P, R (on the application of) v Secretary of State for Justice (Rev 1)

The investigative duty under article 2 of the European Convention on Human Rights requires a real and immediate risk to life. Serious self-harm which creates a future risk of life-threatening injury or disease does not suffice where the risk is not immediate.

An arguable breach of article 3 requires fault by the state. Even where such a breach is arguable, article 3 does not invariably require an independent inquiry. The need for an inquiry depends on the circumstances, including whether the facts are already known and whether civil proceedings, criminal proceedings or an ombudsman investigation provide effective scrutiny. Wider questions about institutional policy or preventing recurrence are matters for public and political debate unless tied to a particular alleged breach.

P repeatedly and seriously harmed himself while detained at Feltham Young Offenders’ Institution. Medical opinion initially indicated that psychiatric hospital treatment would not benefit him. A later reassessment supported treatment, after which a hospital order was made and P was transferred.

P sought judicial review of the Secretary of State’s refusal to hold an inquiry into his detention and treatment. Mitting J refused permission, holding that neither article 2 nor article 3 of the European Convention on Human Rights arguably required an inquiry: [2008] EWHC 1656 (Admin).

The Court of Appeal granted permission and determined the substantive claim. The central issues were whether the risk created by P’s self-harm engaged the article 2 investigative duty and whether article 3 required an inquiry into the state’s response and the delay in transferring him to hospital.

1. Permission to apply for judicial review was granted, but the substantive claim was dismissed. Stanley Burnton LJ gave the judgment of the court. Jacob and Ward LJJ agreed.

2. Article 2 was not engaged. Its investigative duty arises where death or life-threatening injury has occurred and requires a real and immediate risk to life. The medical evidence showed that continued self-harm could eventually cause life-threatening injury or disease. The risk was real but not immediate, and P had neither attempted suicide nor suffered a near-suicide comparable to the circumstances considered in R (L) v Secretary of State for Justice [2008] UKHL 68.

3. The statement in JL [2006] EWCA Civ 767 that death or serious injury in custody gives rise to an enhanced investigative obligation had to be confined to serious injury involving a real and immediate risk to life. Any wider formulation was obiter and did not represent the law.

4. There was no arguable breach of article 3. Such a breach requires fault by the state, whether deliberate misconduct, neglect, failure to act or failure to make proper provision. The Secretary of State had acted consistently with the opinion of an appropriately qualified psychiatrist that hospital treatment would not benefit P. Once that opinion changed, steps were taken to arrange a transfer. The remaining delay was attributable to the responsible health authority and the statutory requirements governing a hospital order.

5. Article 3 does not require an independent inquiry whenever an arguable breach is alleged. The procedural obligation is linked to the particular substantive breach. Its requirements depend on the circumstances, including whether the victim can give evidence, whether the relevant facts are known and whether criminal proceedings, civil proceedings, disciplinary procedures or an ombudsman investigation provide adequate scrutiny. Good reason must be shown before the state is required to undertake a resource-intensive human-rights inquiry.

6. All material facts were already known, including why P remained at Feltham and why his transfer occurred only after the psychiatric reassessment. An inquiry was therefore unnecessary. Wider questions about the former omission of psychopathic disorder from section 48 of the Mental Health Act 1983, or the adequacy of institutional provision, were matters for public and political debate rather than the procedural limb of article 3.

1. Court of Appeal (Civil Division): Permission to apply for judicial review was granted, but judicial review was refused and the claim dismissed: [2009] EWCA Civ 701.
2. High Court, Administrative Court: Mitting J refused permission to apply for judicial review of the Secretary of State’s refusal to hold an inquiry: [2008] EWHC 1656 (Admin).