COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Hon Mr Justice Munby
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE DYSON
| THE QUEEN on the application of D
(by the Official Solicitor his litigation friend)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr David Pannick QC and Mr James Eadie (instructed by the Treasury Solicitor) for the Defendant
Ms Alison Macdonald (instructed by Hickman and Rose) for the Intervener
Hearing date: 16 January 2006
Crown Copyright ©
Sir Anthony Clarke MR:
"The statistics … make grim reading. While the suicide rate among the population as a whole is falling, the rate among prisoners is rising. In the 14 years 1990-2003 there were 947 self-inflicted deaths in prison, 177 of which were of detainees aged 21 or under. Currently, almost two people kill themselves in prison each week. Over a third have been convicted of no offence. One in five is a woman (a proportion far in excess of the female prison population). One in five deaths occurs in a prison hospital or segregation unit. 40% of self-inflicted deaths occur within the first month of custody. It must of course be remembered that many of those in prison are vulnerable, inadequate or mentally disturbed; many have drug problems; and imprisonment is inevitably, for some, a very traumatic experience. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much attention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state's substantive obligations … but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern."
"Assuming that there is no more sinister explanation for the loss of all these documents (and no-one has suggested that there is) the picture is nonetheless profoundly disturbing. It suggests an alarming level of carelessness and incompetence, not merely in a major prison but also in Prison Service Headquarters. The evidence from a civil servant in the Deputy Director General's Directorate of the Prison Service is able to provide no explanation of how this came about save to say that "Ms Draper's report and annexes were stored within the London Area Office on disc only and this disc was inadvertently wiped after Ms Draper left the Office to take up a new post." The fact that a disc containing such seemingly important material could be "inadvertently" wiped by someone other than its author suggests an alarmingly casual and inefficient approach to record keeping which it might be thought is simply not acceptable."
"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 the penalty is provided by law."
It is common ground that article 2 has been construed as providing that in certain circumstances the state has an obligation to carry out an effective investigation of the circumstances in which a person has died.
i) The purposes of the investigation are those stated by Lord Bingham in R (Amin) v Secretary of State for the Home Department  UKHL 51,  1 AC 632, at paragraph 31, namely
"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 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".
ii) The Convention does not adopt a prescriptive approach to the form of the investigation. So long as minimum standards are met, it is for the state to decide the most effective method of investigating: see eg Edwards v United Kingdom (2002) 35 EHRR 487, 511 at paragraph 69 and Amin per Lord Bingham at paragraph 31, Lord Slynn at paragraph 42 and Lord Hope at paragraph 63.
iii) The minimum requirements were stated in Jordan v United Kingdom (2001) EHRR 52 at paragraphs 106-109, Edwards at paragraphs 69-73 and in Amin at paragraph 25. They are these:
a) the authorities must act of their own motion;
b) the investigation must be independent;
c) the investigation must be effective in the sense that it must be conducted in a manner that does not undermine its ability to establish the relevant facts;
d) the investigation must be reasonably prompt;
e) there must be a "sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory; the degree of public scrutiny required may well vary from case to case": see Jordan at paragraph 109 and Edwards at paragraph 73; and
f) there must be involvement of the next of kin "to the extent necessary to safeguard his or her legitimate interests": see Jordan at paragraph 109 and Edwards at paragraph 73.
The decision of the judge
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, if this becomes necessary for the inquiry to be effective, and this power must be capable of being exercised without undue delay.
iii) Subject to i) above, D's representative must be able to attend at public hearings of the inquiry and put questions to witnesses in person.
iv) D's representative must be given reasonable access to all relevant evidence in advance.
v) Adequate funding for D's representative must be made available without inappropriate conditions attached, and the funding must be at such a level as to allow D to be involved in the investigative procedure to the extent necessary to satisfy his legitimate interests.
The proposed inquiry
"In so far as the ad hoc investigation by the PPO is concerned, it is intended that the investigation be conducted along the following lines which will be set out formally in due course. The Secretary of State's Detailed Grounds set out how the PPO investigation will, in combination with other processes available, meet the procedural obligations under articles 2 and 3.
1. It is not intended to hold public meetings. This is in common with normal practice among Ombudsmen and in line with the PPO's existing terms of reference for death in custody investigations. However, the PPO's investigation report will be made public.
2. It is intended that there will be some funding made available by The Secretary of State for legal representation for your client to enable him to assist the PPO's investigation given your clients incapacity and the fact that there are no available next of kin. It is intended that principles will be set out as to the broad areas of work for which payment of costs will be considered, the level of funding which will be considered reasonable and the manner in which requests for funding are to be dealt with.
3. The PPO will have unfettered access to Prison Service information, documents, establishment and individuals. Your client will have available to him the documentation provided in the judicial review which is the totality of the documentation that is currently available in relation to this case. The witness statement to be served in the JR details the documentation that should have been available, that which is available and the attempts made to locate that documentation. Any information obtained by the PPO will also be disclosed to you in advance unless the PPO considers that it would be unlawful, or on balance it would be against the public interest to disclose particular information. The PPO is keen that you should receive as full advance disclosure as possible.
4. The PPO intends to collect evidence formally from all witnesses from the Prison Service and other key witnesses by way of either taped interview or signed statement. It is possible that evidence from other witnesses may be collected informally by way of "informal" i.e. untaped interviews.
5. The PPO would welcome questions for the witnesses from you and wants to engage with your concerns. However there will be no opportunity for cross-examination of witnesses. Statements from witnesses and records of taped interviews will be made available to you. If you feel after consideration of such statements and records that there remain important matters to be covered then the PPO would welcome your views and will consider whether there is a need for further investigation which may include further interviews and statements. As stated above, further details as to the satisfaction of the article 2/3 requirements are set out in the Detailed Grounds.
6. The PPO will have no legal powers to compel witnesses to give evidence but Prison Service staff will be required to offer all reasonable co-operation to the investigation as failure to do so or to act in any way that undermines the investigation's process will be a breach of their conditions of employment. Regarding other witnesses, the PPO generally finds that witnesses co-operate voluntarily with his investigations.
7. The PPO will produce a written report of the investigation which he will send to the Prison Service and yourselves as representatives of the Claimant. The report may include recommendations for the Prison Service and the responses to these recommendations. He will send a draft of the report in advance to the Prison Service and to you on behalf of your client. If you feel after consideration of the draft report that there remains important matters to be covered then again the PPO would welcome your views and will consider whether there is a need for further investigation or changes to the report.
8. The Prison Service will provide the PPO with a response indicating the steps to be taken by it within set timeframes to deal with his recommendations. Where that response has not been included in his report, the PPO may, after consulting the Prison Service as to its suitability, append it to the report at any stage.
9. The PPO will publish the report on the PPO's website (having taken into account any views of the recipients of the proposed published report and the legal position on data protection and privacy laws)."
"(1) Subject to any provision of this Act or of rules under section 41, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct.
(2) In particular, the chairman may take evidence on oath, and for that purpose, may administer oaths.
(3) In making any decision as to the procedure and conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others)."
By section 18, subject to any restrictions imposed by a notice or order under section 19, the chairman must take such steps as he considers reasonable to secure that members of the public are able to attend the inquiry and to obtain or view a record of the evidence and documents provided to the inquiry. By section 19(3)(b) a restriction notice or order must specify only such restrictions as the minister or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest. By section 21 the chairman is given wide powers to require witnesses to attend and documents to be produced. We return to the potential relevance of these provisions to the facts of this case below.
i) As stated in paragraph 9 iii) (e) above, there must be a "sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory; the degree of public scrutiny required may well vary from case to case": see Jordan at paragraph 109 and Edwards at paragraph 73.
ii) There is no requirement that the whole of the inquiry must be conducted in public. Rather (as just stated) there must be a sufficient element of public investigation or its results to secure accountability in practice. The use of the word or is significant. By contrast the judge has required that the investigation and its results must all be in public.
iii) In the present case all the evidence will be made available to D's representatives and the report will be published.
iv) This approach is consistent with the decision of the European Commission on Human Rights in Taylor v United Kingdom, Application no 23412, 30 August 1994 and with the decision of this court, dismissing a judicial review application of the decision not to hold a public inquiry, in Crampton v Secretary of State for Health, unreported, 9 July 1993.
v) The PPO is unwilling to hold a public hearing in this case for the same reason that he does not hold public hearings in death in custody investigations and that ombudsmen in general do not hold public investigations, namely that there are substantial disadvantages in holding such investigations in public. These include the following:
a) there is less formality in private investigations, which means that witnesses are more candid and the evidence can be obtained more speedily and at less cost (see eg the decision of the Divisional Court in R (Persey) v Secretary of State for the Environment  QB 794 per Simon Brown LJ at paragraphs 18-19 and 42-43); and
b) the objectives of increasing public knowledge and confidence are fully met by providing all the evidence to D's representatives, inviting them to suggest questions of witnesses and lines of inquiry, giving them the opportunity of commenting on the draft report and publishing the report.
vi) To require a public inquiry conflicts with (or at least goes further than) the approach identified by the European Court in Jordan and Edwards, which can in any event be distinguished from the facts here in that (for example) in those cases no reasons were advanced for holding the inquiry in private and, without diminishing the seriousness of the facts here, they were of the utmost gravity. In Jordan the deceased died at the hands of state officials and in Edwards after an attack by a fellow prisoner. By contrast, here D did not die and his injuries were the result of self-harm in circumstances in which the complaint concerns negligence in a medical setting, albeit in a prison.
"Whether assessed singly or together, the investigations conducted in this case are much less satisfactory than the long and thorough investigation conducted by independent Queen's Counsel in Edwards's case, but even that was held inadequate to satisfy article 2(1) because it was held in private, with no opportunity for the family to attend save when giving evidence themselves and without the power to obtain all relevant evidence."
"On the facts known to the Secretary of State (including the fact that the inquest would not be resumed), an independent public investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses, must be held to satisfy the obligations imposed by article 2 …"
"it has for a long time been recognised in Scotland that it is in the public interest for a public inquiry to be held into the death of a person who at the time of the death was being held in custody."
"The Government argued that the publication of the report secured the requisite degree of public scrutiny. The court has indicated that publicity of proceedings or the results may satisfy the requirements of article 2, provided that in the circumstances of the case the degree of publicity secures the accountability in practice as well as in theory of the state agents implicated in the events. In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the court considers that the public interest attaching to the issues thrown up by the case was such as to call for the widest public exposure possible …"
Of the Scottish system, Lord Hope added:
"The circumstances which have resulted in the death of a prisoner while he is in custody are capable of being given the widest possible 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 family 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 evidence shows are responsible for deaths occurring under their responsibility are held accountable."
"The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves gave evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel or, for example, through the Inquiry Panel. They had to wait until the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot have been involved in the procedure to the extent necessary to safeguard their interests."
It is to be noted that the Court did not say that the family should have been entitled to cross-examine witnesses themselves, but implied that they might have been permitted to put questions through the panel.
Access to evidence