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Negligent Failure by state
However, it also applies to cases where a person
dies in state custody and the death involves
an allegation of a negligent failure on the
part of the state. This is clear from the case
of Edwards [1]
involving the killing of one prisoner by another
in the same prison cell. Moreover, Lord Bingham,
in the House of Lords case of Amin [2],
(also involving the death or one prisoner by
another) said, in relation to Edwards
"the
case is important because, although addressing
a case in which there had been no killing
or alleged killing by state agents and the
responsibility of the state (if any) could
only rest on its negligent failure to protect
the life of Christopher Edwards, a prisoner
in its custody, the European Court applied
essentially the same principles as in the
cases already considered. In my respectful
opinion, the Court was fully justified in
doing so, for while any deliberate killing
by state agents is bound to arouse very grave
disquiet, such an event is likely to be rare
and the state's main task is to establish
the facts and prosecute the culprits; a systemic
failure to protect the lives of persons detained
may well call for even more anxious consideration
and raise even more intractable problems"
(para 21)
and
Lord Slynn stated:
"It
does not seem to me to be possible to say
that there is a clear dividing line between
those cases where an agent of the state kills
and those cases where an agent of the state
or the system is such that a killing may take
place. The result of "an incident waiting
to happen" may just as much as an actual
killing require detailed and profound investigation,
though in some cases the procedure to be adopted
may be justifiably different." (para
41)
and
Lord Steyn stated:
"The
Court of Appeal plainly thought that in the
case of acts by state agents causing death
in custody there is a more exacting and rigorous
duty to investigate than in cases of negligent
omissions leading to death in custody. That
cases in the former category may be a greater
affront to the public conscience than cases
in the latter category can readily be accepted.
But the investigation of cases of negligence
resulting in the death of prisoners may often
be more complex and may require more elaborate
investigation. Systemic failures also affect
more prisoners. The European Court of Human
Rights has interpreted article 2 of the European
Convention on Human Rights as imposing minimum
standards which must be met in all cases.
And in the decision in Edwards the European
Court of Human Rights applied the same minimum
standards to a case of omissions as it had
previously applied in Jordan v United Kingdom
37 EHRR 52 to acts by state agents."
(para 50)
and
Lord Hope stated:
In
my opinion failures by the prison service
which lead to a prisoner's death at the hands
of another prisoner are no less demanding
of investigation, and of "the widest
exposure possible", than lethal acts
which state agents have deliberately perpetrated.
Indeed there is a strong case for saying that
an even more rigorous investigation is needed
if those who are responsible for such failures
are to be identified and made accountable
and the right to life is to be protected by
subjecting the system itself to effective
public scrutiny. Some form of effective investigation
is, of course, needed when prisoners have
been killed as a result of force by, inter
alios, agents of the state: McCann v United
Kingdom 21 EHRR 97, 163, para 161. But,
as the words "inter alios" indicate,
the obligation to safeguard the lives of prisoners
is not confined to those who are at risk of
the acts of state agents. It extends with
equal force to all those whose lives are at
risk from the criminal acts of another individual:
Osman v United Kingdom 29 EHRR 245,
305, para 115.
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Deaths
by non-state actors involving suspicion of unlawful
killing
There are a number of cases that indicate the
procedural duty to investigate goes beyond deaths
involving the state.
Admissability
decision in case of Menson [3].
This case concerned a racist attack on a victim
who was set on fire and killed in the street
by assailants who were not agents of the state.
In
its decision on admissibility the Strasbourg
Court noted that the case was to be distinguished
from cases involving use of lethal force either
by agents of the state or by private parties
with their collusion, or in which the factual
circumstances imposed an obligation on the authorities
to protect an individual’s life, for example
where they have assumed responsibility for his
welfare. The decision stated:
“However,
the absence of any direct State responsibility
for the death of Michael Menson does not exclude
the applicability of Article 2. It recalls that
by requiring a State to take appropriate steps
to safeguard the lives of those within its jurisdiction
…, [Article 2(1)] imposes a duty on that
State to secure the right to life by putting
in place effective criminal law provisions to
deter the commission of offences against the
person, backed up by law enforcement machinery
for the prevention, suppression and punishment
of breaches of such provisions (see Osman …
para 115). With reference to the facts of the
instant case, the Court considers that this
obligation requires by implication that there
should be some form of effective official investigation
when there is reason to believe that an individual
has sustained life-threatening injuries in suspicious
circumstances. The investigation must be capable
of establishing the cause of the injuries and
the identification of those responsible with
a view to their punishment. Where death results,
as in Michael Menson’s case, the investigation
assumes even greater importance, having regard
to the fact that the essential purpose of such
an investigation is to secure the effective
implementation of the domestic laws which protect
the right to life (see [Edwards] para 69). ...
Although there was no State involvement in the
death of Michael Menson, the Court considers
that the above-mentioned basic procedural requirements
apply with equal force to the conduct of an
investigation into a life-threatening attack
on an individual regardless of whether or not
death results …” (pages 12-13).
On
the facts of Menson the court held that
there was no breach of the state’s investigative
obligation and that the application should be
rejected as manifestly ill-founded.
This
case would appear to suggest that where there
is "a life-threatening attack on an individual"
the state is subject to its procedutal obligation
to investigate. It should however be noted that
this was only a decision on admissability and
was not decided by the court.
Comment
in the House of Lords case of Amin
In his judgment, Lord Hope stated at paragraph
64 that:
“Some
form of effective investigation is, of course,
needed where prisoners have been killed as a
result of force by, inter alios, agents of the
state: McCann …para 161. But, as
the words ‘inter alios’ indicate,
the obligation to safeguard the lives of prisoners
is not confined to those who are at risk of
the acts of state agents. It extends with equal
force to all those whose lives are at risk from
the criminal acts of another individual: Osman
… para 115” (emphasis added).
However,
it should be noted that Amin was not specifically
looking at this issue and is therefore, obiter.
Case
of Challender [4]
In this case, the deceased had died from a heroin
overdose which the family believed may have
been administered unlawfully by another person.
The main issue before the court was whether,
to comply with its article 2 obligations, the
Legal Services Commission should provide legal
aid for the inquest. As part of this, it was
necessary for the judge to rule on whether an
inquest had to comply with Article when it was
concerned with a death where there was supsicion
that the deceased may have been unlawfully killed
by a member of the public. The Judge held that
the
| 48 |
....
In McKerr Lord Nicholls, citing Jordan
v. United Kingdom (2003) 37 EHRR 2,
stated that the purpose of the investigation
required by article 2 is “to secure
that domestic laws protecting the right
to life are effectively implemented and,
in cases involving state agencies, to ensure
those responsible for deaths are made properly
accountable” (see para 19, quoted above).
The same point is made, for example, in
the judgment of the Strasbourg Court in
Edwards, where it is stated that
“the essential purpose of such investigation
is 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”
(see para 69, quoted above). The point about
effective implementation of domestic laws
protecting the right to life is a direct
reflection of what was said in para 115
of Osman, even though Osman
was looking not at the specific question
of investigations but at the general obligation
to put in place and operate effective provisions
of criminal law to deter the commission
of offences against the person. The obligation
to carry out an effective investigation
is not a wholly separate issue but a facet
of the same basic principle. This is how
the matter was approached in Menson,
where the court referred to the general
obligation expressed in para 115 of Osman
before stating that on the facts of the
particular case “this obligation requires
by implication that there should be some
form of effective official investigation
when there is reason to believe that an
individual has sustained life-threatening
injuries in suspicious circumstances”.
Although Menson was only a decision
on admissibility, I think that weight can
properly be attached to its reasoning. It
also accords with what was said in Amin
by Lord Hope, who also referred to the general
obligation expressed in para 115 of Osman
when expressing in broad terms the scope
of the article 2 investigative obligation
(though I accept that his observation was
obiter and that the present issue was not
one to which their Lordships were giving
specific consideration in that case). |
| 49 |
The
reasoning to which I have referred applies
even where the state is not directly involved
in the death (whether through the acts of
agents of the state or because the deceased
was in the care of the state). The involvement
of the state in the death gives rise to
additional reasons why an effective investigation
is needed, but the state’s obligation
to ensure the effective implementation of
domestic laws protecting the right to life
can be a sufficient basis for the need to
carry out an effective investigation even
in cases with no state involvement in the
death. |
| 50 |
On the basis of the above I would reject
the Legal Service's Commission’s contention
that the article 2 investigative obligation
is limited at most to cases of state involvement
or the use of force. In my view the principles
articulated in the case-law support a broader
approach. In the present case there is some
evidence to suggest, and the deceased’s
family have alleged, that Michael Challender’s
death occurred in circumstances that amounted
to unlawful killing. That seems to me to
bring the case within the broad scope of
the court’s reasoning in Menson
and of Lord Hope’s observation in Amin,
and to be capable of engaging the article
2 investigative obligation. That is enough
for present purposes, without attempting
to formulate any precise definition of the
circumstances in which the article 2 investigative
obligation arises |
However,
it is important to note that these comments
were, as the Jude himself admitted, obiter
[i.e did not bind another court] since he had
already dismissed the application on the grounds
that the death had occurred before the Human
Rights Act, came into force.
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