JL, R (on the application of) v Secretary of State for the Home Department  EWCA Civ 767 (24 July 2007)
This case concerned the investigative duties imposed upon authorities by art 2 of the European Convention on Human Rights (the right to life) following the injury or death of an individual whilst in custody. In particular, the case turned on whether an obligation to carry out an ‘enhanced investigation’ was subject to a threshold test of ‘arguability’. The content of an enhanced investigation has certain features: (i) the State itself must commence the investigation; (ii) the investigation or inquiry must be public and open to public scrutiny; (iii) the investigator must be independent of those persons involved; and (iv) the family must have proper opportunity to participate (R (on the application of Amin) v Secretary of State for the Home Department  UKHL 51). In the present case, although a primary investigation had taken place, it was argued that this was insufficient to meet the requirements of art 2, namely to conduct an enhanced investigation.
The Secretary of State for the Home Department submitted that there must be a threshold trigger as to arguability of the possibility that the state may be in breach of its positive obligation to protect life before the obligation to investigate arises. The appellant argued that the obligation derived from the accountability of a state for a person injured or killed in its custody, and that it was simply not possible or logical for someone to take a proper decision on arguability without the proper investigation having taken place.
JL, a young man, attempted suicide while in custody in Feltham Young Offenders Institution. Although unsuccessful, he was left with permanent and serious brain-damage. In the weeks leading up to the attempted suicide, he was noted to be depressed, anxious and at high risk of suicide. A ‘self harm at risk’ file was opened with regard to him, but was subsequently closed following a review. However, the chaplaincy, who were quite deeply involved with JL, and who had expressed concerns about his risk of self-harm, were not consulted in making this decision.
Following the event, the Londonarea manager of the prison service directed a retired governor within the prison service to investigate what had happened. He submitted his report to the area manager a few months after the attempted suicide, but this investigation was not revealed to JL or his relatives until disclosed by the Treasury Solicitor on 26 January 2005.
Walker LJ delivered the judgment of the Court. At the outset he alluded to the difficulty of deciding the question of threshold in isolation from the question of the content of the investigation. However, he rejected as ‘unreal’ the suggestion that, before the State was required to conduct an enhanced investigation into someone who was injured or died in custody, that there must be some prima facie or arguable case raised. He found that the death or serious injury of a person in custody gives rise to an obligation to conduct an investigation although the content of that investigation would depend on the circumstances and different investigative triggers may operate at different stages of the inquiries which follow the event. Walker LJ held that the accountability of the State extended to explaining how the death in custody occurred, not just to simply being accountable for the breach, and that following from this ‘it makes no sense to allow the State to be the judge as to whether an investigation should commence on the basis of whether there is an arguable case against it before an investigation has been carried out as to what the facts are.’
Walker LJ found that the primary investigation must be conducted by a person independent of those implicated in the facts. The circumstances of the case would dictate whether a further inquiry in the nature of a public hearing in which the next of kin of the injured or deceased person could play a part was necessary. Where a death has occurred, this decision may be made by the coroner. Where serious injury has occurred, this decision will depend on the facts as discovered by the independent investigator, but it is at this stage that ‘something’ more than death or serious injury whilst in custody will dictate whether an enhanced inquiry is required to be held. However, Walker LJ stressed that the word ‘something’ was ‘best not expressed in the words “an arguable case.”’ He described ‘something’ as being met when ‘the State or its agents potentially bear responsibility,’ or where, ‘in the particular circumstances ascertained by the independent investigator “it is not plain that the State or its agents can bear no responsibility.”’ Even where the investigator concludes that the State had no responsibility, it ‘could only be in such a plain case where there was no potential for liability that investigation with the D-type requirements [i.e. an enhanced investigation] should not be necessary. It is the obligation of the State to account which it seems to me places the trigger or bar as low as I would place it.”
In this case, the Court found that the investigation conducted did not have the sufficient degree of independence, and furthermore, that on the facts already discovered, an enhanced investigation was necessary to meet the requirements of art 2. The decision to remove JL from the ‘at risk of self harm’ list, especially in light of the concerns of the chaplaincy, and the background statistics which indicated a high rate of suicide during incarceration, required the full facts to be considered, culpability to be examined, and the practice of not consulting with the chaplaincy to be reviewed.
Implications for the Victorian Charter
The decision of the court in this case may assist Victorian courts in interpreting the content of s 9 of the Charter (the right to life), being the equivalent provision to art 2 of the ECHR, when dealing with the investigation of the suicide and self-harm of individuals whilst incarcerated. It may also help the Courts in deciding whether any investigation into a breach of ss 10 (protection from torture and cruel treatment or punishment) or 22 (right to humane treatment when deprived of liberty) by the relevant authority is sufficient to meet its obligations under the Charter.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2007/767.html.
Nicholas Chandler, Human Rights Law Group, Mallesons Stephen Jaques