QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
MOHAMMED FAROOQ KHAN
|- and -
SECRETARY OF STATE FOR HEALTH
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Nigel Giffin QC (instructed by The Solicitor for The Department of Health) for the Defendant
Crown Copyright ©
Mr. Justice Silber:
The background to the claim
"Taking the findings of a high potassium at collapse, combined with the post-mortem findings and the experiments performed on 25 November 1999, described by Professor Forrest, in my opinion death is consistent with potassium poisoning".
The legal background and the issues
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court".
"Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that, without it, the substantive rights conferred by Article 2 would or might in some cases be rendered nugatory or ineffective. Thus the duty to investigate is adjectival to the duty to protect life, and to the prohibition of the taking of life"  (emphasis appears in the original judgment).
A. Did the circumstances in which Naazish died give rise to any adjectival Article 2 duty on the state to investigate her death? ("Issue A - The applicability of Article 2 issue")
B. Does the Secretary of State have the power to fund legal representation of the claimant at the forthcoming inquest of Naazish? ("Issue B – The inquest funding power issue")
C. Has there already been compliance by the state with the Article 2 investigative duty owed to the claimant before the inquest starts? ("Issue C – The Article 2 compliance issue")
D. If the answer to Issue C is in the negative, does Article 2 of the Convention now require the Secretary of State to fund the legal representation of the claimant at the forthcoming inquest of Naazish? ("Issue D – The Article 2 inquest issue")
E. Can the claimant rely on Article 2 of the Convention in the light of the fact that Naazish died before the 1998 Act came into force? ("Issue E – The commencement date issue")
Issue A – The applicability of Article 2 issue
a) "[the duty of the state to investigate] by its nature.. cannot be a duty defined by reference to fixed rules.. the duty is in every instance fashioned to support and make good the substantive Article 2 rights";
b) "the procedural obligation promotes these interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public….What is required is a flexible approach, responsive to the dictates of the facts case by case";
"The court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting state has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting state to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life" .
"The court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as a result of an act of violence. In its opinion and with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter" .
"The positive obligation imposed by Article 2 to set up an effective judicial system … may for instance also be satisfied if the legal system affords victims a remedy in the civil courts either alone or in conjunction with a remedy in the criminal courts enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for publication of the decision to be obtained" .
"Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence".
Issue B - The inquest funding power issue
"1(1). It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement-
(a) in the physical and mental health of the people of those countries, and
(b) in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act …
2. Without prejudice to the Secretary of State's powers apart from this section, he has power –
(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and
(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty".
Issue C - The Article 2 Compliance Issue
Investigations already carried out
The claimant's complaints
What investigations are still required?
(i) Need for participation by the claimant in the investigation
(ii) The need to investigate the precise circumstances leading to Naazish's death
(iii) Lack of independence in the inquiries that have taken place into Naazish's death
(iv) Investigating the alleged cover-up
"Across the spectrum of possible Article 2 violations, there are classes of cases which can readily be distinguished. One class is that an allegation of deliberate killing-murder-by servants of the state. A second is that allegations of killing by gross negligence-manslaughter-by servants of the state. A third is that of plain negligence by servants of the state leading to a death or allowing it to happen. In the context of any of these cases, there exists the lamentable possibility that the state is concealed or is concealing its responsibility for the death. That possibility gives rise to the paradigm case of the duty to investigate" .
"The court stresses that its examination of the applicant's complaint must necessarily be limited to the events leading to the death of their son, to the exclusion of their allegations that, following his death, the doctors responsible for his care and treatment fabricated his medical records to exonerate them of any blame. In the court's opinion, that latter issue falls to be determined from the angle of their complaint under Article 6 that they were unable to secure a ruling on the doctor's post-death responsibility. However the alleged post-death offences committed by the doctors did not alter the course of events which led to the death of the applicant's son".
(v) Participation is required as a benefit to Naazish's relatives
Conclusions on the allegation that the state has not yet complied with its investigative duties
Issue D – The Article 2 Inquest Issue
"Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method for apportioning guilt .. at an inquest it should never be forgotten there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring whichever metaphor one chooses to use".
Issue E – The commencement date issue
"a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may….. (b) rely on the Convention right or rights concerned in any legal proceedings..."
"Mr. Wright's death was in no sense a closed chapter. The Fatal Accidents Act action was still in progress…In short on 2 October 1998 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".
"Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of the perception that, without it, the substantive rights confirmed by Article 2 would or might in some cases be rendered nugatory or ineffective. Thus the duty to investigate is adjectival to the duty to protect the right to life and the prohibition of the taking of life…The duty [to investigate] is in every instance fashioned to support and make good the substantive Article 2 rights" (with emphasis added).
"the obligation to procure an effective official investigation arises by necessary implication in Articles 2 and 3. Such an investigation is required in order to maximise future compliance with those Articles"  (emphasis added)
"the nature and scope of an adjectival duty which by definition is not expressly provided for in the Convention, must especially be fashioned by the judgment of the domestic courts as to what in their jurisdiction is sensibly required to support and vindicate the substantive Convention rights"  (emphasis added)
(a) Article 2 does not expressly require a state to investigate the circumstances of a death which occurs while the deceased is in the state's custody (Amin paragraph 32);
(b) No authority has been cited to show that it has been held after full argument that the duty to investigate is a free-standing right, which is independent of the expressly stated duties in Article 2;
(c) Indeed the obligation on the state to investigate the circumstances of the deceased's death has invariably been described as "adjectival", arising "by necessary implication" and being "sensibly required to support and vindicate the substantive Convention rights";
(d) The state's duty to investigate the circumstances of the deceased's death is adjectival and that means that it flows from and is dependent on, as well as being subsidiary to, the primary duty in a particular case to protect life;
(e) No claim could be based on the express obligation under Article 2 (namely to protect life) if the death occurred before 2 October 2000 and
(f) Indeed the duty to investigate is in essence a remedy to support the right to protect life under Article 2 and there is no reason why the adjectival duty or remedy should come into force before the main right on which it is based.