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

The investigative obligation under European Convention on Human Rights Article 2 may arise where a person in state custody survives self-harm with life-threatening injuries. Its application is fact-specific.

An effective investigation may require written evidence and submissions to be public and oral evidence to be heard publicly, subject to Convention-compatible restrictions. Article 2 does not, however, confer an automatic right to cross-examine witnesses. The inquiry chair must act fairly and decide who may question witnesses. The injured person’s representatives must ordinarily receive the evidence, attend oral hearings and make appropriate submissions. The investigation must also be able to compel witnesses if necessary, provide reasonable advance access to relevant evidence and fund representation sufficiently to protect the injured person’s legitimate interests.

D sustained permanent and irreversible brain damage after attempting suicide while held at HMP Pentonville. The prison authorities knew that he presented a real and immediate suicide risk. An internal investigation was conscientious but was neither independent nor public, and D’s representatives had not participated in it.

The Home Secretary accepted that the circumstances triggered the investigative obligation under Article 2 of the European Convention on Human Rights. Munby J, in [2005] EWHC 728 (Admin), declared that the proposed independent inquiry had to be public, capable of compelling witnesses, open to participation and questioning by D’s representatives, supported by advance disclosure, and adequately funded.

The Home Secretary appealed principally against the requirements that the inquiry be public and that D’s representatives be entitled to question witnesses in person.

1. Appeal allowed in part. The Court endorsed Munby J’s order except to the extent that it conferred a right on D’s representatives to cross-examine witnesses.
2. The Article 2 investigative obligation can arise where a person in custody survives with life-threatening injuries. It can also arise from self-harm. Its application here depended on the known suicide risk, the gravity and consequences of the attempt, and the possibility that the authorities could have done more. The obligation does not necessarily arise in every case of attempted suicide or self-harm in custody.
3. The inquiry had to be public in order to secure practical accountability. That did not mean that every investigative step had to occur publicly. The direction contemplated publication of the evidence and written submissions and the taking of oral evidence in public, subject to Convention-compatible reasons for privacy. The inquiry chair retained control over what oral evidence and submissions were required. The seriousness of the near-fatal incident and the public interest justified that degree of exposure, applying R (Amin) v Secretary of State for the Home Department [2003] UKHL 51.
4. Article 2 does not give an interested person an automatic right to cross-examine witnesses. Neither the Strasbourg jurisprudence nor the reasoning in Amin established such an invariable requirement. A fair inquisitorial procedure may leave questioning to the chair or counsel to the inquiry. D’s representatives must ordinarily receive the written evidence, attend while oral evidence is taken and make submissions about the lines of inquiry, the questions to be asked and who should ask them. The chair must decide the precise procedure fairly in the circumstances.
5. The inquiry had to be capable of compelling witnesses if this became necessary to its effectiveness. Conversion into a statutory inquiry under Sections 15 and 21 of the Inquiries Act 2005 provided a mechanism for securing attendance without undue delay.
6. D’s representatives also required reasonable advance access to all relevant evidence and adequate funding, without inappropriate conditions, sufficient to protect D’s legitimate interests.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 143 , allowed the Home Secretary’s appeal only as to the declared right of D’s representatives to cross-examine witnesses. It otherwise endorsed the order below.
2. High Court, Administrative Court: Munby J, in [2005] EWHC 728 (Admin) , granted declarations prescribing the procedural elements required for an effective investigation under Article 2 of the European Convention on Human Rights.