Right to Life and Investigation of Near Deaths in State Custody or Care

R (on the application of JL) v Secretary of State for Justice [2008] UKHL 68 (26 November 2008)

The House of Lords has recently unanimously held that the right to life established by art 2 of the European Convention on Human Rights requires the state to carry out an independent investigation whenever a person is left incapacitated by a suicide attempt in custody.


JL, a 20 year old man, attempted to hang himself in custody in 2002.  He was resuscitated and survived with serious and permanent brain damage that rendered him incapable of conducting his own affairs.

The area manager of the Prison Service subsequently directed a retired prison governor to investigate the incident.  After his report was eventually released to JL’s representatives in early 2005, they sought judicial review on the basis that art 2 imposed a duty on the State to carry out an independent investigation into his attempted suicide that was open to public scrutiny, took into account all relevant evidence and involved his next of kin.

The Court of Appeal upheld Langford J’s decision that a death or serious injury of a person in custody gives rise to an obligation on the state to conduct an ‘enhanced investigation’ into the incident containing these elements.  Waller LJ found that as it was not apparent from the initial investigation that state agents bore no responsibility for JL’s suicide attempt, a further ‘D type inquiry’ (an inquiry conducted entirely in public, except where convention reasons dictate otherwise: R (on the application of D) v Secretary of State for the Home Department [2006] 3 All ER 946) was required in the circumstances.  Concerned by the resources implications of the decision, the Secretary of State appealed to the House of Lords.


The primary issue was whether the state should be obliged to conduct an inquiry satisfying the minimum standards required by art 2 in the circumstances.

However, as the Secretary of State conceded before trial that it would conduct a ‘D type inquiry’ into JL’s attempted suicide, discussion at the hearing turned not only on when an attempted suicide would trigger the requirement to investigate but also on the form which an inquiry should take.

When is an Article 2 investigation required?

Their Lordships (Lords Phillips, Rodger, Walker, Brown and Mance) unanimously rejected the Secretary of State’s submission that an investigation complying with art 2 is only required where the State is in ‘arguable breach’ of its substantive duty to protect life.  Rather, they found that a substantive breach of art 2 should logically be the possible result of, rather than a condition precedent to, an investigation.  Moreover, contrary to the views of the Secretary of State, the purpose of an art 2 investigation extends beyond ensuring the accountability of state officials for past wrongs, to preventing incidents waiting to happen and maintaining public confidence in the prison system.  The significance of this protective purpose was demonstrated by reference to the tragically high number of suicides in custody and the special vulnerability of persons in custody that distinguishes them from individuals at liberty under convention law.

The court went on to find that an art 2 investigation is required in circumstances where a near suicide in custody results in permanent and serious injury.  Their Lordships notably stressed the limits of their ability to provide generalised guidance for the broad spectrum of possible suicide attempts and outcomes without the benefit of hearing full argument in context.  Consequently, the judgment is expressly intended to prove most useful in factually similar circumstances.  However, the court usefully reiterated that the state’s procedural duty to investigate is parasitic upon the substantive positive obligation to protect life and so the duty to investigate cannot arise until life is threatened.  It would appear then that the threshold test to be applied in each case is whether life was threatened as a matter of fact.

Requirements of an Article 2 investigation

Their Lordships accepted it was unavoidable that the first steps in an investigation would be internal to the prison service.  However, the investigation must be handed over to an independent investigator as soon as practicable in order to comply with art 2.  For this reason, the original investigation into JL’s suicide was non-compliant.

The basic requirements of an ‘enhanced investigation’ required by art 2 were usefully summarised by Lord Brown as follows:

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.

Ultimately, their Lordships recognised that the type of investigation necessary will vary in the circumstances and is thus a matter best left to the independent investigator’s discretion.  Lord Brown was alone in suggesting that D’s case was wrongly decided, however their Lordships all rejected the proposition that every independent investigation must be a ‘D type inquiry’ for this reason.

Relevance to the Victorian Charter

Section 9 of the Charter provides for the right to life on similar terms to art 2 of the European Convention.  As foreign judgments relevant to human rights may be considered when interpreting Charter rights (in accordance with s 32(2) of the Charter), the decision may assist Victorian courts to interpret s 9.

The Charter’s Explanatory Memorandum expressly recognises that the right to life has been interpreted as encompassing a procedural obligation to undertake effective coronial investigations.  Significantly, this decision now arguably expands the scope of the procedural obligation to conduct an effective investigation under s 9 to circumstances where a prisoner attempts suicide in custody, nearly succeeds and is left permanently incapacitated.

Furthermore, given that the appeal was essentially brought to illuminate the nature of art 2 in future cases, it provides some general guidance to Victorian courts about:

  • when an investigation complying with art 2 may be required; and
  • the form that such an investigation may take.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/68.html.

Bec James and Peter Henley, Human Rights Law Group, Mallesons Stephen Jaques