R (JL) (a Youth) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Waller,Lord Justice Maurice Kay,Lord Justice Wilson
Judgment Date24 July 2007
Neutral Citation[2007] EWCA Civ 767
Docket NumberCase No: C1/2006/2464
Date24 July 2007

[2007] EWCA Civ 767

[2006] EWHC 2558 (Admin)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Queen's Bench Division, Administrative Court

Mr Justice Langstaff

Before

Lord Justice Waller

Vice-President of the Court of Appeal, Civil Division

Lord Justice Maurice Kay and

Lord Justice Wilson

Case No: C1/2006/2464

Between
The Queen on the Application of JL
Respondent
and
Secretary of State for the Home Department
Appellant

Kristina Stern (instructed by Messrs Bindman and Partners) for the Respondent

Nigel Giffin QC (instructed by Treasury Solicitor) for the Appellant

Hearing dates: 13th June 2007

Judgement

Lord Justice Waller

Introduction

1

This appeal is concerned with whether there should in this case be something in the nature of a public investigation into the near suicide of a young man held in custody. 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.”

2

That express obligation on each State has been construed as imposing (a) a negative obligation, not intentionally and unlawfully to take a life, and (b) a positive obligation, to take appropriate steps to protect lives within the jurisdiction of the State. It has further been construed as imposing procedural obligations. One such obligation imposed on a State is to have an effective criminal and civil law under which either a prosecution can take place or a civil suit can be commenced under which an investigation can be carried out as to the civil or criminal responsibility for a death. But in certain cases where the State itself is “accountable”, e.g. where the death has occurred through the act of an agent of the State, or where the death has occurred in custody, there can arise an obligation to carry out an investigation which (taking the same for the moment from R (on the application of Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653) has certain features;(i) the State itself must commence the investigation;(ii) the investigation or inquiry must be public or open to public scrutiny;(iii) the investigator must be independent of those persons involved; and (iv) the family must have a proper opportunity to participate. It is common ground that the obligation to hold such an enhanced investigation may arise in the case of a suicide in custody. This, what can be called for convenience an “enhanced investigation”, can be and usually is complied with in the United Kingdom by holding an inquest as long as it contains the required features.

3

It is common ground that the obligation to hold the enhanced investigation may arise both in cases of near death following attempted suicide or serious injury cases where the person is in custody. In the case of near-death or serious injury there will of course be no inquest, making it the more important to be clear when the obligation to hold an “enhanced investigation” in such a case will arise.

4

On 28 th February 2006 a Court of Appeal composed of Sir Anthony Clarke, MR, Tuckey and Dyson LJJ handed down a judgment relating to what was required of the State in fulfilling its obligation to carry out an enhanced investigation into the circumstances of an attempted suicide by a young man, D, while in custody. As the judgment recorded [see [2006] 3 All ER 946 at 952, para 12] the Home Secretary accepted, in that case, that by virtue of the combination of (a) the circumstances surrounding the attempted suicide by D, who was known by the prison authorities to be “a real and immediate suicide risk”, (b) the seriousness of that incident and its consequences and (c) the existence of issues as to whether more could have been done to deal with the risk, the enhanced investigative obligation had been triggered. The judgment further recorded that the Home Secretary's acceptance that the enhanced investigative obligation was triggered in that case was fact-specific and that he did not accept that such an obligation would arise in all cases of self-harm or of attempted suicide in custody. Mr Giffin QC for the Secretary of State before us would I think add that it would not arise in all cases of suicide in custody itself.

5

This appeal is concerned with a young man, JL, who attempted to commit suicide while in custody at Feltham Young Offenders Institution. As in the case of D, the suicide attempt was very nearly successful. JL was revived in time to save his life but too late to save him from suffering permanent and irreversible brain damage. In this case the Home Secretary does not accept that the enhanced investigative obligation has been triggered. The position of the Secretary of State is that the appropriate trigger for such an investigation is not the simple fact of death or life-threatening injury sustained whilst in custody, but sufficient material to conclude, or at least reasonably suspect, that the prison authorities either knew or ought to have known of the danger to life. For JL Miss Kristina Stern argued before the judge that the obligation to hold the enhanced investigation flowed simply from the fact that JL had attempted and nearly succeeded in his attempt at suicide. Langstaff J, by a judgment dated 1 st November 2006, was of the view that the appropriate trigger was nearer the simple fact of life-threatening injury sustained whilst in custody but modified it to a test that the requirement was imposed where a State or its agents “potentially bear responsibility for loss of life” unless “the particular circumstances are such that it is plain that the State can bear no responsibility”.

6

The Secretary of State appeals the decision of Langstaff J and before us the competing triggers were defined as on behalf of the Secretary of State by Mr Giffin “whether there has been an arguable violation of the substantive obligations imposed by Article 2, in this case the protective obligation imposed on the State in relation to those in its custody”; to be contrasted with that submitted by Miss Stern on behalf of JL that “the investigative obligation arises by reason of the circumstances of a death or near miss occurring in state custody, in any case where no convincing explanation has been provided by the State which excludes the possibility of responsibility of the state being engaged.”

7

What each side is seeking primarily is the answer to the question whether the enhanced obligation to investigate and particularly to carry out an investigation with the features laid down in R(D) v Secretary of State (a D-type investigation) has been triggered in this case, but the Secretary of State's interest is seeking a definition of the trigger which can be applied also in the future, the concern being the resource implications that would seem to follow if a D-type investigation must occur in every case of a suicide or near miss by someone in custody.

8

I confess (as did the judge) to feeling anxious in making an attempt at a definition to cover all cases of suicide or near suicide in custody because the Strasbourg jurisprudence emphasises the need for flexibility in considering whether such investigation as has been conducted complies with the State's obligation. Different circumstances of different cases may call for different ingredients in the investigation process as reference to the authorities will demonstrate. The trigger might thus be different depending on the circumstances, and may alter depending on the stage of the inquiry. I will return to this point later but also recognise that R(D) has defined certain ingredients for a near suicide in prison, and the question one can address is what should trigger the obligation to hold such an inquiry.

Background

9

I will start by quoting a passage from R (D) v Secretary of State:—

“2. This is a shocking case but regrettably not unique. Suicides in prison have been a persistent problem for many years. As the judge put it (at [5[]), the problem of suicide and other forms of self-harm in our prisons is as well-known as it is depressing. He quoted a telling passage from the speech of Lord Bingham of Cornhill in R (on the application of Middleton) v West Somerset Coroner [2004] UKHL 10 at [5], [2004] 2 All ER 465 at [5], [2004] 2 AC 182, which is well worth setting out again:

'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 occur 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...

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