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The
facts of the cases are summarised in the headnote
which states:
"The
deceased, while serving a custodial sentence in
a young offender institution, was murdered by his
cellmate who had a history of violent and racist
behaviour. The Director General of the Prison Service
immediately wrote to the deceased's family accepting
responsibility for the death. A number of investigations
into the death were commenced. An inquest was opened
but adjourned when the cellmate was charged with
murder and not resumed after he was convicted. An
internal prison service investigation recommended
changes to the regime but that no individual member
of staff could be disciplined. A police investigation
advised that no prosecution should be brought against
the Prison Service. The Commission for Racial Equality
conducted an investigation into racial discrimination
in the Prison Service, with the circumstances of
the deceased's death as one of the terms of reference,
but declined, save to a minimal extent, to hold
the inquiry's hearings in public or to permit the
family to participate. The Secretary of State refused
the family's request for a public inquiry into the
death on the grounds that such an inquiry would
add nothing of substance and would not be in the
public interest. The claimant, the deceased's uncle,
challenged the Secretary of State's decision in
judicial review proceedings. The judge granted a
declaration that an independent public investigation
with the deceased's family legally represented,
provided with the relevant material and able to
cross-examine the principal witnesses should be
held in order to satisfy the state's procedural
duty, under article 2 of the Convention for the
Protection of Human Rights and Fundamental Freedoms,
as scheduled to the Human Rights Act 19981, to investigate
the deceased's death. On the Secretary of State's
appeal the Court of Appeal, concluding that the
series of inquiries already held satisfied overall
the state's investigative duty under article 2,
set aside the judge's order and dismissed the claim
for judicial review."
In
Amin, the House of Lords supported the High
Court decision that there should be a public inquiry
into the death. The headnote states:
"
the state's duty to secure the right to life guaranteed
by article 2 required it, in particular, to take
steps to protect the lives of those involuntarily
in its custody from the criminal acts of others,
and, where death occurred, the state's procedural
obligation to carry out an effective investigation
of the circumstances required, whatever mode of
inquiry was adopted, as a minimum standard of review,
sufficient public scrutiny to secure accountability
and an appropriate level of participation by the
next-of-kin to safeguard their legitimate interests;
that, having regard to the absence of an inquest
and since none of the investigations which were
undertaken satisfied the minimum threshold, the
state's procedural duty under article 2 had not
been discharged; and, that, accordingly, the judge's
order would be restored."
In
this particular case, Lord Bingham, who gave the main
jurdgment, considered that the procedural obligation
had not been discharged for the following reasons.
| "34 |
The
police investigations into the criminal culpability
of Stewart and the Prison Service were, very properly,
conducted in private and without participation
by the family. The Advice Report on which counsel
based his advice not to prosecute the Prison Service
or any of its members was produced in evidence
during these proceedings but not before. It is
written in an objective and independent spirit,
but it raises many unanswered questions and cannot
discharge the state's investigative duty. |
| 35 |
The
trial of Stewart for murder was directed solely
to establishing his mental responsibility for
the killing which he had admittedly carried out.
It involved little exploration, such as would
occur in some murder trials, of wider issues concerning
the death. |
| 36
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There
is no reason to doubt that Mr Butt set about his
task in a conscientious and professional way.
He explored the facts, exposed weaknesses in the
Feltham regime and recommended changes which,
it is understood, have been and are being implemented.
It is however plain that as a serving official
in the Prison Service he did not enjoy institutional
or hierarchical independence. His investigation
was conducted in private. His report was not published.
The family were not able to play any effective
part in his investigation and would not have been
able to do so even if they had accepted the limited
offer made to them. |
| 37
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The
CRE report, which was not before the judge or
the Court of Appeal, brings additional facts to
light (although some of these, such as the discovery
of a handmade wooden dagger under Stewart's pillow
after the murder, raise many further questions).
The report has been published. But the CRE inquiry,
conducted under the Race Relations Act 1976, was
necessarily confined to race-related issues and
this case raises other issues also (as did Edwards,
where there was no race issue). Save for a single
day devoted to policy issues, the inquiry was
conducted in private. The family were not able
to play any effective part in it and would not
have been able to do so even if they had taken
advantage of the limited opportunity they were
offered. Whether assessed singly or together,
the investigations conducted in this case are
much less satisfactory than the long and thorough
investigation conducted by independent Queen's
Counsel in Edwards's case, but even that was held
inadequate to satisfy article 2(1) because it
was held in private, with no opportunity for the
family to attend save when giving evidence themselves
and without the power to obtain all relevant evidence.
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| 38 |
I
consider that the judge was right to reach the
conclusion and make the order which he did. For
the foregoing reasons, and those given by my noble
and learned friends, Lord Slynn of Hadley, Lord
Steyn and Lord Hope of Craighead, I would accordingly
allow the appeal and restore his order." |
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