England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		20th June 2001

Thursday, 21 March 2001

1. MR. JUSTICE JACKSON: This judgment is in nine parts, namely:

Part 1: Introduction

Part 2: The facts

Part 3: The present proceedings

Part 4: The nature of the obligation to investigate which arises under articles 2 and 3 of the Convention

Part 5: Is it arguable that the treatment of Mr. Wright by the Prison Service constituted a breach of article 2 or article 3?

Part 6: Has there been an effective official investigation into Mr. Wright's death?

Part 7: The appropriate remedy

Part 8: The claimants' other claims

Part 9: Conclusion

Part 1: Introduction

2. These proceedings concern the death in prison of a young man called Paul Wright. The claimants are his mother and his aunt. The defendant has been variously described as "the Home Office" and "the Secretary of State for the Home Department." At all material times the defendant has acted through the Prison Service.
3. Mr. Wright died in prison on 7th November 1996 as a result of a severe asthma attack. Amongst other matters, the claimants contend (i) that the treatment of Mr. Wright in the period leading up to his death constituted a breach of articles 2 and 3 of the European Convention on Human Rights ("the Convention"); (ii) that the defendant's failure since 7th November 1996 properly to investigate Mr. Wright's death is a continuing breach of the procedural obligation arising under articles 2 and 3 to enquire into possible breaches of those articles.
4. The Human Rights Act 1998 came into force on 2nd October 2000. Amongst other remedies, the claimants contend that they are entitled to redress under the Human Rights Act in respect of the defendant's continuing failure to investigate since 2nd October 2000.
5. Article 13 of the Convention, which at first sight is relevant to the issues in this case, has no direct application. This is because article 13 is not one of the articles listed in schedule 1 to the Human Rights Act 1998.
6. Before I turn in any detail to the issues arising in this case it is first necessary to outline the facts.

Part 2: The facts

7. Mr. Wright was born on 18th May 1963. Mr. Wright had a long history of serious asthma, starting at the age of three years. Between 1967 and January 1996 he received regular and emergency medical treatment from Airedale General Hospital and his general practitioner, who monitored his condition and adjusted his treatment as necessary. He was regularly prescribed inhaled corticosteroids, such as Becloforte, Becotide, Flixotide and Pulmicor, and courses of oral steroids as necessary. He was also loaned an electronic nebuliser on several occasions for the administration of bronchodilators at home. He was admitted to Airedale General Hospital following severe asthma attacks on single occasions in March, April and August 1995 and on two occasions in July 1995.
8. In November 1995 Mr. Wright was arrested for a number of offences. He was detained on remand at Leeds Prison on 29th January 1996. He was released on bail from 8th March to 22nd April 1996, during which period he returned to live with the first and second claimants. On 22nd April 1996 he returned to Leeds Prison on remand. On 25th July 1996 he was sentenced to three years and six months' imprisonment, which he continued to serve at Leeds Prison.
9. Because of Mr. Wright's asthmatic condition, he had regular contact with the health care centre at Leeds Prison from January 1996 onwards. The chief medical officer, who had overall responsibility for the health care centre and for the medical treatment of prisoners, was Dr. Evans. On 1st July 1996 Dr. Evans retired as senior medical officer and Dr. Carroll was appointed in his place. It appears from the records that Mr. Wright had occasional contact with the senior medical officer. However, the member of staff who dealt primarily with the treatment of Mr. Wright was Dr. Singh.
10. The medication which was given to Mr. Wright whilst in prison included the following:

1. Prednisolone tablets were prescribed on a regular basis. Prednisolone is an oral steroid.

2. Mr. Wright had a Ventolin inhaler and later an Atrovent inhaler, which he kept in his cell.

3. A nebuliser was kept at the prison health care centre. On occasions this nebuliser was used to administer Ventolin to Mr. Wright following a serious asthmatic attack.

11. On the evening of 7th November 1996 Mr. Wright suffered a severe asthmatic attack, whilst he was locked in his cell. Mr. Wright told his cell mate, Vincent Moughton, that he needed a nebuliser. Mr. Moughton pressed an alarm button, which activated a light outside the cell. After a period of time which is in dispute, a prison officer came. After a further period of time, a nurse, Ms. Susan Carlisle, arrived. She found that Mr. Wright was not breathing. She summoned an ambulance. Attempts at resuscitation failed. Mr. Wright was taken to Leeds General Infirmary, where he was certified as dead.
12. An inquest into the death of Mr. Wright opened on 19th November 1996. It was then adjourned to enable further enquiries to be carried out. The adjourned hearing of the inquest took place on 29th April 1997 before Mr. Hinchliffe, one of the coroners for West Yorkshire, sitting with a jury. At this hearing the Prison Service was represented by counsel. Members of Mr. Wright's family attended but, in the absence of legal aid, they had no advocate to represent them. Mr. Wright's aunt, the second claimant, acted as spokesperson for the family. She addressed the Coroner from time to time and questioned some of the witnesses.
13. The witnesses at the inquest included Dr. Clark, the pathologist who had carried out a post-mortem examination; Dr. Carroll, senior medical officer at Leeds Prison; certain prison officers; and Staff Nurse Carlisle. Dr. Singh did not give evidence, but his written statement was read out. Mr. Vincent Moughton, who was Mr. Wright's cell mate on the fateful evening, did not give evidence. It appears that Mr. Moughton was willing to give evidence and capable of being contacted, but no one asked him to attend. Mr. Moughton's witness statement was read aloud during the inquest, immediately after the oral evidence of Dr. Carroll. However, counsel for the Prison Service objected to the admissibility of that evidence. The Coroner upheld the objection and directed the jury to disregard Mr. Moughton's statement.
14. During the inquest there was no suggestion that the medical treatment given to Mr. Wright, whilst he was in prison, might have been inadequate. There was no suggestion that the medical staff treating Mr. Wright might have lacked the necessary competence. At the conclusion of the one-day inquest the jury returned a verdict of death by natural causes.
15. The inquest verdict did not allay the claimants' concerns about the circumstances in which Mr. Wright had died. The claimants sought legal aid to bring a claim under the Fatal Accidents Act 1976. The application for legal aid was initially unsuccessful.
16. In May 1999 the claimants read an article in the Yorkshire Evening Post concerning Dr. Singh. This article stated that Dr. Singh had been suspended from his employment at Leeds Prison following the death of an inmate. The article gave the following information about Dr. Singh's past history:

"While previously working in the Derby area, Dr. Singh was found guilty of serious professional misconduct in September 1994 by the General Medical Council and was fined £1,500.

"Since then he has been banned from working in general practice as a locum and ordered not to engage in any form of single handed general practice.

"The Council made their initial ruling in 1994 after hearing that the doctor had neglected two elderly patients in Derbyshire who later died."

17. This article reinforced the claimants' concerns about the medical treatment which Mr. Wright had received in prison.
18. During 1999, the claimants succeeded in obtaining legal aid. On 5th November 1999 the claimants commenced proceedings under the Fatal Accidents Act 1976, claiming damages against the defendant in respect of Mr. Wright's death. The basis of the claim was negligent treatment of Mr. Wright's asthmatic condition. On 27th January 2000 the defendant served a defence, in which negligence was denied.
19. On 18th April 2000 the defendant admitted liability. Thereafter, the action continued for the purpose of assessing damages, and in due course damages were agreed between the parties.
20. One consequence of the defendant's admission of liability was that there would not be any court hearing to determine which specific allegations of negligence were well founded. In these circumstances, the claimants' solicitor, who is a legal officer of Liberty, pressed the defendant to set up a full, independent and open investigation into the causes of Mr. Wright's death. The defendant declined to do so.
21. On 25th August 2000 the claimants issued an application to amend their claim form and particulars of claim in the Fatal Accidents Act proceedings by adding two further claims:

1. A claim for bereavement damages based on the defendant's breach of articles 2, 3 and 8 of the European Convention on Human Rights in failing to provide proper care for Mr. Wright whilst in prison.

2. A claim for damages based on the defendant's continued failure

(a) to carry out an independent and impartial inquiry into Mr. Wright's death, as required by articles 2, 3 and 8 of the Convention, and

(b) to disclose available information about that death.

22. The application to amend was heard on 12th September 2000 by Elias J. The judge disallowed the first amendment on the basis that the alleged breaches of the Convention culminating in Mr. Wright's death all occurred before the Human Rights Act 1998 came into force. Accordingly, the first proposed new claim could not succeed. Elias J. also disallowed the second amendment, but for a different reason. Elias J. regarded the second proposed new claim as having a prospect of success, because the alleged breaches would continue after 2nd October 2000. However, Elias J. regarded the second proposed new claim as unsuitable for inclusion in the existing proceedings, because it raised public law issues.
23. In the light of this ruling the claimants accepted that their current action should be limited to damages under the Fatal Accidents Act. On 2nd November 2000 the claimants commenced a second action, namely the present proceedings for judicial review.

Part 3: The present proceedings

24. By their claim form dated 2nd November 2000, the claimants claimed judicial review in respect of:

1. The defendant's continuing failure to carry out a thorough, independent and public investigation into Mr. Wright's death.

2. The defendant's continuing failure to provide the family with proper information as to the reasons for Mr. Wright's death, and in particular the medical report on the basis of which the defendant conceded liability in the Fatal Accidents Act action.

25. The remedies which the claimants claimed for these failures were an appropriate mandatory order and damages.
26. On 11th December 2000 Scott Baker J., upon considering the documents, granted permission to the claimants to apply for judicial review. Following the grant of permission the Prison Service examined its records. On 5th March 2001 the Prison Service provided the following documents to the claimants' solicitor:

1. a copy of the inmate medical report relating to Mr. Wright;

2. a copy of the internal report into the circumstances surrounding Mr. Wright's death, prepared by Governor Davies at Leeds Prison; and

3. a synopsis of the expert report which had caused the defendant to admit liability in the Fatal Accidents Act proceedings.

27. The third of these documents was the most revealing. The expert report had been prepared by Adrian Williams, a consultant physician. The synopsis of Mr. William's report includes the following passage:

"Mr. Wright was reported to have had asthma since the age of three and treated with inhaled medications including topical steroids with intermittent oral steroids. Control of this asthma in the year before his first confinement in January 1996, was poor as judged by the need for five admissions to hospital in 1995.

28. "On entering prison in January, his medical assessment noted (self reported?) use of Ventolin, and "Atropine' and Prednisolone with a latter addendum (by Dr. Singh) recording Uniphyline use as well. Subsequently, he was seen in the Health Care Centre on at least 26 occasions over the 10 months at intervals of 1 to 2 weeks and by at least four doctors. A peak flow was noted on five occasions (March 8 @ 650; June 19 @ 250; July 3 @ 450; August 20 @ 400; September 29 @ 360). Prescriptions for Atrovent, Salbutomal, Uniphyline and Prednizone were regularly mentioned, as was less frequently Beclamethasone (first March 8? 20 units -inhalers? - and subsequently April 22, June 19, July 12, July 23, September 9, September 13).

"Specific reference to the poor control of his asthma, particularly at night was made by a nurse on June 15 and by Dr. Singh on August 14 and can also be inferred from the addition of pm Uniphyline to his regimen on April 22 (reaffirmed on June 19, July 12 and September 19). The medication record is also significant for the absence of Beclamethasone during an admission to the Health Care Centre on October 24, as well as the 'addition' of Atrovent on October 23 with the rationale 'to cut down on steroid use'.

"Mr. Wright's final fatal asthma attack apparently began in the evening and rapidly progressed to asphyxiation. A near-empty MDI was found at his side, reminiscent of the epidemic of fatal asthma in the era preceding the use of topical steroids.

Discussion

"Good control of Mr. Wright's asthma was noted by his mother, though in the year before his imprisonment, there were five admissions to hospital indicating poor control. His medication use during this time is unclear, and he failed to report, Beclamethasone use to prison medical staff. The poor control in the previous year was not recorded by the prison staff at that time, only being noted much later.

"The contemporaneous medical record is difficult to decipher and possibly incomplete, with few drug prescriptions, making Mr. Wright's medication use uncertain. The unmonitored use of Prednisolone is also an indictment of the overall quality of medical care and record keeping.

"He was seen frequently, albeit partly as a result of the poor control of his asthma, and by four physicians, but no consistent record of lung function was kept. The normal peak flow recorded on March 8 indicates the ability to achieve normal lung function and that of September 29 is sufficiently changed from that base line to be of concern and to trigger a change in treatment, especially given the fragile nature of his disease, known by now by his past medical history and by the frequent visits to the clinic.

"Finally, the introduction of Atrovent to reduce steroid use indicates a fundamental flaw in Dr. Singh's knowledge base.

Conclusions

"1.A competent medical practitioner would have been aware of Mr. Wright's previous poor control (five hospital admissions) and the recent use of steroids and would have realised the need for inhaled steroids at that time. Likewise, their (later) introduction and continuous use would have been adequately monitored by regular daily peak flow measurements. Compliance with these characteristics of good medical practice would probably have averted his death. Quicker treatment at the time would [have been] unlikely to have been successful since acute severe asthma is recognized to take this precipitous course. Dr. Singh's use of Beclamethasone was too little, too late and his understanding of this area seriously flawed."

29. The views of Mr. Williams, as revealed by the synopsis are quite close to the views of Dr. Rudd, who was the claimants' expert witness in the Fatal Accidents Act proceedings. Both experts consider that the prison medical staff monitored Mr. Wright's condition inadequately and prescribed inappropriate medication. In particular, both experts consider that the prison medical staff ought to have prescribed inhaled corticosteroids.
30. The disclosure which the defendant made on 5th March 2001, in conjunction with earlier disclosure given in the Fatal Accidents Act proceedings, effectively discharges whatever duty the defendant had to provide to the family available information concerning Mr. Wright's medical treatment and death. Accordingly the claimants' claim based upon a continuing failure to provide available information has been overtaken by events and is no longer pursued.
31. The relief which the claimants are seeking at trial, as formulated in paragraph 69 of their skeleton argument, is as follows:

1. A mandatory order requiring the defendant to initiate an independent investigation into the circumstances surrounding the death of the deceased. 2. A declaration that the defendant's conduct since the deceased's death constituted a lack of respect for their family and private life, contrary to article 8 of the Convention.

3. Damages for the breach of articles 2, 3 and 8 of the Convention.

32. The claim for an order that the defendant do set up an independent investigation is the aspect which has been most vigorously pursued. Accordingly, I shall deal with this aspect of the case first.

Part 4. The nature of the obligation to investigate which arises under articles 2 and 3 of the Convention

33. Article 2(1) of the Convention provides:

"Everyone's right to life shall be protected by law."

34. Article 3 of the Convention provides:

"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."

35. McCann v. United Kingdom (1996) 21 EHRR 97 concerned the shooting by SAS soldiers of three members of the Provisional IRA, who were planning to plant a bomb in Gibraltar. In relation to the obligations imposed by article 2 of the Convention, the European Court of Human Rights said this at paragraph 161 of its judgment: "The obligation to protect the right to life under this provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State".
36. The court went on to hold that the obligation to hold an effective official investigation had been satisfied in that case. This was because a lengthy and thorough inquest had been held, at which numerous witnesses had been called and all parties were represented. The U.K. was found to be in breach of article 2 in other respects, but these are not material to the present proceedings.
37. In Assenov v. Bulgaria [1998] 28 E.H.R.R. 652 the European Court of Human Rights held that article 3, like article 2, imposes an obligation to investigate. At paragraph 102 of its judgment the court said this:

"The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms in [the] Convention', requires by implication that there should be an effective official investigation. This obligation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity."

38. R. v. DPP, ex parte Manning [2001] QB 330 concerned the death of a prison inmate following the forcible search of his person for drugs. The Director of Public Prosecutions decided not to prosecute the prison officers who had forcibly searched the deceased immediately before his death. The Divisional Court quashed that decision and ordered the Director of Public Prosecutions to reconsider the matter. However, the Divisional Court regarded the coroner's inquest as satisfactory. The inquest had been lengthy. The deceased's family had been represented. The inquest verdict had been unlawful killing. In relation to article 2, Lord Bingham C.J, giving the judgment of the Divisional Court, said this at paragraph 33:

"But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the state must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroners' Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective enquiry: see McCann v. United Kingdom [1996] 21 EHRR 97 [at pp. 163 to 164] paragraphs 159 to 164."

39. Salman v. Turkey (European Court of Human Rights, 27th June 2000) concerned the death of a man who was held in police custody. The deceased's death appeared to have been caused by ill treatment at the hands of police officers; see paragraphs 12 and 101 of the judgment. Turkey was held to be in breach of article 2 of the Convention in two respects. First, the Turkish government had a responsibility for the death of the deceased by reason of the circumstances. Secondly, the Turkish authorities failed to carry out an effective investigation into the circumstances of the death. In relation to the obligation to investigate, the court said this:

"104. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the McCann and Others v. the United Kingdom judgment of 27 September 1995 ...and the Kaya v. Turkey judgment of 19 February 1998 ...

105. In that connection, the Court points out that the obligation mentioned above is not confined to cases where it is apparent that the killing was caused by an agent of the State. The applicant and the father of the deceased lodged a formal complaint about the death with the competent investigation authorities, alleging that it was the result of torture. Moreover, the mere fact that the authorities were informed of the death in custody of Agit Salman gave rise ipso facto to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death (see, mutatis mutandis, the Ergi v. Turkey judgment of 28 July 1998 ... and the Yasa judgment cited above ...). This involves, where appropriate, an autopsy which provides a complete and accurate record of the possible signs of ill-treatment and injury and an objective analysis of clinical findings, including the cause of death."

40. The judgment of the Divisional Court in Manning and the judgment of the European Court of Human Rights in Salman are separated by six weeks. They appear to have been reached in isolation from one other, but they are perfectly consistent. In Manning the obligation to investigate implied by article 2 was satisfied by the holding of a thorough inquest. In Salman the obligation to investigate implied by article 2 was never satisfied.
41. Jordan v. United Kingdom (European Court of Human Rights, 4th May 2001) concerned the death of a young man in Belfast, who was shot by a police officer. Following the death, an inquest was held in accordance with the procedures of Northern Ireland. Also, the deceased's father brought a civil action for damages against the police. The Strasbourg Court held that the United Kingdom was in breach of article 2, because it had failed to hold an effective official investigation. Neither the inquest nor the civil action sufficed for this purpose. At paragraphs 106 to 109 of its judgment, the court identified the necessary features of an investigation compliant with article 2. In brief these are:

1. The investigation must be independent.

2. The investigation must be effective.

3. The investigation must be reasonably prompt.

4. There must be a sufficient element of public scrutiny.

5. The next of kin must be involved to the appropriate extent.

42. At paragraph 143 the court said this:

"It is not for this Court to specify in any detail which procedures the authorities should adopt in providing for the proper examination of the circumstances of a killing by State agents. While reference has been made for example to the Scottish model of enquiry conducted by a judge of criminal jurisdiction, there is no reason to assume that this may be the only method available. Nor can it be said that there should be one unified procedure providing for all requirements. If the aims of fact finding, criminal investigation and prosecution are carried out or shared between several authorities, as in Northern Ireland, the Court considers that the requirements of Article 2 may nonetheless be satisfied if, while seeking to take into account other legitimate interests such as national security or the protection of material relevant to other investigations, they provide for the necessary safeguards in an accessible and effective manner. In the present case, the available procedures have not struck the right balance."

43. From this review of recent decisions I derive five propositions:

1. Articles 2 and 3 enshrine fundamental human rights. When it is arguable that there has been a breach of either article, the state has an obligation to procure an effective official investigation.

2. The obligation to procure an effective official investigation arises by necessary implication in articles 2 and 3. Such investigation is required, in order to maximise future compliance with those articles.

3. There is no universal set of rules for the form which an effective official investigation must take. The form which the investigation takes will depend on the facts of the case and the procedures available in the particular state.

4. Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v. United Kingdom at a paragraphs 106 to 109.

5. The holding of an inquest may or may not satisfy the implied obligation to investigate arising under article 2. This depends upon the facts of the case and the course of events at the inquest.

44. Finally, and for the sake of completeness, I should mention the European Court of Human Rights' decisions in Keenan v. United Kingdom (3rd April 2001) and Z v. United Kingdom (10th May 2001). In both of these cases the applicants alleged direct breaches of articles 2 and 3 of the Convention in respect of actions by the United Kingdom authorities, which lead to personal injury or death. In neither case did the applicants allege a breach of the procedural obligation to investigate arising under articles 2 and 3. It is probable that the reason for this omission was that in Strasbourg (unlike in this court) the applicants were entitled to claim a remedy for breach of article 13. In these circumstances, neither Keenan v. United Kingdom nor Z v. United Kingdom are directly relevant to the issues discussed in Part 4 of this judgment.

Part 5: Is it arguable that the treatment of Mr. Wright by the Prison Service constituted a breach of article 2 or article 3?

45. I have heard no oral evidence. There has been no cross-examination or testing of the experts, as would be commonplace in a clinical negligence action. If Dr. Singh or anyone else disagrees with the views of Dr. Rudd or Mr. Williams, there has been no opportunity for that disagreement to be ventilated. Accordingly, the conclusions which I have reached are provisional and might be displaced by further evidence. These provisional conclusions are as follows:

1. Mr. Wright was a young man who suffered from a serious asthmatic condition.

2. It appears from the expert evidence referred to in Part 3 of this judgment that the medical treatment which Mr. Wright received over a period of months during 1996 was seriously deficient. His lung function deteriorated over that period. His condition was not properly monitored. He was given inappropriate medication. Inhaled corticosteroids were not prescribed. Mr. Wright never had a nebuliser in his cell and could only make use of a nebuliser if he was taken to the prison health centre.

3. By November 1996 Mr. Wright was exposed to the risk of a severe asthmatic attack by reason of negligent medical treatment.

4. On the night of 7th November Mr. Wright was locked in his cell with inadequate medication and inadequate apparatus. No key was available nearby for the purpose of unlocking the cell rapidly. In this situation Mr. Wright suffered an asthmatic attack.

46. Mr. Wright's position was probably hopeless from the moment his asthmatic attack began. However quickly prison officers and medical staff had responded to the alarm raised by Mr. Moughton, it is unlikely that Mr. Wright's life could have been saved.
47. A further disturbing feature of this case is the extent to which Mr. Wright's medical treatment was apparently entrusted to Dr. Singh. I have mentioned in Part 2 of this judgment the information about Dr. Singh which the claimants gleaned from a newspaper article before they began the first action. The claimants' solicitors have now carried out further investigations and have placed before me certain evidence obtained from the General Medical Council, including certain documents which were obtained during the course of the present hearing.
48. Dr. Singh is not represented in these proceedings and it would not be right for me to make any findings concerning him. Suffice it to say that by March 1996 the senior medical officer at Leeds Prison was notified of the conditions imposed upon Dr. Singh's practice by the General Medical Council. These conditions include a requirement for further training and a prohibition upon any form of single-handed general practice.
49. In the light of the facts set out above, is it arguable that the treatment of Mr. Wright by the Prison Service constituted a breach of article 2 and/or article 3 of the Convention? In addressing this question I have gained considerable assistance from the recent decision of the European Court of Human Rights in Keenan v. United Kingdom (3rd April 2001). This case concerned the suicide in prison of a young man who was serving a short prison sentence. The deceased had mental health problems. At an adjudication on the day before his death he was awarded 28 additional days in prison, together with seven days' loss of association. The court held that the United Kingdom was in breach of article 3 and article 13 of the Convention, but not in breach of article 2.
50. In relation to article 2 the court's reasons were as follows:

"98. The Court finds that on the whole the authorities made a reasonable response to Mark Keenan's conduct, placing him in hospital care and under watch when he evinced suicidal tendencies. He was subject to daily medical supervision by the prison doctors, who on two occasions had consulted external psychiatrists with knowledge of Mark Keenan. The prison doctors, who could have required his removal from segregation at any time, found him fit for segregation. There was no reason to alert the authorities on 15 May 1993 that he was in a disturbed state of mind rendering an attempt at suicide likely. In these circumstances, it is not apparent that the authorities omitted any step which should reasonably have been taken, such as, for example, a 15 minute watch. There was the unfortunate circumstance that the alarm bell buzzer had been de-activated. It is unsatisfactory that it was possible for a prisoner or prison officer to interfere with this warning mechanism. However, the visual alarm was functioning and was spotted by staff, though not immediately. It has not been suggested by the applicant that this played any material role in Mark Keenan's death.

"99. The applicant argued however that the background events must be regarded as increasing the likelihood of her son committing suicide and that the authorities failed in their responsibilities by not properly assessing his unfitness for segregation and by imposing punishment on him. The applicant has criticised in particular the prison doctors' abilities, pointing out that none were psychiatrists and, in particular, that Dr. S who changed the medication ordered by Dr. Rowe, had no psychiatric training at all. She also emphasised that the infliction of disciplinary punishment on Mark Keenan should have been foreseen as likely to increase the stresses on his fragile mental state and informed psychiatric opinion should have been sought.

"100. The Court considers that these arguments are to some extent speculative. It is not known what made Mark Keenan commit suicide. The issues raised regarding the standard of care with which Mark Keenan was treated in the days before his death fall rather to be examined under Article 3 of the Convention.

"101. The Court concludes that there has been no violation of Article 2 of the Convention in this case."

51. Sedley L.J., who was sitting as an ad hoc judge of the court, reached the same conclusion in relation to article 2 with considerable hesitation. In his concurring judgment he said:

"1. With some hesitation I have joined with the other members of the Court in finding no breach of Article 2. The essential basis of the majority's finding of a breach of Article 3 and of the unanimous finding of a breach of Article 13 is, after all, that a disturbed prisoner, known to be a suicide risk but now approaching the end of his short sentence, was administratively sentenced for a violent breach of discipline to a further substantial spell of imprisonment, the first part in punitive isolation, without the possibility of appeal or review. It is understandable that these facts were regarded by the dissenting members of the Commission as indicative of a breach of Article 2. Mr. Rozakis, for example, wrote:

'... the authorities, while they knew about the suicidal tendencies of Mark Keenan, and [while] they had in their hands reasonable means to avert the fatal incident, opted for a policy which contributed to rather than avoided his taking of his life.'

"2. Article 2 contains not a general assertion of the right to life but a specific obligation of states signatories to protect that right by law. This is why the facts which have led the court to find a breach of Article 3 might no less aptly have been regarded as demonstrating a breach of Article 2. Nevertheless, in the light of the view of the other members of the Court that a causal link is not sufficiently made out, I have not dissented."

52. In relation to article 3, the court's reasoning was as follows:

"113. In this case, the Court is struck by the lack of medical notes concerning Mark Keenan, who was an identifiable suicide risk and undergoing the additional stress that could be foreseen from segregation and, later, disciplinary punishment. From 5 May to 15 May 1993, when he died, there were no entries in his medical notes. Given that there were a number of prison doctors who were involved in caring for Mark Keenan, this shows an inadequate concern to maintain full and detailed records of his mental state and undermines the effectiveness of any monitoring or supervision process. The Court does not find the explanation of Dr. Keith -- that an absence of notes indicates that there was nothing to record -- a satisfactory answer in the light of the occurrence book entries for the same period.

"114. Further, while the prison senior medical officer consulted Mark Keenan's doctor on admission and the visiting psychiatrist, who also knew Mark Keenan, had been called to see Mark Keenan on 29 April 1993, the Court notes that there was no subsequent reference to a psychiatrist. Even though Dr. Rowe had warned on 29 April 1993 that Mark Keenan should be kept from association until his paranoid feelings had died down, the question of returning to normal location was raised with him the next day. When his condition proceeded to deteriorate, a prison doctor, unqualified in psychiatry, reverted to Mark Keenan's previous medication without reference to the psychiatrist who had originally recommended a change. The assault on the two prison officers followed. Though Mark Keenan asked the prison doctor to point out to the governor at the adjudication that the assault occurred after a change in medication, there was no reference to a psychiatrist for advice either as to his future treatment or his fitness for adjudication and punishment.

"115. The lack of effective monitoring of Mark Keenan's condition and the lack of informed psychiatric input into his assessment and treatment disclose significant defects in the medical care provided to a mentally ill person known to be a suicide risk. The belated imposition on him in those circumstances of a serious disciplinary punishment -- seven days' segregation in the punishment block and an additional 28 days to his sentence imposed two weeks after the event and only nine days before his expected date of release -- which may well have threatened his physical and moral resistance, is not compatible with the standard of treatment required in respect of a mentally ill person. It must be regarded as constituting inhuman and degrading treatment and punishment within the meaning of Article 3 of the Convention.

"Accordingly, the Court finds a violation of this provision."

53. On this issue, again with some hesitation, Sedley L.J. agreed with the conclusion of the court. In his concurring judgment Sedley L.J. said:

"4. ... In the end, however, I have cast my vote in favour of a finding of a breach of Article 3 because it is evident from the fatal outcome that the stress of the punishment on this disturbed offender was greater than he ought to have been made to bear. In the light of the inadequate monitoring of his condition, the combination of the infliction and the timing of this punishment can properly be characterised as inhuman.

"5. This conclusion, it should be noted, is not dependent on a consequential death. That the same or not very different findings might have answered the question of causation under Article 2 and have been characterised as a failure of the law to protect Mark Keenan's right to life needs perhaps to be borne in mind by those with responsibility in this area of public administration."

54. Bearing in mind the decision of the Strasbourg Court in Keenan, I return now to the issues in the present case.
55. I do not have to decide whether the Prison Service actually breached article 2 or article 3 in its treatment of Mr. Wright. Mr. Wright died before the Human Rights Act 1998 came into force. The claimants cannot base any claim upon a breach of this nature. All that I have to determine, for present purposes, is whether it is arguable that during 1996 the Prison Service treated Mr. Wright in a manner which violated article 2 or article 3.
56. In my judgment, it is arguable that the Prison Service breached article 2 or article 3 in that respect.
57. I reach this conclusion for four reasons:

1. The negligent medical treatment of Mr. Wright during 1996 involved positive acts as well as omissions.

2. The medical treatment of Mr. Wright in the present case apparently involves greater culpability and over a longer period than the medical treatment of the deceased in Keenan. There were causation problems in Keenan (see paragraph 100 of the judgment) which do not exist in the present case. In Keenan a direct breach of article 2 was nearly established and, on Sedley L.J.'s analysis, such a breach could have been found. In the present case, a fortiori, it is arguable that the treatment of Mr. Wright constituted a breach of article 2.

3. In the minutes leading up to his death Mr. Wright must have endured considerable pain and suffering. To leave a sick man locked in his cell and exposed to the risk of such pain and suffering might arguably be characterised as inhuman treatment.

4. Since a breach of article 3 was found in Keenan, a fortiori it is arguable there was breach of article 3 in the present case.

58. For all these reasons, my answer to the question posed in Part 5 of this judgment is "Yes".

Part 6: Has there been an effective official investigation into Mr. Wright's death?

59. Because it is arguable that the treatment of Mr. Wright during 1996 constituted a breach of article 2 or article 3 of the Convention, the defendant came under a duty to procure an effective official investigation into the circumstances of Mr. Wright's death. See Part 4 of this judgment.
60. Has such an investigation taken place? The defendant contends that it has and relies upon two matters, first the inquest and secondly the civil action. The claimants maintain that neither of those legal proceedings were sufficient.
61. I deal first with the inquest. In my view, the inquest did not constitute an effective official investigation. I reach this conclusion for five reasons.

1. Vincent Moughton was not called as a witness, although he was available and willing to attend. The jury were directed to disregard his written statement.

2. There was no consideration at the inquest of the shortcomings in the medical treatment given to Mr. Wright. No independent expert reviewed the adequacy of this treatment.

3. The restrictions under which Dr. Singh was practising were not disclosed. There was no investigation as to whether Dr. Singh played an excessive and unsupervised role in Mr. Wright's treatment.

4. The claimants were not represented at the inquest. Although the second claimant spoke up for the family at the inquest and asked some questions, she did not have the requisite advocacy skills and there was no proper exploration of the issues which quite properly concerned the family.

5. By reason of the factors mentioned in reasons 1 to 4, the inquest did not comply with the requirements enumerated by the European Court of Human Rights in Jordan v. United Kingdom.

62. I turn next to the civil action. In my judgment the civil action did not constitute an effective official investigation, because liability was admitted at an early stage. There never was a hearing at which evidence concerning the circumstances of Mr. Wright's death was adduced or tested. I do not of course criticise the defendant's admission of liability in April 2000. On the contrary, I commend it. The civil proceedings in this case are irrelevant to the defendant's procedural obligations under articles 2 and 3 of the Convention. I am reinforced in this conclusion by paragraph 141 of the European Court of Human Rights judgment in Jordan v. United Kingdom.
63. For all these reasons, my answer to the question posed in Part 6 of this judgment is "No".
64. Although I have reached this conclusion largely on the basis of recent Strasbourg jurisprudence, it does not, in my view, involve any radical departure from established English law. Our courts have always recognised the particular need for a thorough inquest when a person dies in custody. See In re Rapier, Decd. [1988] Q.B. 26, R. v. Southwark Coroner, ex parte Hicks [1987] 1 WLR 1624, R. v. Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] Q.B. 1 at pages 18-19 and 26 and R. v. DPP, ex parte Manning [2001] QB 330 at paragraph 33.

Part 7: The appropriate remedy.

65. For reasons set out in Parts 4, 5 and 6 above, in November 1996 the defendant came under an obligation pursuant to articles 2 and 3 of the Convention to set up an effective official investigation into the circumstances of Mr. Wright's death. The defendant never discharged that obligation. The defendant's breach of that obligation was not actionable in the English courts before 2nd October 2000, when the Human Rights Act 1998 came into force.
66. Can the claimants now claim any remedy pursuant to sections 6, 7 and 8 of the Act for the continuing breach of articles 2 and 3 since 2nd October 2000? I was at first troubled by a "floodgates" argument. If the claimants are right, it might be said that the defendant is under a duty to set up effective official investigations into all manner of possible breaches of article 2 or article 3 during the 50-year period between the U.K.'s accession to the Convention and the coming into force of the Human Rights Act 1998. On reflection, however, this fear, even if relevant, is unsound. In the great majority of cases it would not be a proper exercise of the court's discretion to order an investigation into events which have become past history.
67. The present case, however, has special features. On 2nd October 2000, Mr. Wright's death was in no sense a closed chapter. The Fatal Accidents Act action was still in progress. An amended defence identifying the particulars of negligence which were admitted was not served until 6th November 2000. The synopsis of the defendant's expert evidence, on the basis of which liability was admitted, was not served until 5th March 2001. In short, on 2nd October 2000 when the Human Rights Act 1998 came into force, the circumstances in which Mr. Wright had died were still the subject of active debate and progressive revelation.
68. In the circumstances of this case, the claimants are entitled to a remedy pursuant to sections 6, 7 and 8 of the Human Rights Act 1998 in respect of defendant's continuing breach of the procedural obligations under articles 2 and 3. The proper remedy is an order that the defendant do set up an independent investigation into the circumstances of Mr. Wright's death. As counsel for both parties accept, the order which this court makes should not be unduly detailed or prescriptive. The precise form of the investigation should be left to the defendant's discretion.
69. I am acutely conscious that any form of inquiry which the Secretary of State may set up will consume costs and resources, which might otherwise be used directly in the operation of the prison medical service. I am also conscious of the duplication of costs for the defendant and of stress for the claimants, which arises from first having an inquest and then having an independent investigation into the circumstances of Mr. Wright's death. If this unsatisfactory situation is to be avoided in the future, steps should be taken to ensure that, in every case where article 2 of the Convention may be engaged, the coroner's inquest complies with the procedural obligations arising under that article.

Part 8: The claimants' other claims

70. The claimants have advanced an alternative claim for an independent inquiry based upon section 4 of the Prison Act 1952 and the Prison Rules. I have not found this argument convincing. However, it is not necessary to explore this aspect of the case, since the claimants have succeeded on the primary limb of their case based upon the Convention.
71. The claimants have also advanced a claim for damages and a declaration for breach of article 8 of the Convention. This claim is based upon the defendant's conduct since 2nd October 2000. The claimants contend that the defendant's conduct during this period, seen against the background of earlier conduct, constitutes a continuing lack of respect for the claimants' private and family life.
72. I do not accept this submission. The claimants cannot bring a claim under section 7 of the Human Rights Act 1998 in respect of the defendant's conduct prior to 2nd October 2000. The defendant's conduct since 2nd October 2000 does not constitute a lack of respect for the claimants' private and family life. On 24th October 2000 the defendant sent an apology to the claimants for Mr. Wright's death, together with certain factual information. On 15th November 2000 the defendant settled the claimants' claim under the Fatal Accidents Act 1976 by agreeing to pay a substantial sum in damages. On 5th March 2001 the defendant provided to the claimants a synopsis of the expert evidence which had caused the defendant to admit liability.
73. In my judgment, the defendant's conduct since 2nd October 2000 does not involve any breach of article 8 of the Convention. Accordingly, this head of claim is dismissed.

Part 9: Conclusion

74. For the reasons set out above, the claimants succeed on the primary issue, but fail on their other claims. I will hear counsels' submissions as to the wording of the order which this court should make in respect of the setting up of an independent investigation into the circumstances of Mr. Wright's death.
75. Finally, I thank counsel for both parties for their clear submissions and their considerable assistance in this case.

MISS SIMOR: My Lord, thank you for that judgment. I am trying to locate the relevant paragraph of the skeleton setting out the five points that we say the order should include in relation to the scope of the inquiry.

MR. JUSTICE JACKSON: Yes. I do not propose to enumerate five detailed points that the scope of the inquiry should include. I propose, in view of what the European Court of Human Rights has said about giving general guidance only, to make an order in simple terms, requiring the holding of an independent investigation.

MISS SIMOR: My Lord, our only concern is that the inquiry should not be confined to the pure question of how Mr. Wright died but rather include the question of the appointment, retention and lack of supervision of Dr. Singh, and be allowed also to examine the other deaths that took place, particularly Stephen Wilkinson's death. We are conscious of the costs and I am not suggesting that it should be a long inquiry. It may well be that this inquiry could take a fortnight or less, but our concern is that the fundamental question of how a doctor of Dr. Singh's competence was actually appointed and retained should be examined, and the other consequences of that.

MR. JUSTICE JACKSON: Miss Simor, it is apparent from the terms of my judgment that the question whether Dr. Singh had an excessive role in the treatment of Mr. Wright and the question whether Dr. Singh was inadequately supervised form part of the circumstances relating to Mr. Wright's death needing to be investigated. Presumably the inquiry, when it is set up, will have regard to the terms of my judgment. I am not making any order in respect of investigating Mr. Wilkinson's death, which is not an issue in these proceedings.

MISS SIMOR: Then, my Lord, we would ask for an order that the Home Secretary initiate a non-statutory public inquiry into the circumstances surrounding the death of Paul Wright, including the appointment, supervision and retention of Dr. Singh.

MR. JUSTICE JACKSON: Mr. Thompson?

MR. THOMPSON: My Lord, I inevitably come at this question from a different angle. Those instructing me have obviously actively been considering since last week's hearing what steps they could take in the event that your Lordship gave a judgment such as that which your Lordship has given. At the moment there is discussion with the Director General of the Prison Service. What is envisaged is, given that the focus of the concern is really the health issues that have arisen and the way in which Dr. Singh came to be appointed and supervised and the nature of the treatment that was given to Mr. Wright, that it would be appropriate for an investigation to be undertaken, probably by the regional health authority, and I think those instructing me would be grateful for some indication from your Lordship as to whether that is the type of inquiry your Lordship has in mind, though obviously we bear in mind both the approach in Jordan and the indication from your Lordship that it is essentially a matter for the Secretary of State to consider the judgment and to give effect to it.

MR. JUSTICE JACKSON: I take the view that the inquiry should be one in public, not in private, because the inquest which was in public did not deal with the real issues. I take the view that the family should be represented. I do not know if those indications are of any assistance to you.

MR. THOMPSON: I am sure that those behind me have taken them very much on board, my Lord.

MR. JUSTICE JACKSON: Mr. Thompson, bearing in mind that I must allow a proper margin for the Secretary of State, acting through the Prison Service, to exercise his discretion in relation to the details of the inquiry, would it be an appropriate course for me to leave the precise wording of the order until both sides have had an opportunity to consider the judgment for a few minutes -- or perhaps a few hours -- and to take instructions and to see what agreement can be reached in the light of my judgment? I have given what I hope is reasonable assistance to the parties. If you cannot reach agreement between you as to the wording of the order, I will of course adjudicate. But at this stage I would prefer not to be unduly prescriptive.

MR. THOMPSON: My Lord, yes. I heard what Miss Simon said, and those words were taken down, and those instructing me have not had a chance to consider the judgment or the form of words. I would be grateful, before anything is written in stone, to have some input, but I leave it to your Lordship to decide what to do and what sort of timetable ----

MR. JUSTICE JACKSON: During the hearing I pressed both counsel as to the appropriate wording of an order, should the claimant succeed in principle, and both counsel (and particularly you, Mr.Thompson) were anxious that the form of wording should be left over for discussion after the substantive judgment.

I think the best course is that there should be a period for reflection before the final wording of the order is determined. I do not know whether you would like to come back at the end of this afternoon when I have dealt with the other matters in my list or whether that leaves you not quite enough time.

MR. THOMPSON: I suspect, given the nature of my client, that that may not be enough.

MR. JUSTICE JACKSON: How much time would you like,Mr. Thompson?

MR. THOMPSON: I did a similar case and the Court of Appeal there adjourned the matter for precisely one week, and then heard representations. As it happened, it was dealt with by agreement, but they adjourned it for a week.

MR. JUSTICE JACKSON: Yes, I would very much hope that this matter can be dealt with by agreement. It seems to me that I have dealt with the main issues between the parties.

Miss Simor, what do you say to the proposal that I should adjourn for one week the formulation of the order in order to see whether agreement can be reached and, if not, so that I can hear submissions of both sides when they have considered the judgment in more detail?

MISS SIMOR: My Lord, of course we are happy to have the defendant to have input concerning the order, but a week seems rather extended. Perhaps we could say Friday? Or Monday? We can probably agree by Friday, I would have thought.

MR. JUSTICE JACKSON: Yes. I am not in this court on Friday. I am here tomorrow and elsewhere on Friday and back next week.

MISS SIMOR: It does not seem to me that the order needs to be particularly precise -- or proscriptive, as your Lordship has said. The order can be wide in scope and, provided the defendant complies with the five requirements set up in Jordan, we will be happy with the investigation. It does not seem to me that we need to prescribe the exact nature of the inquiry in the order itself.

MR. JUSTICE JACKSON: Right. I propose to adjourn for a period of one week the formulation of the order consequential upon my judgment in order to give both parties the opportunity to consider the judgment. I hope and expect that agreement will be reached between the parties as to the wording of the order and that the hearing in one week's time will be a mere formality, not occupying further the resources of this court. If there is genuine disagreement, then I will resolve this disagreement at the hearing next week. In the event of genuine disagreement, I would appreciate a short skeleton from each side. But I stress that, with competent and responsible representation on both sides, I do not expect further debate to be necessary in this case.

MISS SIMOR: My Lord, is this an appropriate moment to apply for costs in this case?

MR. THOMPSON: I cannot oppose that. However, there is one other application.

MR. JUSTICE JACKSON: Shall I deal with costs first? The claimants are to have the costs of this action.

MR. THOMPSON: I am instructed to seek leave to appeal in this matter. I think it essentially goes to Parts 4, 5 and 6 of the judgment. I have had to consider that as the judgment was delivered, but those instructing me would want to present the matter in some detail. It was to some extent explored at last week's hearing -- the question of whether or not the Jordan conditions apply in all cases rather than (inaudible). The cases reported in the Court of Human Rights are very recent and they have mostly been, I think it is fair to say, on a very limited range of facts. My submission would be that -- your Lordship I do not think mentioned the Z judgment and the passage I took your Lordship to which at least indicated that in some circumstances civil proceedings were a sufficient form of remedy. I think it is in that area, if the matter is to be taken further on appeal, that the question of law has not been resolved and I would seek leave on that basis.

MR. JUSTICE JACKSON: Miss Simor?

MISS SIMOR: Obviously we oppose leave. It has occurred to me that if leave is being sought, perhaps the time for the terms of the order to be agreed needs to be shortened because of the terms of the appeal. If we have a week for the order and there is an appeal after that, we are again postponing the issue.

MR. JUSTICE JACKSON: That is a problem for the appellant. I take the view that this case raises difficult points upon which there are, and indeed have been addressed to me, formidable arguments on both sides. I also consider that the issues are important. Therefore I grant leave to appeal.

In relation to the hearing next week, if, as I expect, counsel reach agreement as to the wording of the order, all that need happen is that the agreed wording can be sent to me and I will initial it. The matter does not need to be relisted. Thank you both again.