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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> JL, R (on the application of) v Secretary of State for Justice [2009] EWHC 2416 (Admin) (07 October 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/2416.html Cite as: [2009] EWHC 2416 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Right Hon Lord Justice Laws
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF "JL" (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR JUSTICE |
Defendant |
____________________
Mr Jonathan Swift (instructed by The Treasury Solicitor) for The Secretary of State for Justice
Hearing dates : 22 & 23 July 2009
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Crown Copyright ©
Lord Justice Laws :
INTRODUCTION
"Everyone's right to life shall be protected by law."
Article 2 has been construed as involving an ancillary or procedural obligation upon the State, in cases where a death or an attempted suicide (or "near-death") occurs in circumstances in which the State bears or may bear some responsibility for what has happened, to conduct an investigation which must fulfil certain standards, essentially of independence and openness.
THE CLAIMANT'S HISTORY
"11. On 18th July 2002 JL was arrested for possession of nineteen wraps of crack cocaine, with the intention of supplying to another. He was remanded in custody until 26th July 2002. He was also subject to a detention order under immigration powers. This was his first time in prison custody. On the second entry in the core record form he was noted on 20th July 2002 to be very anxious and stressed and to be vulnerable due to high anxiety. On 21st July 2002 an F2O52SH, self-harm at risk form, was opened because he was very upset about his family circumstances and was in tears. It was noted that this should remain open due to his unpredictable mood. He was admitted to health care on account of anxiety and remained there until 23rd July 2002. On 25th July 2002 it was recorded that he was denying thoughts of self-harm at the present and on 26th July 2002 he was remanded in custody until 23rd August 2002.
12. On 27th July 2002 an officer noted that he had concerns regarding JL and on the same day JL was said to be having increasingly negative thoughts about the future, to have subjectively low mood and to look a bit depressed. On 31st July 2002 concerns were expressed that JL might try to self-harm and he was found very distressed in his cell, and a noose made out of sheets was found in his cell. This fact was recorded in a chaplaincy report, although the health care note and other records of that day made no mention of it. He was noted by Father Roger to be a very high suicide risk and he was admitted to health care for observation. He was placed on intermittent observations and was placed in a safe cell with stripped bedding until seen by a GP.
13. On 1st August 2002 a note from a chaplain indicated that JL was overwhelmed by anxiety, worried about his children, extremely upset after an angry telephone call with his girlfriend, who said she could not visit, felt powerless and that any scenario he fears will happen has actually happened. The chaplaincy report indicated that at this time JL was very distressed and in need of support. It noted that the prompt for this episode was that he had had a row with his partner because she was not visiting him as often as he would have liked. The note also indicated that one of the chaplains and SO Boyes were concerned that JL was at risk of doing himself serious harm, as he was so prone to acting impulsively when emotional and he may see it as a means of getting out of prison.
14. On 4th August 2002 an officer recorded that JL did not appear to cope too well when he did not have the company of his cell mate and that he would advise close monitoring if company ceased. On that day he was noted to be denying thoughts of self-harm or suicidal ideation at present and saying that he had not felt like that for over a week. On 8th August the self-harm risk form was closed, following a review. A support plan was agreed, apparently, by a registered mental health nurse. On 9th August he was noted to have been distressed the previous night and to have been extremely anxious since his father and brother were shot and killed in 2001. On 15th August he was noted to be very quiet and withdrawn and worried about the outcome of the trial and about his family in Jamaica. On 19th August 2002 he was noted to have constantly used the call bell. The memorandum relating to this, based on information from OSG Sharp, indicated that in the early hours of 19th August JL repeatedly rang the cell bell and then asked to see a doctor. This was refused. It noted that JL gave a fictitious name and that at this time he appeared to have a short, wide piece of bed sheet around his neck. He was writing with the light on in the cell until 4am.
15. It was noted that OSG Sharp was after the event extremely concerned that his (Mr Sharp's) performance overnight might have had something to do with JL's self-harm attempt.
16. On 19th August JL was locked in his cell alone. After lunch on 19th August JL was unlocked for classes and made a telephone call. After this, following instructions, his name was not on the list for education classes and he was locked alone in his cell. It was on 19th August at approximately 14.45 that JL was found suspended from the cell bars, with a ligature made from bed sheets tied round his neck and attached to the window bars.
17. The ligature was removed and JL was given CPR. A pulse was detected after three minutes but no breathing was noted. His pulse then stopped and he was resuscitated a second time. He ultimately survived but has serious brain damage.
18. The London area manager of the prison service promptly directed Mr Sheikh, a retired governor within the prison service, to investigate what had happened. He submitted his report to the area manager on 16th October 2002 – but this did not become apparent to JL, or his relatives, or those acting for him, until it was disclosed in correspondence from the Treasury Solicitor on 26th January 2005.
19. Amongst the findings of Mr Sheikh were first (perhaps a somewhat surprising finding) at 11.3 that 'JL did not express at any time, any thoughts of committing self-harm, though he did have continuous depressive moods and showed concerns about his children in Jamaica'.
20. Further he reported:-
'11.7 On the evidence found, the decision to open F2052SH was correct, although the closure of F2052SH was correctly based upon the information as well as the improved behavioural pattern of JL. Had the chaplain been invited to attend the case review, the decision to close it might not have been taken in the light of information provided by him.
11.8 The chaplaincy was quite deeply involved with JL, yet none of the chaplains was consulted, and the decision to close the F2052SH was made, as was evidenced by the detailed entries in the self-harm form.'
Mr Sheikh appends a letter from the Reverend Paul Foster, Anglican chaplain, which records, amongst other things:-
'When the chaplaincy team heard what had happened, most of us were surprised that this 2052SH had been closed without our input. JL has emotional ups and downs. He could not accept or understand why he is in prison. Some of his behaviour seemed to indicate that he would use any means to try to get out of prison – lying about the death of a child you love is extreme. He appeared to be a fairly high risk of self-harm, and certainly if Debbie had been invited to a case review she says she would have recommended that it be kept open for the foreseeable future. Chaplaincy has a large input into JL's life here and I believe we should have been consulted about his care, but we are generally bypassed when decisions of this nature are made. From our perspectives, this is one of the biggest lessons.'"
THE COURSE OF THE INQUIRY
- to examine the management of JL by HM Prison Service and HM YOI Feltham from 19 July 2002 to the date of his life-threatening attempted suicide on 19 August 2002, and in light of the policy and practices applicable to JL at the relevant time;
- to examine relevant health issues, including mental health assessments and JL's clinical care up to the point of his attempted suicide on 19 August 2002;
- to consider, within the operational context of the Prison Service, what lessons in respect of current policies and procedures can usefully be learned and to make recommendations: and
- to provide a formal report of the findings.
The commissioning letter also included these directions:
- This is an Article 2 investigation and must be conducted in an open, transparent and even-handed manner. You should assume that the material that you receive will be distributed simultaneously to the relevant parties to the investigation, who will be agreed from the outset…
- You must give JL through his representatives, and his family with his agreement, the opportunity to participate in your investigation…
- A chronology of events should also be prepared early in the investigation: this may be amended as the investigation progresses with the agreement of the parties.
TWO STAGES
"The aims of the [PPO's] investigation will be to:
- Establish the circumstances and events surrounding the death...
- Examine whether any change in operational methods... would help prevent a recurrence.
- In conjunction with the NHS where appropriate, examine relevant health issues...
- Provide explanations and insight for the bereaved relatives.
- Assist the Coroner's inquest in achieving fulfilment of the investigative obligation arising under article 2 of the [ECHR], by ensuring as far as possible that the full facts are brought to light and any relevant failing is exposed, any commendable action or practice is identified, and any lessons from the death are learned."
THE GROUNDS OF CHALLENGE
ARTICLE 2 ENQUIRIES: THE LEGAL STANDARD AND THE SCOPE OF THE PROCEDURAL DUTY
Amin [2004] 1 AC 653
"20. Most of the recent European cases to which reference was made in argument before the House concerned killings deliberately carried out, or allegedly carried out, by agents of the state. Naturally, therefore, such deliberate killings by state agents were the primary, although not the exclusive, subject of the Court's attention. The cases clearly establish a number of important propositions:
(1) It is established by McCann [(1995) 21 EHRR 97], paragraph 161, Yasa v Turkey (1998) 28 EHRR 408, paragraph 98, Salman [(2000) 34 EHRR 425], paragraph 104 and Jordan [(2001) 37 EHRR 52], paragraph 105 that (as it was put in McCann):
'The obligation to protect the right to life under [article 2(1)], 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.'
(2) Where agents of the state have used lethal force against an individual the facts relating to the killing and its motivation are likely to be largely, if not wholly, within the knowledge of the state, and it is essential both for the relatives and for public confidence in the administration of justice and in the state's adherence to the principles of the rule of law that a killing by the state be subject to some form of open and objective oversight: paragraph 192 of the opinion of the Commission in McCann, set out at pages 139-140.
(3) As it was put in Salman, paragraph 99,
'Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused [footnote omitted]. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies.'
Where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred: Salman, paragraph 100; Jordan, paragraph 103.
(4) The obligation to ensure that there is some form of effective official investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by an agent of the state: Salman, paragraph 105.
(5) The essential purpose of the investigation was defined by the Court in Jordan, paragraph 105:
'… 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 …..'.
(6) The investigation must be effective in the sense that (Jordan, paragraph 107) '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.'
(7) For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, paragraph 106) '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 . . .'.
(8) While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, paragraph 121), there must (Jordan, paragraph 109) 'be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case.'
(9) 'In all cases', as the Court stipulated in Jordan, paragraph 109:
'the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests'.
(10) The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, paragraph 143. But it is 'indispensable' (Jordan, paragraph 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force."
"Mr Crow [for the Secretary of State] was right to insist that the European Court has not prescribed a single model of investigation to be applied in all cases. There must, as he submitted, be a measure of flexibility in selecting the means of conducting the investigation. But Mr O'Connor was right to insist that the Court, particularly in Jordan and Edwards, has laid down minimum standards which must be met, whatever form the investigation takes. Hooper J loyally applied those standards. The Court of Appeal, in my respectful opinion, did not. It diluted them so as to sanction a process of inquiry inconsistent with domestic and Convention standards."
"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 paras 106-109."
D [2006] 3 AER 946
"12. The Home Secretary accepted before the judge and accepts before us that, in combination, (a) the circumstances surrounding the attempted suicide by D, who was known by the prison authorities to be 'a real and immediate suicide risk', (b) the seriousness of that incident and its consequences and (c) the existence of issues as to whether more could have been done to deal with the risk, triggered the implicit investigative obligation under article 2. It is right that we should record, as the judge did, that the Home Secretary's acceptance that the investigative obligation was triggered in this case is fact specific and that he does not accept that such an obligation would arise in all cases of self-harm or attempted suicide in custody."
"24. In considering whether the judge erred in principle, it is in our view important to have in mind what the judge meant by directing that the inquiry must be in public. We do not think that he can have meant that the whole process must be in public. No inquiry is ever wholly in public. Thus, for example the police investigate a death and report to the coroner. Their investigation is not in public.... We think that the judge must have contemplated simply that Mr Shaw (or whoever conducts the inquiry) would make the evidence and any written submissions public and take oral evidence in public, subject to the proviso which he included in the order to the effect that there might be Convention compatible reasons for not holding the whole investigation in public. It will of course be for the person conducting the inquiry to decide what oral evidence to call and indeed whether he wishes to hear oral submissions."
Here we can see the makings of a distinction between an investigative stage, not or not necessarily held in public, followed by public hearings at which the evidence is given. The court continued:
"25. We have reached the conclusion that the authorities, and in particular, Amin [sc. in the House of Lords: [2004] 1 AC 632], demonstrate that the judge was correct to hold that the investigation into the attempted suicide of D should be in public (in the sense just described) in order to discharge the United Kingdom's obligations under article 2 of the Convention."
JL in the Court of Appeal: [2008] 1 WLR 158
"7. What each side is seeking primarily is the answer to the question whether the enhanced obligation to investigate and particularly to carry out an investigation with the features laid down in R(D) v Secretary of State (a D-type investigation) has been triggered in this case, but the Secretary of State's interest is seeking a definition of the trigger which can be applied also in the future, the concern being the resource implications that would seem to follow if a D-type investigation must occur in every case of a suicide or near miss by someone in custody."
"32. I am clear that the simple fact of a death or serious injury of a person in custody gives rise to an obligation on the State to conduct the enhanced type of investigation. The extent of that investigation will depend on the circumstances and in my view some consideration needs to be given as to whether different triggers may not operate at different stages. The weaknesses in Mr Giffin's submissions (who would seek to suggest no form of investigation by an independent person needs to take place if there is 'no arguable case') are first that the accountability of the State means as it seems to me more than simply being accountable for a substantive breach; it means accountable in the sense of explaining how the death in custody occurred...
33. As regards the nature of the investigation it seems to me that a death or near death in custody ipso facto means that the State must commence an investigation by a person independent of those implicated in the facts. The extent to which there must then be some further inquiry in the nature of a public hearing in which the next of kin or the injured person can play a part will depend on the circumstances. In the case of a death there will be an inquest, and the coroner may have to decide whether the circumstances are such as to require something containing all the Amin ingredients. In cases of serious injury the nature of the further inquiry necessary will depend on the facts as discovered by the independent investigator. It is at this stage that I would accept something more than the mere fact that the death or serious injury was in custody will dictate the extent of the necessity to hold a full D-type inquiry. But my emphasis is to stress that in my view where the death or suicide or near suicide is in custody the something is not best expressed in the words 'an arguable case', but in the language favoured by the judge 'that the State or its agents potentially bear responsibility' and that in the particular circumstances ascertained by the independent investigator 'it is not plain that the State or its agents can bear no responsibility'."
Here the two stages begin to find overt expression.
"57. I have set out the facts at the commencement of the judgment. I have also set out the background statistics in relation to suicides and attempted suicides in prisons. In that context it is clear to me that the obligation on the State to initiate an enhanced investigation was clear. In this case without in any way casting aspersions on Mr Sheikh's integrity an investigation by a former prison governor could not have had the degree of independence required.
58. I can however go further. If and insofar as there has been some investigation and some discovery of the facts from the records produced, for the reasons essentially given by the judge, this is a case in which a further enquiry conforming to that required in D is necessary.
59. JL having been correctly placed on Form F2052SH, was then taken off that form in circumstances which give rise to anxiety. First, it seems that the records may not have recorded the 'noose' incidents. Perhaps more importantly the Rev. Foster regarded JL as remaining a high risk to himself but the chaplains were not consulted. Thus those who took the decision to discharge JL from F2052SH were unaware of their views. In the event the facts as disclosed from the records as I have set them out, but particularly the fact he was on the F2052SH form and then taken off it, taken together with his conduct on the night before he was found, all give rise to questions to which the family are entitled to answers. The situation, occurring in the context of the statistics to which I have referred relating to suicides and self harming by persons in custody, is one in which it is important (echoing the words of Lord Bingham in Amin) that the full facts are brought to light, that culpable conduct, if it exists, is exposed and that certain practices such as not consulting with the chaplain and his staff are considered.
60. An investigation by an independent investigator would in this case have had to form the view that potentially the State may have failed in its obligations to protect life giving rise to an obligation to hold the full D-type inquiry. He could not have concluded that it was plain that the State could never be responsible."
JL in the House of Lords: [2009] 1 AC 588
After the Court of Appeal's judgment had been given on 24 July 2007 the Secretary of State, as I have indicated, accepted that a D-type investigation was required on the facts of the present case; and in November 2007 the two-stage procedure was proposed. Notwithstanding this the Secretary of State sought and obtained leave to appeal the Court of Appeal's decision to the House of Lords, in order to test in principle the scope and nature of the procedural obligation in relation to near-deaths in custody. His position was described by Lord Phillips of Worth Matravers at paragraph 13, but I can go to paragraph 32:
"It is common ground, and obviously correct, that where a prisoner attempts to commit suicide in prison, nearly succeeds and causes himself serious injury in the attempt, some investigation of the surrounding facts is necessary. The Secretary of State contends that the initial investigation can be internal and that, unless it shows that there is an arguable case that the prison authorities were at fault in permitting the suicide attempt to occur, there will be no need for any further investigation. JL and the intervener [sc. the Equality and Human Rights Commission] contend that article 2 requires that, from the outset, the investigation must be carried out by a person independent of the prison authorities."
"depend not merely upon whether the initial investigation is independent, but upon whether it satisfies all the requirements of an enhanced investigation]...
45. There will, however, be circumstances in which the initial investigation will not be adequate to satisfy article 2 and where a D type investigation is required. The public interest may itself require this. In Edwards the Court remarked that the manner in which the deceased lost his life was so horrendous that the public interest in the issues thrown up called for the widest exposure possible. The need for an efficacious investigation may require this... Where the initial investigation discloses serious conflicts of evidence a D type investigation may be called for. There will be other circumstances in which the person carrying out the initial investigation will decide to recommend a D type investigation... I do not believe that it would be appropriate for your Lordships to attempt to prescribe the circumstances in which a D type investigation will be necessary to satisfy article 2."
"77. The Secretary of State is concerned about the financial implications of having to hold an independent investigation in cases of attempted suicide. His concern is entirely proper, as the European Court has recognised in the judgments cited in para 56 above. His anxieties may have been fuelled, however, by an impression that, whenever article 2 requires an independent investigation to be set up, that investigation has to have all the bells and whistles of the full-blown public inquiry described by the Court of Appeal in [D] - sometimes called a 'type D inquiry'. Nothing could be further from the truth. I respectfully endorse what my noble and learned friend, Lord Brown of Eaton-under-Heywood, says on this matter in paras 107 and 108 of his speech."
"107. With regard to near-suicide cases resulting, as here, in lasting serious injury..., I have no doubt that Mr Shaw was right in his D report to recommend (as noted by Lord Phillips at para 47) investigations which 'include an independent element, and engage the person who has been harmed and/or their family'. If the Ombudsman himself, or perhaps a senior deputy, could carry them out, so much the better. Elementarily, to satisfy the basic requirements of any article 2 investigation, besides being independent and involving the family, they must in addition be initiated by the state, be promptly and reasonably expeditiously carried out, and provide for a sufficient element of public scrutiny. Beyond this, however, it is impossible to be prescriptive.
108. Generally speaking I can see no need for inquiries into near-suicides to take place in public although obviously the independent investigator's report would itself be made public. If, of course, any particular problems come to light during the investigation—if, say, witnesses prove uncooperative, or egregious failures become manifest (again one cannot be prescriptive about the circumstances which might occasion a change of course), the person conducting the investigation might feel it necessary to expand it into something akin to a D-type inquiry. For my part, however, I would expect that to be a comparatively rare event and, concerned though inevitably your Lordships must be about a number of apparently troubling features of the respondent's attempted suicide, I question whether this is itself such a case."
THE FORM OF THE ENQUIRY IN THIS CASE
GROUND (1): INDEPENDENCE
Authorities
"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..."
This formula is repeated in Edwards v United Kingdom (2002) 35 EHRR 487 at paragraph 70. That case, like Amin, concerned the quality of enquiry into the death of a prisoner killed by his cell-mate.
"14. In Porter v. Magill... the House of Lords approved a modification of the common law test of bias enunciated in R v Gough [1993] AC 646. This modification was first put forward in In re Medicaments and Related Classes of Goods (No. 2).... The purpose and effect of the modification was to bring the common law rule into line with the Strasbourg jurisprudence. In Porter v Magill Lord Hope of Craighead explained:
'102. . . . The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No. 2)... to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of the court, observed, at p 711A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p 711B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp 726-727:
"85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to "a real danger". Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.'
The House unanimously endorsed this proposal. In the result there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Magill v Porter has at its core the need for 'the confidence which must be inspired by the courts in a democratic society': Belilos v Switzerland (1988) 10 EHRR 466, at para 67; Wettstein v Switzerland (Application No. 33958/96) para. 44; In Re Medicaments, at para 83. Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 200 CLR 488, 509, at para 53, by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'.
"It seems to me, for example, that it would hardly be appropriate for a retired Detective Chief Superintendent to investigate and make recommendations upon the force policy of a Chief Constable under whom he had served, whether in the same force or not. The risk of unconscious bias one way or the other is obvious."
Professor McDougall's Career
"43. Bryan Payling worked in the Prison Service between 1970 and 2005 save for an intermission between 1972 and 1975. He was employed in the Midlands and South East except for a period in 1971 and 1972 when he was posted to HMP Wakefield, a high security prison, and from 1983 to 1988 when he was employed at the Prison Service College in Wakefield. He was first appointed a governor in 1993. In 1999 he was appointed area manager for Mercia in which post he remained until his retirement. Upon retirement Mr Payling went to Bermuda where he worked as an adviser and, later, Commissioner of Corrections. He returned to the UK in 2007 where, later that year, he gave evidence as an expert witness instructed by the Treasury Solicitor during litigation arising from a disturbance in HMP Lincoln. In early 2008 he conducted an investigation into complaints made by prison officers at HMP Pentonville that they had been wrongly suspended from duty on suspicion of drug trafficking in the prison. He upheld the complaints and criticised management. Later, Mr Payling led a review of sex offender treatment programmes and recommended change. He also conducted a review, for a private contractor, Serco, of staffing at Yarl's Wood Immigration Removal Centre.
44. Sarah Snell was Governor of HMP/YOI New Hall in 2005 and had been during most of SP's stay there. She is likely to be a witness in the investigation. Mr Payling and Ms Snell knew one another as acquaintances having both attended Prison Service conferences but they had never worked together in the same region, nor had there been any social contact between them. When, however, Mr Payling returned from Bermuda in May 2007, he was contacted by Ms Snell who was interested in and wanted some advice about the post of Prisons Adviser, then being advertised by the Foreign and Commonwealth Office. The successful applicant would be based in Florida and responsible for Bermuda and Caribbean Overseas Territories. On 23 May, Mr and Mrs Payling were paying a visit to Yorkshire to see a friend and offered to meet Ms Snell in Harrogate. They had a light and inexpensive lunch together for about 1½ hours during which Mr Payling imparted his experience of work, and Mrs Payling her experience of life, in Bermuda. Ms Snell paid the bill. They had not spoken since, although Ms Snell sent an email to say she had been unsuccessful in her application."
"80. Current hierarchical or institutional connection by rank or responsibility... will undoubtedly disqualify an investigator. No Strasbourg case has been found in which the Court has considered a past, as opposed to a present, institutional connection as a ground for finding a breach of Article 2. However, I am equally persuaded that past hierarchical or institutional connection between the investigator and someone 'implicated' could well cause an objective lack of practical independence...
81... But what of a retired police officer or prison governor who had served in Newcastle and the North-East throughout his career and had experienced no institutional or hierarchical relationship with the persons or institutions implicated in a near-death investigation in Exeter? In my judgment what would be critical in such a case is the identification of the issues which the incident being investigated may create. Where there is no question of institutional responsibility being raised by the investigation I can see no ground for concluding that the retired police officer or prison governor would be other than objectively independent. If, on the other hand, the issues raised included a question whether national policy, such as Prison Service Orders, were adequate to meet the state's Article 2.1 obligations, the fact that the investigator had spent his working life applying those Orders may, and in my view would, deprive him of the practical independence necessary to perform his work effectively..."
The conclusion itself is as follows:
"84... I accept that in principle the fact that a proposed investigator, before his retirement, spent his working life in the Prison Service does not of itself disqualify him from appointment to investigate a death in custody on the grounds of lack of independence; it may, or may not, depending upon the nature of his connection, by reason of that employment, with the individuals and institutions implicated and/or upon the issues raised by the investigation. Apart from Mr Payling's acquaintanceship with Ms Snell, there was, in my view, no connection with individuals concerned which might have affected his independence. However, there were two respects in which, in my judgment, Mr Payling's objective independence was compromised. First, in consequence of a social acquaintanceship with a witness [sc. Ms Snell] likely to make an important contribution to the inquiry, he could not be said to enjoy practical independence from those implicated... There is, in my opinion,... an objective lack of independence between Mr Payling and the witness. Second, Mr Payling had, as part of his routine working life as an area manager, been consulted on policy initiatives in the field of 'safer custody' and 'self-harm'. It follows that Mr Payling had been closely concerned with the very policy areas upon which he was being asked to formulate recommendations as an investigator... For these reasons it seems to me that an investigation carried out by Mr Payling in SP's case would not be sufficiently independent for compliance with Article 2."
Conclusion on Apparent Bias
Unconscious Bias
- failure properly to address issues relating to the discovery of the noose in the claimant's cell on 31 July;
- failure to address the question whether excessive weight had been placed on the claimant's assurance that he had no suicidal ideation;
- failure properly to address issues relating to the discovery of a bed sheet around the claimant's neck the night before his suicide attempt;
- inadequate consideration of the claimant's unusual and unpredictable behaviour the night before his suicide attempt;
- failure to explore all the apparent departures from guidelines applicable to the closure of form F2052SH, or the wider question whether the involvement of the chaplaincy was routinely ignored;
- failure properly to explore and resolve apparently inconsistent statements given by the claimant that he had been raped at HM YOI Feltham.
GROUNDS (2) AND (3): THE CLAIMANT'S PARTICIPATION
"This is an Article 2 investigation and must be conducted in an open, transparent and even-handed manner. You should assume that the material that you receive will be distributed simultaneously to the relevant parties to the investigation, who will be agreed from the outset…
You must give JL through his representatives, and his family with his agreement, the opportunity to participate in your investigation…"
It is clear, moreover, that the House of Lords in JL considered that the "enhanced" enquiry in a near-death case (whether or not a D-type public enquiry followed it) must facilitate the involvement of the subject or his family: see for example Lord Brown's reference (paragraph 107) to investigations which "engage the person who has been harmed and/or their family".
"[I]f you wish to make representations to Professor McDougall at this point about the analysis in her draft report or any omissions from it then we will ask Professor McDougall to refrain from finalising her report provided that such representations are made within a reasonable time, and we will ask that she should, if she thinks it appropriate, produce revised draft report taking account of those representations."
But the offer was not accepted.
Conclusions on Grounds (2) and (3)
GROUND (4): DELAY
CONCLUSION
Wednesday, 7 October 2009
(10.00 am)
(10.04 am)