England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Right Hon Lord Justice Laws

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/10/2009

Lord Justice Laws :

INTRODUCTION

1. The claimant in these judicial review proceedings was born in Jamaica on 5 October 1981 and came to the United Kingdom in May 2002. In July 2002 he was remanded in custody to HM YOI Feltham on a drugs charge. On 19 August 2002 he was found hanging from the bars of the window of his cell, having used a sheet to fashion a noose around his neck. He was resuscitated but suffered, and suffers, severe and continuing brain damage.
2. Article 2(1) of the European Convention on Human Rights (ECHR) opens with the words:

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

Article 2 has been construed as involving an ancillary or procedural obligation upon the State, in cases where a death or an attempted suicide (or "near-death") occurs in circumstances in which the State bears or may bear some responsibility for what has happened, to conduct an investigation which must fulfil certain standards, essentially of independence and openness.

3. In September 2005 judicial review proceedings were instituted on the claimant's behalf (the Official Solicitor acting as his litigation friend) in order to establish an obligation on the part of the Secretary of State to undertake an investigation into his attempted suicide which would meet these procedural requirements of Article 2. The claim was heard successively by Langstaff J ([2006] EWHC Admin 2558), the Court of Appeal ([2008] 1 WLR 158) and the House of Lords ([2009] 1 AC 588), and I shall have to refer to it further. Very broadly the conclusion reached was that the Article 2 obligation to investigate arose whenever an attempted suicide in State custody resulted in long term injury.
4. After the Court of Appeal's judgment in those proceedings had been given on 24 July 2007 the Secretary of State accepted that a public investigation which would comply with Article 2 was required on the facts of the case and set in motion arrangements for such an investigation; though he mounted an appeal to the House of Lords in order to obtain guidance in principle as to the reach of the obligation. By the present application for judicial review, brought with permission granted by Lord Carlile of Berriew QC sitting as an additional Queen's Bench judge on 12 March 2009, the claimant asserts that the arrangements for such an enquiry, so far made and put into effect, do not satisfy the standards which Article 2 demands.

THE CLAIMANT'S HISTORY

5. The events leading up to and including the claimant's attempt to kill himself were described by Waller LJ in the Court of Appeal in the earlier proceedings. I cannot improve on his account which is as follows:

"11. On 18^th July 2002 JL was arrested for possession of nineteen wraps of crack cocaine, with the intention of supplying to another. He was remanded in custody until 26^th July 2002. He was also subject to a detention order under immigration powers. This was his first time in prison custody. On the second entry in the core record form he was noted on 20^th July 2002 to be very anxious and stressed and to be vulnerable due to high anxiety. On 21^st July 2002 an F2O52SH, self-harm at risk form, was opened because he was very upset about his family circumstances and was in tears. It was noted that this should remain open due to his unpredictable mood. He was admitted to health care on account of anxiety and remained there until 23^rd July 2002. On 25^th July 2002 it was recorded that he was denying thoughts of self-harm at the present and on 26^th July 2002 he was remanded in custody until 23^rd August 2002.

12. On 27^th July 2002 an officer noted that he had concerns regarding JL and on the same day JL was said to be having increasingly negative thoughts about the future, to have subjectively low mood and to look a bit depressed. On 31^st July 2002 concerns were expressed that JL might try to self-harm and he was found very distressed in his cell, and a noose made out of sheets was found in his cell. This fact was recorded in a chaplaincy report, although the health care note and other records of that day made no mention of it. He was noted by Father Roger to be a very high suicide risk and he was admitted to health care for observation. He was placed on intermittent observations and was placed in a safe cell with stripped bedding until seen by a GP.

13. On 1^st August 2002 a note from a chaplain indicated that JL was overwhelmed by anxiety, worried about his children, extremely upset after an angry telephone call with his girlfriend, who said she could not visit, felt powerless and that any scenario he fears will happen has actually happened. The chaplaincy report indicated that at this time JL was very distressed and in need of support. It noted that the prompt for this episode was that he had had a row with his partner because she was not visiting him as often as he would have liked. The note also indicated that one of the chaplains and SO Boyes were concerned that JL was at risk of doing himself serious harm, as he was so prone to acting impulsively when emotional and he may see it as a means of getting out of prison.

14. On 4^th August 2002 an officer recorded that JL did not appear to cope too well when he did not have the company of his cell mate and that he would advise close monitoring if company ceased. On that day he was noted to be denying thoughts of self-harm or suicidal ideation at present and saying that he had not felt like that for over a week. On 8^th August the self-harm risk form was closed, following a review. A support plan was agreed, apparently, by a registered mental health nurse. On 9^th August he was noted to have been distressed the previous night and to have been extremely anxious since his father and brother were shot and killed in 2001. On 15^th August he was noted to be very quiet and withdrawn and worried about the outcome of the trial and about his family in Jamaica. On 19^th August 2002 he was noted to have constantly used the call bell. The memorandum relating to this, based on information from OSG Sharp, indicated that in the early hours of 19^th August JL repeatedly rang the cell bell and then asked to see a doctor. This was refused. It noted that JL gave a fictitious name and that at this time he appeared to have a short, wide piece of bed sheet around his neck. He was writing with the light on in the cell until 4am.

15. It was noted that OSG Sharp was after the event extremely concerned that his (Mr Sharp's) performance overnight might have had something to do with JL's self-harm attempt.

16. On 19^th August JL was locked in his cell alone. After lunch on 19^th August JL was unlocked for classes and made a telephone call. After this, following instructions, his name was not on the list for education classes and he was locked alone in his cell. It was on 19^th August at approximately 14.45 that JL was found suspended from the cell bars, with a ligature made from bed sheets tied round his neck and attached to the window bars.

17. The ligature was removed and JL was given CPR. A pulse was detected after three minutes but no breathing was noted. His pulse then stopped and he was resuscitated a second time. He ultimately survived but has serious brain damage.

18. The London area manager of the prison service promptly directed Mr Sheikh, a retired governor within the prison service, to investigate what had happened. He submitted his report to the area manager on 16^th October 2002 – but this did not become apparent to JL, or his relatives, or those acting for him, until it was disclosed in correspondence from the Treasury Solicitor on 26^th January 2005.

19. Amongst the findings of Mr Sheikh were first (perhaps a somewhat surprising finding) at 11.3 that 'JL did not express at any time, any thoughts of committing self-harm, though he did have continuous depressive moods and showed concerns about his children in Jamaica'.

20. Further he reported:-

'11.7 On the evidence found, the decision to open F2052SH was correct, although the closure of F2052SH was correctly based upon the information as well as the improved behavioural pattern of JL. Had the chaplain been invited to attend the case review, the decision to close it might not have been taken in the light of information provided by him.

11.8 The chaplaincy was quite deeply involved with JL, yet none of the chaplains was consulted, and the decision to close the F2052SH was made, as was evidenced by the detailed entries in the self-harm form.'

Mr Sheikh appends a letter from the Reverend Paul Foster, Anglican chaplain, which records, amongst other things:-

'When the chaplaincy team heard what had happened, most of us were surprised that this 2052SH had been closed without our input. JL has emotional ups and downs. He could not accept or understand why he is in prison. Some of his behaviour seemed to indicate that he would use any means to try to get out of prison – lying about the death of a child you love is extreme. He appeared to be a fairly high risk of self-harm, and certainly if Debbie had been invited to a case review she says she would have recommended that it be kept open for the foreseeable future. Chaplaincy has a large input into JL's life here and I believe we should have been consulted about his care, but we are generally bypassed when decisions of this nature are made. From our perspectives, this is one of the biggest lessons.'"

THE COURSE OF THE INQUIRY

6. It is inevitably accepted on all hands that Mr Sheikh's investigation did not meet the standards of independence and openness (which I will more fully describe in due course) required by Article 2. That is no disrespect to Mr Sheikh, who no doubt conducted the internal investigation demanded of him conscientiously and effectively.
7. In November 2007 the Secretary of State proposed a two-stage procedure in order to satisfy Article 2: first, an investigation phase (initially the Secretary of State had in mind that this stage would be conducted by the Prisons and Probation Ombudsman (PPO)), and secondly a public enquiry phase under the chairmanship of a legally qualified person: Mr Swift for the Secretary of State indicated at the hearing that a deputy coroner would be appointed. This suggestion was put to the claimant's advisors by letter of 29 November 2007 from the Treasury Solicitor. On 6 December 2007 the claimant's solicitors indicated their agreement in principle, sought an acknowledgement that medical evidence was likely to be critical and made suggestions as to how certain evidence might be assembled and other matters.
8. There was then a delay. The claimant's representatives sent a chasing letter on 27 February 2008. They received holding replies dated 3 March 2008 and 26 March 2008. They wrote again on 19 June 2008, and again on 23 July 2008. At length they received a letter from the Secretary of State dated 3 October 2008 (the day before the House of Lords hearing in the first judicial review). It stated that the PPO would not after all be undertaking the investigation, and "we have commissioned the investigation on behalf of the Secretary of State for Justice to be conducted by Professor Cynthia McDougall (a psychologist, who has experience of prisons but has not worked at HM YOI Feltham)". What had apparently happened was that difficulties had arisen in relation to the involvement of the PPO in a different two-phase investigation, and by June 2008 it had become clear, according to the Secretary of State, that it would not be appropriate to invite the PPO to undertake the phase one investigation in this case. Accordingly Professor McDougall was identified and contacted in September 2008, and agreed to undertake the phase one work. The letter commissioning her was dated 2 October 2008 and a copy was enclosed with the Secretary of State's letter of 3 October to the claimant's solicitors. The terms of reference for the investigation were set out as follows:

to examine the management of JL by HM Prison Service and HM YOI Feltham from 19 July 2002 to the date of his life-threatening attempted suicide on 19 August 2002, and in light of the policy and practices applicable to JL at the relevant time;

to examine relevant health issues, including mental health assessments and JL's clinical care up to the point of his attempted suicide on 19 August 2002;

to consider, within the operational context of the Prison Service, what lessons in respect of current policies and procedures can usefully be learned and to make recommendations: and

to provide a formal report of the findings.

The commissioning letter also included these directions:

This is an Article 2 investigation and must be conducted in an open, transparent and even-handed manner. You should assume that the material that you receive will be distributed simultaneously to the relevant parties to the investigation, who will be agreed from the outset…

You must give JL through his representatives, and his family with his agreement, the opportunity to participate in your investigation…

A chronology of events should also be prepared early in the investigation: this may be amended as the investigation progresses with the agreement of the parties.

9. Professor McDougall was assisted in the work by Mr Howard Davidson, a retired prison governor, and by Dr Ian Cumming, a consultant psychiatrist. Her draft report was completed on 17 February 2009. A copy was provided to the claimant's solicitors on 19 February 2009 (though without the appendices at that stage: by an oversight they were not provided until April 2009). This was, in fact, three days after a detailed letter before claim was sent by the claimant's solicitor to the Treasury Solicitor.

TWO STAGES

10. The second stage of the enquiry has not yet taken place. The grounds of challenge advanced by Ms Richards for the claimant are, as I shall show, all directed to the first stage, as regards which it is important to note that Professor McDougall's report remains in draft form. However the fact that two phases are contemplated is of some significance, not least since Mr Swift submits that if (contrary to his principal case) I were to conclude that stage 1, presided over by Professor McDougall, fell short of the Article 2 standards in any of the respects claimed, any such defect might be "cured" by stage 2.
11. The relationship intended between stage 1 and stage 2, is, however, at first blush somewhat mystifying. It is plain from Professor McDougall's terms of reference that she was not merely requested to take evidence and make findings of fact upon which the stage 2 enquiry would then base evaluative conclusions. She was herself required to make judgments: "to consider… what lessons in respect of current policies and procedures can usefully be learned and to make recommendations". But the stage 2 enquiry may be expected to do the same thing; indeed Mr Swift indicated in the course of argument that the terms of reference for the deputy coroner who would conduct stage 2 would actually be the same as those issued to Professor McDougall. That being so, and given also (as Mr Swift confirmed) that stage 2 may revisit any matter of fact already canvassed in stage 1, it might be thought that stage 2 will merely replicate stage 1, but with someone different running the enquiry.
12. There is, as one might perhaps expect, a certain amount of background to the evolution of this two stage process, and it is convenient to say a little about it here. The process seems to have originated in the practice according to which deaths in prison or police custody were enquired into. Before 1 April 2004 deaths in prison were first investigated by the Prison Service and then through a coroner's inquest. Deaths in police custody were likewise investigated by the police, followed by an inquest. Thus in relation to such deaths a two stage process was already established. In the case of a death in custody the law required that there be an inquest, and the authorities no doubt thought it right first to conduct a prompt internal inquiry for themselves, so as to learn necessary lessons as soon as possible and be in a position to put helpful material before the coroner.
13. On 1 April 2004, as regards deaths both in prison and police custody, the first stage was substantially modified, as I understand it in an endeavour to secure conformity, or greater conformity, with the requirements of Article 2. Instead of being conducted by the Prison Service and police, they would be carried out by the PPO and the Independent Police Complaints Commission (the IPCC) respectively. Specifically the role of the PPO was to investigate and produce reports on all deaths in prison custody according to published terms of reference, with which I have been provided. Paragraph 3 of that document provides in part:

"The aims of the [PPO's] investigation will be to:

Establish the circumstances and events surrounding the death...

Examine whether any change in operational methods... would help prevent a recurrence.

In conjunction with the NHS where appropriate, examine relevant health issues...

Provide explanations and insight for the bereaved relatives.

Assist the Coroner's inquest in achieving fulfilment of the investigative obligation arising under article 2 of the [ECHR], by ensuring as far as possible that the full facts are brought to light and any relevant failing is exposed, any commendable action or practice is identified, and any lessons from the death are learned."

THE GROUNDS OF CHALLENGE

14. I shall deal in due course with the implications of the two-stage process. As we shall see from the cases, there has been something of an evolution in its use or application. It is convenient first to identify in summary form the grounds of challenge advanced by Ms Richards, of which there are four. The first is that the stage 1 investigation was not sufficiently independent from the State to meet the standards or requirements set by Article 2. This concerns Professor McDougall's previous (and to some extent current) connections with the Prison Service. It is to be noted that this complaint was not raised at any stage before the letter of claim of 16 February 2009. The second ground is that the commissioning letter to Professor McDougall gave rise to a legitimate expectation enjoyed by the claimant, essentially to the effect that through his representatives he would be given an opportunity to participate in the investigation; and this expectation, it is said, was not fulfilled. This marches with the third ground, and I shall deal with grounds 2 and 3 together. Ground 3 is that Article 2 itself required the claimant to be afforded an opportunity to participate in the investigation. The last ground is that the investigation has not been conducted promptly, as Article 2 requires. Originally a further ground was advanced to the effect that the Secretary of State had not fulfilled an undertaking given in the commissioning letter of 2 October 2008 to provide adequate funding for the claimant's participation in the investigation. However this has been resolved and I need say no more about it.

ARTICLE 2 ENQUIRIES: THE LEGAL STANDARD AND THE SCOPE OF THE PROCEDURAL DUTY

15. Before I confront Ms Richards' individual grounds it will be convenient to consider the learning which establishes the standards required to be fulfilled in the conduct of enquiries pursuant to the ancillary or procedural duty arising under ECHR Article 2. In particular it will be necessary to look at authority dealing with the scope of the duty, its application to "near-death" cases, and the use of a two stage process in such cases.

Amin [2004] 1 AC 653

16. There is a good deal of case-law, both here and in Strasbourg, as to the general position relating to the procedural duty, but the overall effect of the jurisprudence may be gleaned from Lord Bingham's summary in Amin [2004] 1 AC 653. That was a case in which a 19 year-old prisoner serving a sentence at Feltham YOI was murdered by his cell-mate. There were circumstances strongly suggesting that the crime was racially motivated. An internal inquiry was established under a serving governor and senior investigating officer of the Prison Service. The cell-mate (having admitted the killing) was convicted of murder. An inquest had been opened and adjourned, but after the cell-mate's conviction the coroner declined to resume it. The Commission for Racial Equality announced a formal investigation into racial discrimination in the Prison Service, but refused both to allow the deceased's family to participate in the enquiry and to conduct hearings in public. The family sought an independent public enquiry, but the Secretary of State declined that request. Hooper J (as he then was) held that on the facts and in light of the jurisprudence Article 2 required such an enquiry. The Court of Appeal (Lord Woolf CJ, myself and Dyson LJ) disagreed. The House of Lords restored Hooper J's decision. Lord Bingham said this:

"20. Most of the recent European cases to which reference was made in argument before the House concerned killings deliberately carried out, or allegedly carried out, by agents of the state. Naturally, therefore, such deliberate killings by state agents were the primary, although not the exclusive, subject of the Court's attention. The cases clearly establish a number of important propositions:

(1)  It is established by McCann [(1995) 21 EHRR 97], paragraph 161, Yasa v Turkey (1998) 28 EHRR 408, paragraph 98, Salman [(2000) 34 EHRR 425], paragraph 104 and Jordan [(2001) 37 EHRR 52], paragraph 105 that (as it was put in McCann):

'The obligation to protect the right to life under [article 2(1)], 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.'

(2)  Where agents of the state have used lethal force against an individual the facts relating to the killing and its motivation are likely to be largely, if not wholly, within the knowledge of the state, and it is essential both for the relatives and for public confidence in the administration of justice and in the state's adherence to the principles of the rule of law that a killing by the state be subject to some form of open and objective oversight: paragraph 192 of the opinion of the Commission in McCann, set out at pages 139-140.

(3)  As it was put in Salman, paragraph 99,

'Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused [footnote omitted]. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies.'

Where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred: Salman, paragraph 100; Jordan, paragraph 103.

(4)  The obligation to ensure that there is some form of effective official investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by an agent of the state: Salman, paragraph 105.

(5)  The essential purpose of the investigation was defined by the Court in Jordan, paragraph 105:

'… 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. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures …..'.

(6)  The investigation must be effective in the sense that (Jordan, paragraph 107) 'it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances . . . and to the identification and punishment of those responsible . . . This is not an obligation of result, but of means.'

(7)  For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, paragraph 106) 'for the persons responsible for and carrying out the investigation to be independent from those implicated in the events . . . This means not only a lack of hierarchical or institutional connection but also a practical independence . . .'.

(8)  While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, paragraph 121), there must (Jordan, paragraph 109) '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.'

(9)  'In all cases', as the Court stipulated in Jordan, paragraph 109:

'the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests'.

(10)  The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, paragraph 143. But it is 'indispensable' (Jordan, paragraph 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force."

17. As Lord Bingham noted at paragraph 21 in Amin, most of the propositions enumerated by him at paragraph 20 " were laid down in cases involving deliberate killing or alleged killing by agents of the State". Amin itself was not such a case, and nor, of course, is this. How far do the investigative standards required for killings by State agents apply in other cases? Lord Bingham proceeded to cite Edwards v United Kingdom (2002) 35 EHRR 487, which on its facts bore strong similarities to Amin, and also R (Wright) v Secretary of State [2001] EWHC Admin 520, [2001] UKHRR 1399. Wright was a decision of Jackson J (as he then was) in which there was an alleged failure of the Article 2 procedural obligation to investigate the death of a serving prisoner who suffered a severe asthmatic attack in his cell. Jackson J held there had not been an effective investigation. His decision was before Hooper J at first instance in Amin, who as I have stated allowed the application in that case. Overturning his judgment the Court of Appeal (in passages cited by Lord Bingham in Amin) held that the nature of the Article 2 procedural duty was essentially pragmatic, moulded case by case, and that "publicity and family participation are not necessarily discrete compulsory requirements which must be distinctly and separately fulfilled in every case". Lord Bingham however stated (paragraph 32):

"Mr Crow [for the Secretary of State] was right to insist that the European Court has not prescribed a single model of investigation to be applied in all cases. There must, as he submitted, be a measure of flexibility in selecting the means of conducting the investigation. But Mr O'Connor was right to insist that the Court, particularly in Jordan and Edwards, has laid down minimum standards which must be met, whatever form the investigation takes. Hooper J loyally applied those standards. The Court of Appeal, in my respectful opinion, did not. It diluted them so as to sanction a process of inquiry inconsistent with domestic and Convention standards."

18. Their Lordships' House made it plain in Amin that the Strasbourg jurisprudence insisted on the fulfilment of minimum standards in every case where the Article 2 procedural duty arose, and affirmed that the situations in which the duty arose were by no means confined to deliberate killing or alleged killing by agents of the State. The Court of Appeal had wrongly rejected a proposition formulated by Jackson J at paragraph 43 of his judgment in Wright (and accepted by Hooper J) as follows:

"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 paras 106-109."

19. But there was more to be said as to the scope of the procedural duty. What about a near-death in State custody? In looking at the authority touching this question, we shall also see greater light cast on the use of a two-stage process.

D [2006] 3 AER 946

20. The steps by which the two-stage approach came to be applied to "near-deaths" in custody may be said to begin with D [2006] 3 AER 946, in which Sir Anthony Clarke MR as he then was delivered the judgment of the court. The brief facts were that a 22-year old man who was remanded in custody charged with attempted robbery and other offences, and who had a history of self-harm, attempted to hang himself in his cell. He very nearly succeeded. Like the claimant he suffered permanent and irreversible brain damage. There was an investigation by a senior investigating officer in the Prison Service: no doubt analogous to Mr Sheikh's investigation in this case. An anxious feature in D was that important documents annexed to the officer's report went missing with no explanation.
21. The court agreed (paragraph 11) with the judge below that the investigative obligation under Article 2 relating to deaths in custody may also apply in a case where the subject had sustained life threatening injuries. But the Secretary of State's acceptance of this position was qualified:

"12. The Home Secretary accepted before the judge and accepts before us that, in combination, (a) the circumstances surrounding the attempted suicide by D, who was known by the prison authorities to be 'a real and immediate suicide risk', (b) the seriousness of that incident and its consequences and (c) the existence of issues as to whether more could have been done to deal with the risk, triggered the implicit investigative obligation under article 2. It is right that we should record, as the judge did, that the Home Secretary's acceptance that the investigative obligation was triggered in this case is fact specific and that he does not accept that such an obligation would arise in all cases of self-harm or attempted suicide in custody."

22. The Secretary of State, accepting that the internal enquiry by a senior investigating officer did not satisfy Article 2, proposed (see paragraph 16 of the judgment) that the PPO should carry out an enquiry. However the PPO did not propose to hold a public hearing. The Court of Appeal had to consider whether such a course would be compatible with Article 2. The judge below had held that it would not. The Court of Appeal stated:

"24. In considering whether the judge erred in principle, it is in our view important to have in mind what the judge meant by directing that the inquiry must be in public. We do not think that he can have meant that the whole process must be in public. No inquiry is ever wholly in public. Thus, for example the police investigate a death and report to the coroner. Their investigation is not in public.... We think that the judge must have contemplated simply that Mr Shaw (or whoever conducts the inquiry) would make the evidence and any written submissions public and take oral evidence in public, subject to the proviso which he included in the order to the effect that there might be Convention compatible reasons for not holding the whole investigation in public. It will of course be for the person conducting the inquiry to decide what oral evidence to call and indeed whether he wishes to hear oral submissions."

Here we can see the makings of a distinction between an investigative stage, not or not necessarily held in public, followed by public hearings at which the evidence is given. The court continued:

"25. We have reached the conclusion that the authorities, and in particular, Amin [sc. in the House of Lords: [2004] 1 AC 632], demonstrate that the judge was correct to hold that the investigation into the attempted suicide of D should be in public (in the sense just described) in order to discharge the United Kingdom's obligations under article 2 of the Convention."

23. The court also held (paragraph 42) that the family of the injured person should in general "be entitled to see the written evidence, to be present during oral evidence and to make appropriate submissions, including submissions as to what lines of enquiry should be adopted, what questions asked and, indeed, who should be permitted to ask witnesses questions about what"; but (contrary the view of the judge below) there was no entitlement to cross-examine the witnesses. In addition the court noted (paragraph 44) that under the Inquiries Act 2005 there was power to summon witnesses (and an ad hoc inquiry might be converted to an inquiry under the Act by a simple procedure). Lastly the court (paragraph 47) endorsed the judge's view that "adequate funding for D's representatives must be made available without inappropriate conditions attached".
24. The next stage in the evolution of the procedural duty's scope (and the two-stage approach's application to near-deaths in custody) consists in the earlier litigation in this case: JL in the Court of Appeal and the House of Lords.

JL in the Court of Appeal: [2008] 1 WLR 158

25. It was not clear from D precisely what was the scope of the situations in which a "D-type investigation" was required. I have cited paragraph 12 of the judgment, in which the court recorded that the Home Secretary's acceptance that the investigative obligation was triggered in D's case was fact specific. In JL in the Court of Appeal Waller LJ, with whom Maurice Kay and Wilson LJJ agreed, observed (paragraph 4) that "Mr Giffin QC for the Secretary of State before us would I think add that it would not arise in all cases of suicide in custody itself". Waller LJ proceeded to state:

"7. What each side is seeking primarily is the answer to the question whether the enhanced obligation to investigate and particularly to carry out an investigation with the features laid down in R(D) v Secretary of State (a D-type investigation) has been triggered in this case, but the Secretary of State's interest is seeking a definition of the trigger which can be applied also in the future, the concern being the resource implications that would seem to follow if a D-type investigation must occur in every case of a suicide or near miss by someone in custody."

26. After citing Amin and other authority Waller LJ stated as follows:

"32. I am clear that the simple fact of a death or serious injury of a person in custody gives rise to an obligation on the State to conduct the enhanced type of investigation. The extent of that investigation will depend on the circumstances and in my view some consideration needs to be given as to whether different triggers may not operate at different stages. The weaknesses in Mr Giffin's submissions (who would seek to suggest no form of investigation by an independent person needs to take place if there is 'no arguable case') are first that the accountability of the State means as it seems to me more than simply being accountable for a substantive breach; it means accountable in the sense of explaining how the death in custody occurred...

33. As regards the nature of the investigation it seems to me that a death or near death in custody ipso facto means that the State must commence an investigation by a person independent of those implicated in the facts. The extent to which there must then be some further inquiry in the nature of a public hearing in which the next of kin or the injured person can play a part will depend on the circumstances. In the case of a death there will be an inquest, and the coroner may have to decide whether the circumstances are such as to require something containing all the Amin ingredients. In cases of serious injury the nature of the further inquiry necessary will depend on the facts as discovered by the independent investigator. It is at this stage that I would accept something more than the mere fact that the death or serious injury was in custody will dictate the extent of the necessity to hold a full D-type inquiry. But my emphasis is to stress that in my view where the death or suicide or near suicide is in custody the something is not best expressed in the words 'an arguable case', but in the language favoured by the judge 'that the State or its agents potentially bear responsibility' and that in the particular circumstances ascertained by the independent investigator 'it is not plain that the State or its agents can bear no responsibility'."

Here the two stages begin to find overt expression.

27. Waller LJ proceeded to cite much authority demonstrating that in the case of a death or near-death in custody there was no requirement for the next of kin "to set up some form of prima facie case" of fault on the part of the State before the investigative obligation was triggered. At length he came to apply the approach he had taken to the facts of the present case:

"57. I have set out the facts at the commencement of the judgment. I have also set out the background statistics in relation to suicides and attempted suicides in prisons. In that context it is clear to me that the obligation on the State to initiate an enhanced investigation was clear. In this case without in any way casting aspersions on Mr Sheikh's integrity an investigation by a former prison governor could not have had the degree of independence required.

58. I can however go further. If and insofar as there has been some investigation and some discovery of the facts from the records produced, for the reasons essentially given by the judge, this is a case in which a further enquiry conforming to that required in D is necessary.

59. JL having been correctly placed on Form F2052SH, was then taken off that form in circumstances which give rise to anxiety. First, it seems that the records may not have recorded the 'noose' incidents. Perhaps more importantly the Rev. Foster regarded JL as remaining a high risk to himself but the chaplains were not consulted. Thus those who took the decision to discharge JL from F2052SH were unaware of their views. In the event the facts as disclosed from the records as I have set them out, but particularly the fact he was on the F2052SH form and then taken off it, taken together with his conduct on the night before he was found, all give rise to questions to which the family are entitled to answers. The situation, occurring in the context of the statistics to which I have referred relating to suicides and self harming by persons in custody, is one in which it is important (echoing the words of Lord Bingham in Amin) that the full facts are brought to light, that culpable conduct, if it exists, is exposed and that certain practices such as not consulting with the chaplain and his staff are considered.

60. An investigation by an independent investigator would in this case have had to form the view that potentially the State may have failed in its obligations to protect life giving rise to an obligation to hold the full D-type inquiry. He could not have concluded that it was plain that the State could never be responsible."

JL in the House of Lords: [2009] 1 AC 588

After the Court of Appeal's judgment had been given on 24 July 2007 the Secretary of State, as I have indicated, accepted that a D-type investigation was required on the facts of the present case; and in November 2007 the two-stage procedure was proposed. Notwithstanding this the Secretary of State sought and obtained leave to appeal the Court of Appeal's decision to the House of Lords, in order to test in principle the scope and nature of the procedural obligation in relation to near-deaths in custody. His position was described by Lord Phillips of Worth Matravers at paragraph 13, but I can go to paragraph 32:

"It is common ground, and obviously correct, that where a prisoner attempts to commit suicide in prison, nearly succeeds and causes himself serious injury in the attempt, some investigation of the surrounding facts is necessary. The Secretary of State contends that the initial investigation can be internal and that, unless it shows that there is an arguable case that the prison authorities were at fault in permitting the suicide attempt to occur, there will be no need for any further investigation. JL and the intervener [sc. the Equality and Human Rights Commission] contend that article 2 requires that, from the outset, the investigation must be carried out by a person independent of the prison authorities."

28. Lord Phillips concluded (paragraphs 33, 37, 38), in agreement with the Court of Appeal, that "a near-death in custody ipso facto meant that the State was obliged to conduct an 'enhanced type of investigation' and that this called for the commencement of the investigation 'by a person independent of those implicated in the facts'". An internal investigation cannot suffice, even if its conclusion is that there is no arguable case of fault on the part of the relevant State authorities. Such an enhanced investigation was not itself a D-type enquiry. Whether such a process was additionally required would (paragraph 43)

"depend not merely upon whether the initial investigation is independent, but upon whether it satisfies all the requirements of an enhanced investigation]...

45. There will, however, be circumstances in which the initial investigation will not be adequate to satisfy article 2 and where a D type investigation is required. The public interest may itself require this. In Edwards the Court remarked that the manner in which the deceased lost his life was so horrendous that the public interest in the issues thrown up called for the widest exposure possible. The need for an efficacious investigation may require this... Where the initial investigation discloses serious conflicts of evidence a D type investigation may be called for. There will be other circumstances in which the person carrying out the initial investigation will decide to recommend a D type investigation... I do not believe that it would be appropriate for your Lordships to attempt to prescribe the circumstances in which a D type investigation will be necessary to satisfy article 2."

29. Lord Rodger emphasised the need for an independent investigation compliant with Article 2 to be established, as far as possible, at the outset. But he also made it plain that this by no means implied a D-type enquiry in every case:

"77. The Secretary of State is concerned about the financial implications of having to hold an independent investigation in cases of attempted suicide. His concern is entirely proper, as the European Court has recognised in the judgments cited in para 56 above. His anxieties may have been fuelled, however, by an impression that, whenever article 2 requires an independent investigation to be set up, that investigation has to have all the bells and whistles of the full-blown public inquiry described by the Court of Appeal in [D] - sometimes called a 'type D inquiry'. Nothing could be further from the truth. I respectfully endorse what my noble and learned friend, Lord Brown of Eaton-under-Heywood, says on this matter in paras 107 and 108 of his speech."

30. Lord Brown observed in those paragraphs:

"107. With regard to near-suicide cases resulting, as here, in lasting serious injury..., I have no doubt that Mr Shaw was right in his D report to recommend (as noted by Lord Phillips at para 47) investigations which 'include an independent element, and engage the person who has been harmed and/or their family'. If the Ombudsman himself, or perhaps a senior deputy, could carry them out, so much the better. Elementarily, to satisfy the basic requirements of any article 2 investigation, besides being independent and involving the family, they must in addition be initiated by the state, be promptly and reasonably expeditiously carried out, and provide for a sufficient element of public scrutiny. Beyond this, however, it is impossible to be prescriptive.

108. Generally speaking I can see no need for inquiries into near-suicides to take place in public although obviously the independent investigator's report would itself be made public. If, of course, any particular problems come to light during the investigation—if, say, witnesses prove uncooperative, or egregious failures become manifest (again one cannot be prescriptive about the circumstances which might occasion a change of course), the person conducting the investigation might feel it necessary to expand it into something akin to a D-type inquiry. For my part, however, I would expect that to be a comparatively rare event and, concerned though inevitably your Lordships must be about a number of apparently troubling features of the respondent's attempted suicide, I question whether this is itself such a case."

31. Clearly the House of Lords considered that every near-death in custody required at least an initial "enhanced" investigation – that is, one which met the general requirements of independence, efficacy, and family involvement, although not necessarily publicity. Such an exercise would not itself amount to a D-type public enquiry (in fact Lord Brown considered that D was wrongly decided – paragraph 104). (I respectfully agree with Pitchford J's observation in SP [2009] EWHC Admin 13, paragraph 51, that "by 'enhanced' [Lord Phillips] meant an investigation having the features identified in Amin... but falling short of a full public inquiry contemplated by the Court of Appeal in D".) Whether a full D-type enquiry was needed would be a matter for the judgment of the person or body holding the initial investigation: see for example paragraphs 45 and 108.

THE FORM OF THE ENQUIRY IN THIS CASE

32. It seems to me that the decision taken by the Secretary of State as to the form of enquiry to be undertaken in the present case is, in one respect at least, out of kilter with the kind of process contemplated by the House of Lords in JL. Their Lordships envisaged an investigation which would itself fulfil Article 2, though it would not necessarily be garnished with all the "bells and whistles" of a D-type public enquiry. The person or body conducting the investigation might however conclude that in the particular circumstances Article 2 required a D-type enquiry to be held. But here the Secretary of State has decided in advance that a D-type enquiry will take place. Professor McDougall has had no say in the matter. Thus the course taken by the first-stage investigation has had no influence on whether such an enquiry will follow or not.
33. I do not make this point in order to criticise the Secretary of State. The Court of Appeal were clear (see Waller LJ, paragraph 58) that this case called for a D-type enquiry; and despite the role assigned by the House of Lords to the first stage investigator, there will no doubt be cases where it is plain from the outset that a D-type enquiry is necessary. At all events the Secretary of State accepted the Court of Appeal's view and set arrangements in hand for such an enquiry to be held, before the House of Lords' judgment was given. However in addressing Ms Richards' grounds, to which I now turn, I should bear in mind the fact that (inevitably) the arrangements under scrutiny have not been arrived at in light of the guidance offered by their Lordships' House. This will not be true of future cases, in which the first stage investigator will fully occupy the role assigned to him or her by their Lordships' House.

GROUND (1): INDEPENDENCE

34. It is not suggested that Professor McDougall was animated by any conscious bias in favour of the Prison Service or against the claimant. If it were, I should roundly reject the suggestion for want of any evidence to support it. The case advanced is that the fair-minded and informed observer would conclude that there was a real possibility that Professor McDougall, by reason of her past and present connections with the Prison Service, was biased. This is an allegation of apparent bias. The distinction between apparent and actual bias is of course very familiar in the English cases: see for example, among many authorities, the Pinochet case [2000] 1 AC 119. But it is not so patent in the language of the Strasbourg jurisprudence dealing with the requirement of independence for the purpose of the Article 2 procedural duty. Before describing the particular facts relevant to this ground of challenge I should look briefly at the case-law. There is high authority which conforms the English approach with that taken in Strasbourg. The resulting test, as I shall show, is in the terms in which I have characterised Ms Richards' submission.

Authorities

35. As I have indicated Lord Bingham in Amin (paragraph 20, point (7)) cited paragraph 106 of Jordan (2001) 37 EHRR 52, in which the Strasbourg court said this:

"106.  For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events... This means not only a lack of hierarchical or institutional connection but also a practical independence..."

This formula is repeated in Edwards v United Kingdom (2002) 35 EHRR 487 at paragraph 70. That case, like Amin, concerned the quality of enquiry into the death of a prisoner killed by his cell-mate.

36. Mr Swift submits that "hierarchical or institutional connection" refers to apparent bias, and "practical independence" to actual bias (or its absence). For what it is worth I think this is right. But in any event the relation between the Convention approach to bias and that taken in the English cases has been authoritatively expounded in three recent cases, In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700, Porter v. Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2003] ICR 856. These are not cases on Article 2; but as it seems to me like principles must apply to the standard of independence required of an investigator in an Article 2 case. It is enough to cite this passage from the joint opinion of the House of Lords in the last case, Lawal:

"14.      In Porter v. Magill... the House of Lords approved a modification of the common law test of bias enunciated in R v Gough [1993] AC 646. This modification was first put forward in In re Medicaments and Related Classes of Goods (No. 2).... The purpose and effect of the modification was to bring the common law rule into line with the Strasbourg jurisprudence. In Porter v Magill Lord Hope of Craighead explained:

'102. . . . The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No. 2)... to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of the court, observed, at p 711A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p 711B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp 726-727:

"85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to "a real danger". Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.'

The House unanimously endorsed this proposal. In the result there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Magill v Porter has at its core the need for 'the confidence which must be inspired by the courts in a democratic society': Belilos v Switzerland (1988) 10 EHRR 466, at para 67; Wettstein v Switzerland (Application No. 33958/96) para. 44; In Re Medicaments, at para 83. Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 200 CLR 488, 509, at para 53, by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'.

37. Some care, I think, is needed in relation to unconscious bias. Unconscious bias, if it is demonstrated, is strictly speaking a species of actual bias. It moves the mind of the decision-maker, as surely as does a prejudice or animus against a party in the case. But since even the decision-maker is unaware of it, it is unlikely to be so demonstrated. Its true importance is as the principal focus of apparent bias claims. As was said in Lawal, "[p]ublic perception of the possibility of unconscious bias is the key". And this must be what Pitchford J had in mind in SP [2009] EWHC Admin 13 when he said (paragraph 80):

"It seems to me, for example, that it would hardly be appropriate for a retired Detective Chief Superintendent to investigate and make recommendations upon the force policy of a Chief Constable under whom he had served, whether in the same force or not. The risk of unconscious bias one way or the other is obvious."

38. As I have said Ms Richards put her case on ground 1 on the footing of apparent bias. She submitted that the fair-minded and informed observer would conclude that there was a real possibility that Professor McDougall, by reason of her past and present connections with the Prison Service, was biased. However she was also inclined to advance a case of actual unconscious bias, and I shall have to deal with that.

Professor McDougall's Career

39. Professor McDougall is a chartered forensic psychologist. She has been a member of the British Psychological Society since 1981 and as such is bound by the Society's Code of Conduct. From 1979 until 1991 she was employed as a psychologist by the Prison Service. She worked at Frankland, Acklington and Wakefield Prisons (she has at no time held any post within the London area of the Prison Service). Her work during this period did not involve her in the provision of healthcare for prisoners, but rather in the development of offending behaviour programmes. At Wakefield she was involved in a certain amount of staff training on suicide and self-harm awareness. From 1991 until 1999 she was Head of Prison Service Psychology, and during this period held a number of senior positions in areas such as personnel, human resources strategic planning, and organisational services. These roles did not involve suicide prevention policy or its implementation. From September 1999 to April 2000 she was Head of Psychology for Prison and Probation Services. She left the Prison Service in 2000, though since then she has undertaken consultancy work for the Service in various contexts, as I shall explain.
40. In 2000 Professor McDougall was awarded an honorary professorship at the Psychology Department of the University of York, and in 2001 was appointed Director of that university's Centre for Criminal Justice Economics and Psychology. She remains employed by York University and has been involved in a range of distinguished academic work.
41. Her connections with the Prison Service since 2000 have included membership of the Service's Close Supervision Centre Advisory Group, between 2004 and 2006. This was a group of invited independent experts in the criminal justice field, asked to advise on the humane and safe containment of the most dangerous prisoners. In 2007 she was appointed an independent member of a working group established by the Area Manager for Yorkshire and Humberside to review reports by the PPO into certain deaths in custody at HMP Leeds, including suicides, with a view to the introduction of new systems to prevent such deaths. Professor McDougall's role in this local initiative was to provide external academic scrutiny and to prepare a trend analysis of suicides at the prison over a three year period. Her commitment amounted to ten working days over eight months, and two follow-up meetings in May and November 2008. She also acts (following an open competition) as an adviser to the Durham Probation Service, dealing with effective practice as to risk management in the community of what are referred to as Multi-Agency Public Protection offenders and the evaluation of initiatives introduced by the Probation Service. This commits her to eight days work each month. Finally, she has been commissioned to advise the Governor of HMP Leeds on culture change.

SP [2009] EWHC Admin 13

42. On this part of the case Ms Richards places much emphasis on the recent decision of Pitchford J in SP [2009] EWHC Admin 13, to which I have already referred in passing. She submits that the facts of that case closely resemble those before me, and that I should follow the approach taken by Pitchford J. I certainly accept, with respect, that the case repays close attention.
43. The claimant in SP was a young person suffering from serious mental disorders who inflicted grave injuries on herself while in custody. As Pitchford J said (paragraph 3) "[h]er life became a cycle of serious self harm followed by hospital treatment and return to custodial conditions". On many occasions when she was taken from custody to hospital, her life was in danger as a result of self-inflicted injury. Following representations on her behalf the Secretary of State agreed to hold "an Article 2 ECHR compliant investigation". After a complex history (including difficulties relating to the PPO which ultimately, as I understand it, inhibited his acting in the present case), which however I need not describe, Mr Brian Payling was at length appointed to the conduct the first stage of the proposed two-stage investigation into the case. Pitchford J described Mr Payling's relevant history as follows:

"43. Bryan Payling worked in the Prison Service between 1970 and 2005 save for an intermission between 1972 and 1975. He was employed in the Midlands and South East except for a period in 1971 and 1972 when he was posted to HMP Wakefield, a high security prison, and from 1983 to 1988 when he was employed at the Prison Service College in Wakefield. He was first appointed a governor in 1993. In 1999 he was appointed area manager for Mercia in which post he remained until his retirement. Upon retirement Mr Payling went to Bermuda where he worked as an adviser and, later, Commissioner of Corrections. He returned to the UK in 2007 where, later that year, he gave evidence as an expert witness instructed by the Treasury Solicitor during litigation arising from a disturbance in HMP Lincoln. In early 2008 he conducted an investigation into complaints made by prison officers at HMP Pentonville that they had been wrongly suspended from duty on suspicion of drug trafficking in the prison. He upheld the complaints and criticised management. Later, Mr Payling led a review of sex offender treatment programmes and recommended change. He also conducted a review, for a private contractor, Serco, of staffing at Yarl's Wood Immigration Removal Centre.

44. Sarah Snell was Governor of HMP/YOI New Hall in 2005 and had been during most of SP's stay there. She is likely to be a witness in the investigation. Mr Payling and Ms Snell knew one another as acquaintances having both attended Prison Service conferences but they had never worked together in the same region, nor had there been any social contact between them. When, however, Mr Payling returned from Bermuda in May 2007, he was contacted by Ms Snell who was interested in and wanted some advice about the post of Prisons Adviser, then being advertised by the Foreign and Commonwealth Office. The successful applicant would be based in Florida and responsible for Bermuda and Caribbean Overseas Territories. On 23 May, Mr and Mrs Payling were paying a visit to Yorkshire to see a friend and offered to meet Ms Snell in Harrogate. They had a light and inexpensive lunch together for about 1½ hours during which Mr Payling imparted his experience of work, and Mrs Payling her experience of life, in Bermuda. Ms Snell paid the bill. They had not spoken since, although Ms Snell sent an email to say she had been unsuccessful in her application."

44. The claimant submitted that Mr Payling was insufficiently independent of the Prison Service and of at least one potential witness (Ms Snell) to carry out an independent investigation for the purposes of Article 2. Addressing that argument, Pitchford J referred at length to the opinions of the House of Lords in this present case, and to the Strasbourg jurisprudence. He acknowledged (paragraph 77) "the need for flexibility and the recognition of practical realities in judging the requirements of an independent investigation". The reasoning that led to his conclusion that Mr Payling lacked sufficient independence shows how sensitive such an issue is to the particular facts:

"80. Current hierarchical or institutional connection by rank or responsibility... will undoubtedly disqualify an investigator. No Strasbourg case has been found in which the Court has considered a past, as opposed to a present, institutional connection as a ground for finding a breach of Article 2. However, I am equally persuaded that past hierarchical or institutional connection between the investigator and someone 'implicated' could well cause an objective lack of practical independence...

81... But what of a retired police officer or prison governor who had served in Newcastle and the North-East throughout his career and had experienced no institutional or hierarchical relationship with the persons or institutions implicated in a near-death investigation in Exeter? In my judgment what would be critical in such a case is the identification of the issues which the incident being investigated may create. Where there is no question of institutional responsibility being raised by the investigation I can see no ground for concluding that the retired police officer or prison governor would be other than objectively independent. If, on the other hand, the issues raised included a question whether national policy, such as Prison Service Orders, were adequate to meet the state's Article 2.1 obligations, the fact that the investigator had spent his working life applying those Orders may, and in my view would, deprive him of the practical independence necessary to perform his work effectively..."

The conclusion itself is as follows:

"84... I accept that in principle the fact that a proposed investigator, before his retirement, spent his working life in the Prison Service does not of itself disqualify him from appointment to investigate a death in custody on the grounds of lack of independence; it may, or may not, depending upon the nature of his connection, by reason of that employment, with the individuals and institutions implicated and/or upon the issues raised by the investigation. Apart from Mr Payling's acquaintanceship with Ms Snell, there was, in my view, no connection with individuals concerned which might have affected his independence. However, there were two respects in which, in my judgment, Mr Payling's objective independence was compromised. First, in consequence of a social acquaintanceship with a witness [sc. Ms Snell] likely to make an important contribution to the inquiry, he could not be said to enjoy practical independence from those implicated... There is, in my opinion,... an objective lack of independence between Mr Payling and the witness. Second, Mr Payling had, as part of his routine working life as an area manager, been consulted on policy initiatives in the field of 'safer custody' and 'self-harm'. It follows that Mr Payling had been closely concerned with the very policy areas upon which he was being asked to formulate recommendations as an investigator... For these reasons it seems to me that an investigation carried out by Mr Payling in SP's case would not be sufficiently independent for compliance with Article 2."

45. Pitchford J did not in terms apply what might be called the amended In Re Medicaments test, to which I have referred at paragraph 37, namely "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". But his approach is wholly in line with that test's application.

Conclusion on Apparent Bias

46. Looking at the question as Pitchford J did in SP, it seems clear, first, that Professor McDougall has no current or past hierarchical or institutional connection with any individual potentially implicated in the circumstances of the claimant's attempted suicide, or with HM YOI Feltham. As for any connection with issues raised by the investigation, Ms Richards points in particular to her involvement in staff training on suicide at HMP Wakefield, her membership of the working group established to review reports into deaths in custody at HMP Leeds, including suicides, with a view to the introduction of new systems to prevent such deaths; and her consultancy on "culture change" at HMP Leeds. In my judgment these aspects of her working life are far too tenuous to promote anything approaching a reasonable apprehension of bias. And nothing in her other occupations is capable of doing so. She has enjoyed a substantial and distinguished career in the academic world, quite apart from the Prison Service, and it is reasonable to suppose that she possesses no less than her fair share of that world's intellectual rigour. Moreover it is to my mind striking how many of her undertakings have been for the purpose of providing some assurance of the objective quality of the matter in hand, not least her membership of the Yorkshire and Humberside working group. Far from calling into question the likelihood of her independence, this aspect of her career tends to promote it.
47. More shortly, if one asks the amended In Re Medicaments question – would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that Professor McDougall was biased – I consider that the answer is plainly in the negative.
48. I should add two points by way of postscript. First, in her skeleton argument (paragraph 41) Ms Richards placed some reliance on passages from Prison Service policy documents tending to show that the Psychology Service has a role in the management of at-risk prisoners. These materials cannot begin to displace the conclusions I have set out. Secondly, Ms Richards accepted at the hearing that she had no independent case on ground 1 in relation to Professor McDougall's assistant, Mr Howard Davidson. It is therefore unnecessary to say more about him.
49. For all the reasons I have given, in my judgment Ms Richards' case on apparent bias is not made out. I should make it clear that if I had held otherwise, I would also have concluded that Professor McDougall's apparent bias could not be "cured" by the second stage of the enquiry. It is plain that the House of Lords in JL considered that a near-death in custody called in the first place for an "enhanced" form of enquiry, that is an investigation having the features identified in Amin, including independence: see paragraphs 29 – 32 above. A finding that the first stage was not independent, but that the defect might be cured by the second stage, clearly could not stand with this conclusion.

Unconscious Bias

50. Ms Richards accepted in the course of argument that her case as to want of independence could not depend on the contents of Professor McDougall's report. As regards apparent bias, that is clearly right. I think Ms Richards must have intended to confine her concession to the issue of apparent bias, since as I have said (paragraph 39) she was also inclined to advance a case of unconscious bias, which strictly speaking must be a species of actual bias; and the decision-maker's treatment of the evidence before her, and her conclusions, are at least potentially relevant to such a case. Ms Richards advanced a number of criticisms of Professor McDougall's report, and I should consider whether these points might establish actual but unconscious bias on her part. I can do so shortly.
51. Ms Richards' principal points on the report are crisply described in Section D of the Appendix to the Detailed Statement of Grounds. The summary which follows should be read alongside Waller LJ's account of the facts, reproduced above at paragraph 5:

failure properly to address issues relating to the discovery of the noose in the claimant's cell on 31 July;

failure to address the question whether excessive weight had been placed on the claimant's assurance that he had no suicidal ideation;

failure properly to address issues relating to the discovery of a bed sheet around the claimant's neck the night before his suicide attempt;

inadequate consideration of the claimant's unusual and unpredictable behaviour the night before his suicide attempt;

failure to explore all the apparent departures from guidelines applicable to the closure of form F2052SH, or the wider question whether the involvement of the chaplaincy was routinely ignored;

failure properly to explore and resolve apparently inconsistent statements given by the claimant that he had been raped at HM YOI Feltham.

52. Mr Swift referred to the various passages in the report where Professor McDougall considers these issues. I have looked over these. In what is already a long judgment I will not set out all the references. I am entirely satisfied that Ms Richards' criticisms, which are anyway by no means fully established, are quite incapable of laying any foundation for a proper inference of unconscious bias. It is worth noting that the report's Conclusions and Recommendations are carefully constructed to address what Professor McDougall clearly saw as shortcomings in the events which had happened, notably the closure of the F2052SH which "did not conform to policy" (paragraph 11.1). It will be recalled that Waller LJ in the Court of Appeal ([2008] 1 WLR 158, paragraph 59) also laid emphasis on what had happened relating to the F2052SH.
53. Accordingly I conclude there is no force in the suggestion of unconscious bias. I would reject all aspects of Ms Richards' ground 1.

GROUNDS (2) AND (3): THE CLAIMANT'S PARTICIPATION

54. I have already set out these instructions given to Professor McDougall:

"This is an Article 2 investigation and must be conducted in an open, transparent and even-handed manner. You should assume that the material that you receive will be distributed simultaneously to the relevant parties to the investigation, who will be agreed from the outset…

You must give JL through his representatives, and his family with his agreement, the opportunity to participate in your investigation…"

It is clear, moreover, that the House of Lords in JL considered that the "enhanced" enquiry in a near-death case (whether or not a D-type public enquiry followed it) must facilitate the involvement of the subject or his family: see for example Lord Brown's reference (paragraph 107) to investigations which "engage the person who has been harmed and/or their family".

55. As I have foreshadowed (paragraph 14) grounds 2 and 3 march together. They assert that whether by means of a legitimate expectation created by the terms of Professor McDougall's commissioning letter (ground 2), or by force of the requirements of Article 2 itself, the claimant was entitled (through his representatives) to be afforded an opportunity to participate in the investigation. Ms Richards submits that this was effectively denied him. I should say that there is in my view no purpose to be served by examining the differing legal niceties of the two grounds. There is no doubt that the claimant enjoyed such a right, and I did not understand Mr Swift to contend the contrary. There is with respect no force in Ms Richards' suggestion that the commissioning letter accorded her client a greater right than he anyway enjoyed under Article 2.
56. Ms Richards' substantive argument may fairly be expressed in three propositions, though in reality they run into each other. (References to the claimant are in practice to his representatives.) (1) Important material, including evidence gathered by Professor McDougall, was not provided to the claimant until after the report had been written. (2) The claimant was not told what information Professor McDougall had. (3) There was no invitation to the claimant to participate. Ms Richards notes (skeleton argument paragraph 46) that in SP, where the terms of reference and instructions to the investigator were indistinguishable from those in this case, Pitchford J recorded that a senior official of the Ministry of Justice "stressed the need for early and simultaneous disclosure of correspondence and evidence to the parties" (judgment, paragraph 12).
57. To ascertain the precise turn of events it will be necessary to refer to some of the correspondence. But it is clear at the outset that the major thrust of Ms Richards' argument rests in propositions (1) and (2) above. In particular as regards (1), it is right that the evidence gathered by Professor McDougall was not provided before the draft report was written. Moreover the appendices to the report were as I have said not produced to the claimant until April 2009: that was nearly two months after the report was sent out. The failure to provide them with the report was, as I understand it, the result of an oversight. The appendices were numerous and substantial. As for (2), Ms Richards says that no information was shared with the claimant as to the substance of the enquiries being pursued, nor as to the evidence being gathered, while the investigation was ongoing. No chronology was provided at the outset for discussion or agreement.
58. It is, however, by no means the case that there was nothing but silence on the part of Professor McDougall or the Secretary of State, and the way in which the claimant's solicitors chose to conduct the correspondence has also to be borne in mind in assessing the force of this ground of challenge. It will be recalled that the Secretary of State wrote to the solicitors on 3 October 2008 with notice of the decision to instruct Professor McDougall and enclosing her commissioning letter. That prompted a substantial reply on 9 October. That letter includes a lengthy recital of previous correspondence, with much emphasis (understandably) placed on the very substantial lapse of time since the exchange of letters in late 2007 contemplating an investigation by the PPO. Then there are ten detailed, numbered questions, or comments, which are said to arise out of the appointment of Professor McDougall. They include such matters as the terms of reference, the timetable, Professor McDougall's experience, a chronology, funding, and a public hearing.
59. These matters were all responded to on 27 October. The solicitors, however, were far from satisfied. In their letter of 11 November 2008 (not apparently received by the Secretary of State until 5 January 2009) they expressed further concerns. The first was that they "should be given the opportunity to comment upon the terms of reference... in advance". Then they required to be notified of the witnesses who were to be interviewed, together with sight of the brief to be put before Professor McDougall, a record of the "advice of the health advisor", and a draft of the report. On 19 December the solicitors "confirm" that they are "dissatisfied with the conduct of the investigation". On 6 January 2009 they sent another detailed letter. It refers to a letter of 22 December 2008 to the solicitors from Professor McDougall herself: she had sent them an account of the work she had undertaken so far. Then it proceeds to set out a litany of further concerns and complaints: "Professor McDougall has... failed to conduct an open, transparent, and even handed investigation... [She] has failed to consult [the claimant's] representatives at all to date..." They go on to make further demands. The letter ends with a series of numbered paragraphs dealing with "funding issues".
60. Professor McDougall, for her part, had in particular sought a meeting with the claimant himself. The first letter in which she did so, dated 22 October 2008, was met with a rebuff: the solicitors stated that it was "premature for us to discuss matters with further". Ms Richards submits that at that stage they were still awaiting a response to their letter of 9 October. But after that was answered on 27 October, there was no ready response to Professor McDougall's further letters. Professor McDougall finally met the claimant on 26 January 2009. The meeting was attended by Dr Cumming, the psychiatrist assisting Professor McDougall. Ms Richards does not criticise the decision to hold such a meeting, but submits (skeleton argument paragraphs 51 – 52) that given his cognitive impairment – he has no recollection of the events of his attempted suicide – that it must have been of very limited value.
61. On this part of the case Mr Swift first makes a general submission, to the effect that the cases prescribe no rigid requirement as to the means by which the affected person's participation in the investigation or that of his family is to be achieved. This is correct. It is a necessary backdrop to these grounds of challenge that Professor McDougall must have enjoyed a degree of discretion as to how she would involve the claimant.
62. Mr Swift then advances three more specific propositions. First, the claimant's advisers chose not to engage with the enquiry process. Mr Swift instances their response to Professor McDougall's request for a meeting with the claimant, which I have described. He submits that they could have put their concerns and requests set out in the letter of 11 November 2008, save for the first one, to Professor McDougall herself. (As for the first request, for an opportunity to comment upon the terms of reference, they had that as they wrote.) But instead of taking that course they remained distant from the investigation, disinclined to participate until and unless the Secretary of State agreed to their various demands and conditions.
63. Secondly, Mr Swift insists that Professor McDougall's report is – and indeed remains – a draft only. It has been open to the claimant to offer comment or criticism at any time. On 5 March 2009, responding to the solicitors' letter before claim of 16 February, the Treasury Solicitor stated:

"[I]f you wish to make representations to Professor McDougall at this point about the analysis in her draft report or any omissions from it then we will ask Professor McDougall to refrain from finalising her report provided that such representations are made within a reasonable time, and we will ask that she should, if she thinks it appropriate, produce revised draft report taking account of those representations."

But the offer was not accepted.

64. Mr Swift's third point again asserts that any defect in stage 1 may be cured by stage 2.

Conclusions on Grounds (2) and (3)

65. Apart from seeking an interview with the claimant, Professor McDougall did not take proactive steps to involve him in her enquiry. She did not on her own initiative furnish his advisers with, as it were, a vade mecum of her proposed investigations. Despite the discretion as to the manner of the claimant's involvement which she undoubtedly enjoyed, I think it would have been better if she had taken more steps to engage with the claimant's advisers. But whether by doing so she might have succeeded, unilaterally, in assuring them of her enquiry's integrity must be doubtful. It seems to me on the correspondence that the first of Mr Swift's three propositions is well established. The solicitors took a hard and intransigent, even aggressive, line (which is surprising, given the good judgment for which the firm is well known). They chose not to engage with the enquiry process. Had they adopted a positive approach from an early stage – at least after they received the Secretary of State's letter of 27 October addressing the points they had expressed on 9 October – indicating their reasonable concerns and requests to Professor McDougall directly, and co-operating with her as to the enquiry's procedures and mechanics, I see no reason why the process should not have been advanced with Article 2 well satisfied. To the extent that it was not, I think they bear some measure of responsibility.
66. There is also force in Mr Swift's second proposition. Professor McDougall's report remains a draft. The claimant may put his considered points before her, and if he does they will no doubt be responded to on a considered basis. There is a connection here with Mr Swift's last proposition, that any defects in stage 1 may be cured by stage 2. In dealing with ground 1 I indicated that if I had found apparent bias on the part of Professor McDougall, I would have held that it could not be "cured" by the second stage of the enquiry. The independence of the investigator at the "enhanced" enquiry must be assured, whether or not a D-type public enquiry follows. However I take a different view as to the requirement for the injured party's participation. While, no doubt, a substantial and unilateral denial of such participation may well be fatal to the legality of the enhanced enquiry, few cases will surely be so stark. Generally, where (as here) a second stage is to take place, the extent to which the injured party may put or repeat matters which concern him to the second-stage decision-maker must be material to the question whether the Article 2 standard has been complied with.
67. That consideration favours the Secretary of State in the present case. Overall I conclude on grounds (2) and (3) that the claimant enjoyed, and enjoys, sufficient assurances of participation to satisfy the Convention obligation.

GROUND (4): DELAY

68. I need not, with respect, cite the jurisprudence establishing that enquiries under Article 2 should be conducted promptly. Common sense says as much. Obviously a great deal of time has passed since the claimant's suicide attempt on 19 August 2002. That fact is inimical to the proper operation of the Article 2 investigative duty. Much of this delay is attributable to the time necessarily taken by the first judicial review proceedings. But there was in particular a serious delay between July 2007, when the Court of Appeal's judgment in those proceedings was given and the Secretary of State decided that a D-type enquiry should be held, and October 2008 when Professor McDougall's appointment was made. This was attributable, at least in large measure, to the difficulties which eventuated over the involvement of the PPO.
69. Professor McDougall has herself acknowledged in her draft report (paragraphs 3.5, 3.6, 9.33-34, 9.43, 11.2, 11.10) that some relevant records were incomplete. And there were gaps in the available oral testimony: in particular it was apparently not possible to interview the prisoner at the scene when the claimant was found on 19 August 2002, or the prisoner who had been his cell-mate for three weeks before that date.
70. I accept Mr Swift's submission that the impact of these defects cannot be ascertained until the whole process, thus including stage 2, has been completed. And there is, I think, something of a contradiction in the claimant's position. He seeks damages for breach of Article 2 (including delay) but also seeks an order that a proper Article 2 investigation (as he would have it) should now take place. The latter claim implies that the claimant's near-death can now, despite the passage of time, be investigated consistently with the standards of Article 2, including the requirement of promptitude.
71. I conclude that at the present juncture there is no case for damages or other relief based on delay.

CONCLUSION

72. For all the reasons I have given this application for judicial review is dismissed.
POST-JUDGMENT DISCUSSION

Wednesday, 7 October 2009

(10.00 am)

73. LORD JUSTICE LAWS: Good morning.
74. First of all, I apologise, I'm wearing the wrong uniform.
75. In this case the application for judicial review will be dismissed for the reasons given in the judgment being handed down. There is a draft order showing that all matters save one are agreed. Paragraph one dismisses the application, that I have done; paragraph two, the claimant is to pay the defendant's costs of and occasioned by the proceedings not to be enforced without leave of the costs judge; three, detailed public funding assessment of the claimant's costs. The court will make all those orders. The fourth item is an application for permission to appeal to the Court of Appeal by the claimants.
76. I have received written submissions from Miss Richards of counsel for the claimant. The respondent via the Treasury Solicitor would ordinarily be entitled to I think it's seven days to reply but, as I have decided to refuse permission, it's not necessary to delay matters further, as it seems to me what I have done in this case is to apply settled principles of law to the facts. The claimant will have to seek to persuade the Court of Appeal if she wishes to pursue her application for leave. For my part, I refuse it.
77. I have to fill in a piece of paper, have I? All right.
78. Thank you. I think that is everything. If anyone, members of the press or public is interested, I think there are copies. Good, thank you very much.

(10.04 am)