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Judgments - R (On The Application of JL) v Secretary of State For Justice


SESSION 2007-08

[2008] UKHL 68

on appeal from: [2007] EWCA Civ 767




R (on the application of JL) (Respondent) v Secretary of State for Justice (Appellant)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

Lord Mance



Nigel Giffin QC

Philip Sales QC

Cecilia Ivimy

(Instructed by Treasury Solicitors)


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)

Hearing dates:

6 and 7 OCTOBER 2008






R (on the application of JL) (Respondent) v Secretary of State for Justice (Appellant)

[2008] UKHL 68


My Lords,

1.  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.

2.  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.

3.  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".

4.  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

5.  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.”

6.  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.

7.  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.

8.  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.

9.  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)

10.  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".

11.  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.

12.  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.

13.  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:

i)  The same principles apply where a suicide or a near-suicide takes place in prison. A near-suicide is one that nearly succeeds and leaves the prisoner with serious injuries.

ii)  Where a suicide or a near-suicide takes place in prison the relevant facts must first be considered by the prison authorities in order to determine whether there is an arguable case that there has been a breach of the substantive duty imposed on the State by article 2 to protect life.

iii)  If there is no such arguable case no further investigation is required.

iv)  If it is arguable that there has been a breach of the duty imposed by article 2 to protect life, there must then be an independent investigation. The nature of that investigation will depend upon the particular facts. There will not necessarily be the need for a D type investigation. In all but exceptional cases an independent investigation into the circumstances in which the suicide or near-suicide took place, which is prompt and effective and involves to an appropriate extent the relatives of the prisoner in the case of suicide, or the prisoner and his representatives in the case of a near-suicide, with the results made known to them, will be sufficient to comply with article 2.

14.  It is thus common ground between the parties that, where a suicide or near-suicide takes place in prison, there must be an initial investigation of the facts and that this may give rise to the requirement for a further investigation. The issues between the parties are as follows:

i)  Must the initial investigation be independent or can it be carried out by the prison authorities themselves?

ii)  Must a further investigation be held whenever it is not plain from the initial investigation that the State or its agents bear no responsibility for the near-suicide or only where the initial investigation demonstrates that there is an arguable case that the State was at fault?

iii)  Where a further investigation is required, must this necessarily be a D type investigation.

15.  My Lords, I share the reservations of the courts below as to how far it is possible to give definitive guidance that will apply to every case of near-suicide in prison. The resource implications of the issues are, however, considerable and I believe that it is possible to identify certain principles that will normally apply to such cases. I propose to confine my remarks to the situation where a prisoner’s attempt at suicide (i) comes close to success and (ii) leaves the prisoner with the possibility of serious long term injury. Thus I shall be considering the case where there is a victim whose interests have to be considered.

The nature of a D type investigation

16.  The facts in D bear similarity to those of the present case in that the applicant sustained severe brain damage as the result of a near-successful attempt to hang himself in his cell. As in this case a Senior Investigating Officer in the Prison Service carried out an investigation. The Secretary of State had accepted that a further investigation was required and had instructed Mr Stephen Shaw, the Prisons and Probation Ombudsman to conduct this. The applicant contended, however, that the procedure that it was proposed that Mr Shaw should follow would not satisfy the requirements of article 2 and brought judicial review proceedings in which he claimed “a full and effective investigation into the circumstances of” his attempted suicide.

17.  D was dissatisfied with the aspects of the proposed investigation which included the following:

i)  It would not be held in public, although the report would be made public when completed;

ii)  Mr Shaw would not have the power to compel witnesses;

iii)  D’s representatives would not be able to attend the questioning of witnesses or to require questions to be put to witnesses.

Munby J granted the application and made the following declaration:

“(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, if this becomes necessary for the inquiry to be effective, and this power must be capable of being exercised without undue delay. (iii) Subject to (i) above, D’s representative must be able to attend at public hearings of the inquiry and put questions to witnesses in person. (iv) D’s representative must be given reasonable access to all relevant evidence in advance. (v) Adequate funding for D’s representative must be made available”

The Court of Appeal upheld Munby J’s order, save that they held that the judge went too far in holding that D’s representatives should be entitled to cross-examine witnesses at the public inquiry. It sufficed that they should be entitled to attend the inquiry and make representations as to the matters about which the witnesses should be examined.

The regime where there is a suicide in prison

18.  Where a death occurs in prison section 8(3) of the Coroners Act 1988 requires the coroner to conduct an inquest with a jury. It is also the practice of the Prisons and Probation Ombudsman for England and Wales to carry out an investigation into the death. The Coroner will consider his report in order to assist him to decide whether there are issues in relation to the conduct of the prison authorities that he will wish to be covered by the jury’s verdict in accordance with the procedure laid down by your Lordship’s House in R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182. The Coroner has the power to summon witnesses. Under the Coroners Rules 1984 notice of the inquest must be given to the next of kin who are entitled to examine witnesses. Inquests are open to the public and the verdict is given in public.

19.  It is common ground that this regime satisfies the obligations imposed by article 2 where a suicide takes place in prison. It has also been common ground that article 2 imposes no more stringent obligations in relation to the investigation of a near-suicide than it imposes in relation to the investigation of a successful suicide. No one has submitted that a near-suicide necessarily requires an investigation that has all the attributes of an inquest. It follows that it is implicit in the submissions made to us, and Mr Giffin confirmed this, that the investigation that takes place in the case of a suicide will, in some cases at least, do more than is necessary to satisfy the requirements of article 2.

20.  I am not persuaded that it is correct to proceed on the premise that the requirements of article 2 in respect of investigation are identical in the case of a suicide and a near-suicide. In this jurisdiction the law has always treated death as a matter of particularly grave concern. There is, I believe, justification for a regime that imposes requirements as to investigation where a death occurs that do not apply automatically in other circumstances. At all events it is not helpful to approach the requirements of article 2 in relation to a near-suicide by reference to the existing domestic requirements where an actual suicide occurs.

The reasons why article 2 requires an investigation

21.  It is fundamental to the Secretary of State’s case that the reason why article 2 requires an investigation into a near-suicide in prison is to secure the accountability of agents of the State in respect of possible breaches of the substantive obligations imposed by that article. Thus, so Mr Giffin argues, if the State can show that there is no arguable case of such a breach, there is no requirement for an investigation. These submissions receive some support from the decided cases, both at Strasbourg and in this jurisdiction, and it is time to consider these insofar as they bear on this question.

22.  Article 2(1) provides:

“Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally…”

This article imposes (1) a duty to refrain from the intentional and unlawful taking of life and (2) an obligation to take positive steps to protect the right to life of those living within the jurisdiction of the State - see Osman v United Kingdom (1998) 29 EHRR 245. In McCann v United Kingdom (1995) 21 EHRR 97, the Strasbourg Court recognised for the first time that article 2 imposed by implication a third obligation, namely a duty to carry out an effective official investigation, held in that case to apply “when individuals have been killed as a result of the use of force by, inter alios, agents of the State” (para 161).

23.  Since then the Strasbourg Court has, on numerous occasions, considered the obligation imposed by article 2 to hold an investigation, which has sometimes been described as a procedural obligation. It has, however, always done so in circumstances where the applicants’ primary complaint has been of a substantive breach of the Convention. The allegation of a failure to investigate has always been an ancillary allegation of the alleged substantive breach.

24.  In Jordan v United Kingdom (2001) 37 EHRR 52 the applicant complained that his son had been unjustifiably shot and killed by a police officer. He also claimed that there had been no effective investigation into or redress for his death. In considering the latter claim, which succeeded, the Court said this about the purpose of such an investigation:

“The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.” (para 105)

The words that I have emphasised demonstrate that the objects of an investigation go beyond ensuring accountability of State agents.

25.  In Edwards v United Kingdom (2002) 35 EHRR 487 the applicant, whose son had been killed by a fellow prisoner, contended that the authorities had failed to protect his life and had further failed to carry out an investigation into his death that was effective. The Court used the same language in this context to describe the objects of the necessary investigation.

26.  The duty to investigate imposed by article 2 can arise even where there is no question of any direct involvement of a State agent. In Menson v United Kingdom (2003) 37 EHRR CD220 a black man was killed as a result of being set on fire by assailants during a racist attack. The Court held that in such circumstances there was an obligation for “some form of effective official investigation", adding:

“Where death results, as in Michael Menson’s case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life.”

It seems to me that the obligation to have an investigation in circumstances such as these is not so much a secondary procedural obligation but rather part of the positive obligation, also noted by the Court, to have in place

“effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.”

27.  Menson was cited by Lord Bingham of Cornhill in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653. He expressed the following conclusion at para 31:

“The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred….The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others".

28.  Lord Bingham returned to this theme in R (Gentle) v Prime Minister [2008] UKHL 20; [2008] 2 WLR 879. He first referred to the substantive obligations imposed by article 2: the obligation not to take life without justification and the obligation to take measures to protect life. Lord Bingham then proceeded to consider the nature of what he described as a procedural obligation that supplemented the substantive obligations

“'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 Middleton para 3]…This procedural duty does not derive from the express terms of article 2, but was no doubt implied in order to make sure that the substantive right was effective in practice…It is clear … that the procedural obligation under article 2 is parasitic upon the existence of the substantive right, and cannot exist independently. Thus to make good their procedural right to the inquiry they seek the claimants must show, as they accept, at least an arguable case that the substantive right arises on the facts…article 2 not only prohibits the unjustified taking of life by the state and its agents, but also requires a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. In either case the question whether the state unjustifiably took life or failed to protect it will arise in respect of a particular deceased person.”