Regina v. Secretary of State for the Home Department (Respondent) ex parte Amin (FC) (Appellant)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Secretary of State for the Home Department (Respondent) ex parte Amin (FC) (Appellant)
THURSDAY 16 OCTOBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Slynn of Hadley
Lord Hope of Craighead
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Respondent) ex parte Amin (FC)
 UKHL 51
LORD BINGHAM OF CORNHILL
The Home Secretary appealed against this decision. In a judgment of the court (Lord Woolf CJ, Laws and Dyson LJJ) the appeal was allowed and the judge's order set aside:  EWCA Civ 390;  QB 581. The appellant challenges the ruling of the Court of Appeal and seeks to restore the judge's order.
This duty was recognised by Hale (History of the Pleas of the Crown, 1736, volume II, page 57) and Blackstone (Commentaries on the Laws of England, vol 4, Of Public Wrongs, 1769, page 271). It found expression in section 11 of the Gaols etc (England) Act 1823, section 48 of the Prisons Act 1865, section 56 of the General Prisons (Ireland) Act 1877, section 53 of the Prisons (Scotland) Act 1877, section 3 of the Coroners Act 1887, section 13(2)(b) of the Coroners (Amendment) Act 1926 and section 8 of the Administration of Justice (Emergency Provisions) (Northern Ireland) Act 1939. These statutes are not to identical effect. But in all of them deaths in prison are singled out as cases calling for inquiry. All of them require the inquiry to be conducted by an independent judicial officer (in England, Wales, Ireland and Northern Ireland, a coroner, in Scotland, a sheriff or sheriff substitute). Most of them expressly require the inquiry to be before a jury, and some (the Acts of 1823 and 1865 and the Irish Act of 1877) provide that no inmate or officer of the prison where the death occurred shall be a juror. In some it is provided that, if practicable, "sufficient time shall be allowed before the holding of the inquest to allow the attendance of the nearest relative of the deceased" (the Irish Act of 1877) or that "sufficient time shall intervene between the day of the death and the day of the holding the inquiry, to allow the attendance of the next of kin of the deceased" (the Scottish Act of 1877).
The provisions of article 2(2), relating to the use of necessary force in defence against unlawful violence, to effect an arrest or prevent an escape from lawful detention or to quell a riot or insurrection, have no bearing on this appeal. Article 2(1) has been repeatedly described as "one of the most fundamental provisions in the Convention": McCann v United Kingdom (1995) 21 EHRR 97, para 147; Salman v Turkey (2000) 34 EHRR 425, para 97; Jordan v United Kingdom (2001) 37 EHRR 52, para 102. The European Court has made plain that its approach to the interpretation of article 2 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions to be interpreted and applied so as to make its safeguards practical and effective: McCann, para 146; Salman, para 97; Jordan, para 102.
But the scope of article 2(1) goes beyond the primary purposes thus defined, as the Commission explained in paragraph 193 (page 140) of its opinion in the report of McCann:
(1) It is established by McCann, paragraph 161, Yasa v Turkey (1998) 28 EHRR 408, paragraph 98, Salman, paragraph 104 and Jordan, paragraph 105 that (as it was put in McCann):
(2) Where agents of the state have used lethal force against an individual the facts relating to the killing and its motivation are likely to be largely, if not wholly, within the knowledge of the state, and it is essential both for the relatives and for public confidence in the administration of justice and in the state's adherence to the principles of the rule of law that a killing by the state be subject to some form of open and objective oversight: paragraph 192 of the opinion of the Commission in McCann, set out at pages 139-140.
(3) As it was put in Salman, paragraph 99,
Where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred: Salman, paragraph 100; Jordan, paragraph 103.
(4) The obligation to ensure that there is some form of effective official investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by an agent of the state: Salman, paragraph 105.
(5) The essential purpose of the investigation was defined by the Court in Jordan, paragraph 105:
(6) The investigation must be effective in the sense that (Jordan, paragraph 107)
(7) For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, paragraph 106)
(8) While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, paragraph 121), there must (Jordan, paragraph 109)
(9) "In all cases", as the Court stipulated in Jordan, paragraph 109:
(10) The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, paragraph 143. But it is "indispensable" (Jordan, paragraph 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force.
The judge's decision
From the recent case law Jackson J derived five propositions of which the fourth was:
The judge concluded on the facts that there had not been an effective official investigation into the death of the deceased and held that there should be an independent investigation, to be held in public, at which the family should be represented.
He accordingly made the declaration quoted in paragraph 15 above. Neither Jackson J nor Hooper J had the benefit of the Court's judgment in Edwards v United Kingdom (2002) 35 EHRR 487.
The Court of Appeal decision
After addressing other matters not now relevant, the court considered the scope of the duty to investigate and said, in paragraph 45:
The court then considered the relevant cases, citing passages from the decisions in Jordan, Wright and Edwards and expressed clear conclusions in paragraphs 60-63:
The Court of Appeal accepted the submission, made on behalf of the Home Secretary, that the judge should have held, on the facts of the case, that the procedural obligation of the United Kingdom had been discharged.
Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self-harm: Reeves v Commissioner of Police of the Metropolis  1 AC 360. Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm.
LORD SLYNN OF HADLEY
(McCann v United Kingdom (1995) 21 EHRR 97, para 193.)
(Jordan v United Kingdom (2001) 37 EHRR 52, para 105.) See also Edwards v United Kingdom (2002) 35 EHRR 487.
The Court of Appeal plainly thought that in the case of acts by state agents causing death in custody there is a more exacting and rigorous duty to investigate than in cases of negligent omissions leading to death in custody. That cases in the former category may be a greater affront to the public conscience than cases in the latter category can readily be accepted. But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. The European Court of Human Rights has interpreted article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases. And in the decision in Edwards the European Court of Human Rights applied the same minimum standards to a case of omissions as it had previously applied in Jordan v United Kingdom (2001) 37 EHRR 52 to acts by state agents. The distinction drawn by the Court of Appeal infected its analysis of the Strasbourg decisions. Relying on this distinction the Court of Appeal in effect departed from the requirements as explained in Edwards. Given the crucial public importance of investigating all deaths in custody properly, I consider that full effect must be given to the Strasbourg jurisprudence. I prefer the decisions of Jackson J R (Wright) v Secretary of State for the Home Department  UKHRR 1399 and Hooper J in the instant case to the judgment of the Court of Appeal.
This observation is apposite to the assumption that, although there has not been an adequate enquiry, it may be refused because nothing useful is likely to turn up. That judgment cannot fairly be made until there has been an enquiry.
LORD HOPE OF CRAIGHEAD
The circumstances which have resulted in the death of a prisoner while he is in custody are capable of being given the widest exposure by this system, which is conducted in the public interest by the public prosecutor. The fact that it involves a public hearing in which the prisoner's next of kin are entitled to participate provides an ample opportunity for the circumstances to be subjected to public scrutiny, and the sheriff's determination is an effective vehicle for ensuring that those whom the evidence shows are responsible for deaths occurring under their responsibility are made accountable.