R (on the application of JL) v Secretary of State for Justice

The House of Lords held that where a prisoner in custody makes a genuine attempt to commit suicide which nearly succeeds and leaves the prisoner with the prospect of serious long-term injury, Article 2 of the European Convention on Human Rights automatically triggers an enhanced investigatory obligation by the State. The obligation cannot be discharged by an internal-only investigation carried out by the prison authorities: an independent investigation is required at the outset. That initial independent inquiry must be prompt, effective and involve the prisoner (where possible) and/or the next of kin; in some cases a further and more public D-type investigation (with the features identified in R (D) v Secretary of State for the Home Department) will be required if the initial independent inquiry does not show that the State or its agents bear no responsibility.

Article 2’s investigatory duty is not confined to securing individual accountability but also extends to exposing systemic failings and learning lessons for future prevention. The Court applied Strasbourg and domestic authority (including McCann, Jordan, Edwards, Menson, Amin and Middleton) and found the Prison Service investigation in this case (Mr Sheikh’s report) lacked the necessary independence and family involvement and was therefore insufficient; the appeal was dismissed.

Background and facts:

• JL, born 5 October 1981, was remanded to Feltham Young Offender Institution in 2002. On 19 August 2002 he was found hanging in his cell; resuscitation succeeded but he suffered severe and permanent brain damage and is now incapable of conducting his own affairs.
• The London Area Manager instructed a Prison Service Senior Investigating Officer (Mr Sheikh) to investigate. That internal report was not disclosed to JL’s representative until 2005 and did not involve JL’s relatives or representatives.

Procedural posture and relief sought:

• JL judicially reviewed the adequacy of the investigation and sought a mandatory order requiring the Secretary of State to carry out an Article 2-compliant independent investigation (reserving the right to pursue substantive Article 2 breach claims after that investigation).
• Langstaff J granted a declaration that Article 2 required an investigation; the Court of Appeal ([2007] EWCA Civ 767) dismissed the Secretary of State’s appeal; the Secretary of State appealed to the House of Lords.

Issues framed by the court:

• Whether an initial investigation into a near-suicide in custody must be independent or may be internal to the prison authorities.
• Whether a further investigation (and, if so, of what form) is required only when the initial investigation shows an arguable case of State fault, or whenever the initial investigation does not plainly show the State bears no responsibility.
• Whether, when a further investigation is required, it must always be a D-type public inquiry with the attributes identified in R (D).

Court’s reasoning and conclusions:

• Relying on Strasbourg and domestic jurisprudence, the House emphasised the positive nature of Article 2 obligations: they include both substantive duties to protect life (systemic and operational) and a procedural duty to investigate effectively where life has been put at risk.
• The purpose of an Article 2 investigation extends beyond securing individual accountability: it is also to establish the facts, expose systemic failings, allay suspicion, and learn lessons to prevent future loss of life.
• The Lords concluded that a near-suicide that leaves a prisoner with the prospect of serious long-term injury automatically triggers an enhanced investigatory obligation which cannot be discharged by an internal-only inquiry; an independent investigation is required at the outset.
• Depending on what the independent investigator finds, a further, more public or D-type investigation may be necessary if the initial inquiry does not demonstrate that the State or its agents bear no responsibility or if public interest, serious conflicts of evidence, witness non-cooperation or other factors so require.
• The factual findings in Mr Sheikh’s internal report gave rise to issues warranting a D-type investigation; the Secretary of State had, in any event, already commenced such an independent inquiry. For these reasons the appeal was dismissed.

Appeal dismissed. The House held that where a prisoner’s suicide attempt nearly succeeds and results in serious long-term injury, Article 2 automatically triggers an enhanced investigation which cannot be conducted solely by internal prison authorities; an independent, prompt and effective inquiry is required and, where the initial independent inquiry does not show that the State or its agents bear no responsibility (or where public interest or procedural obstacles demand), a further D-type inquiry may be necessary. The internal investigation in this case lacked requisite independence and disclosure, so the Secretary of State was right to commission a D-type investigation.

First instance: Judicial review heard by Langstaff J, [2006] EWHC 2558 (Admin) (declaration that Article 2 required an investigation). Court of Appeal dismissed the Secretary of State's appeal: [2007] EWCA Civ 767. Appeal to House of Lords decided [2008] UKHL 68 (appeal dismissed).