England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon Mr Justice Munby

[2005] EWHC 728 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/02/2006

Sir Anthony Clarke MR:

Introduction

1. This is the judgment of the court on an appeal from an order of Mr Justice Munby dated 28 April 2005 in which he granted a number of declarations relating to the conduct of an inquiry to be set up by the Home Secretary arising out of the near suicide of a young man we will call D at HMP Pentonville on 27 December 2001. The appeal is brought by the Home Secretary with the permission of the judge. It raises two particular questions as to the procedural requirements of an inquiry set up by the United Kingdom as a state party to the European Convention on Human Rights ('the Convention') pursuant to its obligations under article 2 of the Convention.

The facts

2. This a shocking case but regrettably not unique. Suicides in prison have been a persistent problem for many years. As the judge put it in paragraph 5 of his judgment, the problem of suicide and other forms of self-harm in our prisons is as well-known as it is depressing. He quoted a telling passage from the speech of Lord Bingham in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 at paragraph 5, which is well worth setting out again:

"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."

3. In paragraph 6 the judge gave prison service statistics for 2003 and 2004. In 2003 there were 94 suicides and 16,221 recorded incidents of self-harm, including 204 resuscitations and for the nine months from January to September 2004 the figures were 95, 11,822 and 102 respectively. INQUEST say that according to the National Offender Management Service (or NOMS) in the period between January and July 2005 84 prisoners were successfully resuscitated following an incident of serious self-harm compared with 152 in 2004 and 210 in 2003.
4. We take the underlying facts of D's case from the judgment. D was born on 25 December 1979 so that at the date of his attempted suicide on 27 December 2001 he was just 22 years of age. On the 30 November 2001 he was remanded in custody for, among other things, attempted robbery. He apparently attempted self-harm at court and was taken to hospital, thence to HMP Pentonville. He was accompanied by a form indicating that he was a self-harm/suicide risk. He caused himself harm on 3, 4 and 7 December and on 13 December he was placed on 15 minute documented watch after an apparent suicide attempt. On the morning of 27 December 2001 a broken razor and a noose were discovered in his cell. During a subsequent telephone call he discovered that his daughter had been taken into care by social services. He became very distressed. An entry was made on his form and in the health area observation book that staff should be extra vigilant. At about 3.45 that same afternoon he hanged himself using bed-linen which despite everything had been left in his cell. He was discovered, cut down and revived in time to save his life but too late to save him from suffering permanent and irreversible brain damage. That is why he brings these proceedings by the Official Solicitor as his litigation friend. He suffered brain injury secondary to anoxia and cardiac arrest. Since 4 September 2002 he has been detained under section 3 of the Mental Health Act 1983. He has been diagnosed as suffering from an organic personality disorder arising from a traumatic brain injury. He also has gait and balance difficulties associated with the brain damage.
5. There was an investigation by a senior investigating officer in the prison service, Ms Carole Draper. She reported on 22 July 2002 in a 22 page report which contained 11 recommendations. As the judge put it, so far as it went the Draper report and the investigation leading up to it were, and are accepted on behalf of D to have been, conscientious, thorough and in some respects critical of the prison service. The judge understandably expressed great concern that that some of the most important documentation relating to D seems to have been destroyed or lost by the prison service. The missing documents include annexes 1 to 8 of the Draper Report (including the incident report and transcripts of interviews with the key witnesses), almost all the records of Ms Draper's investigation and D's prison 'core record' and 'inmate medical records'.
6. The judge said this in paragraph 4 of his judgment:

"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."

We agree.

The Convention

7. Article 2 is entitled "Right to life" and provides by article 2.1:

"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 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.

8. There is a considerable amount of jurisprudence, both here and in Strasbourg, as to the circumstances in which the state has such an obligation and, where it does, as to the content of the obligation. The cases have principally concerned either deaths in custody or deaths as a result of medical negligence in hospital. The authorities have drawn an important distinction between the two classes of case: see eg R (Helen Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440 and Oneryildiz v Turkey, 30 November 2004, at paragraphs 91-96 (quoted in part by the judge in paragraph 37 of his judgment).
9. It is common ground that the following principles apply to a case of a death in custody:

i) The purposes of the investigation are those stated by Lord Bingham in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 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.

10. It is we think accepted that, as Mr Pannick put it in his skeleton argument, even the minimum requirements involve a degree of flexibility: see Goodson v HM Coroner for Bedfordshire [2004] EWHC Admin 2931 at paragraph 68.
11. The judge held in paragraph 8 of his judgment that a similar obligation may arise under article 2 when the victim does not die but has sustained "life threatening injuries": see Amin at paragraph 31 referring to Menson v United Kingdom (unreported – 6 May 2003). Indeed, the obligation arises even if the case is one of self-harm: see Amin at paragraph 30, referring to Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. We agree.

The decision of the judge

12. The Home Secretary accepted before the judge and accepts before us that, in combination, (a) the circumstances surrounding the attempted suicide by D, who was known by the prison authorities to be "a real and immediate suicide risk", (b) the seriousness of that incident and its consequences and (c) the existence of issues as to whether more could have been done to deal with the risk, triggered the implicit investigative obligation under article 2. It is right that we should record, as the judge did, that the Home Secretary's acceptance that the investigative obligation was triggered in this case is fact specific and that he does not accept that such an obligation would arise in all cases of self-harm or attempted suicide in custody.
13. As appears from the express terms of his order, the judge declared in paragraphs 1 and 5 that in order to satisfy the requirements of article 2 of the Convention, the Home Secretary must conduct a full and effective investigation into the circumstances of D's attempted suicide and that the investigation must have these procedural elements:

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 appeal

14. In Mr Pannick's skeleton argument he challenges each of those conclusions and submits that the inquiry proposed by the Home Secretary satisfies the United Kingdom's obligations under article 2 of the Convention on the facts of this case. We will say a word about each of those points but it became clear in the course of the oral argument that the real complaint made by the Home Secretary is that the first and third of the judge's points were wrong. Mr Pannick submits that it is not necessary to order a public inquiry or to give D's representatives the right to question witnesses.

The proposed inquiry

15. The Home Secretary accepts that the Draper Investigation and Report did not themselves satisfy the United Kingdom's obligation under articles 2 and 3 because the Draper Report was not published and neither D nor his representatives played any part in it. Further, as the judge said in paragraph 20 of his judgment, there is another fundamentally important reason why the Draper Investigation and Report cannot satisfy the state's obligation, namely that Ms Draper was not "independent".
16. Although the Home Secretary places some reliance on the fact of the Draper Inquiry, he principally relies upon his proposal that the Prisons and Probation Ombudsman ("PPO"), Mr Stephen Shaw, should carry out the inquiry and Mr Shaw has agreed to do so. We should say at once that Mr Shaw is an entirely independent person and is correctly accepted as such on behalf of D. The procedure which Mr Shaw intends to follow is set out in a letter from the Treasury Solicitor to D's solicitors dated 24 January 2005, which was (as we understand it) written on behalf of the Home Secretary and is in these terms:

"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)."

17. As can be seen from the letter, the proposed inquiry is an ad hoc inquiry which is not to be set up under the terms of any particular statute. At the date of the letter the Inquiries Act 2005 ("the 2005 Act") had not yet been enacted. It received the Royal Assent on 7 April 2005 and came into force on 7 June 2005. As we understand it, Mr Shaw has not yet been formally appointed to conduct the inquiry but it is not at present intended that he will be appointed under the 2005 Act. However, by section 15 such an inquiry may be converted into an inquiry under the Act by a notice given by the relevant minister. In that event the provisions of the Act will apply from the date of conversion.
18. Section 17 of the 2005 Act provides:

"(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.

19. The dispute came before the judge in the form of an application for judicial review of the decisions set out in the letter of 24 January 2005. For present purposes, the crucial aspects of the inquiry proposed in the letter are that it is not intended to hold the inquiry in public and that, although the evidence will be made available to D's representatives and they will be permitted to suggest questions to be asked of the witnesses, there will be no opportunity to cross-examine witnesses.

Discussion

20. We turn to the specific aspects of the order made by the judge to which we referred earlier. We take them in the order of importance in this appeal.

Public hearing

21. As indicated in paragraph 13 i) above, the judge stated in his order that 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. In paragraph 48 of his judgment he accepted Mr Nicol's submission that no good reason had been put forward for the inquiry not being held in public and that there was every reason why it should. It appears from paragraph 1 of the particular points set out in the letter of 24 January that one of the factors taken into account in deciding that the inquiry would not be in public was that such an approach is in line with normal practice amongst ombudsmen and in line with the PPO's existing terms of reference for death in custody investigations. The judge recognised that may be so but observed that this is an ad hoc inquiry in which Mr Shaw will not be acting qua PPO and that in the circumstances of this case the Convention required a public inquiry. The mere publication of the report would not be enough, even though it is intended to give those interested an opportunity to comment on its contents.
22. Mr Pannick submits that the Strasbourg jurisprudence does not justify that conclusion. His submissions may be summarised as follows:

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 [2003] 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.

23. We recognise that each case turns on its own facts and that account must be taken of all the investigations set up by the state. Thus in a case in which there is a death in prison, the obligation of the state under article 2 of the Convention may be discharged by an inquest, provided that it is an enhanced inquest of the kind identified by the House of Lords in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, and discussed in Takoushis. Such an inquest would, however, be in public. In such a case, there may also be an investigation by the PPO but there would ordinarily be no need for him to hold his inquiry in public because the requirements of article 2 in this regard would, at any rate in most cases, be satisfied by the inquest.
24. In considering whether the judge erred in principle, it is in our view important to have in mind what the judge meant by directing that the inquiry must be in public. We do not think that he can have meant that the whole process must be in public. No inquiry is ever wholly in public. Thus, for example the police investigate a death and report to the coroner. Their investigation is not in public. Nor is the preliminary process of obtaining evidence, including witness statements in any public inquiry. Examples which spring to mind are the Marchioness inquiry and the Bloody Sunday inquiry, in each of which many statements were taken before any public hearings were held. All depends on the circumstances. We think that the judge must have contemplated simply that Mr Shaw (or whoever conducts the inquiry) would make the evidence and any written submissions public and take oral evidence in public, subject to the proviso which he included in the order to the effect that there might be Convention compatible reasons for not holding the whole investigation in public. It will of course be for the person conducting the inquiry to decide what oral evidence to call and indeed whether he wishes to hear oral submissions.
25. We have reached the conclusion that the authorities, and in particular, Amin, demonstrate that the judge was correct to hold that the investigation into the attempted suicide of D should be in public (in the sense just described) in order to discharge the United Kingdom's obligations under article 2 of the Convention.
26. In Amin a prisoner was murdered by his cellmate. An inquest was opened and adjourned pending a murder trial at which the defendant was convicted. The inquest was not thereafter resumed. There were two subsequent inquiries, one by a Mr Butt and one by the Commission for Racial Equality ("the CRE"). The Butt inquiry was similar to the Draper inquiry. It was conducted by an official of the prison service in private, the report was not published and the family could not play an effective part in it. The CRE inquiry was held in private except on one day when policy issues were discussed. It concentrated on racial issues. Having set out the circumstances of each of the inquiries and indeed of the criminal trial, Lord Bingham expressed his conclusion thus in paragraph 37 of Amin:

"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."

27. In paragraph 38 Lord Bingham said that for the reasons he had given and for the reasons given by Lord Slynn, Lord Steyn and Lord Hope, Hooper J was right to reach the conclusion and make the order he did. We have seen the unreported judgment of Hooper J, [2001] EWHC Admin 719. His judgment was entirely devoted to an analysis of the previous inquiries and investigations, which led him to the conclusion that they did not discharge the United Kingdom's obligations under article 2 of the Convention. He held that in the circumstances the claimant was entitled to a declaration in these terms:

"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 …"

28. As Mr Pannick correctly observes, it appears that there was no argument before Hooper J as to the kind of inquiry that was required, once it was held that the United Kingdom had not to date discharged its obligations under article 2. He submits that the same was true in the House of Lords. There is we think some force in that submission but there can in our view be no doubt that the House did give specific consideration to that question.
29. Lord Bingham expressly approved the approach, not only of Hooper J in Amin, but also of Jackson J in R (Wright) v Secretary of State for the Home Department [2001] UKHRR 1399, where a serving prisoner suffered an asthmatic attack and died. An inquest was held at which the family of the deceased were present but unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment received by the prisoner. It later emerged that the responsible medical officer had been suspended from duty and that he had previously been found guilty of serious professional misconduct. In a civil action against the Home Secretary liability had been admitted, thus (as Lord Bingham put it in paragraph 25 of Amin) precluding forensic examination of the case. Jackson J stated the principles substantially as set out above and held that there was a breach of article 2. He concluded 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 conducted in public, at which the family should be represented. As I read Lord Bingham's speech in Amin, he entirely approved that approach.
30. Lord Slynn added little which was new and agreed with Lord Bingham, as did Lord Hutton. Lord Steyn did the same but also expressly approved the decisions of both Jackson J and Hooper J. Lord Hope's approach seems to me to be of particular significance in this regard. Perhaps naturally, he placed particular reliance upon the system of fatal accident inquiries in Scotland. He said at paragraph 55 that

"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."

31. Lord Hope said in paragraph 60 that there is no doubt that such an inquiry would satisfy article 2 of the Convention and quoted this passage from paragraph 83 of the judgment of the European Court in Edwards:

"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."

32. Lord Hope then rejected the conclusion which had been expressed by the Court of Appeal that an allegation of negligence leading to death in custody bears a different quality from a case where it is said that the prisoners' death resulted (as he put it) from the laying on of hands by the state. He said that failures by the prison service which lead to a prisoner's death by the hands of another prisoner are no less demanding of investigation and "of the widest possible exposure" than lethal acts which state agents have deliberately perpetrated, perhaps more so. In the result Lord Hope concluded at paragraph 65 that, given the fact that none of the previous inquiries discharged the duty of the state under article 2, "the only alternative in these circumstances is for the Secretary of State to order the holding of an independent public inquiry into the circumstances which led to [the prisoner's] death." He added that the conduct and scope of the inquiry should be as close to the Scottish model as possible.
33. In all these circumstances it appears to us to be clear that the House of Lords in Amin gave careful consideration to the kind of inquiry that should be held on the facts of that case in order to satisfy the United Kingdom's obligations under article 2 of the Convention. It reached the conclusion that the answer was a public inquiry at which the family were properly represented.
34. We recognise that each case turns on its own facts and that the facts of this case are not identical to those in Amin. It is true that D did not die but he came close to death and we have reached the conclusion that the facts outlined above require public examination for much the same reasons as given by Lord Hope in Amin. We recognise that there were earlier cases (referred to in paragraph 22 iv) and v) above) in which the court has refused to direct a public inquiry and in which the advantages of holding an inquiry in private have been stressed. There are undoubtedly competing considerations but this is a case of attempted suicide in prison which very nearly succeeded.
35. In all the circumstances we are not persuaded that the considerations identified by Mr Shaw, or indeed the views expressed in some of the earlier cases, lead to the conclusion that there are significant disadvantages in hearing oral evidence in public or indeed in making the written evidence available to the public. We can see no reason why members of the prison service should not be willing to give evidence of what happened and why in public. In any event in our view any such reluctance is not a sufficient reason for holding the inquiry in private. It should be in public for the reasons given by the House of Lords in Amin and by the judge in this case.

Cross-examination

36. As indicated in paragraph 13 iii) above, the judge stated that D's representatives must be able to attend at public hearings of the inquiry and put questions to witnesses in person. The second principal issue between the parties in this appeal is whether the judge was correct to hold that in order to satisfy article 2 the inquiry must afford D's representatives the right to cross-examine witnesses. The judge held that they should have that right, although he did so in the context of the limited role which they would be able to play in the inquiry generally. Mr Nicol submits that the judge was correct to hold that, in order to satisfy the United Kingdom's obligations under article 2, a right to cross-examine must be recognised. He relies in this regard upon the order made by Hooper J and upheld by the House of Lords in Amin.
37. We see the force of that submission but, whereas (as we demonstrated earlier) the House of Lords gave detailed consideration to the question whether the inquiry should be in public, it did not give the same detailed consideration to the question whether there should be a right to cross-examine, even though it did make an order to that effect. Moreover, whereas in the Strasbourg cases, notably Edwards, it was expressly held that a public inquiry should have been held in that case, there is no similar expression of view by the European Court to the effect that cross-examination must be permitted in a death in custody case if article 2 is to be satisfied.
38. The only reference to the possibility of the family asking questions is, so far as we are aware, in paragraph 84 of the judgment in Edwards, where the European Court (having expressed its conclusion in paragraph 83 that an inquiry should have been held in public) said this with reference to an inquiry which had been set up by the prison service, Essex County Council and North Essex Health Authority:

"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.

39. It would be surprising if the European Court had gone further because most member states, unlike the United Kingdom, do not have an adversarial system and, as we understand it, most inquisitorial systems involve the chairman of the relevant tribunal asking the questions and, although they may permit the representatives of the parties to play such a part as is appropriate, the parties do not have the same right to cross-examine as parties to English adversarial litigation.
40. We note that the 2005 Act does not give parties represented at an inquiry under it rights to cross-examine witnesses. Section 17 is quoted in paragraph 18 above. No rules have as yet been made under it. By section 17(1), the procedure and conduct of the inquiry are to be as the chairman may direct and, by section 17(3), he must act with fairness and with regard to the need to avoid unnecessary cost. Thus while, by section 17(2), he may take evidence on oath, there is no provision entitling interested parties to cross-examine witnesses. It is a matter for the chairman of the particular inquiry to decide whether and to what extent to permit interested parties or their representatives to ask questions of witnesses.
41. We see no reason why an inquiry conducted in such a way should not be compatible with article 2 of the Convention. The underlying obligation of the chairman is to act fairly. In discharging that obligation, the chairman may or may not allow others to question witnesses, depending upon the circumstances of the particular case. In some cases it may be appropriate to do so and in others it may not. For example, where there is counsel to the inquiry, it may not be appropriate, whereas where there is no such counsel, it may, but all will depend upon the circumstances.
42. We have reached the conclusion that the judge went too far, in so far as he concluded that D's representatives must be entitled to cross-examine witnesses. They must in general be entitled to see the written evidence, to be present during oral evidence and to make appropriate submissions, including submissions as to what lines of enquiry should be adopted, what questions asked and, indeed, who should be permitted to ask witnesses questions about what. As just stated, it will be a matter for the chairman to decide what procedure to adopt. Such an approach, which is that specified in the 2005 Act, will, in our judgment, discharge the United Kingdom's obligations under article 2 of the Convention on the facts of this case and be consistent with both the Strasbourg jurisprudence and the reasoning of the House of Lords in Amin. It will, for example, meet the requirement identified in paragraph 109 of Jordan and paragraph 73 of Edwards that there must be involvement of D's representatives "to the extent necessary to safeguard his or her legitimate interests."

Compelling witnesses

43. As indicated in paragraph 13 ii) above, the judge stated that 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. There was some discussion in the course of the appeal as to whether the judge was entitled so to direct. However, in our opinion, he was. Moreover, although the letter of 24 January 2005 did not contemplate that Mr Shaw would have such a power, that was before the 2005 Act was enacted.
44. The position now is as stated in paragraph 17 above. By section 15 of the 2005 Act, an ad hoc inquiry can be converted into an inquiry under the Act by a notice given by the relevant minister and by section 21(1)(a) the chairman may require a person to attend to give evidence. It follows that in the unlikely event that it is thought necessary to compel the attendance of a witness the minister can serve a relevant notice under section 15 and the chairman can then serve a notice to compel the witness's attendance under section 21.
45. In these circumstances we can see no objection to this part of the judge's order but add that there is now a process to enable a witness to attend if it becomes necessary. We see no reason why the taking of such steps should cause undue delay.

Access to evidence

46. As indicated in paragraph 13 iv) above, the judge stated that D's representatives must be given reasonable access to all relevant evidence in advance. In our view that is indeed a necessary requirement if the inquiry is to comply with article 2 but the point is academic because the proposed inquiry will comply with it.

Adequate funding

47. As indicated in paragraph 13 v) above, the judge stated that adequate funding for D's representatives must be made available without inappropriate conditions attached and that 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. We can see no legitimate objection to that part of the order. The Home Secretary has agreed to provide funding and, as we understand it, he accepts that the funding should be such as is necessary to satisfy his legitimate interests. In any event funding so described seems to us to be manifestly reasonable.

CONCLUSION

48. With one exception, for the reasons given above, which are essentially those given by the judge, we endorse the order of the judge. In particular we agree with him that in order to comply with the United Kingdom's obligations under article 2 of the Convention, the inquiry must be in public in the sense described in paragraph 24 above. The one point on which we have reached a conclusion different from that of the judge is that, for the reasons given in paragraphs 36 to 42, we do not think that D's representatives should have the right to cross-examine witnesses.