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The Queen on the application of IMTIAZ AMIN v. The Secretary of State for the Home Department [2001] EWHC Admin 719 (5th October, 2001)

Case No: CO/3249/2001
Neutral Citation No: [2001] EWHC Admin 719
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 5th October 2001

B e f o r e :
THE HONOURABLE MR JUSTICE HOOPER

	The Queen on the application of IMTIAZ AMIN	Claimant
	- and -
	The Secretary of State for the Home Department	Defendant

----------------------------
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
----------------------------
Mr P O'Connor QC and Mr M Soorjoo (instructed by Imran Khan & Partners for the Claimant)
Mr J Crow and Mr M Chamberlain (instructed by Treasury Solicitors for the Defendant)
Mr A Scrivener QC (for The Commission for Racial Equality )
Miss L Sullivan QC and Mr S Climie (for Her Majesty's Coroner for West London )
----------------------------
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE HOOPER:

1. These are my reasons for judgment in one of the three applications for permission to apply for judicial review listed before me on 3 September, namely the application against the Secretary of State for the Home Department ("SSHD"). In the other two cases the defendant is Her Majesty's Coroner for West London ("The Coroner") and the Commission for Racial Equality ("CRE"). It was agreed that, if I were to grant permission, I should continue with the substantive hearing.

2. At the conclusion of the hearing, I announced my decision that the application against the SSHD had in part succeeded. The claimant was entitled to a declaration to the effect that on the facts known to the Secretary of State, including the fact that the inquest would not be resumed, an independent investigation must be held to satisfy the obligations imposed by Article 2 of the European Convention on Human Rights ("the Convention"). I also said that I would give, during the course of my judgment, my conclusions as to the necessary features of such an investigation.

3. All three cases concern the death in Feltham Young Offenders Institution ("Feltham") of 19 year old Zahid Mubarek at the hands of his violent and racist cell mate, Robert Stewart ("Stewart"). Zahid Mubarek was bludgeoned to death in the early hours of the morning of 22 March 2000. Stewart struck him many times with the leg of the table in the cell. He was convicted of the murder on 1 November 2000 following a trial. Stewart had a record of offending since 1993 and from September 1997 he had almost continually been in custody. He had a history of serious disruptive behaviour in prison, including stabbing a prisoner below his eye, fighting, bullying, setting fire to his cell and attempted escape. He had been "strongly suspected" of involvement in a murder by stabbing of a fellow prisoner, having passed the weapon, so the police believed, to the murderer (page 52). At the time of the murder of Zahid Mubarek, Stewart was on remand for "Racially motivated malicious communication and Harassment Act offences" (SSHD bundle, Butt Report, pages 34-35). Two months before the murder a "racist and threatening letter" written by Stewart referring to "a lot of niggers on the wing" was intercepted (page 35). Contrary to procedures, the letter was returned to him and no action was taken other than an entry on the "wing flimsy" (page 51). Stewart was described in the same "wing flimsy" as "a very dangerous individual" (page 35). On the night of the murder the police found a KKK sign on the cell noticeboard (page 57) . On Stewart's forehead was a tattoo of a cross with the letters "RIP" underneath.

4. The claimant in all three cases is Imtiaz Amin, the uncle of the deceased. The thrust of his complaint against all three defendants concerns the failure to hold an open and public investigation into why Zahid Mubarek was sharing a cell with Stewart on the night of the murder, an investigation in which the family is allowed to participate in a meaningful manner.

5. In the claim against the SSHD, an order requiring an independent public inquiry is sought. The challenged decision is contained in a letter dated 20 August 2001 (see pages 69-70 of the exhibit MCI attached to the witness statement of Mary Calderwood ("Calderwood"), a senior civil servant in the Home Office).

6. In the claim against the Coroner, the family is seeking a resumption of the inquest to investigate the circumstances in which Stewart was in a position to murder Zahid Mubarek. That has been refused and the relevant decision letter is dated 27 July 2001 (page 104 of the Coroner bundle).

7. In so far as the CRE is concerned, it is conducting a substantial inquiry into alleged racism within the prison service. By virtue of paragraph 5 of the terms of reference (page 46 of CRE bundle) the CRE is inquiring into:
"the circumstances leading to the murder of Zahid Mubarek in H.M. Young Offenders Institution, Feltham, and any contributing fact or omission on the part of the prison service."

8. The CRE, by a series of letters concluding with a letter dated 12 March 2001 (page 44 of CRE bundle), refused to turn the inquiry into the kind of public inquiry which the family were seeking with the right to cross-examine witnesses. The claimant's objective in bringing proceedings against the CRE was to challenge the lawfulness of the CRE's decision not to hold such an inquiry.

9. The case involving the CRE came before me first on 30 July 2001. Having heard Mr O'Connor, Q.C. open the case for the claimant, it seemed to me that if the claimant proposed to review the then anticipated final decision of the Coroner not to resume the inquest and an anticipated final decision of the SSHD not to hold a public inquiry, then it would be far more satisfactory if all three cases were heard together. The CRE was particularly anxious that it be able to continue its investigation unimpeded by any judicial review application. The CRE's inquiry into the prison service is of major public importance and should not be delayed. Furthermore, the family was very anxious to resolve the matter as quickly as possible. For those reasons I ordered that the three cases should be listed before me on 3 September.

10. Having read through the skeleton argument, I indicated to Mr O'Connor that I wished to hear first his general submissions supporting the case that there should be a public inquiry. I also indicated to Mr Crow, for the SSHD, that it was likely that I would wish to hear from him first in reply.

11. Mr Crow both then and later invited me to decide the CRE and Coroner applications first. In his skeleton argument he had submitted that it is not unreasonable for the defendant to decline to hold a public enquiry until after the proceedings against the Coroner and the CRE had been completed. I declined his invitation and said that I would first decide whether the SSHD had acted lawfully in refusing the request for an inquiry in his letter of 20 August. Mr O'Connor supported this course. I later told Mr Crow that I would give my reasons for so declining as part of this judgment.

12. It became clear during the hearing, as Mr Scrivener Q.C. stated that the CRE could only concern itself with the circumstances leading to the murder insofar as they related to any racial matters. The CRE would be unable to investigate why a dangerous prisoner was sharing a cell with Zahid Mubarek, except to the extent that "any contributing fact or omission" was caused by racial discrimination. When I suggested to Mr Crow that this weakened the defendant's case in so far as he relied on the CRE enquiry, he submitted that, until the CRE had reported, it was not possible to know whether this would in fact restrict the value of the investigation for the purposes of the Convention. I do not agree. Given the limitations on what the CRE can investigate, the fact that the CRE is investigating the matter does not help the defendant. I should add that, in any event, Mr O'Connor does not accept, for other reasons, that the CRE enquiry as proposed would satisfy the requirements of the Convention.

13. At the end of the first day, I indicated to Mr O'Connor that although I had not heard any detailed submissions about the claim against the CRE, I was sceptical of its likely success. After a short adjournment Mr O'Connor and Mr Scrivener for the CRE agreed that the application for permission to apply for judicial review against the CRE would be adjourned without any fixed date being set. I agreed to that course. At the end of the first day I also adjourned the case against the Coroner for lack of time.
Reasons for deciding to conclude the claim against the SSHD first

14. In writing the letter of 20 August 2001 the SSHD assumed that the inquest would not be resumed. (That is implicit in the letter and was confirmed during the hearing). In his letter of 20August the SSHD wrote:
"Following the trial, the coroner decided that there was not sufficient cause to resume the inquest. That is a matter for her, but she will have taken into account the extent to which the facts about the death emerged during the course of the trial."

15. The assumption that the inquest would not be resumed having been made, it seemed to me that the lawfulness of the 20 August letter could properly be determined without first deciding the Coroner application. Furthermore, in his skeleton argument Mr Crow submitted, on behalf of the SSHD, that the Coroner had been right in her decision not to resume the inquest.

16. It is the claimant's case that, in any event, the holding of an inquest would not excuse the defendant from holding a public enquiry. In the words of Mr O'Connor, an inquest would be `second best'.

17. Only if the claimant could not succeed against the SSHD, would the claimant want a resumption of the coroner's inquest. The claim against the Coroner has to be brought to safeguard the claimant's position but the preferred outcome is a public enquiry. The grounds of the claim against the Coroner make it clear that it is premised on the fact that the SSHD has refused to hold a public enquiry.

18. During the course of argument Mr Crow suggested that the family should be seeking a review of the actions taken by the Crown Prosecution Service if unhappy with them. Coupled with his submission that I should proceed first with the application for permission to quash the Coroner's decision and the CRE decision, the SSHD (so it appears) expects the family to take any available legal steps against other organisations before obtaining a ruling as to the lawfulness of a challenged decision made by him. Mr Crow submitted that the Minister's role was as a "long stop". The obligation under Article 2 was an obligation on the United Kingdom and the Minister need only take action if the United Kingdom's obligations had not been "satisfied" by actions taken by other public authorities. Although Mr Crow did not use these words, the effect of his argument was that the family should "exhaust any remedies" against the public authorities before turning to the Minister.

19. Whilst accepting that the Article 2 obligation is an obligation on the United Kingdom, I disagree with Mr Crow's approach. The death having occurred in prison, the defendant, as Minister with overall responsibility for the prison service, is the person who has responsibility, on behalf of the United Kingdom, for complying with these obligations. It does not seem right to me that the Minister should be entitled to require the family of the deceased first to seek judicial review of decisions of other public authorities, such as the Coroner, the CRE or the CPS.

20. In my view the claimant is entitled to a decision on his claim against the SSHD whatever decision I or an appellate court might reach about the claim against the Coroner. Whilst in the ideal world it might have been better for the case against the Coroner to have been resolved at the same time as the case against the SSHD, the amount of time available did not make that possible. Furthermore, even if I were to quash the decision of the Coroner not to resume the inquest, that would not have resolved the case against the SSHD. Mr O'Connor would have submitted that the SSHD should still hold a public enquiry. Assuming that I had quashed the decision not to resume the inquest and assuming that the decision was not reversed on appeal, the manner in which the inquest would be conducted would, presumably, be a matter for the Coroner (subject to any further application for judicial review). Whether or not an inquest could satisfy Article 2 obligations might depend on the manner in which the inquest was conducted- another matter of dispute between the Coroner and the claimant (see e.g. paragraph 29 of the grounds in the claim against the Coroner).

21. As far as the CRE is concerned, I have already said why, in my view, the existence of the CRE investigation does not assist the defendant.

22. To safeguard the defendant's position, I indicated to Mr Crow during the hearing that should I not uphold the decision letter of 20 August, I would do no more than grant a declaration that on the facts known to the defendant (including the fact that the inquest would not be resumed) there had not been compliance with the obligations imposed by the Convention. That would then leave it open to the SSHD, if he wished to do so, to await the outcome of an application for judicial review against the Coroner, should the claimant continue with that application.
The investigations into the death of Zahid Mubarek- the CPS

23. I turn to the history of the various investigations into the death of Zahid Mubarek.

24. Following his death the police arrested Stewart and, as I have said, he was subsequently convicted of murder following a trial. There was considerable contact between the CPS, the police and the family. During the trial, there was no investigation as to why Stewart was in the same cell as Zahid Mubarek on the night of the murder. The SSHD wrote in his letter of 20 August that "the circumstances of the death were thoroughly examined during the trial." Mr Crow submits that the trial and the consultation by the CPS with the family before and during the trial are relevant facts when considering whether the UK has discharged the obligation to hold an effective official investigation. That may well be so in many cases. In this case the trial and accompanying consultation are, in my view, of no, or very limited, relevance. The circumstances of the death were only "thoroughly examined" if one ignores the question: "Why was Zahid Mubarek sharing a cell with Stewart on the night of his murder?"

25. The senior investigating officer in the murder inquiry also conducted a separate inquiry `into the culpability of the prison service and/or it's employees for criminal offences - in particular focussing on charges of gross negligence/manslaughter - and produced a report on this distinct issue for the CPS casework Director at London Headquarters.' (Calderwood witness statement, paragraph 16). Counsel's advice was sought and it was concluded `that there was insufficient evidence to provide a realistic prospect of convicting the prison service or any of its employees of any criminal offence.' (Paragraph 17).

26. In a letter dated 8 August 2001, a Senior Crown Prosecutor wrote a letter (page 53 of Calderwood exhibit MC1) to the claimant's solicitors stating:-
"I can confirm that the issue of the criminal liability of the prison service and its employees was considered by a lawyer in this office. Independent advice was also received from Treasury Counsel. The offences of involuntary manslaughter by gross negligence, misconduct in public office and failing to discharge a duty under Section 3 of the Health and Safety at Work etc Act 1974 were considered. Both the reviewing lawyer and counsel concluded that there was insufficient evidence to provide a realistic prospect of convicting the prison service or any of its employees of any of these offences."
I am not aware from the papers of the date of that advice. Nor do I know to what extent, if at all, those investigating the possible criminal charges were informed about the findings of the Butt Report or given access to the material collated during the preparation of the Report. I have considerable doubt, in the light of the authorities, whether the Prison Service could ever be guilty of manslaughter.

27. Section 3 imposes a duty on "every employer to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in their employment who may be effected thereby are not thereby exposed to risks to their health or safety". Counsel could not assist me as to how that section might apply to the Prison Service in these circumstances.

28. The Senior Crown Prosecutor declined to provide a copy of counsel's advice to the family and the family have not been shown the material gathered in the course of either of the two inquiries. Like the family, I am therefore unable to assess the conclusions that there should be no criminal charges.
The investigations into the death of Zahid Mubarek- the Butt Reports

29. Six days after the murder, Mr Martin Narey, Director General of the Prison Service, wrote the following letter (pages 123-124 of the SSHD bundle) to the parents of the said Zahid Mubarek:
"Dear Mr and Mrs Mubarek,
I was extremely concerned to hear about the death of your son. My deepest sympathies are with you and your family at this very difficult time. I would like to repeat the most important thing I said to you when we met. You had a right to expect us to look after Zahid safely and we have failed. I am very, very, sorry. What I am determined to do now is to ensure we are completely open with you. If mistakes have been made we shall not conceal then from you.
When we met I also undertook to do what I could to help you. I would like to repeat that offer and to outline what action I have already taken and what action I propose to take. I would like as far as is possible and to the extent that you wish, to involve you and keep you informed.
To ensure we keep in contact with you in the most effective way, I suggest that Peter Windsor, Feltham's deputy governor, whom you met last week, is your main point of contact. He can be contacted at Feltham (telephone 0208-890-0061, extension 253). However, if you would prefer not to contact someone at Feltham, then I suggest you contact William Payne, my Staff Officer, through the telephone number at the top of this letter. Additionally, you already have contact with Maqsood Ahmed my Muslim adviser. The police, who have begun their formal investigation, will liase with you separately.
While the police are investigating the specific circumstances in which Zahid was so seriously assaulted and its consequence, I have set up an internal inquiry, which will look at the wider issues. The person leading this internal inquiry is Ted Butt [a prison governor]. He would like to meet you to explain how he intends to proceed. However, he will only meet if you think that would be helpful to you. If you would like to meet him then I suggest you contact him through Peter Windsor. As I said to you when we met, I want to be open and honest with you. Accordingly, it is my intention to give you a copy of the inquiry report.
You might also find it helpful to visit Feltham. Peter Windsor would be very willing to enable you to talk to staff who worked on the unit where Zahid was held. You may wish to ask questions about how Feltham operates, particularly at night for example, and to see parts of the establishment. Peter also has the possessions Zahid had with him in Feltham and, depending upon your wishes is ready to hand these to you when and where you think most appropriate.
If there is anything else you think the Prison Service could do to help you and your family, please to not hesitate to let me know.

30. As Mr O'Connor told me, that letter provided a great deal of comfort to the family. If I may say so, the letter reflects great credit on Mr Narey. The family were consulted about the terms of reference. The family were invited to meet Mr Butt but did not take up the opportunity.

31. Part 1 of the Butt Report which concerned the murder of Zahid Mubarek was completed at the end of October 2000 and a copy was sent to the family shortly thereafter. Part 2, completed in November and also sent to the family, concerned racist attitudes and behaviour at Feltham generally.

32. In his skeleton argument Mr O' Connor submitted that the following findings in Part 1 caused particular concern. In square brackets I have made a few amendments:
"Section C: Executive Summary:
para. 1: the first prison officer to come to the cell, violated instructions, `forgot' to use the radio on him, and instead went to his office and called for assistance from there: he failed to tell Stewart to drop his weapon: he thus left Zahid alone and unobserved in the cell with Stewart still armed with his chair leg in his hand.
para. 7: Stewart was found to be in possession of racist letters written by him and received from outside:
paras. 9-11 Stewart had an alarming and violent criminal record, both in and out of custody. He was suspected of having been involved in another murder of a prisoner in 1998; and he had assaulted a prisoner in the eye with a sharpened weapon in 1999.
para. [14] Stewart was [on remand] at the time of his allocation with Zahid, for `racially motivated malicious communication'.
para. 13. a further racist letter from him, had been intercepted by a prison officer on 12.1.00. [the letter stated `there's a lot of niggers on the wing']: but contrary to standing instructions was not retained, but was returned to him [the matter was reported to a senior officer who took no action]:
para. 13: on 12.1.00., an entry on the wing observation book by a senior officer warned that Stewart was ` a very dangerous individual', highlighted in red; and advising to consult his security file.
para. 17: `extremely limited' contingency plans for an incident such as this, with inaccurate and outdated information:
para. 22. there was no effective induction or cell allocation system.
para. 23: Stewart was never given a medical screening and was never considered for psychiatric assessment at Feltham:
para. 24. at no time in his years in custody was Stewart ever seen by a psychiatrist:
para. 27: contrary to Prison Service Orders, all his correspondence was not censored after the interception of 12.1.00.
para. 35. there is no national policy for the risk assessment of prisoners for suitability for sharing cells.
para. 39. an absence of local operational instructions at Feltham, across a range of vital areas; lack of staff communication; lask of individual responsibility for documentation.
Section D: Background.
paras. 1- 10. more alarming details of Stewart's disturbed behaviour in custody:
para. 13: the racist letter referred to `a lot of niggers on the wing'.
the security warning of 12.1.00. also said `Be Careful' highlighted in red.
para. 18. a psychiatric nurse on 16.11.99., found Stewart to have a `long standing deep seated personality disorder' with a `glaring lack of remorse, feeling, insight, foresight or any other emotion ... an untreatable mental condition'. However the nurse recommended no further action.
para. 21. Stewart's sentence plan file referred to a raised risk of violent reconviction: and his impulsive and reckless behaviour.
para. 27: one officer said he felt that staff should keep an eye on Stewart.
Section F. Incident.
para. 9. there was a wooden dagger under Stewart's pillow in addition to the chair leg murder weapon.
para. 10. Stewart wrote a swastika, and "RIP OV M/CR" on the wall of the cell in which he was held before being taken away by police after the murder
Section H, Findings and conclusions.
para. 11: there was no training, or job description for Duty Governors in the handling of incidents.
Section I, Findings other issues.
para. 1: 1999 Inspectors report quoted: "conditions totally unacceptable .... worse than two years ago ... history of neglect.."
para. 6: effective induction process `would and should' have led to more consideration of sharing cells with Stewart.
pages 28-29: at paras d. and e. even more disturbing details of Stewart's violent and manipulative conduct in custody: His prisoner escort record of December, 1999, referred to `violence, escape record, drugs and assaults': harassment of a prison teacher and a governor using information from the internet;
page 30: para j and k: the security systems at Feltham had been audited in December, 1999, and found to be deficient and unacceptable. By the time of the Butt inquiry, no remedial action had been completed: and most had not even been commenced.
para. n. these security defects played a `significant part' in the events leading up to Zahid's death.
page 31, para. 9: Stewart was familiar enough to staff to be referred to as `Spliffy' in written records; who knew enough of his background to refer to his having been `made enhanced' in the past.
page 32, para. 15: the Chief Inspector's report of 1999 had pointed out the defects in the induction procedures etc, but nothing had been done about this
page 33/34, para. 8/9: the cell allocation is simply determined by vacancies on the wings: This allocation was made by a patrol officer with no training and without reference to relevant records.
page 35, para. 43: `apathetic and unmotivated attitude among staff': `angry as they considered that the blame had stopped with them.'
page 36, para 50: cell had not been searched in the 6 weeks of sharing."

33. In paragraph 35 under the heading "Findings- other issues", the Report states:
"The police evidence, to which the investigation team did not have access, includes the following evidence of racism by Robert Stewart". (Underlining added)
There is then reference to outgoing and incoming letters in the cell containing racist language and a KKK sign on the noticeboard of the cell.

34. Mr O'Connor further submitted in his skeleton argument that the following issues remain unresolved in Part 1:
"a. was the attack upon Zahid continued after Nicholson had returned to his office:
b. did that first officer instruct Stewart to put down the table leg and cease the attack:
c. there is no sign of any statement or information from any other inmates on the same wing about Stewart: save for Jamie Barnes.
d. nor of any statement from anyone hearing the noise of Zahid being beaten to death at 3.30 am:
e. where, when and how had Stewart obtained the table leg, used as the murder weapon:
f. was there another sharpened wood weapon under Stewart's pillow: where, when and how had he obtained that:
g. where had Stewart obtained the `Klu Klux Klan' sign on the cell noticeboard: how had he been allowed to hang it up openly: had no prison officer ever noticed the same:
h. was no single prison officer aware at the time of his allocation or in the 6 weeks afterwards, of the violent or racist nature of Stewart's offending:
i. did no officer pay any attention to the 12.1.00. entry on the wing observation book by a senior officer warned that Stewart was ` a very dangerous individual', highlighted in red; and advising to consult his security file:
j. what caused that warning to be given?
k. how could officers be familiar enough with Stewart, see page 31, para. 9: to refer him as `Spliffy is back again': and to his having been `made enhanced' in the past: yet not be aware of the danger he posed to others?
l. none of the items seized from the cell and from Stewart by the police have been seen by Butt:
m. why were instructions not followed after he had already been detected writing such by a prison officer:
n. how could Stewart be in possession of further racist letters written by him and received from outside? what are the contents of these letters?
o. how and why was the only assessment on Stewart carried out by a nurse, not a doctor, and then not followed up:
p. was no officer ever aware of Stewart's sentence plan file referring to a raised risk of violent reconviction: and his impulsive and reckless behaviour.
q. why did the Butt team not seem to speak to other prisoners on the wing about the relationship between Zahid and Stewart? see para 27 of Section D..
r. why did it take over 3 weeks before a compilation of local instructions was provided to the Butt team? see Section H, para. 2.
s. why had the first officer at the scene a total of only 2 days training and 10 months experience?, see Section H, para. 7.
t. how could the Butt report conclude at page 34, para 31, that there was `minimal evidence' prior to this incident of any racist behaviour by Stewart, when the racist letter above had been intercepted, he was serving a sentence for racially motivated offence, and there was a `KKK' sign on the cell noticeboard, see para 35 on page 34.
u. what was done about the concern at para. 1.21, page 16 of the Chief Inspector of Prison's Report of December, 1998 , Annex 20 to the Butt Report, where he pointed out that a 16 year old in custody for the first time was sharing a cell with a 20 year old on remand for serious violent offences.
v. what was done about the concern expressed at para 1.14, page 14, of the equivalent 1999 Report, at annex 21, that information about the background and offending of prisoners was not readily available to staff; and at para 1.22, about the display of offensive material.
w. what was done about the concern expressed at para 14, of the Standards and Security Audit Report of December 1999 , at annex 24, that no effort was being made to identify prisoners who had offended under the `Protection from Harassment Act, 1997: as Stewart had."

35. Mr O'Connor noted that there was only one interview with another prisoner on the wing, namely Jamie Barnes, a friend of Zahid Mubarek (Annex 70 to Part 1 of the Report). Mr O' Connor comments:
He [Barnes] clearly alleges that both Zahid and himself had asked named prison officers to be allowed move together, on several occasions: and that Zahid had expressed to him his concern about sharing with Stewart. None of the named prison officers have been interviewed by the Butt team. He also states that the general perception on the wing from Stewart's tattoos and demeanour was that he was a member of a racist group, such as the National Front. At the end of this interview is a note by the team that there are `flimsy' records of Barnes requesting a move with other prisoners but not with Zahid. These entries are of course dependent upon the wing officers. The general state of records at Feltham, and the apparent fabrication of records found by the Butt team, in part 2, undermines any reliance upon them."

36. Mr O'Connor in his skeleton argument submits that the following findings in Part 2 cause particular concern:
para. C.6. `many staff' failed to keep appointments with the inquiry team.
para. C8: "a small number of staff sustained and promoted overtly racist behaviour as well as more subtle methods.."
para. C9: ethnic minority staff told of underlying culture of racist comments and banter: lack of understanding of race relations and lack of training: cancelled three times even during the teams visit:
para. C9: "Senior managers know what they should be doing but have not done it. This leads the inquiry team to form the conclusion that Feltham is institutionally racist."
para C11: state of record keeping poor:
para C14: practice of collective punishment being used.
para H2c there are no prisoner representative groups of any kind at Feltham.
para H2f It is apparent that the poor state of race relations at Feltham owes much to the lack of an effective `race relations management team,'
para H4a none of logged racist incidents had been reported to the Race Relations Liaison Officer.
para H5b staff race relations training records appear to have been fabricated.
para H6a. "There is no published policy for the reporting of racist incidents at Feltham".
para H6b in the 5 years to 24.7.00., 11 incidents were reported by staff as racist: of these not one had been investigated and found to be racist.
para H6c no record was kept of investigations of such incidents.
para H8 40 alleged `racist' incidents in the previous 6 months: not one had been reported to the RRLO or logged a such. The Inquiry reports a "damning indictment of how staff are failing in their duty of care towards prisoners ."
para J4c "the provision of work is wholly unacceptable. Prisoners are spending too long in their cells alone.. complained of being locked up for 22- 23 hours per day."
para J5d. "The team would like to express their frustration and annoyance in the strongest possible terms at the failure of the education contractor to supply the information requested."
para J10c no ethnic minority newspapers at all.
para J12b. twice as many ethnic minority, as white, prisoners were being subjected to `control and restraint.': even on inadequate documentation. [equal proportion of white and ethnic minority prisoners in Feltham].
para J12c instances of fights, where minority prisoner taken to segregation, and white prisoner left on wing.
para J15. to obtain a complaint form, a prisoner must submit a written application to a wing officer with reasons. prisoners regard complaints as a waste of time; a senior manager at the prison said `prisoners are afraid to complain'; `total lack of confidentiality'; There is a finding at para 5.8 of the Race Relations Management Team in August, 2000, at Annex 7 to Part 2 of the Report, that Asian offenders were less likely than white or black offenders to be granted a request/ complaint form.
para. K2c: The Board of Visitors report 20 applications to see them withdrawn without reasons given. institutional racism: and physical abuse.
para K3: "Most alarmingly ...families contacting the Board of Visitors rather than the managers at Feltham to complain about racist issues, is a damning indictment of the lack of trust between prisoners and their families and Feltham Prison."
para M1. `There are currently no senior managers from ethnic minority groups at Feltham'.
para N5 over 70 per cent of staff have not received race relations training.
para P4: `standard of record keeping and paperwork woefully short of proper standard.' important details missing from virtually every form checked.
para Q1. lack of management commitment to promoting and communicating race relations to staff, prisoners...'
para Q3 no wonder staff, prisoners and their families have no confidence in procedures for reporting racist incidents.

37. Mr O'Connor notes that in para K3, it is stated:
"There are many findings from the Board of Visitors that cannot be given justice in this report and need further investigation."

38. Mr O'Connor also submits that the Butt report must be viewed against the background of the damning reports into Feltham produced by HM Chief Inspector of Prisons and HM Inspectorate of Prisons. Following a visit in November/December 1998, the Inspector had noted that a 16 year old in custody for the first time was sharing a cell with a 21 year old on remand for serious violent offences (SSHD, page 37). Following a visit a year later, the failure to identify problem prisoners is noted (page 41). In March 2001 a report prepared by the Inspector following a visit October 2000, seven months after the murder, was published. Sir David Ramsbottom wrote (page 50):
" I am forced to conclude from this, my fourth inspection ... in four years that Feltham B- that part of the establishment which now holds young adult prisoners between the ages of 18 and 21 - should no longer be allowed to operate as a Prison Service run Young Offender Institution."

39. He recommended that, unless there was change by the end of 2001, Feltham should be passed to the private sector (page 54). He noted that notwithstanding plans and additional resources "little or nothing has been done to resolve the very serious failings in the treatment and conditions" of prisoners, a situation which he wrote was "utterly disgraceful". He described the conditions as "wholly unacceptable" (page 50). He wrote of the "malign influence of individual members of the Prison Officers Association(POA)", to which he had referred on a number of previous occasions. He commented that certain members of the POA prided themselves on their negative attitude to the duty of care owed towards the prisoners (pages 51-52).

40. Mr Crow submitted that the extracts from the reports and the observations made by Mr O'Connor were not relevant given the following concession made by the defendant in Mr Crow's skeleton argument:
"... the Secretary of State concedes that, for present purposes, there is a sufficiently arguable case that the implied obligation to hold an effective official investigation has been triggered."
Mr Crow then submits that the obligation has already been discharged given the various investigations which have been or are being conducted.

41. I do not accept the submission that the extracts from the reports and the observations made by Mr O'Connor are not relevant. Whilst not necessarily accepting the totality of the observations, the background circumstances are of great importance when deciding whether the obligation has been discharged. Any unusual death in prison is a matter of public concern. It is difficult to imagine a more shocking death in prison than that of Zahid Mubarek.

42. I asked Mr Crow what would the family learn from the Butt Report about the death of Zahid Mubarek and why he was in the same cell as Stewart on the night of his death. He answered by referring me to conclusions to be found in the executive summary (page 30, and see also page 47):
"The most significant findings identified by my team were in four key areas where lack of staff intervention had a direct impact on the decision to allow Robert Stewart to share a cell with Zahid. The four key areas were:

1. Effective medical screening at reception, and on induction;

2. The absence of he protection from Harassment procedures (PSO 4400) on reception;

3. Security information- from Stewart's current and past sentences;

4. Information from Stewart's record."

43. Mr Crow submitted that the Butt Report showed that Zahid Mubarek was in the same cell as Stewart because of systemic failures. To this extent, he submitted, the United Kingdom had gone further than Article 2 required in identifying such failures. However, some of the failures were in breach of existing orders and procedures and many had been identified on earlier occasions. I give some examples.

44. As to 2., PSO 4400 set out the procedures to be followed for prisoners on remand for (as Stewart was) offences under the protection of Harassment Act 1997. Despite a Governor's order and despite a "significant finding" by the Standards Audit Unit in 1999 that Feltham was not meeting the requirements, these procedures were not in place at Feltham. If the system had been in place all Stewart's mail would have been censored. The fact that a letter containing the phrase "there's a lot of niggers on the wing", had been intercepted was, contrary to procedures applying to all prisoners, not entered on Stewart's record. In the flimsy the officer wrote: "a letter which I considered to be racist and threatening was returned to him and told that it would not be posted out" (page 51). Neither that entry or the reference to Stewart being a very dangerous individual "appear to have formed part of any assessment on Stewart by staff" (page 54).

45. According to the Butt Report the details on Stewart's Prisoner Escort Record identifying a charge under the Act "should have been noticed and acted upon by staff". Contrary to procedures, Stewart, like other prisoners, had not been seen by a medical officer within 24 hours of arrival. This problem had been identified in 1999 by the Standards Audit Unit. Indeed he had not been seen for some 15 months by a medical officer (pages 48-49). The Report found no effective procedures allowing a prisoner record and his security file "to be assessed together" (page 47).

46. At Feltham there was a lack of any procedures to review the prisoner's record "for the purpose of informing the decision making process or to assist any form of risk assessment" (page 54).

47. In 1999 Standards Audit Unit had found that the "security intelligence system in operation was not working and that information on prisoners was not readily available." Notwithstanding the preparation of an action plan to put matters right, "in most cases, remedial work had not even commenced" (page 53). "The absence of correct procedures played a significant part in the events leading up to the tragic incident".

48. The Butt Report points out how in many of the areas identified by the Report as being areas of deficiency, "the investigation team is not the first to identify deficiencies" (page 55).

49. The Report does not identify fault on the part of individual members of the prison staff. The Terms of Reference included the question: "Whether any disciplinary action should be taken?" The only passage in which that question was answered (so I was told) is the following (page 33, paragraph 41):
"I cannot apportion all the blame to the management team at Feltham at the time of this investigation. Management oversight seems to have been poor for many years, and it would have been impossible for the present team to have dealt with all the deficiencies in such a short time. Therefore I am unable to recommend disciplinary action against any single individual member of staff". (Underlining added)
Conclusion regarding matters relied upon by the defendant as showing that the Article 2 obligation has been discharged.

50. Given my conclusions about the CRE report, the investigation into Stewart's criminal responsibility and his trial and the assumption that the Coroner would not resume her enquiry, the defendant in arguing that the Article 2 obligation has been discharged, can, in my judgment, seek to rely only on the published Butt Report, particularly the first Report, and the unpublished investigation into the possible criminal responsibility of the Prison Service and prison staff.

51. As to the former, the defendant wrote in his letter:
"This report made 26 procedural recommendations in areas such as screening on reception; the availability and scrutiny of medical records; Protection from Harassment procedures; policy and procedures for reading and stopping mail; the availability of security information files from previous establishments; security, reception and Duty Governor training; reception boards; and the searching strategy. All the major recommendations from the Prison Service investigation are being implemented at Feltham. Most are already in place, and those that are taking longer are being implemented to clear deadlines. Probably the most important is the proposal to introduce a cell-sharing risk assessment across the prison estate. This is being piloted at Feltham."
Later in the letter, the SSHD wrote of the "determination to tackle the systemic failures that had resulted in Zahid Mubarek's death".

52. Mr O'Connor submitted that, given the history of Feltham and the last report of Sir David Ramsbottom, albeit relating (so it appears) only to what he had seen in October 2000, the SSHD's statement as to what changes have been made and are to be made should be treated with scepticism. I do not need to decide that issue.
The law and its application to this case

53. Against the background of my conclusion in paragraph 50, I now turn to Article 2 of the Convention, which provides in sub-article(1): "Everyone's right to life shall be protected by law. ..."

54. The European Court of Human rights (the "E.C.H.R.") has on more than one occasion explained the nature of a state's obligation under this Article. In Osman v. U.K. [1998] 29 EHRR 245, the Court said (in paragraph 115):
"It is thus accepted by those appearing before the Court that Article 2 of the Convention may also apply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual."

55. The Court went on (in paragraph 115) :
"In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of [this] ... duty, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk"

56. The Court disagreed with the U.K. Government's view that failure to take preventive measures must be tantamount to gross negligence or wilful disregard of the duty to protect life and continued (paragraph 115):
"... it is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of the particular case."

57. In Keenan v. U.K. (E.C.H.R.) 3 April 2001, a case in which the applicant was alleging, amongst other things, that her son had died from suicide in prison due to a failure to protect his life by the prison authorities. The Court said (in paragraph 89):
"Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. ..."

58. Mr Crow did not dispute these descriptions of the nature of a state's duty under Article 2.

59. There is also no dispute that, by virtue of Article 2, if not also Article 13, there is an obligation in this case to carry out an effective official investigation, there being an arguable case that there was a breach of Article 2. I should add that Mr Crow accepted for the purposes of the hearing before me that omissions by state agents could trigger the responsibility to carry out an effective official investigation, but reserved the right to argue that point in the Court of Appeal.

60. There being no dispute about this, I only cite three cases of the cases in which this issue has been considered. In Assenov v. Bulgaria [1998] 28 E.H.R.R. 652 the applicants claimed that they had been deliberately beaten by the police. The E.C.H.R. held that articles 2 and 3 read in conjunction with the duty under Article 1 require "by implication that there should be an effective official investigation" where an individual raises an arguable claim that there has been a breach of these articles (see paragraph 102).

61. The Court also relied on article 13 which provides:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

62. The Court held that in addition to "thorough and effective investigation" required by Articles 2 and 3 , article 13 requires "effective access for the complainant to the investigatory process and the payment of compensation where appropriate" (paragraph 117).

63. In Keenan the Court placed the obligation to investigate under article 13. Keenan had committed suicide in prison. As a result of the acts and omissions of the prison authorities, a breach of Article 3 was found. Turning to article 13 the Court said (paragraphs 122):
"The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be "effective" in practice as well as in law. ..."
The Court went on the say that article 13 required a "thorough and effective investigation" (paragraph 122). (In R. on the application of Wright v . S.S.H.D. [2001] EWHC Admin 520, Jackson J. explained why the Court in Keenan did not rely upon Articles 2 and 3 to impose this obligation, see paragraph 44).

64. In Jordan v. U.K. (E.C.H.R.) 4 May 2001, the Court, as in Assenov , placed the duty to carry out an effective official investigation under article 2 but referred also to article 13 (see paragraphs 156 and following).
65. I turn now to the purpose of such an investigation, about which there was a dispute. Mr Crow submitted that the purpose of such an investigation was only to decide whether there should be criminal proceedings against state agents. Mr O'Connor submitted, during the course of argument, that the purpose of the investigation was to discover whether there had been a violation of Article 2.

66. Mr Crow relied on a number of passages in judgments of the E.C.H.R.. In Kaya v. Turkey (judgment of 19 February 1998), the applicant alleged that his brother, a farmer, was deliberately killed by the security forces. The Government of Turkey claimed that he was killed in a gun battle between those forces and a group of terrorists which included the deceased. In considering the claim that no official investigation had been carried out, the Court said (paragraph 87):
"The Court observes that the procedural protection of the right to life inherent in Article 2 of the Convention secures the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of independent and public scrutiny capable of leading to a determination whether the force used was or was not justified in a particular set of circumstances."

67. Mr Crow also relied on a passage in Assenov which immediately follows the passage already cited from paragraph 102 of the judgment. The Court said that the obligation to carry out an effective official investigation:
"... should be capable of leading to the identification and punishment of those responsible."
The Court continued:
"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."

68. He also cited a passage in Salman v. Turkey (Judgement 27 June 2000), another case in which the applicant alleged a deliberate and unlawful killing. She claimed that her husband had died as a result of torture at the hands of police officers. The Court said (paragraph 104) that the combination of Articles 1 and 2 required:
"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."

69. Turning to Keenan , Mr Crow relied on a passage (paragraph 122) in which the Court said:
" Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life ... ."

70. Mr Crow then turned to Jordan , another case in which the claim alleged a deliberate and unlawful shooting by a police officer. He cited two passages (paragraphs 105 and 107) in which the Court said:
"The essential purpose of [the effective official] investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility."
"The investigation must also be effective in the sense that it is capable of leading to a determination whether the force used in such cases was or was not justified in the circumstances ... and to the identification and punishment of those responsible."

71. For the following reasons, I do not accept Mr Crow's submission that the purpose of the investigation is only to decide whether there should be criminal proceedings against state agents.

72. Given that the duty under article 2 is that set out (for example) in the passage from Keenan which I have cited in paragraph 57 above, then it would be strange if the duty to investigate was only concerned with whether there should be criminal proceedings against state agents. In Keenan itself, although the Court spoke of an investigation "capable of leading to the identification and punishment of those responsible for the deprivation of life", it does not follow that this was the sole purpose of carrying out such an investigation. In that case the Court, having examined the facts in detail, held that, whereas there had been no violation of the explicit duty under Article 2, there had been a violation of Article 3 because of the "significant defects in the medical care provided to a mentally ill person known to be a suicide risk" and the "belated imposition on him of a serious disciplinary punishment" "not compatible with the standard of treatment required in respect of a mentally ill person" (paragraph 115). If an official and effective investigation had been carried out in this country in the Keenan case, the inquiry could have limited itself, if Mr Crow is right, to deciding only whether any state official was criminally responsible. However, that was not a matter which concerned the ECHR.

73. It is clear from the cases that one of the principal purposes of requiring an investigation is to ensure future compliance with the Articles 2 and 3 duties (see Assenov , paragraph 102 above and see also Wright , paragraph 43 (2)). Limiting the purpose of the investigation in the manner suggested by Mr Crow would not achieve that purpose in cases like Keenan , Wright (to which I turn shortly) and this one.

74. Secondly, the passages cited by Mr Crow in the cases involving alleged deliberate killing or wounding must be read in the context of the allegations being made in those cases- if the claims were right there would be clear criminal responsibility on the part of those responsible.

75. Thirdly, such a limitation upon the purposes of the investigation is inconsistent with the decision of Jackson J. in Wright . The brief facts of that case were that Mr Wright died in prison as a result of a severe asthma attack. His mother and aunt claimed in judicial review proceedings that the treatment of Mr Wright in the period leading up to his death constituted a breach of Article 2 and 3 of the Convention. Jackson J. concluded that there had been arguable breaches of those articles. The claimants also claimed that the failure to investigate the death properly was a continuing breach of the procedural obligations under articles 2 and 3 to enquire into possible breaches of these articles. Jackson J. agreed. I was told that there is to be no appeal from his decision. It does not appear to have been submitted to Jackson J. that the investigation which he ordered should be concerned only with the potential criminal liability of those who may have been responsible for the death. In his judgment Jackson J. did not address the matter.

76. In my judgment, the purpose of the investigation impliedly required by article 2 in the circumstances outlined, is to discover whether there has been a breach of the explicit duty in article 2, even though the death may not involve the criminal responsibility of any state officials.

77. I should add that during the course of argument, Mr Crow widened the purposes of an investigation to include possible disciplinary action. That "concession" does not alter my conclusion.

78. During the investigation the possible criminal, disciplinary or civil responsibility of the persons and institutions involved may well be very important, but it is not the only matter to be considered.

79. I now turn to the question: "What are the necessary features of such an investigation"?

80. There is no doubt that the kind of investigation required to meet the obligations under articles 2 and 3 will vary according to the circumstances and there does not need to be "one unified procedure providing for all requirements." (see Jordan , paragraphs 105 and 143). Mr Crow argued on the authority of Salman (paragraph 102) that even the holding of an autopsy may satisfy the requirements in certain circumstances.

81. In Wright Jackson J. considered the case of Jordan and said (at paragraph 41):
"... 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."

82. Jackson J. distilled five propositions from the authorities, the fourth of which was:
"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 paragraphs 106 to 109."

83. Mr Crow did not seek to argue that Jackson J. was wrong in his analysis of Jordan , save in one respect. He submitted that feature 5 ("The next of kin must be involved to the appropriate extent") was no more than an illustration of feature 4 ("There must be a sufficient element of public scrutiny").

84. As to these two features, the Court in Jordan said that one of the reasons for holding an investigation is to maintain "public confidence in the [authorities'] adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts" (paragraph 108) The Court continued (paragraph 109):
"For the same reasons, 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. In all cases, however, the next-of-kin of the victim must be involved in the procedure to safeguard his or her legitimate interests."
The Court cited by way of example a case in which the family had no access to the investigation and court documents (see also paragraph 121 where the Court comments on disclosure in cases involving sensitive issues). Later in the judgment the Court wrote of the need to allay suspicion and rumour (paragraph 144).

85. In Keenan , the Court spoke of the need for the complainant to have "effective access" "to the investigation procedure".

86. Having regard to the cited passage from Jordan , it seems to me that Jackson J. was right to conclude that 4. and 5. were separate features.

87. In Jordan , the Court found a number of shortcomings including (paragraph 142):
"a lack of public scrutiny, and information to the victim's family, of the reasons for the decision of the DPP not to prosecute any police officer".

88. Applying the approach in Jordan , it seems to me that the defendant cannot rely on the facts surrounding the police investigation and subsequent decision not to prosecute as fulfilling the obligation under article 2

89. I turn finally to the Butt Report. Mr Crow relied heavily on the fact that the family was offered the opportunity to meet Mr Butt. Having not taken up that offer, he submitted that the family cannot now complain of any lack of involvement. An offer to meet does not in my view constitute "effective access" to the investigation procedure in a case of this kind.

90. Another shortcoming identified in Jordan was the absence of legal aid at the inquest and non-disclosure of witness statements (paragraph 142).

91. Zahid Mubarek was murdered in Feltham by a racist cell mate with "an alarming and violent criminal record, both in and out of custody". It is accepted that Zahid Mubarek was put in the same cell as his killer because of "systemic failures". Established procedures were not followed and there is an appalling history at Feltham of failure to comply with earlier recommendations. It seems likely (and it is certainly arguable) that there were serious human failings both at the wing level and at higher levels which have not been publicly identified. On the facts of this case the obligation to hold an effective and thorough investigation can, in my judgment, only be met by holding a public and independent investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses. Against the background of the material which I have set out at some length, the family and the public are entitled to such an investigation.

92. For these reasons this application succeeds to the following extent. The claimant is entitled to a declaration:
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 of the European Convention on Human Rights.

- - - - - - - - - -
MR JUSTICE HOOPER: At the conclusion of the hearing on 4th September I indicated that this application for review had succeeded. I now hand down my reasons.
Are there any corrections? Neither of you, I am afraid, complied with the request to send in corrections?
MR O'CONNOR: My Lord, that may be because there are not any, or I had not spotted any.
MR JUSTICE HOOPER: Mr Crow, I think you found two, but we never received information as to which two.
MR CROW: I do apologise. I am not sure if it was intentional, but the references in brackets to bundles, for instance in the middle of paragraph 3, comes out as 'SSHR' rather than 'SSHD'. I do not know if that is deliberate.
MR JUSTICE HOOPER: No, that is a mistake.
MR CROW: That is recurrent, my Lord.
MR JUSTICE HOOPER: That reoccurs throughout, does it?
MR CROW: It seems to more or less consistently in the bracketed references, although when it is a reference in the text to my client it is SSHD. The only other one we identified is in paragraph 73.
MR JUSTICE HOOPER: What should it be to?
MR CROW: In paragraph 73, the third line, I think the reference should be to paragraph '43(2)' not '42(2)'. I do apologise for not having spotted that.
MR JUSTICE HOOPER: The only advantage of you doing it is that one can then put the judgment up on the internet as quickly as possible. Now it will not go up because I shall have to make the corrections.
MR CROW: I am sorry, my Lord; it is a breakdown between myself and my junior, for which I take responsibility.
MR JUSTICE HOOPER: Subject to those, I think the journalists can have the copy you have now. I do not think those corrections are going to alter their reporting it.
MR O'CONNOR: In consequence of my Lord's order and judgment, I ask for an order for costs in three respects. First of all, an order for the costs of these proceedings against the Secretary of State.
MR JUSTICE HOOPER: Yes.
MR O'CONNOR: Secondly, an order for legal aid assessment of our client's costs in these proceedings and also in the proceedings against the Commissioner for Racial Equality.
MR JUSTICE HOOPER: Yes. As to the first of those?
MR CROW: I cannot resist, my Lord.
MR JUSTICE HOOPER: You can have both those two orders. Thank you.
MR CROW: My Lord, the Secretary of State would wish to ask for permission to appeal. There are six points. I am not trying to persuade you you are wrong, but if I could identify the points which we would wish to take further.
The first is your Lordship's decision to deal with the Secretary of State first. That is not just a procedural point because it feeds into the nature of the relief which your Lordship then orders, which, in our submission, is a declaration which does not in fact require any immediate action to be taken on it because it is still dependent on the outcome of the outstanding application.
The second point, my Lord, is the question whether the duty to conduct an independent investigation is triggered where there is in fact no suggestion that the death occurred at the hands of state agents. That was a point I did not argue but reserved to take on appeal.
The third point is to identify the purpose of an investigation, whether it is as broad ranging as your Lordship has concluded or whether the purpose is limited to identification of those who should face criminal prosecution.
The fourth point, my Lord, is whether the requirement for sufficient involvement of the family is merely an aspect of sufficient public scrutiny or whether the two are mutually independent tests which each have to be satisfied.
MR JUSTICE HOOPER: That is the "4" and "5" point?
MR CROW: Exactly so, my Lord.
The fifth issue is whether - this is a little fact-specific to this case, but it is by no means impossible that it could arise again - the fact that the family was offered the opportunity of involvement in the Butt report and did not take it up is then a bar to them subsequently complaining that there was insufficient involvement in the next.
MR JUSTICE HOOPER: In the?
MR CROW: In the Butt report process. Your Lordship may remember that an offer was made for a meeting and it was not taken up.
MR JUSTICE HOOPER: Yes.
MR CROW: The submission to your Lordship was that, if that offer is made and is not taken up, it does not then lie in the mouths of the family to say after the event that there was not a sufficient involvement on their part in any investigation.
The sixth and final point is to test your Lordship's identification of the necessary constituent elements for the independent investigation. Your Lordship has indicated that it should be in public; that there should be legal representation; that there should be access material and that there should be cross-examination. Again, my Lord, as a matter of principle, we will wish to test those requirements in the context of a case of this nature, where there has already been - we would say sufficiently - but in any event a considerable amount of investigation already; we would have wished to test further whether in fact all those elements need to be present in this case.
My Lord, on those six points, we would invite your Lordship to give us permission to appeal.
MR O'CONNOR: My Lord is notoriously fair minded, but we would ask you not to be too modest about the rectitude of your judgment. We submit there is no real prospect of success.
MR JUSTICE HOOPER: Remind me of the test. There are two strands to the test, are there not?
MR O'CONNOR: It is whether there is a real prospect of success or other substantial ground for granting permission. It is CPR 52.3.6 - permission to appeal.
MR JUSTICE HOOPER: What version of the White Book?
MR O'CONNOR: The Autumn 2000 one, which is probably out of date. It is page 959, but it is paragraph 52.1 CPR. 52.3.6:
"Permission to appeal will only be given where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard."

There is some debate in the commentary at 52.3.9 about the interaction between 'real prospect of success' and 'some other compelling reason'. The effect of the commentary is that it is difficult to imagine when there is some other compelling reason where there is no real prospect of success.

MR JUSTICE HOOPER: Yes, thank you. You can have permission to appeal. I will not limit you on any grounds. I am not going to go through the six grounds.
What is the coroner's case? I know Miss Sullivan is not here, but she asked my permission not to be here to save costs.
MR O'CONNOR: Exactly. I have indicated to her that there will be no discussion about the case save, if necessary, about listing. As I understand it, there has been some progress in agreeing a date. Provisionally it could well be Friday 2nd November. We had a number of dates proposed when my Lord is available, and that was one of them. I ask my Lord to fix that date. Of course the Secretary of State is an interested party in those proceedings for Friday 2nd November.
My Lord, there are two consequential orders. I have discussed this with my learned friend, and he consents to the first, which is that there is fourteen days for the Secretary of State to file an appellant's notice. There is normally another seven days before the notice is served on the respondent. We would ask, and my learned friend consents, that it should be served on us at the same time on the same day rather than a further seven days later. The point of that is that we would like to review the Secretary of State's appeal and the basis for it when approaching the resumed judicial review hearing against the coroner. It is little burden on the Secretary of State to serve it at the same time, so he consents to that.
MR JUSTICE HOOPER: You have agreed with the coroner, have you, that the 2nd November is the right day?
MR O'CONNOR: My Lord, I told my learned friend and Miss Sullivan of that, and I certainly think there is no problem.
MR JUSTICE HOOPER: Have you consulted with the list office?
MR O'CONNOR: It was the list office who proposed that as one of the range of dates.
MR JUSTICE HOOPER: I see.
MR O'CONNOR: And that has been provisionally selected.
My Lord, if there has been some misunderstanding and a party is unhappy I am sure they can come back to you, but it seems there is little difficulty.

(Judge asks associate to check the availability of that date with list office)
MR O'CONNOR: My Lord, may I say while we are awaiting that information, obviously we will be, from our partisan point of view, properly consider the utility of those proceedings against the coroner, particularly as there will now be an appeal by the Secretary of State. I merely mention that because my Lord may have an instinctive response to it as well which might be of assistance. In other words, I am really raising the quite objective question about whether we should proceed to a conclusion of those proceedings before there is a conclusion to the Secretary of State's appeal.
MR JUSTICE HOOPER: I set out in paragraph 22 the position, and the last line was "Should the claimant continue with that application?"
MR O'CONNOR: Indeed.
MR JUSTICE HOOPER: It seems to me that you have to make a decision. If you are going to continue with the application then my instinct is that it should be got on with 2nd November. If you are not going to make the application, if you are going to withdraw, then the matter goes to the Court of Appeal on a simpler basis.
MR O'CONNOR: Exactly.
MR JUSTICE HOOPER: I would have hoped that that decision might have been made in the last two days.
MR O'CONNOR: My Lord, we understand that. But we are reluctant to reach a conclusion on it until we see the appellant's notice. It is a factor.
MR JUSTICE HOOPER: What, the notice of appeal?
MR O'CONNOR: Yes.
MR JUSTICE HOOPER: The notice of appeal is going to contain six grounds at least, and Mr Crow has very helpfully spelt those out.
MR O'CONNOR: He has now and we will consider the position anxiously from our partisan point of view, but I raise it to see if my Lord has an instinctive response. The advantage of proceeding to a conclusion is the Court of Appeal will know yey or nay definitively one way or another. Of course they would know definitively one way or another if we abandon the proceedings as well. We will have to think it through, and we will urgently do so.
MR JUSTICE HOOPER: Can I put you under some sort of time limit? I am not talking about today because it is a matter you will want to discuss carefully.
MR O'CONNOR: The sooner we get the appellant's notice. We would like to see how he puts it, but this information my friend has given helpfully. We would hope to do so next week, let us say.
MR JUSTICE HOOPER: I do not think you need his notice in writing.
MR O'CONNOR: No.
MR JUSTICE HOOPER: Those six grounds were foreshadowed in his skeleton argument. He made it very clear all along that he wished to appeal the decision to deal with that case first, so there is nothing new there.
MR O'CONNOR: My Lord is right; we now know more from my learned friend than we did before the hearing today and I certainly think we will make up our mind before the end of next week.
MR JUSTICE HOOPER: Can I then say you are to make up your mind by Thursday at 5 pm? Does that put you under undue pressure?
MR O'CONNOR: It does not. My Lord, I have a further order... (Instructions taken.) My learned junior helpfully indicates that I probably need not trouble your Lordship with any further order. We were concerned about supervision of the future and timetables, but the Court of Appeal can now do that because they are seized of the matter.
MR JUSTICE HOOPER: I do think that the appeal should be expedited.
MR O'CONNOR: Yes.
MR JUSTICE HOOPER: What steps am I permitted to take to see that that happens? It can only be an invitation from me, but ...
MR CROW: I think that is the position. Your Lordship can certainly indicate that the hearing in which this judgment has been given is expedited and your Lordship would consider expedition in the Court of Appeal appropriate. I do not think your Lordship has jurisdiction to expedite, but obviously your Lordship's indication will be fed through when the appeal is lodged and the matter is sought to be listed.
MR JUSTICE HOOPER: It is sufficient, Mr Crow, if I just now say I invite the Court of Appeal to expedite the hearing of this case?
MR CROW: My Lord, I think that will be sufficient, yes.
MR JUSTICE HOOPER: So by next Friday we will know whether you propose to continue with the application against the coroner. Could you make sure it comes through to me on Thursday evening?
MR O'CONNOR: Yes.
MR JUSTICE HOOPER: And of course a copy to Mr Crow and to the coroner. We will leave it just like that, shall we?
MR O'CONNOR: Thank you, my Lord.
MR JUSTICE HOOPER: Thank you.