Khan, R (on the application of) v Secretary of State for Health

On 8 October 1999, Naazish Khan was then only three years old when she died suddenly and tragically while she was undergoing treatment in St. James Hospital, Leeds (“the hospital”). Various inquiries have taken place and an inquest into Naazish’s death is due to start on 24 November 2003. Naazish’s father, Mohammed Farooq Khan (“the claimant”) contends that the inquiries that have already taken place into Naazish’s death do not comply with the state’s obligations to her family imposed by Article 2 of the European Convention on Human Rights (“the Convention”) to investigate properly Naazish’s death.

The claimant’s case is that this failure can only be remedied by the proper and effective participation of him and his family in the inquest into Naazish’s death or in any inquiry into the causes of her death set up by the Government. Mr. Philip Havers QC for the claimant contends that such proper and effective participation by the claimant requires and entails the provision by the state of financial assistance so that he can be legally represented because not only is he not well enough medically to represent his own interests at such an inquest or inquiry but also because he lacks the required medical knowledge and the financial resources to pay for such legal representation himself. The claimant’s financial circumstances prevent him from receiving public funding. So he claims a declaration that the Secretary of State for Health (“the Secretary of State”) should pay for legal representation for Naazish’s family at the inquest into her death or that he holds an inquiry into Naazish’s death and that he pays for the claimant’s legal representation at such inquiry. Initially, the claimant also claimed relief against Leeds Teaching Hospital NHS Trust (“the Trust”), which was the body responsible for the hospital but this claim has been withdrawn.

Mr. Nigel Giffin QC for the Secretary of State contends that Naazish died before the Human Rights Act 1998 (“the 1998 Act”) came into effect with the consequence that the claimant does not have any Article 2 rights arising out of Nazism’s death. The Secretary of State also submits that even if an obligation was owed to the claimant under Article 2 of the Convention to investigate Naazish’s death, then it has already been complied with or, in any event, it will be complied with at the forthcoming inquest, even if the claimant is not represented.

Lightman J ordered that the claimant’s application for permission to pursue this claim should be listed immediately before the hearing of the substantive hearing. After having read the written skeleton arguments of counsel, I informed counsel that my provisional conclusion was that the claimant should have permission to pursue his claim against the Secretary of State. As counsel for the Secretary of State did not seek to persuade me not to follow this course, I duly gave the claimant permission and so this is the judgment on the substantive hearing, which I will start by setting out in more detail the facts giving rise to this claim.

Naazish Farooq was born on 12 July 1996 and she was the fifth of the six children of her parents, the claimant and his wife Safia Sultan. During the first three years of her life, she suffered no serious illness but in the summer of 1999 she began to complain of earache and discharge from her ear. Naazish’s condition failed to respond to treatment and she was eventually admitted to St. Luke’s Hospital, Bradford on 20 September 1999 where it was discovered that her lymph nodes and her spleen had become enlarged. By 24 September 1999, her condition had deteriorated and she was suffering from some respiratory difficulties. So Naazish was transferred to the hospital where a biopsy was carried out and where her condition was ultimately diagnosed as B Cell Lymphoma. As a result, she began a course of chemotherapy on 5 October 1999.

In anticipation of the need for chemotherapy, haemodialysis had commenced on 25 September 1999 in order to guard against renal failure. This treatment included the administration of potassium in such quantities as was required to maintain the necessary and appropriate potassium level. Potassium (potassium chloride) was infused through the dialysis machine by means of a mixture of fluids run in from a bag of fluids. On each occasion on which the infusion bag was changed, a blood analysis had to be carried out in order to obtain, inter alia, an accurate reading of the potassium level in the blood. If the level was too low, more potassium was added to the next bag while if it was too high, less was added. The prescription for potassium was attached to the patient’s bed and the amount could be read off from the prescription, which states the specific quantity required to be given for each level on the reading.

Because potassium is a heavy solution, the bag containing the potassium and the diluent had to be shaken vigorously in order to mix it properly, as otherwise the potassium would lie at the bottom of the bag where the line entered the bag and the patient would receive a bolus dose of potassium. This is important because excessive infusion of potassium can and does cause heart problems, heart attacks and ultimately death.

Shortly after Naazish’s chemotherapy treatment began and in the early hours of 8 October 1999, something went catastrophically wrong with the administration of potassium to her. It seems that at about 02.30 hours a fresh bag was put up containing what was apparently a grossly excessive amount of potassium. The police report suggests that this happened, inter alia, because no blood gas test was carried out before the bag was made up, the nurse failed properly to mix the bag when she added potassium to it and then her actions were not checked by another nurse, as they should have been. Shortly afterwards, Naazish suffered a heart attack. Attempts were made to revive her during the course of which a blood gas reading was taken. This disclosed an alarmingly high potassium reading of 18.9, which compares with first, a normal therapeutic level of 3 and second, a level of 9 to 10 which would be high enough to cause death. Twenty minutes later, a second blood gas test disclosed a potassium level of 13.4. Although this represented a significant reduction, it was still far too high a level and Naazish tragically died shortly afterwards.

Notwithstanding these findings of grossly abnormal levels of potassium, the cause of death was certified by the hospital staff as being “cardio-respiratory attack and B Cell Lymphoma”. According to the claimant, the hospital also said nothing to the Coroner’s officer about these levels of potassium when the officer authorised the release of Naazish’s body, which, according to Muslim law, had to be and was buried within 24 hours of her death.

Nonetheless, shortly afterwards, the police began to investigate Naazish’s death and in the course of their investigations, they applied to the Coroner for her body to be exhumed. This application was granted and a post-mortem was carried out. The pathologist, Dr. Milroy concluded that

“Taking the findings of a high potassium at collapse, combined with the post-mortem findings and the experiments performed on 25 November 1999, described by Professor Forrest, in my opinion death is consistent with potassium poisoning”.

The police conducted extensive inquiries and subsequently they produced a lengthy report, which they sent to the coroner, who duly supplied it to the claimant, who had not been involved in the police investigations. The police had requested the Trust not to contact the Khan family while the police investigation was underway. The hospital conducted various inquiries, which led to a series of reports, which were supplied to the claimant, but regrettably only after the commencement of these proceedings. In due course, I will analyse those reports to determine the extent to which they constitute or assist in ensuring compliance with the state’s Article 2 obligations.

At the heart of the claimant’s case is the contention that Article 2 of the Convention gives him the right to obtain an investigation by the state into Naazish’s death and also to obtain payment of his legal costs from the Secretary of State. So it is appropriate at this stage to make some introductory comments about Article 2, which insofar as is material to this application, provides that:-

“1.

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court”.

As Lord Woolf CJ pointed out when giving the judgment of the Court of Appeal in R (Amin and Middleton) v. Secretary of State for the Home Department [2003] QB 581 (“Amin”):-

“Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that, without it, the substantive rights conferred by Article 2 would or might in some cases be rendered nugatory or ineffective. Thus the duty to investigate is adjectival to the duty to protect life, and to the prohibition of the taking of life” [32] (emphasis appears in the original judgment).

As I have explained, the claimant relies on this adjectival duty to investigate in order to seek to compel the Secretary of State to fund representation for him at the forthcoming inquest into the tragic death of Naazish or failing that he seeks to compel the Secretary of State to hold an inquiry into Naazish’s death and to pay the costs of the claimant’s representation at the inquiry. The Secretary of State denies that he has the power to provide such funding at the inquest.

Mr. Havers contends that even if the Secretary of State did not have such power to provide funding, then Article 2 of the Convention requires such funding. Mr. Giffin submits that even if the Secretary of State had such power, the claimant cannot succeed essentially for four different reasons.

First, the death of Naazish occurred before the 1998 Act came into force and thus the claimant cannot rely on Article 2, which is the basis of his claim. Second, the state has now already complied with its duties to investigate Naazish’s death even before the inquest takes place. Third, even if the state has not yet complied with its duties, the Secretary of State contends that the inquest will fulfil that duty even if the claimant is not legally represented. Fourth, even if the Secretary of State had the power to fund legal representation for the claimant at the forthcoming inquest, it would not be appropriate to do so in a manner subversive of the limits on eligibility for legal assistance as the claimant is ineligible for legal assistance because his financial position means that he is outside the eligibility limits.

As Mr. Havers relies solely on Article 2 of the Convention to support his claim that the Secretary of State is obliged to provide funding for legal representation for the claimant at the forthcoming inquest of Naazish or at any public inquiry that he might hold, I would normally initially consider as a crucial preliminary point the issue of whether the fact that Naazish’s death preceded the coming into force of the 1998 Act precludes the claimant from relying on Article 2. If, in the event, I had then decided that the claimant could not rely on Article 2, I would have dealt with the remaining issues briefly. Mr. Giffin, however, made it clear that although his instructions were to pursue the point that the claim must fail because Naazish’s death preceded the coming into force of the 1998 Act, the Secretary of State does not wish to succeed on that point alone and that irrespective of my view on that point, he still wanted a decision on whether on the facts of this case, there had been compliance with Article 2. As I have had the benefit of full and impressive arguments on whether Article 2 requires the Secretary of State to meet the legal costs of the claimant at the inquest, I will postpone consideration of the significance of the fact that Naazish sadly died before the 1998 Act came into force until after I have dealt with the substantive issues.

Thus the issues raised on this application for judicial review are: -

The claimant complains that without receiving from the state funding for legal representation at the inquest or inquiry, his adjectival rights under Article 2 of the Convention will not have be complied with. The Secretary of State accepts the claim that the state has an Article 2 adjectival obligation to investigate Naazish’s sad death and it becomes appropriate now to analyse the nature of the state’s duty to investigate deaths and to add to what I stated by way of introduction in paragraph 13 above about this duty. In Amin, Lord Woolf CJ stated of the state’s duty that “what is required will vary with the circumstances” (paragraph 62), but he also explained that:-

In the present case, it is not suggested that Naazish was deliberately killed but that she died as a result of gross negligence on the part of the hospital staff. The Strasbourg Court has considered in three recent cases when and how the investigative duty under Article 2 is engaged operates where a death occurs in a hospital in circumstances in which there is a strong case of negligence on the part of the doctors or the nurses.

In Powell v. United Kingdom (Application no. 45305/99 - 4 May 2000), the Strasbourg Court stated that where the court is dealing with a death in a hospital, which was not intentionally caused, the issue “is an entirely different one in terms of both context and scope of the [Article 2] obligation” from the situation where duties “may devolve on law enforcement agencies to take preventive operational measures to protect an individual whose life is at risk from the criminal activities of a third party”. Nevertheless, the Strasbourg Court stated in respect of the adjectival obligation to investigate under Article 2 that:-

“The court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting state has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting state to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life” [17].

In that case, the medical staff had failed with tragic consequences to diagnose that a boy was suffering from a disease, which would not have proved fatal if it had been properly diagnosed and treated promptly. Mr. Havers points out correctly in my view that it is significant that in the Powell case, the Strasbourg Court proceeded to state that:-

“The court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as a result of an act of violence. In its opinion and with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter” [17].

In two subsequent cases, the Strasbourg Court held that the state had a duty to investigate under Article 2 when patients in the custody of the state had died as a result of apparent medical negligence. In Sieminska v. Poland (Application no. 37602/97 - 29 March 2001), the Strasbourg Court found that where there was an allegation that an inadequate resuscitation system had caused a death, the state had “the obligation to establish an effective judicial system for establishing the cause of death which occurs in hospital and any liability on the part of the medical practitioners concerned”. A similar approach was adopted more recently by the Strasbourg Court in Calvelli and Giglio v. Italy (Application no. 32967/96 - 17 January 2002) in which it was explained that:-

“The positive obligation imposed by Article 2 to set up an effective judicial system … may for instance also be satisfied if the legal system affords victims a remedy in the civil courts either alone or in conjunction with a remedy in the criminal courts enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for publication of the decision to be obtained” [52].

No cogent reason was put forward to suggest this principle did not apply in the present case and indeed where a young child dies, the principle would, if anything, apply with greater force. I consider that a similar adjectival duty not “defined by reference to fixed rules” was in this case imposed by Article 2 on the state to investigate the circumstances of Naazish’s death subject, of course, to determining the commencement date issue. The Strasbourg Court defined the scope of the investigation by the state in cases where people die in hospital in unexpected circumstances as being to have an effective independent system for establishing the cause of the death and to have an effective judicial system to determine the responsibility of health professionals and to obtain civil redress and publication of the decision.

Section 2(1) of the 1998 Act requires me to “take into account” the decisions of the Strasbourg court in determining the extent of Convention rights, which include the adjectival duty under Article 2 of the Convention. Lord Slynn of Hadley has explained in R (Alconbury Developments Ltd and Others) v. Secretary of State for the Environment, Transport and the Regions; R (Holding and Barnes plc) v. Secretary of State for the Environment, Transport and the Regions; Secretary of State for the Environment, Transport and the Regions v. Legal and General Assurance Society Ltd [2001] UKHL 23, [2001] 2 WLR 1389 at paragraph 26, that:-

“Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence”.

That approach means that I should follow the decisions of the Strasbourg court in holding that in cases where a patient dies in hospital, the adjectival obligation of the state is satisfied where the state has an effective independent system to ascertain the cause of death and has established an effective judicial system to establish the responsibility of the professionals and to obtain civil redress.

Mr. Giffin contends that the state had and has no power to fund the claimant’s legal representation at the inquest but that if Article 2 required more to be done by the state apart from holding the inquest then it would have to be in the form of an inquiry with, if necessary, the state acting for the legal representation of the claimant. Mr. Havers disagrees and in support of his contention that the Secretary of State had the power to fund legal representation of the claimant, he relies on the provisions of the National Health Service Act 1977 (“the 1977 Act”), which, provide insofar as are relevant to this issue that:-

“1(1). It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement-

(a)

in the physical and mental health of the people of those countries, and

(b)

in the prevention, diagnosis and treatment of illness,

and for that purpose to provide or secure the effective provision of services in accordance with this Act …

2.

Without prejudice to the Secretary of State’s powers apart from this section, he has power –

(a)

to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and

(b)

to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty”.

Mr. Giffin submits that these provisions do not give the Secretary of State the power to fund legal representation of the claimant at the forthcoming inquest of Naazish. In essence, he contends that funding legal representation for the family of a deceased at an inquest is not “calculated to facilitate” nor is it “conducive to or incidental to” the provision of medical services.

Mr. Havers’ riposte is twofold. First he submits that even if Mr. Giffin is correct, then sections 1 (1) and 2 of the 1977 Act have, in accordance with section 3 (1) of the 1998 Act, to be “read and given effect to in a way which is compatible with the Convention rights” of the claimant and such Convention rights include those of the claimant arising under Article 2 of the Convention to have an investigation of the circumstances leading to Naazish’s death. Mr. Havers’ second submission is that even if he cannot rely on the 1977 Act to authorise the payment of the claimant’s legal costs at the inquest, then the rights conferred on the claimant under Article 2 of the Convention mean that the Secretary of State will be acting unlawfully if he does not provide payment for the claimant’s legal costs. In consequence, the claimant could bring his present claim independently of the 1977 Act by relying on section 6(1) of the 1998 Act, which makes it “unlawful for a public authority [such as the Secretary of State] to act in a way which is incompatible with a Convention right”. I find this second submission cogent and I accept it.

It follows that irrespective of whether the 1977 Act itself gives the Secretary of State power to pay the claimant’s legal expenses at the inquest, the claimant will succeed on his claim if the Secretary of State is under an obligation under Article 2 to make those payments, irrespective of whether he has such powers. I consider that submission to be correct subject, of course, to the commencement date issue. Thus the critical issue to which I now turn, is whether the state has already complied with its Article 2 duties to investigate Naazish’s death.

Mr. Havers contends that my starting point should be that the inquest into Naazish’s death is of particular significance and value to the claimant because there has not yet been a proper investigation into why and how she died. Mr. Giffin contends that insofar as the state owes adjectival investigative duties in respect of Naazish’s death, these duties have already been fulfilled. So it is now appropriate to consider first why Mr. Havers contends that the state has not complied with its Article 2 duties to investigate Naazish’s death and then second, how Mr. Giffin responds to those contentions.

Mr. Havers submits that the state has not yet complied with its Article 2 obligations for five main reasons. First, he states that the claimant and his family were unaware of both of the police and hospital investigations until after they were concluded. Second, the claimant and his family were neither invited to nor provided with any opportunity to participate in either of these investigations. Neither of those points is disputed. Third, Mr. Havers claims and attaches great weight to the fact that the claimant and his family still do not know the precise cause of Naazish’s death and that there are many unanswered questions about what went wrong in the hospital. Fourth, the claimant contends that there was a cover-up at the hospital of information relating to Naazish’s death. Fifth, the claimant’s solicitor explains in his third witness statement that participation is of benefit to the health of relatives of Naazish and it enables them to understand “the processes involved: that lessons have been learnt and that their loved one’s life may not have been in vain”. I must now consider what steps have actually been taken to comply with the state’s Article 2 obligations or could have been taken by the claimant.

There have been four investigations which have already been or could already have been carried out into the events leading up to Naazish’s death. First, there was an extensive police investigation which led to a detailed report being prepared. The purpose of such an investigation was to consider if a criminal charge could be brought for acts and omissions leading to Naazish’s death. Indeed, a potential offence that had been committed by those treating Naazish could have been manslaughter by gross negligence (see R v. Adomako [1995] 1 AC 171). The report of the police investigation was thorough and detailed extending to 84 pages and it was supported by substantial exhibits; it comprised witness statements, copies of medical notes as well as of medical reports. One of those reports was prepared for the police by Dr. Mark Bradbury, who is a Consultant Paediatrician and Paediatric Nephrologist at the Manchester Children’s Hospital. Although he was initially trained at, among other places, St. James’ Hospital in Leeds, he must now be regarded as independent of the hospital. He concluded that the most likely cause of Naazish’s death was an excessive infusion of potassium from the dialysis solution and he considered that Sister Sutton and the Trust were grossly negligent.

As I have already explained, the claimant and his family were not told of this police investigation and therefore did not participate in it. I agree with Mr. Havers that this was regrettable and constituted an error of judgment. Nevertheless, on 12 June 2001, the claimant and his solicitor met the Branch Crown Prosecutor from the Casework Directorate of the Crown Prosecution Service, who explained to them in some detail why there was insufficient evidence to prosecute any party for the events leading to Naazish’s death. The claimant and his solicitor were then given opportunities to put questions to the Crown Prosecution Service about what emerged from the investigation. The claimant’s solicitor did not raise any questions about Naazish’s treatment or the police investigation into it before he sought and obtained an admission of liability from the hospital authorities.

Second, there have been a variety of reports prepared as a result of internal investigations into matters concerning Naazish’s death carried out by the Trust, which drew on occasions on independent expertise. Professor Paul Johnstone, the Regional Director of Public Health for Yorkshire and the Humber and his predecessor, Dr. Kirkup, reviewed the results of various NHS investigations against the background of the facts established by the police. Dr. Kirkup was ready and willing to meet the claimant to discuss his findings into the investigations carried out at the hospital regarding the care and treatment that Naazish received before her death. On 8 July 2002, the solicitor for the claimant was told by a letter that Dr. Kirkup was able and willing to meet Naazish’s parents and to discuss his findings and answer any questions they might have and on 9 January 2003, Professor Johnstone wrote to the claimant and his wife explaining that he was prepared to meet them. Just before the hearing of this application, a meeting did duly take place at which representatives of the family of Naazish and representatives of the Trust were present.

Professor Johnstone stated that when he was appointed to his present position in July 2002, he was concerned about a number of factors concerning the investigations into Naazish’s death and those concerns included discovering whether the investigators were independent of the clinical team directly involved in providing care to Naazish, how promptly the investigations were conducted, the extent to which there was public scrutiny, whether the next of kin were involved in the investigations, whether the care and treatment provided to Naazish was considered, whether wider systems factors were considered, whether the reports contained clear recommendations and whether follow-up action was clearly identified and effective arrangements were put in place to monitor implementation.

Professor Johnstone stated, and this is not disputed, that all the NHS investigations were undertaken by people, who were not directly involved in providing care for Naazish, but they were nevertheless employees of the Trust. Specific aspects of Naazish’s care and treatment in the hospital were examined and recommendations were made to reduce the likelihood of a recurrence of a similar incident by Melanie Southcombe-Tate, Head of Health and Safety at the Trust. Ruth Holt, the Assistant Chief Nurse made a number of recommendations in respect of the administration of potassium to patients. Dr. Simon Whiteley, a Consultant in Paediatrics Anaesthesia and Intensive Care at the Hospital produced a report on the incident in which he considered the cause of Naazish’s death and he made recommendations for changes. Dr. SW Smye, Dr. EJ Lindley and Mr. R. Price of the Department of Medical Physics and Engineering also wrote a report that dealt with the equipment in operation when Naazish was being treated.

These reports, together with a report of Dr. Bradbury considered wider issues relating to the treatment of Naazish. These included the design and maintenance of equipment, record keeping, the training and development of staff, supervision of staff, the development and use of protocol and procedures, as well as medical prescribing practices and the establishment of a critical incident team. The reports did provide a comprehensive account of the care and treatment provided to Naazish when she was receiving treatment at the hospital. In particular, the reports included an analysis of the practices for administering potassium, as well as the design and maintenance of equipment.

Professor Johnstone considered that a number of lessons had been learnt and that proposals had been made for actions to remedy system deficiencies in the NHS investigations report; they were brought together in an action plan prepared by Melanie Southcombe-Tate in January 2001. He also explained that the NHS investigations, together with the police investigations explored a number of possible reasons for the cardiac arrest, which preceded Naazish’s death. These included tumourlysis, respiratory failure, haemolysis, incorrect dosage of potassium chloride, inadequate mixture of potassium chloride with haemofiltration fluid, inadequate monitoring of potassium levels in Naazish’s blood and faults in the haemofiltration equipment. Professor Johnstone now recognises that sadly, it may not be possible to determine the precise cause of Naazish’s death with any certainty. That, he says, is not because insufficient steps had been taken to determine the cause of death, but because in the circumstances and because of the lack of blood measurements during the evening before Naazish’s death and the nature of the illness, it is now very difficult to find the evidence to prove what precisely happened. It is appropriate at this stage to reject the submission of Mr. Havers that all these inquiries were of a technical nature looking into the future rather than considering how Naazish died. As I have explained, the police inquiry and part of the Trust investigation did consider how and why Naazish died.

It is noteworthy that Professor Johnstone, who holds a substantial number of medical qualifications, concluded that in the light of the investigations carried out in the NHS and by West Yorkshire police these reports, which benefited from independent expertise where appropriate, had provided an “effective, thorough and reasonably prompt scrutiny of the care and treatment of Naazish and wider deficiencies within the [Trust]”. He doubted whether any further investigations would “identify additional facts”. No cogent arguments have been put forward to suggest that any of these conclusions are incorrect.

Professor Johnstone stated in his witness statement that he has seen a subsequent report prepared by the Trust dated 10 December 2002, which sets out the progress that has been made on implementing some of the recommendations resulting from the NHS investigations. He considers that the Trust has in most respects taken the necessary action to remedy the deficiencies identified by the investigations. Professor Johnstone explained, for example, that the sliding scale for administering potassium had been taken out of use, a protocol for continuous veno-venous haemofiltration had been introduced which alleviates the need to add potassium to haemofiltration bags. A new haemofiltration prescription charge and renal replacement fluid recording charges had been introduced. Professor Johnstone did point out that there were still some areas in which he was dissatisfied with the progress that had been made towards implementing the recommendations.

He explained that he was liaising closely with the West Yorkshire Strategic Health Authority, which was and is responsible for monitoring the performance of the Trust to ensure that the remaining outstanding recommendations for change were implemented within appropriate timescales. Professor Johnstone said that the dangers associated with intravenous administration of potassium are well recognised and that indeed the National Patient Safety Agency which was established in July 2001 issued its first patient safety alert about preventing accidental overdoses with intravenous potassium on 23 July 2002. He also reported that the issues which had been raised as a result of Naazish’s death were being considered in the context of developing the Renal Services National Service Framework and the module of the Children’s National Service Framework relating to medicine for children.

Professor Johnstone also commented on a list of queries which have been initially raised by the claimant’s solicitor in his second witness statement “based on a relatively cursory glance through the police statements surrendered to the Coroner”. He considered that only a small number of them related to the care and treatment of Naazish, but he explained that those relating to entries made in Naazish’s medical records, the print-outs of her blood gas levels and the results of the laboratory tests and the reporting of her death to the Coroner’s office are matters which the Coroner might wish to consider at the inquest. Professor Johnstone said that the claimant’s solicitor had not raised any further questions on substance which would necessitate a further NHS investigation.

He believes that the other inquiries relating to the wider context within which Naazish’s care were given had been answered either in the Trust’s investigation reports or in current clinical good practice adopted by the Trust. In any event, it is noteworthy and of substantial significance that Dr. John Sugden, the Associate Medical Director of the Trust has explained that the Trust would be happy to answer any other questions that the claimant might have; this would obviously include the questions from the claimant’s solicitors. Dr. Sugden stressed that his approach in providing information to bereaved families is that every effort must be made to answer questions or concerns raised by them but he would not generally send information to a family which had not been solicited as such information might be distressing, disturbing or otherwise not appreciated or welcomed by the family.

Third, the claimant was and remains entitled to bring civil proceedings in respect of the death of his daughter. The NH Litigation Authority made a prompt formal admission of liability before proceedings had been issued. Mr. Havers contends that this shows that civil litigation would not provide a means of investigating in detail what happened in this case. I agree with Mr. Giffin that I should not accept that submission because the purpose of the procedural aspect of Article 2 is, among other things to ensure that any responsibility of the state for the death is exposed. As I have explained in paragraphs 22 and 23 above, the Strasbourg Court has explained that one of the two purposes of the duty in medical negligence cases is for an independent investigation of the liability of health professionals, but that has been done in this case. It follows therefore that when the state has, as in this case, admitted responsibility and has become liable to pay compensation, that objective would have been achieved.

This is a significant point because in the case of Amin, when considering whether the state had met its Article 2 obligations, the Court of Appeal referred to “three very significant circumstances” of which two were that there had been an early acceptance of liability by the Prison Service and another one was that no further information was required for the family to mount a civil claim. Indeed in this case, if anything, the circumstances relating to admission of liability are even more significant because liability has now been formally admitted and the only outstanding matter is the quantification of this claim for which no further information is required from the state.

A fourth means of scrutiny available in this case is that those who are responsible for the care of Naazish are subject to the disciplinary regime of their respective professional bodies as is specified in the Medical Act 1983 and in the Nurses, Midwifes and Health Visitors Act 1997. In this case, the claimant could have invoked this remedy, but no complaints have actually been made to any relevant disciplinary body for reasons of which I am still not aware. It is noteworthy that in Calveli and Ciglio v. Italy (Application No. 32967/96), the Strasbourg Court had to consider whether the requirements of Article 2 had been met when a baby died in hospital. The court attached importance to the fact that “disciplinary proceedings could be brought if the doctor was held liable in the civil courts” [53]. Similarly in Simenska v. Poland (Application No. 37602/97), the Strasbourg Court noted that the applicant’s husband had died while in medical care and that she could have instituted proceedings in order to establish disciplinary responsibilities of the relevant doctors. This right was regarded as significant in determining whether there had been a failure to provide a mechanism for investigations of the circumstances leading to death.

I must now consider some of the reasons put forward by Mr. Havers for indicating that there has been inadequate investigation of Naazish’s death. It is important to bear in mind in the claimant’s favour the admitted and regrettable failure of the hospitals and of the state to involve the claimant and his family in the investigations conducted by the police and by the Trust into Naazish’s death. There are, however, two important factors which have to be considered in order to determine if in spite of this, there has been adequate participation. First, as I have already explained, the hospital will now endeavour to respond to each of the thirty questions set out by the claimant’s solicitors and perhaps more importantly as Dr. John Sugden, the Associate Director of the Trust explained he has agreed to answer any other questions which the claimant may have. It has not been suggested that the hospital was insincere or disingenuous in making this point and I have no reason to believe that it is not an honest offer. It seems to me that in the absence of cogent, contrary argument, this will provide a means by which Naazish’s family can obtain answers to any outstanding questions that they might have.

Second and much less importantly, as the claimant’s solicitor has explained, the effect of the death of their daughter has so damaged them that “they have effectively cut themselves off and failed to open mail”. I can well sympathise with the claimant and understand, but this indicates that even if the hospital had involved him in the police investigation which by its nature had to be conducted relatively speedily after Naazish’s death, he would have been unable to play a significant part; perhaps that explains why the offer specified in paragraph 35 above to have a meeting with Dr. Kirkup was not immediately accepted. To my mind, as there is now a clear offer from the Trust to participate in discussions with the claimant and to answer any of his questions, that offer, if accepted would enable suitable participation to occur, especially as a much lower duty is imposed on the state where the death arises in hospital as a result of negligence or gross negligence rather than in a case where there is a credible accusation that “the state has laid on lethal hands” (Amin [62]).

Mr. Havers contends that the investigations carried out hitherto did not constitute compliance with the state’s Article 2 obligations. His complaints focus in the main on five interlocking criticisms. The first is that the claimant should have had but has not been given the right to participate in the investigations so as to scrutinise the evidence by effective and proper cross-examination of those who carried out investigations into Naazish’s death. The second is that there has been and remains a failure by the claimant to investigate the precise circumstances leading to Naazish’s death. Third, it is contended that the investigation was not independent. Fourth, it is alleged that there was a cover-up of the circumstances leading to Naazish’s death, which should be investigated. Fifth, Mr. Havers says that that participation in the inquest would be of benefit to the health of Naazish’s relatives. I must now consider each complaint in turn.

At the heart of the claimant’s case on this complaint is the contention that the adjectival duty under Article 2 of the Convention means that he should be entitled to participate in the investigation, which means that the relevant witnesses should be cross-examined by him or somebody on his behalf. In Amin, Hooper J considered this contention after a prisoner had died in custody after being attacked by another prisoner. He held that the requirements of Article 2 could “only be met by holding a public and independent investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses” (Amin paragraph 3, with my emphasis added).

The Court of Appeal allowed the appeal from that decision and it held that there was no universal set of rules stipulating the form which an effective official investigation must take (ibid paragraph 63). Indeed in the same paragraph, Lord Woolf CJ stated that “publicity and family participation are not necessarily discrete compulsory requirements, which must be distinctly and separately fulfilled in every case where the procedural duty to investigate is engaged”.

It follows that in each case, it is necessary to consider whether family participation is required and, if it is, the extent of such participation. In the present case, it is clearly regrettable that the claimant and his family were not involved in the police investigation but the evidence is that the police told the Trust not to contact the family directly while they were conducting their investigation, which sought to build up the picture of events leading up to Naazish’s death. Nevertheless, it is also unfortunate that the family were not involved in the NHS investigations, which I have described in paragraphs 33 to 42 above; the hospital was at fault over this but it is necessary to consider how these failures affect all the steps that were actually taken to complete a thorough investigation into Naazish’s death.

Mr. Havers says that such investigations as have occurred into Naazish’s death have not been conducted with the participation of the claimant or his family, who were not aware of the hospital’s investigations until after service of the Acknowledgement of Service. Family participation should in the ideal case be a feature of an investigation at all stages. I do not consider that such participation is invariably necessary as the starting point is that participation is only required to fulfil the interlocking aims set out by Lord Woolf in Amin and to which I have referred in paragraph 19 above. Those aims can be achieved in the case of deaths in hospitals by giving the bereaved remedies in the form of an effective mechanism for investigation as I explained in paragraphs 22 to 26 above. Indeed, in Amin itself, the court recognised the need “to emphasise the importance of looking at the investigative process in the round” (Amin [94]). In this case, any requirement of family participation has been satisfied by the claimant’s meetings with the CPS and with Professor Johnstone, as well as by the ongoing offer from Dr. Sugden to answer any inquiries that the claimant might have. No authority or cogent reason has been put forward to show why this is not so.

If I had been in any doubt about my conclusion that there has been adequate participation by the family in the investigation, there are two further factors which individually or cumulatively would have led to the conclusion that there has been. First, there has been an admission of liability by the state and that in itself satisfies one of the main aims of the investigation, which is to ascertain who was to blame for the death and this consequently reduces the need for family participation. Indeed, as I have stated in paragraphs 22 to 26 above, the Strasbourg Court has said in cases in which a patient dies in a hospital one of the purposes of an inquiry is to determine the responsibility of health professionals. Second, as I have already explained, the extent of the nature of the duty to investigate depends on the circumstances of death and the duty is lower in the case of deaths in hospital than in the cases of death in custody, where the need is greater because there is “a credible accusation of murder or manslaughter by state agents” (Amin [62]).

Mr. Havers has stressed the need for the claimant to know precisely how his daughter died and the precise events leading up to it. He has had the benefit of receiving albeit regrettably belatedly substantial amounts of evidence, in the form both of the information obtained as a result of the police inquiry and of the investigations conducted by the hospital.

This evidence shows that the pathologist at the post mortem, Dr. Milroy concluded that the cause of death was potassium poisoning as is set out in paragraph 10 above. Dr. Bradbury states that “there was an external source of potassium that led to her death [and] the dialysis solution is the most unlikely external source of potassium”. Dr. Whitely, the Director of the Paediatric Intensive Care Unit at the Trust, concluded that Naazish may have died from a primary respiratory event, which triggered the cardiac arrest, but he acknowledges that the high levels of potassium in the blood samples taken from Naazish “should be interpreted with caution”.

In the absence of cogent contrary evidence, I have no reason to disbelieve the conclusions of Professor Johnstone first, that there has been an effective, thorough and prompt scrutiny of the care and second, his doubt whether any further investigation would produce further evidence. No evidence has been put forward to suggest that this is incorrect. The obligation of the state is not an absolute duty to ascertain the precise circumstances of death and indeed none of the cases suggest this is the case. Otherwise where as in the present case there is a conflict in views between doctors on the cause of death, the state could never comply with its obligations under Article 2. In any event, it will often be an area of dispute after a death in hospital as to what constituted the precise circumstances of death. In this case, it is clear that too much potassium entered Naazish’s system as was shown by the readings referred to in paragraph 8 above, as well as by the investigations carried out by the police, by Dr. Bradbury the pathologist and by the hospital, even though Dr. Whitely has some reservations. That finding satisfies the Strasbourg Court’s requirement that an investigation required by Article 2 has to “establish the cause of death of an individual under care and responsibility of health professionals” (Powell v. United Kingdom supra [17]).

Many of Mr. Havers’ submissions appeared to be based on the assumption that there has to be some form of “equality of arms” between the bereaved’s family and the state. This present claim is understandably not brought under Article 6. Indeed there is no legal basis for suggesting that there should be equality of arms in an Article 2 case. I conclude that there has been a thorough investigation of the events leading to Naazish’s death with the cause of death identified, even though the claimant was not notified of the investigation at the time. In any event, even if I am wrong on this, the claimant still has, however, the opportunity to obtain further information first by taking advantage of the Trust’s offer to answer outstanding questions and second, by invoking the disciplinary powers of the professional bodies to which the relevant doctors and nurses belong and to which I have already referred in paragraph 47 above. These are important and relevant rights as the Strasbourg court has said that an Article 2 adjectival duty can be regarded as satisfied where “applicants denied themselves access to the best means [which] would have satisfied” the investigative obligations under Article 2 (Calvali and Ciglio paragraph 55).

The second reason why I am fortified in reaching that conclusion is the fact that in the two recent Strasbourg Court cases relating to the duty to investigate deaths while individuals have been under medical care, it had been held that the state has complied with its adjectival duty under Article 2 where three factors were present. The first was that a prosecutor had carried out an investigation and had found that no criminal offence had been committed. The second factor was that it was open to the applicant to bring a civil action in tort or a disciplinary inquiry with the result that there is no failure to provide a mechanism whereby criminal, disciplinary or civil responsibility of persons who may be held liable could be established. The third was that there is no suggestion that the prosecuting authorities “arbitrarily assessed the evidence at their disposal”. In consequence, the Article 2 claim was rejected (see Sieminska v. Poland (supra)). All these factors apply with equal force in this case and it is pertinent to note that in Sieminska, it was not decided that the deceased’s family should have a right to cross-examine the doctors.

By the same token in Calvali and Ciglio (supra), a claim that the state had failed to comply with the adjectival duty under Article 2 was rejected because the Italian legal system afforded to the injured parties both mandatory criminal proceedings and with the possibility of bringing a claim in a civil court, together with disciplinary proceedings. In that case, the civil claim was compromised and it was held that there was no breach of Article 2. Finally, in Powell v. United Kingdom (supra), disciplinary proceedings against doctors were discontinued and a civil action for damages was settled. In those circumstances, the Strasbourg Court held that it was not open to the applicants to complain that there had been no effective investigation into their son’s death. Similar reasoning applies in this case.

A third factor of great importance and which individually and cumulatively undermines this complaint of the claimant is that there has been an admission of liability and that reduces the need to investigate, as this indicates that the responsibility of the health professionals has been established. Finally, as I explained in paragraph 19 above, the nature and extent of the need to investigate is influenced by the context of the death. Where there is death in hospital, the need is less great than where there is death in a hospital than death by, say, state agents.

The claimant complains that none of the investigations were truly independent as each was carried out by employees of either the hospital or the Trust. I am unable to accept this complaint because as was explained in Amin where there has been, as happened in this case, an admission of responsibility by the state, “allegations of a want of independence are in our judgment formalistic and not realistic” (Amin [74]). In any event, the police report into the death of Naazish was independent and it was an effective inquiry supported by the evidence of Dr. Bradbury, an independent consultant. Thus, this criticism also fails.

Mr. Havers contends that there was a cover-up into matters relating to Naazish’s death because first the hospital staff failed to inform the Coroner of the excessively high potassium readings derived from two gas tests carried out shortly before the deceased’s death, because second the hospital staff failed to notify this fact to the family of Naazish during the discussions which followed her death and because third, there was a failure to refer to those readings on the death certificates certifying the cause of her death. In response, the hospital relies on the evidence of Dr. Richards, who says that he did not refer the Coroner’s office to those readings because he assumed that they were “artefact”, namely that they were incorrect. Mr. Havers stresses that this is a matter which the hospital staff should be asked to explain and that it is an issue like the circumstances in which the police came to be notified of these readings that the claimant and his family specifically wish to have fully investigated.

In response, the Trust’s solicitor says that Dr. Lewis informed the police officer in charge of the investigation of the claimant’s death in a conversation, which took place in the afternoon of Monday 11 October 1999 following the death of Naazish on the previous Friday 8 October 1999. It is pointed out that Mr. Evans’ statement does not say that Dr. Lewis told Mr. Steele about the high potassium readings and nor does Dr. Lewis refer to it.

In order to demonstrate the significance of these matters, Mr. Havers relies on the approach to concealment in Amin, about which Lord Woolf CJ said that:-

“Across the spectrum of possible Article 2 violations, there are classes of cases which can readily be distinguished. One class is that an allegation of deliberate killing-murder-by servants of the state. A second is that allegations of killing by gross negligence-manslaughter-by servants of the state. A third is that of plain negligence by servants of the state leading to a death or allowing it to happen. In the context of any of these cases, there exists the lamentable possibility that the state is concealed or is concealing its responsibility for the death. That possibility gives rise to the paradigm case of the duty to investigate” [32].

I agree with Mr. Giffin that the investigation of a cover-up by the state after a death is not a matter covered by Article 2, although of course, the investigation of the actual cause of death is and remains the main obligation under that adjectival provision. In Powell’s case, there was an allegation of a cover up but this was not considered as relevant by the Strasbourg court to an Article 2 claim because:-

“The court stresses that its examination of the applicant’s complaint must necessarily be limited to the events leading to the death of their son, to the exclusion of their allegations that, following his death, the doctors responsible for his care and treatment fabricated his medical records to exonerate them of any blame. In the court’s opinion, that latter issue falls to be determined from the angle of their complaint under Article 6 that they were unable to secure a ruling on the doctor’s post-death responsibility. However the alleged post-death offences committed by the doctors did not alter the course of events which led to the death of the applicant’s son”.

I would respectfully adopt that reasoning because the investigative duties under Article 2 relate to the cause of death and all events leading up to it including the lessons to be learned from it, but this investigation required by Article 2 does not also have to look at events that occurred after her death, as they fall outside the adjectival duty to investigate.

Even if Article 2 applied to alleged or actual cover-ups, it has to be recalled that the police report states that the circumstances of the death of Naazish were reported to Detective Chief Superintendent Steele on 11 October 1999, who due to the high potassium readings of 18.9 and 12.4, decided that “the incident was suspicious and needed further investigation”. Indeed the CPS, which is an independent body, considered the issue of perverting the course of justice and they had found that the head of the department “had co-operated with the police” [14]. In addition, the CPS in its investigations did not find a conspiracy to pervert the course of justice. There have been, as Professor Johnstone explained, very thorough investigations. I do not consider that there was a cover-up, but I have explained that even if there was, this would not be relevant in considering if the defendant had complied with its duty to investigate.

I can well understand why Naazish’s family wish to be involved in investigations into Naazish’s death, but I doubt if participation in the investigative process is required to comply with an Article 2 obligation. Nevertheless, even if it is, the state has in this case complied with that obligation for three reasons. First, there has been a meeting with the CPS. Second, representatives of the Trust have met the claimant. Third and very significantly, Dr. Sugden has offered to answer any outstanding questions of the claimant. Thus, this head of claim also fails.

As I have explained in paragraph 19 above, Lord Woolf CJ in Amin explained that the obligation under Article 2 of the Convention to investigate death had three interlocking aims and it is worthwhile considering if those aims have now been satisfied before the inquest is held. The first aim is “to minimise the risk of future like deaths”. The police investigation and more importantly the Trust’s investigations have ascertained the defects in the procedures and the equipment, which have led to the introduction of new procedures with a safer use of equipment. These changes have also, in my opinion satisfied the third aim of assuaging “the anxieties of the public”. Finally, the second aim of giving “the beginnings of justice to the bereaved” has been met with the scrutiny of the events leading up to Naazish’s death, the meetings that have occurred, the supply albeit belatedly of the results of the extensive investigations carried out by the police and the Trust and Dr. Sugden’s open offer to the claimant to answer any of their questions.

In any event, as I have already explained in paragraph 22 above, the Strasbourg Court has said that the adjectival obligation to investigate under Article 2 “extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter” (Powell v. United Kingdom (supra)). In this case the cause of death has been established by an independent inquiry at the post mortem by the police and by Dr. Bradbury as potassium poisoning but subject to Dr. Whiteley’s doubts and the hospital has accepted liability. Thus, the requirements of Article 2 have been met.

In those circumstances, I conclude that the claimant has no valid complaint that there has not yet been compliance by the state with its adjectival duties to investigate the circumstances of Naazish’s death under Article 2. Thus this claim must fail, but in case I am wrong in this conclusion and because I have heard argument on the assumption that the state has not complied with its duties relating to the issue of whether an inquest could comply with the state’s Article 2 duties in the absence of legal representation, I will now deal briefly with that issue.

For the purpose of this issue, I will assume that contrary to my findings, there has not yet been adequate compliance with the state’s adjectival duties to investigate Naazish’s death. In those circumstances, Mr. Havers stresses the importance of the inquest to the claimant and the need for the claimant to be represented so as to ensure compliance with Article 2 for six different reasons. First, he submits that it is clear (and indeed it is not disputed by the Secretary of State) that the claimant is unable for psychiatric reasons, as explained by Dr. Peter Wood a Consultant Psychiatrist, to act in person at Naazish’s inquest as he is still unfortunately suffering from the traumas following Naazish’s death. Second, the inquest will have to consider very complex medical issues in determining how Naazish died. Third, the inquest has substantial powers because in Amin, it was explained that where an inquest is carried out in performance of the state’s Article 2 duties, the jury can, in appropriate cases, “return what would in effect be a rider identifying the nature of the neglect they found” [92]. Fourth, any lawyer instructed to represent the claimant at the inquest would need a reasonable time to prepare.

Fifth, the claimant has adduced evidence to show that his solicitors have made commendably strenuous efforts to obtain funding from a number of sources but without achieving success. In addition, the Bar Pro-Bono Unit has been unable to comply to the request to provide free representation for the claimant at the inquest. Sixth, the claimant cannot afford the cost of legal representation and he cannot obtain legal funding because his financial position makes him just ineligible to claim community legal assistance. It is common ground that the claimant will not have legal representation at the inquest of Naazish unless he obtains funding from the state. The dispute between the parties is whether even if the state has not already complied with its Article 2 duties, it can only now do so by ensuring that the claimant is legally represented at the state’s expense at the forthcoming inquest in order to ensure that it fulfils its aims under its adjectival obligation under Article 2 and, in particular, “to give the beginnings of justice to the bereaved” (Amin [62]).

I am unable to accept the claimant’s assertion that the state is obliged to fund the claimant’s legal representation at the inquest for five main reasons, which individually or cumulatively lead me to that conclusion. First, Mr. Havers’ submissions proceeded upon the basis that the inquest constitutes the last or the major remaining way in which the state can perform its duties, but there are at least four other ways in which it can still do so, apart from at the inquest. As I have explained, Dr. Sugden of the Trust has stated that he is prepared to answer any questions from the claimant or his family relating to Naazish’s death. In addition, the claimant can make complaints of professional misconduct against the doctors and nurses as I have outlined in paragraph 47 above. In addition, the Health and Safety Executive would also become involved after the inquest and it will decide what further investigation or action is needed in the light of the Health and Safety at Work Act 1974. Finally, an inquiry could be ordered by the Secretary of State into Naazish’s death for which the cost of the claimant’s legal representation could be paid out of public funding.

Second, the circumstances of Naazish’s death will be scrutinised at the inquest by witnesses, who are independent of the Trust as the Coroner will at the inquest adduce a great deal of independent evidence. Not only is he calling as an independent expert Professor ARW Forrest, who is Professor of Forensic Toxicology at the University of Sheffield, but also Dr. Christopher Mark Milroy, who is a Reader in Forensic Pathology at that university and who carried out the post-mortem on Naazish, as well as a number of senior police officers who were involved with the police investigation. Those witnesses will no doubt be able to give an independent appraisal of the facts and to answer any questions that the Coroner might consider appropriate in his role of conducting the inquisitorial process. In all the circumstances, I have no reason to believe that the inquest would not effectively scrutinise the evidence, even if lawyers for the claimant are not present.

Third, as I have already explained, the claimant’s solicitor has produced a helpful, but not a fully comprehensive, list of questions that are outstanding. Dr. Sugden of the Trust has already said that he will provide answers to them, but in any event hopefully a copy of that list of questions and any further questions from the claimant, his family or his solicitors could be sent to the Coroner so that he could, if he wished, ask witnesses at the inquest about them. Although the claimant still wishes to find out more information about Naazish’s death, it is important to stress that it is not been shown in this case to my satisfaction that there are any major substantial issues which have not yet been properly investigated.

Fourth, if the inquest did not deal adequately to the satisfaction of the claimant with outstanding matters arising from Naazish’s death, a further request could then be made to the Secretary of State to hold an inquiry.

Finally, the thrust of Mr. Havers’ submission is that the claimant could not participate in an inquest without legal representation and that submission suggests that the inquest adopts an adversarial process for which equality of arms is required. I cannot accept that because it has been long established that an inquest is very different from ordinary proceedings. Indeed, Lord Lane CJ explained in R v. South London Coroner ex parte Thompson (1982) 126 SJ 625 in a passage later cited by Sir Thomas Bingham MR in R v. HM Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] 1 QB 1 at 17F-G:-

“Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method for apportioning guilt .. at an inquest it should never be forgotten there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring whichever metaphor one chooses to use”.

Thus, I reject the contention of the claimant that even if the state has not yet complied with its Article 2 adjectival duties, it is obliged to fund the legal representation of the claimant at Naazish’s inquest. In the light of that conclusion, it is unnecessary to consider Mr. Giffin’s further point under this head that for the state to pay for the cost of legal representation would be subversive of the limits of eligibility for legal assistance.

As I have explained, there is an issue as to whether this claim can be brought when Naazish’s death occurred on 8 October 1999, while the 1998 Act only came into force on 2 October 2000. Mr. Giffin submits that the operative date for determining whether any obligation is imposed on the state by Article 2 of the Convention is the date of her death because the essential express basic obligations to investigate under that Article are first to protect the right to life and second to prohibit the taking of life while the duty of the state to investigate deaths constitutes a duty subsidiary to and dependent on the existence of those essential basic obligations. So it is argued by Mr. Giffin that these subsidiary adjectival duties could only arise if the essential express obligations in Article 2 to protect the right to life and to prohibit the taking of life were actually owed by the state at the time of death. So he submits first that because Naazish’s tragic death occurred before the 1998 Act came into force, the essential express obligations under Article 2 did not arise in this case and second that it follows that the subsidiary adjectival duty on the state to investigate, which is the issue between the parties in this application could not, and did not, come into being in this case because the essential basic obligations under Article 2 did not arise.

Mr. Havers, on the other hand, contends that it is irrelevant that the date of Naazish’s death was before the 1998 Act came into force because in his submission, the crucial fact on this issue is that the decision which is being challenged by the claimant on this application was made in July 2002 when the defendant refused to provide the funding and that was after the 1998 Act had come into force. So he contends that this application can be pursued.

It is appropriate to record two lines of argument which, could have been, but which were correctly in my view not pursued. The first is that if Mr. Havers is correct (namely that the state’s duty to investigate under Article 2 arises if the decision of the state complained of was made after 2 October 2000 irrespective of the date of death), it was not submitted that this would lead to vast numbers of claims for investigations in relation to deaths, which occurred before 2 October 2000 but in respect of which investigations were demanded after that date. This is in effect a “floodgates” argument because then there would, so the argument goes, be very many claims for investigations going back for many years as relatives could then invoke Article 2 so as to demand investigations for deaths caused by state agents many decades ago.

The second argument that has not been pursued is it is desirable that as a matter of good sense irrespective of legal rights that there should be a thorough investigation irrespective of the nature of the right to have an investigation. The reason why both these arguments would be irrelevant is that the answer to the commencement date issue depends on the analysis of the adjectival duty under Article 2 to investigate so as to determine, if the duty to investigate is a free-standing duty as Mr. Havers contends or if it can only arise if the essential obligation to protect lives is engaged, as Mr. Giffin submits.

In support of his contention that the claimant can pursue his claim even though his daughter died before the 1998 Act came into force, Mr. Havers points to section 6(1) of the 1998 Act which makes it “unlawful for a public authority to act in a lawful way which is incompatible with a Convention right”. For the purposes of the 1998 Act, the defendant is “a public authority”, while the term “an act” in that provision “includes a failure to act” (section 6(3)(b) and 6(6) of the 1998 Act). Thus, Mr. Havers says that the letter of refusal, which is the subject matter of the present claim occurred after the 1998 Act came into force. He fortifies that point by referring to section 7(1) of the 1998 Act which states, as far as is material to the present argument, that: -

“a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may….. (b) rely on the Convention right or rights concerned in any legal proceedings...”

I was concerned to discover if there was any authority to support or to counter the arguments of counsel as in a number of the reported cases the duty in question, which was to investigate, concerned deaths which occurred before the coming into force of the 1998 Act. This was the position in Amin and Middleton where the deaths occurred before 2 October 2000 on 22 March 2000 and 14 January 1999 respectively but the present commencement date issue was not argued because in those cases “it was not suggested that anything turned on the chronology and the Secretary of State’s decision well post-dated the incorporation date” ([38] per Lord Woolf CJ).

In R (Howard and Wright-Hogland) v. Secretary of State [2003] QB 830, Scott Baker J (as he then was) refused to quash a decision made by the defendant in July 2001 not to hold in public an inquiry relating to professional misconduct by a doctor in and before 1997. One of his reasons for the decision was that the 1998 Act “does not have retrospective force” [115].

On the other hand, in R (Wright) v. Secretary of State [2001] Lloyd’s Law Reports (Medical) 478, Jackson J. had to consider this point in case concerning the adequacy of investigations in relation to a death in prison that had occurred on 7 November 1996. He explained in paragraph 66 of his judgment that there were “special features” in that case as Mr. Wright’s death “was in no sense a closed chapter” on 2 October 2000, which was when the 1998 Act came into force, as on that date, in Jackson J’s words: -

“Mr. Wright’s death was in no sense a closed chapter. The Fatal Accidents Act action was still in progress…In short on 2 October 1998 when the Human Rights Act 1998 came into force, the circumstances in which Mr. Wright had died were still the subject of active debate and progressive revelation”[66].

It does not appear that there was full argument in either of these cases on the issue of the whether the investigative duty under Article 2 only arose if the death took place after 2 October 1998. The absence of any mention in any of these judgments of submissions on this issue suggests that the cases proceeded on the basis of the assumptions recorded in the respective judgments. In any event, both those decisions preceded the judgment in Amin, which, as I have explained analysed the nature of the investigative duty under Article 3. Indeed, neither Mr. Giffin nor Mr. Havers contends that these comments from Howard and Wright determine this issue.

It is common ground between the parties that the 1998 Act does not have retrospective effect so far as the present claim is concerned see (R v. Lambert [2001] 2 Cr. App. R. 203). Thus, as I have explained, the real dispute on this issue is really whether the duty on the state to investigate arising from Article 2 of the Convention is a free-standing duty as Mr. Havers submits or whether, as Mr. Giffin contends, it only arises when the duty to protect life arises under Article 2 so that it only applies to deaths that occurred after 2 October 2000.

Resolving this dispute requires consideration of the nature of the duty of the state to investigate deaths under Article 2, which was described in a submission of counsel which was accepted as correct by Lord Woolf CJ in Amin as being “ a positive duty to take steps. to protect life in cases where its servants are or reasonably to be aware that a particular individual who is in the state’s care is at immediate risk of death or serious injury” [30 and 31]. Lord Woolf CJ pointed out in Amin that the duty to investigate which arises “where arguably there has been a breach of the substantive obligation not to take life” [1]. He referred to the first case in which the Strasbourg Court had articulated the duty to investigate in which it was explained that “the obligation to protect the right to life … 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 alia, agents of the state” (McCann v. United Kingdom (1995) 21 EHRR 97 163 paragraph 131 (with my emphasis added).

In Amin, I repeat that Lord Woolf CJ explained the nature and genesis of, what he described as “the procedural duty to investigate” when he said: -

“Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of the perception that, without it, the substantive rights confirmed by Article 2 would or might in some cases be rendered nugatory or ineffective. Thus the duty to investigate is adjectival to the duty to protect the right to life and the prohibition of the taking of life…The duty [to investigate] is in every instance fashioned to support and make good the substantive Article 2 rights”[32] (with emphasis added).

Later in the same judgment, Lord Woolf CJ accepted in paragraph 54 as correct a proposition originally stated by Jackson J in the Wright case that: -

“the obligation to procure an effective official investigation arises by necessary implication in Articles 2 and 3. Such an investigation is required in order to maximise future compliance with those Articles” [43] (emphasis added)

Lord Woolf CJ also explained in that judgment in relation to the duty to investigate that:-

“the nature and scope of an adjectival duty which by definition is not expressly provided for in the Convention, must especially be fashioned by the judgment of the domestic courts as to what in their jurisdiction is sensibly required to support and vindicate the substantive Convention rights” [61] (emphasis added)

Thus, the Court of Appeal was regarding the duty to investigate as being, in its own words, “adjectival” and arising “by necessary implication in Article 2” and “being sensibly required to support and vindicate the substantive Convention rights”. McCann’s case shows that the genesis of this duty to investigate is “required by implication” in support of the substantive obligation in Article 2. This approach echoes what the Strasbourg Court has said when it referred to the knowledge of killing on the part of the authorities as giving “rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death” (Powell v. United Kingdom 45305/99 –4^th May 2000).

In the light of these authorities, I reach a number of conclusions about the duty of the state under Article 2 to investigate after a death in state’s custody and they are that:-

Thus it follows that the duty to investigate in Article 2 is not an independent duty but is dependent on the main duties expressly stated in Article 2 arising. Consequently, like Scott Baker J in the Howard case, I am driven to the conclusion that if a death occurred before 2 October 2000, then Article 2 is not engaged and so its adjectival duty to investigate does not arise by necessary implication or at all. It follows that the claimant would not be entitled to the relief sought for that reason as well as for those which I have already set out earlier in this judgment.

In common with everybody who has heard about the tragic death of Naazish, I have the greatest sympathy for the claimant and his family but my task is to apply the law which I have sought to do. It drives me to the conclusion that although I have given permission to the claimant to pursue this claim, it must be dismissed principally because first, there has already been compliance with the state’s adjectival duties under Article 2. Second, even if there has not, there is no obligation under Article 2 on the state to fund legal representation for the claimant at the inquest. Third, in any event as Naazish died before the 1998 Act came into force, the state did not have any adjectival duties under Article 2.