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

An attempted suicide causing lasting serious injury in custody requires an enhanced investigation under article 2 of the ECHR. The investigation must be initiated by the state and satisfy requirements of independence, effectiveness, family involvement, promptness and sufficient public scrutiny. It need not invariably be a full public inquiry. Whether a further D-type inquiry is required depends on the circumstances revealed by the initial investigation. Independence is assessed objectively: the question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Participation must be real, but its precise form is flexible and may be assessed in the light of any subsequent investigative stage.

The claimant suffered severe and continuing brain damage after attempting suicide in custody at HM YOI Feltham in August 2002. Earlier judicial review proceedings established that an article 2 investigation was required. The Secretary of State arranged a two-stage process, comprising an investigation by Professor McDougall followed by a proposed public inquiry.

The claimant challenged the arrangements on four grounds: lack of independence, failure to provide a proper opportunity to participate, breach of article 2 participation requirements, and delay. The central issues were whether the proposed investigator was sufficiently independent, whether the investigation met the procedural requirements of article 2, and whether any shortcomings could be considered in the light of the proposed second stage.

1. Outcome. The application for judicial review was dismissed. The court refused permission to appeal. Costs were ordered against the claimant, subject to the stated public funding and enforcement arrangements.
2. Enhanced investigation. A near-death in custody resulting in lasting serious injury requires an enhanced investigation under article 2. It must begin with an investigator independent of those implicated. An internal investigation cannot suffice merely because it concludes that there is no arguable case of fault. The enhanced investigation must be effective, initiated by the state, reasonably prompt, involve the injured person or family to the extent necessary to safeguard legitimate interests, and provide sufficient public scrutiny.
3. A full D-type public inquiry is not automatically required. The investigator should assess whether the circumstances, including conflicts of evidence, serious failures or the public interest, require that the process be expanded. The Secretary of State’s decision to arrange a second-stage public inquiry in advance did not itself invalidate the first-stage arrangements, although future schemes should reflect the role assigned to the initial investigator.
4. Independence. Apparent bias is assessed by asking whether a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. Professor McDougall’s former employment and later consultancy or advisory work for the Prison Service did not establish such a possibility. Her connections were too remote, and she had no hierarchical or institutional connection with HM YOI Feltham or any person implicated in the events. Any alleged unconscious bias was also unsupported by the report.
5. Participation. The claimant had a right under article 2 to participate through his representatives, and the commissioning letter created no materially wider entitlement. The means of participation were discretionary. Although the investigator could have taken more proactive steps, the claimant’s representatives had declined or delayed engagement, the report remained a draft, and comments could still be made. The proposed second stage was also relevant. Overall, the guarantees were sufficient.
6. Delay. The delay was plainly undesirable, but the effect of missing records and unavailable witnesses could not be assessed until both stages were complete. At that stage there was no sufficient basis for damages or other relief for delay.

The judgment records earlier proceedings in the same litigation, but they are excluded from the cited-case analysis as decisions in the same procedural chain.

• High Court: [2006] EWHC Admin 2558.
• Court of Appeal: [2008] 1 WLR 158.
• House of Lords: [2009] 1 AC 588.
• High Court (Administrative Court): The present application for judicial review was dismissed.