A SERIOUS SUICIDE ATTEMPT BY A PRISONER REQUIRES AN EFFECTIVE
INVESTIGATION COMPLIANT WITH ARTICLE 2 ECHR STANDARDS
R (JL) v Secretary of State for the Home Department [2006] EWHC 2558 (Admin) 1 November 2006
Background
JL was detained in a Young Offenders’ Institution when he
attempted suicide by hanging himself from the bars of his cell window using his
sheet. He was resuscitated, but lack of oxygen had left him with a serious and
permanent brain injury.
JL had previously been identified as at risk of self-harm, however,
shortly before his attempt on his life he had been deemed not to be a suicide
risk by the prison staff. Special observations of JL had therefore been
discontinued. Members of the chaplaincy team who had had significant contact
with JL still thought he was at high risk of suicide. However the chaplaincy
staff were not consulted about his level of risk before this was downgraded.
An internal review of the incident was conducted and a
report submitted to the Prison Area Manager shortly after the events (although this
was not disclosed to JL until almost 3 years later when a letter before action was
sent). JL asserted that by virtue of Art 2 ECHR the State had a duty to
carry out an effective investigation of the circumstances in which he came to
attempt suicide and that any such investigation must meet the minimum
requirements of an Art 2 investigation identified by the European Court of
Human Rights and in domestic authorities (that is: independent; effective;
prompt; open to public scrutiny; involving the Claimant/next of kin). See: R
(Amin) v Secretary of State for the Home Department [2003] Inquest Law
Reports 1.
The Home Secretary resisted the
application, although it was accepted that if the investigative obligation was
triggered, then the minimum standards of an Art 2 investigation must be
satisfied.
Decision
Langstaff J declared that there was
a requirement to conduct an Article 2 compliant investigation into the
circumstances of JL’s suicide attempt. The State’s investigative
obligation had not been satisfied by the Area Manager’s investigation which was
not independent, open to public scrutiny nor inclusive of the Claimant or his
next of kin.
It was held that Article 2 ECHR required an effective
investigation not only when State agents were directly responsible for a death,
but also where the system was such that it permitted, or failed to prevent, a
death. That duty extended to life threatening injury, as it did to death, as
the difference might be no more than an accident of circumstances, in
particular that of timing.
Where a person was compelled to be in custody by the State
there was a duty to account for his physical integrity which rested not simply
upon the civil or criminal law, nor just upon State agents, but upon the State
itself. The purpose of such an investigative obligation was not only to hold
individuals accountable, but to learn of potential systemic problems.
Plainly, where the victim was
otherwise free within society, not every suicide or suicide attempt necessarily
required investigation. There was not a single unifying threshold test
appropriate to all cases, whether the investigative obligation was, or was not
triggered must depend upon the particular circumstances of any given case.
However the fact of an unexpected death in custody would usually (though not
always) cross the necessary threshold that required an investigation sufficient
to satisfy the Article 2 obligations. The important factor was whether the individual
concerned was involuntarily in the care and under the direct control of the
State.
The threshold set in Osman v UK [2000] Inquest Law
Reports 101, for the State’s Art 2 obligations to arise (that the State knew or
ought to have known of a real and immediate risk to life ) could not be
extrapolated across the panoply of other cases to which Article 2 might
conceivably apply. Deaths, or life-threatening injuries, sustained when the
victim and the perpetrator were at the relevant time at liberty inevitably
attracted a higher threshold than a situation in which the State had accepted
responsibility for one or both of the victim or perpetrator. The ‘Osman test’
was well above the threshold that would engage Article 2 when the factual
circumstances in which the victim was placed at the relevant time were under
the direct control of the State or its agents.
Commentary
This case confirms a concession previously made by the Home Secretary
(see: R (D) v Secretary of State for the Home Department [2005] Inquest
Law Reports 54) that the right to life under Article 2 can place an obligation
on the State to ensure that there is an independent investigation of an
incident not only where a death occurs but also where a serious life
threatening injury arises.
Although the court could not set any general threshold for
when an Art 2 investigation would be required it was clear that where at the
relevant time the victim was under the direct control of the State or its
agents this would usually require there to be an independent investigation.
The judgment has wide ramifications as the principles are
likely to apply not only to suicide attempts by prisoners but also where a
suicide attempt leading to serious injury is made by a compulsorily detained
patient in a psychiatric hospital.
A Coroner’s Inquiry is of course available where death
ensues, and in many cases the inquest process (combined with the potential for
civil and criminal proceedings) will satisfy the State’s investigative
obligations (see: Takoushis v HM Coroner for Inner North London [2005]
Inquest Law Reports 185). However where death does not result there can be no
inquest and the possibility of civil action alone is unlikely to satisfy the
State’s Article 2 obligations. An independent inquiry may now be called for.
BRIDGET DOLAN
31 January 2007
3 Serjeants’ Inn
London, EC4Y 1BQ
