ON APPEAL FROM THE HIGH COURT
Mr Justice Mitting
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE WARD
LORD JUSTICE JACOB
and
LORD JUSTICE STANLEY BURNTON
Between :
The Queen on the application of
P | Appellant |
- and - | |
The Secretary of State for Justice | Respondent |
Ian Wise (instructed by The Howard League for Penal Reform) for the Appellant
Javan Herberg (instructed by Treasury Solicitors) for the Respondent
Hearing date: 21 May 2009
Judgment
Lord Justice Stanley Burnton:
Introduction
This is an appeal against the decision of Mitting J who on 30 June 2008 refused P permission to apply for judicial review of the refusal of the Secretary of State for Justice to hold an inquiry into P’s detention in Feltham Young Offenders’ Institution between 2 March 2007 and 5 June 2008.
On 8 October 2008 Hooper LJ granted P permission to appeal limited to the claim that the Secretary of State should hold such an inquiry. Hooper LJ directed that the parties should be prepared to deal with the substantive application for judicial review if the Court so wished.
On 21 May 2009 we heard full argument on the issues raised by the application for judicial review. P’s application was the subject of substantial argument. In these circumstances, I would grant permission to apply for judicial review. However, for the reasons I give below, I would refuse judicial review and dismiss the claim.
The facts
P was born on 17 June 1987, and thus at the date of his admission to Feltham was approaching 20 years of age. He has been involved in offending behaviour since he was 13, and its seriousness has escalated over time.
P has a long-standing history of self-harm. During an earlier period in custody, he was assessed by Professor Jeremy Coid and then by Dr Tegwyn Williams of the South Wales Forensic Psychiatric Service. In his report dated 23 January 2007, Dr Williams stated that he agreed with Professor Coid that P was not currently amenable to psychological therapies. Dr Williams continued:
“From a diagnostic point of view he clearly has anti-social and borderline personality traits, though on the basis of the information available to me and my assessment of (P), I am not convinced that these currently are associated with abnormally aggressive or seriously irresponsible conduct and I personally would not label him as suffering from psychopathic disorder. If, however, one was to accept classification of psychopathic disorder, there is no evidence whatsoever that he would benefit from hospital treatment. Specifically, he does not require pharmacological therapy (beyond that which can be given as an out-patient as symptomatic relief rather than treatment), nor is he likely to respond to the psychological treatments. Even if once accepted that he may benefit from some treatment, review of (P)’s history supports the fact that his behaviour actually deteriorates in institutions. Within a hospital setting, his behaviour is likely to escalate, e.g. breaching the physical security, escalating self harm and violence. Therefore I do not accept that any treatment would bring about an improvement or prevent deterioration in his condition. For all these reasons, I do not consider (P) to be detainable under the Mental Health Act 1983, therefore the issue of transport to hospital does not arise.
On a purely clinical basis I would also not recommend (P)’s transfer to hospital as his behaviour is likely to deteriorate and result in transfer to a maximum secure mental health setting which I am not convinced would be in (P)’s best interest. From a clinical point of view, any treatment which may be effective requires (P) to show some signs of taking responsibility for his behaviour. Until he does so, any institutional setting will only provide containment.
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Unfortunately, I think (P)’s prognosis is poor and on his return to the community (whenever that might be), he is likely to relapse into illicit drug misuse and criminal behaviour to fund his habit. Reviewing (P)’s history I feel there is a risk of extreme violence both to himself and possibly to others, the victim pool including the whole community. Unfortunately I can find no evidence that medical intervention can do anything to reduce this risk.”
As mentioned above, P entered Feltham Young Offender Institution on 2 March 2007. He was detained on remand on charges of burglary, robbery, false imprisonment and driving whilst disqualified. His then diagnosis was psychopathic disorder. While in Feltham, there were numerous and frequent incidents of self harm. It is unnecessary, and would unduly lengthen this judgment, to set them all out, but as examples I set out what is shown by his medical and prison records as occurring between 22 and 26 March 2007.
“22 March: medical records state that he inserted a pin in his mouth, which he removed when he calmed down. He later put a pencil in his mouth. The prison records record that he put a broken pencil in his mouth.
24 March: the medical records state that P opened an old abdominal wound; he claimed to have inserted 2 staples into it. He was taken to A and E. He also reported that he had inserted staples underneath his right eye. Wound stitched at A and E. The staples on the right side of his face were not taken out as he needed an operation, as he had inserted them through his mouth. The prison records state that he had got hold of a screw and picked off the scab on his arm and continued to screw it in his arm. The officer asked him to hand over the screw but he declined. A note timed at 19.30 states that he continued to put staples into an open wound. At 21.00 he was told he would go to hospital.
25 March: the medical records state that he barricaded the door with a mattress. He removed a piece of the door and used it to harm himself, deepening an existing wound on his right arm causing it to bleed. He was taken to A and E. He was refusing meals, stating that he was on hunger strike.
26 March: the medical records state that he banged his head on the cell gate. According to the prison record, at 13.30 he was kicking the sink. When asked why, he stated that he wanted to break his foot.”
Other incidents that I mention to show the seriousness of his conduct include the insertion of a matchstick into his penis on 3 October 2007 and his insertion of a piece of glass into his urethra on 7 October 2007, which led to blood spots on the toilet. He also, on that date, cut the back of his left hand and the top of his right foot. The prison note states:
“It is apparent that (P) is becoming fixated with exposing tendons since yesterday when he exposed one in his foot and now he believes he can see one in his hand.”
Meanwhile, on 4 July 2007, P had been convicted of dangerous driving and false imprisonment. He was remanded in custody to Feltham awaiting sentence.
The Howard League for Penal Reform sent a letter before claim dated 25 October 2007, challenging the alleged failure of the Secretary of State to provide a safe environment in accordance with his own policy and articles 3 and 8 of the European Convention on Human Rights and his alleged failure to investigate life-threatening incidents contrary to article 2. The letter stated:
“The claimant’s recent behaviour (see attached Chronology …) is life threatening and it appears that the prison service is unable to provide a safe and healthy environment for either our client or its staff.
The claimant instructs that while at HMYOI Feltham he has had over 15 surgical operations over the last 6 to 7 weeks. …
The claimant’s present circumstances are detailed (in the attachment). In summary the claimant is confined to a wheel chair as a result of cutting his tendons in both his right and left feet, cut his wrists (23 October 2007), large burn marks to left arm and subject to considerable periods of isolation and “stripped conditions”. The claimant reports considerable tensions between himself and the discipline staff and very little support from the health staff. He receives no effective mental health support. Our client (sic) instructions are that he is likely to kill himself.”
The Treasury Solicitor replied in detail by letter dated 19 December 2007. The letter summarised P’s current situation as follows:
“(P) is in good health. His last incident of self harm was on 10 December, when he inserted a small piece of metal into his foot, which he removed soon after. He has since spoken at length to the unit senior officer about this incident and about his problems with self harm generally and it is noticeable that he is now much more willing to speak to selected members of staff about his problems than he has been in the past. This most recent incident of self harm is believed to have been caused by frustration and anger and while HMYOI Feltham takes such acts very seriously it is noticeable that this incident was of a less severe nature than the actions (P) has previously taken when he self harms. (P)’s last visit to hospital was on 3 November.
(P) is currently located on the Kingfisher Unit in a normal room. This is in recognition of the recent stable behaviour which has seen great improvements in his conduct and mood since November.”
The letter stated that Feltham was providing as safe an environment as was possible whilst he remained in detention; and that staff there were actively striving to manage his care in a responsive needs-led manner, and that his care plan was constantly being monitored and changed if required.
On 10 March 2008, Dr Lewis, a consultant psychiatrist working at Feltham wrote to the Specialist Commissioner of the Mental Health Services at the Health Commission Wales. Referring to P, she said:
“I telephoned earlier today to express my concern regarding the deteriorating health of the above 20 year old prisoner and to request that you reconsider his transfer to hospital, which I believe was originally considered by your team in January 2007.
It is the view of the clinical team at HM YOI Feltham that Matthew meets criteria for antisocial and borderline personality disorder is and requires specialist treatment of these disorders in a hospital setting. He is a prolific self-harmer and his self-harm has become progressively more frequent and severe over the past few months.
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It is the view of the health services at Feltham that we cannot provide adequate care for Matthew whilst he is in prison and that he requires transfer to a secure centre which specialises in the treatment of personality disorders.”
Dr Lewis took issue with the assessment and opinion of P by Dr Williams to the effect that he would not benefit from hospital treatment and urged the Specialist Commissioner to reconsider her previous decision about the eligibility of P for transfer to a specialist personality disorder unit for treatment.
Dr Huckle, a consultant psychiatric psychiatrist working in Gwent, assessed P at the request of the Crown Court that was due to sentence him and produced a report dated 15 March 2008. Dr Huckle concluded that P was suffering from psychopathic disorder as defined by the Mental Health Act 1983, and that he was detainable and should be admitted to a medium secure unit for further assessment and treatment of his serious personality disorder. This could be achieved once a suitable placement was identified under section 38 of the 1983 Act or, if P was sentenced to a period of imprisonment, through section 47/49.
On 1 April 2008, Dr Williams wrote to the Specialist Commissioner stating:
“I have reviewed P and whilst I am not over optimistic about any treatment intervention, there does appear to have been some change since I reviewed him approximately 14 months ago and I feel that a trial of treatment would be worth considering.
The problem you may wish to consider is that he is [not] a Welsh patient, as he tells me that he was last registered following his release from prison with a GP in England (I think the Worthing area), although he was placed there I understand by Social Services in Bridgend, though this is not clear. I would be grateful for your urgent advice as the Court is getting increasingly agitated.”
It is important to appreciate the importance of Dr Williams’ reassessment of P and of the information in the second paragraph of his letter. On the basis of Dr Williams’ report of 23 January 2007, it would not have been possible to effect P’s transfer to a hospital for medical treatment under an order under section 37 or 38 or under section 47 or 48. A section 37 order could only have been made if the court was satisfied that, contrary to Dr Williams’ opinion, P’s treatment in a hospital was “likely to alleviate or prevent a deterioration of his condition”; and an interim hospital order under section 38 would not have been made because, in the face of Dr Williams’ opinion, it would not be appropriate for a hospital order to be made under section 37. Section 47 was subject to the same requirement as section 37. Section 48 did not then (before its amendment by the Mental Health Act 2007) apply to persons suffering from psychopathic disorder. Dr Williams’ conclusion that treatment was worth considering rendered transfer legally possible. Secondly, until April 2008 it had been believed that P’s medical and psychiatric care was a Welsh responsibility; the information that he had been last registered with a GP in Sussex meant that Sussex NHS Partnership Trust was the responsible medical authority.
Dr Lewis described P’s situation in her letter dated 7 April 2008 to Ashen Hill Medium Secure Unit, seeking consideration of P’s admission there:
“Matthew is a remand prisoner at HM YOI Feltham and has pleaded guilty to imprisonment, robbery, two counts of theft and dangerous driving and is awaiting sentencing. The judge has indicated that he is minded to make a hospital disposal. Two recommendations for s38 Interim Hospital Order have been completed (by Prof Jeremy Coid and Dr P Huckle).
Matthew meets criteria for the diagnoses of severe borderline and antisocial personality disorders. His level of self harm is extreme and has increased over the past few months. He has required frequent treatment for his self-inflicted injuries in hospital. He has undergone 10 procedures under general anaesthetic over the past 8 months and has also received numerous local anaesthetics to enable treatment of his wounds. Over the past few months he has inserted more than 30 foreign bodies in his penis and the urology team at St Peter’s Hospital, Chertsey, which has been responsible for treating these injuries, has expressed grave concerns about that long term damage that Matthew is likely to experience should he continue to self harm in this way.
It was believed until today that the Health Commission for Wales were responsible for commissioning mental health services for Matthew and so there has been extensive correspondence with them in an attempt to secure appropriate care for Matthew. They initially refused to fund a placement for Matthew because of their ‘clinical gatekeeper’, Dr Tegwyn Williams, disputed whether Matthew was ‘treatable’ for the purposes of the Mental Health Act 1983. Dr Williams reassessed Matthew on 31st March 2008 and has now revised his opinion and is supportive of a s38 Interim Hospital order being made.
However, a further problem has arisen in that Health Commission Wales have discovered that Matthew registered with a GP in Worthing in 2007 and never re-registered with a GP in Wales. They have therefore stated that it should, in fact, be West Sussex PCT which is responsible for commissioning services for Matthew and not Health Commission Wales.
I understand from our earlier conversation that, whilst Ashen Hill manages patients with dual mental illness and personality disorders, it is not necessarily resourced to provide care for patients with a primary diagnosis of personality disorder. It may therefore [be] that a placement in a specialist personality disorder unit may need to be sought.
You will appreciate that Matthew has already spent over a year in prison during which time his mental health has deteriorated and his self harm increased. I am obviously concerned that any further delay resulting from these changes in commissioning responsibility should be kept to a minimum. I am therefore referring Matthew both to you and directly to the specialist mental health commissioning panel in order to try and expedite matters.”
The Howard League wrote again on 28 April 2008, enclosing a report by Dr Bell dated 10 April 2008. The letter accepted that P had experienced a period of stability at the date of the Treasury Solicitor’s letter, but stated that he had since deteriorated. It stated:
“It is recognised and accepted that our client’s behaviour is difficult and challenging and that the staff at HM YOI Feltham are seeking to put into place with limited resources, skills and training as safe a regime and environment as is possible in that context. The regrettable truth, as supported by Doctor Bell’s report, is that this is insufficient to protect our client’s health and ultimately his life.”
Dr Bell is a consultant in intensive care and anaesthesia. His conclusions included the following:
“9.2. His current injuries and their sequelae place him at risk of renal failure due to obstruction of the urinary tract and at constant risk of life-threatening infection from necrotizing fasciitis, urinary tract sepsis, bacterial endocarditis and deep-seated pelvic infection. The risk of these complications is enhanced not only with each new additional injury but also by the multiple retained foreign bodies within the tissues which create susceptibility to colonisation by bacteria and subsequent infection from any distant source of sepsis carried around the body by circulation.
9.4. He is also currently at risk of losing limbs through refractory infection and the use of his penis for normal urination and sexual function.
9.5. Matthew’s life is also in jeopardy from exsanguination with either intentional or accidental arterial damage during self-harm.
9.6. This pattern of self injury will predictably induce a state of chronic ill-health within a short time-frame and leave Matthew more vulnerable to the above complications of his injuries. The cycle will then become self-fuelling, inevitably culminating from one complication or another in Matthew’s death.
9.8. There also appears to be a more immediate urgency in placing Matthew in the short-term within a hospital environment to ensure optimal medical and nursing management of both his abdominal wound and the urinary tract foreign bodies and strictures due to scarring, which are capable of causing acute urinary tract obstruction and severe septicaemia. Such optimal management depends very much on Matthew’s compliance with advice and cares, and provision of appropriate psychiatric and psychological support whilst within any conventional hospital setting. The required duration of stay is not possible to calculate, him (sic) but the endpoint should be one of satisfactory healing of his current injuries and a greatly reduced frequency and magnitude of further self-harm with a commitment to overcoming this pattern of behaviour over the longer-term. The severity of the abdominal wound and urinary tract injuries, coupled with the instability of his mental status which will predictably lead to further self harm, would suggest that this option should be pursued within days rather than weeks.
9.9. Whilst the above recommendations are based on medical need and the obvious impracticality of managing this patient’s mental health problems within the prison environment, the enormous disadvantages in life created by his parent’s lifestyle, which have clearly had such a profound effect on (P)’s mental and social well-being, would suggest that compassionate consideration should also be a factor driving a different approach to the management of this obviously troubled individual.”
Dr Bell added a postscript to his report:
“Since completion of this report I have been informed by the Howard League that there has been an escalation in Matthew’s pattern of self-harm following news of his birth mother’s death. Given the extreme vulnerability of this individual to significant life-threatening complications with the level of injury at the time of my assessment, it should be apparent that the hospital-based care specified in 9.8 should be expedited as a matter of urgency.”
There is also a letter from Christian Brown, a specialist registrar in urology, in which he stated:
“Although there is currently no evidence of urethral stricture or bladder injury over a period of time, it is almost certain that he will develop a urethral stricture. … If he continues to abuse his body in this way, it may lead to a poor bladder emptying which in turn can cause renal failure and death.
While currently none of Matthew’s urological incidents have been a risk to his life, it is only a matter of time until he develops sepsis, a urethral stricture, renal failure or death.
It has been the opinion of the Urology Department here ... that something more definitive needs to be done for Matthew’s psychological care. On each occasion that his bladder is cleared of foreign bodies, it is usually only a week or two before he is readmitted having inserted something else. He even manages to insert things into his urethra whilst an inpatient even when the room is cleared of all magazines, foreign bodies, cutlery and furniture. He also seems very determined to obtain the necessary objects to insert into his body.”
These judicial review proceedings were commenced on 6 May 2008. P was still on remand at Feltham. He claimed that the Secretary of State had failed to provide a safe environment for him and that Sussex NHS Partnership Trust, the Second Defendant to his claim, had similarly failed to do so. An interim order was sought requiring the Trust to arrange for P’s care and treatment. It is evident from the grounds for judicial review that the immediate and justified concern of those acting for P was to secure his speedy transfer from Feltham to a psychiatric hospital.
In a report dated 27 May 2008, Dr Noon, a consultant forensic psychiatrist, advised that it was appropriate to admit P for a period of inpatient assessment under section 38 of the Mental Health Act 1983 under the classification of psychopathic disorder. He confirmed that a bed would be available at Ashen Hill within the four-week period.
On 5 June 2008 Chichester Crown Court duly made a hospital order under section 37 for P’s admission to Ashen Hill. He was transferred there on 25 June 2008. He then withdrew his proceedings against the Trust.
Since his transfer to Ashen Hill, P’s condition has improved, but he has continued to self-harm, less frequently than previously.
The reasons put forward for an inquiry
Chris Callender, the solicitor at the Howard League for Penal Reform with conduct of case, states in his second witness statement dated 28 July 2008:
“13. The Howard League for Penal Reform for obvious reasons is very concerned about the treatment and conditions experienced by P, and many prisoners like P. Our legal team have represented many people in P’s situation and struggled to obtain appropriate assistance while self-harm and suicide attempts persist.
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16. I would confirm that when speaking to P on comments made by the Court [i.e., Mitting J] he confirmed that he supports his case as (a) he feels aggrieved as to his treatment over so many months and years and would like an explanation as to his treatment and (b) that he consider wider public benefit to any such inquiry if it would prevent others from repeating his experience of prison. He would like to understand why he experienced the isolation and lack of treatment.”
Mitting J’s judgment
The purpose of the proceedings was explained to Mitting J and recorded by him in his judgment as follows:
“17. … Mr Wise tells me that the sole purpose of the proceedings against the Secretary of State is now to seek an order that there be an investigation of what has occurred to the claimant in Feltham. At one stage in his submissions he stated that the enquiry could establish how the agencies which have dealt with the claimant could work better and that a real public interest would thereby be served. He also seeks damages for breach of articles 2, 3 and 8 of the European Convention on Human Rights.”
Mitting J held that the Secretary of State had had no power under section 48 of the Mental Health Act 1983 to transfer P from Feltham to a hospital because, unlike section 47, it did not apply to prisoners who suffer from psychopathic disorder, as opposed to mental illness or severe mental impairment or mental impairment within the statutory definitions. Article 2 had not arguably been engaged, because P’s life was not imminently at risk, and there had not been a near-death experience, as where a prisoner tries to hang himself. So far as Article 3 was concerned, there was no arguable breach by the Secretary of State and therefore no duty to hold an inquiry. He said:
“23. In this case, unlike JL, the facts are not in dispute. Indeed the Secretary of State’s summary grounds of defence expressly accepts the version of events as to the facts advanced by the claimant. There can be no doubt about that; they are fully rehearsed in the many reports that I have read and they are no doubt supplemented by records not yet produced from Feltham and from the hospitals at which the claimant has been treated. The condition from which he suffers had been brought about because he has, by reason of personality defects possibly amounting to psychopathic disorder, caused very serious injuries to himself. There is no suggestion in any of the documents that those injuries have not been promptly and skilfully treated. There is, in fact, no evidence that it is detention in Feltham which caused him to harm himself. As Dr Brown, the urologist who has participated in the claimant’s treatment at the Ashford and St Peter’s Hospitals, has noted, the claimant manages to insert things into his urethra while an inpatient, even when his room is cleared of all magazines, foreign bodies, cutlery and furniture. If there had been any reason to complain about the treatment of the claimant, he could have complained – or a complaint could have been made on his behalf by the Howard League for Penal Reform – under the Detention Centre Rules that his case had not been dealt with properly in one way or another and, if dissatisfied with the answer, he could have complained within one month to the Prison and Probation Service Ombudsman who could, if he thought it right, conduct an independent inquiry into the complaint. That would not, of course, satisfy the wider target of Mr Wise’s submissions that lessons of a general kind might be established by an inquiry into the claimant’s case. However, in a case which was not cited to me, but which I have had occasion to consider in the relatively recent past, Banks v United Kingdom, the Strasbourg Court declared inadmissible a claim that the foundation was in part the lesson of a general kind which could be drawn from particular problems arising within Wandsworth Prison. The Court in terms said that that was not a matter for the procedural obligations under article 13, but a matter for political decision.
24. Accordingly, on the facts of this case it is possible to reach the following conclusions:
(1) There is simply no evidence that the claimant’s medical treatment (leaving aside psychiatric care) has been in any way inadequate.
(2) If an inquiry is required into his individual circumstances, it could have been triggered by the means that I have indicated. The fact that it has not been suggests that, in truth, that has never been the target of any concern of the claimant or of those who have had his interests in mind.
(3) Insofar as the wider remit of an inquiry is canvassed, it is not the subject of an article 3 claim.”
The submissions of the parties
Mr Wise, on behalf of P, had not formulated the terms of reference for the inquiry he sought. He submitted:
The situation of P at Feltham was life-threatening, and brought into effect the duty of the state under Article 2 of the European Convention on Human Rights to carry out an effective investigation. The judge had erred in finding to the contrary.
Article 3, like Article 2, imposes an investigative obligation on the state where there is a credible assertion that a person in custody has been the subject of treatment contrary to Article 3.
The facts of the present case show that there is at the very least a credible assertion that P’s treatment in Feltham was in breach of his Article 3 Convention right.
For the Secretary of State, Mr Herberg submitted:
The judge had rightly found that there was no evidence that it was P’s detention in Feltham that caused him to harm himself.
The only complaint about his treatment in Feltham was that it had not been possible to provide appropriate care for him there, because he needed to be in a specialist centre.
Until Dr Williams’ reassessment of P leading to his letter of 1 April 2008, he had considered that he was not suffering from a psychiatric disorder and that he did not require pharmacological therapy: see Dr Williams’ letter of 23 January 2007, cited above. Thus there was no unanimous medical advice that P would be more appropriately treated in hospital.
Moreover, the judge had correctly found that on the basis of Dr Williams’ original opinion the Secretary of State had had no power to effect a transfer of P to a hospital under section 48.
Similarly, it would not have been possible to make an interim hospital order under section 38 or an order under section 37 on the basis of Dr Williams’ original opinion.
As the judge had correctly found, it followed that until Dr Williams’ reassessment of P there was no arguable case that the Secretary of State had been in breach of P’s Article 3 rights.
After Dr Williams’ reassessment, communicated in his letter of 1 April 2008, the delay in P’s transfer was not the responsibility of the Secretary of State. It was due to the discovery that it was the Sussex NHS Trust that was responsible for him, and its need to establish its own psychiatric diagnosis.
It followed that the judge’s decision was correct.
Discussion
A duty imposed by Article 2?
In R (Amin) v Home Secretary [2003] UKHL 51 [2004] 1 AC 653, Lord Bingham summarised the investigative obligation imposed by Article 2 as follows:
“31. The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom (Application No 47916/99) (unreported) 6 May 2003, p 13. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted in paragraph 16 above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”
The other members of the Appellate Committee agreed with Lord Bingham. In a passage that is often referred to Lord Slynn added:
“41. The duty to investigate is partly one owed to the next of kin of the deceased as representing the deceased: it is partly to others who may in similar circumstances be vulnerable and whose lives may need to be protected. The significance of this duty to those detained in prison, not least where prisons are crowded and prisoners often dangerous, is obvious. It does not seem to me to be possible to say that there is a clear dividing line between those cases where an agent of the state kills and those cases where an agent of the state or the system is such that a killing may take place. The result of “an incident waiting to happen” may just as much as an actual killing require detailed and profound investigation, though in some cases the procedure to be adopted may be justifiably different.”
These statements have to be read in the context of the notorious and tragic facts of that case. A fellow prisoner of the deceased, Robert Stewart, had a known history of violent and racist behaviour: one officer had formed the opinion that he was “very dangerous and a threat to both staff and other inmates”; he had made a note in Stewart’s wing file: “Staff are advised to see the security file on this inmate (held in security). Very dangerous individual. Be careful.” Yet the deceased, of Asian ethnicity, had been put in a cell with Stewart, who violently attacked and killed him. There had indeed been “an incident waiting to happen”.
In Keenan v UK (Application no. 27229/95), the European Court of Human Rights emphasised the immediacy of the risk to life that is the subject of Article 2 protection. The case concerned the suicide in prison of the applicant’s mentally ill son. The Court rejected the claims of breach of Article 2, but upheld the claim of breach of Article 3. In relation to Article 2, the Court said:
“1. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual 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 (see Osman, cited above, pp. 3159-60, § 116). In this case, the Court has to consider to what extent this applies where the risk to a person derives from self-harm.”
The italics are mine. As the judgment demonstrates, the requirement that there is a real and immediate risk to life applies equally where the risk is from the acts of third parties and to those where it is from self-harm.
The House of Lords again considered the scope of the investigative duty imposed by Article 2 in Regina (L (A Patient)) v. Secretary of State for Justice [2008] UKHL 68 [2008] 3 WLR 1325. The claimant had attempted to hang himself while detained in a YOI. He had suffered brain damage. He brought proceedings challenging the decision of the Secretary of State not to conduct an investigation complying with Article 2. The Secretary of State contended that there was no obligation to conduct such an inquiry unless there was an arguable case of breach of Article 2. The leading judgment was given by Lord Phillips of Worth Matravers. He said:
“31. The duty to investigate imposed by article 2 covers a very wide spectrum. Different circumstances will trigger the need for different types of investigation with different characteristics. The Strasbourg court has emphasised the need for flexibility and the fact that it is for the individual state to decide how to give effect to the positive obligations imposed by article 2. In this jurisdiction every death calls for a certificate of the cause of death from a doctor or a coroner. In specified circumstances an inquest is required. These include where there is reasonable cause to suspect that the deceased died a violent or unnatural death, that the death was sudden and the cause unknown, or where the death occurred in prison. In further specified circumstances the inquest must be conducted with a jury. I have already described the nature of such an inquest where the death in prison was caused by suicide. Thus death requires a spectrum of different types of investigation, depending upon the circumstances of the particular case. This regime is part of the way in which the United Kingdom gives effect to the obligations of article 2. The regime makes no provision for a near-death from suicide. This appeal raises the question of how such an event is to be accommodated within the spectrum.”
Mr Wise relied on Lord Phillips’ reference to “a very wide spectrum” in the first sentence of his paragraph in support of his submission that the Article 2 investigative obligation was engaged. However, I do not think that Lord Phillips was referring to incidents other than those causing death or near suicides. The reference to “a very wide spectrum” was to the variety of circumstances in which such incidents may occur. This appears from the second sentence of the above paragraph, and from the remainder of his judgment. In paragraph 15 he set out the scope of his observations:
“15. My Lords, I share the reservations of the courts below as to how far it is possible to give definitive guidance that will apply to every case of near-suicide in prison. The resource implications of the issues are, however, considerable and I believe that it is possible to identify certain principles that will normally apply to such cases. I propose to confine my remarks to the situation where a prisoner’s attempt at suicide (i) comes close to success and (ii) leaves the prisoner with the possibility of serious long-term injury. Thus I shall be considering the case where there is a victim whose interests have to be considered.”
Later in his judgment he said:
“37. My conclusions in relation to the initial investigation that must follow a near-suicide in custody are as follows. (i) A near-suicide of a prisoner in custody that leaves the prisoner with the possibility of a serious long-term injury automatically triggers an obligation on the state under article 2 to institute an enhanced investigation. (ii) That obligation cannot be discharged, or removed, by an internal investigation of the facts. In some circumstances an initial investigation will satisfy the requirements of article 2. In others a further investigation will be necessary, which may well require to be a D type public inquiry.”
This statement was expressly confined to near-suicides. In rejecting the Secretary of State’s contention, Lord Phillips was similarly restrictive:
“42. There are two reasons why an internal investigation that does not disclose an arguable case of fault on the part of State authorities will not preclude the need for an enhanced investigation. The first is that, as I have shown, the object of the investigation goes beyond determination of whether or not the State authorities were at fault. The second reason is as follows. The scope of an investigation into a near-suicide will normally be considerable. It will involve consideration of what was known, or should have been known, of the risk that the prisoner might commit suicide and an investigation of whether the prison procedures against suicide risk were appropriate and properly implemented. One object of the investigation will be to call on the prison service to account for something that appears to have gone seriously wrong. If the investigation is to be and to be seen to be impartial, it is essential that it should be carried out by a person who is independent of those involved.”
He referred to incidents of self-harm at paragraph 47:
“47. The investigation into the case of D, which followed the decision of the Court of Appeal, was conducted by Mr Stephen Shaw, the Prisons and Probation Ombudsman for England and Wales. His Report, published in May of this year, included the following recommendation:
“Until such time as the jurisprudence is clarified, I recommend that the Prison Service requires all prisons to carry out investigations into attempted suicides, incidents of serious self-harm and other near deaths. These should include an independent element, and engage the person who has been harmed and/or their family.”
This recommendation applies to more than near-suicides resulting in serious injury and probably to circumstances that would not engage article 2, but I consider that it makes good sense nonetheless.”
I have italicised the phrase that is of obvious relevance in the present context.
The other members of the Appellate Committee similarly restricted their statements of the Article 2 investigative duty. I refer to the judgment of Lord Brown of Eaton-under-Heywood at paragraphs 100 to 102. Lord Mance said:
“113. In common, I understand, with all of your Lordships, I would reject the Secretary of State’s submission that an article 2 investigation is only required where the State is in arguable breach of its substantive article 2 duty to protect life, in the sense that it ought arguably to have known of a real and immediate risk of a prisoner committing suicide and failed to take out reasonable preventive measures. While it is dangerous to generalise and I confine myself for the present to circumstances such as those of the present case, I agree that the relationship between the State and prisoners is such that the State is bound to conduct an article 2 compliant inquiry whenever its system for preventing suicide fails and as a result the prisoner suffers injuries in circumstances of near-suicide significantly affecting his or her ability to know, investigate, assess and/or take action by him or herself in relation to what has happened.”
The present case is not a case of attempted suicide. P did not attempt suicide. The medical evidence was that his self-harming, if continued, could lead to life-threatening injury or disease. His medical condition, and his actions, cannot in my judgment be assimilated to cases of suicide and near suicide. It cannot be said that there was “a real and immediate risk” to P’s life while he was in Feltham: the risk was real, but it was not immediate.
When L was in the Court of Appeal, under the name JL [2006] EWCA Civ 767, Waller LJ, with whom the other members of the Court agreed, said, at paragraph 32, that “the simple fact of a death or serious injury of a person in custody gives rise to an obligation of the State to conduct the enhanced type of investigation”. I agree with Mitting J that this statement has to be read in the context of the facts of the case. Since it concerned an attempted suicide by hanging, I think that by his reference to “serious injury” Waller LJ was referring to cases that involved a real and immediate risk to life. On this basis, I respectfully agree with his statement. To the extent that his statement may be read as going further, it does not reflect the European authorities, and it was obiter, since it was a case of a real and immediate risk to life, and the only question for the Court was the nature of the investigation to be held by Article 2: see paragraph 1 of Waller LJ’s judgment and similarly paragraph 1 of Lord Phillips’ judgment in the House of Lords. Moreover, since the issue before the Court of Appeal concerned the investigative duty imposed by Article 2 (and not Article 3), some risk to life must be involved if the duty is engaged: a serious injury, in the absence of a risk to life, could not give rise to any relevant duty by virtue of Article 2. In my judgment, in so far as Waller LJ’s statement extends beyond cases involving a real and immediate risk to life, it does not represent the law. It is significant that, as I have pointed out, the House of Lords did not endorse such a wide formulation of the duty.
It follows that the Secretary of State was not required by Article 2 to conduct an inquiry in this case. Nor, for reasons I summarise in paragraph 58 below, do I think that this case should impose an Article 2 investigative duty on the state.
A duty imposed by Article 3?
In my judgment, the Secretary of State was not and is not obliged to conduct an inquiry by the investigative obligation imposed by Article 3. My reasons are as follows:
I agree with the finding of Mitting J that there is no evidence of an arguable breach of Article 3.
The exclusion of psychopathic disorders from section 48, which precluded P’s transfer to hospital under that provision, is not the proper subject of an Article 3 inquiry.
If there were an arguable breach, it would not necessarily follow that the Secretary of State was under the investigative duty. On the facts of this case, I would uphold the refusal to conduct an inquiry, because all the relevant facts are known.
I enlarge on my reasons in the following paragraphs.
It is not suggested that anyone for whom the Secretary of State was responsible intended to subject P to “torture or to inhuman or degrading treatment or punishment”. Mr Wise submitted that Article 3 may nonetheless be engaged where the neglect of the state causes the victim to suffer inhuman or degrading treatment. I accept this submission, as did Mitting J. In McGlinchey v UK (Application no. 50390/99) (2003) EHRR 41, the European Court of Human Rights held that this country had been in breach of the Article 3 rights of a prisoner. The Court stated:
“2. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1517, § 52).
3. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for her human dignity, that the manner and method of the execution of the measure do not subject her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, her health and well-being are adequately secured by, among other things, providing her with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).”
In McGlinchey,the Court rejected the allegations of breach of Article 3 where treatment had complied with medical advice, but upheld the allegation where there had been a gap in the medical monitoring of the condition of the prisoner whose condition evidently did require monitoring and treatment: see paragraphs 47 to 57 of the judgment.
More recently, in Paladi v Moldova (Application no. 39086/05) [2007] ECHR 574, the Court held that the lack of proper medical assistance in a remand centre, the applicant’s incomplete treatment at the prison hospital and the termination of his hyperbaric oxygen therapy each amounted to a violation of Article 3.
Mr Wise described the precondition for an inquiry as “a credible assertion of breach”, the description used by Strasbourg in Labita v Italy (Application no. 26772/95):
131. The Court considers that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that 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 an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible … Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance …, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ….
The expression has reappeared in subsequent judgments. However, I see no difference of substance between a “credible assertion” of a breach and an assertion that on the evidence available there was an arguable breach.
A breach of Article 3 involves fault on the part of the state or those for whom it is responsible. Fault is inherent in the notions of torture, inhuman and degrading treatment. The fault may be the deliberate action of a person for whom the state bears responsibility, or it may be neglect or failure to act or to make proper provision. There cannot be a breach of Article 3 without fault.
The judge held that there was no evidence of an arguable breach of Article 3: see paragraphs 23 and 24 of his judgment, cited above. I agree, for the reasons given by the judge. The only complaint that could be made is that P should have been transferred to a psychiatric hospital earlier. But, as I have pointed out, in not doing so, the Secretary of State was acting in accordance with Dr Williams’ medical opinion. The action or inaction of the executive based on medical advice of an appropriately qualified doctor, as Dr Williams was, cannot amount to a breach of Article 3. Once Dr Williams had changed his opinion, steps were taken to transfer P to a hospital, but any delay then was attributable to Sussex NHS Partnership Trust and to the need to meet the requirements of section 37. In addition, as I pointed out above and as Mitting J correctly held, the Secretary of State was prevented from making a transfer under section 48.
In any event, however, the state is not required to conduct an inquiry in every case in which there is an arguable breach of Article 3. The circumstances in which allegations of breach of Article 3 are made generally differ from those in which Article 2 is engaged. Usually, although not always, the victim of the breach of Article 3 is alive and knows of the acts or omissions said to infringe his Convention right. Generally, but not always, the victim of a possible breach of Article 2 is dead, and the facts relating to his or her death are known only to others. The case of Banks v UK (application no. 21387/05) concerned allegations by prisoners that they had been assaulted in prison by prison officers. The applicants had brought civil proceedings in England and recovered damages. Some of the officers had been prosecuted and convicted. The Court held that the applications alleging breach of the investigatory obligation imposed by Article 3 were inadmissible, as being manifestly ill founded. The Court said:
“Procedural obligations have been implied in varying contexts under the Convention, where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory but practical and effective. Such obligations requiring an effective investigation into allegations of unlawful use of force and serious ill-treatment have been interpreted as arising under Articles 2 and 3 of the Convention respectively (see, amongst many authorities, concerning Article 2, McKerr v. the United Kingdom, no. 28883/95, §§ 108-115, ECHR 2001-III and Avşar v. Turkey, no. 25657/94, §§ 393-395, ECHR 2001-VII (extracts); and concerning Article 3, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, §§ 102-106 and Boicenco v. Moldova, no. 41088/05, 11 July 2006, §§ 20-123).
The Court would emphasise that these obligations are not identical (İlhan v. Turkey [GC], no. 22277/93, §§ 89-93, ECHR 2000-VII), either in content or as regards their applicability. In the context of Article 2 of the Convention, the obligation to conduct an effective investigation into allegations of the unlawful use of force attracts particular stringency in situations where the victim is deceased and the only persons with knowledge of the circumstances are officers of the State. It is important, with a view to ensuring respect for the rule of law and confidence of the public, that the facts, and any unlawfulness, are properly and swiftly established. In the context of Article 3, where the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred, there is a different emphasis and, as stated in the above-cited İlhan case (see § 92), since Article 13 of the Convention requires an effective remedy to be provided for arguable breaches of Article 3, it will not always be necessary, or appropriate, to examine the procedural complaints under the latter provision. The procedural limb of Article 3 principally comes into play where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 178, 24 February 2005 İlhan v. Turkey [GC], cited above, §§ 89- 92).
…
While it is true that, amongst the applicants in this case, it was only in respect of the first applicant’s allegations that the prosecutions resulted in convictions (the prosecutions brought in respect of the third and sixth applicants’ allegations did not lead to any conviction and no prosecutions were brought concerning the other applicants), the Court would note that the applicants’ arguments in favour of a public inquiry are not particularly geared towards finding evidence for further prosecutions of individual officers but focus rather on identifying the root causes of the culture of abuse that existed and the means to ensure their eradication. To the extent that they were in fact asserting that there had been a failure to provide effective criminal investigations and prosecutions, it would also be arguable that the complaints are out of time as they should have been introduced within six months of the date when it became apparent that no further criminal procedures would ensue (namely, after the letter dated 9 December 2003 from the Home Office informed the applicants’ solicitors of this position).
Accordingly, the Court is not persuaded that this is a case in which issues arise under the procedural head of Article 3 of the Convention and would consider that the applicants’ complaints fall rather to be considered under Article 13 of the Convention.
However, even assuming that Article 3 in its procedural aspect was engaged in this case, the Court would make three points.
First, in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility for unlawful acts of violence (McKerr, cited above, § 134 see also Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V where the ability of the State to enforce the criminal law against those who unlawfully took the life of another was described as decisive when deciding whether the authorities complied with their positive and procedural obligations under Article 2).
Second, where the allegations are not of intentional violence as such but raise issues of negligence, a civil or disciplinary remedy may be sufficient to provide protection under Article 2 … Similar considerations would arise under Article 3. …
Thirdly, insofar as the applicants asserted that there were wider issues which were not ventilated in either criminal or civil proceedings and in respect of which a public inquiry was necessary, the Court would emphasise that the procedural element contained in Article 3 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for serious ill-treatment the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known. There is no indication in the present case that the facts have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case as to the background of the assaults and the remedial measures apt to prevent any recurrence in a prison in the future are, in the Court’s opinion, matters for public and political debate which fall outside the scope of Article 3 of the Convention (see mutatis mutandis, Taylor Family and Others v. the United Kingdom, no. 23412/94, Comm. Dec. 30.8.94, D.R. 79 p. 127).”
Lord Rodger of Earlsferry referred to the judgment of the European Court in Banks in his judgment in L. He said:
“69. The European court envisages that, where the victim is able to act on his own behalf and to give evidence about what happened, so far as any spontaneous independent investigation under article 3 is concerned, “there is a different emphasis” and the absence of any prompt independent investigation will mainly come into play if the court is unable to determine, as a matter of fact, whether or not there has been any treatment prohibited by article 3.”
In R (AM) v Home Secretary [2009] EWCA Civ 219, Longmore LJ said:
“74. Speaking only for myself I am left somewhat uneasy. Can it really be the law that it is the duty of the state to conduct or the court to order “a full public inquiry” (whatever that may precisely mean) whenever an allegation of a breach of Article 3 is made? I cannot bring myself to believe that it is.
76. In the first place it must be remembered that the trigger for the duty and/or power to order an effective official investigation is the particular alleged breach of Article 2 or 3 as the case may be. The court has no general power to order an inquiry merely because the court may consider it appropriate in all the circumstances. The maximum, therefore, that the court could do in the present case is, in my view, to order an inquiry into the particular treatment suffered by the complainants which is alleged to constitute a breach of Article 3; without the peg of particular breaches in respect of particular victims, there would be no power to order an inquiry “into the circumstances leading up to the disturbance” or an inquiry intended to establish “the underlying reasons why the disturbance took place”.
76. Secondly the authorities do not seem to me to go as far as Liberty suggests. Both Wright and Amin were cases of death in custody which merited a full independent inquiry into the circumstances of the death. Green was a case of alleged attempted murder or grievous bodily harm. It is not difficult to imagine cases of alleged Article 3 mistreatment (such as torture or the infliction of serious harm) which would merit a full independent inquiry. But every allegation of a breach of Article 3? There must surely be some sense of proportion. If Jackson J (in Wright [2001] EWHC Admin 520) intended to say that any alleged breach of Article 3 required an effective official investigation, he went further than he needed to and I would respectfully disagree. It is noteworthy that when Lord Bingham approved Jackson J’s judgment he specifically enumerated the features which the investigation must have “to satisfy Article 2”. I do not read his speech as saying that the same features must apply to Article 3. Green proceeded on the assumption that Article 3 was engaged without any exploration of its precise ambit, see para 58 of the speech of Lord Rodger of Earlsferry.
77. Nor do later cases support Liberty’s contentions. In Banks v UK (Application No. 21387/05, decided 10th June 2005) a number of prisoners incarcerated in Wormwood Scrubs made allegations of assaults and ill-treatment by prison officers. They complained that there had been a failure to provide an adequate investigation into their allegations and that the only means of ensuring compliance with the procedural obligation of Article 3 was for there to be an independent public inquiry
“to establish the factual background, the full nature and extent of the culture of violence at Wormwood Scrubs in the 1990’s how this took root and prospered and the extent to which it continues and establishing responsibility for the above.” (page 9)
The European Court of Human Rights (4th Section) decided that the application was inadmissible. They considered that the complaint related more properly to Article 13 (requiring the provision of an effective remedy for breach of Article 3) rather than to the procedural obligation of Article 3 itself, but they decided that, even if the procedural aspect of Article 3 was engaged, the complaint was inadmissible because
i) to the extent that allegations of criminal responsibility for acts of unlawful violence were made, the appropriate way of dealing with them was a criminal investigation;
ii) to the extent that allegations of negligence were being made, civil proceedings might well be sufficient even for the purpose of both Article 2 and Article 3 even though civil proceedings could be (and had in that case been) settled;
iii) to the extent that wider issues were raised which were not ventilated (or would not be ventilated) in criminal or civil proceedings those were matters for “public and political debate which fell outside the scope of Article 3 of the Convention”. (page 12).
78. The application in the present case is remarkably similar to that in Banks. Ms Simor for the appellants submitted that decisions on admissibility do not change the established principles laid down by European Court and that cases such as Jordan and Edwards followed by the House of Lords in Amin required a public inquiry to be held. But Jordan and Edwards, like Amin, were Article 2 cases. The European Court in Banks considered that those cases were inapplicable to Article 3 cases and that established principle meant that a combination of the availability of a criminal trial and civil proceedings would normally be adequate for Article 3. It is noteworthy that Lord Rodger of Earlsferry contemplated the possibility that this might even be an appropriate approach in an Article 2 case where the applicant had survived life threatening injuries but was in a position to give proper instructions to his legal representatives, see R (L) v Secretary of State for Justice [2008] UKHL 68, 3 WLR 1325, paras 67-73.
79. It seems to me that in the present case the allegations of breach of Article 3 can be properly dealt with by the combination of the availability of criminal proceedings and civil proceedings, just as the allegations in Banks could be properly dealt with. The availability of those proceedings thus constitutes compliance with the procedural obligation of Article 3 on the facts of this case. The focus of any inquiry which the court is empowered to order has to be on the alleged breach of Article 3. The wider inquiry which Liberty wants is no doubt “a matter for public and political debate” but does not fall within Article 3.
My Lord takes the view that criminal and civil court proceedings will not ordinarily suffice when allegations of systemic and multiple breaches of Article 3 are made. I think that this puts the matter too widely. If a particular individual or, as in this case, three individuals make one or more allegations of conduct amounting to a breach of Article 3, I see no reason why they cannot be investigated by the police and the courts in the ordinary way. It cannot be right, in my view, that merely by adding an allegation that the conduct is systemic one can be entitled to a public inquiry. There can hardly be a requirement for a public inquiry every time somebody plausibly alleges institutional violence or institutional racism on the part of the authorities. Unless the state’s recognised ways of investigating such allegations by the use of legal proceedings or the Ombudsman are appropriate, there will be a risk that there will be considerable public expenditure to little purpose.
…
83. There must also be a margin of appreciation for the Secretary of State to decide when to hold and when not to hold a public inquiry. The resource implications can be considerable. The Secretary of State’s decision in the present case seems to me to be within the margin she must undoubtedly have.”
I respectfully agree with what Longmore LJ said in that case. Elias LJ agreed with the need to formulate the allegations of breach of Article 3. He said:
“91. … The obligation to carry out an investigation is a procedural one which is parasitic on alleged substantive breaches of the Article: see the observations of Lord Bingham of Cornhill in R (Gentle) v Prime Minister [2008] UKHL 20;[2008] 1 AC 1356 para 6. The nature of that obligation is inextricably linked to the specific nature of the alleged breaches.”
He also agreed that Article 3 does not impose an obligation to conduct an inquiry in every case:
“112. … In my judgment the principles derived from the authorities clearly do not require the state to have to set up independent inquiry whenever anyone in custody made allegations that there had been a breach of Article 3. The financial cost would be wholly disproportionate to the benefits. Furthermore, in my opinion that is not what the law in this area requires even where the claimant links such allegations of breach to the existence of alleged cultural or institutional practices or arrangements.”
Longmore LJ dissented in AM, but his difference with Elias LJ concerned whether the circumstances of that particular case had made an inquiry appropriate.
In the present case, I see no need for an investigation. The facts relating to P’s detention in Feltham and the reasons why he was only transferred after Dr Williams’ re-assessment are known. Mr Wise was pressed to identify what an inquiry might reveal that was not already known. In my judgment, he was unable satisfactorily to do so. The summary of P’s case, set out in the Addendum to his Grounds, does not include a formulated allegation of breach beyond the assertion that the Secretary of State was in breach of her protective obligation.
One possible failing on the part of the state has been identified in this case, namely the omission from section 48 of the Mental Health Act 1983 of psychopathic disorders. But that omission is known, as are its consequences. No inquiry is needed to elicit the facts. No doubt an inquiry might be used to publicise the omission; and it might also be used to publicise what is alleged to be the lack of appropriate care for someone like P in a YOI such as Feltham. But, as the Court said in Banks, such “wider questions” are matters for public and political debate which fall outside the scope of Article 3 of the Convention. More importantly, section 48 has been amended by the Mental Health Act 2007, and now applies to any mental disorder, i.e., to “any disorder or disability of the mind”: see section 1 of the 1983 Act as amended.
Conclusion
Article 2 was not engaged in this case, where there was no immediate risk to P’s life. Where Article 3 may be engaged, an inquiry is not mandatory. Whether the Secretary of State is bound to conduct an inquiry depends on the circumstances of the case, including the availability of other means of eliciting the relevant facts, such as civil proceedings and investigation by the prison ombudsman. To impose an obligation to hold a Human Rights inquiry has significant resource implications, a matter of growing concern when the resources of public authorities are increasingly constrained. Good reason for an Article 3 inquiry must be shown. In the present case, all the relevant facts are known: why P was kept at Feltham and not transferred until after Dr Williams had re-assessed him and why there was some delay thereafter.
I would therefore hold that neither Article 2 nor Article 3 of the Convention required the Secretary of State to conduct an inquiry as sought by P.
Lord Justice Jacob:
I agree.
Lord Justice Ward:
I also agree.