The Law Commission

PART VII

THE NEED FOR AN ADDITIONAL FORM OF LOCAL AUTHORITY INQUIRY

1 Introduction

7.1     Ad hoc inquiries depend on the co-operation of those who appear before them. In some cases where key witnesses refuse to co-operate an ad hoc inquiry will not be able to acquire all the information it needs. 
7.2     In the CP we asked whether there should be a new form of statutory inquiry for local authorities with powers to compel witness attendance and the production of documents and to take evidence on oath.^[1] A local authority whether acting alone or jointly with another public body might establish such an inquiry: 

where there have been serious complaints against the authority or a serious failure in its services

where it appeared that findings or recommendations would have implications for national practice and

where no inquiry had been or was going to be established by a Minister.

7.3     As with ad hoc inquiries the proceedings and the report should benefit from the new statutory qualified privilege we proposed. The procedure for the inquiry should be determined by the inquiry. 
7.4     We did not specify the circumstances where such a power might be used but thought that "because of the degree of formality and the potential costs involved ^[2] it would only be made use of in very exceptional situations".^[3] 
7.5     We did not imagine that such a formal inquiry would suit all local authority inquiries. The present ad hoc inquiry would still be used for less serious matters. Nevertheless we thought that there may be a category of inquiries which are not of sufficient national concern to merit a ministerial or Tribunals of Inquiry Act inquiry but are highly controversial locally. Relying on co-operation alone might not enable a fair and rigorous investigation to be conducted or to be seen to be conducted. 
7.6     This proposal originated with SOLACE and its 1978 report.^[4] The Local Authorities Association in its response to the SOLACE report in 1980 did not pursue this proposal but Waterhouse thought it merited further consideration.^[5] The new statutory power would be supplmemental to the power to establish ad hoc inquiries. 
7.7     One or two respondents thought it desirable to put the existing powers to establish ad hoc inquiries on a statutory footing.^[6] We do not propose to regularise powers to set up ad hoc inquiries. They have great versatility. It is important to preserve this versatile tool of inquiry. 

2 The case against a local authority having a new form of inquiry

7.8     In considering the case for a new form of inquiry we discuss first the arguments against. There are four principal arguments against which have been put to us. 

(1) A formal public inquiry with powers to insist that witnesses attend and that documents are produced under threat of prosecution for failure to comply is too heavy-handed. Any inquiry process and report must attain the highest possible standards of fairness; there is the potential for great harm to be done where it is inadequate or unfair.

(2) There is already a large number of tools of investigation available to local authorities for inquiring into wrongdoing or failures in services. It is misguided to think that a formal public inquiry is the only or even the best way of conducting an inquiry. Given the vast range of inquiries investigations and other forms of control both independent and internal a new form of inquiry is an unnecessary addition.

(3) The costs implications for local authorities (and thus for the public) could be significant.

(4) Giving such a tool to local authorities opens up the possibilities of its being misused for political purposes.

3 Heavy-handedness

7.9     The first argument that a new form of inquiry would be a heavy-handed response covers a number of issues. 

4 The intrusive nature of inquiry powers

7.10     First as the Salmon Report noted 

The exceptional inquisitorial powers conferred upon a tribunal of inquiry under the Act of 1921 necessarily expose the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation.^[7]

7.11     Guidance on Inquiries issued by the Central Secretariat of the Cabinet Office in 2001 which incorporates advice to the Lord Chancellor on procedural issues in the conduct of ministerial inquiries submitted by the Council on Tribunals (July 1996) confirms that they should "always be confined to matters of vital public importance concerning which there is something of a nation-wide crisis in confidence".^[8] In Howard Scott Baker J noted that the ambit of an inquiry is primarily a political question.^[9] If there is no national or state interest in the outcome – the interest being mainly local – it is harder to justify compulsion in the name of the state.^[10] 

5 The risk of misuse

7.12     Second is the possibility of misuse of the new form of inquiry by a local authority. There is some ground for saying that the Shieldfield inquiry^[11] demonstrates that there is a risk that if a local authority can set up a new form of inquiry the powers of compulsion could be abused even though the inquiry itself is independent of the local authority. 
7.13     Any poorly-conducted inquiry has the potential to fail the complainant the family and friends of the complainant future users of the service if faults are not corrected and those criticised in the report. If there was wrongdoing and the inquiry fails to uncover it the inquiry fails the complainant and the community; if there was no wrongdoing but the inquiry wrongly concludes that there was the inquiry fails the community and specifically those unfairly criticised. Privilege would attach ^[12] so those criticised would have little recourse to any way of salvaging their reputation and possibly their careers.^[13] The existence of the new form of inquiry would not guarantee that the inquiry would be well conducted. 
7.14     One consultee suggested there is an underlying assumption that a public inquiry conducted by a senior lawyer or member of the judiciary will be faultless in its method and its findings. The point is put by David Carson: 

There is a hierarchy of inquiries. A judicial inquiry appears to be universally regarded as la crème de la crème. Public inquiries are preferred over private. A lawyer chair appears to be regarded as essential if the inquiry is to have any gravitas. The more inquiry members then the more powerful or persuasive the conclusions and recommendations appears to be the assumption. A dedicated secretariat demonstrates serious intentions.^[14]

7.15     One submission suggested that we had treated Waterhouse Jillings and Cartrefle all as inquiries and reports which were properly conducted and whose conclusions were sound. We certainly worked on the basis that the Waterhouse inquiry was properly conducted and its conclusions sound; we made no assumptions about the Jillings and Cartrefle reports. The consultee strongly disputed the view that the Waterhouse procedures and findings were fair or reliable.^[15] He drew our attention to the forceful criticisms made of the Waterhouse inquiry itself by Anna Pauffley QC in her closing submissions to the inquiry.^[16] 
7.16     The SOLACE guidance and Salmon principles might be enough to ensure the quality of the inquiry but such guidance will only be helpful to those willing to be guided. The Shieldfield Review Team were aware of the notions of "natural justice" and of "Salmon letters" because they referred to them. That did not mean that they actually put them into effect.^[17] 

6 There is no need

7 Powers of compulsion will not necessarily be appropriate or useful

7.17     Even where an inquiry team has powers to compel attendance it might not be appropriate to use them for the sake of the well-being of the witnesses themselves.^[18] 
7.18     In other recent inquiries conducted in public witnesses have not been compelled to attend not out of consideration for the witnesses in question but because it was quite evidently going to be pointless. In the case of Shipman this was because he had nothing to lose by refusing to attend. In the case of Kouao (who was responsible for the death of Victoria Climbié) it was because the witness would continue to deny responsibility. Thus even if an inquiry has powers to compel attendance and the production of documents this will not necessarily allow it to elicit the information it seeks. 

8 Proliferation of powers

7.19     The legal landscape has changed much since SOLACE's report in 1978. Not only is there greater emphasis on continual external inspection and reporting but there is a greater role for authorities working with other stakeholders. Local authorities are continually subject to assessments and reviews which may well prompt an investigation into their own affairs. The new ethical framework encourages high standards of ethical governance and provides for an independent and open method for investigation of such complaints. In such circumstances another form of inquiry may simply overload an already complex legal landscape with little to offer in terms of added benefits. 
7.20     In any event a report may secure public confidence even though the inquiry took place in private. It may not always be easy to anticipate problems that an inquiry will encounter. The Family Law Bar Association thought there would be difficulty "identifying in advance which were the inquiries where such [additional] powers were likely to be needed and those where they were not". They contrasted a complex inquiry which proceeded with full co-operation with an inquiry where the authority which had set it up then failed to co-operate with it.^[19] 

9 Costs implications

7.21     The costs of such an inquiry are significant as various respondents noted. We agree with the assumption of the Family Law Bar Association that the likely cost of a formal inquiry will act as a deterrent to setting one up. 
7.22     We note also that there are costs implications merely in creating the power because if such a power is available but a local authority decides not to use it it is likely that in some cases that decision will be challenged. If local authorities were granted such a power then a failure to use the statutory inquiry in a situation where Article 2 rights are engaged will breach section 6 of the Human Rights Act. The local authority in this case will have the legal capability to conduct an investigation that fulfils the admittedly fluid and variable requirements of the duty to investigate. If it chooses instead to hold a non-statutory inquiry where it is known for example that key witnesses will not co-operate the decision to establish that inquiry will be open to challenge. This could take the form of a free-standing Human Rights Act claim for acting unlawfully contrary to section 6 ^[20] or be attached to a traditional judicial review action.^[21] 
7.23     Even if successful in resisting the challenge the authority will incur costs in defending its decision. This suggests that a formal power of inquiry should be available if at all only in limited circumstances – then at least the preliminary stages of judicial review should eliminate completely unmeritorious applications. 
7.24     Whether a new power is conferred on local authorities or not the issue of cost remains a live one if the issue of adequate investigation is to be properly addressed. Philip Thomson Head of Legal Services at Essex County Council put it thus: 

… local authorities facing this issue will also have to weigh the need to be democratically accountable with the cost of financing an inquiry. … However the expectations of a democratic society by its citizens are that authorities will conduct inquiries where the way they have conducted their functions is open to question. It is therefore a serious question for Government as to how local authorities will be enabled to undertake this task.

10 Potential for political abuse

7.25     It is conceivable that any inquiry procedure might be used for improper political purposes. For example if political mileage could be made out of an inquiry into the presumed failings of a particular local authority department it is feasible that an authority might instigate it. In some cases the prime motivation of the authority establishing the inquiry might be political rather than to learn from past errors. How much more destructive would a politically-driven inquiry be if it were public and with powers of compulsion as opposed to being able to take evidence in private from witnesses who attend voluntarily. If the inquiry were chaired by an independent person the powers of compulsion might be more acceptable.^[22] 

11 The case for a new statutory form of inquiry

7.26     Notwithstanding the arguments against we think there are also powerful arguments in favour of the idea. We first consider arguments put forward by respondents to the consultation paper. We then review the existing powers of inquiry open to a local authority. We examine the implications of the European Convention on Human Rights and Fundamental Freedoms. We review the powers of inquiry other bodies have and whether they would be adequate to the kind of case which might arise. We conclude that there are circumstances where this new form of inquiry could be needed. 

12 The views of respondents

7.27     Several respondents thought there was no need for a new power. In particular the Local Government Association reported no call from its member authorities for such powers. Their view was that in the majority of circumstances the existing powers are wholly adequate; only in very unusual circumstances do inadequacies appear. Most local authorities do not meet these circumstances. 
7.28     Those respondents who had encountered these unusual circumstances were by contrast in favour of a new form of inquiry. Philip Thomson of Essex County Council^[23] described the circumstances in which the case for an inquiry with powers of compulsion are strongest: 

Many of the inquiries covered by the consultation paper involve often highly distressing and emotional events which have befallen a family. Many will relate to the unlawful killing of a loved one. It is critically important in such circumstances that local authorities are subject to scrutiny and are democratically accountable. The prime and perhaps only satisfactory way of achieving this is by an inquiry followed by a public report.

7.29     He developed the argument on the grounds of greater democratic accountability: 

Currently in seeking to be democratically accountable local authorities will have to weigh the public interest in that accountability with their fiduciary duty to their council tax payers. Although the latter duty is important it is our view that the balance should lie with democratic accountability certainly in circumstances where the lives of citizens have been seriously affected by the action/inaction under review. The law should reflect that the importance of the public interest in accountability may in such circumstances outweigh the public interest in an authority's fiduciary duty to its council tax payers.

7.30     In line with the current drive towards greater openness and transparency in the public sector creating a new statutory form of inquiry would enable local authorities to conduct a more thorough and effective inquiry than would otherwise be possible. It would safeguard the council from the accusation that the inquiry has been set up in order to absorb political pressure yet the inquiry itself is powerless. If an inquiry is unable to demand that all relevant evidence be placed before it public confidence in the inquiry and in the agencies or persons under investigation will be dented. Victims and complainants may feel that their concerns are not being fully and openly addressed where there is a choice whether or not to help the inquiry. Hearing from those responsible for failures and wrongdoing the reasons for their actions may help bring about "closure" for the victims and their families. Such reasons are not always fully explored and tested in either criminal or civil actions. 
7.31     The argument that the public interest may require additional powers of compulsion in cases where the usual kind of ad hoc inquiry is inadequate was advanced by five respondents including Elizabeth Lawson QC on behalf of the Family Law Bar Association.^[24] As another respondent wrote: "Without these powers some inquiries have been unable to form substantive conclusions and recommendations and the whole purpose of the inquiry is undermined." 

13 The Linford/Edwards inquiry

7.32     A recent example of an inquiry which was not able to garner all the evidence it needed is the Linford/Edwards inquiry.^[25] Christopher Edwards was on remand when he was killed by another detainee Richard Linford who was later diagnosed as a paranoid schizophrenic. Linford pleaded guilty to manslaughter on grounds of diminished responsibility. The European Court noted that in these circumstances "the trial was therefore brief".^[26] The inquest into Christopher Edwards' death had been adjourned pending the trial but was closed on the conviction of Linford. Christopher Edwards' parents were advised that there was insufficient evidence to warrant prosecution for manslaughter on grounds of gross negligence of anyone in the statutory agencies involved in the case. 
7.33     The statutory agencies with responsibility towards Edwards and Linford – the Prison Service Essex County Council and North Essex Health Authority – established a private non-statutory inquiry. The local authority although not involved with the events on the day of the killing had had prior involvement with Linford in their social services department. The inquiry was unable to make two prison officers give evidence one of whom may have had evidence of potential significance to give to the inquiry. 

14 The Interest Rate Swaps inquiry

7.34     A second example is the Interest Rate Swaps Inquiry.^[27] That inquiry was also unable to compel the attendance of a significant witness. This left the inquiry without information which it needed. The inquiry wrote "In our judgement the Inquiry's unresolved difficulties with [this witness] point strongly to the need for statutory reform for this kind of ad hoc inquiry as recommended by the Marre Committee … ."^[28] The authors of the report developed their argument in a postscript to their report (a copy of which was sent to us as a response): 

It appears to us that a statutory basis should be found for ad hoc inquiries into local government finance granting inspectors certain express powers and establishing a statutory procedure about which participants could acquire some prior knowledge and confidence.^[29]

They then referred to the Marre Committee's report and concluded:

In our view there is an important statutory gap identified by the Marre Committee in 1978 where a local authority requires an ad hoc inquiry into its financial affairs. Section 250 of the 1972 Act covers the situation where the Secretary of State has power to direct that an inquiry should be held but not where the Audit Commission an external auditor or a local authority seeks an independent inquiry in a difficult and controversial matter.^[30]

7.35     While the circumstances of the Swaps inquiry were unusual a similar situation could arise again where a local authority wishes to establish an independent inquiry into financial irregularities with a wider brief than an auditor could have and finds that it is hamstrung by the lack of powers to compel witnesses to attend. 

15 Powers of inquiry available to a local authority

7.36     Although a local authority has a number of investigative tools at its disposal ^[31] none permits it to set up an inquiry with the power to compel witnesses take evidence on oath or compel production of documents of its own volition. 

16 Tribunals of Inquiry Act inquiries

7.37     A local authority can seek to have a matter investigated by lobbying for an inquiry to be set up under the Tribunals of Inquiry (Evidence) Act 1921.^[32] These inquiries provide for extensive powers of coercion when Parliament directs that a "definite matter ... of urgent public importance"^[33] must be inquired into. The report which follows will attract absolute privilege as a return of a report to Parliament. The costs of such an inquiry will be borne by central government. 
7.38     The problems posed by this method are uncertainty and unsuitability. A Tribunal requires the support of both Houses of Parliament along with a sponsoring member; this is normally a minister or the Prime Minister. This may be very hard to come by. 
7.39     A matter of local concern may not meet the threshold of urgency and importance laid down in the Act. Indeed a Tribunals of Inquiry Act inquiry may not be the most effective method of investigating a matter that can be performed in a less intrusive and informal way. 

17 Petitioning for a ministerial inquiry

7.40     If the authority considers that it will not obtain the co-operation from witnesses necessary to make the inquiry effective or that the issues raised go beyond the geographical area of its borders the local authority can also petition a minister to establish a statutory or non-statutory inquiry.^[34] There will need to be a relevant enabling statute conferring a power to order such a ministerial inquiry.^[35] 
7.41     However lobbying for a Tribunals of Inquiry Act inquiry or a ministerial inquiry will not guarantee one is set up. Central government although now more aware of the positive duties imposed on it by Article 2 ECHR is met with more requests for inquiries than it orders. Costs implications for central government are significant – for instance the Bristol Royal Infirmary Inquiry cost £14 million.^[36] It will be reluctant to investigate a matter which is primarily of local concern. 

18 Comment

7.42     The local authority cannot establish nor compel any other body to establish an inquiry with powers to compel witnesses and production of documents. Does this matter? We say that it does and we now explain why. 

19 The need for proper investigation

7.43     Our view is that the public interest requires proper investigation to prevent past mistakes being repeated and for local authorities to be held accountable. The nature of that investigation will vary according to the gravity of the issue but local authorities perform functions which crucially affect people's well-being. The public is best served by an investigation which is in fact able to explain to those immediately affected and the public in general what happened why and how any errors may be avoided if they can. 
7.44     We base our view on the public interest but are fortified in it by obligations falling on the State by virtue of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"). We now turn to consider the implications of the ECHR. 

20 The positive obligations arising under the Convention

7.45     Positive obligations arise under the ECHR. One is the obligation on the State in certain circumstances to conduct an adequate investigation into a possible breach of a person's human rights. We examine here how such an obligation arises first in general terms then specifically in relation to Articles 2 and 3 of the Convention. 

21 The principle of effectiveness as an origin of positive obligations

7.46     A number of positive obligations relating to Articles of the ECHR have their origin in the principle of effectiveness used by the European Court of Human Rights ("ECtHR"). The principle of effectiveness^[37] is a fundamental principle of interpretation of the Convention by the ECtHR and domestic courts because 

the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make the safeguards practical and effective.^[38]

7.47     This means that in considering whether there is an alleged violation or likelihood of violation of a Convention right the court and arguably decision-makers in legislatures and public bodies must focus on the realities of the situation. The Convention is not intended to guarantee rights that are "theoretical or illusory but rights that are practical and effective" ^[39] because the Convention is "designed to safeguard the individual in a real and practical way as regards those areas with which it deals."^[40] Accordingly a remedy required by Article 13 must be "effective" in practice as well as in law.^[41] The remedy required by Article 13 need not always be judicial in character.^[42] 
7.48     Thus in order to protect or enforce human rights the law has to be effective and the ECtHR has therefore imposed positive obligations on States in order that their domestic laws secure the rights under the Convention to all. 

22 Positive obligation arising under Article 2

7.49     The material part of Article 2 of the Convention states: 

Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided for by law.^[43]

7.50     Article 2 is of fundamental importance to the operation of the Convention^[44] and must be strictly construed.^[45] No derogation is permissible from its requirements except in time of war.^[46] 
7.51     Two obligations are imposed upon the State. The negative obligation requires that the state refrain from taking life by the actions of state agents. The positive obligation prescribes that the State must take appropriate measures to safeguard life. 
7.52     Adjunct to these is a requirement for an effective investigation. Although this is not stated on the face of the Article the procedural obligation to investigate has been read into it.^[47] Where the State's responsibility has been engaged under either of the primary obligations a local authority ad hoc inquiry may be relevant in discharging the investigative obligation. In some circumstances we think this will require the addition of powers of compulsion. 

23 When is an effective investigation required by Article 2?

7.53     The circumstances in which the State is obliged under Article 2 to conduct an investigation into a death are not set in stone.^[48] The commentators do not agree the threshold at which the duty is engaged.^[49] Many of the authorities are European Court of Human Rights judgments which are essentially pragmatic and very case-specific; only trends can be identified. The case law suggest that the following deaths may need investigation under Article 2: 

(1) deaths caused by third parties when the victim is in the care and custody of the state as in Edwards^[50] and Amin;^[51]

(2) deaths caused by alleged negligence by doctors where the victim was not in custody (but arguably under the doctors' control) as in Powell;^[52]

(3) deaths caused by criminal acts of a nurse in a hospital where the victim was in the hospital's "custody" and care as in Taylor;^[53]

(4) deaths caused by gross negligence by medical staff as in Khan;^[54]

(5) deaths even where there is no direct State responsibility for the death itself as in Menson v UK.^[55]

7.54     It is likely that the duty will be triggered where there is an arguable case that the positive or negative obligations in the Article have been violated. Hence killings by State agents and situations where deaths have occurred while the victim was in the care and or control of the State or where the death was the result of a criminal act which the State is bound to investigate are likely to require an investigation. 

24 Positive obligation arising under Article 3

7.55     Article 3 reads: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". In a recent decision the State's responsibility was engaged pursuant to Article 3 rather than Article 2.^[56] The breach of Article 3 was not found proved by the European Court but failure to provide an adequate domestic remedy may mean that the State is also in violation of Article 13 of the Convention: 

The Court has previously held that where a right with as fundamental an importance as the right to life or the prohibition against torture inhuman and degrading treatment is at stake Article 13 requires in addition to the payment of compensation where appropriate a thorough and effective investigation capable of leading to the identification and punishment of those responsible including effective access for the complainant to the investigation procedure… . Where alleged failure by the authorities to protect persons from the acts of others is concerned Article 13 may not always require that the authorities undertake the responsibility for investigating the allegations. There should however be available to the victim or the victim's family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention.^[57]

7.56     The fact that breaches of Article 3 have not been proved does not necessarily mean that Article 13 is irrelevant if the breaches were arguable: 

These complaints were not declared inadmissible as manifestly ill-founded and necessitated an examination on the merits. … An effective domestic procedure of enquiry would have offered more prospect of establishing the facts and throwing light on the conduct reasonably to be expected from the social services in a situation where the applicants demonstrated long-term and serious problems that arguably might have called for additional efforts of investigation to uncover the reality of the family dynamics.^[58]

7.57     The engagement or risk of engagement of Articles 2 and 3 appear to give rise to the duty to investigate as these Articles are unqualified and concern the most extreme form of physical harm that can be visited on a person namely death and torture.^[59] 

25 What constitutes an effective investigation?

7.58     The features of the investigation are fluid. The availability of civil proceedings may be given weight in determining compliance but the mere fact that they are possible will not absolve the State from its investigative duty.^[60] 
7.59     In Jordan the European Court laid down several features that an investigation into a death (there a death caused by acts of a State agent) should possess. It should be independent from those implicated in the events;^[61] it must determine whether or not the use of force was justified identify and punish those responsible;^[62] it must be prompt and reasonably expeditious;^[63] and there must be a sufficient element of public scrutiny involving the next of kin "to the extent necessary to safeguard his or her interests".^[64] 
7.60     Jordan was applied at first instance by Hooper J in Amin where the victim was killed by another inmate not by a state agent. Hooper J held that the Secretary of State's refusal to hold a public inquiry given the refusal of the CRE and the coroner to accede to the family's request was incompatible with Article 2. Hooper J ruled "the obligation to hold an effective and thorough investigation can only be met by holding a public and independent investigation with the family legally represented provided with the relevant material and able to cross-examine the principal witnesses."^[65] The House of Lords held that Hooper J had approached the matter in the right way and that Jordan and Edwards had established that while there is "no single model of investigation" to fulfil the State's investigative duty under Article 2 there are "minimum standards which must be met whatever form the investigation takes".^[66] 
7.61     Further the House of Lords rejected any suggestion that there should be a more rigorous inquiry in the cases of acts by agents of the State which led to death than in cases where negligent omissions by State agents led to a death in custody.^[67] Lord Steyn suggested that the former may be a greater affront to the public conscience than the latter but by contrast the investigation of cases of negligence resulting in the death of prisoners may be often more complex and demanding and that such systemic failures in the system may affect more individuals. 
7.62     The issue arose again in R (on the application of Khan) v Secretary of State for Health.^[68] The claimant's daughter died of a heart attack due to errors described as "grossly negligent" by later expert evidence when she was receiving dialysis. The cause of death was certified by the hospital as cardio-respiratory attack and lymphoma but with no reference to the infusion of potassium which she had received in error. A police investigation took place during which the police asked the hospital not to communicate with the family. There was no prosecution. The NHS Trust embarked on its own internal investigations but did not inform the family of the girl of the results or progress. There was an inquest but no legal funding was made available for representation at the inquest. The Secretary of State stated he had no power to provide funding for legal representation and he refused to order a non-statutory inquiry. The claimant applied for judicial review of that refusal. The refusal was initially upheld but the Court of Appeal allowed the claimant's appeal applying the Court of Appeal decision in Amin. 
7.63     It held that: 

(1) a police investigation where the family played no part and which resulted in a decision not to prosecute could not act as a substitute for an effective inquiry;

(2) the Trust investigations were not sufficiently independent to amount to an effective inquiry;

(3) a coroner's inquest would not discharge the State's obligation under Article 2 if the family could not play an effective part which it could not in this case without legal representation due to the complex nature of the evidence;

(4) the admissions of liability did not discharge the obligation as the law did not require the family to initiate civil proceedings the duty being on the State not the family; and

(5) in conclusion the positive obligation under Article 2 had not been met since the case was a grave one where allegations supported by expert evidence of gross misconduct and an orchestrated cover up had been made.^[69]

7.64     In R(on the application of Middleton) v West Somerset Coroner ^[70] the House of Lords has recently reversed the decision of the Court of Appeal in part. The House confirmed the duty to investigate under Article 2 of the ECHR. The House held that to meet the procedural requirement an inquest ought ordinarily to culminate in an expression of the jury's conclusion on the disputed factual issues in the case. A verdict that did not express the jury's major conclusions on an issue in the evidence at the inquest could not satisfy the expectations of the deceased's family or next of kin. They had legitimate interests in the conduct of the investigation so had to be accorded an appropriate level of participation. The House of Lords concluded that there were some cases where the current coroner's regime did not meet the requirements imposed by the ECHR. To meet the requirements of the Convention in some cases will require coroners to exercise their discretion to elicit the jury's conclusion on the central issue or issues.^[71] 
7.65     What is important is that the State recognise in each individual case what is likely to be required for it to comply with the obligation. 
7.66     An ad hoc inquiry by a local authority will not necessarily fall foul of the investigative obligation. The duty must be seen in the round having regard to criminal prosecutions civil actions disciplinary proceedings inquests and other forms of inquiry. The ad hoc inquiry must not be viewed in isolation. There will be occasions where it should be supplemented by powers of compulsion. 

26 Who is the State for the purpose of discharging the duty?

7.67     In one sense this question is solved very simply. The manner in which the procedural obligation is discharged is not necessarily by means of one investigation. There may be a series of inquiries and reviews triggered by the incident of which the local authority ad hoc inquiry is merely one component. In this sense the local authority is doing its best to discharge a duty which is incumbent on the State as a whole. It cannot therefore be legally responsible for failure of the State to provide a system which ensures compliance with the Article 2 duty. 
7.68     This argument is fortified by the Court of Appeal's decision in Amin.^[72] (The House of Lords did not address this point directly.) The Court of Appeal examined the Secretary of State's decision to refuse a public inquiry. In so doing it stated that the correct question to ask at the outset was whether the State had fulfilled its obligations under Article 2. It stated: 

To this question the Secretary of State is a proper respondent. He represents the State in a sense and to an extent not mirrored by the functions or responsibilities of the Coroner or the CRE. Of course those bodies which owe public duties under statute may be said to be emanations of the State. They are plainly public authorities for the purposes of the HRA. But we are clear certainly in the present context that central government is the proper body to stand in the shoes of the State when it is called on to answer an alleged violation of ECHR Article 2 including and in particular a violation of the implicit procedural duty to investigate.^[73]

7.69     On examining the compatibility of the rules governing Coroner's inquests and Article 2 the court stated: 

The Article 2 duty is primarily that of the State; any shortcomings in the jurisdiction of a Coroner's inquest have to be made good by the State.^[74]

7.70     The responsibility of discharging the procedural duty lies by default with central government which will have the necessary powers to make amends for any shortcomings in the delegated methods of inquiry. It may choose to discharge the burden placed upon it by a system of inquiries and investigations. Any failure of these systems to satisfy the requirements will however constitute a violation by central government. The local authority that conducts an inquiry that does not meet the required standard will not be committing a breach of Article 2 or Article 3. Indeed a deficient ad hoc inquiry arguably is not a breach per se – it is the absence of other procedures to rectify the shortcomings in the inquiry that amounts to the breach. 

27 The duty on the local authority to act compatibly with the Convention

7.71     For the local authority however the matter does not rest there. Local authorities are public bodies for the purposes of the Human Rights Act 1998. Section 6(1) of the Act states that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right." The local authority will thus be under a duty to act in a manner compatible with the Convention rights. Section 6(2) grants a statutory defence to public authorities who act in a manner incompatibly with Convention rights where the primary legislation means it could not act in any other manner^[75] or that the subordinate legislation "cannot be read cannot be read or given effect in a way which is compatible with the Convention rights".^[76] 
7.72     This duty may have implications for the manner in which a local authority carries out an inquiry even where it does not have powers to compel the attendance of witnesses. It is important to note that in Edwards significant emphasis was placed upon the involvement of the relatives in the non-statutory inquiry. Involving the relatives of the deceased does not need statutory power. Thus a local authority could find itself in breach of the obligation where it was within its competence to fulfil it. 
7.73     If the local authority lacks the statutory power to compel witnesses to attend the inquiry then it may be unable to act in a manner that fulfils the Article 2 or Article 3 requirement. This may be a situation in which the statutory defence is applicable. In other words the local authority by central government's failure to ensure it can conduct effective inquiries cannot help but fail to give effect to Article 2 or 3. It is therefore violating Article 2 or 3 but not acting unlawfully. 
7.74     As a matter of good practice it is expected in this situation that if the local authority considers its own inquiry and any other ongoing investigations will not satisfy the State's obligations under Article 2 or 3 it should petition the Secretary of State to order a statutory inquiry whether ministerial or Tribunal of Inquiry. Indeed the event which gives rise to a court examining the discharge of the obligation may well be the Secretary of State's letter of refusal to hold a full public inquiry.^[77] 

28 Comment

7.75     There are positive obligations on the State to ensure that an effective investigation into alleged breaches of Article 2 or Article 3 takes place. That duty is the State's. It may discharge it by making it possible for the investigation to be carried out by various bodies; the essential feature is that it must be effective. While it is incumbent on the State to provide an effective investigatory mechanism it does not automatically follow that this kind of inquiry power must be made available to local authorities. However granting local authorities power to establish a new form of special inquiry may enable the duty to be more effectively delegated than at present. 

29 Might another body have the appropriate powers?

7.76     In Appendix D we describe the powers of inquiry which are available to bodies other than the local authority. We summarise them as follows. 

30 Inquiry established by Parliament or by a Minister

7.77     There may be a Tribunal of Inquiry established under the 1921 Act or a Ministerial inquiry (statutory or non-statutory^[78]). Such an inquiry^[79] may be initiated in response to a request from a local authority or without any request from the local authority. 

31 External bodies with a duty or power of inspection

7.78     Various bodies have statutory duties of inspection and reporting on how local authorities discharge their responsibilities such as the Social Services Inspectorate ^[80] the Care Standards Boards the District Auditor the Commissioner for Local Administration (the Ombudsman) the Children's Commissioner for Wales the Health and Safety Executive the Environment Agency as well as the Minister.^[81] A Children's Commissioner for England has recently been announced.^[82] 
7.79     Some of the inquires held by the above will be conducted automatically; others will be triggered by an individual. 

32 External bodies with a duty or power of investigation

7.80     From 1 April 2004 all deaths in prisons probation hostels and immigration detention accommodation will be investigated by the Prisons and Probation Ombudsman. Part of the terms of reference of each of these investigations will be to examine "whether any change in operational methods policy practice or management arrangements would help prevent a recurrence". Until the office of the Prisons and Probation Ombudsman is placed on a statutory footing he has no power to compel co-operation with his investigations. Staff who are currently employed by the prison service would be expected to co-operate as part of the terms and conditions of their employment and attendance at a coroner's inquest can be compelled. 
7.81     The Independent Police Complaints Commission (IPCC) which replaces the Police Complaints Authority with effect from April 2004 will have the powers to require a police chief to produce any document and to inspect any police premises as necessary for the purposes of its investigations.^[83] 
7.82     The Inspectorate of Prisons inspects conditions in custodial institutions. The local board of visitors also inspect institutions: "Their role is to be the 'eyes and ears' of the Secretary of State locally but they have both a grievance and an inspectoral role."^[84] 

33 An action in a court or tribunal

7.83     The local authority may find its procedures under the spotlight in court proceedings and not just civil proceedings. There could be a prosecution by the Health and Safety Executive.^[85] However court proceedings are binary: X was or was not guilty of an offence; Y was or was not negligent.^[86] Issues of management structure training responsibility and flaws in the legislation which may not be explored in the courtroom might fall within the scope of an inquiry's terms of reference. 

34 The Coroner's court

7.84     One kind of court – the Coroner's Court – is perhaps an exception. An inquest is a fact-finding inquiry – one which will be reformed in the light of the Coroners Review which reported in 2003.^[87] The Review made a large number of recommendations some of which are designed to improve the coroner's ability to discover and comment on systemic failings which have contributed to a death including fuller conclusions from inquests with a greater bias towards narrative and preventative findings rather than use of verdicts to impute liability inappropriately. In particular there are recommendations to: 

(1) permit public inquests to be held into the deaths of amongst others those in custody or compulsorily detained under mental health powers at the hands of law and order services;

(2) give the coroner explicit powers to determine the scale and scope of his investigation; and

(3) give bereaved families more information and rights.

35 Why these might not be adequate

7.85     In our view there are circumstances in which a matter of serious public concern ought to be thoroughly investigated but it is possible that this will not happen unless set in motion by the local authority. This could arise either because no other body has or will have the power or because another body has the power but is unwilling to use it. 
7.86     A practical example of the kind of situation in which a formal public inquiry might be justified could be one where it is thought with good grounds that a person in the care of the local authority has suffered significant harm. Such a person might be a resident in accommodation run by (or under contract with) the local authority or a person with mental illness or mental disabilities or an elderly person. 
7.87     One respondent commented that children are covered by Part 8 Review procedures but no comparable set of review procedures exists for vulnerable adults. This is true (although the matter is under review by the Department of Health).^[88] But in any event Part 8 procedures do not give any powers of compulsion to the review team and are designed to deal with a multi-agency approach in particular circumstances. It appears from the very fact that the Climbié inquiry was established by the Secretary of State for Health and the Secretary of State for the Home Department that on occasion a Part 8 review will be inadequate.^[89] 
7.88     A different kind of case is exemplified by the Swaps inquiry which is described at paragraph 7.34 above. In such circumstances a local authority itself might wish to investigate the wrongdoing. It lacks the power to compel witnesses to attend to give evidence. The authority may petition the Minister but the Minister may decline to set up the necessary kind of inquiry. 
7.89     A statutory power would enable a local authority to order a full and frank investigation of a serious issue without having to seek ministerial or parliamentary support. The authority would be discharging its duties to the electorate and service recipients. There could be no accusations of a cover-up in the conduct of the inquiry. The appointment of an independent chair to the inquiry would symbolise openness and the need to be seen to be open. Public confidence in the agencies under investigation and the inquiry itself will be increased. The existence of such a power would also make it possible for a person to challenge the decision of a local authority not to establish such an inquiry. 
7.90     A full inquiry especially one conducted in public might avoid the need for lengthy and costly court proceedings. Often victims are forced to use court action to try to discover what has happened. This may be ultimately unsatisfactory as court proceedings may not provide the answers sought. The present ad hoc inquiry system can provide some of these answers but distrust of an inquiry's ability to access all relevant information can dent public confidence. 

36 Conclusion

7.91     Following the recommendations of the Coroners Review there will in future be improved provision for the public investigation of deaths which are not the result of natural causes.^[90] But there are still other kinds of serious wrongs which justify proper and fair investigation such as financial wrongdoing and harm short of death. We certainly cannot rule out the possibility that a matter of serious public concern ought to be investigated publicly formally and with powers of compulsion but such an inquiry may not take place if local authorities do not set it in motion. Currently they do not have the power to set up an inquiry with powers of compulsion. 
7.92     At paragraphs 7.8 - 7.25 above we summarised the possible objections to a new form of inquiry. We considered the arguments against very carefully. 
7.93     With regard to the objection at paragraph 7.17 (that no new power is needed) we demonstrate above that local authorities do not already have adequate powers ^[91] that adequate investigative powers are needed ^[92] and that no other body has the appropriate powers to conduct an effective investigation of serious wrongs which arise in the local authority context.^[93] 
7.94     With regard to the objection at paragraphs 7.21 - 7.24 (the costs) for the local authority it is likely to be a question of the marginal cost: the difference between appointing an inquiry with additional powers or one with no statutory powers rather than the difference between a potentially expensive inquiry and no inquiry at all. 
7.95     The essential feature of the arguments at paragraphs 7.9 – 7.16 (that an inquiry is a potentially heavy-handed tool of investigation which could be misused) is the risk of injustice. Against this must be weighed the risk of injustice where a matter is not properly investigated. We have established that there is a risk that in some circumstances a serious wrongdoing will not be adequately investigated. We believe that this should be remedied so long as adequate safeguards can be built in to the inquiry process and we believe that they can. 
7.96     Due to the dangers entailed in powers of compulsion we do not recommend that a local authority have the power to set up its own inquiry with powers to compel the attendance of witnesses and the power to compel the production of documents. 
7.97     Instead we recommend a new statutory power of inquiry for a principal local authority whereby the inquiry does not itself have the power to compel witnesses to attend but it has the power to apply to the court for a witness order. No witness can thus be compelled without consideration of the matter by a court. We develop this proposal in the next Part. 
Ý
Ü   Þ

Note 1    Paras 9.92 – 9.101.    [Back]

Note 2    The actual costs would depend on how the inquiry was conducted unless that was prescribed. For example if legal representation was permitted or even required the costs would be higher than where witnesses were not legally represented.    [Back]

Note 3    CP para 9.100.    [Back]

Note 4    The report stated: In the longer term local authorities should by a change in the law be given the power they lack at present to set up formal inquiries empowered like existing ministerial inquiries under section 250 of the Local Government Act 1972 to summon witnesses require the production of documents and take evidence on oath. The legislation should also make it possible (as is already possible for ministerial inquiries under section 11 of the Tribunals and Inquiries Act 1971 [this provision has been repealed and replaced by Tribunal and Inquiries Act 1992 s 8]) to prescribe statutory rules of procedure regulating the conduct of these inquiries. SOLACE and RIPA “Ad hoc Inquiries in Local Government” (1978) para 4.13.    [Back]

Note 5    Para 32.63.    [Back]

Note 6    For example A Arden QC thought that putting a power of inquiry on a statutory footing would allow a Code of Practice to be incorporated.    [Back]

Note 7    The Royal Commission on Tribunals of Inquiry Report of the Commission under the Chairmanship of the Rt. Hon Lord Justice Salmon “The Salmon Report” (1966) Cmnd 3121 para 27.    [Back]

Note 8    Para 17.    [Back]

Note 9    R (on the application of Howard) v Health Secretary [2002] EWHC 396 (Admin); [2003] QB 830 paras 69–70.    [Back]

Note 10    As the former Chief Executive of Torfaen Council put it the question of whether to extend such powers to a local authority “go[es] to the question of a local authority’s capacity to interfere with the freedoms and privileges of others (both individuals and agencies) in pursuit of their duty of community leadership and of realising the well being of the communities for which they are responsible.”    [Back]

Note 11    See para 5.27 above.    [Back]

Note 12    See para 5.38.    [Back]

Note 13    See above para 5.90 on the relationship between the quality of the inquiry and qualified privilege.    [Back]

Note 14    D Carson “Structural problems perspectives and solutions” in J Peay (ed) Inquiries after Homicide (1996) p 143.    [Back]

Note 15    He wrote: There is no doubt in my mind that this danger attaches not only to local authority inquiries but also to Tribunals of Inquiry inquiries where the possibility of appealing against findings of fact was ruled out following the recommendation of Lord Salmon. (Lord Salmon took the view that a Tribunal of Inquiry was an instrument of government and that as such it would be ineffectual if its findings were not seen as having finality.) It is highly unlikely that the hearings presided over and the reports compiled by Lord Widgery for the first Bloody Sunday inquiry and by Sir Ronald Waterhouse for the North Wales Tribunal would ever have taken the form they did had the two chairmen believed that the conduct and conclusions of their Tribunals might eventually have been scrutinised by a higher court.    [Back]

Note 16    Anna Pauffley QC submitted amongst other things that Treasury Counsel to the Waterhouse inquiry had adopted an adversarial approach. She also submitted as was noted in the report itself that we should not make any findings of fact implicating individuals in our report because the full evidence in relation to specific allegations that would be available at a criminal trial including character evidence has not been heard and because some allegations emerged very late in the proceedings so that the alleged abuser was at a disadvantage in dealing with them. Waterhouse Report para 6.03.    [Back]

Note 17    In Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB); [2002] All ER (D) 465 (Jul.) para 1126 Eady J held “any claim to have accorded Christopher Lillie or Dawn Reed ‘natural justice’ in the course of this inquiry has no contact with reality”. As regards “Salmon letters” which the Review Team claimed to have sent L and R the letter actually sent to Lillie was very vague on what was alleged against him and wrongly said that the Review would not be revisiting the criminal matters on which he had been acquitted (para 1160). Eady J in fact concluded that that assurance was a lie (para 1165).    [Back]

Note 18    Eg the inquiry on behalf of Edinburgh Council into abuse of children in care which followed criminal proceedings. In the report the team stated: The Inquiry had power to compel witnesses to attend but we were quite clear that we would not put any pressure on the victims to attend and that nothing would be gained by doing so. Nor did we ever need to resort to compulsory powers with regard to any other person. All those persons we were able to trace responded readily and constructively to our requests to speak to them. … Our ability to follow up “reports made” has been hampered by the failure of two of [the former residents in the children’s homes] to speak to us. Nevertheless we feel we were right not to insist on their attendance. The trial was a harrowing experience for the victims and we do not believe it would have been right to have subjected them to any more unwanted questioning. Where possible we have tried to obtain information about these reports in other ways and that approach has been reasonably successful. “Edinburgh’s Children” (1999) paras 2.5 and 2.19. See paras 2.5 and 2.6 on why the inquiry felt an informal approach was best.    [Back]

Note 19    The Tyra Henry inquiry: “Whose child?” (1987) London Borough of Lambeth pp 5 119.    [Back]

Note 20    Human Rights Act 1998 s 7(1)(a).    [Back]

Note 21    For instance the decision to establish the inquiry as a non-statutory one could fall foul of general administrative law principles such as failure to take into account a material consideration Wednesbury unreasonableness and the like.    [Back]

Note 22    Compare what happens with Monitoring Officers and ethical investigations. Members are required to make a complaint to the MO against another Member if they think the other is in breach of the Code of Conduct. The MO is not a Member but it is questionable whether that degree of independence is enough to prevent such complaints becoming political weapons.    [Back]

Note 23    The council which was jointly responsible with North Essex Health Authority and the Prison Service for establishing the inquiry into the death of Christopher Edwards at the hands of Richard Linford while in custody.    [Back]

Note 24    They thought that on the face of it powers to compel the attendance of witnesses and the production of documents could be needed in the course of a Part 8 Review.    [Back]

Note 25    The European Court held that the inquiry was independent as it was chaired by a senior member of the independent bar. Additionally there was no undue delay in the report given the complexity and sensitive nature of the material under investigation. However the lack of power to compel witnesses and the private nature of the inquiry failed to comply with the requirements of Article 2: Edwards v United Kingdom App no 46477/99 judgement 14 March 2002 (2002) 35 EHRR 487.    [Back]

Note 26    Ibid para 22.    [Back]

Note 27    V Veeder QC John Barratt and Michael Reddington. In February 1990 an inquiry team was appointed by the London Borough of Hammersmith and Fulham to conduct an independent inquiry into the Borough’s capital market activities. They reported in 1991.    [Back]

Note 28    The Swaps report ch 1 para 26.    [Back]

Note 29    The Swaps report Postscript to Chapter One para 9.    [Back]

Note 30    The Swaps report Postscript to Chapter One para 11.    [Back]

Note 31    See above paras 2.16 – 2.32.    [Back]

Note 32    See para 2 in Appendix D.    [Back]

Note 33    Section 1(1) Tribunals of Inquiry (Evidence) Act 1921.     [Back]

Note 34    See paras 5 – 35 in Appendix D.    [Back]

Note 35    See for example Local Authority Social Services Act 1970 s 7C; NHS Act 1977 s 84; Children Act 1989 s 81; Education Act 1996 s 507; Police Act 1996 s 49.    [Back]

Note 36    http://www.bristol-inquiry.org.uk/about/q_and_a/brisqa1.htm#26    [Back]

Note 37    J Merrills The Development of International Law by the European Court of Human Rights (2nd ed 1995) 98–124.    [Back]

Note 38    See Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99 para 72.    [Back]

Note 39    See Artico v Italy (1980) 3 EHRR 1 para 33.    [Back]

Note 40    Airey v Ireland (1979) 2 EHRR 305 para 26.    [Back]

Note 41    See eg Ashkoy v Turkey (1997) 23 EHRR 533 and McGlinchey and others v UK (2003) Application 50390/99 para 62.    [Back]

Note 42    Z v UK (2001) 34 EHRR 97 para 106.    [Back]

Note 43    Article 2(1).    [Back]

Note 44    McShane v UK App No 43290/08 judgment 28 May 2002 para 91.    [Back]

Note 45    McCann v UK [1996] 21 EHRR 97 para 147.    [Back]

Note 46    Article 15(2) ECHR.    [Back]

Note 47    R v The Secretary of State for the Home Department ex p Amin [2002] EWCA Civ 390 para 32 [2003] UKHL 51. See eg McCann v UK [1996] 21 EHRR 97 para 161; Gulec v Turkey (54/1997/838/1044) para 77; Ergi v Turkey (66/1997/850/1057).    [Back]

Note 48    As Lord Woolf CJ on behalf of all the members of the Court of Appeal held “by its nature it cannot be a duty defined by reference to fixed rules”: R v The Secretary of State for the Home Department ex p Amin [2002] EWCA Civ 390 [2003] QB 581 para 32. The issue is also being addressed by the Joint Committee on Human Rights: see Deaths in Custody: Interim Report (HL 12 HC 134) (2004 TSO).    [Back]

Note 49    Lester and Pannick state that the duty to investigate arises where there has been a deprivation of the right to life through the use of lethal force: A Lester and D Pannick Human Rights Law and Practice para 4.2.32. Starmer submits that the duty arises in circumstances which might amount to a breach of Article 2: K Starmer European Human Rights Law: The Human Rights Act 1998 and the European Convention on Human Rights (1999) para 14.14.    [Back]

Note 50    Edwards v United Kingdom App No 46477/99 judgement 14 March 2002; (2002) 35 EHRR 487.    [Back]

Note 51    R v The Secretary of State for the Home Department ex p Amin [2002] EWCA Civ 390; [2003] QB 581. Note that this case has been successfully appealed in R (on the application of Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2003] 3 WLR 1169. The decision of the House of Lords Middleton was handed down in March 2004: see below para 7.64. Note also that the judgements at the Court of Appeal in Amin and Middleton were commented on in R (Stanley) v Inner London Coroner [2003] EWHC 1180 (Admin) and applied in Sacker v West Yorkshire Coroner [2003] EWCA Civ 217 [2003] 2 All ER 278 and R (on the application of Khan) v Secretary of State for Health [2003] EWCA Civ 1129; [2003] 4 All ER 1239. See too R (on the application of Green) v Police Complaints Authority [2004] UKHL 6.    [Back]

Note 52    Powell v United Kingdom App No 45305/99 admissibility decision of 4 May 2000.    [Back]

Note 53    Taylor v United Kingdom [1994] 79–A DR 127.    [Back]

Note 54    R (on the application of Khan) v Secretary of State for Health [2003] EWCA Civ 1129; [2003] 4 All ER 1239. See para 7.62 below.    [Back]

Note 55    App no 47916/99 decision on admissibility of 6 May 2003. Held inadmissible on other grounds.    [Back]

Note 56    DP and JC v UK App No 38719/97; [2003] 1 FLR 50.    [Back]

Note 57    DP and JC v UK App No 38719/97; [2003] 1 FLR 50 para 135. See also Kaya v Turkey App No 22729/93 judgement 19 February 1998 Reports 1998–I (1998) 28 EHRR 1 para 107 Ekinci v Turkey App No 27602/95 hearing date 16 July 2002.    [Back]

Note 58    DP and JC v UK App No 38719/97; [2003] 1 FLR 50 para 136. See also Indelicato v Italy (2002) 35 EHRR 40 paras 35–37 where although the ECtHR found that the allegations of a direct violation of Article 3 had not been proven the delay and negligence in conducting an inquiry led to a violation of the positive obligation under Article 3. Consider also McGlinchey and others v UK (Application no 50390/99) (29 April 2003) [2003] 72 BMLR 168 where in his partially dissenting judgement Judge Sir Nicholas Bratza considered that the applicant’s complaints did not fall outside the protection of Article 13. He was satisfied that the various complaints of the applicants raised an arguable claim and considered the applicant’s rights were violated under Article 13 independently of Article 3.    [Back]

Note 59    Query whether a breach of the Article on slavery might not give rise to a similar duty. Article 4 does not merely impose a negative obligation upon a state to refrain from putting individuals into a condition of slavery servitude or compulsory labour; the Commission has however read in to Art 4 a positive obligation to ensure that its laws prevent individuals from imposing such conditions upon others see eg X v Netherlands (1983) 5 EHRR 598 para 2 (a decision of the European Commission of Human Rights) and R Clayton and H Tomlinson The Law of Human Rights (2000) para 9.10. However we have found no cases referring to effective investigations under Art 4. Nevertheless given the positive obligation under Article 4 it is arguable that it would be presumed that there is an obligation on the state to mount an effective investigation into issues of slavery servitude and forced labour.    [Back]

Note 60    The Court described the relevance of civil proceedings to fulfilling the procedural obligation. It stated: ... civil proceedings would provide a judicial fact finding forum with the attendant safeguards and the ability to reach findings of unlawfulness with the possibility of damages. It is however a procedure undertaken on the initiative of the applicant not the authorities and it does not involve the identification or punishment of any alleged perpetrator. As such it cannot be taken into account in the assessment of the State’s compliance with its procedural obligations under Article 2 of the Convention. Hugh Jordan v United Kingdom App No 24746/94 judgement 4 May 2001 para 141.    [Back]

Note 61    Hugh Jordan v United Kingdom App No 24746/94 judgement 4 May 2001 para 106.    [Back]

Note 62    Ibid para 107.    [Back]

Note 63    Ibid para 108.    [Back]

Note 64    Ibid para 109. See also R (Wright) v Secretary of State for the Home Department [2001] EWHC Admin 520; [2001] All ER(D) 204.    [Back]

Note 65    R v The Secretary of State for the Home Department ex p Amin [2002] EWCA Civ 390; [2003] QB 581 para 91.    [Back]

Note 66    [2003] 3 WLR 1169 para 32 per Lord Bingham MR. See also paras 44–45 per Lord Slynn. The Court of Appeal whose decision was reversed by the House of Lords had held that the features of an effective investigation pronounced in Jordan were not to be regarded as “requirements set in stone”: R v The Secretary of State for the Home Department ex p Amin [2002] EWCA Civ 390; [2003] QB 581 para 60. The CA thought that the statement in Wright therefore that an investigation should have the general features identified in Jordan could not be accepted at face value.    [Back]

Note 67    See the CA decision at [2002] EWCA Civ 390; [2003] QB 581 para 62 and Lord Steyn’s comments at [2003] 3 WLR 1169 para 50. See too R (on the application of Green) v Police Complaints Authority [2004] UKHL 6.    [Back]

Note 68    [2003] EWCA Civ 1129; [2003] 4 All ER 1239.    [Back]

Note 69    Ibid paras 68 – 75.    [Back]

Note 70    [2004] UKHL 10    [Back]

Note 71    The approach in Middleton was applied by the House of Lords in R (on the application of Sacker) v West Yorkshire Coroner [2004] UKHL 11. Here the House of Lords affirmed the approach of the Court of Appeal in this case.    [Back]

Note 72    R v The Secretary of State for the Home Department ex p Amin [2002] EWCA Civ 390; [2003] QB 581.    [Back]

Note 73    Ibid. para 39.    [Back]

Note 74    R v HM Coroner for West Somersetshire ex p Middleton [2002] EWCA Civ 390; [2003] QB 581 para 91. Amin and Middleton were heard together on appeal. The Middleton case concerned a suicide in custody in which the Coroner ruled that the issue of neglect should not be left to the jury. The Court of Appeal ruled that the inability to return such a verdict without identifying individuals meant that the investigation may not amount to a sufficient investigation for the purposes of Article 2. This ruling was following in R (on the application of Lambourne) v Deputy Coroner for the District of Avon [2002] EWHC (Admin) 1877; [2002] All ER (D) 443 (Jul.). Although this was only a Divisional Court decision it was heard by Lord Woolf CJ and Curtis J. The House of Lords overturned the Court of Appeal’s judgement in Amin: see R (on the application of Amin) v Secretary of State for the Home Department [2003] UKHL 51. It overruled the decision in Middleton in part in R (on the application of Middleton) v West Somerset Coroner [2004] UKHL 10; see above para 7.68. It should be noted that in Re McKerr [2004] UKHL 12 it was held that there was no common law right corresponding to the procedural right under Article 2 of the ECHR. The right was legislated for previously by Parliament and the Convention right became part of domestic law by virtue of the HRA 1998.     [Back]

Note 75    Human Rights Act 1998 s 6(2)(a).    [Back]

Note 76    Human Rights Act 1998 s 6(2)(b).    [Back]

Note 77    As in Khan (see para 7.62 above) and in Amin where judicial reviews were launched against the Coroner the CRE and the Secretary of State for their failures to reopen investigations or investigate the matter in a more in-depth manner.    [Back]

Note 78    The use of non-statutory ad hoc inquiries by central government is currently the subject of inquiry by the Public Administration Select Committee.    [Back]

Note 79    An additional instance in a Bill currently before Parliament is a domestic homicide review directed by the Secretary of State (Domestic Violence Crime and Victims Bill 2004 cl 7. The bodies which can be directed to establish or participate in such a review are: a chief officer of police local authorities local probation boards Health Authorities and PCTs (cl 7 (4)). This is a review of the circumstances in which a person aged 16 or over has died as a result of violence abuse or neglect at the hands of a family member or someone in the same household “held with a view to identifying the lessons to be learnt from the death” (cl 7(1)).    [Back]

Note 80    From April 2004 part of the Commission for Social Care Inspection which will combine the work of the SSI the SSI/Audit Commission joint review team and the National Care Standards Commission (NCSC).    [Back]

Note 81    The Secretary of State may conduct a Best Value Inquiry where a local authority is failing to comply with the requirements of Best Value. It is ordered by the Secretary of State and benefits from the powers laid out in section 250(2) – (5) Local Government Act 1972. Rather than being used merely as a method of investigation it is used as a sanction in order that the Secretary of State can take further punitive measures.    [Back]

Note 82    Children Bill 2004 Part 1.    [Back]

Note 83    Police Reform Act 2002 ss 15 17 and 18.    [Back]

Note 84    Description by Stephen Shaw the Prisons and Probation Ombudsman in 167 JP p 85 8 Feb. 2003.    [Back]

Note 85    Eg Leeds City Council fined £30 000 over deaths of two girls by drowning when on a river walk in October 2000.    [Back]

Note 86    See further Mavis Maclean “How does an Inquiry Inquire? A Brief Note on the Working Methods of the Bristol Royal Infirmary Inquiry” (2001) 28 Journal of Law and Society 590  596.    [Back]

Note 87    Death Certification and Investigation in England Wales and Northern Ireland: The Report of a Fundamental Review (2003) Cm 5831. The Home Secretary commissioned Tom Luce the Chair of the Fundamental Review to conduct some further work to link his Group’s recommendations to those of the Shipman Inquiry’s Third Report (Death Certification and the Investigation of Deaths by Coroners). In March 2004 the Government published Reforming the Coroner and Death Certification Service: a Position Paper (Cm 6159) setting out a programme of reform.    [Back]

Note 88    The Department of Health and the National Assembly for Wales have released consultation documents on guidelines to help protect vulnerable adults and the procedures to be followed by the various agencies when investigating an incident: Department of Health “No Secrets: The Protection of Vulnerable Adults Guidance on the development and implementation of multi-agency policies and procedures” (2000) for England and National Assembly for Wales “In Safe Hands: Implementing Adult Protection Procedures in Wales” (2000).    [Back]

Note 89    This accords with the experience of the Family Law Bar Association.    [Back]

Note 90    Annex 2 of the Government’s Position Paper lists the categories of death where a coroner’s investigation would be required.    [Back]

Note 91    See paras 7.36 – 7.42 above.    [Back]

Note 92    See paras 7.43 – 7.74 above.    [Back]

Note 93    See above paras 7.76 – 7.90.    [Back]