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Cite as: (2007) 45 EHRR SE2, 45 EHRR SE2, [2007] ECHR 177, [2008] Prison LR 300
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
21387/05
by Stephen John BANKS and Others
against the United
Kingdom
The European Court of Human Rights (Fourth Section), sitting on 6 February 2007 as a Chamber composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 10 June 2005,
Having deliberated, decides as follows:
THE FACTS
The applicants are listed as:
The application was presented before the Court by Mr D. M Machover, a solicitor practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows. They relate to assaults and ill-treatment inflicted on prisoners in HM Prison Wormwood Scrubs during the 1990s.
1. Individual cases
On 14 September 2001, the three officers were convicted of assault and sentenced variously to three and a half, four and four and a half years’ imprisonment. Their appeals were rejected on 19 March 2002.
The applicant brought civil claims against the Home Office. These were not defended in light of the criminal conviction.
On 23 January 2003, a consent order issued by which the applicant accepted GBP 42,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
The applicant brought civil proceedings which the Home Office did not contest.
On 7 January 2004, a consent order issued by which the applicant accepted GBP 100,500 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
No officers were charged with criminal offences.
Following a trial in the Crown Court, in March 2001, four officers were acquitted of assault charges in that respect.
The applicant brought civil proceedings which the Home Office did not contest.
On 13 May 2003, a consent order issued by which the applicant accepted GBP 28,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
The applicant brought civil proceedings which the Home Office did not contest.
On 18 March 2003, a consent order issued by which the applicant accepted GBP 22,000 in full and final settlement of all his claims.
The applicant brought civil proceedings which the Home Office did not contest.
On 16 July 2003, a consent order issued by which the applicant accepted GBP 41,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
Criminal charges brought against one or more prison officers were discontinued on the first day of trial.
The applicant brought civil proceedings which the Home Office did not contest.
On 16 July 2003, a consent order issued by which the applicant accepted GBP 32,500 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
No civil claim was pursued due to evidential difficulties.
Criminal charges brought against prison officers were discontinued before going to trial.
The applicant brought civil proceedings which the Home Office did not contest.
On 19 December 2003, a consent order issued by which the applicant accepted GBP 55,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
On 9 September 2004, a consent order issued by which the applicant accepted GBP 14,425 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
No officers were charged with criminal offences.
At 5 p.m., on 4 December 1994, he was allegedly found hanging from a piece of torn sheet in his cell by officers Goodall and McIntyre. Resuscitation attempts apparently revived a heart beat and pulse. He was taken to Hammersmith Hospital where, on 7 December 1994, ventilation was discontinued due to imminent brain stem death and shortly afterwards he was pronounced dead.
At an inquest held in May 1995, a jury returned an “open” verdict.
On 22 May 1999, the applicant’s solicitors requested the police to open a murder inquiry. By letter of 21 May 1999, the Metropolitan Police replied that while there was no evidence known to them to raise a true suspicion that John Boyle had been murdered, a review of the initial police investigation would be carried out. By letter dated 20 July 1999, the Detective Superintendent reviewing the case stated that there was still no evidence that the death was suspicious but that as he was not satisfied that the initial investigation met the required standard he had tasked further work to be done e.g. further witness statements and consultation of a medical expert. A further letter dated 19 December 1999 stated that the persons interviewed had not witnessed any violence, or heard any shouts nor had they any knowledge of alleged hangings by prison officers and that the expert evidence to date made no reference to suspicious death or foul play. By letter dated 3 May 2001, which commented on the solicitors’ delay in putting forward their new medical opinion, the Detective Superintendent noted that this opinion added nothing new and indeed confirmed previous reports.
By letter dated 11 February 2004, the applicant’s solicitors drew the attention of the police to the civil judgments obtained in other cases in which there was evidence of death threats and mock hangings. They therefore were calling for a public inquiry into the events at the prison and the systematic abuse of inmates and requested that the case be reviewed in light of the civil cases and the convictions of prison officers in 2001. On 31 January 2005, the Metropolitan Police agreed to review the matter again. The outcome of this review is expected shortly but no further steps are anticipated as likely to result.
2. Domestic procedures as a whole
On 16 March 1998, the applicants’ solicitors presented a dossier to the Chief Inspector of Prisons detailing ill-treatment of six prisoners in Wormwood Scrubs and one prisoner at Pentonville and, inter alia, expressing their view that a statutory inquiry into the allegations be instituted. Their report led to criminal investigations and a series of inquiries.
The applicants’ solicitors came to represent almost a hundred other prisoners who made allegations of assaults by prison officers during this period. Nearly sixty civil claims were later brought against the Home Office by inmates at Wormwood Scrubs.
An internal prison inquiry was launched, headed by Peter Atherton, the head of the Audit Standards Unit of the Prison Service. His inquiry team consisted of 11 persons, eight of whom were permanent members of the Prison Service but independent of the operational line. None had ever served at Wormwood Scrubs.
On 31 March 1998, the first part of the interim report issued. It dealt with the seven prisoners named by the solicitors in their dossier, plus the first applicant who had been added later. It recommended, inter alia, that allegations by five prisoners (including the first and eighth applicants) be referred to the police for investigation of serious criminal offences; that identified staff involved in those incidents be suspended pending the outcome of those proceedings and that any other staff identified during the investigation as being involved be suspended; that in view of the absence of any evidence that there had been internal prison investigations into specific allegations and due to the chaotic state of other investigations as well as concerns about the effectiveness of senior management supervision of the care and control unit, the Director of the Main Prison be suspended from duty while a disciplinary investigation took place. The report also mentioned that the preliminary investigation revealed that thirty other allegations had been made about ill-treatment since 1 January 1997, fourteen of those occurring in the segregation unit and that there could be no assurance that these had been properly followed up at the time. It recommended that confidence-building steps be taken immediately, including the installation of CCTV in the segregation unit and all routes to the unit, particularly those used when prisoners were subject to the use of force; daily visits to the segregation unit by a governor grade; that the unit operate on the basis of open access to other departments and the Board of Visitors; and that accurate records be kept in the segregation unit
On 3 April 1998 the second part of the interim report issued. It referred ten more allegations concerning ill-treatment in the segregation unit, and ten allegations concerning other parts of the prison, to the police for investigation; and it recommended that the Director General review the case for suspension against one more prison officer; and that the prisoner grievance procedures receive an immediate and thorough overhaul. In total, five of the original cases in the solicitors’ dossier were handed over to the police for investigation and two of the cases transmitted to the police for their information. The report finally identified in general terms other aspects relating to prison administration, management and training that could be pursued further.
The Metropolitan Police investigated a number of individual claims of physical violence by prison officers against inmates. They carried out two investigations called Mevagissey I and Mevagissey II. It appears that in 1999 charges were lodged against some twenty seven prison officers in connection with thirteen separate complainants, which resulted in six convictions in July 2000 and August 2001. In another eleven criminal cases, six went to full trial and resulted in acquittals for fifteen officers, in two the judge directed an acquittal of four officers and in three the prosecution offered no evidence, leading to the formal acquittal of seven officers.
On 13 September 2001, the applicants’ solicitors presented a further dossier to the Home Secretary, listing the allegations of ill-treatment by over fifty inmates, including the applicants and John Boyle, and arguing for the necessity of holding a public inquiry.
In April 2002, the Chief Inspector of Prisons issued a report, following an unannounced inspection of Wormwood Scrubs.
“As this report shows, the failure to establish, publicly and independently, what took place at Scrubs during the 1990s has severely hampered attempts to change the culture and regime there, or to establish whether there were underlying systemic problems which may need addressing in this, and other, prisons. For that reason, many of those involved in Scrubs, from the Board of Visitors to the POA, have supported the call for a public inquiry. I would like to stress that this inspection, thorough though it is, is no substitute for that: it is a snapshot of the prison as we found it in December 2001. This Inspectorate does not of itself have the powers or the mandate to investigate past events... Prisons are closed environments and it is vital that an independent and external spotlight is directed on them when something appears to have gone seriously wrong.”
The applicants’ solicitor renewed their request for an inquiry by letter of 28 April 2003 to the Home Office, pointing out that there was no risk of prejudicing the criminal investigations, which had apparently come to an end. They threatened judicial review proceedings to require him to hold a public inquiry.
On 30 May 2003, the Home Office replied that the Crown Prosecution Service was still considering possible prosecutions and that it would not be right to hold an inquiry. By letter dated 9 December 2003, it was stated that the Home Secretary would review the matter whenever the civil proceedings had finished, it appearing that there would now be no further criminal proceedings.
Following conclusion of the civil proceedings in which all claims were settled, the solicitors wrote to the Home Office on 6 September 2004 reiterating the need for a public inquiry.
In proceedings in the House of Commons on 15 November 2004, in answer to a question about Wormwood Scrubs and a possible public inquiry, the Home Office reply referred to the visit by the Chief Inspector of Prisons in November 2003 in respect of which it had been found that “it was a greatly improved prison, gradually implementing and consolidating fundamental changes”. Most noticeable of all was the “change in attitude and approach of Prison Officers”.
By letter of 14 December 2004, the Home Secretary stated that he was not convinced that a public inquiry would be in the public interest or serve any useful purpose in improving the effective operation of the Prison Service, taking into account the disciplinary actions taken, the criminal investigations which had led to prosecutions and convictions, the civil claims which had been settled and the wider actions taken in the Prison Service. While the incidents had been wholly unacceptable, he concluded that those incidents and the systems which allowed them to occur had now been properly and fully investigated, lessons had been learned and effective action taken to address those failings. In respect of the death of John Boyle, he noted that the case had been subject of a criminal investigation, an inquest and a further review by the Metropolitan police. Taking into account also the lapse of time, he considered that it would not be in the public interest to hold a public inquiry into that case.
On 20 December 2004, the Treasury Solicitor provided the applicants’ solicitors with a copy of the full Atherton Report, noting that a redacted version had been available during the civil proceedings. He declined to make available any copies of other reports. The applicants state that three other internal inquiries (referred to as the Hind, Clark and Quinn inquiries) had been conducted.
COMPLAINTS
The first to ninth applicants complained under Article 3 that there has been a failure to provide an adequate investigation into their allegations of torture and ill-treatment. They considered that the only means of ensuring compliance with the procedural obligation was for the authorities to hold an independent public inquiry, to establish the factual background, the full nature and extent of the culture of violence at Wormwood Scrubs in the 1990s, how this took root and prospered and the extent to which it continues and establishing responsibility for the above. They submitted that the internal inquiry was neither independent nor public and that it did not involve the victims or their families; and that the police investigations and CPS were focussed on considering whether there was sufficient evidence to prosecute individuals and could not look at the more systemic issues.
The tenth applicant alleged a violation of Article 2 of the Convention, also as regarded the procedural aspect.
The applicants also alleged a breach of their right to an effective remedy under Article 13 of the Convention as the domestic courts could not review complaints about the inadequacy of investigations into deaths or inhuman and degrading treatment carried out before 2 October 2000.
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
For the same reason, the tenth applicant invoked, in respect of the death of his brother Article 2 of the Convention, which provides as relevant:
“1. Everyone’s right to life shall be protected by law. ...”
Procedural obligations have been implied in varying contexts under the Convention, where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory but practical and effective. Such obligations requiring an effective investigation into allegations of unlawful use of force and serious ill-treatment have been interpreted as arising under Articles 2 and 3 of the Convention respectively (see, amongst many authorities, concerning Article 2, McKerr v. the United Kingdom, no. 28883/95, §§ 108-115, ECHR 2001 III and Avşar v. Turkey, no. 25657/94, §§ 393-395, ECHR 2001 VII (extracts); and concerning Article 3, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 VIII, §§ 102-106 and Boicenco v. Moldova, no. 41088/05, 11 July 2006, §§ 20-123).
The Court would emphasise that these obligations are not identical (İlhan v. Turkey [GC], no. 22277/93, §§ 89-93, ECHR 2000 VII), either in content or as regards their applicability. In the context of Article 2 of the Convention, the obligation to conduct an effective investigation into allegations of the unlawful use of force attracts particular stringency in situations where the victim is deceased and the only persons with knowledge of the circumstances are officers of the State. It is important, with a view to ensuring respect for the rule of law and confidence of the public, that the facts, and any unlawfulness, are properly and swiftly established. In the context of Article 3, where the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred, there is a different emphasis and, as stated in the above-cited İlhan case (see § 92), since Article 13 of the Convention requires an effective remedy to be provided for arguable breaches of Article 3, it will not always be necessary, or appropriate, to examine the procedural complaints under the latter provision. The procedural limb of Article 3 principally comes into play where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 178, 24 February 2005 İlhan v. Turkey [GC], cited above, §§ 89- 92).
In the present case, the Court observes that the applicants do not raise any substantive complaints of ill-treatment under Article 3 of the Convention. If they had, issues would have arisen as to whether they could still claim to be victims or had in fact exhausted domestic remedies since six applicants settled the civil claims which they had brought alleging assault by prison officers and systemic negligence on the part of the prison service, while the other two did not bring any such proceedings (see, mutatis mutandis, Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 I; Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000 XI). Further, while the applicants raise complaints as to whether the investigations into their allegations complied with the standard required by the procedural obligation, this is not a case where there was a lack of any investigation capable of establishing the facts and attributing responsibility (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 VIII, §§ 99-106).
While it is true that, amongst the applicants in this case, it was only in respect of the first applicant’s allegations that the prosecutions resulted in convictions (the prosecutions brought in respect of the third and sixth applicants’ allegations did not lead to any conviction and no prosecutions were brought concerning the other applicants), the Court would note that the applicants’ arguments in favour of a public inquiry are not particularly geared towards finding evidence for further prosecutions of individual officers but focus rather on identifying the root causes of the culture of abuse that existed and the means to ensure their eradication. To the extent that they were in fact asserting that there had been a failure to provide effective criminal investigations and prosecutions, it would also be arguable that the complaints are out of time as they should have been introduced within six months of the date when it became apparent that no further criminal procedures would ensue (namely, after the letter dated 9 December 2003 from the Home Office informed the applicants’ solicitors of this position).
Accordingly, the Court is not persuaded that this is a case in which issues arise under the procedural head of Article 3 of the Convention and would consider that the applicants’ complaints fall rather to be considered under Article 13 of the Convention.
However, even assuming that Article 3 in its procedural aspect was engaged in this case, the Court would make three points.
First, in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility for unlawful acts of violence (McKerr, cited above, § 134 see also Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 V where the ability of the State to enforce the criminal law against those who unlawfully took the life of another was described as decisive when deciding whether the authorities complied with their positive and procedural obligations under Article 2).
Second, where the allegations are not of intentional violence as such but raise issues of negligence, a civil or disciplinary remedy may be sufficient to provide protection under Article 2 (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 I, in which there was no procedural breach where a prosecution for homicide in respect of the death of baby in hospital was time-barred as it was still possible to obtain findings of responsibility or fault by the doctor in civil proceedings; Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002 VIII, where it was sufficient that the applicant had the opportunity of suing the State for negligence in releasing from prison two men who murdered his son; and Vo v. France [GC], no. 53924/00, § 91, ECHR 2004 VIII, where Article 2 was satisfied by the availability of civil proceedings in respect of apparent fault of a doctor and hospital where a pregnant woman lost her child due to a mistaken intervention; see also Öneryıldız v. Turkey [GC], no. 48939/99, § 93, ECHR 2004 XII, which held that where it is established that the negligence attributable to State officials or bodies goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative). Similar considerations would arise under Article 3. The Court would note that the present applicants’ claims in their civil proceedings included allegations of systemic negligence and they could have thus raised any alleged failings in management, administration, training and supervision which could be linked to their ill-treatment. These proceedings were, however, settled.
Thirdly, insofar as the applicants asserted that there were wider issues which were not ventilated in either criminal or civil proceedings and in respect of which a public inquiry was necessary, the Court would emphasise that the procedural element contained in Article 3 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for serious ill-treatment the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known. There is no indication in the present case that the facts have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case as to the background of the assaults and the remedial measures apt to prevent any recurrence in a prison in the future are, in the Court’s opinion, matters for public and political debate which fall outside the scope of Article 3 of the Convention (see mutatis mutandis, Taylor Family and Others v. the United Kingdom, no. 23412/94, Comm. Dec. 30.8.94, D.R. 79 p. 127).
As regards the tenth applicant, whose brother died in prison as a result of a putative suicide by hanging, the Court recalls that there was an inquest in May 1995. This was public and the applicant had the opportunity to attend. The applicant has not pointed to any failure by the Coroner to admit relevant, available evidence or any other shortcoming in the proceedings. That the apparent suicide was, however, puzzling is perhaps reflected in the open verdict given by the jury. Following the inquest, the police responded to concerns by the applicant in reviewing their investigation on two occasions, but to date have not found sufficient evidence to show foul play. The applicant’s principal criticism of their procedures is that a police investigation is carried out only to determine whether any charges of murder or manslaughter should be brought; it does not provide a full investigation into all the circumstances of the death. He thus seeks to argue that a public inquiry is necessary, inter alia, so that the death can be seen against a background of widespread abuse, including threats of death by hanging. It is not however apparent that such an inquiry would be a means of identifying, and bringing to account, the perpetrator(s) of any unlawful violence where the police investigations and inquest have been unable to do so. There is, in the Court’s opinion, no general requirement under Article 2 of the Convention to provide a public inquiry into the general background to a suspicious death, where, as was the case in the current application, the ordinary mechanisms have provided for an adequate scrutiny of the incident itself (see Taylor Family and Others v. the United Kingdom, cited above).
It follows that there has been no failure to comply with any procedural obligation under Articles 2 or 3 of the Convention and that this application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
The Court has above found that the applicants’ complaints under Articles 2 and 3 failed as manifestly ill-founded. On the same basis, the applicants have not shown that they have an “arguable claim” and Article 13 is therefore inapplicable to their case. This part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. Early Josep Casadevall
Registrar President