West Law Report

Near-suicide in custody requires open inquiry

Posted in House of Lords (case), Times Law Report by mrkooenglish on December 5, 2008

From The Times
December 1, 2008
Near-suicide in custody requires open inquiry

House of Lords
Published December 2, 2008
Regina (JL) (a Youth) v Secretary of State for Justice
Before Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Mance
Judgment November 26, 2008

A near-suicide in custody which resulted in the prisoner’s mental incapacity triggered the state’s obligation to institute an independent initial investigation which complied with article 2 of the European Convention on Human Rights, protecting the right to life.

The House of Lords so held when dismissing an appeal by the Secretary of State for Justice from the dismissal by the Court of Appeal (Lord Justice Waller, Lord Justice Maurice Kay and Lord Justice Wilson) (The Times October 2, 2007; \ 1 WLR 158) of his appeal from Mr Justice Langstaff (\ EWHC 2558 (Admin)) who, on JL’s judicial review claim, brought by the Official Solicitor acting as his litigation friend, granted declaratory relief that the secretary of state was obliged to hold an investigation into JL’s attempted suicide, while in custody at Feltham Young Offender Institution. The Prison Service initiated an internal investigation.

Mr Nigel Giffin, QC and Ms Cecilia Ivimy for the secretary of state; Mr Ben Emmerson, QC and Ms Kristina Stern for JL; Ms Heather Williams, QC and Mr Raza Husain for the Equality and Human Rights Commission, intervening.

LORD PHILLIPS said that the resource implications of the issues were considerable but certain principles that would normally apply could be identified. He would confine his remarks to where the prisoner’s suicide attempt came close to success and left him with the possibility of serious long-term injury. He was thus considering the case where there was a victim whose interests had to be considered.

It was fundamental to the secretary of state’s case that the reason why article 2 required an investigation into a near-suicide in prison was to secure the accountability of state agents in respect of possible breaches of the substantive obligations imposed by that article. Thus, he argued, if the state could show that there was no arguable case of such a breach, there was no requirement for an investigation.

Referring to the human rights and domestic jurisprudence, his Lordship said that the article 2 duty to investigate covered a wide spectrum. Different circumstances would trigger the need for different types of investigation with different characteristics.

The European Court of Human Rights at Strasbourg emphasised the need for flexibility and the fact that it was for the individual state to decide how to give effect to the positive obligations imposed by article 2.

Under the domestic regime, death required a spectrum of different types of investigation, depending on the particular circumstances. But the regime made no provision for nearsuicide.

Nature of the initial investigation

The secretary of state contended that the initial investigation, in circumstances such as the present, could be internal and that, unless it showed an arguable case that the prison authorities were at fault, there would be no need for any further investigation.

Lord Justice Waller considered the Strasbourg and domestic jurisprudence to be applicable to a near-suicide in custody, so as to impose an automatic requirement for an enhanced type of investigation.

His Lordship summarised its essential ingredients: it had to be initiated by the state itself, to be prompt and carried out with reasonable expedition, it had to be effective and conducted by a person who was independent of those implicated in the events under investigation.

There had to be a sufficient element of public scrutiny of the investigation or its results and the victim’s next of kin had to be involved to the extent necessary to safeguard his legitimate interests.

He concluded that a near-suicide in custody that left the prisoner with the possibility of a serious long-term injury automatically triggered an article 2 obligation on the state to institute such an investigation; that obligation could not be discharged or removed by an internal investigation. In some circumstances, an initial investigation would satisfy article 2; in others a further investigation would be necessary, which might well require a public inquiry: see R (D) v Secretary of State for the Home Department (The Times March 21, 2006; \ 3 All ER 946). That was because the state’s positive duty to protect life had particular application in relation to suicide risk by prisoners.

Article 2 placed on prison authorities a positive duty to take reasonable care for prisoners’ safety and to take reasonable steps to ensure that they did not commit suicide. Discharge of that duty required systemic precautions to be put in place.

The purpose of an investigation into a prison suicide was to open up the circumstances to public scrutiny, thereby ensuring accountability for fault, but also to correct mistakes and search for improvements: see R (Sacker) v West Yorkshire Coroner (The Times March 12, 2004; \ 1 WLR 796, paragraph 11).

A suicide attempt that resulted in serious injury was a matter of public concern, albeit not usually of such serious concern as a suicide. The reasons why a suicide required an investigation also applied here. They required an enhanced investigation, albeit not necessarily a public inquiry.

An internal investigation that did not disclose an arguable case of fault by the state authorities did not preclude the need for an enhanced investigation because: first, the object of the investigation went beyond determination of whether the authorities were at fault; second, the scope of the investigation would normally be considerable, involving consideration of what was known, or should have been known of the suicide risk the prisoner presented and an investigation of whether prison procedures against that risk were appropriate and properly implemented.

One object of the investigation would be to require the prison service to account for something that appeared to have gone seriously wrong. If impartiality was to be achieved, it was essential that a person who was independent of those involved conducted the investigation.

Need for further investigation

Whether a further investigation was necessary would depend not merely on whether the initial investigation was independent, but on whether it satisfied all the requirements of an enhanced investigation.

If witnesses gave their evidence readily, the course of events appeared clear and the circumstances of the attempted suicide were shown to involve neither a possible systemic defect nor possible operational shortcoming, the initial investigation might satisfy the requirement of efficacy without the need for further inquiry.

In that event, if the prisoner or his representatives were appropriately involved in the investigation and its report was published, the other requirements of an enhanced investigation might be satisfied.

The initial investigation should be sufficiently rigorous to satisfy those requirements where possible. A D-type investigation would necessarily be more protracted and expensive. But where the initial investigation would not be adequate to satisfy article 2, it was required. It would not be appropriate for their Lordships to attempt to prescribe where that would be so.


Prison Service Order PSO 1300, giving directions for investigations into untoward incidents, should be amended so as to require, at the least, an independent investigation in the case of a near-suicide resulting in serious injury.

In JL’s case the investigation accorded with PSO 1300 but did not satisfy article 2. In particular: the investigator did not have the requisite independence; neither JL nor anyone representing his interests took any part in the investigation or was aware that it was taking place; no investigator’s report was published.

Other aspects of the internal inquiry called for further investigation.

After the Court of Appeal’s decision, the secretary of state decided to conduct a D-type investigation without awaiting the result of this appeal. He was right to do so.

Lord Rodger, Lord Walker, Lord Brown and Lord Mance delivered opinions concurring in the result.

Solicitors: Treasury Solicitor; Bindman & Partners; Mr John Wadham, Southwark.


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