HUMAN RIGHTS — Right to life — State’s procedural duty to investigate attempted suicide — Prisoner at young offender institution attempting suicide — Secretary of State refusing to hold enhanced public investigation into attempted suicide — Nature and scope of procedural duty — Whether threshold met — Human Rights Act 1998, Sch 1, Pt I, art 2

R (JL (by the Official Solicitor as litigation friend)) v Secretary of State for the Home Department [2007] EWCA Civ 767

CA: Waller, Maurice Kay and Wilson LJJ: 24 July 2007

Where there had been a death or near death in custody he state was obliged to conduct an enhanced investigation commenced by a person independent of those implicated in the facts. If the investigator found that the state or its agents potentially bore responsibility and that it was not plain that they could bear no responsibility it would be necessary to hold a further inquiry in the nature of a public hearing in which the next of kin or injured person could play a part.

The Court of Appeal so stated when dismissing the appeal of the Secretary of State for the Home Department against a decision of Langstaff J on 1 November 2006 [2006] EWHC 2558 (Admin) that he was obliged to hold an enhanced investigation in the case of JL who attempted to commit suicide while in custody at Feltham Young Offender Institution.

WALLER LJ considered R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 giving the requisite features of an enhanced investigation where a death occurred in custody and R (D) v Secretary of State for the Home Department [2006] 3 All ER 946 which set out what was required to fulfill the enhanced investigation obligation in the case of an attempted suicide in custody. It was clear that the fact of a death or serious injury of a person in custody gave rise to an obligation on the state to conduct the enhanced type of investigation. The extent of that investigation would depend on the circumstances and, in his Lordship’s view, some consideration needed to be given as to whether different triggers might not operate at different stages. Regarding the nature of the investigation, it seemed to his Lordship that a death or near death in custody ipso facto meant 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 could play a part would depend on the circumstances. In case of serious injury the nature of the further inquiry necessary would depend on the facts discovered by the independent investigator. It was at that stage that his Lordship would accept that something more than the mere fact that the death or serious injury was in custody would dictate the extent of the necessity to hold a full inquiry of the type in D’s case. In his Lordship’s view, where the death, suicide or near-suicide was in custody, the something was best expressed by the words used by the judge below “that the state or its agents potentially bore responsibility” and that in the particular circumstances ascertained by the independent investigator “it was not plain that the state or its agents could bear no responsibility”. Where the state was accountable by virtue of a person being in custody it was for the state to investigate the facts and explain how the death or near death occurred and it was not for the victim or the family to establish some arguable case before that investigation took place. In the present case an investigation by an independent investigator would have had to form the view that potentially the state might have failed in its obligations to protect life giving rise to an obligation to hold the full D-type inquiry. The investigator could not have concluded that it was plain that the state could never be responsible. The appeal would be dismissed.

MAURICE KAY LJ gave a concurring judgment and WILSON LJ agreed with both judgments.

Appearances: Nigel Giffin QC (Treasury Solicitor) for the Secretary of State; Kristina Stern (Bindman & Partners) for JL.

Reported by: Alison Sylvester, barrister