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

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58.  Precisely because the obligation on the prison authorities to protect a prisoner from himself is not absolute and depends on the particular circumstances, a suicide can occur without there having been any violation of the prison authorities’ obligations under article 2 to protect the prisoner. Focusing on that point, Mr Giffin QC argued on behalf of the Secretary of State that article 2 did not require an independent investigation to be held unless there was some positive reason to believe that the authorities had indeed been in breach of their obligation to protect the prisoner.

59.  That argument is mistaken. Whenever a prisoner kills himself, it is at least possible that the prison authorities, who are responsible for the prisoner, have failed, either in their obligation to take general measures to diminish the opportunities for prisoners to harm themselves, or in their operational obligation to try to prevent the particular prisoner from committing suicide. Given the closed nature of the prison world, without an independent investigation you might never know. So there must be an investigation of that kind to find out whether something did indeed go wrong. In this respect a suicide is like any other violent death in custody. In affirming the need for an effective form of investigation in a case involving the suicide of a man in police custody, the European Court held that such an investigation should be held “when a resort to force has resulted in a person’s death": Akdogdu v Turkey, para 52.

60.  In R (Middleton) v West Somerset Coroner [2004] 2 AC 182, another case of a suicide in custody, at p 191, para 3, Lord Bingham of Cornhill summarised the jurisprudence of the European Court as imposing an obligation to hold an independent investigation if “it appears that one or other of the … 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.” Mr Giffin suggested that Lord Bingham’s formulation was inconsistent with there being a requirement for an independent investigation in all cases of suicide in custody. I do not agree. In summarising the case law, Lord Bingham was recognising that, where the circumstances of a prisoner’s death in custody indicate that the substantive obligations of the State may have been violated, any violation, whether due to a systemic or operational failure, will necessarily have involved members of the prison service in one capacity or another. An independent investigation is therefore required to see whether there was, in fact, a violation.

61.  If, then, an independent investigation is required in all cases of suicide, does the same apply where a prisoner has attempted to commit suicide but has failed? The Secretary of State now accepts that JL’s case is one where article 2 required him to set up an independent investigation. This concession meant that the discussion at the hearing tended to focus on the form which any inquiry should take, rather than on precisely when an attempted suicide would trigger an article 2 obligation to hold an independent investigation.

62.  This is an area into which it would be unwise to venture far without the benefit of full argument. At the most basic, what brings an attempted suicide within the scope of article 2 is that, even though the prisoner has not died, his life has been in danger. But, starting from there, cases falling within the description of attempted suicide vary enormously. A prisoner may climb on to a ledge, be seized by a prison officer at the last moment before he can jump to his death, and emerge unharmed. Or else a prisoner may cut his wrists, but end up with only a few scars to show what happened. A prisoner may attempt suicide by jumping from a ledge and survive with his mental capacity unimpaired, but with injuries that mean he can never walk again. Or, as here, a prisoner may attempt to hang himself and be left with brain injuries which mean that he is unable to look after his own affairs.

63.  Responsible prison authorities would wish to conduct an inquiry of some kind into all of these incidents. But it does not necessarily follow that the prisoners who attempted to commit suicide would all have an article 2 Convention right to have the Secretary of State set up an independent investigation into the circumstances and that he would act unlawfully if he refused to hold one.

64.  Your Lordships have referred to the situation where “a prisoner in custody makes an attempt to commit suicide that nearly succeeds and which leaves him with serious injury” and to near suicides, “genuine suicide attempts resulting in lasting serious injury". Either description could be applied to the case of JL - or, for example, to the case of the prisoner who jumps off the roof and sustains an injury which means he will never walk again.

65.  Certainly, they are both the primary victims of any breach of the prison authorities’ article 2 obligation to protect them from themselves. To that extent their positions are the same. The difference is that, while the prisoner who jumped from the ledge is unable to walk, he has his mental faculties intact, knows what happened and is therefore, prima facie, in a position to take the appropriate civil proceedings afforded by English law in respect of any perceived violation of his article 2 Convention right. By contrast, a prisoner in JL’s position is incapable of looking after his own interests: he may well be quite unable to recall or to explain what happened and he certainly cannot take proceedings by himself on the basis of any recollection he may have. The situation in his case is more like the position where a prisoner has succeeded in committing suicide. When the prisoner is dead, it is likely that no-one but the prison authorities will know much about what happened in the period before he killed himself. Moreover, he may have had no relative or friends interested enough to ask questions or to raise proceedings after his death. The potential for concealing errors or misconduct by the authorities is all too obvious. So article 2 imposes an obligation on the State spontaneously to hold an independent investigation to establish the facts and discover whether anything went wrong and, if so, who was responsible. Important lessons for the future may also be learned from the results of the investigation.

66.  It is not hard to see that, by a similar process of reasoning, article 2 should be interpreted as imposing an obligation on the State to hold an independent inquiry in a case, like the present, where a prisoner’s life is put at risk and, because of his injuries, he cannot take steps by himself to hold the authorities responsible for any failures on their part which led to his attempted suicide.

67.  In Banks v United Kingdom (2007) 45 EHRR SE15, on the other hand, all but one of the applicants were alive and were complaining of maltreatment by prison officers in breach of article 3. In fact, the matter had been investigated by the Crown Prosecution Service which had decided not to prosecute. Civil proceedings had been raised and settled. The applicants contended that, even after all that, an independent public inquiry should be held, since it was the only means of ensuring compliance with the article 3 procedural obligation. The Fourth Section of the Court dismissed their complaint on the view that the ordinary mechanisms of civil and criminal justice had provided for an adequate scrutiny of the incident itself and there was no need to have a public inquiry into the general background.

68.  The Court explained the difference between the procedural obligation under articles 2 and 3 in this way, at para 2:

“Procedural obligations have been implied in varying contexts under the Convention, where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory but practical and effective. Such obligations requiring an effective investigation into allegations of unlawful use of force and serious ill-treatment have been interpreted as arising under Articles 2 and 3 of the Convention respectively….

The Court would emphasise that these obligations are not identical either in content or as regards their applicability. In the context of Article 2 of the Convention, the obligation to conduct an effective investigation into allegations of the unlawful use of force attracts particular stringency in situations where the victim is deceased and the only persons with knowledge of the circumstances are officers of the State. It is important, with a view to ensuring respect for the rule of law and confidence of the public, that the facts, and any unlawfulness, are properly and swiftly established. In the context of Article 3, where the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred, there is a different emphasis and … since Article 13 of the Convention requires an effective remedy to be provided for arguable breaches of Article 3, it will not always be necessary, or appropriate, to examine the procedural complaints under the latter provision. The procedural limb of Article 3 principally comes into play where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time” (internal citations omitted).

69.  The European Court envisages that, where the victim is able to act on his own behalf and to give evidence about what happened, so far as any spontaneous independent investigation under article 3 is concerned, “there is a different emphasis” and the absence of any prompt independent investigation will mainly come into play if the Court is unable to determine, as a matter of fact, whether or not there has been any treatment prohibited by article 3.

70.  Mutatis mutandis, the same may apply in the case of article 2, where the prisoner is in a position to act on his own behalf, raise the appropriate civil proceedings, and give evidence about what happened when he attempted to commit suicide. The obligation on the prison authorities to hold a spontaneous and prompt independent investigation into the incident remains the same. The existence of a right to bring civil proceedings does not satisfy the procedural obligation under article 2. Suppose, however, that the prisoner does indeed take civil proceedings relating to the incident. In that event, any failure to hold a prompt investigation might mainly come into play where, because of it, the judge in the civil proceedings was unable to determine, as a matter of fact, whether or not the prison authorities had violated any of their substantive obligations to the prisoner under article 2.

71.  That was indeed the position in Makaratzis v Greece (2004) 41 EHRR 1092 where police officers had shot at the applicant’s car which had driven through a series of road blocks. As a result of the incident the applicant sustained certain injuries and was kept in hospital for nine days. An administrative investigation was opened and seven police officers were prosecuted but acquitted. The European Court found that there had been striking omissions in the conduct of the investigation which had prevented the national court from making as full a finding of fact in the criminal trial as it might otherwise have done. The Court accordingly concluded that the authorities had failed to carry out an effective investigation of the incident and that there had been a violation of article 2 in that respect.

72.  The Court explained its approach in this way, at p 1125, para 73:

“The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the state’s general duty under Article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Since often, in practice, the true circumstances of the death in such cases are largely confined within the knowledge of state officials or authorities, the bringing of appropriate domestic proceedings, such as a criminal prosecution, disciplinary proceedings and proceedings for the exercise of remedies available to victims and their families, will be conditioned by an adequate official investigation, which must be independent and impartial. The same reasoning applies in the case under consideration, where the Court has found that the force used by the police against the applicant endangered his life.”

73.  I have thought it right to touch on these questions, even though they do not arise for determination and, having heard no detailed submissions, I have formed no concluded view whatever on them. I would only say that, in my opinion, the Secretary of State was right to concede that article 2 required an independent investigation in the present case. The same would apply to R (on the application of D) v Secretary of State for the Home Department [2006] 3 All ER 946, where, too, the prisoner who attempted suicide was left with brain injuries which meant that he could not act on his own behalf. It is not a case where a criminal investigation would be in prospect. And even supposing that, despite the difficulties, civil proceedings in the name of JL were to be contemplated, this is the kind of case envisaged by the Court in Makaratzis where the availability of such proceedings would, in all likelihood, be conditioned on an adequate independent investigation.

74.  One thing is clear from the case law: if there has to be an independent investigation, then the sooner it starts work the better. This is just common sense, but the European Court emphasised the point in Edwards v United Kingdom (2002) 35 EHRR 487, 515, para 86:

“The Court reiterates that it is crucial in cases of deaths in contentious situations for the investigation to be prompt. The passage of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence [will] cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family.”

Similarly, in Trubnikov v Russia (Application No 49790/99) 5 July 2005, at para 88, the Court said:

“the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations which would be capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved.”

75.  As my noble and learned friend, Lord Walker of Gestingthorpe, points out, it is unavoidable that the very first steps in investigating an incident, immediately after it has occurred, will be internal to the Prison Service. In a case like the present, however, the need to set up an independent investigation in compliance with article 2 will be apparent, at latest, as soon as the prison authorities become aware of circumstances which suggest that the prisoner attempted to hang himself and that he is going to be incapacitated. At that point the Prison Service should take the necessary steps to have the independent investigation established and to provide it with the results of any internal inquiry which officials have already conducted. It has been suggested that the Prisons and Probation Ombudsman’s organisation might carry out such investigations. That may be so. But it is not for this House to prescribe who should carry out the independent investigation. Whoever it is must be independent of the Ministry of Justice and in a position to set to work and complete the investigation reasonably quickly: Bakorzina v Russia (Application No 69481/01) 27 July 2006, para 119.

76.  Once the independent investigation has been established with the powers and resources it needs, it is very much up to the investigator to decide how to proceed in order to achieve the objectives for which it was set up. But, presumably, the first steps will involve assembling relevant material, in the form of records and reports, and taking statements from officials and others who can speak to the circumstances. All this can be done in private, but it is essential that the prisoner’s relatives and his representative, if there is one, should be told that the investigation is under way. They should also be given an opportunity to participate. In due course they must be informed of the investigator’s conclusions. It is not, however, necessary for the relatives to be granted access to all aspects of a current investigation if this might prejudice private individuals or other investigations: Ramsahai v The Netherlands (Application No 52391/99) 15 May 2007, para 347. Sometimes relatives will be in a position to contribute information about the prisoner’s state of mind in the period before the incident. They may be able to suggest lines of inquiry. Being independent, the investigator is free to reject the suggestions if he considers that the inquiries would not be useful. Where the relatives have had little contact with the prisoner and so have no relevant knowledge of the circumstances, the investigator’s main duty will be to keep them informed of the progress of the investigation and to tell them his conclusions.

77.  The Secretary of State is concerned about the financial implications of having to hold an independent investigation in cases of attempted suicide. His concern is entirely proper, as the European Court has recognised in the judgments cited in para 56 above. His anxieties may have been fuelled, however, by an impression that, whenever article 2 requires an independent investigation to be set up, that investigation has to have all the bells and whistles of the full-blown public inquiry described by the Court of Appeal in R (on the application of D) v Secretary of State for the Home Department [2006] 3 All ER 946 - sometimes called a “type D inquiry". Nothing could be further from the truth. I respectfully endorse what my noble and learned friend, Lord Brown of Eaton-under-Heywood, says on this matter in paras 107 and 108 of his speech.

78.   The principal hallmark of an article 2-compliant inquiry is that it is “effective". The Grand Chamber explained what this means in Ramsahai v The Netherlands, a case where the police had shot someone suspected of stealing a scooter. The court said, at paras 324-325:

“324. In order to be ‘effective’ as this expression is to be understood in the context of Article 2 of the Convention, an investigation into a death that engages the responsibility of a Contracting Party under that Article must firstly be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard.

325. Secondly, for the investigation to be ‘effective’ in this sense it may generally be regarded as necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence” (internal citations omitted).

The Grand Chamber stresses that those carrying out the investigation should be entirely independent of those who may have been implicated in the events. So, in a case like the present, the independent investigator could not use Prison Service officials to carry out inquiries on his behalf. But, beyond that, what matters is that the investigator should take all reasonable steps to secure the evidence concerning the incident and to find out, if possible, what happened and what, if anything, went wrong. The steps which the investigator needs to take to fulfil these requirements will inevitably depend on the circumstances of the particular case. There neither is, nor can be, any single off-the-peg model that is suitable for use in all cases.

79.  When the investigator embarks on his inquiries, he does not know what they will reveal. So he will usually be in no position to say how elaborate they will have to be or what form they will eventually take. He may have a better idea once he has studied the material produced by his initial inquiries. Sometimes this material will reveal a clear picture and the investigator will be able to complete his investigation without going further. Mr Emmerson QC was right to emphasise that, when this happens, the investigator does not break off, or cut short, the investigation: he does all that is required to complete an effective investigation of the incident. In a passage quoted by Lord Bingham in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, 664, para 19, the European Commission said, in McCann v United Kingdom (1995) 21 EHRR 97, 140, para 193, that, even in the case of a death:

“there may be cases where the facts surrounding a deprivation of life are clear and undisputed and the subsequent inquisitorial examination may legitimately be reduced to a minimum formality.”

In such a case the investigator may well conclude that the public interest will be met by his proceeding straightaway to publish a report, explaining the circumstances and, where appropriate, identifying what went wrong and who was responsible. Both the public interest and the requirements of article 2 are satisfied because the independent investigator has looked at the circumstances, has made them public and considers that nothing would be gained by taking the matter any further. It is a fully compliant article 2 investigation.

80.  Similarly, because the investigator is independent, his investigation may well be effective, and so fulfil the requirements of article 2, even though no part of it is conducted in public. Again, it depends on the particular case. In Anguelova v Bulgaria (2002) 38 EHRR 659, where a youth had died in police custody a few hours after being arrested for attempted theft, the European Court said, at p 686, para 140:

“There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests….”

The Grand Chamber adopted that approach in Ramsahai v The Netherlands 15 May 2007. It said, at para 353:

“Article 2 does not go so far as to require all proceedings following an inquiry into a violent death to be public. As stated in, for example Anguelova …, the test is whether there is a sufficient element of public scrutiny in respect of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. It must be accepted in this connection that the degree of public scrutiny required may well vary from case to case.”

81.  Indeed, applying that approach, the Grand Chamber held, at para 354, that in the circumstances of that case there had been no need for the Dutch Court of Appeal to carry out its review, of the decision not to prosecute, in public - or even to publish its findings. It was enough that the deceased’s relatives had had access to the investigation and had been provided with the Court of Appeal’s reasoned decision which they themselves could then have published if they had wished to do so:

“Turning to the facts of the present case, the Court agrees with the Chamber that the Court of Appeal’s proceedings did not have to be open to the public. Unlike the Chamber, however, the Court takes the view that the Court of Appeal’s decision was not required to be made public either. The applicants were allowed full access to the investigation file and were enabled to participate effectively in the Court of Appeal’s hearing; they were provided with a reasoned decision. There was thus little likelihood that any authority involved in the case might have concealed relevant information from the Court of Appeal or the applicants. In addition, given that the applicants were not prevented from making the decision public themselves, the Court takes the view that the requirement of publicity was satisfied to an extent sufficient to obviate the danger of any improper cover-up by the Netherlands authorities.

82.  Rightly, the Grand Chamber has made no attempt to specify types of cases in which a public hearing will be needed. The House should follow that example. But it is worth stressing that, whatever the steps the investigator takes from the time of his appointment until he finishes, they are all part of the single independent investigation which is required by article 2. That investigation may stop once the initial material is assembled. Alternatively, it may continue with witnesses being heard in private, or in public - or some in private and some in public, depending on what is needed for an effective investigation. If the shorthand expression, “a type D inquiry", fosters an idea that, when an investigator decides to hear some evidence in public, he has to conform to a set model, it is potentially misleading. In reality, whatever its form, if the investigation is independent and effective, it will fulfil the requirements of article 2.

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