SP v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judgment Date | 19 January 2009 |
| Neutral Citation | [2009] EWHC 13 (Admin) |
| Docket Number | Case No: CO/10380/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 January 2009 |
[2009] EWHC 13 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Justice Pitchford
Case No: CO/10380/2008
Ian Wise (instructed by The Howard League for Penal Reform) for the Claimant
Nigel Giffin QC and Amy Rogers (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 10 and 11 December 2008
PITCHFORD J:
This is an application for permission to apply for judicial review of decisions made by the defendant Secretary of State for Justice, concerning an investigation intended to be compliant with the state's duty under Article 2 ECHR into the treatment of the claimant, SP, while she was serving a sentence of detention in a young offender institution. On 30 October 2008 the application was considered by the single judge on the papers and ordered in for a 'rolled up' oral hearing. I heard argument on 10 and 11 December 2008. The grounds of the application are:
i) The investigation ordered by the Secretary of State lacks independence [para 77–88];
ii) The investigation lacks a sufficient public element [para 89];
iii) The claimant's legitimate expectation of consultation about the investigation's terms of reference has been breached [para 92–97];
iv) The delay in commissioning the investigation breaches the requirement of reasonable promptness [para 100–104];
v) No or no adequate financial provision is made or proposed for legal representation of SP during the investigation [para 107–110].
The paragraph references within the square brackets above are to my conclusions set out later in this judgment.
There have been two investigations commissioned by the Secretary of State for Justice and his predecessor the Secretary of State for the Home Department. The first came to a halt upon the withdrawal of the investigator. The present dispute arises from the commission of the second investigation and the terms the Secretary of State seeks to impose upon the investigator's terms of reference. It is necessary for me to explore the procedural history in some detail.
Factual Background
Custodial sentence
SP was born on 4 September 1986. Following a troubled and seriously disadvantaged childhood she was made the subject of a full care order on 4 March 2003. She was then aged 16. On 16 December 2003, together with her co-accused, she pleaded guilty to the kidnap and assault of another young person. She was sentenced to 5 years detention to be served in a young offender institution. SP commenced her sentence at HMP/YOI New Hall where she remained until 9 December 2004. On 7 August 2005 she was moved to HMP/YOI Low Newton. On 7 August 2005 SP was returned to HMP/YOI New Hall. On 27 September 2005 she was transferred to Rampton Special Hospital. Although her automatic release date passed in June 2008 SP remains detained under the Mental Health Act 1983.
Before and during her custodial sentence SP self harmed. Following her detention she became a danger to herself and others. She was placed in segregation where her condition deteriorated. The determination with which she inflicted wounds upon herself, and re-opened and inserted objects into her wounds is documented in the prison records some of which I have seen. She required transfers to hospital for blood transfusion. Her life became a cycle of serious self harm followed by hospital treatment and return to custodial conditions. On 14 September 2005 while SP was being treated at Pinderfields Hospital in Wakefield for life threatening, self inflicted injuries she obtained an injunction preventing her return to the prison estate. On 27 September 2005 SP was transferred under section 47 Mental Health Act 1983 to Rampton Special Hospital. She is diagnosed as suffering psychopathic disorder and personality disorder.
Request by Howard League for Investigation
The Howard League for Penal Reform (“HL”) acted for the claimant when she obtained the court's preventative order. On 28 October 2005 the Director, Frances Crook, wrote to the then Secretary of State for the Home Department (“SSHD”) pointing out the duties of the state under Articles 2 and 3 ECHR. Her letter concluded:
“As we have seen in the present case our client was hospitalised on at least 20 occasions while in custody between Sept 03 – Sept 05. On many of these occasions her life was in danger. The real danger we submit gives rise to the investigate [sic] obligations placed upon the state to investigate the circumstances of our client's repeated self-harm. A further imperative for such an investigation is the failure of the state to respond appropriately to the serious mental health problems that our client has had throughout her life, exacerbated we contend by her time in custody, and which were not treated appropriately. In all the circumstances we therefore contend that the SOS is obliged to hold a full public investigation into the treatment of our client between Sept 03 – Sept 05 while in custody.”
No reply having been received a letter before claim was written on 31 March 2006. Advice from counsel was sought by the SSHD in April. On 24 August 2006, following communication directly between the Director and the SSHD, a letter of confirmation was sent to HL in the following terms:
“I write to inform you that the Secretary of State for the Home Department has agreed to hold an Article 2 ECHR compliant investigation into the case of [SP]. The investigation will be chaired by the Prison and Probation Ombudsman, Mr Stephen Shaw, and will meet the procedural obligations required by Article 2 of the ECHR. The precise Terms of Reference, on which you will be consulted, will be set by Stephen Shaw but will broadly consider the care and treatment of [SP] whilst in custody at HMP/YOIs New Hall and Low Newton between 2003–2005 and her transfer to Rampton Secure Hospital…
the appropriate scope of this investigation will be determined by the PPO in due course as the independent chair…”
Commission and Conduct of First Investigation
On 28 April 2005 Munby J gave judgment in R (on the application of D) v. SSHD [2005] EWHC 728 (Admin) in which he identified the features of an investigation required to meet the duties of the state under Article 2 where, as in D's case, a near death by hanging had taken place in prison. On 28 February 2006 the Court of Appeal ([2006] 3 All ER 946; [2006] EWCA Civ 143) dismissed the SSHD's appeal with the exception that the Court found the investigation did not require a right for D's representatives to cross examine witnesses. They were entitled (paragraph 42),
“to see the written evidence, to be present during oral evidence and to make appropriate submissions, including submissions as to what lines of inquiry should be adopted, what questions asked and, indeed, who should be permitted to ask questions about what. As just stated, it will be a matter for the chairman to decide what procedure to adopt…It will, for example, meet the requirement identified in Jordan v UK (2001) 11 BHRC 1 at 31 (para 109) and Edwards v UK (2002) 12 BHRC 190 at 211 (para 73) that there must be involvement of D's representatives 'to the extent necessary to safeguard his or her legitimate interests'.”
Thus, on 12 September 2006 the Director of HL wrote to the investigator, Mr Shaw, Prisons and Probation Ombudsman (“PPO”), making representations based upon D upon the form of the investigation into SP's case. She asserted that:
“your inquiry into [SP's] case must include, among other things:
i) The inquiry must be held in public, save where there are Convention compatible reasons to hear the evidence of a particular witness, or other parts of the hearing in private
ii) The inquiry must be capable of exercising a power to compel the attendance of witnesses
iii) Subject to i) above, [SP's] representative must be able to attend at public hearings of the inquiry and put questions to the witnesses in person
iv) Her representatives must be given reasonable access to all relevant evidence in advance
v) Adequate funding for [SP's] representative must be made available without inappropriate conditions attached, and the funding must be at such a level as to allow her to be involved in the investigation procedure to the extent necessary to satisfy his [sic] legitimate interests.”
A meeting was held with the PPO on 22 September. On 13 October HL wrote to the Treasury Solicitor seeking the enlargement of the terms of reference for the investigation. In order that “all agencies” should learn from the events leading to the inquiry it was suggested that the investigation should include:
“1. The role of her local authority (Cheshire County Council) in relation to events leading up to and during her incarceration and their duties towards her as a “child in need”, “child at risk” and child in care, and
2. The role of the primary care trust and mental health trust in her home area, in addition to the role of each primary care trust (e.g. Pinderfield's Hospital, Wakefield) and mental health trust connected to the prisons, covering pre-, during and post custody, and
3. The prison service and Youth Justice Board during her time in custody.”
On 13 November 2006 the Treasury Solicitor, on behalf of the SSHD, wrote to Mr Shaw a commissioning letter. It was pointed out that following the observations of Arden LJ in Scholes v SSHD [2006] EWCA Civ 1343 wider questions of sentencing policy and the allocation of resources were for government and outside the scope of an Article 2 inquiry. The issues to be considered by the PPO were:
“1. The...
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