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

Where a person dies or suffers life-threatening injury in state custody, Article 2 requires the State to commence an effective investigation by an investigator independent of those implicated. The duty arises from the custodial death or near-death itself. The victim or family need not first establish an arguable breach of the substantive obligation to protect life.

The investigation’s scope depends on the circumstances. A full D-type inquiry is required where the facts show that the State or its agents potentially bear responsibility and it is not plain that they cannot. The appeal was dismissed.

JL attempted suicide while detained at Feltham Young Offenders Institution and suffered permanent brain damage. The Secretary of State accepted that an internal investigation had not satisfied the requirements of a D-type investigation.

Langstaff J held that the obligation arose where the State or its agents potentially bore responsibility, unless it was plain that they could bear none: [2006] EWHC 2558 (Admin). The Secretary of State appealed, arguing that an arguable breach of Article 2’s substantive protective duty was required. The central issue was the trigger and scope of the enhanced investigative obligation following death or life-threatening injury in custody.

1. Appeal dismissed. The Court of Appeal unanimously held that the near-suicide and life-threatening injury in custody triggered an Article 2 obligation to commence an enhanced investigation.
2. The obligation is not conditional upon the victim or family first establishing an arguable or prima facie breach of the substantive duty to protect life. Custody makes the State accountable for explaining how the death or near-death occurred. The State must therefore initiate an investigation by a person independent of those implicated. The investigation must be effective, but the degree of publicity and family participation depends on the circumstances.
3. The scope of the investigation may develop in stages. An independent initial investigation may in some circumstances be sufficient. In a death case, an inquest may need to contain the features identified in Amin. In a serious-injury case, the need for a further public inquiry depends on the facts discovered. A full D-type inquiry is required where the State or its agents potentially bear responsibility and it is not plain that they can bear none. The Strasbourg authorities require flexibility in the form of investigation, but do not support withholding every independent investigation until an arguable case has been shown.
4. The earlier decision in R (D) had identified the ingredients of a D-type investigation in an attempted-suicide case, although the trigger had not been fully argued there. The Court applied that approach to JL. He had previously been placed on the self-harm risk form, was removed from it without consultation with chaplains who regarded him as high risk, and had displayed troubling conduct shortly before the attempt. Those matters required a further inquiry capable of bringing the facts to light and examining possible systemic or culpable failures. The investigation by a retired prison governor lacked the necessary independence.
5. Lord Justice Maurice Kay rejected the proposed analogy with Article 3. The arguable-breach threshold applicable to the procedural duty concerning torture or ill-treatment should not be imported into Article 2 near-death custody cases. Lord Justice Wilson agreed with both judgments.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and upheld the conclusion that a further D-type investigation was required.
• Administrative Court, Queen’s Bench Division: Langstaff J held that the investigative obligation arose where the State or its agents potentially bore responsibility unless it was plain that they could bear none: [2006] EWHC 2558 (Admin).