R (JL) v Secretary of State for Justice [Administrative Court; CO/2328/2009]
| Jurisdiction | England & Wales |
| Judgment Date | 07 October 2009 |
| Date | 07 October 2009 |
| Court | Queen's Bench Division (Administrative Court) |
[2009] EWHC 2416 (Admin)
Administrative Court; CO/2328/2009
L
aws LJ
J Richards (instructed by Bindmans) for the claimant; J Swift (instructed by the Treasury Solicitors) for the defendant.
Whether the arrangements for an inquiry into a near death in custody were compliant with Art 2 ECHR.
In August 2002 the claimant, who was detained at HMYOI Feltham, attempted to hang himself. He was resuscitated, but lack of oxygen had left him with serious, permanent brain injury. In 2007 the defendant set in motion arrangements for a public investigation into the attempted suicide which would comply with the procedural requirements of Art 2 ECHR, entailing a first phase investigation and a second phase public inquiry. The first phase investigation was conducted by a chartered forensic pathologist, M, who had experience of prisons but had not worked at that YOI. She prepared a draft report and provided it to the claimant's solicitors.
The claimant applied for judicial review, contending that the arrangements made and put into effect did not satisfy the standards that Art 2 demanded in that (1) the investigation was not sufficiently independent from the state to meet the standards or requirements set by Art 2; (2) the commissioning letter to M gave rise to a legitimate expectation enjoyed by the claimant, that he would be able to participate effectively in the investigation; (3) Art 2 itself required that he be able to participate effectively in the investigation; and (4) the investigation was not conducted promptly.
Introduction
1. The claimant in these judicial review proceedings was born in Jamaica on 5 October 1981 and came to the UK in May 2002. In July 2002 he was remanded in custody to HM YOI Feltham on a drugs charge. On 19 August 2002 he was found hanging from the bars of the window of his cell, having used a sheet to fashion a noose around his neck. He was resuscitated but suffered, and suffers, severe and continuing brain damage.
2. Article 2(1) of the European Convention on Human Rights (ECHR) opens with the words:
"Everyone's right to life shall be protected by law."
Article 2 has been construed as involving an ancillary or procedural obligation upon the state, in cases where a death or an attempted suicide (or "near-death") occurs in circumstances in which the state bears or may bear some responsibility for what has happened, to conduct an investigation which must fulfil certain standards, essentially of independence and openness.
3. In September 2005 judicial review proceedings were instituted on the claimant's behalf (the Official Solicitor acting as his litigation friend) in order to establish an obligation on the part of the Secretary of State to undertake an investigation into his attempted suicide which would meet these procedural requirements of Art 2. The claim was heard successively by Langstaff J ([2006] Inquest Law Reports 200), the Court of Appeal ([2008] 1 WLR 158, [2008 Inquest Law Reports 202) and the House of Lords ([2009] 1 AC 588, [2008] Inquest Law Reports 88), and I shall have to refer to it further. Very broadly the conclusion reached was that the Art 2 obligation to investigate arose whenever an attempted suicide in state custody resulted in long term injury.
4. After the Court of Appeal's judgment in those proceedings had been given on 24 July 2007 the Secretary of State accepted that a public investigation which would comply with Art 2 was required on the facts of the case and set in motion arrangements for such an investigation; though he mounted an appeal to the House of Lords in order to obtain guidance in principle as to the reach of the obligation. By the present application for judicial review, brought with permission granted by Lord Carlile of Berriew QC sitting as an additional Queen's Bench judge on 12 March 2009, the claimant asserts that the arrangements for such an enquiry, so far made and put into effect, do not satisfy the standards which Art 2 demands.
The claimant's history
5. The events leading up to and including the claimant's attempt to kill himself were described by Waller LJ in the Court of Appeal in the earlier proceedings. I cannot improve on his account which is as follows:
"11. On 18 July 2002 JL was arrested for possession of 19 wraps of crack cocaine, with the intention of supplying to another. He was remanded in custody until 26 July 2002. He was also subject to a detention order under immigration powers. This was his first time in prison custody. On the second entry in the core record form he was noted on 20 July 2002 to be very anxious and stressed and to be vulnerable due to high anxiety. On 21 July 2002 an F2O52SH, self-harm at risk form, was opened because he was very upset about his family circumstances and was in tears. It was noted that this should remain open due to his unpredictable mood. He was admitted to health care on account of anxiety and remained there until 23 July 2002. On 25 July 2002 it was recorded that he was denying thoughts of self-harm at the present and on 26 July 2002 he was remanded in custody until 23 August 2002.
12. On 27 July 2002 an officer noted that he had concerns regarding JL and on the same day JL was said to be having increasingly negative thoughts about the future, to have subjectively low mood and to look a bit depressed. On 31 July 2002 concerns were expressed that JL might try to self-harm and he was found very distressed in his cell, and a noose made out of sheets was found in his cell. This fact was recorded in a chaplaincy report, although the health care note and other records of that day made no mention of it. He was noted by Father Roger to be a very high suicide risk and he was admitted to health care for observation. He was placed on intermittent observations and was placed in a safe cell with stripped bedding until seen by a GP.
13. On 1 August 2002 a note from a chaplain indicated that JL was overwhelmed by anxiety, worried about his children, extremely upset after an angry telephone call with his girlfriend, who said she could not visit, felt powerless and that any scenario he fears will happen has actually happened. The chaplaincy report indicated that at this time JL was very distressed and in need of support. It noted that the prompt for this episode was that he had had a row with his partner because she was not visiting him as often as he would have liked. The note also indicated that one of the chaplains and SO Boyes were concerned that JL was at risk of doing himself serious harm, as he was so prone to acting impulsively when emotional and he may see it as a means of getting out of prison.
14. On 4 August 2002 an officer recorded that JL did not appear to cope too well when he did not have the company of his cell mate and that he would advise close monitoring if company ceased. On that day he was noted to be denying thoughts of self-harm or suicidal ideation at present and saying that he had not felt like that for over a week. On 8 August the self-harm risk form was closed, following a review. A support plan was agreed, apparently, by a registered mental health nurse. On 9 August he was noted to have been distressed the previous night and to have been extremely anxious since his father and brother were shot and killed in 2001. On 15 August he was noted to be very quiet and withdrawn and worried about the outcome of the trial and about his family in Jamaica. On 19 August 2002 he was noted to have constantly used the call bell. The memorandum relating to this, based on information from OSG Sharp, indicated that in the early hours of 19 August JL repeatedly rang the cell bell and then asked to see a doctor. This was refused. It noted that JL gave a fictitious name and that at this time he appeared to have a short, wide piece of bed sheet around his neck. He was writing with the light on in the cell until 4am.
15. It was noted that OSG Sharp was after the event extremely concerned that his (Mr Sharp's) performance overnight might have had something to do with JL's self-harm attempt.
16. On 19 August JL was locked in his cell alone. After lunch on 19 August JL was unlocked for classes and made a telephone call. After this, following instructions, his name was not on the list for education classes and he was locked alone in his cell. It was on 19 August at approximately 14.45 that JL was found suspended from the cell bars, with a ligature made from bed sheets tied round his neck and attached to the window bars.
17. The ligature was removed and JL was given CPR. A pulse was detected after three minutes but no breathing was noted. His pulse then stopped and he was resuscitated a second time. He ultimately survived but has serious brain damage.
18. The London area manager of the prison service promptly directed Mr Sheikh, a retired governor within the prison service, to investigate what had happened. He submitted his report to the area manager on 16 October 2002 - but this did not become apparent to JL, or his relatives, or those acting for him, until it was disclosed in correspondence from the Treasury Solicitor on 26 January 2005.
19. Amongst the findings of Mr Sheikh were first (perhaps a somewhat surprising finding) at 11.3 that 'JL did not express at any time, any thoughts of committing self-harm, though he did have continuous depressive moods and showed concerns about his children in Jamaica'.
20. Further he reported:-
'11.7 On the evidence found, the decision to open F2052SH was correct, although the closure of F2052SH was correctly based upon the information as well as the improved behavioural pattern of JL. Had the chaplain been invited to attend the case review, the decision to close it might not have been taken in the light of information provided by him.
11.8 The...
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