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

The Article 2 investigative duty is not governed by one threshold applicable to every case. Whether it arises depends on the particular circumstances and whether the State potentially bears responsibility for the loss of life or life-threatening injury. In prison cases, the fact of an unexpected death or life-threatening injury will usually satisfy the threshold because the State exercises direct control and assumes responsibility for prisoners’ safety. The duty extends to serious life-threatening injury and to self-harm. It may be absent where the circumstances make it plain that the State cannot bear responsibility. The investigation must be Article 2 compliant, but its precise form depends on the case.

The claimant suffered permanent brain injury after attempting suicide while detained at Feltham Young Offenders’ Institution. The Prison Service had conducted an internal investigation, but the claimant contended that it did not satisfy the minimum requirements of an investigation under Article 2 of the European Convention on Human Rights.

The Secretary of State accepted that an Article 2 investigation, if required, had to meet those minimum standards. The central issue was whether the circumstances crossed the threshold requiring such an investigation, and whether the existing inquiry discharged that obligation.

1. Article 2 duty. The procedural duty to investigate is not confined to deaths directly caused by State agents. It can arise where the State’s system permits or fails to prevent death, and it extends to life-threatening injury because the difference between death and serious injury may be accidental. The duty also applies to self-harm in custody.
2. No universal threshold. A single threshold cannot be applied across all Article 2 situations. The Osman test, requiring knowledge or constructive knowledge of a real and immediate risk to an identified person, is appropriate to certain positive-obligation cases involving persons at liberty, but cannot be extrapolated to all custodial cases. The proposed test was too high, while an automatic rule covering every custodial incident was too absolute.
3. Applicable approach. The relevant question is whether, in the particular circumstances, the State potentially bears responsibility for the loss of life or life-threatening injury. An investigation satisfying Article 2 is required unless it is plain that the State can bear no responsibility. In prison cases, unexpected death or life-threatening injury will usually cross the threshold, although not invariably, such as where publicly known facts show that the State cannot be responsible.
4. Application. The claimant’s contradictory and unpredictable behaviour, the omissions from the prison records, the failure potentially to heed chaplaincy concerns, the treatment of his denials of suicidal ideation, and uncertainty about continuity of personnel created an arguable potential responsibility. It was not possible at this stage to determine whether the State was ultimately liable or could have prevented the injury.
5. Order. The existing inquiry was not argued to be Article 2 compliant and had not satisfied the investigative obligation. The court declared that an Article 2-compliant investigation into the claimant’s suicide attempt at Feltham was required.