|
What
should be the characteristics of an investigation?
In
the House of Lords case of Amin [1]
, Lord Bingham said that previous case law
- and in particular the case of Jordon [2]-
had established a number of key propositions on this
point
| "5 |
The
essential purpose of the investigation was defined
by the Court in Jordan, para 105:
"to
secure the effective implementation of the
domestic laws which protect the right to life
and, in those cases involving State agents
or bodies, to ensure their accountability
for deaths occurring under their responsibility.
What form of investigation will achieve those
purposes may vary in different circumstances.
However, whatever mode is employed, the authorities
must act of their own motion, once the matter
has come to their attention. They cannot leave
it to the initiative of the next of kin either
to lodge a formal complaint or to take responsibility
for the conduct of any investigative procedures."
|
| 6 |
The
investigation must be effective in the sense
that (Jordan, para 107)
"it
is capable of leading to a determination of
whether the force used in such cases was or
was not justified in the circumstances ...
and to the identification and punishment of
those responsible ... This is not an obligation
of result, but of means."
|
| 7 |
For
an investigation into alleged unlawful killing
by state agents to be effective, it may generally
be regarded as necessary (Jordan, para 106)
"for
the persons responsible for and carrying out
the investigation to be independent from those
implicated in the events ... This means not
only a lack of hierarchical or institutional
connection but also a practical independence."
|
| 8 |
While
public scrutiny of police investigations cannot
be regarded as an automatic requirement under
article 2 (Jordan, para 121), there must
(Jordan, para 109):
"be
a sufficient element of public scrutiny of
the investigation or its results to secure
accountability in practice as well as in theory.
The degree of public scrutiny required may
well vary from case to case."
|
| 9 |
"In
all cases", as the Court stipulated in Jordan,
para 109: "the next-of-kin of the victim
must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interests."
|
| 10 |
The
Court has not required that any particular procedure
be adopted to examine the circumstances of a killing
by state agents, nor is it necessary that there
be a single unified procedure: Jordan, para
143. But it is "indispensable" (Jordan,
para 144) that there be proper procedures
for ensuring the accountability of agents of the
state so as to maintain public confidence and
allay the legitimate concerns that arise from
the use of lethal force." |
In Amin, the House of Lords also made the following
further points:
| • |
The
European Court has not prescribed a single model
of investigation to be applied in all cases. There
must be a measure of flexibility in selecting
the means of conducting the investigation. But
the family' barrister was right to insist that
the Court (particularly in Jordan and Edwards),
has laid down minimum standards which must be
met, whatever form the investigation takes. |
| • |
A
properly conducted inquest can discharge the states
investigation obligation (McCann [3]
). |
In
the case of Edwards what was required of an
investigation was summarised as follows:
| 69 |
.
… What form of investigation will achieve
those purposes may vary in different circumstances.
However, whatever mode is employed, the authorities
must act of their own motion, once the matter
has come to their attention. They cannot leave
it to the initiative of the next of kin either
to lodge a formal complaint or to take responsibility
for the conduct of the investigative procedures.
… |
| 71 |
The
investigation must also be effective in the sense
that it is capable of leading to a determination
of whether the force used in such cases was or
was not justified in the circumstances and to
the identification and punishment of those responsible.
This is not an obligation of result, but of means.
The authorities must have taken the reasonable
steps available to them to secure the evidence
concerning the incident, including inter alia
eye witness testimony, forensic evidence and,
where appropriate, an autopsy which provides a
complete and accurate record of injury and an
objective analysis of clinical findings, including
the cause of death. Any deficiency in the investigation
which undermines its ability to establish the
cause of death or the person or persons responsible
will risk falling foul of this standard. |
| 73 |
For
the same reasons, there must be a sufficient element
of public scrutiny of the investigation or its
results to secure accountability in practice as
well as in theory. The degree of public scrutiny
required may well vary from case to case. In all
cases, however, the next-of-kin of the victim
must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interests.” |
The
minimum requirement of an investigation can therefore
be summarised in the following way:
| (1) |
The
investigation must be independent. |
| (2) |
The
investigation must be effective. |
| (3) |
The
investigation must be reasonably prompt. |
| (4) |
There
must be a sufficient element of public scrutiny |
| (5) |
The
next-of-kin must be involved to an appropriate
extent. |
It
should be noted that in the case of Middleton [ ]
(which involved the murder of one prisoner by another)
the court said, after referring to the number of deaths
in prison that they:
"highlight the need for an investigative regime
which will not only expose any past violation of
the state's obligations [in relation to right to
life] ... but also within the bounds of what is
practicable, promote measures to prevent or minimise
the risk of future violations."
Footnote
| 1 |
R
(Amin) v Secretary of State for the Home Department
[2003] 3 WLR 1169 |
|
| 2 |
Jordan
v United Kingdom 37 EHRR 52. |
To
download |
| 3 |
McCann
v United Kingdom 21 EHRR 97 |
|
| 4 |
Keenan
v UK (2001) 10 BHRC 319 |
|
| 5 |
R
(Khan) v. Secretary of State for Health [2003]
EWCA Civ 1129 |
|
| 6 |
R
(Challender) v Legal Services Commission [2004]
EWHC 925 (Admin) |
|
Back
to top
|
