Joint Committee On Human Rights Third Report

2 Human rights standards and deaths in custody

The European Convention of Human Rights

16. Every unnatural death in custody presents a human rights issue. In this report, we examine the problem of deaths in custody in light of the human rights obligations of the institutions which compulsorily detain people, and those which investigate deaths of people who are so detained. These institutions are subject to a number of obligations. Under the Human Rights Act 1998, the police and prison service are "public authorities" with obligations to comply with rights under the European Convention on Human Rights, including the right to life.[2] Private contractors operating prisons, immigration removal centres and mental health detention facilities are also considered to be public authorities when exercising powers of detention delegated to them by the state, and are therefore also required to comply with Convention rights. In international law, the state, in protecting people in its custody and in investigating deaths, has obligations to comply with international standards, including those under the European Convention on Human Rights, and United Nations human rights treaties.

17. Article 2 ECHR establishes the right to life, the most fundamental of the Convention rights, and a core protection against deaths in custody. It provides—

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 this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary—

a. in defence of any person from unlawful violence

b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or insurrection

18. A number of other Convention rights are also important in protecting against ill-treatment that may lead to deaths in custody. Article 3 provides—

    No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

19. Article 8 also protects against physical ill-treatment or neglect which may not attain the severity of treatment which would be contrary to Article 3. It provides—

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society. …

The right to respect for private life has been interpreted by the European Court of Human Rights as including a right to physical integrity.

20. The Convention also protects against unjustified discrimination in the way in which other Convention rights are protected. Article 14 provides—

    The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground …

The International Framework

21. In addition to the ECHR rights taking effect in UK law under the Human Rights Act, a number of other international human rights instruments, as well as non-binding standards and guidelines, are of particular relevance to the protection of rights in prisons.

22. The International Covenant on Civil and Political Rights (ICCPR) states in Article 10 that all detained persons are to be treated with humanity and respect for their dignity. The United Nations Convention on the Rights of the Child (CRC) repeats this principle in Article 37, and adds that " Every child deprived of liberty shall be treated … in a manner which takes into account the needs of persons of his or her age".[3]

23. The UN Convention Against Torture requires states to "keep under systematic review … arrangements for the custody and treatment of persons subject to any form of arrest, detention, or imprisonment … with a view to preventing any cases of torture"[4] and preventing cruel, inhuman or degrading treatment.[5]

24. A number of United Nations "soft law" standards set out comprehensive rules for the treatment of prisoners. These include the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 1988; the UN Standard Minimum Rules for the Treatment of Prisoners 1977; and the UN Basic Rules for the Protection of Juveniles deprived of their Liberty 1990. The UN Basic Principles for the Treatment of Prisoners 1990 state amongst other things that—

1. All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.

9. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. [6]

The right to life: Article 2 ECHR

25. The standard against which law and practice in preventing and investigating deaths in custody must be measured is Article 2 ECHR, as interpreted in the case-law of the European Court of Human Rights. Crucially, Article 2 imposes on States, not only a negative duty not to take life intentionally or negligently, but also a positive duty to safeguard life. The Article 2 negative duty not to deprive an individual of life may be breached by excessive or unnecessary use of force against a detainee. It may also be breached as a result of systemic failings which fail to provide adequate procedures or adequately trained or qualified staff, to ensure safety.

26. The positive duty has two aspects. First, it places positive obligations on the detaining authorities to take steps to protect individuals whose lives are known, or should be known, to be at risk. Second, it requires the police, Coroners, the Crown Prosecution Service and other investigating bodies to ensure that deaths in custody are appropriately investigated.

27. The Article 2 positive obligation to protect life arises wherever the authorities know or ought to know of a real and immediate risk to the life of a particular person or group of people.[7] Article 2 is breached if, in these circumstances, the responsible authorities fail to take reasonable measures within the scope of their powers to avert the risk.[8] Where there is a threat to the life of someone in the custody of the state, there is a heightened responsibility to provide protection.[9] The case-law makes clear that the positive obligation arises where the threat to life comes from a third party, such as a cell-mate,[10] or the detained person themselves.[11] Where a death does occur in state custody, the burden is on the detaining authorities to provide a satisfactory and convincing explanation for the death. In the absence of such explanation, Article 2 is breached.[12]

28. The Article 2 obligation to protect life is not an unlimited one, however. In particular, where a detainee takes their own life, Article 2 will be breached only where it can be shown that the authorities knew or ought to have known that the detainee posed a real risk of suicide. Where the authorities have taken reasonable steps to protect a detainee, having regard to the nature of the risk of suicide, or where there are no indications that a detainee is at risk of suicide, the death will not result in a breach of Article 2.[13]

Article 2 privacy and autonomy

29. The duty to protect the right to life under Article 2 must be viewed in the context of the ECHR as a whole, and of the other human rights standards it guarantees. In particular, the Article 2 positive duty will not justify extreme or disproportionate measures of control intended to deprive the individual of any opportunity to self-harm. In Keenan v UK, the European Court of Human Rights set out the principle that—

30. This affirms the principle of proportionality, which requires that measures which interfere with the right to respect for private life, personal autonomy and physical integrity, must be confined to those necessary to achieve the legitimate aim of protecting a detainee from self-harm, and must be appropriate to the particular circumstances of the individual case. Blanket measures which for example apply intrusive surveillance, or require the removal of items of clothing, for large groups of detainees, may amount to disproportionate interferences with the right to respect for private life under Article 8 ECHR, where they cannot be justified as necessary and proportionate measures to protect an individual detainee from a risk of suicide or self-harm.

31. The need to protect the right to life within a culture of respect for all of the Convention rights, including the right to respect for private life and personal autonomy under Article 8, therefore embraces an emphasis on "relational" security—established through the environment of detention, access to necessary support and healthcare, and supportive relationships with staff—rather than on a more narrow "physical" security which is confined to removal of the means for self-harm, and surveillance of detainees at risk. It also puts a premium on effective risk assessment of each person detained, so that measures taken can be tailored to that person's individual needs.

Article 2 and the duty to investigate

32. Article 2 also places a positive duty on the state to investigate following any death in state custody, whether or not involving agents of the State (Edwards v UK). In order to satisfy Article 2, the investigation must be effective. The ECtHR has held that it must be—

—  on the state's own initiative (e.g. not civil proceedings);

—  independent, both institutionally and in practice;

—  capable of leading to a determination of responsibility and the punishment of those responsible;

—  prompt;

—  allow for sufficient public scrutiny to ensure accountability;

—  allow the next of kin to participate. [15]

These principles have now been approved by the House of Lords in the case of ex parte Amin (the Zahid Mubarek case).[16] Their application in the UK system is discussed further in Chapter 10. For present purposes, however, it is important to point out that the House of Lords in Amin was unanimous in rejecting the Government's argument, successful before the Court of Appeal, that "an allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said the state has laid on lethal hands." The Court of Appeal had held that in cases where a death was due to systemic neglect, the "minimum requirements" of the procedural obligation could be applied more flexibly. The House of Lords adjudged that to be directly contrary to the decision of the Court of Human Rights in Edwards v UK. It held that systemic failures leading to deaths called for even greater scrutiny. Lord Bingham, for example, said "a systemic failure to protect the lives of persons detained in custody may well call for even more anxious consideration and raise even more intractable problems".[17]

Article 14 discrimination and Article 2

33. Article 14 requires particular sensitivity and attention to questions of racial prejudice in an Article 2 investigation. This sensitivity must take account of the complex range of racist attitudes and behaviour, including prejudice against those of Irish descent and members of the Gypsy and Traveller community. Since ethnically motivated killings may be particularly pernicious in undermining democratic societies they require "particular vigilance and an effective response from the authorities".[18] In terms of the investigation into a death in which state agents may be implicated, this means that there is an additional duty to take all reasonable steps to unmask any racist motive.[19] In particular, any evidence of racist verbal abuse by law enforcement agents in an operation involving the use of force must be fully investigated.[20] Where evidence of possible racist motivation is not pursued in a state investigation, then the Strasbourg Court will place the burden of proof on the state to establish that the death did not arise from discriminatory motives of state agents.[21]

34. The Court has expressly left open the possibility that a use of force may be considered as discriminatory on the basis of evidence of its disproportionate impact on a particular group even where it is not specifically directed at that group. Nevertheless statistics alone, which appear to show that one section of the population are disproportionately affected, cannot establish discrimination.[22]

Article 3 Freedom from inhuman or degrading treatment

35. The Article 3 protection against inhuman and degrading treatment and torture applies with particular stringency in the context of detention. There is a presumption that, where a person in custody is subjected to treatment considered to be in breach of Article 3, responsibility for the treatment can be attributed to the State.[23] Furthermore, any use of physical force against a person in detention is presumed to breach Article 3, unless it can be shown to be strictly necessary.[24] The use of control and restraint, in particular where it leads to the death of a detainee, may breach Article 3.[25]

36. Inadequate medical, mental health or drug detoxification treatment leading to the death of a detainee may breach Article 3.[26] In Keenan v UK,[27] the suicide in custody of a mentally ill prisoner was found to result, not in a breach of Article 2, but of breach of Article 3 by reason of neglect. There had been a lack of monitoring of the prisoner's condition and of sufficient psychiatric assessment, and he had been inappropriately detained in segregation in a punishment block.[28]

37. Article 3 is also relevant to the conditions which may form the background to some self-inflicted deaths in custody. Unsatisfactory prison conditions may give rise to breaches of Article 3. In Napier v Scottish Ministers,[29] a breach of Article 3 was found where a remand prisoner was held in a cell without a toilet, and confined in a cell for very long periods with inadequate lighting, space and ventilation. Whether conditions are adequate may depend on the particular physical or mental condition of the detainee. In Price v UK,[30] for example, it was held that detaining a severely physically disabled woman in prison conditions unsuited to her needs breached Article 3.

2   Human Rights Act 1998 Section 6 Back

3   We have already commented on issues arising from juvenile detention in our Tenth Report of Session 2002-03, The UN Convention on the Rights of the Child, HL Paper 117, HC 81 Back

4   Article 11 Back

5   Article 16 Back

6   General Assembly resolution 45/111 of 14 December 1990 Back

7   Osman v UK (2000) 29 EHRR 245 Back

8   Edwards v UK (2002) 35 EHRR 19; Anguelova v Bulgaria, App. No 38361/97, 13/06/2002 Back

9   Salman v Turkey (2002) 34 EHRR 17 Back

10   Edwards v UK, op cit.; R (on the application of Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] HRLR 3, in which the House of Lords observed (Lord Bingham at para. 21) that the case of Edwards was important because in it the European Court of Human Rights for the first time applied to a case of negligent failure to protect the life of a prisoner the same principles as it had developed in the context of killing by state agents. Back

11   Keenan v UK (2001) 33 EHRR 913, in which the European Court of Human Rights recognised for the first time, at paras 89-92, that a positive obligation under Article 2 may arise "where the risk to a person derives from self-harm." Back

12   Anguelova v Bulgaria, op cit Back

13   Keenan v UK (2001) 33 EHRR 38 paras. 92-101 Back

14   ibid.,para.91 Back

15   Jordan v UK (2003) 37 EHRR 2 Back

16   [2003] UKHL 51, [2004] HRLR 3. See Chapter 10 Inquiries into Deaths in Custody Back

17   [2003] UKHL 51, para. 21. See also Lord Steyn at para 50 "… the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners." and Lord Hope at para 62 "… failures by the prison service which lead to a prisoner's death at the hands of another prisoner are no less demanding of investigation, and of 'the widest exposure possible', than lethal acts which state agents have deliberately perpetrated. Indeed there is a strong case for saying that an even more rigorous investigation is needed if those who are responsible for such failures are to be identified and made accountable and the right to life is to be protected by subjecting the system itself to effective public scrutiny." Back

18   Nachova v Bulgaria App Nos 43577/98 and 43579/98 para. 155 Back

19   ibid., para. 158 Back

20   ibid., para. 162 Back

21   ibid., para. 171 Back

22   Jordan v UK, (2003) 37 EHRR 2 para. 154 Back

23   Tomassi v France [1993] 15 EHRR 1 Back

24   Keenan v UK, op cit. Back

25   Herczegfalvy v Austria (1993) 15 EHRR 437. See Chapter 8 Physical Restraint and Seclusion Back

26   McGlinchey v UK App No 50390/99 29/04/2003. See Chapter 6 Physical Healthcare Back

27   [2001] 33 EHRR 38 Back

28   The UN Human Rights Committee found prison conditions to amount to inhuman treatment in Estrella v Uruguay, Application 79/1980. Back

29   The Times, 15 November 2001 (Court of Session, Outer House) Back

30   App No 33394/96, 10/7/2001 Back

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