R(Amin) v Secretary of State for the Home Department
House of Lords (Lords Bingham, Slynn, Steyn, Hope and Hutton) 16 October 2003
Duty to investigate death in custody under Article 2 requires appropriate publicity and involvement of next of kin
The facts of this case are set out in the report of the Court of Appeal decision below. This was an appeal by the claimant, Imtiaz Amin, from that decision which had allowed an appeal by the Secretary of State for the Home Department from Mr Justice Hooper who had granted a declaration in the claimant’s favour that, in order to satisfy Article 2 of the Convention, there had to be an independent public investigation into the death of his nephew, Zahid Mubarek, with the family legally represented.
Appeal upheld. Mr Justice Hooper’s declaration restored and the Court of Appeal’s judgment set aside.
The scope of Article 2 went beyond the primary purposes expressly defined so that a state’s obligation might include a procedural aspect which included the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by state agents might receive public and independent scrutiny.
Although most of the recent European cases concerned killings deliberately, or allegedly so, carried out by state agents, these cases laid down requirements for accountability, investigation and involvement of the victim’s family which applied to all cases of suspicious deaths in state custody. The Strasbourg Court had not required that any particular procedure be adopted nor was it necessary that there be a single unified procedure. But it was indispensable that there be proper procedures for ensuring the acountability of state agents. Edwards v United Kingdom (2002) 35 EHRR 487 was of central importance because it was not a case of deliberate state killing but one of negligence; nevertheless the Stasbourg Court had applied essentially the same principles as in the cases already considered. Edwards and Jordan v United Kingdom (2001) 37 EHRR 52 laid down minimum standards which had to be met, irrespective of the form that the investigation took.
COMMENT (October 2003)
The salient issues in this case and the implications of Edwards v United Kingdom for coronial powers in domestic law are discussed in the comment on Khan v Home Office.
Rosalind English, 1 Crown Office Row
R v Secretary of State for the Home Department ex parte Amin; R v Secretary of State for the Home Department ex parte Middleton (Lord Woolf LCJ, Laws LJ, Dyson LJ) March 27 2002  3 WLR 505
A coroner could permit a jury at an inquest to make a finding of neglect therefore the Secretary of State had not breached Article 2 in not instituting a public inquiry.
This was an appeal by the Secretary of State in two cases from the QBD judgment (summarised below). The Secretary of State submitted in Amin's case, that: (i) judicial review should not have been considered until the family's claims against the coroner and the Commission for Racial Equality had been considered; (ii) the proposition that an investigation would not satisfy Article 2 unless two independent and cumulative requirements were fulfilled, those being: (a) sufficient public scrutiny; and (b) the appropriate
involvement of the next of kin, was incorrect; and (iii) the procedural obligation had been discharged. The Coroner in Amin's case made submissions in Middleton's case as an interested party. He submitted inter alia that coroners were not residually responsible for the Secretary of State's obligations under Article 2.
The secretary of state represented the state, in a sense and to an extent not mirrored by the coroner and was therefore the proper respondent. The Secretary of State's submissions in Amin's case were upheld and the appeal allowed accordingly. See R v Home Secretary ex parte Middleton for the outcome of the appeal in Middleton.
QBD Administrative Court (Hooper J) October 10 2001
The applicant's nephew Mubarek was killed by his cellmate in Feltham Young Offender Institute in 2000. The cellmate was a known racist with a history of serious disruptive behaviour. A number of incidents should have alerted the prison authorities to the dangers to which the deceased was exposed.
The cellmate had been convicted of the murder but at no point during the trial was there an investigation in to why he and Mubarek had been placed in the same cell. The CPS had concluded that there was insufficient evidence to provide a realistic prospect of convicting the prison service or any of its employees of any criminal offence, in particular involuntary manslaughter by gross negligence and misconduct in a public office. An internal report into the death was made by a prison governor which had found that systemic failures had resulted in the two sharing a cell. The secretary of state, in refusing the application for a public inquiry, stated that the "circumstances of the death were thoroughly examined during the trial".
The applications concerned the failure to hold an open and public investigation into why Mubarek was sharing a cell with a known violent racist on the night of the murder. The proceedings against the CRE and the Coroner were adjourned and the claim against the secretary of state, requiring an independent public inquiry, proceeded.
Application allowed in the case against the secretary of state. Other applications adjourned.
Where there was a death in custody the purpose of an investigation impliedly required by Article 2(following Osman v UK (1998) 29 EHRR 245) was to discover whether there had been a breach of the explicit duty in that Article even though the death might not have involved the criminal responsibility of any State officials. It was clear that one of the principal purposes of requiring an investigation was to ensure future compliance with Articles 2 and 3: Assenov v Bulgaria (1998) 28 ECHR 652 and <#link:../127/text.nc#:#prompt:R v Secretary of State for the Home Department ex parte Wright#>(2001) EWHC Admin 520 followed. The type of investigations required to meet the obligations under these Articles would vary according to the circumstances. In Wright the following necessary features of an investigation into a complaint within Article 2 were identified: (i) the investigation must be independent; (ii) the investigation must be effective; (iii) the investigation must be reasonably prompt; (iv) there must be a sufficient element of public scrutiny; and (v) the next of kin must be involved to an appropriate extent. On the facts of this case the obligation to hold an effective and thorough investigation could only be met by holding a public and independent investigation with the family legally represented and provided with the relevant material in order to be able to cross-examine the principal witnesses. Order accordingly.
COMMENT (October 27 2001)
The media-driven dependence on public inquiries is now being endorsed in the courts, despite the fact that the utility these enterprises is debatable - little or nothing has been learned from inquiries into various scandals and disasters - the Marchioness, Stephen Lawrence, Alderhay, Paddington Rail - and now the Victoria Climbie inquiry - to name but a few; nothing achieved apart from an enhanced sense of injustice from the respondents, and an enhanced feeling of continued lack of redress from the victims of whatever systemic failings that led to those inquires being instituted in the first place. Time was that these inquiries were a response to the waning of confidence in parliamentary (i.e. democratic) procdures - hence the efflorescence of Royal Commissions in the sixties and seventies. But the whole thing has arguably outlived its usefulness.
Of course the right to life under Article 2 of the Convention would be nugatory if it did not impose a requirement, albeit impliedly, on Signatory States to put in place proper procedures whereby unnecessary or suspicious deaths of individuals can be investigated. But it is extending the implicit procedural requirements under Article 2 to their utmost to allow the right to life to become a platform for public inquiries. The wording of the declaration granted to the claimant is as follows:
"On the facts known to the Secretary of State… an independent public investigation with the family legally represented, provided with the relevant material and able to cross examine the principal witnesses, must be held to satisfy the obligations imposed by Article 2 of the European Convention of Human Rights."
It is questionable whether the Strasbourg Authorities would have gone so far. See for instance the Commission decision in Taylor & Ors v UK CD Application No. 23412/94. In this case, parents of children murdered or injured by the nurse Beverley Allitt in the children's ward at Grantham Hospital in 1991 complained that they had been victims of a violation of Article 2. They submitted that as part of their rights under Article 2, they were entitled to demand an independent public inquiry (something which they had been denied by the Department of Health). The Commission agreed that Article 2 imported a procedural requirement that appropriate mechanisms be furnished to enable the state to determine whatever lessons need to be learnt to prevent the repetition of unlawful killings (McCann v United Kingdom). But the Commission rejected the applicants' submission that the responsibility for these events went beyond the individual criminal responsibility of Allitt and that the case raised questions of responsibility for the appointment of an individual like Allitt, the procedural inadequacies for dealing with untoward incidents and emergencies, like other systemic shortcomings in the NHS. The parallels with the present case are compelling; surely if this case went to Strasbourg on this particular point under Article 2, would the Court not reject it on exactly the same grounds; that systemic failings, be they of the NHS or prison service, were matters of political debate and as such fall outside the scope of Article 2?