D, R (on the application of) v Secretary of State for the Home Department

Where a prisoner suffers life-threatening injuries in a serious attempted suicide, the state’s investigative obligation under Articles 2 and 3 may require a public and effective inquiry. The necessary procedure depends on the circumstances and lies on a spectrum of intensity. Relevant factors include the seriousness of the incident, the known risk to the prisoner, and whether the authorities may have failed to protect life.

An earlier internal investigation which lacked independence, public scrutiny and participation by the prisoner’s representatives may make only a minimal contribution. Civil proceedings initiated by the victim or relatives do not discharge the state’s investigative obligation in a custody case. The inquiry must provide effective accountability, including appropriate public scrutiny, access to relevant evidence and the ability of representatives to question witnesses in person.

D, a prisoner at HMP Pentonville known to be a real and immediate suicide risk, attempted suicide after earlier incidents of self-harm. He survived but suffered permanent and irreversible brain damage. The Prison Service’s internal Draper investigation was neither independent nor public, and D and his representatives had not participated in it.

The Secretary of State proposed a further investigation by the Prisons and Probation Ombudsman, combined with the earlier investigation and possible civil proceedings. The proposed procedure would not be public, would lack compulsory powers, and would limit D’s representatives’ participation in questioning witnesses and access to evidence.

The central issue was whether those combined measures satisfied the state’s investigative obligations under Articles 2 and 3 of the Convention.

1. Outcome. The proposed investigation did not satisfy the state’s obligations under Articles 2 and 3. Declarations were granted, rather than the more extensive mandatory order sought, and permission to appeal was granted.
2. The investigative obligation is flexible. The required form and intensity depend on the circumstances, but deaths in custody and serious, life-threatening injuries in custody lie at the most serious end of the spectrum. The rationale is effective accountability for state agents and bodies, together with protection of vulnerable prisoners.
3. The principles identified in Jordan v United Kingdom (2001) 37 EHRR 52, Edwards v United Kingdom (2002) 35 EHRR 487 and R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 applied to a near-miss suicide in custody. The investigation had to be independent and effective, sufficiently prompt, subject to adequate public scrutiny, and permit the next of kin or representatives to participate to the extent necessary to safeguard legitimate interests.
4. The Draper investigation was not independent, D and his family had not participated, and its report had not been published. Missing documentation and non-compliance with PSO 9020 further undermined its evidential value. It could make only a minimal contribution and instead indicated the need for a more stringent investigation.
5. Civil proceedings were irrelevant to compliance with the procedural investigative obligation in this custody case. They were initiated by the victim, did not necessarily establish the full facts, and did not provide the same accountability or identification of responsibility as an official investigation.
6. The proposed inquiry had to be public, subject only to particular evidence being heard privately where Convention-compliant reasons convincingly justified that course. It also had to be capable of securing the attendance and evidence of witnesses, either initially or through powers that could be supplied without disrupting the inquiry.
7. D’s representatives had to have reasonable advance access to all relevant evidence and be able to attend all public hearings and put questions to witnesses in person. Funding arrangements had to permit effective participation and contain no inappropriate conditions, although the Secretary of State retained an initial discretion over the arrangements.
8. The court emphasised that the decision did not require the same form of inquiry in every case of attempted suicide in custody or non-suicidal self-harm. The declarations were to be read with the judgment as a whole.

The proceedings were commenced in the Administrative Court on 7 October 2004. Permission for judicial review was granted by Bennett J on 19 November 2004. Following the judgment, Mr Justice Munby granted permission to appeal to the Court of Appeal because of the general importance of the issues, particularly the relevance of an internal investigation and possible civil proceedings.