COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION (ADMINISTRATIVE COURT)
The Hon Mr Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE DYSON
| SECRETARY OF STATE FOR DEFENCE
|- and -
|THE QUEEN on the application of MRS CATHERINE SMITH
|HM ASSISTANT DEPUTY CORONER FOR OXFORDSHIRE
|THE EQUALITY AND HUMAN RIGHTS COMMISSION
Ben Emmerson QC and Jessica Simor (instructed by Hodge Jones & Allen) for the Respondent
The Interested Party was not represented
The Hon Michael Beloff QC and Raza Husain (instructed by the Legal Director of the Equality and Human Rights Commission) for the Intervener
Hearing dates: 9 and 10 March 2009
Crown Copyright ©
Sir Anthony Clarke MR:
This is the judgment of the court.
The decision of Collins J
The jurisdiction question
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."
Section I is entitled "RIGHTS AND FREEDOMS" and in article 2, which is entitled "Right to life", provides:
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
Section 6(1) of the HRA provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is common ground that a public authority must be a UK public authority and that the British army is a public authority within the meaning of section 6.
"The exercise of 'jurisdiction' therefore involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that State or who have been brought within that State's control. They [ie the respondent States] also suggest that the term 'jurisdiction' generally entails some form of structured relationship normally existing over a period of time."
"59. As to the 'ordinary meaning' of the relevant term in article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State's exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States. …
60. Accordingly, for example, a State's competence to exercise jurisdiction over its own nationals abroad is subordinate to that State's and other States' territorial competence … In addition, a State may not actually exercise jurisdiction on the territory of another without the latter's consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects …
61. The Court is of the view, therefore, that article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. …
At  the court quoted this extract from Soering v UK (1989) 11 EHRR 439 at :
"Article 1 … sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to 'securing' ('reconnaître' in the French text) the listed rights and freedoms to persons within its own 'jurisdiction'. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States."
"(1) Article 1 reflects an "essentially territorial notion of jurisdiction" (a phrase repeated several times in the Court's judgment), "other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case" (para 61). The Convention operates, subject to article 56, "in an essentially regional context and notably in the legal space (espace juridique) of the contracting states" (para 80) (ie within the area of the Council of Europe countries).
(2) The Court recognises article 1 jurisdiction to avoid a "vacuum in human rights' protection" when the territory "would normally be covered by the Convention" (para 80) (ie in a Council of Europe country) where otherwise (as in Northern Cyprus) the inhabitants "would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed" (para 80).
(3) The rights and freedoms defined in the Convention cannot be "divided and tailored" (para 75).
(4) The circumstances in which the Court has exceptionally recognised the extra-territorial exercise of jurisdiction by a state include:
(i) where the state, at para 71:
"through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory]" (ie when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable "to fulfil the obligations it had undertaken under the Convention" (para 80) (as in Northern Cyprus).
(ii) At para 73:
"cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state [where] customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction".
(iii) Certain other cases where a state's responsibility "could, in principle, be engaged because of acts … which produced effects or were performed outside their own territory" (para 69). Drozd v France (1992) 14 EHRR 745 (at para 91) is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extra-territorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France's jurisdiction.
(iv) The Soering v UK (1989) 11 EHRR 439 line of cases, the Court pointed out, involves action by the state whilst the person concerned is "on its territory, clearly within its jurisdiction" (para 68) and not, therefore, the exercise of the state's jurisdiction abroad. There is, on the face of it, nothing in Bankovic which gives the least support to the appellants' arguments."
In this court we are of course bound by that analysis.
"It is important therefore to recognise that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting state. For the purposes of the extra-territorial effects of section 6 of the 1998 Act, the key question was whether a public authority - in this case the Army in Iraq - was within Parliament's legislative grasp when acting outside the UK. By contrast, for the purposes of deciding whether the Convention applies outside the territory of the UK, the key question is whether the deceased were linked to the UK when they were killed. However reprehensible, however contrary to any common understanding of respect for "human rights", the alleged conduct of the British forces might have been, it had no legal consequences under the Convention, unless there was that link and the deceased were within the jurisdiction of the UK at the time. For, only then would the UK have owed them any obligation in international law to secure their rights under article 2 of the Convention and only then would their relatives have had any rights under the 1998 Act."
Lord Rodger had of course already expressed the view that for the purposes of the extra-territorial effects of section 6 of the HRA, the army was within the legislative grasp of Parliament when acting outside the UK. In our judgment, he was not dealing in  with the scope of the HRA, but with the question whether a soldier serving in Iraq is within the jurisdiction of the UK under article 1 of the Convention. Lord Rodger identified the relevant question as being whether the person who is alleged to be a victim was "linked to the UK" when he died (or at some other relevant time). As we read that passage Lord Rodger was saying that if there was a sufficient link then the deceased was within the jurisdiction of the UK within the meaning of article 1 of the Convention. On the facts of Al-Skeini it was only Daoud Mousa who had the necessary link. It is, we think, important to note that both Baroness Hale and Lord Carswell agreed with Lord Rodger at  and  respectively.
"authorised agents of a State (including diplomatic or consular agents and armed forces) not only remain under its jurisdiction when abroad but bring other persons or property 'within the jurisdiction' of that State, to the extent that they exercise authority over such persons or property."
That is a quotation from Cyprus v Turkey (Application No 6780/74; 6950/75, BAILII:  ECHR 3). For present purposes we refer to it only for the support it gives to the conclusion that no distinction is to be drawn between diplomatic or consular agents on the one hand, which are expressly within the exceptional cases identified in Bankovic, and members of the armed forces on the other. See also W v Ireland Application No 9360/81, 32 DR 190, BAILII:  ECHR 17.
"through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory]."
At any rate during part of the time that the British army has been in Iraq, it appears to us that the army has, through the consent of the government of Iraq, been exercising some of the powers normally to be exercised by the government of Iraq, namely that of the army and security forces.
"(1) The lawfulness of military action has no immediate bearing on the risk of fatalities. Indeed, a flagrantly unlawful surprise attack such, for instance, as that which the Japanese made on the US fleet at Pearl Harbour, is likely to minimise the risk to the aggressor. In this case, as Mr Sumption QC for the respondents pointed out, Fusilier Gentle died after Security Council Resolution 1546 had legitimated British military action in Iraq, so that such action was not by then unlawful even if it had earlier been so.
(2) The draftsmen of the European Convention cannot, in my opinion, have envisaged that it could provide a suitable framework or machinery for resolving questions about the resort to war. They will have been vividly aware of the United Nations Charter, adopted not many years earlier, and will have recognised it as the instrument, operating as between states, which provided the relevant code and means of enforcement in that regard, as compared with an instrument devoted to the protection of individual human rights. It must (further) have been obvious that an enquiry such as the appellants claim would be drawn into consideration of issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This is not to say that if the appellants have a legal right the courts cannot decide it. The respondents accept that if the appellants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude. They do, however, say, in my view rightly, that in deciding whether a right exists it is relevant to consider what exercise of the right would entail. Thus the restraint traditionally shown by the courts in ruling on what has been called high policy – peace and war, the making of treaties, the conduct of foreign relations – does tend to militate against the existence of the right: R v Jones (Margaret)  UKHL 16,  1 AC 136, paras 30, 65-67. This consideration is fortified by the reflection that war is very often made by several states acting as allies: but a litigant would be required to exhaust his domestic remedies before national courts in which judgments would be made about the conduct of states not before the court, and even if the matter were to reach the European Court of Human Rights there could be no review of the conduct of non-member states who might nonetheless be covered by any decision.
(3) The obligation of member states under article 1 of the Convention is to secure "to everyone within their jurisdiction" the rights and freedoms in the Convention. Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the respondents they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted (R (Al-Skeini) v Secretary of State for Defence (The Redress Trust Intervening)  UKHL 26,  1 AC 153, paras 79, 129). The appellants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom (1989) 11 EHRR 439, by stressing that their complaint relates to the decision-making process (or lack of it) which occurred here, even though the ill-effects were felt abroad. There is, I think, an obvious distinction between the present case and Soering, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection: that the appellants' argument, necessary to meet the objection of extra-territoriality, highlights the remoteness of their complaints from the true purview of article 2."
"Nor have I much difficulty with the proposition that these soldiers were within the jurisdiction of the United Kingdom when they met their deaths. If Mr Baha Mousa, detained in a military detention facility in Basra, was within the jurisdiction, then a soldier serving under the command and control of his superiors must also be within the jurisdiction: see R (Al-Skeini) … The United Kingdom is in a better position to secure to him all his Convention rights, modified as their content is by the exigencies of military service, than it is to secure those rights to its detainees."
She then said at  that, agreeing with everyone in the result and in substantial agreement with the reasoning of Lord Bingham, Lord Hoffmann and Lord Hope, she would dismiss the appeal.
" Having reached these conclusions, I do not need to discuss the question whether the occurrence of the fatal incidents took place within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention, although on the authority of the views expressed in R (Al-Skeini) … that appears questionable. Nor will the appellants get any further by seeking to bring the matter within the jurisdiction by claiming that the decision to go to war was made in the United Kingdom. For the reasons set out in paragraph 8 of Lord Bingham's opinion, I consider that the Strasbourg authorities do not support such an argument and that the presentation of such an argument highlights the remoteness of their complaints from the true purview of article 2."
"So many of your Lordships' speeches have so amply demonstrated all of this that I propose to content myself merely with a general concurrence in everything already said. I too would dismiss the appeal."
Lord Brown cannot have considered the jurisdiction issue to be of any real significance because, if he had, he would surely not have expressed himself in that way, given that there was some difference of view between other members of the appellate committee.
The article 2 question
"The Secretary of State agrees that he will not submit to the new coroner in the fresh inquest that the scope of that inquest is restricted in any way by any decision by him on the applicability (or not) of the enhanced art 2 investigation obligation".
We understand that to mean that the Secretary of State will not contend that either the scope of the investigation or the nature of the verdict should be less broad than is appropriate if the inquest itself must satisfy the UK's obligation to investigate Private Smith's death under article 2 of the Convention.
"The [ECtHR] has repeatedly interpreted article 2 … as imposing on member states substantive obligations not to take life without justification and also to establish a framework of law, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life."
Lord Bingham added at  of Gentle that it was not suggested that later cases made that statement in any way inaccurate. The House summarised the procedural obligation at  of Middleton as follows, again omitting the references:
"The European court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective investigation by an independent official body into any death occurring in circumstances in which it appears that one of the foregoing substantive obligations has or may have been, violated, and it appears that agents of the state are, or may be, in some way implicated."
 Two considerations fortify confidence in the correctness of this conclusion. First, a verdict of an inquest jury (other than an open verdict, sometimes unavoidable) which does not express the jury's conclusion on a major issue canvassed in the evidence at the inquest cannot satisfy or meet the expectations of the deceased's family or next-of-kin. Yet they, like the deceased, may be victims. They have been held to have legitimate interests in the conduct of the investigation (Jordan, paragraph 109), which is why they must be accorded an appropriate level of participation (see also R (Amin) v Secretary of State for the Home Department, supra). An uninformative jury verdict will be unlikely to meet what the House in Amin, paragraph 31, held to be one of the purposes of an article 2 investigation:
"… 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 second consideration is that while the use of lethal force by agents of the state must always be a matter of the greatest seriousness, a systemic failure to protect human life may call for an investigation which may be no less important and perhaps even more complex: see Amin, paragraphs 21, 41, 50 and 62. It would not promote the objects of the Convention if domestic law were to distinguish between cases where an agent of the state may have used lethal force without justification and cases in which a defective system operated by the state may have failed to afford adequate protection to human life."
Paragraph 19 is important in a case of this kind, where, as we understand it (and as indicated above), one of the questions is whether Private Smith's death was caused by a defective system operated by the state to afford adequate protection to human life by ensuring, so far as reasonably practicable, that he was an appropriate person, with proper training and equipment, to expose to the extreme heat of Iraq.
" The European Court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public enquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case."
We return below to the relevance, in a case of this kind, of the fact that the claimant is able to (and is in fact) pursuing civil proceedings against the army.
"Thus emphasis was laid on the function of an inquest as a fact-finding inquiry (page 23, conclusion (1)). Following R v Walthamstow Coroner, Ex p Rubenstein (19 February 1982, unreported), R v HM Coroner for Birmingham, Ex p Secretary of State for the Home Department (1990) 155 JP 107 and R v HM Coroner for Western District of East Sussex, Ex p Homberg (1994) 158 JP 357, the Court of Appeal interpreted "how" in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules narrowly as meaning "by what means" and not "in what broad circumstances" (page 24, conclusion (2)). It was not the function of a coroner or an inquest jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame (page 24, conclusion (3)). Attention was drawn to the potential unfairness if questions of criminal or civil liability were to be determined in proceedings lacking important procedural protections (page 24, conclusion (4)). A verdict could properly incorporate a brief, neutral, factual statement, but should express no judgment or opinion, and it was not for the jury to prepare detailed factual statements (page 24, conclusion (6)). It was acceptable for a jury to find, on appropriate facts, that self-neglect aggravated or contributed to the primary cause of death, but use of the expression "lack of care" was discouraged and a traditional definition of "neglect" was adopted (pages 24-25, conclusions (7), (8) and (9)). Where it was found that the deceased had taken his own life, that was the appropriate verdict, and only in the most extreme circumstances (going well beyond ordinary negligence) could neglect be properly found to have contributed to that cause of death (pages 25-26, conclusion (11)). Reference to neglect or self-neglect should not be made in a verdict unless there was a clear and direct causal connection between the conduct so described and the cause of death (page 26, conclusion (12)). It was for the coroner alone to make reports with a view to preventing the recurrence of a fatality (page 26, conclusion (13)). Emphasis was laid on the duty of the coroner to conduct a full, fair and fearless investigation, and on his authority as a judicial officer (page 26, conclusion (14))."
"Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell."
The House concluded at  that it is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention.
" … This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.
 The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of "how" in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular "neglect" or "carelessness" and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in paragraph 45 below ("The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so") embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42."
"It is the duty of the coroner … to ensure that the relevant facts are fully, fairly and fearlessly investigated. … He must ensure that the relevant facts are exposed to public scrutiny … He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry."
At  Baroness Hale stressed the width of the inquiry in such an inquest, although she did add that the Convention values are also some guide to what facts are in the public interest to investigate. Lord Mance essentially agreed with Baroness Hale: see eg  to . Although Lord Mance suggested that at  Lord Rodger took the same view, we are not sure that that is quite right. Lord Rodger did however say at  that the scope of the inquiry, as opposed to the verdict, is a matter for the coroner.
"My noble and learned friends, Baroness Hale of Richmond and Lord Mance, whilst accepting all this, would nevertheless dismiss the Commissioner's appeal and so leave in force the Divisional Court's order that the inquest into Troy Hurst's death be re-opened (or require at least that the Coroner re-take the decision whether or not to re-open it), on the basis that even a Jamieson inquest would be likely, although of course at the Coroner's discretion, to "examine the conduct of the police and the housing authority that fateful day if not before" (para 22 of Lady Hale's opinion). Given, however, as both Lady Hale and Lord Mance in terms accept, that, upon the conclusion of such an inquest, the jury would be debarred from expressing any views whatever upon the conduct which they had been examining (the whole point of a Middleton inquest being, as I have explained above, to enable the jury to state their conclusions on the important underlying issues such as what risks should have been recognised and what precautions taken) the value of such an inquest may be doubted. It might, indeed, be thought the worst of all worlds. Lady Hale and Lord Mance expressly acknowledge that it would not satisfy the UK's international obligations under article 2 of the Convention. Nor would it satisfy the respondent's understandable desire for detailed findings to be made upon the circumstances leading to her son's death. At best it could occasion a report from the Coroner to a responsible authority under Rule 43 (see para 74 of Lord Mance's opinion). Small wonder that such an inquest was not one for which Mr Starmer has ever contended."
"[Simon Brown LJ] said that it was for the individual coroner to recognise and resolve the tension existing between section 11(5)(b) of the 1998 Act (and rule 36) on the one hand and section 8(3) on the other. The inquiry, he said, was almost bound to stretch more widely than strictly required for the purposes of a verdict, although how much more widely was a matter for the coroner. In Dallaglio Sir Thomas Bingham agreed with Simon Brown LJ's reasoning and at page 164 emphasised again the need for a full, fair and fearless investigation but observed that it was for the coroner to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of the investigation."
In Takoushis this court concluded that the coroner had not carried out a sufficiently full inquiry of the kind contemplated in Jamieson and Dallaglio because he had not sufficiently enquired into the system at the hospital: see  to . It was for that reason that the verdict was quashed.
i) Where a person is in good health when detained and is killed (or found to be injured on release) it is incumbent on the state to provide a plausible explanation of what occurred.
ii) There must be an effective official investigation, which must ensure the accountability of state agents or bodies, and, although the form of the investigation may depend upon the circumstances, whatever mode is chosen, the state must act of its own motion and the investigation must be effective in the sense that it is capable of leading to a determination of whether any force used was or was not justified in the circumstances and to the identification and punishment of those responsible.
iii) There must be an appropriate element of public scrutiny and the next of kin must be involved in the process.
iv) In short, the investigation must be independent, effective and reasonably prompt.
"Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom … Calvelli and Ciglio, cited above, § 49)."
Powell is reported at (2000) 30 EHRR CD 362 and Calvelli and Ciglio v Italy is reported in Reports of Judgments and Decisions 2002-I, page 1.
" It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2 as identified by the European Court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability.
 The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might not be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act by giving a wider meaning to "how" as envisaged in Middleton, and provided that it carries out the kind of full and fair investigation which is discussed earlier in this judgment and which (we hope) will now take place, in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective. Moreover, the family will be able to take a full part.
 In these circumstances, while article 2 is engaged in the sense described above, the present system including the inquest does not fall short of its requirements in any way. On the contrary it complies with it."
We see no reason to depart from those principles.
" That argument is mistaken. Whenever a prisoner kills himself, it is at least possible that the prison authorities, who are responsible for the prisoner, have failed, either in their obligation to take general measures to diminish the opportunities for prisoners to harm themselves, or in their operational obligation to try to prevent the particular prisoner from committing suicide. Given the closed nature of the prison world, without an independent investigation you might never know. So there must be an investigation of that kind to find out whether something did indeed go wrong. In this respect a suicide is like any other violent death in custody. In affirming the need for an effective form of investigation in a case involving the suicide of a man in police custody, the European Court held that such an investigation should be held "when a resort to force has resulted in a person's death": Akdogdu v Turkey, para 52."
"In common, I understand, with all of your Lordships, I would reject the Secretary of State's submission that an article 2 investigation is only required where the State is in arguable breach of its substantive article 2 duty to protect life, in the sense that it ought arguably to have known of a real and immediate risk of a prisoner committing suicide and failed to take out reasonable preventive measures. While it is dangerous to generalise and I confine myself for the present to circumstances such as those of the present case, I agree that the relationship between the State and prisoners is such that the State is bound to conduct an article 2 compliant inquiry whenever its system for preventing suicide fails and as a result the prisoner suffers injuries in circumstances of near-suicide significantly affecting his or her ability to know, investigate, assess and/or take action by him or herself in relation to what has happened."
"Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable …"
"These passages show that a State is under an obligation to adopt appropriate (general) measures for protecting the lives of patients in hospitals. This will involve, for example, ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of working are put in place. If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of article 2. The European Court put the point quite shortly in Powell v United Kingdom 30 EHRR CD362, 364:
"The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage [the State's] responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life."
See also Dodov v Bulgaria, 17 January 2008, para 82."
"The fact that Mrs Savage was not only a patient, but a detained patient, is also relevant to the authorities' obligations under article 2. Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary. Plainly, patients, who have been detained because their health or safety demands that they should receive treatment in the hospital, are vulnerable. They are vulnerable not only by reason of their illness which may affect their ability to look after themselves, but also because they are under the control of the hospital authorities. Like anyone else in detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution. Mutatis mutandis, the principles in the case law which the European Court has developed for prisoners and administrative detainees must apply to patients who are detained. As explained in Herczegfalvy v Austria (1992) 15 EHRR 437, 484, para 82:
"The Court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with."
The hospital authorities are accordingly responsible for the health and well-being of their detained patients. Their obligations under article 2 include an obligation to protect those patients from self-harm and suicide. Indeed, as explained at para 28 above, the very fact that patients are detained carries with it a risk of suicide against which the hospital authorities must take general precautions: Tanribilir v Turkey (application no 21422/93) 16 November 2000, para 74, and Akdogdu v Turkey (application no 46747/99) 18 October 2005, para 47."