SP v Secretary of State for Justice

An Article 2 investigation must be independent, effective, reasonably prompt, sufficiently open to public scrutiny and involve the injured person to the appropriate extent. Independence is assessed objectively and depends on the investigator’s institutional and practical connection with those implicated and on the issues the investigation must determine. Previous employment in the Prison Service does not automatically disqualify an investigator. It may do so where the investigator has relevant past connections, a material social connection with a witness, or responsibility for applying or shaping the policies under scrutiny. A private evidence-gathering stage may comply with Article 2, with publication and a public stage where appropriate.

SP, who had been detained in young offender institutions and repeatedly seriously self-harmed, sought judicial review of the Secretary of State’s arrangements for an Article 2 investigation into her treatment in custody. An initial investigation by the Prison and Probation Ombudsman ended when the investigator withdrew after disagreement about procedure, scope and document handling. A second investigator, a former senior Prison Service employee, was appointed on terms set by the Secretary of State.

SP challenged the second investigation on grounds including lack of independence, insufficient public scrutiny, breach of legitimate expectation, delay and inadequate funding for legal representation. The central issues were whether the proposed investigator was objectively independent and whether the investigation’s structure, timing and funding were Article 2 compliant.

1. Outcome. Permission to apply for judicial review was granted on grounds 1, 3, 4 and 5 and refused on ground 2. The claim was dismissed on grounds 3, 4 and 5. The court found for SP on ground 1 and held that an investigation conducted by Mr Payling would not satisfy Article 2’s requirement of independence. The question of relief was reserved.
2. Independence. Article 2 does not impose an absolute rule that an investigator must never have worked for the institution under investigation. The relevant question is objective and fact-sensitive. The court must examine current and past hierarchical or institutional connections, practical freedom from influence, and the issues which the investigation must address.
3. Mr Payling’s independence was compromised. He had a social connection with an important potential witness whose management skill he would assess. More significantly, he had applied Prison Service policies and had participated in consultation about safer-custody and self-harm policies. His terms of reference required him independently to analyse those same policy areas. His experience therefore created a practical lack of independence.
4. Form and publicity. The Article 2 framework is flexible. An initial evidence-gathering investigation may take place in private, with publication of a report and a public hearing if the circumstances require it. The guaranteed public second stage meant that the public-element ground disclosed no present challenge.
5. Legitimate expectation and delay. The earlier promise that the Prison and Probation Ombudsman would set detailed terms after consultation did not extend to the unforeseen re-commissioning of a different investigator. The delay claim failed because the initial information-gathering period was justified, later delay was substantially attributable to attempts to widen the inquiry, and the investigator’s withdrawal was not reasonably foreseeable.
6. Funding. The exceptional-funding model used for complex inquests was sufficient in principle to secure SP’s necessary participation. The breadth of the inquiry might require funding to reflect work beyond a single-issue investigation, including counsel’s work during the first stage if appropriate.