SP v Secretary of State for Justice

This is an application for permission to apply for judicial review of decisions made by the defendant Secretary of State for Justice, concerning an investigation intended to be compliant with the state’s duty under Article 2 ECHR into the treatment of the claimant, SP, while she was serving a sentence of detention in a young offender institution. On 30 October 2008 the application was considered by the single judge on the papers and ordered in for a ‘rolled up’ oral hearing. I heard argument on 10 and 11 December 2008. The grounds of the application are:

SP was born on 4 September 1986. Following a troubled and seriously disadvantaged childhood she was made the subject of a full care order on 4 March 2003. She was then aged 16. On 16 December 2003, together with her co-accused, she pleaded guilty to the kidnap and assault of another young person. She was sentenced to 5 years detention to be served in a young offender institution. SP commenced her sentence at HMP/YOI New Hall where she remained until 9 December 2004. On 7 August 2005 she was moved to HMP/YOI Low Newton. On 7 August 2005 SP was returned to HMP/YOI New Hall. On 27 September 2005 she was transferred to Rampton Special Hospital. Although her automatic release date passed in June 2008 SP remains detained under the Mental Health Act 1983.

Before and during her custodial sentence SP self harmed. Following her detention she became a danger to herself and others. She was placed in segregation where her condition deteriorated. The determination with which she inflicted wounds upon herself, and re-opened and inserted objects into her wounds is documented in the prison records some of which I have seen. She required transfers to hospital for blood transfusion. Her life became a cycle of serious self harm followed by hospital treatment and return to custodial conditions. On 14 September 2005 while SP was being treated at Pinderfields Hospital in Wakefield for life threatening, self inflicted injuries she obtained an injunction preventing her return to the prison estate. On 27 September 2005 SP was transferred under section 47 Mental Health Act 1983 to Rampton Special Hospital. She is diagnosed as suffering psychopathic disorder and personality disorder.

The Howard League for Penal Reform (“HL”) acted for the claimant when she obtained the court’s preventative order. On 28 October 2005 the Director, Frances Crook, wrote to the then Secretary of State for the Home Department (“SSHD”) pointing out the duties of the state under Articles 2 and 3 ECHR. Her letter concluded:

“As we have seen in the present case our client was hospitalised on at least 20 occasions while in custody between Sept 03 – Sept 05. On many of these occasions her life was in danger. The real danger we submit gives rise to the investigate [sic] obligations placed upon the state to investigate the circumstances of our client’s repeated self-harm. A further imperative for such an investigation is the failure of the state to respond appropriately to the serious mental health problems that our client has had throughout her life, exacerbated we contend by her time in custody, and which were not treated appropriately. In all the circumstances we therefore contend that the SOS is obliged to hold a full public investigation into the treatment of our client between Sept 03 – Sept 05 while in custody.”

No reply having been received a letter before claim was written on 31 March 2006. Advice from counsel was sought by the SSHD in April. On 24 August 2006, following communication directly between the Director and the SSHD, a letter of confirmation was sent to HL in the following terms:

“I write to inform you that the Secretary of State for the Home Department has agreed to hold an Article 2 ECHR compliant investigation into the case of [SP]. The investigation will be chaired by the Prison and Probation Ombudsman, Mr Stephen Shaw, and will meet the procedural obligations required by Article 2 of the ECHR. The precise Terms of Reference, on which you will be consulted, will be set by Stephen Shaw but will broadly consider the care and treatment of [SP] whilst in custody at HMP/YOIs New Hall and Low Newton between 2003-2005 and her transfer to Rampton Secure Hospital…

the appropriate scope of this investigation will be determined by the PPO in due course as the independent chair…”

On 28 April 2005 Munby J gave judgment in R (on the application of D) v. SSHD [2005] EWHC 728 (Admin) in which he identified the features of an investigation required to meet the duties of the state under Article 2 where, as in D’s case, a near death by hanging had taken place in prison. On 28 February 2006 the Court of Appeal ([2006] 3 All ER 946; [2006] EWCA Civ 143) dismissed the SSHD’s appeal with the exception that the Court found the investigation did not require a right for D’s representatives to cross examine witnesses. They were entitled (paragraph 42),

“to see the written evidence, to be present during oral evidence and to make appropriate submissions, including submissions as to what lines of inquiry should be adopted, what questions asked and, indeed, who should be permitted to ask questions about what. As just stated, it will be a matter for the chairman to decide what procedure to adopt…It will, for example, meet the requirement identified in Jordan v UK (2001) 11 BHRC 1 at 31 (para 109) and Edwards v UK (2002) 12 BHRC 190 at 211 (para 73) that there must be involvement of D’s representatives ‘to the extent necessary to safeguard his or her legitimate interests’.”

Thus, on 12 September 2006 the Director of HL wrote to the investigator, Mr Shaw, Prisons and Probation Ombudsman (“PPO”), making representations based upon D upon the form of the investigation into SP’s case. She asserted that:

“your inquiry into [SP’s] case must include, among other things:

i)

The inquiry must be held in public, save where there are Convention compatible reasons to hear the evidence of a particular witness, or other parts of the hearing in private

ii)

The inquiry must be capable of exercising a power to compel the attendance of witnesses

iii)

Subject to i) above, [SP’s] representative must be able to attend at public hearings of the inquiry and put questions to the witnesses in person

iv)

Her representatives must be given reasonable access to all relevant evidence in advance

v)

Adequate funding for [SP’s] representative must be made available without inappropriate conditions attached, and the funding must be at such a level as to allow her to be involved in the investigation procedure to the extent necessary to satisfy his [sic] legitimate interests.”

A meeting was held with the PPO on 22 September. On 13 October HL wrote to the Treasury Solicitor seeking the enlargement of the terms of reference for the investigation. In order that “all agencies” should learn from the events leading to the inquiry it was suggested that the investigation should include:

“1.

The role of her local authority (Cheshire County Council) in relation to events leading up to and during her incarceration and their duties towards her as a “child in need”, “child at risk” and child in care, and

2.

The role of the primary care trust and mental health trust in her home area, in addition to the role of each primary care trust (e.g. Pinderfield’s Hospital, Wakefield) and mental health trust connected to the prisons, covering pre-, during and post custody, and

3.

The prison service and Youth Justice Board during her time in custody.”

On 13 November 2006 the Treasury Solicitor, on behalf of the SSHD, wrote to Mr Shaw a commissioning letter. It was pointed out that following the observations of Arden LJ in Scholes v SSHD [2006] EWCA Civ 1343 wider questions of sentencing policy and the allocation of resources were for government and outside the scope of an Article 2 inquiry. The issues to be considered by the PPO were:

“1.

The management of SP by HM Prison Service, especially with regard to her life-threatening self-harming behaviour and in the light of the policies and practices applicable to SP at the relevant time;

2.

Health issues contributing to and arising out of SP’s repeated self-harming in custody, including mental health assessments and SP’s clinical care by HM Prison Service, especially in the light of SP’s transfer to Rampton Secure Hospital; and

3.

Whether, within the operational context of the Prison Service, any lessons in respect of policy and procedure can usefully be learned.”

The procedural features of the investigation were to be those approved by the Court of Appeal in D. The preliminary steps, including the gathering of evidence, need not be in public. In general, oral evidence should be heard in public. The PPO had a discretion as to what evidence should be received orally and whether to hear oral submissions. He would decide what cross examination to permit. SP’s representatives should have such access to the inquiry and its evidence as was approved by the Master of the Rolls in D, extracted at paragraph 6 above.

Mr Shaw was also the investigator in D’sinquiry. Both he and the SSHD were concerned to learn the lessons which had emerged. It was Mr Shaw’s view that the evidence gathering exercise had been “unduly legalistic” and he proposed to adopt a method which “reflects the distinctive methods of an Ombudsman (and those my office employs in our death in custody investigations)”. The D inquiry suffered delays and a consequential cost to the public purse (letter 6 December 2006 PPO to Treasury Solicitor).

On 10 January 2007 the PPO wrote to HL enclosing draft Terms of Reference, a List of Issues and proposed Procedures. HL was not content with the Terms of Reference which contained no explicit reference to an exploration of factors affecting SP’s life before she received her sentence. HL was concerned with the contents of SP’s social services files and believed that an investigation into her earlier life was necessary to “understand her life threatening behaviour in custody and transfer to Rampton Hospital”. In its letter of 28 February 2007 HL argued that:

“any inquiry would be patently incomplete if it is limited to the period when [SP] was in custody. It will be extremely difficult for the PPO to sensibly evaluate the facts before him without knowledge of the considerable background to [SP’s] situation and the full impact of this time on [her]. Any such inquiry is likely to be misleading and result in the PPO misdirecting himself”.

They required an examination of the responsibility of SP’s “home social services and other agencies” who might “share culpability with the prison service for the treatment which triggered the escalation of her self-injury”. Failure to widen the inquiry could result in criticism being unfairly levelled at the Prison Service when fault may in part be attributable to other agencies. The inquiry should be “holistic”. HL’s view was that there was a “nationwide failure to implement the provisions of the [Children] Act”; that the failings of the state towards children say much about the “genesis of criminal behaviour”. HL now sought, among other things, a statutory inquiry (under the Inquiries Act 2005), significant widening of the terms of reference and the appointment of a judicial chairman. The SSHD wrote declining the request on 26 March 2007. The article 2 inquiry was concerned with real and immediate risk to life. It was, however, recognised that the proximity in time between SP’s need for Children Act protection and her custodial sentence meant that the investigation would need to consider both areas of concern.

There followed an informal and undisclosed meeting between HL and the PPO on 24 May 2007 to discuss progress of the investigation. The PPO was awaiting the Treasury Solicitor’s comments on his draft terms of reference and proposals for issues and procedures. HL notified the Treasury Solicitor on 27 May that they would be settling SP’s representations “in due course”. A timetable towards publication of the inquiry report in October 2008 was submitted by HL on 19 October 2007.

In the meantime the Home Office had been reorganised. On 26 October 2007 Nigel Hancock, Safer Custody Group, Directorate of Operational Policy, Ministry of Justice (“MoJ”) submitted comments upon the PPO’s draft. By this time the investigation of D’s case was well advanced. Although recognising that procedural matters were for the PPO Mr Hancock stressed the need for early and simultaneous disclosure of correspondence and evidence to the parties. Having considered representations Mr Shaw issued his final Terms of Reference, List of Issues, and Procedures in a letter of 7 November 2007. Mr Shaw wrote that in the light of his experience in the investigation of D’s case he had decided to “simplify matters and to make the procedures less inflexible”. He was not going to enlarge the scope of the inquiry and reserved the right to conduct his own investigation at first hand. He did not wish to rely on material the Prison Service chose to give him. He would “directly obtain” any documents he required “without going to the Safer Custody Group liaison point”. He would not be seeking prepared witness statements unless he asked for them in due course in relation to policies, procedures or research. He intended to hold a pre-inquiry meeting with the parties on 3 December 2007.

The Terms of Reference for the investigation set by the PPO were as follows:

“To conduct an Article 2 compliant investigation and report to the Secretary of State for Justice on the treatment of a young woman (SP) at HMP/YOI Low Newton and HMP HMP/YOI New Hall in 2003-2005. In particular:

•

To examine the management of SP by the Prison Service, especially with regard to her life-threatening self-harming behaviour, including consideration of how prisoners at risk of self-harm were cared for by the Prison Service at the relevant time;

•

To examine whether any changes in policy or procedures would have helped to prevent SP’s repeated self-harming during this time, or would contribute now to the safe care of prisoners exhibiting similar behaviour;

•

To examine relevant child welfare issues;

•

To examine relevant health issues (including mental health assessments) and assess SP’s clinical care up to the point of her transfer to Rampton Hospital;

•

To provide an opportunity to SP and her family to contribute to the extent they wish and is appropriate to an Article 2 complaint [sic] investigation.”

The List of Issues which expanded upon the subjects to be considered was confined to events occurring while SP was serving her custodial sentence. The PPO would not be inquiring into the work of those having responsibility for her care before she entered the prison system.

Among the procedures set by the PPO were the following:

“…The Ombudsman will obtain SP’s Prison Service records and relevant policy documents and share them with SP, the Department of Health and the Prison Service as they become available.

The Ombudsman will conduct interviews with relevant Prison Service [staff] and others. A written record will be produced for the interviewee to sign off. The Ombudsman will decide which evidence to make publicly available…

[At the public oral hearing:]

A person requested to give oral evidence may be represented during his or her evidence…

Witnesses will be questioned by Counsel to the Investigation and the Ombudsman. Lines of questioning may, however, be suggested by the various parties.

Once the evidence at the Investigation’s hearings has been concluded, the Investigation Chairman will invite Counsel to the Investigation and the representatives of the various parties to submit closing statements in writing.

The Chairman will submit a report to the Secretary of State. Subject to any necessary redaction, the report will be publicised contemporaneously on the Ombudsman’s website.”

The PPO set a timetable which anticipated completion of his report by November 2008.

HL attempted to engage the Treasury Solicitor in discussions about the provision of legal financial assistance. I shall refer to the progress of the discussion in its separate context. On 23 November 2007 HL’s Director wrote to the PPO in advance of the pre-investigation meeting on 3 December suggesting he would require expert assistance on matters relevant to children’s welfare, adolescent psychology, children’s legal rights and the role of social services. She suggested that Mr Shaw might hold seminars with the experts to discuss and to understand the wider issues being raised. The MoJ also wrote an introductory letter on 30 November pointing out that while Mr Shaw had incorporated some of its suggestions into his reference and procedural documents,

“there are a number of key points which are not covered in your revised drafts about which we have valid concerns, particularly in light of the D investigation. The SSJ [Secretary of State for Justice], as commissioner of this investigation, attaches particular importance to ensuring that important procedural points are included in the terms of reference, list of issues and outline procedures documents”.

The changes Mr Hancock sought particularly concerned the handling of witnesses and evidence gathering. He asked that witnesses be identified in good time, and that they receive notice of interviews and the subjects for discussion at interviews, for their own sake and in order that support or representation could be arranged if necessary. He understood Mr Shaw intended to prepare transcripts of interviews rather than witness statements and to publish those transcripts. He sought clarification whether he anticipated receiving submissions on the subject of publication. Mr Hancock asked to be consulted on the identity of expert witnesses who needed, in the SSJ’s view, some experience of the Prison Service. He informed Mr Shaw that he could request any documents he wished. The request should be presented to the Safer Custody Group who would produce the document, record its production and supply copies simultaneously to the parties, if necessary in a suitably redacted form. The Secretary of State would provide named contacts in the Safer Custody Group and in HMP/YOI New Hall and Low Newton.

At the meeting held on 3 December 2007 the PPO insisted that his procedural document should maintain the flexibility which he needed to perform the investigation. He wanted unfettered access to all documents and if a document reached him in a redacted form he would want to know why. The PPO was to meet SP before Christmas.

On 19 May 2008 Alison McMurray, the acting deputy Ombudsman, sent an email to the parties informing them that long term sickness in the office and a consequential re-arrangement of roles had prevented her from taking an active part in the investigation as envisaged. The newly assigned investigators were in the process of reading the papers. She continued:

“On 8 and 9 July, they will be visiting HMPs New Hall and Low Newton respectively to hold a forum with staff who were responsible for SP’s care and/or played some part in it. Those attending will be invited to give an overview of what they did, how SP was, what she was doing and what was done for her. [They] will also look at what support was available for staff and how they felt. The forums will also help inform decisions about whom should be [sic] formally interviewed.

Within the next three weeks or so we will share with you the documents we have collected so far…At this stage the sharing of information will merely be to ensure engagement all round and to enable you properly to contribute on lines of questioning.”

At the Treasury Solicitor’s office Alexandra Forgaard had just taken over the file. On 20 May 2008 she wrote to the PPO expressing her concerns about (1) a risk that the investigation would stray into areas not relevant to an article 2 inquiry, (2) document handling, (3) the proposed method for identifying and interviewing witnesses, (4) lack of consultation about the identification of suitable expert witnesses, (5) the need for consultation on the content of the public hearing and (6) an opportunity for those who may be criticised in the report to respond in advance, and for a factual accuracy check before publication of the report.

Of particular relevance to following events were Ms Forgaard’s observations on document handling. She wrote:

“It is proposed that all disclosure requests go through SCOP [Safer Custody and Offender Policy] who will maintain a central log of all documents and will deal with disclosure issues for the following reasons.

As the investigation will involve two prisons and the DH [Department of Health], it is likely to involve a significant number of documents and therefore will be a complex co-ordination exercise. We propose that the liaison point in SCOP (currently Jenny Rees) should be your consultation point…resulting in significant savings to the public purse compared to D and ensuring that our disclosure obligations are fulfilled.

I understand in D there were requests for a whole range of documents that were passed to TSol which were usually passed to SCOP to deal with and then all the documents passed back through TSol. We, like you, are trying to reduce legal costs and this seemed a circuitous way of handling disclosure requests.

It is not of course for one minute contended that the Chair should not have access to all documents necessary to consider those questions under the Terms of Reference or that the Chair should be fettered in any way in his evidence gathering but it is necessary to set out the ground rules. This is not a Fatal Accident investigation. Here the obligations are different.

You will have unfettered access to any documents you request, but where we have particular concerns about relevance, security, sensitivity or any other relevant concerns SCOP/TSol will need to liaise with you before the documents are disclosed to you. This is our general approach to disclosure at (article 2 compliant) inquests with which we consider article 2 compliant investigations have some parallels.

With regards to disclosure by you of the documents to the parties, we trust that you will ensure that documents are disclosed to all parties simultaneously and as early as possible.”

On 11 June 2008 Ms Forgaard replied to Ms McMurray’s email expressing concerns about the proposed forums and how they would work in practice. In her view, staff should have the option of legal representation. She wanted to know if information gathered at the forums would or would not form part of the investigation and, if so, how it would be used. She asked whether advance notification of subjects for discussion and/or questions would be given to staff and whether the event would be recorded. She wanted to know what questions would be asked and whether the parties would be consulted before lines of questioning were set. She sought clarification how the forums would identify those to be formally interviewed.

While confirming its agreement to the matters covered by the PPO at the meeting on 3 December 2007 (including document handling by the PPO’s office), HL also wrote expressing concern at the proposal to hold “group interviews”:

“…we have not been furnished with any information as to the structure, purpose, issues, and questions to be raised or discussed, logistics and invitations, recording of information to be obtained, attendance of observers from the interested parties and the general method upon which these forums are based.

We believe that this to be an [sic] highly unusual approach to attending witnesses and are firmly of the view that this approach may “contaminate” the witness evidence. We had been under the impression that the witnesses would be identified and a preliminary interview undertaken.

We ask for clarification as to how these meetings will take place prior to the forums being held in order that we can review this fresh approach and make further representations prior to the forums occurring.”

The response from Mr Shaw on 18 June 2008 was to withdraw from his commission. His letter was addressed to Ms Forgaard at the Treasury Solicitor’s office. Mr Shaw repeated his dismay that the D inquiry had become “increasingly legalistic”. His view was that the SP inquiry “should be conducted so far as reasonably practicable without recourse to the legal profession” which accounted for “almost the entire costs of the [D] inquiry”. He thought those costs “disproportionate to the issues at stake”. He thought that he was being told the SSJ wanted only a legalistic approach and not an inquiry conducted in his own way. He did not accept that in the SP inquiry he should make requests for documents to the Safer Custody and Offender Policy group. Disclosure and redaction of documents was his and not the Ministry’s responsibility. In his capacity as Ombudsman he was well versed in issues of security and sensitivity. He would not accept advice from the Prison Service on the relevance of documents. He wrote:

“I am particularly concerned by your reference to the relevance of particular documents. This would be a matter for me alone, as Chair of the inquiry, to determine. I cannot imagine how it would serve the purposes of an independent and robust investigation if the Prison Service were to seek to advise me on relevance. It would certainly do nothing to assure SP, or her family and representatives, that the investigation was indeed Article 2 compliant. I find the notion frankly ludicrous.”

Mr Shaw saw “nothing unusual or inappropriatein the possibility of witnesses being interviewed twice”. His purpose was to reduce the number of witnesses it might be necessary to call at an oral hearing. He required unfettered access to Prison Service staff. He would advise them that they could approach the Treasury Solicitor with a view to union or legal representation. He was “very unhappy” that he was being criticised for his intention to hold forums. “These were intended to inform the inquiry of some of the challenges faced by staff in caring for women who repeatedly self-harm…They were not concerned with the specifics of SP’s care”. Mr Shaw concluded,

“In sum, I have been saddened by what I regard as the Prison Service’s inconsistent approach to this inquiry, by the attempt to dictate how I should conduct the investigation, and by the lack of focus on the core issue: life-threatening self-harm amongst so many young women prisoners. In particular, your two letters constitute an unwarranted attempt to fetter my independence and to restrict the way I carry out the inquiry…In the circumstances, I think I should now withdraw from the SP inquiry and afford the parties the opportunity of considering who should take it forward and the way the investigation should be conducted.”

On 1 July 2008 HL met with Maria Eagle MP, Parliamentary Under Secretary of State of State at the MoJ, for a discussion about how to proceed. HL continued to press for a statutory inquiry and a judicial chairman. Ms Eagle wrote to the Director on 4 August that it was proposed to hold a two-stage inquiry, the first comprising evidence gathering by an independent investigator and, the second, a public investigation conducted by a legally qualified person.

On 2 October 2008, following discussion between Mr Bryan Payling and the MoJ, Mr Payling was appointed to act as investigator. Mr Payling’s letter of appointment, written by Pat Baskerville, head of the Safer Custody and Offender Policy Group at the National Offender Management Service, without consultation with HL, set his terms of reference as follows:

Mr Payling’s commission included the following procedural requirements:

“Procedures

This is an Article 2 investigation and must be conducted in an open, transparent and even-handed manner. You should assume that the material which you receive will be distributed simultaneously to the parties relevant to the investigation. However, the provision of any documents will be subject to a confidentiality undertaking and redaction where necessary, for example for security reasons or to comply with the Data Protection Act. Correspondence sent to or received from any of the parties should be copied to the other parties.

On 10 October 2008 Mr Payling wrote to HL with proposals for the commencement of his investigation. On 14 October HL wrote to Pat Baskerville expressing doubt about the independence of the investigator. HL wanted to know why the investigator had been appointed and the Terms of Reference changed without consultation with SP’s representatives. The following day HL sent a letter before claim to the Treasury Solicitor challenging (1) the appointment of Mr Payling, (2) a failure to hold an Article 2 inquiry, (3) amendment of the Terms of Reference and Procedure, (4) failure to consult SP, (5) failure to expand the Terms of Reference to include “the claimant’s treatment by Cheshire Social Services prior to entering custody”, (6) inadequate arrangements for funding SP’s representation, and (7) delay. The claim was issued on 30 October 2008.

On 30 May 2007 HL sent an email to the Treasury Solicitor seeking discussion about the means by which it was intended to secure funding for SP’s legal costs of participation in the investigation. In a reply of 19 June the Treasury Solicitor responded that the investigation was not yet finally commissioned; accordingly, discussion about costs would be premature. HL was asked to specify what was proposed. There appears to have been no immediate response to the request in correspondence but HL raised the issue again on 19 October 2007 when it proposed to the Treasury Solicitor a fee scale for SP’s legal representatives as follows: senior solicitor hourly rate £200; junior solicitor £130; administrative assistant £80; senior counsel hourly rate £200; junior counsel £130. The rate proposed for a senior solicitor equates with the guideline rate chargeable by a Band B London solicitor in the Summary Assessment of Costs Guide (2005), Appendix 2.

On 28 November 2007, the Treasury Solicitor eventually responded with agreement to fund preparation for and attendance at the pre-inquiry meeting and, subject to explanation, a meeting between HL and SP. It was noted, I believe wrongly, that HL had not submitted hourly rates for agreement. The pre-inquiry meeting took place on 3 December 2007 at which the Treasury Solicitor agreed to provide a draft costs protocol by the end of the week. On 7 December a costs protocol was delivered. Its terms are set out in full at Vol 1/C/4-7 of the court bundle.

In summary, the SSJ agreed to make funding available, “strictly on application…to facilitate an effective investigation within the meaning of Article 2….to the extent necessary to safeguard [SP’s] legitimate interests in respect of the investigation”. It was expected that funding would cover receipt of instructions, preparation of witness statements, consideration of evidence and issues, attendance at oral hearings, making submissions, representing witnesses during oral evidence, cross examination permitted by the investigator and making final submissions. The rates to be applied were those applicable to “exceptional funding for inquests”. The claimant was required to submit detailed costs schedules which the SSJ would determine. In the event of dispute the matter would be referred to the Supreme Court Costs Office.

Initially, a case plan was required specifying why legal representation was required; the seniority of the solicitor engaged; whether counsel was to be instructed and, if so, why; the estimated number of hours for which the claim would be made; foreseeable expenses; anticipated conference times during the oral hearings. The SSJ would then decide the application. During the investigation the investigator could recommend funding or further funding which the SSJ would consider. Interim payments could be requested. Bills were to be submitted monthly containing details of the claim.

The costs protocol being offered was and remains modelled on that which applies to inquests, and is explained in the evidence of Pat Baskerville at paragraphs 42-60 of her witness statement dated 17 November 2008. Inquests are, by paragraph 2, Schedule 2 to the Access to Justice Act 1999, excluded from the civil legal aid scheme. The reasoning was that the coroner’s inquest was inquisitorial in nature and did not determine civil or criminal liability. Section 6(8)(b) of the 1999 Act provided power to Ministers to authorise funding in individual cases otherwise excluded by Schedule 2. The scheme was introduced in April 2000. The power has since, in the case of inquests into deaths in custody and detention under the Mental Health Act 1983, been delegated to the Legal Services Commission. Guidance upon the exercise of the function contained in chapter 27, Part C, Funding Code (Exceptional Funding Guidance) includes:

“8.

Before approving an application I would expect the Commission to be satisfied that either:

there is a significant wider public interest, as defined by the funding code guidance, in the applicant being legally represented at the inquest; or

funded representation for the family is likely to be necessary to enable the coroner to carry out an effective investigation, as required by Article 2, in line with the funding code guidance.

9.

For most inquests where the Article 2 obligation arises, the coroner will be able to carry out an effective investigation into the death, without the need for advocacy. Only exceptional cases require the public funding of advocacy in order to meet the Article 2 obligation. In considering whether funded representation may be necessary to comply with the obligation, all the circumstances of the case must be taken into account, including:

the nature and seriousness of any allegations which are likely to be raised at the inquest, including in particular any allegations against public authorities or other agents of the state;

whether other forms of investigation have taken place, or are likely to take place, and whether the family have been or will be involved in such investigations;

whether the family may be able to participate effectively in the inquest without funded legal representation. This will depend on the nature of the issues raised and the particular circumstances of the family. In most cases, a family should be able to participate effectively without the need for advocacy on their behalf. Legal Help can be used to prepare a family for the inquest; to prepare submissions to the coroner setting out the family’s concerns and any particular questions they may wish the coroner to raise with witnesses.

10.

The views of the coroner, where given, are material though not determinative. There is, however, no expectation that the coroner’s views should be sought before making an application, or that the coroner will wish to express a view.”

Any applicant must satisfy the eligibility limits but the Secretary of State has discretion to waive them when it is considered it would be unreasonable to expect a family to bear the full cost of representation at an inquest. In 2007-2008 the Legal Services Commission received 230 applications. Of these, 111 were granted either by the LSC or by the MoJ on referral. Those who do not receive “exceptional funding” may be entitled to “Legal Help”, a means related scheme also subject to discretionary waiver, by which interested persons can obtain advice about preparing for an inquest, drafting questions and submissions, and which may provide a legally qualified McKenzie Friend at the inquest. It is right to record that there has been some anxiety expressed in the press that families attending some prominent inquests may, as a result of refusal of legal assistance, be under-represented by comparison with legal teams attending on behalf of state agents.

Hourly rates for solicitors in exceptional funding inquests are found at paragraph 27.6.6 of the LSC Manual. I have inserted the relevant 50% uplift alongside the London rates within square brackets:

“The level of remuneration for work under level 6 of the Code is discretionary. For the time being, representation at inquests will be paid at the following rates with an uplift of up to 50%:

Preparation
Senior Solicitor	53.00	(London 55.75) [83.63]
Solicitor, fee earner or equivalent	45.00	(London 47.25) [70.88]
Trainee or equivalent	29.75	(London 34.00) [51]
Advocacy
Senior Solicitor	64.50
Solicitor	56.00
Attendance at Court
Senior Solicitor	42.25
Solicitor	34.00
Trainee	20.50
Travelling and waiting
Senior Solicitor	24.75
Solicitor	24.75
Trainee	12.50

Currently the 50 % uplift is invariably applied as it would be in SP’s case (indicated by letter of 4 December 2008). At paragraph 27.6.7 the Manual identifies the starting rate for counsel’s attendance at an inquest as a brief fee of £1000 and refreshers of £500 per day although higher rates may be granted depending upon the complexity and length of the inquest.

The experience of the LSC is that there is no shortage of solicitors willing to undertake representation at inquests at the rates quoted in the Manual.

Mr Robert Wright, head of the Civil Legal Aid Policy Branch at the MoJ, has confirmed the contents of Ms Baskerville’s statement as it concerns the provision of funding for inquests. Mr Wright informs me that the uplifted rates are higher than the equivalent hourly rates provided for representation in the Asylum and Immigration Tribunal and the first-tier Mental Health Tribunal. Work at the tribunals is generally remunerated under a standard fee arrangement. When, in exceptional cases, an hourly rate is agreed the figure for a senior London solicitor is £64.25 by comparison with £83.63 for exceptional funding at an inquest. Subject to discretionary enhancement, hourly rates for general civil litigation in London are £79.50 in the High Court and £70 for the County Court (CLS Funding Order 2007, table 10(a) and Payment Annex, Unified Civil Contract Specification).

When seeking “exceptional funding” at inquests the applicant is required to submit an estimate of costs setting out the number of hours it is anticipated will be expended on the work. The LSC will review the estimate and may impose a cap if it takes the view the estimate exceeds what is reasonable. Once the application is granted, funding is case managed by the LSC. Mr Wright is aware of very few inquests (Porton Down, de Menezes and Potters Bar) which have attracted higher rates of remuneration. When they have, rates have been set according to the Very High Cost Cases (Crime) scheme (Schedule 5 Criminal Defence Service (Funding) Order 2001).

“Exceptional funding” has been granted for inquests in over 500 cases. Applications for such funding have been received from upwards of 100 firms. Mr Wright is unaware of any case in which an interested person has qualified for exceptional funding but has failed to obtain suitable representation.

On 2 July 2008 HL submitted its response to the proposed costs protocol. It was argued that (1) the rate of remuneration proposed was so low that appropriately skilled staff and counsel could not be instructed and (2) there was no adequate mechanism for dispute resolution.

Mr Callender sought to distinguish between the nature of an average inquest and the SP investigation which would involve exploration of evidence concerning a three year period. The actions and responsibility of two departments of government (Health and Justice) would require investigation. SP was a child at the material time. The investigation would need to consider the particular interests of children in custody. There was a substantial body of statutory material, guidance and protocols the investigator would need to consider. It was anticipated that the inquiry would lead to important recommendations to government. Mr Callender identified several areas of necessary work not already anticipated by the protocol including attendance upon the investigator, the Treasury Solicitor and counsel. As to hourly rates, Mr Callender drew a comparison between the current inquiry and those of Victoria Climbie and Dr Shipman in which it was believed that “market rates” were paid to legal representatives. The “exceptional funding” rates were “gravely inadequate to support the specialist work and expertise needed to represent the interested party at this Inquiry”. Mr Callender asserted that the funding offered did not enable HL to satisfy the legitimate interests of the claimant. It was “possible” that HL may not be able to continue to act.

Following the withdrawal of Mr Shaw from his commission and the appointment of Mr Payling, the MoJ wrote on 9 October 2008 to HL enclosing a revised copy of the costs protocol. I understand that it was in its material terms to the same effect as the original. HL was invited to re-submit its funding application under the revised arrangements. HL would be reimbursed its reasonable costs of the first inquiry. No application was made. The letter before claim was despatched on 15 October 2008.

The nature of the investigation now proposed by the Secretary of State is described at paragraph 13 of Ms Baskerville’s first witness statement:

“The investigation which Mr Payling is to carry out will be the first stage of the two-stage process envisaged in Ms Eagle’s letter to the Howard League….[W]hilst it is not intended that Mr Payling himself should hold public hearings, such hearings will be held during a further stage of the investigation. The individual who will be asked to carry out that second stage has yet to be appointed or identified, but it will be a person who is independent of the Prison Service, and we anticipate that it is likely to be person with relevant experience such as sitting as a deputy coroner. That person will be provided with Mr Payling’s report (which will also be made public) and I would anticipate that he or she will use the report as the starting point in deciding what areas require further investigation at public hearings, and what witnesses it is appropriate to call at such hearings. However, the person conducting the second stage of the investigation will be entitled to reach his or her own conclusions about the events in question, and will not be bound by what Mr Payling has said.”

Mr Giffin, in argument, expanded upon Ms Baskerville’s evidence. It was not being suggested that the procedure proposed should provide a template for future investigations. The decision to hold a two-stage investigation was made by way of concession in SP’s particular case. It was envisaged that the first stage should comprise investigations, made in private, by the investigator. He would be provided with access to all and any relevant documents and witnesses. He would record his interviews with witnesses. It was not envisaged that the investigator would take formal witness statements but transcripts of interviews would be kept; hence the terms in which Mr Payling’s procedural commission was expressed (see paragraph 24 above). The investigator would be expected to prepare a report similar to those provided by the PPO during “death in custody” investigations. Death in custody reports are provided to the coroner who holds the public inquiry into the cause of death. A sample of such a report was produced for my perusal. The report contained a number of annexes, including relevant Prison Service documents and transcripts of interviews. It was intended that Mr Payling’s report should be provided to the second stage legally qualified investigator. As Ms Baskerville made plain the second stage investigator would not be bound by the contents of the report whether findings of fact or expressions of opinion. It was intended that the report should be used as the starting point from which the second stage investigator would decide the ambit of his inquiry in public. The terms of reference, reflecting as they did the purpose of an Article 2 inquiry, were such that the reach of the investigation went well beyond the scope of an ordinary coroner’s inquest, but it was envisaged that the legally qualified person appointed for the second stage would have a coroner’s experience or similar.

I turn to the grounds of the claim.

Bryan Payling worked in the Prison Service between 1970 and 2005 save for an intermission between 1972 and 1975. He was employed in the Midlands and South East except for a period in 1971 and 1972 when he was posted to HMP Wakefield, a high security prison, and from 1983 to 1988 when he was employed at the Prison Service College in Wakefield. He was first appointed a governor in 1993. In 1999 he was appointed area manager for Mercia in which post he remained until his retirement. Upon retirement Mr Payling went to Bermuda where he worked as an adviser and, later, Commissioner of Corrections. He returned to the UK in 2007 where, later that year, he gave evidence as an expert witness instructed by the Treasury Solicitor during litigation arising from a disturbance in HMP Lincoln. In early 2008 he conducted an investigation into complaints made by prison officers at HMP Pentonville that they had been wrongly suspended from duty on suspicion of drug trafficking in the prison. He upheld the complaints and criticised management. Later, Mr Payling led a review of sex offender treatment programmes and recommended change. He also conducted a review, for a private contractor, Serco, of staffing at Yarl’s Wood Immigration Removal Centre.

Sarah Snell was Governor of HMP/YOI New Hall in 2005 and had been during most of SP’s stay there. She is likely to be a witness in the investigation. Mr Payling and Ms Snell knew one another as acquaintances having both attended Prison Service conferences but they had never worked together in the same region, nor had there been any social contact between them. When, however, Mr Payling returned from Bermuda in May 2007, he was contacted by Ms Snell who was interested in and wanted some advice about the post of Prisons Adviser, then being advertised by the Foreign and Commonwealth Office. The successful applicant would be based in Florida and responsible for Bermuda and Caribbean Overseas Territories. On 23 May, Mr and Mrs Payling were paying a visit to Yorkshire to see a friend and offered to meet Ms Snell in Harrogate. They had a light and inexpensive lunch together for about 1½ hours during which Mr Payling imparted his experience of work, and Mrs Payling her experience of life, in Bermuda. Ms Snell paid the bill. They had not spoken since, although Ms Snell sent an email to say she had been unsuccessful in her application.

In a letter to the Treasury Solicitor dated 5 December 2008 Mr Payling concluded,

“I regarded the fact that Ms Snell paid for an inexpensive lunch as no more than a courtesy on her part. There was no question or possibility of her influencing me in connection with her application; I had no influence to bring to bear on the matter. I am under no obligation to Ms Snell.”

The claimant argues that Mr Payling is insufficiently independent of the Prison Service and of at least one potential witness to carry out an independent investigation for the purposes of Article 2. It was at first the claimant’s case that Mr Payling was or should be disqualified on the ground of subjective bias towards the Prison Service. However, in the course of argument this accusation was rightly withdrawn, it having been made as a result of a misunderstanding of terms. It is not now suggested that Mr Payling was incapable of bringing objective focus to the investigation. While the Secretary of State is proposing the appointment of a legally qualified second stage investigator, it is common ground that I should not decide this issue on the basis that a fully independent second stage investigator with the autonomy to override the first stage would rescue the Article 2 investigation from the taint of objective bias. I am asked to resolve the question of Mr Payling’s independence solely by reference to the first stage inquiry.

Mr Wise relies upon observations made in the Court of Appeal and House of Lords to the effect, he submits, that a former member of the Prison Service could not be regarded as independent for the purpose of an Article 2 investigation into a near death in custody. Mr Giffin responds that these observations were made obiter; European jurisprudence does not require that the investigator should never have enjoyed an institutional connection with the state agency under investigation.

The state’s Article 2 duty to investigate deaths in custody was considered and explained by the House of Lords in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653; [2003] UKHL 51. Mr Mubarek had been murdered by his cellmate while serving a custodial sentence at a young offender institution. An inquest had been opened and adjourned but not resumed after the cellmate was convicted of murder. There had been an investigation and report by a member of the Prison Service in which the family had chosen not to participate. The Commission for Racial Equality conducted its own investigation. None of this was sufficient to satisfy the requirements of Article 2. I do not have to decide whether there was a duty to hold an investigation in the present circumstances since the Secretary of State has agreed that an Article 2 compliant investigation should take place. However, Lord Bingham (at paragraph 31) emphasised that the importance of investigation into death in custody had long been recognised in England and Wales:

“In this country…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 the 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 House of Lords held that while there was no single prescribed model of investigation, the form and procedure of which may require some flexibility, the model adopted must conform with the minimum requirements identified in Jordan v United Kingdom [2003] 37 EHRR 2 and Edwards v United Kingdom [2002] 35 EHRR 19, namely (1) independence, (2) effectiveness, (3) reasonable promptness, (4) sufficient public scrutiny, and (5) the involvement of interested persons to an appropriate extent.

The nature of the investigation appropriate in a case of near death in custody by attempted suicide was considered recently by the House in R (on the application of JL) v Secretary of State for Justice [2008] UKHL 68; [2008] 3 WLR 1325. Lord Phillips observed, at paragraph 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 by 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 by suicide. This appeal raises the question of how such an event is to be accommodated within the spectrum.”

Lord Phillips concluded (paragraph 37) that the near-suicide of a prisoner in custody which leaves the prisoner with the possibility of serious long-term injury triggered the requirement for an “enhanced” investigation under Article 2 which could be not discharged by an internal investigation of the facts. An enhanced investigation therefore requires an independent investigator. Lord Phillips did not further define the difference between an “enhanced” and D type inquiry but the context following makes it tolerably clear that by “enhanced” he meant an investigation having the features identified in Amin (paragraph 49 above) but falling short of a full public inquiry contemplated by the Court of Appeal in D. The “initial” investigation may or may not be sufficient to satisfy article 2. If not, a D type public inquiry may be required. Whether further investigation is necessary will depend (paragraph 43) primarily upon whether the initial investigation satisfies the requirements of an “enhanced” investigation:

“…The initial investigation should be prompt, so that the facts are investigated while the evidence is still fresh and the material witnesses are readily available to be questioned. If all such witnesses give their evidence readily, the course of events appears clear and the circumstances in which the attempted suicide took place are shown to involve neither a possible defect in the system for preventing suicide nor a possible shortcoming on the part of anyone in operating that system, the initial investigation may satisfy the requirement of efficacy without the need for further inquiry. In that event, if the prisoner who attempted to commit suicide or his representatives are appropriately involved in the investigation and a report of the investigation is published, the other requirements of an enhanced investigation may be satisfied.”

Other factors may, however (paragraph 45), require a D type further inquiry, factors such as intense public interest in the nature or circumstances of the incident or issues, procedural or substantive, arising in the course of the investigation.

In Lord Phillips’ opinion the investigation carried out by Mr Sheikh into the circumstances of JL’s attempted suicide was not sufficient to constitute an “enhanced” investigation. Among other reasons identified at paragraph 48, Mr Sheikh “appears to have held the position of Senior Investigating Officer in the London Area Litigation Unit of the Prison Service and did not have the requisite independence”. In the Court of Appeal ([2008] 1 WLR 158; [2007] EWCA Civ 767), Waller LJ, in a judgment with which the other members of the court expressly agreed, said:

“In this case without in any way casting aspersions on Mr Sheikh’s integrity an investigation by a former prison governor could not have had the degree of independence required.”

The issue in JL was (see Lord Phillips paragraph 5) whether an obligation to hold an Article 2 investigation had been triggered at all, not whether Mr Sheikh’s investigation and (unpublished) report constituted an Article 2 compliant investigation. Mr Giffin, who represented the Secretary of State in the Court of Appeal and House of Lords, could recall no argument in the Court of Appeal whether Mr Sheikh could properly be regarded as independent. There was, however, some discussion in the House of Lords whether a retired prison governor could be regarded as independent. Mr Giffin submits that the judicial observations on a former prison governor’s independence were made obiter, on an incomplete knowledge of the facts and without recourse in argument to the state of European, or indeed domestic, authority. He points further to the distinction between Waller LJ’s judgment that a “former prison governor” could not be independent and Lord Phillips’ concern that Mr Sheikh was currently employed as an investigator in the London Area Litigation Unit of the Prison Service. The distinction, he submits, could be critically important in the context of SP’s case.

As to the form of the initial investigation, Lord Rodger (paragraphs 75-76) agreed with Lord Walker (paragraphs 94-95) that the very first steps would almost always involve an internal investigation by the Prison Service. However, it would soon become apparent that an Article 2 investigation would be required, at which point the prison authorities had to take steps to establish the independent investigation and provide it with the results of the internal inquiry. Lord Rodger recognised (paragraphs 79-83), as did Lord Phillips, that the scope and nature of the independent investigation would depend upon what emerged. Where there was little or no controversy as to the facts it might be possible for the investigator to proceed to publication of a report without the need for an oral hearing. At the other end of the scale a D type public inquiry might be required to meet the circumstances of the case. It was for the independent investigator to decide what precisely was required. As to independence, Lord Rodger confined himself to the opinions that (paragraph 78) the investigator could not use Prison Service officials to carry out inquiries on his behalf and that (paragraph 75) it was not for the House “to prescribe who should carry out the independent investigation. Whoever it is must be independent of the Ministry of Justice and in a position to set to work and complete the investigation reasonably quickly”.

Lord Brown agreed (paragraph 107) that to satisfy Article 2 “the investigation, besides being independent and involving the family,…must in addition be initiated by the state, be promptly and reasonably expeditiously carried out, and provide for a sufficient element of public scrutiny. Beyond this, however, it is impossible to be prescriptive”. In general it was not necessary (paragraph 108) to make inquiries in public. The investigator’s report would be made public, but circumstances, rarely, may require the expansion of the inquiry into a public D type forum.

Lord Mance agreed (paragraph 113) that an Article 2 investigation was required in the circumstances of JL’s case. The nature of the inquiry would vary according to circumstances as described by Lord Rodger, Lord Walker and Lord Brown.

The current investigation concerns the care of a disturbed and self-harming child in custody. It is common ground that an Article 2 investigation is required. We are past the stage of an initial investigation. The question is whether the investigation proposed is independent.

Mr Wise submits that if the observations made by Waller LJ and Lord Phillips were obiter, which he does not concede, they are nevertheless authoritative and persuasive support for the proposition that a former prison governor is not independent for Article 2 purposes in circumstances such as the present. Furthermore, Mr Payling has a social connection with an important potential witness which undermines his independence from interested parties to the investigation. Mr Wise conceded in argument, however, that Mr Payling’s knowledge of Ms Snell could not of itself have disqualified him. It was his institutional connection with the Prison Service on which he principally relied. Mr Giffin has invited me to consider the terms in which the Strasbourg cases have expressed the need for independence and to note the degree of institutional connection which has been held not to breach the requirement for independence.

The degree of independence required of an Article 2 investigation has been described in several of the Strasbourg cases in terms similar or identical to the following:

“For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence” (see Hugh Jordan v United Kingdom [2001] Appn No 24746/94, para 107; Kelly and Others v United Kingdom [2001] Appn No 30054/96, para 95; McKerr v United Kingdom [2002] 34 EHRR 20, para 112; Edwards v United Kingdom [2002] 35 EHRR 19, para 70)

It seems to me that this was a careful use of words. The primary obligation is to carry out an effective investigation. The origin of that duty is also explained by the European Court of Human Rights in consistent terms:

“The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also 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. The essential purpose of such investigation is to secure the effective implementation of domestic laws which protect the right to life and, in those cases involving State agents and bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances…” (see for example McKerr v United Kingdom, para 111)

The House of Lords followed and applied this analysis in Amin and JL. Thus, in order that the primary duty is fulfilled, it will generally be necessary to ensure the defined level of independence. It seems to me, however, that the ECtHR has not set an absolute standard against which compliance with Article 2 must be judged. As in the case of Article 6 the Court does not, subject to minimum standards, set out to be prescriptive but to judge whether, in the result, the obligation has been met. The approach taken by the ECtHR to effectiveness in practice is illustrated by Mr Giffin’s analysis of the cases.

In Edwards the applicant’s son died from injuries inflicted by a fellow prisoner. In July 1995 the Prison Service, Essex County Council and North Essex Health Authority jointly commissioned a non-statutory inquiry. The inquiry was conducted by a panel chaired by Mr Keiran Coonan QC. One member of the panel was a former prison governor and former Deputy Chief Inspector of Prisons. The applicants complained that the inquiry was privately commissioned by the agencies which were themselves under investigation, and which themselves fixed the terms of reference and appointed the inquiry chairman, panel and counsel. The Court found (paragraph 80):

“…It is not however apparent to the Court from the submissions of the applicant that this connection between the agencies and the Inquiry deprived it of independence. The chairman was, as is often the case in public inquiries, a senior member of the bar with judicial experience, while other members were eminent or experienced in the prison, police or medical fields. None had any hierarchical link to the agencies in question. It is not asserted that they failed to act with independence or that they were constrained in any way. They acted, as far as the Court can see, in an independent capacity and not as the employees or agents of the bodies whose fulfilment of their statutory duties was under consideration…”

Mr Giffin submitted that had the retired prison governor been disqualified from the panel for lack of the independence then the inquiry as a whole must have been tainted for lack of the necessary independence. The presence of a legally qualified chairman could not have saved it. On the contrary, the Court found that none of the members had any hierarchical connection which deprived the inquiry of theoretical and practical independence. The Court seems to have treated the previous experience of the non-legal panel members as an advantage. Mr Giffin submitted that the hierarchical or institutional connection contemplated by the ECtHR in its advice (at paragraph 59 above) must be a current or subsisting connection of such a nature and degree as would objectively deprive that investigator of independence.

In McKerr the applicant’s father had been shot and killed by RUC police officers. The officers were investigated by their own force and an unsuccessful criminal prosecution followed. The Court found (para 157) that the investigation was not independent. On the other hand, a police inquiry led by Sir John Stalker into alleged obstruction of justice was sufficiently independent since it was conducted by an outside force from England (para 140). Mr Giffin submits that the holder of the office of police constable under the Crown did not, upon the Strasbourg test, deprive the investigators of a “sufficiency” of independence from the hierarchical or institutional connection with the RUC whose Chief Constable appointed the investigator.

Similarly, in Hackett v United Kingdom [2005] Appn No 34698/04, following the conviction of Michael Stone for the murder of Dermot Hackett, Stone implicated the security services in Northern Ireland. The Chief Constable of the Police Service of Northern Ireland appointed a former member of the Metropolitan Police to investigate and report. The Fourth Section declared the application inadmissible. On the issue of independence it said:

“The Court finds no reason to doubt the independence of the officer appointed from outside the PSNI. It has not been substantiated that the method of appointment or the fact he reports to the PSNI deprives him of the necessary ability to report objectively and without being influenced by any officers implicated in the events.”

In Green v United Kingdom [2005] Appn No 28079/04, the Fourth Section also declared inadmissible a complaint of lack of independence when a police officer from the West Yorkshire Police Authority was requested by the Police Complaints Authority to investigate an allegation that an officer of the South Yorkshire Police had deliberately run down the applicant in a police motor car causing severe injuries. While the Court emphasised the procedural importance of the subsequent prosecution for driving without due care in the satisfaction of the Article 2 obligation it also commented, “Nor is there anything in the circumstances of this case to cast doubt on the independence of the PCA or its investigation procedures”.

I should draw attention to the decision of the Court in Brecknell v United Kingdom [2008] 46 EHRR 42 to dispel any suspicion that the ECtHR might have applied a different standard of independence to investigations secondary to the original (such as those in McKerr, Hackett and Brecknell). Several people were killed and injured by gunfire from loyalist paramilitaries outside a bar in Northern Ireland in 1975. Six years after his release in 1993 from a prison sentence imposed upon his conviction for the murder of a shopkeeper, a former police officer, John Weir, made allegations to a journalist that the RUC and the UDR had been complicit in the killings. The applicant complained that the investigation into Weir’s allegations lacked independence. The initial investigation into Weir’s claims was carried out by members of the RUC. The Court held that the investigation lacked independence (in this respect see to similar effect Ramsahai v Netherlands [2007] Appn No 52391/99 [Grand Chamber judgment at paras 333-346] and Ogur v Turkey [2001] 31 EHRR 40 at para 91). From November 2001 the police force in Northern Ireland was re-organised and the authority became the Police Service of Northern Ireland. The Court expressed itself satisfied that the PSNI was “institutionally distinct” from its predecessor notwithstanding the new authority “inherited officers and resources”. It rejected the complaint of lack of independence save in respect of the initial period 1999-2001. No doubt was expressed by the applicant (or the Court) about the independence of the Serious Crime Review Team and a senior officer in the Metropolitan Police Force to whom the task was transferred in 2004. As to the effect of the passage of time on the nature of the investigation the Court said at para 72:

“The extent to which the requirements of effectiveness, independence, promptitude and expedition, accessibility to the family and sufficient public scrutiny apply will again depend on the particular circumstances of the case, and may well be influenced by the passage of time…Where the assertion or new evidence tends to indicate police or security force collusion in an unlawful death, the criterion of independence will, generally, remain unchanged. Promptness will be likely not to come into play in the same way, since, for example, there may be no urgency as regards the securing of a scene of the crime from contamination or in obtaining witness statements while recollections are sharp. Reasonable expedition will remain a requirement, but what is reasonable is likely to be coloured by the investigative prospects and difficulties which exist at such a late stage.” [emphasis added]

In Bubbins v United Kingdom [2005] 41 EHRR 24, the Court was asked to examine the grant of anonymity to witnesses at an inquest on a complaint under Article 2. At para 156 the Court found that the principles which applied in the Article 6 context were of relevance to the questions whether the interested party had enjoyed a sufficient measure of participation and whether an appropriate forum to secure sufficient accountability by the State and its agents had been provided. Mr Giffin argued that a valid comparison could be made between the requirements of objective impartiality in an Article 2 investigation and that considered by the ECtHR in the Article 5.4 and Article 6 context. He submits that the test of independence for Article 2 purposes can be no more stringent than those for an independent tribunal considering issues of guilt or innocence or the detention of the subject. In Hirst v United Kingdom [2000] Appn No 40787/98 the Third Section declared inadmissible a complaint that the Parole Board failed to reach a sufficiency of independence, saying:

“The Parole Board, which provided members of the DLP (Discretionary Lifer Panels) panels who sat on reviews of the applicant’s continued detention, was found in the…Weeks case (judgment 2 March 1987, Series A no 114)(para 62) to satisfy the requirements of independence, having regard not only to their manner of appointment but also to their functional independence from the executive. The Court notes that the applicant in this case criticises the fact that membership of the Board includes former prison service employees and previous members of Boards of Visitors, and that there are structural links between the Board’s secretariat and financing and the Prison Service. The Court is not persuaded that the presence on DLPs, which are presided over by a judge, of doctors or other qualified persons who have previous, relevant experience of work within prisons, for or in contact with the Prison Service, is sufficient to cast doubt on their independence or impartiality in their functions for the Parole Board. Nor does it perceive that their independence is undermined by the staffing or budgetary arrangements as described.”

Relying on R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 and R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153, Mr Giffin invites me to apply no higher standard of independence for the Article 2 investigation than would the ECtHR. He relies in particular upon the following passage from the speech of Lord Brown in Al Skeini at paras 105 and 106:

“105…Lord Bingham (in Ullah) made two further points: first, that a national court “should not without strong reason dilute or weaken the effect of the Strasbourg case law”; secondly that, whilst member states can of course legislate so as to provide for rights more generous than those guaranteed by the Convention, national courts should not interpret the Convention to achieve this: the Convention must bear the same meaning for all states party to it. Para 20 ends: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time; no more, but certainly no less”.

106.

I would respectfully suggest that the last sentence could as well have ended: “no less, but certainly no more”. There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of the applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg…”

Mr Wise drew my attention to Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465. It is the obligation of courts in England and Wales to follow domestic precedent. Where it is considered that a binding domestic precedent is inconsistent with Strasbourg authority the correct course is to give leave to appeal (para 43-44). The treatment of Strasbourg cases in the House of Lords was the subject of discussion in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] 1 AC 1312. Lord Scott at paras 44 and 45 envisaged the possibility that in the event of disagreement between the House of Lords and the Grand Chamber upon the correct interpretation of a Convention right the opinion of the House of Lords would prevail, by reason of the statutory expression given to the incorporation of the Convention into domestic law by section 2 Human Rights Act 1998. By section 2 domestic courts are required to “take into account” judgments of the ECtHR but are not bound by them. Lord Bingham, at para 37, reminded the House of its decision in Ullah. Section 6(1) of the Act rendered unlawful an act of a public authority, including a court, which was incompatible with a Convention right. Since the Convention was an international instrument, only the Strasbourg court could expound the correct interpretation of a Convention right. There was little scope for competition between London and Strasbourg. Baroness Hale gave reasons for her agreement with Lord Bingham. Lord Carswell and Lord Neuberger agreed with Lord Bingham’s reasons for dismissing the appeal without making express reference to Lord Scott’s obiter remarks.

In the domestic field Mr Giffin sought to derive some support from the fact that during the judicial inquiry conducted by Keith J following the decision of the House of Lords in Amin, he was assisted by advisers who included a senior Prison Service governor and area manager. This provides no support for Mr Giffin’s argument in my view. The investigation was the sole responsibility of the judge. What is apparent from pages 10 and 11 of his report, however, is the valuable contribution made by the adviser to the judge’s understanding of the workings of prison management.

I am informed by Ms Baskerville in her second witness statement that “a significant number of the senior investigators working in the office of the PPO are themselves either former senior Prison Service staff or, in a number of cases, actually serving operational managers on secondment from NOMS. For example, Brian Woodward, a senior incident investigator, is an ex-Prison Service governor grade currently on secondment to the PPO’s office. Indeed, Mr Woodward was originally going to carry out the article 2 investigation into SP’s case before Ali McMurray took over this role. In addition, three of the PPO’s current Senior Fatal Incident investigators are Prison Service staff on secondment from NOMS to the PPO’s office. The same is true, in my experience, of the staff employed by the Chief Inspector of Prisons. Thus, for example, twelve members of the current Inspectorate staff have been seconded from NOMS”.

Mr Giffin urged upon me the view that the primary obligation of the state was to provide an effective investigation. An investigation such as the present would be rendered more rather than less effective by the experience of the investigator. Mr Giffin drew the analogy with expert members of domestic tribunals who, while not sitting as panel members, prepared reports for other panels. In Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; [2006] 1 WLR 781, the House of Lords considered the complaint of an unsuccessful applicant to the disability appeal tribunal that the medical member could not be regarded as objectively independent since her working life outside the tribunal comprised examination and reports for the Benefits Agency in other cases for the same, but differently constituted, tribunal. Lord Hope, with whom the House agreed, described and applied the test thus:

“17.

The critical issue is whether the fair-minded and informed observer would conclude…that there was a real possibility that [the doctor] would not evaluate reports by other doctors who acted as EMPs objectively and impartially against the other evidence…

18.…Her relationship with the Benefits Agency was as an independent expert adviser. Her advice was sought and given because of the skills that she was able to bring to bear on medical issues in the exercise of her professional judgment. A fair-minded observer who had considered the facts properly would appreciate that professional detachment and the ability to exercise her own independent judgment on medical issues lay at the heart of her relationship with the Benefits Agency. He would also appreciate that she was just as capable of exercising those qualities when sitting as the medical member of a disability appeal tribunal. So there is no basis for a finding that there was a reasonable apprehension of bias on the ground that [the doctor] had a predisposition to favour the Benefits Agency.”

Lord Hope for similar reasons proceeded to reject the assertion that there was, in the alternative, a risk of unconscious bias. In both capacities the doctor was exercising her independent professional judgment.

Mr Giffin referred to the number of such incidents which, distressingly, occur among the prison population. To require investigation of all life threatening incidents by an outside investigator with no past or present institutional connection with the Prison Service would impose a huge, costly and unwarranted administrative burden upon the state.

During argument it was recalled that there had been recent controversy about the constitution of juries in Crown Court trials. Counsel have kindly supplied me with copies of R v Abdroikov and others [2007] UKHL 37; [2007] 1 WLR 2679 and Bakish Alla Khan and Others [2008] EWCA Crim 531; [2008] 3 All ER 502. Former exemptions from jury service were removed by section 321 of and Schedule 33 to the Criminal Justice Act 2003.

In Abdroikov the question arose in what circumstances might a jury including serving police officers or prosecutors offend the need under Article 6 for an independent tribunal. The House held that in general no fair minded and informed observer would see the possibility of bias merely because a jury comprised in part a serving police officer or an employee of the Crown Prosecution Service; to the contrary where a police officer shared a local service background with a witness whose evidence was in dispute, or a juror was in full time employment with the prosecuting authority responsible for the prosecution. The Court of Appeal Criminal Division considered in Khan the safety of a conviction partly based upon the disputed evidence of a police officer known to a member of the jury who was also a police officer. The court held that the issue of fact to which the officer’s evidence was relevant was such that an impartial observer would not have considered the jury’s decision upon the issue could have been influenced by bias formed by the juror’s limited association with the witness. In a linked appeal, the fact that a member of the jury had been a CPS caseworker for 14 years was held not to present an appearance of bias when the prosecuting authority was the DTI.

Counsel were understandably reluctant to place too much reliance upon decisions which concerned the application in practice of the statutory removal of a disqualification to sit upon a jury. I have noted, however, that in both appeals the approach of the court, as in the ECtHR, was to examine the facts and issues arising at the trials which might have deprived the juror of objective impartiality and, thus, to consider the safety of the verdict, rather than to assume objective bias based upon superficial appearance.

In Gillies Baroness Hale (at para 38) explained the distinction between impartiality and independence. Although they are closely linked, independence is concerned with the structural or institutional framework which secures impartiality, that is, an open-minded and unbiased approach to the task in hand. In Europe, it seems to me, the term independence is used to describe both institutional or hierarchical separation and practical freedom from influence.

In several decisions of the ECtHR, referred to in both D and JL, the need for flexibility and the recognition of practical realities in judging the requirements of an independent investigation was acknowledged. In Ucar v Turkey [2006] Appn No 52392/99 the ECtHR, at para 90, that acknowledgement was expressed as follows:

“…The nature and degree of scrutiny which satisfies the minimum threshold of an investigation’s effectiveness depends on the circumstances of each particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000-VI, and Ülkü Ekinci, cited above, §144).”

The same considerations led the House of Lords in JL to decline an invitation to design a template for investigations into near deaths by suicide. The examination by Lords Rodger (para 75), Walker (para 94) and Brown (para 109) of the first necessary steps demonstrates that often the effectiveness of the investigation will only be achieved by the immediate securing of the evidence, physical and documentary, by the Prison Service itself.

Once it is apparent that the need for an independent investigation, compliant with the Article 2 obligation, has arisen the Prison Service should lose no time in appointing the independent investigator. An investigator appointed under the guidance provided by the House of Lords in JL, will be required to make important judgments as his investigation progresses. The nature of the decisions he will be required to make demonstrates the importance of his independence. For example:

For ease of reference I shall quote again the words repeatedly used by the ECtHR and adopted by the House of Lords to define the independence required:

“For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.”

I accept Mr Giffin’s analysis of the Strasbourg cases. The ECtHR did not, when describing the practical requirements of “independence”, contemplate that the investigator should never have enjoyed an institutional connection with “those implicated in the events”. If that were so, no retired police officer could investigate a death in which a member of a force in which he had once served was implicated. No retired prison governor could investigate a near death in prison. The Court was, in my view, describing a current state of connection and independence.

Current hierarchical or institutional connection by rank or responsibility (see for example Ramsahai v Netherlands [police officers employed in the same force investigating a suspected crime by a police officer] and Ogur v Turkey [investigator subordinate in chain of command to the security forces he was investigating]) will undoubtedly disqualify an investigator. No Strasbourg case has been found in which the Court has considered a past, as opposed to a present, institutional connection as a ground for finding a breach of Article 2. However, I am equally persuaded that past hierarchical or institutional connection between the investigator and someone “implicated” could well cause an objective lack of practical independence. That may arise because the investigator had once served with the person implicated in either a junior or senior capacity, whether or not they had personal contact when serving together. This would apply particularly where the nature of the issues arising in the investigation concerned not merely personal but also managerial and/or institutional accountability for the near-death incident. It seems to me, for example, that it would hardly be appropriate for a retired Detective Chief Superintendent to investigate and make recommendations upon the force policy of a Chief Constable under whom he had served, whether in the same force or not. The risk of unconscious bias one way or the other is obvious.

But what of a retired police officer or prison governor who had served in Newcastle and the North-East throughout his career and had experienced no institutional or hierarchical relationship with the persons or institutions implicated in a near-death investigation in Exeter? In my judgment what would be critical in such a case is the identification of the issues which the incident being investigated may create. Where there is no question of institutional responsibility being raised by the investigation I can see no ground for concluding that the retired police officer or prison governor would be other than objectively independent. If, on the other hand, the issues raised included a question whether national policy, such as Prison Service Orders, were adequate to meet the state’s Article 2.1 obligations, the fact that the investigator had spent his working life applying those Orders may, and in my view would, deprive him of the practical independence necessary to perform his work effectively. The risk would be that his past experience might cause him uncritically to accept an institutional view which would not be accepted, except after thorough analysis and testing, by an investigator appointed from a discipline outside that of the Prison Service.

In paragraph 24 I have extracted Mr Payling’s terms of reference. Included is a request “toconsider, within the operational context of the Prison Service, what lessons in respect of current policies and procedures can usefully be learned from the investigation and to make recommendations”. The investigator is thus required by his terms of reference to make no assumptions about the correctness of policy and procedures as they apply in SP’s case. Since SP was a child in care during the relevant custodial period a consideration of the impact and adequacy of policy and procedures in her particular case may be matters of some importance to the effectiveness of the inquiry. Thus Mr Payling, having spent his working life applying Prison Service policy and procedure, is now expected to apply “independent” critical analysis to it.

As to Mr Payling’s professional involvement with the formulation of policy, Ms Baskerville said in her first witness statement, “Prison Governors, Area Managers and the Director of Operations (to whom Area Managers report) deal with the practical management of the prisons for which they are responsible. Strategic management decisions are not taken by Area Managers. Mr Payling was therefore not directly responsible, for example, for the Prison Service’s policies on suicide and self-harm that would have applied at New Hall and Low Newton at the time in question. As an Area Manager Mr Payling served on the Prison Service’s Operational Policy Group and in that capacity he will have commented from time to time on proposals from an operational perspective. Mr Payling recalls that in this connection he commented on various initiatives in respect of safer custody and the management of self harm. I understand that Mr Payling regards this as helpful background experience for the purposes of this investigation, rather than as anything which would compromise his independence, and I agree”. It follows that Mr Payling had during his time as a prison governor and area manager not only applied the policy which he is now asked to assess; he had as area manager taken part in its formulation by responding to consultation on proposals.

I accept Mr Giffin’s submission that judicial observations upon the suitability of a prison governor to investigate the case of JL were made obiter and therefore are not binding on me. More to the point, their Lordships did not purport to be setting a benchmark for all near-death investigations of persons in custody. They expressly limited their observations to the case of JL. Accordingly, there is no domestic precedent by which I am bound which is inconsistent with Strasbourg jurisprudence and I am not a victim of the Kay (paragraph 68 above) dilemma. I accept that in principle the fact a proposed investigator, before his retirement, spent his working life in the Prison Service does not of itself disqualify him from appointment to investigate a death in custody on the grounds of lack of independence; it may, or may not, depending upon the nature of his connection, by reason of that employment, with the individuals and institutions implicated and/or upon the issues raised by the investigation. Apart from Mr Payling’s acquaintanceship with Ms Snell, there was, in my view, no connection with individuals concerned which might have affected his independence. However, there were two respects in which, in my judgment, Mr Payling’s objective independence was compromised. First, in consequence of a social acquaintanceship with a witness likely to make an important contribution to the inquiry, he could not be said to enjoy practical independence from those implicated. While the occasion of the conversation was brief the nature of the conversation was such that Ms Snell was placing confidence in Mr Payling’s advice on work related experience. Politely, she repaid his kindness. Mr Payling would be, as investigator, both a fact finder and a judge of Ms Snell’s management skill. There is, in my opinion, despite Mr Wise’s concession, an objective lack of independence between Mr Payling and the witness. Second, Mr Payling had, as part of his routine working life as an area manager, been consulted on policy initiatives in the field of “safer custody” and “self-harm”. It follows that Mr Payling had been closely concerned with the very policy areas upon which he was being asked to formulate recommendations as an investigator. The advantage that Mr Payling enjoys of familiarity with and expertise in safer custody issues carries the concomitant disadvantage that he cannot be said to be independent of the policy issues he would be investigating. For these reasons it seems to me that an investigation carried out by Mr Payling in SP’s case would not be sufficiently independent for compliance with Article 2.

In reaching this view I have remembered that unlike the ECtHR I am not considering whether in retrospect the requirement of effectiveness was in fact met; nor am I, in that context, able to escape the consequences of these findings by utilising the words “generally be regarded as necessary” in favour of the defendant. In each of the Strasbourg cases to which my attention has been drawn the Court examined not only the appearance of hierarchical, institutional and practical independence but also the process of investigation and its results, to see whether what was achieved was effective for Article 2 purposes. I am not in a position to say with the benefit of hindsight that an investigation actually carried out was without doubt sufficiently independent to be effective. In JL, the Court of Appeal and the House of Lords were expressing the view that a retired prison governor, particularly one who continued in employment with the Prison Service, could not, prospectively, be regarded as independent for the purpose of investigation of the circumstances of JL’s case. I am expressing a similar view limited in its application, for the reasons I have given, to SP’s case.

I wish to make it abundantly clear that nothing I have said should be taken as reflecting upon Mr Payling’s integrity, or his ability to pursue an investigation with appropriate rigour. I hope it is clear that in this area I am concerned with an objective test in the application of which Mr Payling’s admirable personal and professional qualities are not in issue.

At paragraph 54 above I have referred to Lord Rodger’s opinion that the investigator could not rely on Prison Service officials to carry out inquiries on his behalf (see JL para 78). This has implications for the investigation of deaths in prison as the statement of Ms Baskerville demonstrates (see paragraph 70 above). Lord Rodger based his opinion upon the reasoning of the Grand Chamber in Ramsahai v Netherlands, paras 324-325. The Grand Chamber found in effect that Mr Ramsahai was lawfully killed when Officer Brons fired a single shot in self-defence when confronted by a handgun, loaded and aimed by the deceased. Accordingly, his killing was caused by a gunshot which was “no more than absolutely necessary” for the purposes of Article 2. On the other hand, the investigation by the police into the fatal shot was carried out by the same police force as that to which Officer Brons belonged. It followed that forensic examination, door to door inquiries, and initial questioning were all conducted by officers who were hierarchically and institutionally connected with the person implicated. In the Court’s view immediate steps to preserve evidence before the arrival of an independent force required no more than the securing of the incident scene. Furthermore, even when the independent State Criminal Investigation Department took over, the local force continued to make investigations at its request and on its behalf. In both respects the Court found a breach of Article 2 in that the police investigation was not sufficiently independent.

I do not believe that Lord Rodger was intending to suggest a blanket embargo upon inquiries by retired prison governors or institutionally separated organisations within the Prison Service. The ECtHR has, as I have observed, accepted the separation of one regional police force from another and the institutional separation between a police force and a force formed to investigate serving officers, such as the Police Complaints Authority. I consider that the same considerations apply to the process of investigation by assistants as to the investigator himself. An individual may or may not be sufficiently independent for this purpose depending upon his hierarchical or institutional connection, if any, with those he is investigating. I have heard no additional evidence or argument about the institutional connection between Prison Service investigating teams and those investigated beyond that to which I have referred, nor do I know what further protocol exists to ensure personal independence from those the subject of an investigation. I cannot therefore express a view whether the mere fact of secondment to the investigation team is sufficient to avoid an accusation of insufficiency.

This ground is said to be parasitic on the first. Mr Wise argued that unless the investigator was independent the claimant could have no confidence that the investigation would have a sufficient public element. In my judgment there is no substance in this ground for the following reasons. The House of Lords in JL approved the conduct of the first stage of an investigation in private subject, in an appropriate case, to publication of the report. This is the evidence gathering stage. During the course of it the investigator would need to assess whether it was necessary to hold public hearings and, if so, what form they should take. In SP’s case I have found in her favour on the first ground and, in any event, the Secretary of State has guaranteed that there will be a public hearing the extent of which will be for the judgment of a legally qualified second-stage investigator. There is thus no decision capable of current challenge. I should note that during argument there was some discussion about the unfortunate consequences which may follow the publication of two reports by different investigators. However, the appointment of separate first and second stage investigators was not the subject of complaint.

The complaint is that the Secretary of State proceeded to commission Mr Payling according to specified terms of reference. By a letter dated 24 August 2006 the Secretary of State had created a legitimate expectation in the mind of the claimant that in the event of a need to re-commission the investigation (1) she would be consulted as to its terms of reference and (2) terms of reference would be settled not by the Secretary of State but by the independent investigator. It is asserted that it is an abuse of the Secretary of State’s power now to impose the terms of reference contained in Mr Payling’s letter of commission dated 2 October 2008.

The material terms of the letter to HL (see paragraph 5 above) were:

“The investigation will be chaired by the Prison and Probation Ombudsman, Mr Stephen Shaw, and will meet the procedural obligations required by Article 2 of the ECHR. The precise Terms of Reference, on which you will be consulted, will be set by Stephen Shaw but will broadly consider the care and treatment of [SP] whilst in custody at HMP/YOIs New Hall and Low Newton between 2003-2005 and her transfer to Rampton Secure Hospital…

the appropriate scope of this investigation will be determined by the PPO in due course as the independent chair…”

Although the “benefit” the claimant is seeking to retain is a procedural one (that is, to be consulted about the terms of reference of the inquiry into her case) it seems to me that she is arguing for a legitimate expectation in Simon Brown LJ’s category 2 identified in R v Devon County Council, ex parte Baker [1995] 1 All ER 73 at pages 88-89. The claimant says the expectation arises “not because the claimant asserts any specific right to a [procedural] benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness – the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision…”. The claimant has a right to an Article 2 compliant investigation into her treatment in custody. She has no right to an investigation or inquiry of any other quality. Thus, she asserts that she had an expectation that she would be given the opportunity to challenge the proposed change in the means by which the ambit of the investigation would be defined.

Mr Giffin submits that no legitimate expectation arises from the letter of 24 August 2006 save thatin the investigation in which the PPO was commissioned, the PPO would set the details of the terms of reference after consultation with the claimant. It said nothing about what might happen if, two years later, after much wrangling about virtually every aspect of the commission, the PPO withdrew from it, nor could the letter rationally be understood as anticipating such events. I accept this submission.

As to the fairness of the procedure adopted in 2008, it seems to me the Secretary of State was entirely justified, in light of the events I have described in paragraphs 7-13, to bring order and finality to the new commission. I have identified the terms of reference eventually set by Mr Shaw at paragraph 13 above. HL, with their concept of SP’s and the wider public interest in mind, made prolonged and vigorous attempts to persuade both the Treasury Solicitor and Mr Shaw to widen the scope of the investigation to include the period of SP’s care in the community. They wanted a full-blown inquiry into the wider implications of the state’s responsibility for children. I have no criticism to make of HL’s ambition. However, having achieved, following a protracted negotiation, terms of reference which generously interpreted the scope of the Article 2 investigation, it seems to me it was entirely legitimate for the Secretary of State, given the period of time which had elapsed since August 2006, not to offer a second opportunity for procedural wrangling and delay.

As to the substantive result of the procedure adopted, a comparison with Mr Payling’s terms of reference at paragraph 24 above reveals that there is no specific reference in Mr Payling’s commission to the examination of “child welfare” issues. However, if it is not implicit that the treatment of a child in care and detention was bound to be the subject of inquiry by Mr Payling, that is made clear by Ms Baskerville’s first witness statement at paragraphs 39 and 40 in which she says, “It is clear that [the terms of reference] will permit Mr Payling to look at all aspects of the management of SP, to the extent that such matters are relevant to the incidents which have caused Article 2 to be engaged in this case. That includes any steps taken or not taken by the Prison Service to protect and promote her welfare, if those are indeed considered by Mr Payling to be sufficiently relevant to the self-harming behaviour…I do not in fact believe that we are in substance seeking to exclude from the investigation anything that Mr Shaw had indicated that he proposed to investigate…We for our part recognise, of course, that it may to some extent be necessary for an investigation to be informed about SP’s background in order to understand the events between 2003 and 2005…[T]here is no intention that these procedural stipulations should in any way inhibit Mr Payling’s ability to investigate all matters within his terms of reference, to obtain all the evidence that he requires for that purpose, and to express whatever conclusions he reaches in the light of that evidence.”

There was no specific reference in either Mr Shaw’s or Mr Payling’s terms of reference to the position of the local authority having duties to SP under the Children Act 1989. The defendant had, however, already conceded the need to investigate such matters (see paragraph 10 above). It is right that I should record my view of the relevance in this investigation of the statutory responsibility of the local authority towards a child in care. I do not suggest that the treatment of SP in the community has any connection with an Article 2 investigation into SP’s treatment in detention but the question whether, while SP was detained, the local authority continued to bear any responsibility towards her, if so what responsibility and whether it was met are questions which, in my opinion, legitimately fall within the scope of the terms of reference set.

Ground 3 is limited to the setting of terms of reference. I was not addressed at any length upon the procedural aspects of Mr Payling’s commissioning letter. My attention was drawn to its contents (see paragraph 25 above). Mr Wise commented that Mr Payling accepted these requirements without demur. At the time of his withdrawal, Mr Shaw had some trenchant remarks to make about what he saw as an attempt by the Treasury Solicitor to dictate the relevance of documents and witnesses and, where issues of confidentiality arose, the redaction of documents (see paragraphs 18-22 above). I am not asked to make a decision about this but it seems to me that I must reach a conclusion since it will affect the issue of delay alleged under the fourth ground of claim. The concern of both parties about the holding of “forums” was justified. Ms McMurray’s email describing their purpose (see paragraph 18) was explicit and inconsistent with Mr Shaw’s later rationalisation (see paragraph 22). Second, it seems to me that document and witness handling in an investigation into events concerning SP in two different prisons, by the Department of Health and, possibly, by the relevant local authorities, over a period of two to three years is bound to create an administrative task of some magnitude. In my view, the Treasury Solicitor was right to highlight the inadequacies of proceeding without an established protocol for production, recording, disclosure and security of documents. Judging by the changes in personnel responsibilities within the PPO’s office and the burden of work being handled, the establishment of a dedicated and independent secretariat within the Safer Custody Group seems to me to have been a sensible arrangement provided the investigator retained control over and supervision of the process, once established. I do not consider the defendant was suggesting otherwise.

The claim is that an unreasonable time elapsed between the request for an investigation in October 2005 and the agreement to commission an investigation in August 2006. Having commissioned the PPO, Mr Shaw, the Secretary of State proceeded to undermine him, causing him to withdraw from his commission on 18 June 2008. Accordingly, the Secretary of State is responsible for the whole period of delay since October 2005. This constitutes a breach of the state’s duty to conduct an Article 2 investigation within a reasonable time.

Mr Giffin submits that an assessment of the question whether the state has complied with the duty of reasonable promptitude will depend upon the circumstances. There will be an immediate need to investigate a death in custody when the circumstances admit the possibility of foul play. Where, however, the investigation is into self harm which does not result in serious permanent injury the urgency of investigation will be lessened. In Edwards v United Kingdom (paragraphs 59 and 61 above) death occurred in November 1994 and the inquiry was commissioned in July 1995. Proceedings opened in May 1996 and the report was issued in June 1998. While the initial period of delay could be criticised it did not constitute a breach. Mr Giffin acknowledges that periods of delay shorter than that in SP’s case have resulted in a finding of breach. The circumstances of each particular case require examination. He submits that there has not here been a denial of the right to investigation, nor (Edwards) “wilful foot-dragging or prevarication”. The effectiveness of an investigation into SP’s case has not been compromised. Mr Shaw’s withdrawal was not a foreseen consequence of the Secretary of State’s representations. As to the initial delay, Ms Baskerville in her first statement explains that HL’s letter appears to have become “lost in the system” between October 2005 and March 2006, perhaps because it was inappropriately and in error forwarded to the Department of Health by an official. SP was at that time detained at Rampton Special Hospital. There followed a period during which SP’s records required examination and legal advice was taken upon the extent of the Secretary of State’s duty.

The obligation to commence an Article 2 investigation lies upon the state and does not depend upon any application by the next of kin but where the claimant survives to give her own account the emphasis is different (JL, per Lord Rodger at paras 66-69). In this case I do not consider the Secretary of State can be criticised for failing to act spontaneously and indeed no such criticism is made.

It was unfortunate that any action taken upon receipt of HL’s letter of October 2005 was inappropriate but I do not consider that, alone, it supports an arguable complaint of breach of the Article 2 duty by the state. The matter was, in time, followed up by HL. Before agreeing to commission an investigation the Secretary of State was entitled to obtain information from the Prison Service about SP and her circumstances and to seek legal advice before agreeing to commission an independent investigation. The opinions of their Lordships in JL demonstrate the wisdom of caution in this area.

The progress towards the publication of Mr Shaw’s terms of reference in December 2007 was lamentable. However, I do not consider that this was the responsibility of the Secretary of State. The delay was primarily caused by HL’s attempts to widen the ambit of the investigation beyond that required by Article 2. A secondary cause was the failure of both parties to complete their representations to Mr Shaw during the summer of 2007. The Secretary of State acted reasonably, in my view, in seeking to keep the investigation within bounds.

At paragraph 97 I have already expressed my agreement with the judgment that procedural discipline was required in the PPO investigation. I do not accept that the Treasury Solicitor’s expressions of concern were calculated to undermine the independence of the investigator or his freedom to make inquiries wherever he wished. I accept the submission that his withdrawal was not foreseen. Furthermore, on the information available to me, I conclude it was not reasonably foreseeable.

It follows that I reject the claim of breach of Article 2 on the ground of delay.

The claim is that funding arrangements are not in place adequately to protect the claimant’s interests in and during the Article 2 investigation. On 4 December 2008 HL wrote to the Treasury Solicitor with the following proposals:

In a reply of 8 December 2008 the Treasury Solicitor reiterated the Secretary of State’s intention to apply the “exceptional funding” arrangements described at paragraphs 31-32 above, the 50% uplift included. The operation of the arrangements was described in the evidence. Further information as to practical operation of the arrangements would be provided upon request.

SP should have no difficulty meeting the financial criteria required to qualify for exceptional funding and it is not suggested she would. The principal dispute appears to concern hourly rates. The question I have to consider is whether the arrangements in place are sufficient to secure SP’s appropriate involvement in the investigation. The evidence is all one way. In my judgment they plainly are. It is true that there are several areas into which the investigator will need to inquire which render the investigation significantly more substantial than the conventional inquest. However, the rates set are not designed for the conventional inquest but for one which has some complexity. It has not been demonstrated to me that there is any significant risk that SP’s interests would not be properly represented under the rates proposed.

The evidence makes clear that the arrangements proposed mirror those which currently are managed by the Legal Services Commission in the case of exceptional funding for inquests. The system is described at paragraphs 29-35 above. There is provision for monthly billing and payment on account. I see no reason why funding arrangements which have been applied in hundreds of inquests should not be applied successfully by the MoJ in SP’s case.

No application for the funding of particular work by HL has been refused by the Secretary of State. This ground must therefore fail.

There are two areas identified by HL in which it seems to me funding will need to reflect the obligations of SP’s legal representatives in her particular case. I have already referred (at paragraph 97) to the breadth of the current investigation and to Mr Callender’s description (at paragraph 38) of the expertise required properly to represent SP’s interests. The volume of work required may well exceed that of a single issue inquiry. Secondly, no provision is currently made for counsel’s hourly rates in the first stage of the inquiry. I am not in a position to judge whether it would be appropriate to seek advice from counsel during the first stage of the investigation but it would not surprise me if such a course were appropriate in an investigation of this magnitude. If so, the claimant is entitled to know what hourly or other rate would be available if an application for funding were to be made.

I grant permission to apply for judicial review on grounds 1, 3, 4 and 5. I refuse permission on ground 2. I dismiss the claim on grounds 3, 4 and 5. I find for the claimant upon ground 1 that an investigation carried out by Mr Payling would fail to meet the requirement for independence demanded by Article 2. I shall need assistance from counsel as to the appropriate nature and terms of the relief which should follow.