R (JL) (a Youth) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER OF GESTINGTHORPE,LORD MANCE,LORD PHILLIPS OF WORTH MATRAVERS,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD RODGER OF EARLSFERRY |
| Judgment Date | 26 November 2008 |
| Neutral Citation | [2008] UKHL 68 |
| Court | House of Lords |
| Date | 26 November 2008 |
[2008] UKHL 68
HOUSE OF LORDS
Appellate Committee
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Lord Mance
Appellants:
Nigel Giffin QC
Philip Sales QC
Cecilia Ivimy
(Instructed by Treasury Solicitors)
Respondents:
Ben Emmerson QC
Kristina Stern
(Instructed by Bindman & Partners)
Interveners (Equality and Human Rights Commission)
Heather Williams QC
Raza Husain
(Instructed by the Equality and Human Rights
Commission)
My Lords,
This appeal raises the question of the nature of the investigation that must be carried out by the State whenever a prisoner in custody makes an attempt to commit suicide that nearly succeeds and which leaves him with serious injury.
The respondent, who has been referred to as JL, was born in Jamaica on 5 October 1981. He came to this country in May 2002 and, on 18 July 2002, was arrested and charged with possessing cocaine with intent to supply. He was remanded in custody to Feltham Young Offender Institution ("Feltham"). There, on 19 August 2002, he was found hanging from the bars of the window of his cell, having used a sheet to make a noose around his neck. He had stopped breathing, but was resuscitated. Deprivation of oxygen had resulted in serious brain damage. He has been left incompetent to conduct his own affairs.
The London Area Manager of the Prison Service initiated an investigation into what had occurred. He instructed Mr Sheikh, a retired Prison Governor acting as a Senior Investigating Officer to carry this out. Mr Sheikh submitted a written report to the Area Manager on 16 October 2002. No relative of JL or person representing his interests was involved in that investigation and Mr Sheikh's report was not published or disclosed until 26 January 2005. It was then disclosed to the Official Solicitor who, on behalf of JL, had written a letter before action to the Treasury Solicitor. Mr Sheikh's report summarised the facts that he had ascertained and set out conclusions, which included findings that the treatment and care provided to JL at Feltham was in line with the national as well as the local requirements and that the staff at Feltham had provided the "necessary required care and attention and support".
JL's claim for judicial review was issued on 21 September 2005. It was heard by Langstaff J [2006] EWHC 2558 (Admin). JL contended that article 2 of the European Convention on Human Rights ("article 2") imposed a duty on the Secretary of State to carry out an independent investigation into his attempted suicide, that this investigation had to satisfy a number of criteria, that Mr Sheikh's investigation did not satisfy those criteria but that it disclosed facts that raised the possibility that Feltham had failed to discharge the duty to safeguard JL's life imposed on the State by article 2. He sought a mandatory order requiring the Secretary of State to carry out an investigation that satisfied article 2, reserving the right, in the light of the findings of this investigation, to pursue a further claim for breach of the obligation to safeguard his life.
The issues
It is important to identify at the outset the issue that Langstaff J was asked to resolve and the premises upon which he was asked to do so. These appear from the following section at the beginning of his judgment:
"6. 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.
7. 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.
8. 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."
Langstaff J was thus asked to proceed on the premise (1) that where article 2 requires an investigation this will necessarily have certain specific characteristics and (2) that it is possible to specify the circumstances in which such an investigation will be required. Langstaff J was asked to restrict himself to identifying those circumstances and ruling whether they applied in the present case. He expressed reservations as to whether it was possible to draw a clear line between the question of when the requirement to hold an investigation is triggered and the question of the content of the investigation, but nonetheless set out, as requested, to answer the former question.
After considering both Strasbourg and domestic authority Langstaff J formed the following general conclusions. Article 2 requires an investigation where a State or its agents potentially bear responsibility for loss of life. An unexpected death or life-threatening injury in custody will usually, although not always, require an investigation sufficient to satisfy article 2 obligations.
Langstaff J then considered the facts that had been found by Mr Sheikh and concluded that, on the basis of these, it was arguable that the State was responsible for the injuries sustained by JL. There was thus an obligation to hold an investigation that complied with article 2. He granted a declaration to that effect but stressed that he had not been asked to determine what precise form the investigation should take in order discharge this obligation.
On 24 July 2007 the Court of Appeal dismissed the Secretary of State's appeal [2007] EWCA Civ 767. In giving the leading judgment Waller LJ also expressed anxiety about making an attempt at a definition that covered all cases of suicide or near-suicide in custody. In the event, however, he felt able to advance certain principles. He said:
"I am clear that the simple fact of a death or serious injury of a person in custody gives rise to an obligation on the State to conduct the enhanced type of investigation. The extent of the investigation will depend on the circumstances…As regards the nature of the investigation it seems to me that a death or near death in custody ipso facto means that the State must commence an investigation by a person independent of those implicated in the facts. The extent to which there must then be some further inquiry in the nature of a public hearing in which the next of kin or injured person can play a part will depend on the circumstances. In the case of a death there will be an inquest, and the coroner may have to decide whether the circumstances are such as to require something [further]. In cases of serious injury the nature of the further inquiry necessary will depend on the facts as discovered by the independent investigator."(paras 32, 33)
Waller LJ went on to indicate that unless from the independent investigation it is "plain that the State or its agents can bear no responsibility" a further investigation would be required with the ingredients identified by the Court of Appeal in R(D) v Secretary of State for the Home Department (INQUEST intervening) [2006] EWCA Civ 143; [2006] 3 All ER 946. I shall describe an investigation with these ingredients as a "D type investigation".
Waller LJ held that the requirement for an initial independent investigation had not been satisfied in this case, if only because Mr Sheikh did not have the degree of independence required. He went on to hold that, if one had regard to the facts found by Mr Sheikh, these led to the conclusion that a further D type investigation was necessary.
The respondent supports the findings of Waller LJ as to the nature of the investigation required by article 2 where a near-suicide occurs in prison custody. So too does the intervener, the Equality and Human Rights Commission.
While the Secretary of State does not accept the findings of the courts below, he no longer seeks to avoid a D type investigation into JL's near-suicide and preparations for this are in hand. He has sought and obtained permission to appeal because he is concerned by the resource implications if the principles identified by Waller LJ are applied generally. His submissions, as advanced by Mr Nigel Giffin QC, can be summarised as follows:
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i) The same principles apply where a suicide or a...
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