Jordan v. United Kingdom (2001, 2003)

Although there were considerable discrepancies in this case between witness and police statements, it was undisputed that following a car pursuit the unarmed driver, Pearse Jordan, was shot and killed by a member of the Royal Ulster Constabulary. The applicant, the father of the deceased, submitted that his son had been unjustifiably killed and that there had been no effective investigation into the circumstances of his death. It was found that there had been a violation of Article 2 in respect of failings in the investigative procedures into the death. The applicant was awarded £10 000 in respect of non-pecuniary damage and £30 000 in costs.

Building on previous European jurisprudence, this case produced the minimum requirements – the ‘Jordan criteria’ (Box 1) – for the content of the investigative obligation on states in cases in which death has occurred in a way that engages Article 2. The Convention does not adopt a prescriptive approach to the form of the investigation. So long as minimum standards are met, it is for the state to decide the most effective method of investigating.

Edwards v. United Kingdom (2002)

In this case a remand prisoner was killed by another prisoner sharing his prison cell. It was held that there was a violation of Article 2 as regards the circumstances of the death and failure to provide an effective investigation. This case was particularly important because it was the first time that the European Court of Human Rights applied to a case of negligent failure to protect the life of a prisoner the same principles that it had developed in the context of killing by state agents.

At the time of his arrest, for approaching young women in the street and making inappropriate suggestions, it was suspected that Christopher Edwards was showing signs of mental disorder. At the police station he attempted to assault a female police officer. Despite significant concerns regarding his mental state, he was remanded in custody in Her Majesty's Prison and Young Offender Institute Chelmsford. He was initially placed in a cell on his own but because of a shortage of space another remand prisoner, Richard Linford, was moved into the cell with him. Linford had been arrested for assault and had a psychiatric history, having been diagnosed at various times with schizophrenia or a personality disorder, both compounded by alcohol and illicit drug use. Linford had spent 2 days in police cells, where he had demonstrated bizarre and at times violent behaviour (predominantly attributed to alcohol and amphetamine use), but was eventually assessed as being fit to be detained (the initial police surgeon certified that he was not fit to be detained but a psychiatric registrar and another police surgeon considered him fit). He was subsequently remanded in prison, where he was eventually to share a cell with Edwards.

Only a few hours after being moved into the cell Linford killed Edwards. Linford was found in the cell holding a bloodstained plastic fork, having stamped and kicked Edwards to death. At the time of the attack Linford was diagnosed as having paranoid schizophrenia. He subsequently pleaded guilty to manslaughter by reason of diminished responsibility and was detained under section 37/41 of the Mental Health Act 1983.

The judgment held that to satisfy the requirements of Article 2 any investigation had to satisfy modified Jordan criteria (Box 2). The Court concluded that the lack of power to compel witnesses detracted from its capacity to establish the facts relevant to death (under criterion (b) the lack of compulsion of witnesses who were either eyewitnesses or had material evidence relating to the circumstances of a death had to be regarded as diminishing the effectiveness of the inquiry as an investigative mechanism). It further concluded that the private character of the proceedings, from which the applicants were excluded save when they were giving evidence, failed to comply with the requirements of Article 2 to hold an effective investigation into the death of Edwards (under criterion (d) the parents, who were not represented at the inquiry and hence could not put any questions to witnesses, could not be regarded as having been involved in the procedure to the extent necessary to safeguard their interests). Therefore, there had been a violation of the procedural obligation of Article 2 in those respects.

R (on the application of Amin) v. Secretary of State for the Home Department and HM Coroner of West London [2002, 2003, 2004]

This was another case of a prisoner being killed by another prisoner. Zahid Mubarek was killed by Robert Stewart in the cell they shared in Her Majesty's Young Offender Institution and Remand Centre Feltham. Stewart was later to be diagnosed as having ‘a long-standing deep-seated personality disorder’ and ‘an untreatable mental condition’. Stewart battered Mubarek into a coma with a wooden table leg. Mubarek was due to be released that day. He never recovered, dying in hospital of brain damage a week later. At court the issue was whether the UK had complied with its duty under Article 2 to investigate the circumstances in which this crime came to be committed. The House of Lords overturned a Court of Appeal decision and held that there was a breach of Article 2.

The House of Lords held that the ‘procedural duty’ to investigate cases in which there had been an arguable breach of Article 2 had not been met in this instance and that a public inquiry should therefore be held. Also, although there had been a range of investigations into the homicide, these did not meet the ‘minimum requirements’ set down by the European Court of Human Rights in Jordan v. United Kingdom (2001) and Edwards v. United Kingdom (2002). Furthermore, it held that systemic failures leading to deaths called for even greater scrutiny and more rigorous investigation.

The House of Lords noted that the European Court applied essentially the same principles to cases concerning negligent failure to prevent deaths as were applied when deaths were caused by state agents, and held that deaths following negligence might in fact require more rigorous investigation than deaths at the hands of state agents. It also noted that there must be flexibility in selecting the means of conducting the investigation and that a number of different inquiries might together meet the overall test and held that the European Court had, in Jordan and other cases, laid down minimum standards that must be met (Box 3).

R (on the application of D by his litigation friend the Official Solicitor) v. Secretary of State for the Home Department and Inquest (intervener) [2006]

In this case, D, a remand prisoner known to be at risk of suicide, had attempted to take his own life and as a result suffered permanent brain damage. He attempted self-harm at court and was taken to hospital and then to prison. He was accompanied by a form indicating that he was at risk of self-harm/suicide. He self-harmed on three separate occasions within the first week in prison and was placed on 15-minute observations. He received upsetting family news and during a subsequent telephone call he became distressed. An entry was made on his self-harm/suicide form and in the health area observation book that staff should be extra vigilant. Later he hanged himself using bed linen. He was discovered and revived in time to save his life but too late to save him from permanent and irreversible brain damage. He was subsequently detained under section 3 of the Mental Health Act 1983 and diagnosed as having an organic personality disorder arising from a traumatic brain injury.

The Home Secretary agreed that, in the particular circumstances of this case (although not necessarily in all cases of ‘near miss’ suicides), the procedural obligation under Article 2 to investigate untoward deaths was triggered and commissioned an independent investigation by the Prisons and Probation Ombudsman. Those representing D challenged the proposed terms of reference of that inquiry in the High Court, which held that to meet the requirements of Article 2, the inquiry must meet the following procedural requirements:

1. • the inquiry must be held in public, except where there were Convention-compatible reasons for any part of a hearing to be in private

2. • the inquiry must be capable of exercising the power to compel the attendance of witnesses, should this be necessary

3. • D's representative should be able to attend public hearings and put questions to witnesses in person

4. • D's representative must be given reasonable access to all relevant evidence in advance

5. • adequate funding for D's representative must be made available without inappropriate conditions attached.

Each of these requirements was challenged by the Home Secretary at the Court of Appeal, who argued that the proposed terms of reference for the Ombudsman's investigation were sufficient to meet Article 2 requirements.

The Court of Appeal broadly upheld the earlier High Court order. On the question of a ‘public’ inquiry, the Court noted that there were ‘competing considerations’ as to the benefits of public and private inquiries, one argument put forward on behalf of the Home Secretary being that in a private investigation witnesses are more likely to be candid and evidence is likely to be obtained more speedily and at less cost. The Jordan criteria set down by the European Court included that there should be a ‘sufficient element of public scrutiny’, not that the inquiry itself must be in public. The Court did, however, emphasise that in ordering a public inquiry, this did not mean that the whole process must be in public. What was meant by a public inquiry was that whoever conducted the inquiry:

The Court also held that Article 2 did not require that D's representatives should be permitted personally to cross-examine witnesses.

Keenan v. United Kingdom (2001)

This important case involved the suicide of a prisoner with a mental illness. It was found that there had not been a violation of Article 2. Although the standard of treatment of the prisoner prior to his suicide was found to breach Article 3, as has been discussed in the pages of this journal (Reference CurticeCurtice 2008), the Court found that ‘on the whole the authorities responded in a reasonable way’ to the applicant's conduct when placing him in prison hospital care and under watch when he ‘evinced suicidal tendencies’.

In this judgment the European Court of Human Rights set out the principle that:

This demonstrates the interplay between Articles 2 and 8 (the right to a private life) and in particular the key Human Rights Act principle of proportionality, which requires that measures that interfere with the right to respect for private life, personal autonomy and physical integrity must be confined to those necessary to achieve the legitimate aim of protecting a detainee from self-harm and must be appropriate to the particular circumstances of the individual case. It follows that blanket measures for large groups of detainees that may apply to intrusive surveillance or require the removal of items of clothing, may amount to disproportionate interferences with the right to respect for private life under Article 8 if they cannot be justified as necessary and proportionate measures to protect an individual detainee from a risk of suicide or self-harm.

R (on the application of Wright) v. Secretary of State for the Home Department [2001]

This case concerned a prisoner who had a severe asthmatic attack in his cell and subsequently died (a cell-mate being present at the time). He had a well-established history of severe asthma since childhood. The expert evidence had concluded that the medical treatment provided had been seriously deficient such as to breach the Article 2 duty to protect life.

At the inquest the family of the deceased were present but were unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment that the deceased had received in prison. Later it emerged that the responsible medical officer had been suspended from duty and had previously been found guilty of serious professional misconduct (and should have undergone further training and at that time was prohibited from any form of single practice). In a civil action against the Home Secretary, liability was admitted, thus precluding forensic investigation of the case. The family sought judicial review on the grounds of a failure to protect the life of the deceased and a failure of the procedural obligation arising under Article 2 to investigate the circumstances of the death.

The judgment applied the Jordan criteria. It was found that the inquest had not constituted an effective official investigation: the cell-mate had not been called as a witness; there had been no independent expert witness; there had been no investigation into the medical officer; and the family (the claimants) had not been represented or given a proper explanation of the issues. For these reasons the judgment concluded on the facts that there had been a violation of Article 2 (and of Article 3: freedom from torture, inhuman and degrading treatment). The judge held that there should be an independent investigation, to be held in public, at which the family should be represented.

Tarariyev v. Russia (2006)

This case was brought by the mother of a prisoner who died in a prison hospital after complications of surgery. During his initial stay in a ‘correctional colony’ he was diagnosed with an acute stomach ulcer, for which he received treatment. He was subsequently transferred to a remand centre during his appeal against his conviction, and when he returned to the colony (his sentence having been upheld) he was assessed as ‘healthy’. Despite his known history of a stomach ulcer and the absence of his medical records (which were either mislaid, incomplete or lost) he was not examined by a gastroenterologist. He developed a perforated ulcer 3 weeks later and was transferred to a civilian hospital for emergency surgery. After 2 days he was discharged back to the prison hospital on a mattress in a prison van, even though he had been diagnosed with peritonitis. The prison hospital undertook further surgery 2 days later but with inadequate medical information from the civilian hospital and no facilities for blood transfusion. The prisoner subsequently died.

The European Court of Human Rights held that the state's treatment breached both Article 2 and Article 3. It reiterated that Article 2 imposed a positive obligation on states to take appropriate steps to safeguard life, with a particular duty to protect those in custody. This positive obligation was summarised as requiring:

In earlier cases relating to alleged clinical negligence outside the prison service, the Court has repeatedly held that the individual negligence of a health professional or negligent coordination between health professionals is not sufficient to constitute a breach of Article 2 if the state has taken steps to set adequate professional standards and to ensure that breaches of these are appropriately investigated ( Byrzykowski v. Poland 2006). Although the Court did not make reference to this principle, it held that the treatment overall was sufficiently poor to constitute a breach of the state's duty to safeguard the prisoner's life.

The existence of a causal link between the defective medical assistance administered to the prisoner and his death had been confirmed by the domestic medical experts and was not disputed by the respondent government. Accordingly, it was held that there had been a violation of Article 2 on account of the failure of the authorities to protect the prisoner's right to life. The Court found an additional breach of the ‘procedural obligation’ inherent in Article 2, in that the criminal investigation into the death was delayed and was inadequate, and his mother's right to participate effectively was not secured. The Court also found breaches of Article 3. The mother was awarded €25 000 for the suffering and distress caused by the death of her son.

Deaths in custody

Deaths in custody are a long-standing problem that many jurisdictions, including the UK, have looked at in depth. The UK itself has a long tradition of investigation and review of suicide and homicide rates in prison, which are regularly reviewed at a governmental level (House of Lords 2004). The main causes of death in custody are homicide, suicide and misadventure (usually drug related) (Home Office 2004). There are smaller and less contentious numbers of deaths relating to physical illness and this raises issues about the quality and the promptness of the healthcare that has been received, as do the deaths by suicide.

The right to life

The fundamental nature of the right to life is such that Courts have not only insisted that the right be upheld, but have prescribed a detailed process of investigation that must be undertaken in the event of deaths to ensure that states are taking their responsibilities seriously (Box 1). Case law has made some distinction between situations in which agents of the state have caused the death of a citizen and situations in which the state has allowed the death of a citizen in custody, usually related to suicide, misadventure or homicide. However, in both cases the Court has placed a clear expectation that the state will interfere to preserve life. The cases above ably demonstrate that doctors and other healthcare practitioners have a clear duty to preserve life that runs alongside their long-standing ethical responsibilities.

An expert task force on deaths in custody

With regard to the Article 2 duty to investigate deaths in custody, the Joint Committee on Human Rights (House of Lords 2004) made several pertinent recommendations to the Home Office and the Department of Health following its review of the causes of death in custody. Its main recommendation was that these responsible departments should establish a cross-departmental expert task force on deaths in custody in the UK. The Committee emphasised that this should be ‘an active, interventionist body, not a talking-shop’. The task force should also have at its disposal human rights expertise and have its membership drawn from people with practical working experience of the problems associated with deaths in custody. It broadly outlined the functions and powers of such a body and in particular the development of good practice guidelines (including training) to establish consistency in such investigations. Importantly, the Committee recommended that research be commissioned and that any resulting recommendations to ensure observance of the European Convention on Human Rights be government funded.

The responsibilities of clinicians

In recent years there has been expansion in the number of people detained in prisons (Ministry of Justice 2009a) and secure psychiatric hospitals (Ministry of Justice 2009b) in England and Wales, and in UK immigration centres (Home Office 2008). In all of these environments clinicians are increasingly being asked to comment on inmates' risks to themselves and to others. Clinicians working in secure institutions therefore have a duty not only to their individual patients but also to the wider secure community of detained people, and an understanding of Article 2 principles illustrated by the above cases can help in this duty of care (see Box 4).

It is important that clinicians remain focused on patients and the wider community both inside and outside the prison walls. Support for inmates at risk of suicide must be reviewed and all cases of completed suicide or near misses must be investigated in accordance with the appropriate procedure. Any inquiry will look closely at issues of quality of treatment and issues of clinical negligence. The message is clear: those detained by the state must be safeguarded from murder, suicide and neglect.