(back to preceding text)

29.  These observations were directed to the obligation imposed by article 2 to hold a public investigation. They should not be read as suggesting that the State never has a duty to carry out an investigation into a life-threatening incident unless there is reason to believe that it may demonstrate that State agents have failed to perform the substantive obligations imposed by article 2. Still less do they support an argument that the only object of such an investigation is to ascertain whether or not State agents have been in breach of duty. The investigation will be concerned to see what lessons can be learned for the future, whether or not there has been fault in the particular case. In Amin Lord Slynn of Hadley remarked:

“The result of ‘an incident waiting to happen’ may just as much as an actual killing require detailed and profound investigation, though in some cases the procedure to be adopted may be justifiably different.” (para 41).

Many activities today carry with them so great a risk to life that the duty of the State to put in place “a framework of laws, procedures and means of enforcement” will include a duty to require investigations of one form or another to be carried out in the event of a mishap, even if this does not actually result in loss of life. The investigations will not necessarily be independent or held in public. Requirements for such investigations can readily be found in the regulations governing carriage by rail, sea and air and in regulations governing health and safety at work. The primary purpose of such investigations is to learn lessons for the future.

30.  It was for this reason that, in the present case, Langstaff J rejected the Secretary of State’s submission that the function of the investigative obligation imposed by article 2 was simply to secure the accountability of those agents of the State who might be said to be at fault. He said:

“So far as accountability is concerned, where a person is compelled by the coercive power of the State to be and remain in prison there is a duty to account for his physical integrity which rests not simply upon the civil or criminal law, nor just upon State agents, but upon the State itself. Where the complaint may be made that a person knew or ought to have known of a potential risk to life, it is easy to hold him or her accountable. Where, however, the system itself holds risks which are not apparent (and which may be revealed for the first time by a life threatening injury), no one person may be held accountable. However, the lessons of history must be learned. The State needs not simply to hold individuals accountable, but to learn of potential systemic problems.”

31.  The duty to investigate imposed by article 2 covers a very wide spectrum. Different circumstances will trigger the need for different types of investigation with different characteristics. The Strasbourg court has emphasised the need for flexibility and the fact that it is for the individual State to decide how to give effect to the positive obligations imposed by article 2. In this jurisdiction every death calls for a certificate of the cause of death from a doctor or a coroner. In specified circumstances an inquest is required. These include where there is reasonable cause to suspect that the deceased died a violent or unnatural death, that the death was sudden and the cause unknown, or where the death occurred in prison. In further specified circumstances the inquest must be conducted with a jury. I have already described the nature of such an inquest where the death in prison was caused by suicide. Thus death requires a spectrum of different types of investigation, depending upon the circumstances of the particular case. This regime is part of the way in which the United Kingdom gives effect to the obligations of article 2. The regime makes no provision for a near-death from suicide. This appeal raises the question of how such an event is to be accommodated within the spectrum.

32.  It is common ground, and obviously correct, that where a prisoner attempts to commit suicide in prison, nearly succeeds and causes himself serious injury in the attempt, some investigation of the surrounding facts is necessary. The Secretary of State contends that the initial investigation can be internal and that, unless it shows that there is an arguable case that the prison authorities were at fault in permitting the suicide attempt to occur, there will be no need for any further investigation. JL and the intervener contend that article 2 requires that, from the outset, the investigation must be carried out by a person independent of the prison authorities.

33.  Waller LJ was in no doubt that a near-death in custody ipso facto meant that the State was obliged to conduct an “enhanced type of investigation” and that this called for the commencement of the investigation “by a person independent of those implicated in the facts". His conclusion was based in part upon an analysis of the Strasbourg and domestic authorities, to a number of which I have already referred. So far as the former were concerned, he referred to:

i)  McCann where the Court said that there must be some form of effective investigation when individuals have been killed as a result of the use of force by inter alios agents of the State;

ii)  Jordan where the Court repeated this, but without reference to killing by agents of the State;

iii)  Edwards where the obligation was said to arise because the deceased was “a prisoner under the care and responsibility of the authorities” when he was killed by acts of violence by another prisoner;

iv)  Menson, where it was not suggested that agents of the State were directly at fault but where the obligation arose because there was “reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances";

iv)  Salman v Turkey (2000) 34 EHRR 425, where the Court said in relation to a death in police custody:

“…the mere fact that the authorities were informed of the death in custody of Agit Salman gave rise ipso facto to an obligation under article 2 to carry out an effective investigation into the circumstances surrounding the death.”

34.  So far as domestic authorities are concerned, Waller LJ relied particularly on Amin as establishing that the mere fact of a death in custody gave rise to an obligation on the part of the State to account for that death. He observed that the decision of your Lordships’ House in that case gave no support for the proposition that there was an additional requirement for an arguable case of fault on the part of the State before the obligation to put in train an investigation arose.

35.  Waller LJ considered that these decisions were applicable to a near-suicide of a prisoner in custody, so as to impose an automatic requirement to initiate an “enhanced investigation” into such an event. The Strasbourg Court has repeatedly made plain the essential ingredients of such an investigation. In Amin at para 22 Lord Bingham cited those ingredients as spelt out by the Strasbourg Court in Edwards. I can summarise them as follows:

i)  The investigation must be initiated by the State itself;

ii)  The investigation must be prompt and carried out with reasonable expedition;

iii)  The investigation must be effective;

iv)  The investigation must be carried out by a person who is independent of those implicated in the events being investigated;

v)  There must be a sufficient element of public scrutiny of the investigation or its results;

vi)  The next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.

36.  Waller LJ had regard to the fourth of these ingredients when he postulated that the commencement of the investigation had to be carried out by a person independent of those implicated in the facts. He then moved to consider the circumstances in which there would be a need for “some further inquiry in the nature of a public hearing in which the next of kin or injured party can play a part". Earlier he had spoken of the possibility of there being a series of triggers of the duty to investigate.

37.  My conclusions in relation to the initial investigation that must follow a near-suicide in custody are as follows:

i)  A near-suicide of a prisoner in custody that leaves the prisoner with the possibility of a serious long term injury automatically triggers an obligation on the State under article 2 to institute an enhanced investigation.

ii)  That obligation cannot be discharged, or removed, by an internal investigation of the facts.

iii)  In some circumstances an initial investigation will satisfy the requirements of article 2. In others a further investigation will be necessary, which may well require to be a D type public inquiry.

38.  The following are my reasons for concluding that a near-suicide that results in serious injury triggers the requirement for an enhanced investigation. The positive duty on the State to protect life has particular application in relation to the risk of suicide by prisoners. Those who are imprisoned pose a particularly high suicide risk. Grim statistics of suicide in prison were quoted by Lord Bingham in Middleton at para 5. Your Lordships were informed by the Secretary of State that it is estimated that there are up to about 150 cases each year where resuscitation may have been necessary following serious suicide attempts which do not in fact succeed. In 2006 there were 874 incidents of self-harm which were recorded as involving one or more of the following factors: hanging, resuscitation and hospitalisation with life-support. These unhappy statistics reflect the mental stresses that result from being placed in custody and the fact that the majority of those who are imprisoned suffer from some form of mental disorder or disability.

39.  Article 2 places on the prison authorities a positive duty to take reasonable care for the safety of those in custody and, in particular, to take reasonable steps to ensure that they do not commit suicide - see Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. Discharge of this duty requires the putting in place of systemic precautions against suicide in prison. A description of this country’s response to this need was given by Lord Hope of Craighead in R (Sacker) v West Yorkshire Coroner [2004] UKHL 11; [2004] 1WLR 796 at paras 4 to 12.

40.  Where, despite these precautions, a suicide takes place an investigation is required for the reasons given in that case by Lord Hope at para 11:

“There is a high level of awareness, and much effort has been devoted to improving the system for the prevention of suicides. But every time one occurs in a prison the effectiveness of the system is called into question. So all the facts surrounding every suicide must be thoroughly, impartially and carefully investigated. The purpose of the investigation is to open up the circumstances of the death to public scrutiny. This ensures that those who were at fault will be made accountable for their actions. But it also has a vital part to play in the correction of mistakes and the search for improvements. There must be a rigorous examination in public of the operation at every level of the systems and procedures which are designed to prevent self-harm and to save lives.”

41.  A suicide attempt that does not succeed but that results in serious injury is a matter of public concern, albeit not usually of such serious concern as where the attempt succeeds. The reasons why a successful suicide requires an investigation also apply in this situation. They require an enhanced investigation, albeit not necessarily a public inquiry.

42.  There are two reasons why an internal investigation that does not disclose an arguable case of fault on the part of State authorities will not preclude the need for an enhanced investigation. The first is that, as I have shown, the object of the investigation goes beyond determination of whether or not the State authorities were at fault. The second reason is as follows. The scope of an investigation into a near-suicide will normally be considerable. It will involve consideration of what was known, or should have been known, of the risk that the prisoner might commit suicide and an investigation of whether the prison procedures against suicide risk were appropriate and properly implemented. One object of the investigation will be to call on the prison service to account for something that appears to have gone seriously wrong. If the investigation is to be and to be seen to be impartial, it is essential that it should be carried out by a person who is independent of those involved.

43.  Whether or not a further investigation is necessary will depend not merely upon whether the initial investigation is independent, but upon whether it satisfies all the requirements of an enhanced investigation. The initial investigation should be prompt, so that the facts are investigated while the evidence is still fresh and the material witnesses are readily available to be questioned. If all such witnesses give their evidence readily, the course of events appears clear and the circumstances in which the attempted suicide took place are shown to involve neither a possible defect in the system for preventing suicide nor a possible shortcoming on the part of any one in operating that system, the initial investigation may satisfy the requirement of efficacy without the need for further inquiry. In that event, if the prisoner who attempted to commit suicide or his representatives are appropriately involved in the investigation and a report of the investigation is published, the other requirements of an enhanced investigation may be satisfied.

44.  It is desirable that the initial investigation should be sufficiently rigorous to satisfy the requirements of an enhanced investigation where this is possible. A D type investigation will necessarily be more protracted and expensive. In Edwards, where the Court held that the requirements of expedition were satisfied, the death in prison occurred in November 1994, the decision to hold an Inquiry was taken in July 1995, proceedings opened in May 1996 and the report of the Inquiry was published in June 1998.

45.  There will, however, be circumstances in which the initial investigation will not be adequate to satisfy article 2 and where a D type investigation is required. The public interest may itself require this. In Edwards the Court remarked that the manner in which the deceased lost his life was so horrendous that the public interest in the issues thrown up called for the widest exposure possible. The need for an efficacious investigation may require this. If witnesses refuse to give evidence then it may be necessary to request the Minister to convert the investigation into a public inquiry under the Inquiries Act 2005. Where the initial investigation discloses serious conflicts of evidence a D type investigation may be called for. There will be other circumstances in which the person carrying out the initial investigation will decide to recommend a D type investigation. It is also possible to conceive of circumstances in which the independent investigator identifies some area that requires further investigation without the need for a full D type public inquiry. I do not believe that it would be appropriate for your Lordships to attempt to prescribe the circumstances in which a D type investigation will be necessary to satisfy article 2.

46.  As one would expect, the Prison Service has put in place in the form of Prison Service Orders directions in relation to the investigations that should be carried out into untoward incidents. PSO 1300, issued on 19 June 1993 and updated on 25 July 2005 provides:

“1.6 Formal Investigation.

1.6.1 A formal investigation will be necessary if, from the findings of a simple investigation or from the outset, it appears that any of the following apply:-

General

. . .

1.6.3 Normally the investigation will be carried out by a local team, except where the Commissioning Authority judges that a greater level of independence is needed. When an incident prompts high levels of public concern or there is potential to cause embarrassment to Ministers or the Service, an investigation might well need to be independent of the establishment or group in which it is conducted. The Commissioning Authority may also need to bring in outside investigators where specialist skills or team members are not available locally.

1.6.4 In exceptional circumstances, such as major and/or simultaneous incidents, an independent external investigation, from outside the Prison Service may be commissioned by Ministers or the Director General. Such investigations are beyond the scope of this Order.”

This direction requires amending so as to require, at the least, an independent investigation in the case of a near-suicide that results in serious injury.

47.  The investigation into the case of D, which followed the decision of the Court of Appeal, was conducted by Mr Stephen Shaw, the Prisons and Probation Ombudsman for England and Wales. His Report, published in May of this year, included the following recommendation:

“Until such time as the jurisprudence is clarified, I recommend that the Prison Service requires all prisons to carry out investigations into attempted suicides, incidents of serious self-harm and other near deaths. These should include an independent element, and engage the person who has been harmed and/or their family.”

This recommendation applies to more than near-suicides resulting in serious injury and probably to circumstances that would not engage article 2, but I consider that it makes good sense nonetheless.

48.  Mr Sheikh’s investigation accorded with PSO 1300 but it did not satisfy the requirements of article 2. Mr Sheikh appears to have held the position of Senior Investigating Officer in the London Area Litigation Unit of the Prison Service and did not have the requisite independence. Neither JL nor anyone representing his interests took any part in the investigation or was even made aware that it was taking or had taken place. Mr Sheikh’s report was not published.

49.  Langstaff J and the Court of Appeal identified aspects of Mr Sheikh’s report that called for further investigation and that raised the possibility that there had been shortcomings in the way in which the prison staff had carried out their obligations to safeguard JL against suicide risk. A self harm risk form F2052SH was opened in respect of JL but was subsequently closed again. There is concern that not all the appropriate persons, including the chaplaincy, were consulted prior to its closure. On one occasion a noose made out of bed sheets was found in JL’s cell. On another he was seen to have a short wide piece of bed sheet around his neck. Neither of these incidents was recorded. The implications of some of the comments made by JL about his state of mind should arguably have received more detailed consideration.

50.  After the decision of the Court of Appeal the Secretary of State decided to carry out a D type investigation without awaiting the result of this appeal. I consider that he was right to do so. There was no valid ground for challenging the order made by Langstaff J and confirmed by the Court of Appeal.

51.  For these reasons I would dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

52.  While in custody in Feltham Young Offender Institution, JL attempted to commit suicide by hanging himself. He was left with permanent and serious brain damage which means that he is unable to conduct his own affairs. Unfortunately, what happened to him is only part of a larger pattern of suicides, near-suicides and incidents of self-harm among people held in custody. The occurrence of these incidents does not, of itself, point to any failure on the part of those having custody of the prisoners: there can be all kinds of motives for what the prisoners do and all kinds of reasons for the incidence of such behaviour being higher among prisoners than among the corresponding population at large. That said, there is no room for complacency. The prison authorities are, of course, well aware that, in addition to any purely humanitarian considerations, they have legal obligations to try to prevent the individuals in their custody coming to harm. These obligations derive from at least two sources.

53.  In his classic speech in Tomlinson v Congleton Borough Council [2004] 1 AC 46 Lord Hoffmann expounded a ruggedly individualist version of the common law of tort, which would not impose on a local authority a duty of care to fit young men to prevent them from taking risks which could, and in Mr Tomlinson’s case did, result in catastrophic injury. Some years before, in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, a case where a man aged 29 hanged himself in a police cell, Lord Hoffmann had indeed affirmed, at p 368B-D, that the intuition of the common law was sound when it distinguished “between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves.” Nevertheless he held, at pp 368H-369A, that the Commissioner was correct to accept that the police owed those in their custody an “unusual” duty of care to prevent them from committing suicide. The House did not need to explore exactly what this duty entailed, but Lord Hoffmann gave some indication of its contours when he said, at p 369A-D:

“Autonomy means that every individual is sovereign over himself and cannot be denied the right to certain kinds of behaviour, even if intended to cause his own death. On this principle, if Mr Lynch had decided to go on hunger strike, the police would not have been entitled to administer forcible feeding. But autonomy does not mean that he would have been entitled to demand to be given poison, or that the police would not have been entitled to control his environment in non-invasive ways calculated to make suicide more difficult. If this would not infringe the principle of autonomy, it cannot be infringed by the police being under a duty to take such steps.”

54.  In the present case the House is concerned with the obligations on the Prison Service which derive from article 2 of the European Convention. Like the common law, Convention law draws a distinction between prisoners and individuals who are at liberty: Pretty v United Kingdom (2002) 35 EHRR 1, 29-30, para 41. In Edwards v United Kingdom (2002) 35 EHRR 487, where the applicants’ son had died following an attack by a fellow prisoner, the European Court noted, at p 507, para 56, that “persons in custody are in a vulnerable position and that the authorities are under a duty to protect them.” The Court went on to say, at p 511, para 69, that State agents or bodies must be held accountable “for deaths occurring under their responsibility". As is its wont, the Court has reiterated this line of thinking, in much the same words, in numerous other cases, the most recent being Renolde v France (Application No 5608/05) 16 October 2008, para 83.

55.  At its most basic, article 2 requires the prison authorities not to harm those in their custody. But it goes further. In particular, the European Court has recognised that they are under various positive obligations to protect the lives of prisoners. While the authorities are not obliged to regard all prisoners as potential suicide risks (Younger v United Kingdom (2003) 36 EHRR CD252, 268), they do have to proceed on the footing that prisoners as a class present a particular risk of suicide. Indeed in Tanribilir v Turkey (Application No 21422/93) 16 November 2000, the European Court observed, at para 74, that, by its very nature, any deprivation of physical liberty carries with it a risk of suicide, against which the authorities must take general precautions. See also Akdogdu v Turkey (Application No 46747/99) 18 October 2005, para 47. For this reason the prison authorities must take general (i e systemic) measures and precautions to diminish the opportunities for prisoners to harm themselves, without, however, infringing their personal autonomy: Keenan v United Kingdom (2001) 33 EHRR 913, 958, para 91.

56.  The authorities’ obligation is not, of course, absolute: it is not indeed to be interpreted as imposing an impossible or disproportionate burden, bearing in mind, among other factors, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources: Keenan v United Kingdom 33 EHRR 913, 957-958, para 89; Akdogdu v Turkey, para 45; Renolde v France, para 82.

57.  In addition to the obligation to take these general measures, the prison authorities are also under an “operational” obligation, in certain well-defined circumstances, to protect a particular prisoner from the risk that he will kill himself: Keenan v United Kingdom 33 EHRR 913, 958, paras 90-92; Tanribilir v Turkey, para 70; Akdogdu v Turkey, para 44. This obligation arises when the authorities know, or ought to know, that there is a real and immediate risk that the prisoner in question will commit suicide: Keenan v United Kingdom, 33 EHRR 913, 958, para 92. The authorities must then do everything that can reasonably be expected of them in the circumstances to prevent him from doing so.