B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE LAWS
LORD JUSTICE DYSON
| || THE QUEEN on the APPLICATION OF JEAN MIDDLETON|
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HM CORONER FOR WEST SOMERSETSHIRE
|1st Respondent |
| ||2. THE QUEEN on the APPLICATION OF AMIN|
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
HM CORONER OF WEST LONDON
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr Patrick O’Connor QC and Mr Martin Sorjoo (instructed by Messrs Imran Khan and Partners, Bloomsbury) for the 2nd Respondent
Mr Ben Emmerson QC and Mr Peter Weatherby (instructed by Howells of Sheffield, S3 8NL for the 1st Respondent
Mr Jonathan Crow, Mr Rabinder Singh and Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the 1st and 2nd Appellants
HTML VERSION OF JUDGMENT
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This is the judgment of the court, to which all three members have contributed.
- These two appeals raise important issues as to the application in United Kingdom domestic law of Article 2 of the European Convention on Human Rights and Freedoms (“the Convention”) which provides that “everyone’s right to life shall be protected by law”. Article 2 imposes two distinct but complementary obligations on the State. Putting the matter very shortly, the first is a substantive obligation not intentionally to take life, and also to take reasonable preventive measures to protect an individual whose life is at risk whether from the criminal acts of others or suicide. The second is an adjectival procedural obligation to investigate deaths where arguably there has been a breach of the substantive obligation. This adjectival obligation, whose nature and reach we shall discuss in due course, was first articulated by the European Court of Human Rights in McCann v United Kingdom (1996) 21 EHRR 97, paragraph 161 where, in the context of an allegation of deliberate killing by agents of the State, the court said:
“The obligation to protect the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their 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 by, inter alios, agents of the State.”
- These two appeals concern the extent to which there is a duty on the State to conduct an investigation into the death of an individual where it is alleged that, exercising reasonable care, the State could and should have prevented the death. The case of Imtiaz Amin concerns the murder of a young man by his cellmate at Feltham Young Offenders’ Institution. The case of Jean Middleton concerns the death of a young man who hanged himself in HMP Bristol.
- In Amin, Hooper J considered that the investigations carried out thus far were insufficient to meet the requirements of Article 2. He held that “the obligation to hold an effective and thorough investigation can only be met by holding a public and independent investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses”. He granted a declaration to give effect to this conclusion. Its terms are set out at paragraph 20 below. The Secretary of State appeals against this declaration.
- In Middleton, Stanley Burnton J granted a declaration that:
“By reason of the restriction on the verdict at the Inquest into the death of Colin Campbell Middleton held on 8/10th days of October 2000, that Inquest was inadequate to meet the procedural obligation in Article 2 of the ECHR as set out in Schedule I to the Human Rights Act 1998”.
- The Secretary of State appeals against this declaration.
- With this barest of introductions, we turn to the facts in the two cases. Our object in the next two sections of the judgment is to set the scene for our later discussion of the issues that arise. It follows that we shall give little more than an outline of the facts. We shall elaborate later in so far as it is necessary to do so in order to resolve the issues.
Imtiaz Amin – the Facts
- Mr Amin is the uncle of Zahid Mubarek. Mr Mubarek was killed by his cellmate Robert Stewart at Feltham Young Offenders’ Institution on 22 March 2000. He had been bludgeoned to death with the wooden leg of a table. Mr Stewart had a history of violent and racist behaviour and had been in custody almost continuously since September 1997. Mr Mubarek was serving his first custodial sentence. They had been sharing a cell since 8 February 2000. With commendable speed on 28 March Mr Martin Narey, Director General of the Prison Service, wrote to Mr Mubarek’s parents in terms whose humanity and sensitivity have rightly been acknowledged by the family in this case. He said:
“Dear Mr and Mrs Mubarek,
I was extremely concerned to hear about the death of your son. My deepest sympathies are with you and your family at this very difficult time. I would like to repeat the most important thing I said to you when we met. You had a right to expect us to look after Zahid safely and we have failed. I am very, very sorry. What I am determined to do now is to ensure we are completely open with you. If mistakes have been made we shall not conceal them from you.
When we met I also undertook to do what I could to help you. I would like to repeat that offer and to outline what action I have already taken and what action I propose to take. I would like as far as it is possible and to the extent that you wish, to involve you and keep you informed.
To ensure we keep in contact with you in the most effective way, I suggest that Peter Windsor, Feltham’s deputy or whom you met last week, is your main point of contact. He can be contacted at Feltham (telephone 0208 890 0061 extension 253). However, if you would prefer not to contact someone at Feltham, then I suggest you contact William Payne, my Staff Officer, through the telephone number at the top of this letter. Additionally, you already have contact with Maqsood Ahmed my Muslim adviser. The police, who have begun their formal investigation, will liaise with you separately.
While the police are investigating the specific circumstances in which Zahid was so seriously assaulted and its consequence, I have set up an internal inquiry which will look at the wider issues. The person leading this internal inquiry is Ted Butt. He would like to meet you to explain how he intends to proceed. However, he will only meet you if you think that would be helpful to you. If you would like to meet him then I suggest you contact him through Peter Windsor. As I said to you when we met, I want to be open and honest with you. Accordingly, it is my intention to give you a copy of the inquiry report.
You might also find it helpful to visit Feltham. Peter Windsor would be very willing to enable you to talk to staff who worked on the unit where Zahid was held. You may wish to ask questions about how Feltham operates, particularly at night for example, and to see parts of the establishment. Peter also has the possessions Zahid had with him in Feltham and, depending upon your wishes, is ready to hand these to you when and where you think most appropriate.
If there is anything else you think the Prison Service could do to help you and your family, please do not hesitate to let me know.
- On 31 March the inquest was formally opened. Evidence was taken from the police and the inquest was then adjourned since Mr Stewart had been charged with murder. On 3 April, solicitors representing the Mubarek family wrote to the Secretary of State asking for an independent public inquiry. The response dated 12 April was that it was too early to make a decision about a public inquiry “when a wide-ranging and rigorous police investigation and the now broader internal inquiry are on-going”.
- The police investigation examined the question whether the Prison Service or any of its employees should be prosecuted for manslaughter by gross negligence and/or under section 3 of the Health and Safety at Work Act 1974. The broader internal inquiry (“the Butt inquiry”) was conducted by Mr Ted Butt, a senior investigating officer in the Prison Service. His terms of reference were very detailed. In summary they were to investigate the circumstances surrounding the murder, and in particular to consider the issue of shared accommodation both generally and with particular reference to Mr Stewart, in the light of what was known about his criminal history and institutional behaviour.
- The trial of Mr Stewart started on 24 October 2000. He admitted the killing. The issue was whether he was guilty of murder or manslaughter by reason of diminished responsibility. On 1 November, he was convicted of murder.
- On 17 November 2000, the Commission for Racial Equality (“CRE”) announced that it would be conducting a formal investigation into racial discrimination in the Prison Service. The terms of reference were wide-ranging and general, but they included:
“5. The circumstances leading to the murder of Zahid Mubarek in HM YOI Feltham, and any contributing act or omission on the part of the Prison Service”.
- Upon completion of the police investigation into the Prison Service, counsel advised that there was insufficient evidence to provide a realistic prospect of convicting the Prison Service or any of its employees of any offence in relation to the death of Mr Mubarek. The Mubarek family were so informed by a letter dated 8 August 2001.
- Mr Butt produced a report in two parts. Part 1 was completed at the end of October 2000, and Part 2 (in its amended version) at the end of November 2000. Copies of both reports were provided to the family within a short time of their completion. In summary, Mr Butt identified in Part 1 a number of shortcomings at Feltham and made 26 recommendations for change. He noted that an effective induction programme was not in place, which “should have led to a more considered opinion as to whether it was appropriate for Robert Stewart and Zahid Mubarek to share a cell, or Robert Stewart and any other prisoner to share a cell”. As regards allocating responsibility, he concluded (paragraph 41 of the Executive Summary):
“I cannot apportion all the blame to the management team at Feltham at the time of this investigation. Management oversight appears to have been poor for many years, and it would have been impossible for the present team to have dealt with all the deficiencies in such a short time. Therefore I am unable to recommend disciplinary action against any single individual member of staff”.
- On 30 November 2000, the family wrote to the CRE asking that they be allowed to participate in its inquiry and for its hearings to be in public. By its letter dated 1 December 2000, the CRE refused this request. It stated that the inquiry had to be seen to be impartial and that, although there was to be a “public component” in its proceedings, it could not conduct the whole inquiry in public. On 3 May 2001, the family started judicial review proceedings against the CRE in which they sought to challenge the decision of the CRE to refuse to hold its proceedings in public and to allow the family to participate. The CRE has not yet completed its inquiry.
- Meanwhile, the family had sought to persuade the Coroner to resume the inquest. By letters dated 25 June and 27 July 2001 the Coroner communicated her decision not to do so. The family started judicial review proceedings challenging that decision.
- On 31 July 2001, the family’s solicitors wrote to the Secretary of State. They said that many questions remained outstanding as to how Zahid Mubarek came to be sharing a cell with Mr Stewart, a man who “was manifesting extreme racist views in correspondence, and was diagnosed during the criminal proceedings as a psychopath”. In the light of (a) the decision of the CRE not to allow the family to participate in its investigation in “any meaningful manner” or to allow any part of its investigation to be held in public, (b) the decision of the Coroner not to reconvene the inquest, and (c) the findings of the Butt inquiry, they asked the Secretary of State to reconsider his decision not to hold a public inquiry.
- On 15 August, the family started judicial review proceedings challenging the refusal of the Secretary of State to hold a public inquiry.
- On 20 August 2001, the Secretary of State replied to the family’s solicitors saying that he saw no basis for reversing his earlier decision not to hold an inquiry. He wrote:
“Zahid Mubarek’s death was a tragic event and the Prison Service have admitted full responsibility for it from the start. The Director General met Zahid Mubarek’s father at Charing Cross hospital and has apologised to the family in person and in writing. An internal Prison Service report examined the circumstances surrounding the death in detail. It was completed in September 2000 and was shown to the Mubarek family. This report made 26 procedural recommendations in areas such as screening on reception; the availability and scrutiny of medical records; Protection from Harassment procedures; policy and procedures for reading and stopping mail; the availability of security information files from previous establishments; security, reception and Duty Governor training; reception boards; and the searching strategy. All the major recommendations from the Prison Service investigation are being implemented at Feltham. Most are already in place, and those that are taking longer are being implemented to clear deadlines. Probably the most important is the proposal to introduce a cell-sharing risk assessment across the prison estate. This is being piloted at Feltham.
An inquest into the death was opened by the Coroner for West London. As you will know, the statutory function of an inquest is to ascertain who the deceased was, and how, when and where he came by his death. In this case the Coroner adjourned the proceedings, as required under section 16 of the Coroners Act 1988, pending the outcome of the trial of Robert Stewart for the murder of Zahid Mubarek. The circumstances of the death were thoroughly examined during the trial, which resulted in Stewart’s conviction in November 2000. Following the trial, the Coroner decided that there was not sufficient cause to resume the inquest. That is a matter for her, but she will have taken into account the extent to which the facts about the death had emerged during the course of the trial.
After the trial, the Mubarek family and their representatives met Paul Boateng, who was then the Prisons Minister, on 2 November and 13 November 2000. He emphasised our determination to tackle the systematic failures that had resulted in Zahid Mubarek’s death. We recognised at that stage that this would require the involvement of an external agency. For that reason we welcomed the decision of the Commission for Racial Equality to mount an investigation into racism in the Prison Service with particular reference to the events at Feltham leading up to Zahid Mubarek’s death. We also welcomed the appointment of Ray Singh, both a district judge and a CRE commissioner, as the chairman of the investigation team. The Prison Service has co-operated fully with the CRE investigation, which includes a special team looking at Feltham.
The CRE investigating team decided to hold a public hearing during which both the Prisons Minister and the Director General of the Prison Service would be cross-examined by Counsel for the investigation. I understand that this will now take place in September and that the CRE have offered the Mubarek family a meeting with Counsel at which they can raise topics that they would like to be covered in the cross-examination. I also understand that the investigation should be completed in November. I shall pay close attention to the recommendations in the report and it will, of course, be available to the Mubarek family.
In view of all that has been done to investigate the circumstances of Zahid Mubarek’s death and to learn the lessons from it, I do not believe that a separate public inquiry would add anything of substance or that it would be in the public interest to hold one.”
- It will be seen, therefore, that by mid-August 2001, there were three judicial review challenges on foot. The application for permission to apply for judicial review of the decision of the CRE was first heard by Hooper J on 30 July 2001. He adjourned it until 3 and 4 September on the basis that, if the family decided (as they did shortly thereafter) to start proceedings against the Coroner and the Secretary of State, all three applications should be heard during those two days, with full hearings to follow if permission was given.
- On 3 September, Hooper J decided to adjourn the applications against the CRE and the Coroner (by consent of the parties sine die) on the grounds that there was insufficient time. He decided that he should deal with the application against the Secretary of State first. He granted permission to the family in this application and found that the refusal to hold a public inquiry was a breach of Article 2 of the Convention. He granted a declaration in these terms:
“On the facts known to the Secretary of State (including the fact that the inquest would not be resumed), an independent public investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses, must be held to satisfy the obligations imposed by Article 2 of the European Convention on Human Rights”.
Jean Middleton – the Facts
- Colin Campbell Middleton hanged himself on 14 January 1999 while in custody in HMP Bristol. He was 30 years of age. Jean Middleton is his mother. An inquest was held on 13 May 1999 before the Coroner for Avon and a jury. Its verdict was quashed by consent for failure to enquire sufficiently into the death. A second inquest was held before the Coroner for the Western District of Somersetshire and a jury on 8, 9 and 10 October 2000. Both the family and the Prison Service were represented by counsel. The verdict of the jury was that Mr Middleton had killed himself whilst the balance of his mind was disturbed. The jury received the oral evidence of 11 witnesses, and the written evidence of a further 7 witnesses. It dealt not only with the immediate circumstances of the death, but also the background. Thus the jury heard that he had harmed himself seriously in November 1998, and that this had led to the raising of a “self-harm at risk” form known as F2052SH; the F2052SH had been “closed” a few days later; Mr Middleton had suffered from depression and was receiving medication at the time of his death; on 11 January 1999 he had written to the Wing Governor referring to his “mental illness” and unhappiness; and that on the same day, Mr Middleton had expressed suicidal intentions to a Mr Prosser, who had passed this information on to the Wing Governor the following day (the truth of this last piece of evidence was hotly contested by the Prison Service)..
- There was no dispute that Mr Middleton had committed suicide: a suicide note was found in his cell. But it was alleged by the family that, if proper attention had been paid to the warning signs, an F2052SH would have been raised before he died, and that if that had been done, he would have been placed on “suicide watch”, in which event the death would have been prevented. It is accepted on behalf of the family that all of these matters were thoroughly, effectively and sensitively explored during the inquest.
- After the close of the evidence, the Coroner ruled that the issue of “neglect” should not be left to the jury, and he summed up accordingly. At the end of his summing up, he told the jury that, if they wished to do so, they could give him a note regarding any specific areas of the evidence about which they were concerned, and that he would consider it when deciding whether to make any recommendation under Rule 43 of the Coroners Rules 1984. He told the jury that any such note would not be published.
- When the jury announced their verdict, they did produce a note which was handed to the Coroner. After they had been discharged, the Coroner showed the note to both counsel. It contained four conclusions on the facts which, in the words of the judge, “indicated that the Prison Service had failed in their duty of care for Mr Middleton”. The family’s solicitors subsequently wrote to the Coroner inviting him to append the note to the inquisition, thereby putting the findings of the jury into the public domain. By letter dated 15 December 2000, the Coroner refused to do so. No part of the contents of the note had been made public before the judge handed down his judgment on 14 December 2001.
- In his judgment, the judge published the following parts of the note, viz. that the jury:
“(a) expressed concern that a form F2052SH had been closed by two officers who had no prior knowledge of Mr Middleton; and
(b) expressed their belief that a letter of 11 January 1999 written by him “contained sufficient information to warrant an F2052SH being opened”.
- Other comments in the note were of a general nature and not directed specifically to the facts of this case. Moreover, the note contained no express finding as to whether the failings on the part of the Prison Service were a contributory cause of the death of Mr Middleton.
- In her claim form in the proceedings before Stanley Burnton J, Ms Middleton sought a mandatory order requiring the Coroner to record the jury’s findings as set out in the note. She did not seek an order directing the holding of a new inquest. During the hearing, various declarations and quashing orders were sought as well. The central submissions advanced on behalf of the family were that (a) Article 2 of the Convention requires the State to take reasonable care of those in its custody, (b) where a death in the custody of the State has occurred, and it is arguable that the State has failed to take reasonable steps to prevent that death, then it is under an obligation to conduct an investigation which is capable of determining whether a breach of the substantive obligation to take reasonable care has in fact occurred, and (c) in the present case, the inquest did not determine whether such a breach had occurred, because the jury were instructed that they could not make a finding of neglect.
- The judge concluded that the procedural obligation to investigate arose on the facts of this case. He did not, however, consider that the inquisition should be supplemented by incorporation of the jury’s conclusions contained in the note because two of the comments were of a general nature, there was no finding that the failings had any causative effect, the note was a private communication between jury and Coroner, and the Coroner should not have suggested the production of the note (paragraph 58 of the judgment). In view of the terms of his judgment, (not least his decision to publish the relevant parts of the note), and the fact that the family did not want a further inquest, he concluded that no relief was necessary. He decided, however, to grant the declaration which we have set out at paragraph 4 above because it reflected the views expressed in his judgment and so that the Secretary of State might have an order against which to appeal.
Amin – the Issues in the Appeal Confronted
- We turn to the issues arising in the Amin appeal. Mr Crow for the appellant Secretary of State advanced four submissions as follows.
(1) The judge was wrong to determine the judicial review challenge against the Secretary of State before first considering the claims against the Coroner and the CRE.
(2) The adjectival or procedural obligation to investigate a death, arising under ECHR Article 2, was not triggered on the facts of the case.
(3) The judge fell into error in his approach to the scope of the procedural obligation. He should not have concluded that an investigation will not satisfy Article 2 unless two independent and cumulative requirements are fulfilled, namely that (a) there is a sufficient element of public scrutiny and (b) the next of kin are involved to an appropriate extent.
(4) The judge should have held that the procedural obligation had been discharged on the facts of the case.
Mr Crow’s position at the hearing was that if he succeeded on any one of these arguments the appeal must be allowed. (2), (3) and (4) respectively arise only to the extent that their predecessors fail. However (2) has been conceded by Mr Crow in a written submission put in (at the court’s invitation) to address the reasoning in a judgment of the Court of Human Rights which was promulgated after the hearing before us. We shall explain the position more fully in due course, but we should say at once that Mr Crow’s concession is in our judgment entirely correct. Herewith it remains convenient to deal with all four points in the order in which they were presented as we have set it out above.
- There are, however, some important preliminaries. First, in light of some of the arguments addressed to us, we should set out the text not only of ECHR Article 2 but also of Articles 3 and 13:
“2(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.
3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
13. Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Secondly, it is useful at this stage to state in outline at least what is the nature of the primary obligations of the State which arise under Article 2 on its face. Mr Crow for the appellant submitted that the substance of Article 2 contains three elements as follows:
(1) Each Contracting State is required to put in place a legal regime for the protection of the right to life. That is the consequence of the opening words, “Everyone's right to life shall be protected by law”. In England and Wales, this requirement is satisfied by the criminal law of murder and manslaughter (and no doubt the statutory offences relating to fatal road traffic incidents), and by the civil law of negligence.
(2) The State is itself precluded from taking life intentionally, save in a case falling within Article 2(2).
(3) In addition the State has a positive duty to take steps (“operational measures” in Mr Crow’s phrase) to protect life in cases where its servants are or ought reasonably to be aware that a particular individual who is in the State’s care – being a prisoner is the plainest instance – is at immediate risk of death or serious injury. This positive obligation is engaged in these two cases.
- We did not understand counsel for the respondents to offer any dissent to this description of the Article 2 duty, save perhaps to jib at the qualification “immediate” in (3). The view of the Strasbourg court of the extent of the substantive obligations owed by the State arising under Article 2 is clearly set out in Osman (1998) 29 EHRR 245 at paragraphs 115 – 116:
“115. The court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting 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 sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual…
116… In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life… [I]t is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”
This treatment of Article 2 entirely supports Mr Crow’s tripartite formulation, which in our judgment may be taken as a correct statement of the law.
- Against this framework of obligations created by Article 2, it is useful – and here is our third preliminary – to make some general observations about the nature of the procedural duty to investigate. Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that, without it, the substantive rights conferred by Article 2 would or might in some cases be rendered nugatory or ineffective. Thus the duty to investigate is adjectival to the duty to protect the right to life, and to the prohibition of the taking of life. It follows that by its nature it cannot be a duty defined by reference to fixed rules. It only has life case by case; contingent upon what is required in any individual instance for the substantive right’s protection. Across the spectrum of possible Article 2 violations, there are classes of case which can readily be distinguished. One class is that of allegations of deliberate killing - murder - by servants of the State. A second is that of allegations of killing by gross negligence – manslaughter – by servants of the State. A third is that of plain negligence by servants of the State, leading to a death or allowing it to happen. In the context of any of these classes, there exists the lamentable possibility that the State has concealed or is concealing its responsibility for the death. That possibility gives rise to the paradigm case of the duty to investigate. The duty is in every instance fashioned to support and make good the substantive Article 2 rights. We shall see, as we go through the movements of the argument, that this approach sits with the Strasbourg jurisprudence, whose character has always been essentially pragmatic.
- With this preamble we may turn to the discrete arguments.
(1) Was the judge wrong to determine the judicial review challenge against the Secretary of State before first considering the claims against the Coroner and the CRE?
- We should briefly recapitulate the facts relevant to this part of the case in chronological order. On 3rd May 2001 the respondent lodged his application for permission to seek judicial review of the refusal of the CRE to conduct its proceedings in public and to allow the family to participate. That application came before Hooper J on 30th July 2001. By then no applications against the Coroner or against the Secretary of State had been launched though both were, so to speak, in the offing, since as we have indicated Hooper J adjourned the CRE application to be heard over two days on 3rd and 4th September 2001 and further directed that if proceedings were launched against the Coroner and the Secretary of State, they too should be listed on the same dates with full hearings to follow if permission were granted. Mr O’Connor QC for Amin told us that the judge himself raised the possibility of claims being made against the Coroner and the Secretary of State.
- At length proceedings against the Coroner, complaining of her decision not to resume the inquest, were launched on 6th August 2001; and against the Secretary of State, complaining of his refusal to institute a public inquiry, on 15th August 2001. All three applications were then listed before Hooper J (in accordance with his earlier direction) on 3rd September 2001. He ordered further adjournments of the claims against the Coroner and the CRE, and proceeded to deal in substance with the claim against the Secretary of State. He explained his reasons for taking this course in his reserved judgment of 5th October 2001, the subject of the present appeal. He stated (paragraph 12) that the limited scope of the CRE inquiry could not assist the defendant (appellant): the CRE “could only concern itself with the circumstances leading to the murder insofar as they related to racial matters”. As regards the Coroner, the judge considered that since in his letter of 20th August 2001 the Secretary of State had implicitly assumed that the inquest would not be resumed, “the lawfulness of the 20 August letter could properly be determined without first deciding the Coroner application” (paragraph 15). It is plain also that Hooper J took the view that the Secretary of State through Mr Crow was adopting an impermissible approach to the case, namely that “the family should ‘exhaust any remedies’ against the public authorities before turning to the Minister” (paragraph 18).
- Mr Crow’s complaint on this part of the case was not altogether easy to follow. He first submitted that the judge “mistook his function”: he should have confined himself to the legality or otherwise of the Secretary of State’s discretionary decision given in the letter of 20th August 2001, whereas in fact he proceeded to consider a different question, namely whether there had been overall compliance with the State’s obligations under Article 2. Mr Crow submitted secondly that the declaration granted by the judge was in any event premature. We assume that the first of these submissions was intended to support the proposition that, had the judge confined himself to the question whether the Secretary of State’s decision of 20th August fell to be reviewed on conventional public law grounds, he would have heard the other challenges first because he could not determine the rationality or fairness of the decision without knowing what the outcome would be in relation to the CRE and the Coroner.
- But this argument as to the judge’s role sits ill with Mr Crow’s later submission (no. 4 as we have tabulated them) to the effect that the procedural obligation had been discharged on the facts of the case, though of course we acknowledge that the later argument is only advanced if the earlier fail. It is however notable that in submission 4 Mr Crow was at pains to emphasise that the court should look at the matter pragmatically, in the round, taking account of all the investigative initiatives which had been undertaken, to see whether overall the procedural obligation had been satisfied on the particular facts.
- That submission, which we must address in its context in due course, was to our mind entirely correct. We do not accept the position taken by the Secretary of State on this first part of the case. If one puts on one side the circumstance that much of the factual history took place before 2nd October 2000, when the principal measures of the Human Rights Act 1998 (“HRA”) came into force (it was not suggested that anything turned on the chronology: and the Secretary of State’s decision of course well post-dated the incorporation date), it seems to us that the question for the judge was indeed the objective one, whether the State had fulfilled its obligations under Article 2.
- To this question the Secretary of State is a proper respondent. He represents the State in a sense and to an extent not mirrored by the functions or responsibilities of the Coroner or the CRE. Of course those bodies, which owe public duties under statute, may be said to be emanations of the State. They are plainly public authorities for the purposes of the HRA. But we are clear, certainly in the present context, that central government is the proper body to stand in the shoes of the State when it is called on to answer an alleged violation of ECHR Article 2, including and in particular a violation of the implicit procedural duty to investigate.
- Mr Crow’s submission that the declaration granted by Hooper J was premature does not in our judgment support a conclusion that the proceedings against the Secretary of State should have been adjourned. It may support a different conclusion, namely that the declaration should simply not have been made on the facts then appearing to the judge. If the overall question for the court is whether the State has fulfilled its procedural obligation to investigate under Article 2, as we believe it is, then one can see the sense of evaluating all the investigatory processes being undertaken before arriving at any conclusion as to violation of the Convention right.
- There is nothing in this first point.
(2) Was the procedural obligation to investigate triggered on the facts of the case?
- This is a point which was not contested in the court below on behalf of the Secretary of State; Mr Crow reserved his position for this court (see the judgment of Hooper J at paragraph 59). He did so out of respect for the then recent decision of Jackson J in Wright  EWHC Admin 520, to which we will refer in due course, and because of time constraints in the court below. Mr Crow’s submission before us at the hearing was to the effect that the procedural obligation to conduct an “effective official investigation” only arises if “the relevant death occurred (or is alleged to have occurred) as a result of the use of force by State agents” (skeleton argument, paragraph 19). It does not arise otherwise. Where the putative accusation under Article 2 is within the third category described by Mr Crow, that is, an accusation of failure to fulfil the State’s positive duty to take steps to protect the life of someone in its care against a perceived risk - or a risk that should have been perceived – of death or serious injury at the hands of another, then the availability of the ordinary civil remedies in the domestic courts was said to suffice for Article 2 purposes. Mr Crow said that the evolution of the procedural requirement of investigation through a series of cases at Strasbourg shows that the adjectival duty is limited as he submits.
- Since the conclusion of the hearing, the European Court of Human Rights has promulgated, on 14th March 2002, its decision in Edwards v UK (app. no. 46477/99), which also concerned the killing of a prisoner by his cellmate. It will be convenient to address this case when we come shortly to deal with the authorities generally. But we may make it clear at once that Mr Crow, responding (as of course did counsel for the other parties) to the court’s request for written submissions on the effect of Edwards, in light of that authority now accepts on behalf of the Secretary of State that the procedural obligation to investigate was indeed triggered on the facts in Amin. This concession, plainly in our view correct, has abbreviated what we would otherwise have found it necessary to say on this part of the case. However it is right that we should indicate, with respect, that we should without hesitation have concluded that the procedural duty was engaged, without the assistance offered by the case of Edwards. A death in State custody, at the hands of another prisoner or (as in Middleton) at the deceased’s own hands, excites very anxious public concern. The State owes a pressing duty to minimise the risk of such a calamity, even if it cannot be altogether extinguished. The common law would impose such a duty, if it could find an appropriate litigious framework within which to make it good. Now, however, it is enough to say that such a duty lies within the scope of Article 2. When such a death takes place, the procedural duty to investigate is in our judgment undoubtedly engaged. That is not to say that what is required to satisfy the duty is necessarily the same in a case where the death has allegedly been allowed to happen by virtue of negligence on the part of State servants, as in a case where it is said that State servants have themselves killed the victim by the use of unlawful force; but distinctions between those instances fall to be considered under Question 3 below.
- We should add that we consider it clear from the cases before Edwards that the European Court of Human Rights has laid down no rule to the effect that the adjectival duty to investigate only arises where there is an allegation, real not fanciful, of unlawful killing by State agents. It is plain that the court has left open wider possibilities. We need only cite paragraph 161 of McCann 21 EHRR 97:
“… a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision… 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 by, inter alios, agents of the State.”
This formula, including the tell-tale Latinism inter alios, is repeated in a number of the decisions. Gulec v Turkey (54/1997/838/1044) paragraph 77 and Ergi v Turkey (66/1997/850/1057) paragraph 82 are examples. And there is other learning, such as Erikson (App. No. 37900/97) and Salman (App. No. 21986/93, 27/6/00) which we would have cited had it been necessary to go deeper into this point.
(3) What is the required scope of the procedural investigation?
- In the terms in which it was articulated by Mr Crow at the hearing, the focus of this part of the case appeared to be relatively narrow. Building on Jackson J’s judgment in Wright at paragraph 41, which we need not set out, Hooper J held (paragraphs 81 – 86) that for an investigation to satisfy the procedural requirements of Article 2 a number of conditions must be met, including these two: (a) there must be a sufficient element of public scrutiny, and (b) the next of kin must be involved to the appropriate extent. Mr Crow submitted that that is a wrong approach. There are not discrete and cumulative requirements of publicity and family participation. Depending on the particular facts, participation by the next of kin may itself satisfy applicable standards of openness without any additional requirement of public hearings. Now, while these two elements are plainly of great potential importance, it seems to us that this part of the case raises a deeper, or at any rate a more general question. How far may the nature and quality of any investigation embarked upon in satisfaction of the Article 2 adjectival duty vary according to the context and subject-matter of the case? Are such requirements as publicity and family participation, and other virtuous procedures, constant? It was broadly the respondents’ position that they are: the duty is essentially a uniform one, whether the death is due to unlawful violence by State servants, or to recklessness or to negligence. In so submitting Mr O’Connor built especially on Jordan (App. No.24746/94, 4/5/01), and now also on Edwards.
- We turn then to the authorities, from which it is convenient to collect comprehensive citations at this stage, although many of the references are at least as material to Questions 2 and 4 as to the issue in hand. A very considerable portion of the Strasbourg cases involve on their facts actual or alleged killings or brutality by agents of the State: McCann (1995) 21 EHRR 97, Assenov (1998) 28 EHRR 652, Kaya (App. No. 158/1996/777/978, 19/2/98), Salman (App. No. 21986/93), and Jordan. We shall not cite all these cases. As we have indicated, special emphasis was laid in the course of argument on Jordan. The facts were that the applicant’s son had been shot and killed by a sergeant of the Royal Ulster Constabulary after a car chase in the Falls Road in Belfast. The applicant alleged that his son had been unlawfully killed and there had been no effective investigation. The case was consolidated with three others which arose out of events in Northern Ireland, McKerr no. 2883/95, Kelly no. 30054/96, and Shanaghan no. 37715/97. Judgment was given in Strasbourg in each of these cases on 4th May 2001.
- We should set out these following passages from the judgment in Jordan.
“103. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation…
105. The obligation to protect the right to life under Article 2 of the Convention… also 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 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. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures… [our emphasis]
106. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation 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…
107. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances… and to the identification and punishment of those responsible… This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death… Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.
109… [T]here must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as theory. 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…
i) Civil proceedings
141… [C]ivil proceedings would provide a judicial fact-finding forum, with the attendant safeguards and the ability to reach findings of unlawfulness, with the possibility of damages. It is however a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator. As such, it cannot be taken into account in the assessment of the State’s compliance with its procedural obligations under Article 2 of the Convention.
143. It is not for this Court to specify in any detail which procedures the authorities should adopt in providing for the proper examination of the circumstances of a killing by State agents. While reference has been made for example to the Scottish model of enquiry conducted by a judge of criminal jurisdiction, there is no reason to assume that this may be the only method available. Nor can it be said that there should be one unified procedure providing for all requirements. If the aims of fact finding, criminal investigation and prosecution are carried out or shared between several authorities, as in Northern Ireland, the Court considers that the requirements of Article 2 may nonetheless be satisfied if, while seeking to take into account other legitimate interests such as national security or the protection of material relevant to other investigations, they provide for the necessary safeguards in an accessible and effective manner…”
- In the course of counsel’s submissions the “Jordan requirements” (to use the shorthand that was deployed in argument) came to be summarised thus: the investigation must be undertaken by the authorities on their own initiative; it must be effective and independent of those to be investigated; it must be capable of leading to a determination of State responsibility; it must be prompt; there must be a sufficient element of public scrutiny to ensure effective accountability; the next of kin must have adequate opportunity to participate. Mr Crow submitted that the approach taken by the Strasbourg court in Jordan is and is intended to be limited to circumstances where the allegation is one of unlawful killing – in domestic terms, murder or manslaughter – by servants of the State. He said that that position is supported by the other cases where allegations of unlawful force by State servants were in play. We should make it clear, in the interests of reporting the argument fairly, that much of this learning was deployed by Mr Crow in support of his original position on Question 2 – that the adjectival obligation to investigate did not arise on the facts of the case. As we have said that is now conceded in light of the decision in Edwards, to which we must come shortly. But Mr Crow’s scan of the cases seems to us to touch this present issue, the nature and scope of the investigative duty, no less closely. His case is that the Jordan requirements are not to be rigidly applied, nor to be treated as having to possess the same unchanging qualities in every case.
- Mr Crow drew attention, by way of contrast as he would have it, to the reasoning in Z v UK (app. no. 29392/95) 10 BHRC 384. In that case the four applicants, who were siblings, lodged complaints with the European Commission of Human Rights to the effect that their local authority had failed to protect them from incidents of very grave neglect and abuse at the hands of their parents. There had been municipal litigation as far as the House of Lords. It was not a right to life case; it was put under Article 3 and Article 13, and there were some issues raised under other articles. The Commission referred the case to the European Court of Human Rights. The court’s reasoning is, as with respect it seems to us, greatly conditioned by the part played by Article 13. We should cite the passage in Z relied on by Mr Crow:
“109. The court has previously held that where a right with as fundamental an importance as the right to life or the prohibition against torture… is at stake, art 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure… These cases however concerned alleged killings or infliction of treatment contrary to art 3 involving potential criminal responsibility on the part of security force officials. Where alleged failure by the authorities to protect persons from the acts of others is concerned, art 13 may not always require that the authorities undertake the responsibility for investigating the allegations….”
- To some extent the case of Z marches with that of Keenan v UK (app. no. 27229/95) which, like Middleton, was a case of suicide by a serving prisoner. The deceased was 28 when he killed himself in Exeter Gaol. He had intermittently been prescribed anti-psychotic medication from the age of 21, and before the European Court of Human Rights it was common ground that he was mentally ill. The court found no breach of Article 2 essentially on the basis (paragraph 95) that the deceased was not at immediate risk of suicide throughout his detention, and that (paragraph 100) the issues which were raised “regarding the standard of care with which Mark Keenan was treated in the days before his death fall rather to be examined under Article 3 of the Convention.” The court proceeded to find a violation of Article 3. It held (paragraph 115) that in the context of what it considered to be a lack of effective monitoring of his condition and a lack of “informed psychiatric input” into his assessment and treatment, the imposition on him only nine days before his expected date of release of a serious disciplinary punishment (involving 7 days segregation in the punishment block and an addition of 28 days to his sentence) in the particular circumstances constituted inhuman and degrading treatment.
- The court in Keenan addressed the issue of any investigative duty only within the context of Article 13. It said at paragraph 122:
“… Given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedures…”
The court proceeded to indicate (paragraph 127) that it was “common ground” that the inquest did not provide a remedy for the determination of State liability or the provision of compensation, and there was a violation of Article 13. Lord Justice Sedley (sitting as the ad hoc British judge) delivered a concurring opinion in which he stated at paragraph 8 that what was required by way of remedy was “a proper and effective inquiry into responsibility for the death.”
- We consider that the Strasbourg learning which is geared to considerations arising under Article 13 is of limited assistance in this appeal. While Mr O’Connor certainly relied on Keenan, we do not see the substance of this case as being so much concerned with effective remedies as with the vindication of Article 2 itself.
- We should notice next the decision of Jackson J in Wright, to which we have referred in passing. Wright was a case of a young man’s death in prison following a severe asthma attack. After citing a number of authorities including Jordan the learned judge stated (paragraph 43) that he derived five propositions from the learning:
“1. Articles 2 and 3 enshrine fundamental rights. When it is arguable that there has been a breach of either article, the State has an obligation to procure an effective official investigation.
2. The obligation to procure an effective official investigation arises by necessary implication in articles 2 and 3. Such investigation is required, in order to maximise future compliance with those articles.
3. There is no universal set of rules for the form which an effective official investigation must take. The form which the investigation takes will depend on the facts of the case and the procedure available in the particular State.
4. Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paragraphs 106 to 109.
5. The holding of an inquest may or may not satisfy the implied obligation to investigate arising under article 2. This depends upon the facts of the case and the course of events at the inquest.”
- Propositions 1 and 2 may be regarded as uncontentious, not least given Mr Crow’s concession on Question 2, with which we have dealt. Proposition 5 calls up what we shall have to say in the Middleton appeal. Propositions 3 and 4 are engaged in the Question we are presently confronting. Before we express any further views it is convenient to turn at last to the Strasbourg court’s decision in Edwards.
- Christopher Edwards was arrested by the police in Colchester on 27th November 1994. He had been making indecent or obscene suggestions to young women in the street and his behaviour was sufficiently bizarre to lead to suspicions on the part of the police that he was mentally ill. At length he was remanded in custody by the magistrates, who concluded that they had no power to remand him to hospital. He was at first detained in a cell on his own. But then another prisoner, Richard Linford, was moved in with him. He had previously been variously diagnosed as a schizophrenic, or suffering from a personality disorder, and had a history of abuse of drugs and alcohol. In the very early hours of 29th November 1994 he stamped and kicked Christopher Edwards to death in the cell they shared. There is no doubt that he was acutely mentally ill. He was on the same day transferred to Rampton Special Hospital.
- Various procedures were then undertaken. Linford’s plea at the Chelmsford Crown Court to manslaughter by reason of diminished responsibility was accepted, and appropriate orders were made under the Mental Health Act 1983. An inquest was opened, adjourned, and then closed without proceeding to a verdict after Linford’s conviction. The Criminal Injuries Compensation Board made an award to the applicants (Edwards’ parents) of £4,550. An ad hoc non-statutory inquiry was jointly commissioned by the Prison Service, Essex County Council, and North Essex Health Authority. It sat in private and heard evidence on 56 days. It had no power to compel witnesses, and two prison officers declined to give evidence. One of them (according to the Inquiry Report) could have given potentially significant evidence. The Inquiry Report was published in June 1998 and found “a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner”. It identified a long series of particular failures and shortcomings. The applicants were advised that there was no civil remedy available on the facts. The Crown Prosecution Service took the view that there was no sufficient evidence to prosecute anyone (Linford, of course, aside). The Police Complaints Authority upheld a number of complaints.
- The Strasbourg court made the clearest possible finding that on the facts a procedural obligation to investigate the death arose which could not be satisfied by the availability of civil proceedings (so far as they were available): paragraph 74. We make it clear that for our part we accept that the bare possibility of civil proceedings will not of itself generally satisfy the procedural obligation. The court’s conclusion on the question whether that obligation was indeed fulfilled in Edward’s case was expressed thus at paragraph 87:
“The Court finds that the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded save when they were giving evidence failed to comply with the requirements of Article 2 of the Convention to hold an effective investigation…”
It is, we consider, clear from paragraph 78 (which we need not set out) that the importance which the court attached to the absence of any power in the inquiry to compel witnesses was very closely linked to the refusal of two prison officers to give evidence. As regards the “private character” of the inquiry proceedings, the court said this:
“83. The Government argued that the publication of the report secured the requisite degree of public scrutiny. The Court has indicated that publicity of proceedings or the results may satisfy the requirements of Article 2, provided that in the circumstances of the case the degree of publicity secures the accountability in practice as well as theory of the State agents implicated in events. In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the Court considers that the public interest attaching to the issues thrown up by the case were such as to call for the widest exposure possible. No reason has been put forward for holding the inquiry in private…
84. The applicants, parents of the deceased, were only able to attend three days of the Inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel or, for example, through the Inquiry Panel. They had to wait until the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.”
- Mr O’Connor submits in effect that Edwards constitutes a ringing endorsement of the applicability of the Jordan requirements to the facts of a death bearing a very great similarity to those of the Amin case, particularly as regards public accountability and family participation. Mr Crow’s position is that Edwards is perfectly consistent with, indeed supports, the proposition that the Jordan requirements are inherently flexible; and there is nothing in the court’s decision in Edwards which must lead to a condemnation of what has been done (or not done) in Amin as disclosing a violation of the Article 2 procedural duty.
- It is in our judgment noteworthy that paragraphs 69 – 71 of the judgment in Edwards effectively replicate paragraphs 105 – 107 of Jordan, therefore including the passage in paragraph 105 which we italicised earlier. It is worth setting out again:
“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. What form of investigation will achieve those purposes may vary in different circumstances.”
- In our view Edwards represents no fresh departure in the Strasbourg jurisprudence, which in this area, as it is generally, is essentially pragmatic. The Jordan requirements are by no means set in stone. Particular considerations – the absent witnesses, the relative exclusion of the family – coloured the court’s decision in Edwards, just as they might colour the decision of a common law court.
- In light of the arguments on Edwards it is right to draw special attention to two matters in particular. The first is that the procedural duty to investigate does not appear on the Convention’s face: it is no more nor less than an adjectival duty, imposed as a corollary of the substantive right guaranteed by Article 2. Secondly, the task of our courts is to develop a domestic jurisprudence of fundamental rights, drawing on the Strasbourg cases of which by HRA s.2 we are enjoined to take account, but by which we are not bound. In this present context, these two features march together. The reason is that the nature and scope of an adjectival duty, which by definition is not expressly provided for in the Convention, must especially be fashioned by the judgment of the domestic courts as to what in their jurisdiction is sensibly required to support and vindicate the substantive Convention rights.
- Accordingly, this part of the case cannot be satisfactorily resolved by a process of reasoning which sticks like glue to the Strasbourg texts. Just as, in our view, on Question 2 Mr Crow originally adopted too rigid an approach to the Human Rights Court’s jurisprudence in submitting that the duty to investigate was only triggered in cases of the use of unlawful force by State agents, so also on Question 3 Mr O’Connor makes the same error in submitting that there are fixed requirements of publicity and family participation, uniformly applicable to every investigation. What is required will vary with the circumstances. A credible accusation of murder or manslaughter by State agents will call for an investigation of the utmost rigour, conducted independently for all to see. 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 procedural obligation promotes these interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduced to a catechism of rules. What is required is a flexible approach, responsive to the dictates of the facts case by case. In our judgment the Strasbourg authorities including Edwards are perfectly consistent with this. And it is an approach which embraces what we will say in the Middleton appeal about the Coroner’s jurisdiction and inquest verdicts of neglect.
- In all these circumstances we agree with Mr Crow that publicity and family participation are not necessarily discrete compulsory requirements which must be distinctly and separately fulfilled in every case where the procedural duty to investigate is engaged. Further, and somewhat more broadly, we consider that Jackson J’s fourth proposition in paragraph 43 of his judgment in Wright cannot be accepted at face value. For convenience we set it out again:
“4. Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paragraphs 106 to 109.”
This might seem to suggest something of a universal formula for all investigations undertaken in fulfilment of Article 2, and to that extent we disagree with it. In fairness the judge had just indicated, in proposition (3), that “[t]here is no universal set of rules for the form which an effective official investigation must take”, and in our judgment that is entirely correct.
(4) Should the judge have held that the procedural obligation to investigate was in any event discharged on the facts of the case?
- Although on this part of the case Mr O’Connor’s submissions invited our attention to many points of detail, it is in our judgment necessary to stand back to see clearly what is in truth involved in the question. We consider that the starting-point consists in the proposition that all the measures taken by public authorities to respond to and investigate the death, whether instituted by central government or otherwise, have to be taken into account in deciding whether the procedural duty is satisfied. We have already approved (paragraph 38) Mr Crow’s submission to that effect: the court should look at the matter pragmatically, in the round, taking account of all the investigative initiatives which have been undertaken. Our views on Question 3, set out above, support this approach.
- On the facts in Amin’s case, it seems to us that there are three very significant circumstances which have to be considered at the outset. It is important to notice that to a greater or lesser extent they serve to distinguish the case from Edwards. The first of these circumstances is the content of the letter of 28th March 2000 from the Director General of the Prison Service, written on the date of the death. The second is the conviction of the killer, Stewart, of the offence of murder after a contest as to whether he was guilty of manslaughter only on grounds of diminished responsibility. The third is Mr O’Connor’s express (and, if we may say so, plainly correct) acceptance that no further information is required for the family to mount a civil claim.
- The significance of the Director General’s letter is twofold. First, it contains an unqualified acceptance of fault on the part of the Home Office. Secondly, it made it plain that the Department desired to involve the parents in the inquiry immediately to be undertaken - that is, the Butt inquiry - “as far as it is possible and to the extent that you wish…” Upon this second point, Mr O’Connor did not accept that the letter offered sufficient guarantees of participation by the family. In our judgment there is nothing in that. It is clear that the intention from the start was to conduct an inquiry to whose processes the family would have substantial access, at least by way of consultation and information. We cannot know whether there might have come a sticking-point at which the Department jibbed at further participation, since (and this is no criticism) the parents declined the offers made in the letter. Upon this aspect, the case is quite unlike that of Edwards, where the Strasbourg court held that the family’s rights of participation were unacceptably restricted. In our case, given the family’s refusal to accept the offer of participation and involvement held out to them, it would be entirely wrong to speculate or suppose that had the offer been accepted, its fulfilment might not have been adequate for the purposes of Article 2.
- The significance of Stewart’s conviction is a little more diffuse. It established that there was no question of the death having been caused by the use of lethal force by State agents; and that is itself an important fact. But it also established facts such as that the assault took place at night (when there was no prospect of intervention by a prison officer); how Stewart came to be in possession of the murder weapon; and that (by the jury’s rejection of the defence plea of diminished responsibility) Stewart was mentally responsible for what he did.
- The significance of the third circumstance, that is Mr O’Connor’s correct concession, speaks for itself: no further inquiry is needed for the enabling of the family’s civil rights.
- It is also important to have in mind these further matters. First, there is, as we understand it, no suggestion that the criminal investigation into the Prison Service should have had any different outcome, so that prison officers should be prosecuted for offences in relation to the death. Secondly, the CRE investigation is engaged in a rigorous examination of the race elements in the case. In Edwards there was no analogue of the CRE inquiry.
- In summary, then, (1) there is no contest but that the Prison Service was at fault in relation to the death; (2) an inquiry (Butt) into the nature of this fault was undertaken, and the family were expressly invited to be involved; (3) the primary responsibility for the death was established by Stewart’s conviction for murder; (4) there is no basis for the prosecution of any member of the Prison Service; (5) there are no factual unknowns which now impede the bringing of any proper civil claim by the family; (6) the race dimension in the case is subject to substantial scrutiny.
- What remains to investigate? A principal thrust of Mr O’Connor’s argument on this part of the appeal was to the effect that, in various respects which he enumerated, the Butt report was an inadequate exercise for the fulfilment of the Article 2 duty to investigate because it did not nail down the responsibility of particular individuals. However he first made the more general submission that there was no public hearing; and relied on the Strasbourg decision in McKerr (app. no. 2883/95) to support the proposition that even an investigation which is factually exhaustive will not necessarily satisfy Article 2. That case is of no help at all; it was one where it was said evidence had been deliberately concealed, and in that case no doubt a special degree of scrutiny would rightly apply. Nor is Mr O’Connor’s argument on this aspect advanced by Edwards, which as we have said is consistent with an overall approach of pragmatic flexibility.
- Mr O’Connor’s complaints about the substance of the Butt report may be summarised thus. There were something like 206 statements obtained by the police which Butt did not see. There were officers whom Butt should have interviewed, but did not. There were conflicts between the information seemingly given to Butt about immediately relevant events and what was said to the police. The police identified specific faults – three in particular - by specific prison officers which Butt failed to identify. In short, the work done by the police shows that Butt was less than rigorous. Mr O’Connor listed before the judge (judgment, paragraph 34) some 23 items or topics which he said had been left unresolved by Butt.
- There are disputes about some of these matters, as is shown by the statement of Roger Gaines, a Senior Manager in the Prison Service, which was put in with the court’s permission for the purposes of the appeal. And Mr Crow submits (and to our satisfaction demonstrates) that a number of the 26 points of detail are not real points at all, being in the nature of rhetorical questions; others are answered or considered by the police. It is unnecessary to travel through all this material. In general, anyone reading the Butt report (as we have of course done) will not fail to be impressed by the independent stance it takes and the comprehensive nature of the investigation. The investigators spent five weeks at Feltham, working closely with the police. The report provides a detailed explanation of the systemic failings which led to the murderer sharing a cell with the deceased (Part I Section C ##20-42, Section I and Section J ##1-22), and made detailed recommendations (Part I Section J, Part II Section R). The evidence is that most of these are already in place at Feltham, and those which are not are to be introduced within a strict time-table.
- Mr O’Connor’s specific criticisms of the Butt report, and in particular his case to the effect that there was a failure to identify and condemn specific failings by specific officers, seem to us if anything to emphasise the importance of looking at all the investigative processes in the round: here including the police investigation. He suggests also that it was not institutionally independent from the subject of the investigation; and of course it is right that Mr Butt was an official within the Prison Service. But any required standards of independence must, in this case, be seen against the very sharp focus of the Director General’s plain acceptance of responsibility at the outset. Against that particular circumstance allegations of a want of independence are in our judgment formalistic and not realistic.
- The position is that all the facts required to be exposed to support the State’s substantive duty under Article 2 have been, or - given that the CRE investigation is ongoing – will be exposed. Asked at the end of his submissions what would be the benefit of any further inquiry, Mr O’Connor answered that the primary benefit would be to the public: the State must be accountable for defaults for which it is responsible. That is no more than a truism. In this case, in light of all the events which have happened, we are clear that no distinct public inquiry is now called for by any imperative of democratic accountability; and there is no violation by the State of ECHR Article 2.
- Of the four issues which we identified at the outset, the judge, with respect, was right on (1) and (2) but wrong on (3) and (4). We will allow the appeal in the case of Amin.
Middleton – the Issues in the Appeal Confronted
- It is, of course, against the same background of Articles 2 and 3 of the Convention and Strasbourg and domestic jurisprudence that the single issue in Middleton’s case remains to be determined: whether the declaration set out in paragraph 4 should have been granted by Stanley Burnton J? The issue arises because of the decision of this Court in R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson  QB 1. The case followed a prisoner hanging himself in prison. Similar issues there arose as to possible neglect by prison staff and the Prison Service contributing to the death of the prisoner as arise in the case of this appeal.
- This court decided in that case that neglect could rarely, if ever, be a permissible free-standing verdict of a jury at Coroners’ inquests. In giving the judgment of the Court Sir Thomas Bingham MR traced the history of the role of a Coroners Court. Conveniently, the Master of the Rolls summarised the Court’s general conclusions in fourteen paragraphs which we will now set out together with the most important provisions of the Coroners Act 1988 and Rules referred to in those conclusions.
“Coroners and inquests are today regulated by the Coroners Act 1988. The duty to hold an inquest arises under section 8(1), which provides:
‘Where a Coroner is informed that the body of a person (‘the deceased’) is lying within his district and there is reasonable cause to suspect that the deceased – (a) has died a violent or an unnatural death; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such circumstances as to require an inquest under any other Act, then, whether the cause of death arose within his district or not, the Coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury.’
Section 8(3)(a) requires that the inquest be held with a jury where, as here, the death occurred in a prison.
Section 11 governs the proceedings at the inquest, providing, inter alia:
‘(3) In the case of an inquest held with a jury, the jury shall, after hearing the evidence – (a) give their verdict and certify it by an inquisition; . . . (5) An inquisition- (a) shall be in writing under the hand of the Coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict; (b) shall set out, so far as such particulars have been proved – (i) who the deceased was; and (ii) how, when and where the deceased came by his death; and (c) shall be in such form as the Lord Chancellor may by rules made by statutory instrument from time to time prescribe’.
The Coroners Rules 1984 provide, inter alia:
‘36 (1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely – (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the Coroner nor the jury shall express any opinion on any other matters.
40. No person shall be allowed to address the Coroner or the jury as to the facts.
41. Where the Coroner sits with a jury, he shall sum up the evidence to the jury and direct them as to the law before they consider their verdict and shall draw their attention to rules 36 (2) and 42.
42. No verdict shall be framed in such a way as to appear to determine any questions of – (a) criminal liability on the part of a named person, or (b) civil liability.
43. A Coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.’
This long survey of the relevant statutory and judicial authority permits certain conclusions to be stated.
(1) An inquest is a fact-finding inquiry conducted by a Coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter.
(2) Both in section 11 (5) (b) (ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, “how” is to be understood as meaning “by what means.” It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but “how. . . the deceased came by his death,” a more limited question directed to the means by which the deceased came by his death.
(3) It is not the function of a Coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not.
(4) This prohibition in the Rules is fortified by considerations of fairness. Our law accords a defendant accused of crime or a party alleged to have committed a civil wrong certain safeguards rightly regarded as essential to the fairness of the proceedings, among them a clear statement in writing of the alleged wrongdoing, a right to call any relevant and admissible evidence and a right to address factual submissions to the tribunal of fact. These rights are not granted, and the last is expressly denied by the Rules, to a party whose conduct may be impugned by evidence given at an inquest.
(5) It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the Coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability.
(6) There can be no objection to a verdict which incorporates a brief, neutral, factual statement: “the deceased was drowned when his sailing dinghy capsized in heavy seas,” “the deceased was killed when his car was run down by an express train on a level crossing,” “the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium.” But such verdict must be factual, expressing no judgment or opinion, and it is not the jury's function to prepare detailed factual statements.
(7) Cases arise, usually involving the old, the infirm and the senile where the deceased contributes to his or her own death by a gross failure to take adequate nourishment or liquid, or to obtain basic medical attention, or to obtain adequate shelter or heating. In such a case it may be factually accurate and helpfully descriptive to State that self-neglect aggravated, or preferably contributed to, the primary cause of death. Rarely, if ever, can it be factually accurate or helpfully descriptive to regard self-neglect as the primary cause of death (that is, in the language of the cases, to adopt it as a free-standing verdict).
(8) Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression “lack of care” may for practical purposes be deleted from the lexicon of inquests and replaced by “neglect.”
(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person’s mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person’s condition, whether physical or mental, appeared to be.
(10) As in the case of self-neglect, neglect can rarely, if ever, be an appropriate verdict on its own. It is difficult to think of facts on which there would not be a primary verdict other than neglect. But the notes to form 22 in the Rules of 1984, although in themselves of no binding force, are correct to recognise that neglect may contribute to a death from natural causes, industrial disease or drug abuse. Want of attention at birth, also mentioned in the notes, may itself be regarded as a form of neglect. A verdict that, for instance, “the deceased died from natural causes [or industrial disease, or drug abuse] to which neglect contributed” would seem perhaps more apt than a verdict that “the deceased died from natural causes [or industrial disease, or drug abuse] aggravated by neglect,” since “aggravated” in this context means “made worse”, and in truth the neglect probably did not make the fatal condition worse but sacrificed the opportunity to halt or cure it.
(11) Where it is established that the deceased took his own life, that must be the verdict. On such facts, as the applicant in the present case accepted, there is no room for a verdict of neglect (or, as he would have put it, lack of care). It is also inappropriate in such a case, as the applicant also accepted, to describe that cause of death as aggravated by neglect (or lack of care). On certain facts it could possibly be correct to hold that neglect contributed to that cause of death, but this finding would not be justified simply on the ground that the deceased was afforded an opportunity to take his own life even if it was careless (as that expression is used in common speech or in the law of negligence) to afford the deceased that opportunity. Such a finding would only be appropriate in a case where gross neglect was directly connected with the deceased’s suicide (for example, if a prison warder observed a prisoner m his cell preparing to hang a noose around his neck, but passed on without any attempt to intervene).
(12) Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.
(13) It is for the Coroner alone to make reports with a view to preventing the recurrence of a fatality. That is the effect of rules 36(2) and 43.
(14) It is the duty of the Coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.”
- The fact that a jury cannot under domestic law normally return a verdict of “neglect” does appear at first sight surprising. They are after all entitled to return a more serious verdict, in the shape of “unlawful killing”. However, as the Master of the Rolls then explained, “neglect” raises issues routinely determined in litigation alleging negligence and civil proceedings are a more appropriate forum in which to resolve questions of negligence. The seeming limitation does not arise out of a desire to limit the issues canvassed at the inquest, because the Rules in fact allow the wider inquiry to take place. So much is demonstrated by what happened in this particular case. The first inquest was quashed by the High Court because the Coroner did not permit a sufficient investigation of neglect to be carried out. The second inquest did consider this issue but when the jury expressed their views on neglect, after the issue had been investigated before them, the Coroner felt he was not permitted by the rules to reveal their views.
- The virtues of the restriction on verdicts of neglect are two-fold. First, the restriction avoids conflicts occurring between the verdict of a Coroner's jury and a decision of the courts. Secondly, the restriction avoids a potential defendant being found guilty of negligence without having the greater protection which he would have as a defendant contesting an allegation of negligence in civil proceedings. These virtues should not be lightly discarded. On the other hand the inhibition on a Coroner's jury bringing in a verdict of neglect can impede the ability of an inquest to fulfil the requirements of Article 2. Despite this inquests still make an important contribution, in the majority of cases, to meeting the implicit obligations of the UK under Article 2.
- This is because usually the Coroners Rules achieve a sensible reconciliation between conflicting interests, namely:
i) the interests of the victims and the public in being able to investigate the circumstances surrounding a death, particularly a death in prison and
ii) the interests of those who might be held responsible for the death of the deceased and
iii) the need to restrict the scope of the inquest in the interests of expedition, affordability and proportionality.
- The Rules have to be applied in many different circumstances. While they achieve a better balance in some circumstances than others, in general they enable coroners to conduct inquests in a way which satisfactorily reconciles those conflicting interests.
- Jamieson was decided before the HRA came into force. Now it is in force Mr Ben Emmerson QC, on behalf of the respondents, submits that it is necessary to take into account Article 2 and in particular the implicit adjectival procedural obligation for there to be an effective inquiry into the circumstances of a death, at least when there is an alleged involvement of the State in the events which have happened. This obligation raises considerations which did not have to be taken into account in Jamieson. It is now necessary to decide whether the requirements of Article 2 are achieved by applying the Rules in accordance with the guidance in Jamieson and if not, whether the application of the Rules can be modified so as to take into account the requirements of Article 2, if those requirements include permitting the jury to enquire into and return a verdict of “neglect” in a broader range of circumstances than contemplated by the approach laid down in Jamieson.
- In the court below, Stanley Burnton J, as we have seen, decided the Rules had to be modified to take into account Article 2. Mr Crow submits on behalf of the Crown that, in the case of a death by suicide, when there is no suggestion that the death is caused by the use of force by State agents the usual range of civil remedies (now supplemented by the possibility of proceedings under the HRA) are sufficient to comply with the State's obligations under Article 2. We have already indicated that the obligations of the State can be triggered if there is a breach of duty by the State which contributed to the death of the deceased even though no agents of the State were directly involved. In addition civil proceedings are not regarded by Strasbourg as satisfying the obligations of the State under Article 2 (see Edwards paragraph 74); though we would suggest that if civil proceedings are a practical proposition, they are a factor which should not be ignored in considering whether there has been compliance with Article 2.
- While we do not accept Mr Crow’s submission, the question still arises as to whether any particular inquest satisfies the procedural requirements of Article 2. Whether it does so or not depends on whether the inquest, in the circumstances being enquired into, should be “any particular matter elevant to the death being examined” (emphasis added). We base this view on paragraph 128 of Jordan, to which we have not yet referred, which is in these terms:
“128. It is also alleged that the inquest in this case is restricted in the scope of its examination. According to the case law of the national courts, the procedure is a fact-finding exercise and not a method of apportioning guilt. The Coroner is required to confine his investigation to the matters directly causative of the death and not to extend his inquiry into the broader circumstances. This was the standard applicable in the McCann inquest also and did not prevent examination of those aspects of the planning and conduct of the operation relevant to the killings of the three IRA suspects. The Court is not persuaded therefore that the approach taken by the domestic courts necessarily contradicts the requirements of Article 2. The domestic courts accept that an essential purpose of the inquest is to allay rumours and suspicions of how a death came about. The Court agrees that a detailed investigation into policy issues or alleged conspiracies may not be justifiable or necessary. Whether an inquest fails to address necessary factual issues will depend on the particular circumstances of the case. It has not been shown in the present application that the scope of the inquest as conducted so far has prevented any particular matters relevant to the death being examined.”
- Mr Crow also submits that the procedural obligation under Article 2 is an obligation as to means, not an obligation of results. (See Jordan paragraph 107 cited above). Mr Crow is here drawing attention to the distinction between the matters into which the jury can inquire and those in relation to which they can return a verdict; and he emphasises that the complaint on this approach relates only to the verdict.
- A verdict of neglect can perform different functions. In particular, in the present context, it can identify a failure in the system adopted by the Prison Service to reduce the incidence of suicide by inmates. Alternatively it may do no more than identify a failure of an individual prison officer to perform his duties properly. We offer two illustrations, which demonstrate the distinction we have in mind. On the one hand, the system adopted by a prison may be unsatisfactory in that it allows a prisoner who is a known suicide risk to occupy a cell by himself or does not require that prisoner to be kept under observation. On the other hand, the system may be perfectly satisfactory but the prison officer responsible for keeping observation may fall asleep on duty.
- For the purpose of vindicating the right protected by Article 2 it is more important to identify defects in the system than individual acts of negligence. The identification of defects in the system can result in it being changed so that suicides in the future are avoided. A finding of individual negligence is unlikely to lead to that result. If the facts have been investigated at the inquest the evidence given for this purpose should usually enable the relatives to initiate civil proceedings against those responsible without the verdict identifying individuals by name. The shortcomings of civil proceedings in meeting the requirements of Article 2 do not in general prevent actions in the domestic courts for damages from providing an effective remedy in cases of alleged unlawful conduct or negligence by public authorities.
- In contrast with the position where there is individual negligence, not to allow a jury to return a verdict of neglect in relation to a defect in the system could detract substantially from the salutary effect of the verdict. A finding of neglect can bring home to the relevant authority the need for action to be taken to change the system, and thus contribute to the avoidance of suicides in the future. The inability to bring in a verdict of neglect (without identifying any individual as being involved) in our judgment significantly detracts, in some cases, from the capacity of the investigation to meet the obligations arising under Article 2.
- The Coroner of West London is not directly involved in the Middleton appeal, but being present for the Amin appeal requested permission to make submissions in writing as a party interested. We gave permission and the submissions prepared by Miss Linda Sullivan QC on behalf of the Coroner have proved to be extremely helpful. The submissions are as follows.
“1. The Respondent, in his submissions, equates the State’s responsibilities under Article 2 with those of the Coroner. In conducting an Inquest a Coroner is not in the same position as the State in terms of obligations under Article 2. An Inquest alone may or may not satisfy the State’s obligations to carry out an investigation under Article 2, with or without an adjectival finding of neglect. Whether it does or not will depend upon the particular circumstances of the individual case.
2. Submissions to the effect that the Coroners Act 1988 and the Coroners Rules 1984 must be re-interpreted to be Article 2 compliant are based upon the false premise that an Inquest is the only way in which the State can comply with its duties under Article 2. A re-interpretation is not necessary if it is accepted that the State’s obligations can be satisfied by the cumulative effect of a number of procedures, the Inquest being only one possible one.
3. We submit that it would be wrong in principle to hold that the Coroner must bear the residual responsibility for the State’s obligations under Article 2, in the event that all other possible procedures have been excluded or held to be ineffective to so comply with Article 2.
4. It is open to the Government to amend the legislation if the Government wishes to rely more extensively upon Inquests to satisfy the State’s obligations under Article 2, we submit that it is not appropriate for the Courts to make that decision.
5. In effect the Respondent’s submissions amount to an Appeal of Jamieson by the back door. “How” in s.11 (5)(c) of the Coroners Act 1988 and Rule 36(b) and “neglect” are open to a number of interpretations and is a question of semantics. The narrow interpretations in Jamieson have led, in practice, to inconsistent applications by Coroners, some of whom have applied a wider interpretation than Jamieson permits without challenge in the higher Courts. A number of Coroners are of the view that a more liberal interpretation than Jamieson permits is both practical and desirable. Whilst accepting that a more liberal interpretation would have the effect of making more Inquests Article 2 compliant as far as the State’s obligations are concerned, it is submitted that the Human Rights legislation does not make such a liberal interpretation compelling and binding on Coroners.
6. In the Coronial jurisdiction “neglect” has never been equated with the civil court’s concept of negligence which incorporates the concept of fault, it is the obverse of “self neglect”, and is concerned with the effect of particular circumstances on the deceased rather than an evaluation of the conduct of others. In so far as the Respondent contends for a finding of “responsibility” for lack of reasonable care, by a Coroner’s Court, this would change the fundamental purpose of the Inquest. An Inquest is a fact-finding procedure and its inquisitorial nature would be transformed into an adversarial one. In those circumstances both the Coroners Act and the Rules would require wholesale redrafting, for example, inter alia: Rule 40 prevents any person from addressing the Coroner or the jury as to the facts; Rule 42 prevents a verdict being framed in such a way as to determine any question of criminal liability on the part of a named individual and prevents determination of any question of civil liability; there are no statutory powers for compelling the production of documents prior to the Inquest hearing itself; nor for advance disclosure of documents to interested parties; the summoning of witnesses and sanctions for non-compliance are not comprehensively dealt with as in the civil courts; State funding for representation of the parties is not readily available. Significant breaches of Article 6 are likely to be alleged by those found at fault without such amendment. (Sic)”
- We accept that submissions 1 to 4 possess considerable force. The Article 2 duty is primarily that of the State; any shortcomings in the jurisdiction of a Coroner’s inquest have to be made good by the State. However, coroners are themselves public bodies for the purposes of section 6(1) of the HRA and are therefore now required under domestic law not to act in a way which is incompatible with a Convention right subject to section 6(2). The effect of section 6(2)(b) is that a Coroner can only rely on the Coroners Rules to excuse his not acting in accordance with Convention rights if the relevant rule “cannot be read or given effect in a way which is compatible with Convention rights”. In a situation where a Coroner knows that it is the inquest which is in practice the way the State is fulfilling the adjectival obligation under Article 2, it is for the Coroner to construe the Rules in the manner required by section 6 (2) (b). Rule 42 can and should, contrary to Jamieson, when necessary be construed (in relation to both criminal and civil proceedings) only as preventing an individual being named, with the result that a finding of system neglect of the type we have indicated will not contravene that rule. If the Coroner is acting in accordance with the rule for this purpose he will not be offending in this respect section 6(1).
- For a Coroner to take into account today the effect of the HRA on the interpretation of the Rules is not to overrule Jamieson by the back door. In general the decision continues to apply to inquests, but when it is necessary so as to vindicate Article 2 to give in effect a verdict of neglect, it is permissible to do so. The requirements are in fact specific to the particular inquest being conducted and will only apply where in the judgment of the Coroner a finding of the jury on neglect could serve to reduce the risk of repetition of the circumstances giving rise to the death being inquired into at the inquest. Subject to the Coroner, in the appropriate cases, directing the jury when they can return what would in effect be a rider identifying the nature of the neglect they have found, the rules will continue to apply as at present. The proceedings should not be allowed to become adversarial. We appreciate there is no provision for such a rider in the model inquisition but this technicality should not be allowed to interfere with the need to comply with section 6 of the HRA.
- The declaration granted by Stanley Burnton J has served its purpose in providing a vehicle for appeal. We do not need to express any view as to whether it would have been correctly made if the “riders” had not been published. They have been published and the claimants are satisfied. This appeal is allowed in part.
Order: Appeals allowed in part; detailed assessment in case of Amin; Respondent Middleton to have half her costs; Mr Crow to draft a declaration; leave to appeal refused.
(Order not part of approved judgment)