R (JL) (a Youth) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Langstaff |
| Judgment Date | 01 November 2006 |
| Neutral Citation | [2006] EWHC 2558 (Admin) |
| Docket Number | Case No: CO/7500/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 November 2006 |
[2006] EWHC 2558 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
The Hon Mr Justice Langstaff
Case No: CO/7500/2005
Ms Kristina Stern (Instructed by Bindman's & Co) for the Claimant
Mr James Eadie (Instructed by Treasury Solicitors) for the Defendant
Mr Justice Langstaff:
At Feltham Young Offenders' Institution on the 19 th 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.
In short, if this was (as it appears to be) an attempt at suicide it was very nearly successful.
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 16 th 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 26 th 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.
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.
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.
The Issue .
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.
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.
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.
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.
The Law.
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))
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."
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 deather injury 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...
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