In our regular series, a group of experts from Liberty and the Public Law Project answer questions on human rights issues

Q My client's son died while in prison, following an attack by another inmate.

Although an inquest was held, along with separate investigations by the Prison Service and the police, my client is dissatisfied by the absence of any public inquiry into the death of his son.

He is also unhappy at not being given the opportunity to participate fully in the investigations that did take place.

Can the state be required to hold an independent public inquiry where my client's family can be adequately represented? Are articles 2 and 3 of the European Convention on Human Rights breached?

A Article 2 provides that everyone's right to life should be protected by law.

Article 3 prohibits torture, inhuman and degrading treatment or punishment.

Both these rights are absolute, meaning that the state can never justify acting in breach of them.

The state has an obligation to protect those it holds in custody from harm (substantive protection).

There is also a duty on the state to investigate the death or ill-treatment of a prisoner in its custody (procedural duty).

To discharge this latter duty, the investigations into any such death or ill-treatment must satisfy certain minimum requirements (see in particular R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2003] 3 WLR 1169).

The Court in Jordan v UK (App No.

24746/94, 4 May 2001) - since followed both domestically and in Strasbourg (see, for example, Finucane v UK, App.

No.

29178/95, 1 July 2003) - set out the criteria for an effective official investigation conforming to articles 2 and 3.

It must be: effective, prompt and reasonably expeditious, independent, open and accessible (facilitating the full participation of the next of kin in the investigation, including access to the investigation and full disclosure).

In Edwards v UK (App.

No.

46477/99), the investigation into the death of a mentally ill remand prisoner by his cellmate was criticised as it was held in private, only allowing the deceased's parents access to part of the hearing.

The European Court of Human Rights (ECHR) held that this was contrary to the criteria in Jordan.

The recent House of Lords' case of Amin - overturning the Court of Appeal decision ([2003] QB 581) - concerned the murder of Zahid Mubarek by his racist cellmate at Feltham Young Offenders Institution.

The Prison Service and the police held inquires.

The Commission on Racial Equality conducted a formal investigation into racism in the Prison Service.

No public inquiry was conducted.

The House of Lords held that where a death in custody has occurred, there must be a public investigation before an independent judicial tribunal, allowing the opportunity for relatives of the deceased to participate.

The requirements laid down in Jordan and Edwards were minimum standards that must be met, whatever mode the investigation takes.

All the inquiries had failed to meet these standards - the investigations were held mainly in private and without full participation of the deceased's family; the Prison Service lacked the necessary independence and its findings were not published; and the CRE's investigation was limited to focusing on race-related issues.

The inquest, and Prison Service and police investigations had to meet certain minimum standards.

These are unlikely to have been satisfied given the private nature of the proceedings, the lack of independence of the Prison Service inquiry and the inability of your client to participate fully and effectively.

You should consider the following:

- Writing to the Home Secretary requesting a public inquiry into the death, complying with the requirements laid down in Amin and request disclosure of the Prison Service's internal investigation report;

- Judicially reviewing any refusal by the Home Secretary to do either;

- Lodging a letter of introduction at the ECHR within six months of your client's son's death, alleging, among other things, breaches of articles 2 and 3 to protect your client's position pending the outcome of any potential domestic remedies, and;

- Whether there are any domestic claims (for example, in negligence) against the Prison Service under the Law Reform (Miscellaneous Provisions) Act 1934 and/or Fatal Accidents Act 1976.

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