R (Imtiaz Amin) v Secretary of State for the Home Department

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLORD HOPE OF CRAIGHEAD,LORD STEYN,LORD HUTTON,LORD BINGHAM OF CORNHILL,LORD SLYNN OF HADLEY
Judgment Date16 October 2003
Neutral Citation[2003] UKHL 51
Date16 October 2003

[2003] UKHL 51

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Slynn of Hadley

Lord Steyn

Lord Hope of Craighead

Lord Hutton

Regina
and
Secretary of State for the Home Department
(Respondent)
ex parte Amin (FC)
(Appellant)
LORD BINGHAM OF CORNHILL

My Lords,

1

In March 2000 Zahid Mubarek, a 19 year-old prisoner serving a sentence in Feltham Young Offender Institution, was wantonly murdered by Robert Stewart, with whom he shared a cell. The issue in this appeal is whether the United Kingdom has complied with its duty under article 2 of the European Convention on Human Rights to investigate the circumstances in which this crime came to be committed.

The facts

2

Zahid Mubarek ("the deceased") was born on 23 October 1980. He lived in East London. His criminal record was a short one. On 16 January 1997, for an offence of possessing an imitation firearm with intent to cause fear of violence, he was the subject of an attendance centre order. It appears the offence may have been committed in response to provocation and racist abuse. In March 1999 he was cautioned for handling stolen goods. On 17 January 2000 he was sentenced to a total of 90 days' detention in a young offender institution for offences of theft, going equipped for theft and interfering with a motor vehicle. These were offences which he committed, as it seems, to fund a growing heroin addiction. But it seems he had not complied with bail conditions imposed to address his drug problem. He was sent to Feltham, spent his first night there in the induction wing, and on 22 January 2000 was transferred to Swallow Unit where he was accommodated in cell 38, a double cell which he occupied on his own until the arrival of Stewart on 8 February. The evidence suggests that the deceased was a model prisoner who caused no trouble and appeared to have no enemies.

3

Robert Stewart was born on 4 August 1980 and lived at Hyde in Greater Manchester. Beginning with a conviction of arson when aged 13, he was convicted of 21 further offences before being sentenced for the first time to detention in a young offender institution in August 1995. Further such sentences followed in January 1996, February 1997 (after the making of community service and supervision orders), November 1997, October 1998 and January 2000. Only two of Stewart's convictions were of offences of personal violence (assault occasioning actual bodily harm and common assault). At the end of 1999 he faced charges under the Protection from Harassment Act 1997 which were due to be heard in London. It appears that these offences, or some of them, may have been thought to be racially motivated. His personal security file suggested that while in custody he had been implicated in violence, damage to prison property, escape attempts, hostage holding, the stabbing of other inmates (one of whom had lost his eye), suspected (but unproved) involvement in the murder of another prisoner, arson, the threatening of other inmates with a metal bar and a wooden table or chair leg and threats of violence against prison staff whose addresses he had ascertained. An intercepted letter suggested that he was in possession of a gun and knew the address of a prison governor. It appears that from about January 1999 his behaviour in custody improved, although he was later diagnosed to be suffering from "a long-standing deep-seated personality disorder" and "an untreatable mental condition".

4

Stewart's first visit to Feltham was on 10 January 2000 for purposes of a court hearing in London. It was judged that he needed to be watched and he was put in a single cell. An intercepted letter written by him was found to contain a reference to "Niggers". An officer who read Stewart's security file at this time formed the opinion that Stewart was "very dangerous and a threat to both staff and other inmates". He made a note in Stewart's wing file: "Staff are advised to see the security file on this inmate (held in security). Very dangerous individual. Be careful." Having made his court appearance, Stewart returned to Hindley Young Offender Institution (from which he had come) on 12 January.

5

Stewart returned to Feltham on 24 January for a further court appearance. He was accommodated on a different wing, where staff were warned that he was dangerous. He left again on 26 January.

6

Stewart was transferred to Feltham on a longer-term basis on 7 February 2000. He spent his first night on a wing where he had not been before. On the following day, 8 February 2000, he was placed in cell 38 on Swallow Wing, with the deceased. It is said that the wing had a maximum capacity of 60 prisoners, that there were already 59 before the arrival of Stewart and that the vacant place in cell 38 was the only place available. The allocation decision was made by an officer who had, according to one source, been warned to "watch [Stewart] as he was dangerous". The officer himself does not, it appears, recollect such a warning, and did not consult Stewart's security file, or his wing file which did not reach Feltham until later.

7

Stewart shared cell 38 with the deceased from 8 February to 21 March 2000. During that time he wrote and sent a letter, not intercepted, couched in violent and racist terms. On 19 March Stewart's sentence expired and he was thereafter held on remand pending trial of the outstanding charges, but he was not moved. There is no evidence of hostility or discord between the deceased and Stewart during the time they were sharing cell 38, although the deceased may have expressed a wish to share with someone else. There is evidence that other prisoners regarded Stewart as "strange" and "weird" and "aggressive", partly because of his manner and behaviour, partly because of a cross, with the letters RIP, tattooed on his forehead.

8

On 21 March 2000 at about 3.35 am Stewart battered the deceased into a coma with a wooden table leg. The deceased was due to be released that day. He never recovered, dying in hospital of brain damage a week later. After the attack Stewart pressed the cell alarm button and, when an officer responded, said that his cell-mate had had an accident. When moved to a nearby cell he drew a large swastika on the wall with the heel of his rubber shoe; above it he wrote "Just killed me padmate" and below it "RIP". The Director General of HM Prison Service met the parents of the deceased at the hospital on the day of the attack and, on learning of the death, wrote a letter apologising unreservedly for the failure of the Prison Service to look after the deceased and accepting responsibility for his death. He told them of an internal inquiry he had set up under the leadership of Mr Ted Butt, a serving governor and senior investigating officer of the Prison Service.

9

Stewart was charged with murder, and his trial started on 24 October 2000. He admitted the killing. The issue was whether he was guilty of murder or of manslaughter by reason of diminished responsibility. He was convicted of murder. Although the court heard evidence of the circumstances immediately surrounding the killing, including the actions of prison officers at that time, there was no exploration at the trial of cell allocation procedures or other events before the murder.

10

An inquest into the death of the deceased was formally opened on 31 March 2000 and then adjourned pending trial of the murder charge against Stewart. Following the conviction HM Coroner for West London declined to resume the inquest, a decision to which she adhered despite representations inviting her to reconsider it. In an affidavit she has given detailed reasons why the constraints to which coroners and inquests are subject make an inquest an unsuitable vehicle for investigating publicly the issues raised by this case.

11

The police investigated whether the Prison Service or any of its employees should be prosecuted for manslaughter by gross negligence or under section 3 of the Health and Safety at Work etc Act 1974. The advice of counsel was that there was insufficient evidence to provide a realistic prospect of securing any conviction relating to the death of the deceased. His family were so informed in August 2001.

12

The terms of reference of the Butt inquiry were to investigate the circumstances surrounding the murder and in particular to consider the issue of shared accommodation both generally and with particular reference to Stewart, in the light of what was known about his criminal history and institutional behaviour. The family of the deceased were consulted about these terms of reference but were not present at any stage of the investigation and although invited to meet Mr Butt did not avail themselves of this opportunity. Mr Butt's report was in two parts, completed at the end of October and November 2000 respectively. Copies of both parts were made available to the family, save for certain confidential annexes relating to individual prisoners, and no restriction was placed on their use of the report, save for the transcripts of interviews with members of the Prison Service annexed to the first part of the report. The report was made available to the police and the Commission for Racial Equality ("the CRE") but was not published. It identified a number of shortcomings at Feltham and made 26 recommendations for change.

13

On 17 November 2000 the CRE announced that it would be conducting a formal investigation into racial discrimination in the Prison Service. Its terms of reference were wide-ranging and general across the Prison Service but made specific reference to the circumstances leading to the murder of the deceased and any contributing act or omission on the part of the Prison Service. The family were involved in the preparation of the terms of reference and...

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