor QC and Mr M Soorjoo (instructed by Imran Khan & Partners for the Claimant)

Mr J Crow and Mr M Chamberlain (instructed by Treasury Solicitors for the Defendant)

Mr A Scrivener QC (for The Commission for Racial Equality)

Miss L Sullivan QC and Mr S Climie (for Her Majesty's Coroner for West London)

MR JUSTICE HOOPER
1

These are my reasons for judgment in one of the three applications for permission to apply for judicial review listed before me on 3 September, namely the application against the Secretary of State for the Home Department ("SSHD"). In the other two cases the defendant is Her Majesty's Coroner for West London ("The Coroner") and the Commission for Racial Equality ("CRE"). It was agreed that, if I were to grant permission, I should continue with the substantive hearing.

2

At the conclusion of the hearing, I announced my decision that the application against the SSHD had in part succeeded. The claimant was entitled to a declaration to the effect that on the facts known to the Secretary of State, including the fact that the inquest would not be resumed, an independent investigation must be held to satisfy the obligations imposed by Article 2 of the European Convention on Human Rights ("the Convention"). I also said that I would give, during the course of my judgment, my conclusions as to the necessary features of such an investigation.

3

All three cases concern the death in Feltham Young Offenders Institution ("Feltham") of 19 year old Zahid Mubarek at the hands of his violent and racist cell mate, Robert Stewart ("Stewart"). Zahid Mubarek was bludgeoned to death in the early hours of the morning of 22 March 2000. Stewart struck him many times with the leg of the table in the cell. He was convicted of the murder on 1 November 2000 following a trial. Stewart had a record of offending since 1993 and from September 1997 he had almost continually been in custody. He had a history of serious disruptive behaviour in prison, including stabbing a prisoner below his eye, fighting, bullying, setting fire to his cell and attempted escape. He had been "strongly suspected" of involvement in a murder by stabbing of a fellow prisoner, having passed the weapon, so the police believed, to the murderer (page 52). At the time of the murder of Zahid Mubarek, Stewart was on remand for "Racially motivated malicious communication and Harassment Act offences" (SSHD bundle, Butt Report, pages 34–35). Two months before the murder a "racist and threatening letter" written by Stewart referring to "a lot of niggers on the wing" was intercepted (page 35). Contrary to procedures, the letter was returned to him and no action was taken other than an entry on the "wing flimsy" (page 51). Stewart was described in the same "wing flimsy" as "a very dangerous individual" (page 35). On the night of the murder the police found a KKK sign on the cell noticeboard (page 57). On Stewart's forehead was a tattoo of a cross with the letters "RIP" underneath.

4

The claimant in all three cases is Imtiaz Amin, the uncle of the deceased. The thrust of his complaint against all three defendants concerns the failure to hold an open and public investigation into why Zahid Mubarek was sharing a cell with Stewart on the night of the murder, an investigation in which the family is allowed to participate in a meaningful manner.

5

In the claim against the SSHD, an order requiring an independent public inquiry is sought. The challenged decision is contained in a letter dated 20 August 2001 (see pages 69–70 of the exhibit MCI attached to the witness statement of Mary Calderwood ("Calderwood"), a senior civil servant in the Home Office).

6

In the claim against the Coroner, the family is seeking a resumption of the inquest to investigate the circumstances in which Stewart was in a position to murder Zahid Mubarek. That has been refused and the relevant decision letter is dated 27 July 2001 (page 104 of the Coroner bundle).

7

In so far as the CRE is concerned, it is conducting a substantial inquiry into alleged racism within the prison service. By virtue of paragraph 5 of the terms of reference (page 46 of CRE bundle) the CRE is inquiring into:

"the circumstances leading to the murder of Zahid Mubarek in H.M. Young Offenders Institution, Feltham, and any contributing fact or omission on the part of the prison service."

8

The CRE, by a series of letters concluding with a letter dated 12 March 2001 (page 44 of CRE bundle), refused to turn the inquiry into the kind of public inquiry which the family were seeking with the right to cross-examine witnesses. The claimant's objective in bringing proceedings against the CRE was to challenge the lawfulness of the CRE's decision not to hold such an inquiry.

9

The case involving the CRE came before me first on 30 July 2001. Having heard Mr O'Connor, Q.C. open the case for the claimant, it seemed to me that if the claimant proposed to review the then anticipated final decision of the Coroner not to resume the inquest and an anticipated final decision of the SSHD not to hold a public inquiry, then it would be far more satisfactory if all three cases were heard together. The CRE was particularly anxious that it be able to continue its investigation unimpeded by any judicial review application. The CRE's inquiry into the prison service is of major public importance and should not be delayed. Furthermore, the family was very anxious to resolve the matter as quickly as possible. For those reasons I ordered that the three cases should be listed before me on 3 September.

10

Having read through the skeleton argument, I indicated to Mr O'Connor that I wished to hear first his general submissions supporting the case that there should be a public inquiry. I also indicated to Mr Crow, for the SSHD, that it was likely that I would wish to hear from him first in reply.

11

Mr Crow both then and later invited me to decide the CRE and Coroner applications first. In his skeleton argument he had submitted that it is not unreasonable for the defendant to decline to hold a public enquiry until after the proceedings against the Coroner and the CRE had been completed. I declined his invitation and said that I would first decide whether the SSHD had acted lawfully in refusing the request for an inquiry in his letter of 20 August. Mr O'Connor supported this course. I later told Mr Crow that I would give my reasons for so declining as part of this judgment.

12

It became clear during the hearing, as Mr Scrivener Q.C. stated that the CRE could only concern itself with the circumstances leading to the murder insofar as they related to any racial matters. The CRE would be unable to investigate why a dangerous prisoner was sharing a cell with Zahid Mubarek, except to the extent that "any contributing fact or omission" was caused by racial discrimination. When I suggested to Mr Crow that this weakened the defendant's case in so far as he relied on the CRE enquiry, he submitted that, until the CRE had reported, it was not possible to know whether this would in fact restrict the value of the investigation for the purposes of the Convention. I do not agree. Given the limitations on what the CRE can investigate, the fact that the CRE is investigating the matter does not help the defendant. I should add that, in any event, Mr O'Connor does not accept, for other reasons, that the CRE enquiry as proposed would satisfy the requirements of the Convention.

13

At the end of the first day, I indicated to Mr O'Connor that although I had not heard any detailed submissions about the claim against the CRE, I was sceptical of its likely success. After a short adjournment Mr O'Connor and Mr Scrivener for the CRE agreed that the application for permission to apply for judicial review against the CRE would be adjourned without any fixed date being set. I agreed to that course. At the end of the first day I also adjourned the case against the Coroner for lack of time.

Reasons for deciding to conclude the claim against the SSHD first

14

In writing the letter of 20 August 2001 the SSHD assumed that the inquest would not be resumed. (That is implicit in the letter and was confirmed during the hearing). In his letter of 20August the SSHD wrote:

"Following the trial, the coroner decided that there was not sufficient cause to resume the inquest. That is a matter for her, but she will have taken into account the extent to which the facts about the death emerged during the course of the trial."

15

The assumption that the inquest would not be resumed having been made, it seemed to me that the lawfulness of the 20 August letter could properly be determined without first deciding the Coroner application. Furthermore, in his skeleton argument Mr Crow submitted, on behalf of the SSHD, that the Coroner had been right in her decision not to resume the inquest.

16

It is the claimant's case that, in any event, the holding of an inquest would not excuse the defendant from holding a public enquiry. In the words of Mr O'Connor, an inquest would be 'second best'.

17

Only if the claimant could not succeed against the SSHD, would the claimant want a resumption of the coroner's inquest. The claim against the Coroner has to be brought to safeguard the claimant's position but the preferred outcome is a public enquiry. The grounds of the claim against the Coroner make it clear that it is...

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