R (Jean Middleton) v HM Coroner for Western Somersetshire and Secretary of State for the Home Department

ORDERED TO REPORT

The Committee (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell) have met and considered the cause Regina v. Her Majesty's Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent). We have heard counsel on behalf of the appellant and both respondents.

This is the considered opinion of the Committee.

The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. See, for example, LCB v United Kingdom (1998) 27 EHRR 212, para 36; Osman v United Kingdom (1998) 29 EHRR 245; Powell v United Kingdom (App No 45305/99, unreported 4 May 2000), 16–17; Keenan v United Kingdom (2001) 33 EHRR 913, paras 88–90; Edwards v United Kingdom (2002) 35 EHRR 487, para 54; Calvelli and Ciglio v Italy (App No 32967/96, unreported, 17 January 2002); Öneryildiz v Turkey (App No 48939/99, unreported, 18 June 2002).

The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. See, for example, Taylor v United Kingdom (1994) 79-A DR 127, 137; McCann v United Kingdom (1995) 21 EHRR 97, para 161; Powell v United Kingdom, supra p 17; Salman v Turkey (2000) 34 EHRR 425, para 104; Sieminska v Poland (App No 37602/97, unreported, 29 March 2001); Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom, supra, para 69; D6 neryildiz v Turkey, supra, paras 90-91; Mastromatteo v Italy (App No 37703/97, unreported, 24 October 2002).

The scope of the state's substantive obligations has been the subject of previous decisions such as Osman and Keenan but is not in issue in this appeal. Nor does any issue arise about participation in the official investigation by the family or next of kin of the deceased, as recently considered by the House in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2003] 3 WLR 1169. The issue here concerns not the conduct of the investigation itself but its culmination. It is, or may be, necessary to consider three questions.

(1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2?

(2) Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984 ( SI 1984/552), as hitherto understood and followed in England and Wales, meet those requirements of the Convention?

(3) If not, can the current regime governing the conduct of inquests in England and Wales be revised so as to do so, and if so how?

Before turning to consider these questions it should be observed that they are very important questions. Compliance with the substantive obligations referred to above must rank among the highest priorities of a modern democratic state governed by the rule of law. Any violation or potential violation must be treated with great seriousness. In the context of this appeal the questions have a particular importance also. For, as the facts summarised in paragraphs 39-43 below make clear, the appeal concerns an inquest into the suicide, in prison, of a serving prisoner. Unhappily, this is not a rare event. The statistics given in recent publications, (notably "Suicide is Everyone's Concern, A Thematic Review by HM Chief Inspector of Prisons for England and Wales" (May 1999), the Annual Report of HM Chief Inspector of Prisons for England and Wales 2002–2003, and Evidence given to the House of Lords and House of Commons Joint Committee on Human Rights (HL Paper 12, HC 134, January 2004) 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 already referred to 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. This appeal is concerned with the death of a long-term convicted prisoner but the same principles must apply to the death of any person in the custody of the prison service or the police.

Question (1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2?

The European Court has never expressly ruled what the final product of an official investigation, to satisfy the procedural obligation imposed by article 2 of the Convention, should be. This is because the Court applies principles and does not lay down rules, because the Court pays close attention to the facts of the case before it and because it recognises that different member states seek to discharge their Convention obligations through differing institutions and procedures. In this appeal the Committee heard oral submissions on behalf of the Secretary of State, HM Coroner for the Western District of Somerset and Mrs Jean Middleton, and received written submissions on behalf of the Coroners' Society of England and Wales, the Northern Ireland Human Rights Commission and Inquest. It was not suggested that the express terms of the Convention or any ruling of the Court provide a clear answer to this first question before the House.

The Court has recognised (in McCann v United Kingdom, para 146) that its approach to the interpretation of article 2

"must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective."

Thus if an official investigation is to meet the state's procedural obligation under article 2 the prescribed procedure must work in practice and must fulfil the purpose for which the investigation is established.

What is the purpose for which the official investigation is established? The decided cases assist in answering that question. In Keenan v United Kingdom, which concerned a prisoner who had committed suicide, the article 2 argument was directed to the state's performance of its substantive, not its procedural, obligation. The Court did, however, note the limited scope of an inquest in England and Wales (paragraphs 75-78), which was relevant to the applicant's complaint under article 13 that national law afforded her no effective remedy. In the context of that complaint the Government agreed (paragraph 121)

"that the inquest, which did not permit the determination of issues of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities or obtaining damages."

In paragraph 122 the Court, still with reference to this complaint, ruled:

"Given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life …"

On the facts, the Court held (paragraph 131) that a civil action in damages would not have afforded the applicant an effective remedy which would have established where responsibility lay for the death of the deceased.

Jordan v United Kingdom arose from the fatal shooting of a young man by a police officer in Northern Ireland. The Court found a violation of article 2 in respect of failings in the investigative procedures concerning the death. The Court held:

"105 The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and...