Seeking answers to prison death puzzle

In our regular series, a group of experts from Liberty and the Public Law Project answer your questions

Q I act for a couple whose diabetic son died unexpectedly in his prison cell.

A few days before his death, he had complained of a lack of insulin and proper medical care.

Neither the coroner's inquest nor the prison internal investigation found any fault with the Prison Service.

Although my clients did attend the inquest, they were not allowed to have any input into the Prison Service's internal investigation of their son's death; nor have they been disclosed the internal report.

They are upset that they have not been kept informed about what is going on.

There are still many unanswered questions in my clients' minds.

Is there anything else they can do to get answers? Are articles 2, 3 and 8 of the European Convention on Human Rights (ECHR) engaged and/or breached?

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

The state has an obligation to protect those whom it holds in custody from harm.

If your clients' son died in custody because of a lack of appropriate medical care, the state is likely to have failed in its obligation to protect his life under article 2.

Article 3 provides that no one shall be subjected to torture, or inhuman or degrading treatment or punishment.

Omitting to give your client's son the necessary medical care, which resulted in his suffering and death, may breach article 3, depending on whether his suffering reached the 'minimum level of severity' required by article 3.

You should seek disclosure of copies of the inmate medical records.

A lack of medical supervision leading to the death of a prisoner was one of the reasons for a finding of a breach of article 3 in Keenan v United Kingdom (App.

no.

27229/95, Judgment of 3 April 2001).

Article 8 secures for everyone the right to respect for his private life.

Private life encompasses a person's right to physical integrity.

If the state failed to give your clients' son adequate medical treatment, they did not protect his physical integrity and may therefore have contravened article 8.

In addition to the substantive protection provided by the above articles, articles 2 and 3 provide a procedural right to an effective official investigation into a death - see in particular Jordan v UK (App no.

24746/94, Judgment of 4 May 2001).

Right to an effective official investigation

The court in Jordan v UK set out the criteria for an official investigation.

It must be:

l Effective - that is, capable of leading to the identification of those responsible;l Prompt and reasonably expeditious;l Independent;l Open - allowing full public scrutiny of the investigation to ensure public accountability - andl Accessible - facilitating the full participation of the next of kin in the investigation, including access to the investigation and full disclosure.

In the Court of Appeal decision in Amin v Secretary of State for the Home Department [2002] EWCA Civ 390, the court held that there is no absolute right to an effective official investigation and that article 2 provides a mere 'adjectival duty' to investigate deaths that have occurred to people who were under the direct protection of the state (paragraph 32).

On the question of the extent of the procedural obligation, the court considered the requirements in Jordan.

It held that there is no universal formula for an effective investigation, and that publicity and family participation are not discrete compulsory requirements which must be distinctly and separately fulfilled in every case where the procedural duty to investigate is engaged.

Are coroner's inquests effective official investigations?

In Jordan, the court examined whether a coroner's inquest could be regarded as an effective official investigation.

It found that because inquests are public hearings conducted by coroners, who are independent official officers normally sitting with a jury, and because there is the possibility to ask for official review of the proceedings, the procedural propriety of such investigations should be safeguarded.

Provided no wider issues need to be investigated, a coroner's inquest can therefore in many circumstances be regarded as an effective official investigation for the purposes of current domestic and European human rights law.

But a coroner's inquest is restricted by the scope of the examination procedure, which is a fact-finding exercise and not a method of apportioning guilt.

The coroner's investigation has very limited objectives, and is restricted to identifying who the deceased was, and how, when and where the deceased came by his death.

Whether an inquest fails to address necessary factual issues, thereby complying with article 2, will therefore depend on the particular circumstances of the case.

Conclusion

In your clients' case, a Prison Service investigation was carried out.

As this was conducted by the Prison Service itself, it is unlikely to be regarded as independent.

According to Amin, the form of the investigation need not follow a universal formula and will depend on the facts of the case.

Each case needs to be examined on what is required in any individual instance for the substantive protection of the right in question.

In Edwards v UK (App.

no.

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

The ECHR held that this was contrary to the third and fourth criteria in Jordan.

The court held that the family's rights of participation were unacceptably restricted.

Where does this leave your clients?

Your clients' son was in the custody of the state, which had a duty to protect his life under article 2 of the ECHR, a duty which it failed to uphold.

The state also had a duty to protect him from inhuman or degrading treatment under article 3.

The lack of appropriate medical care is likely to be regarded as having led to the inhuman or degrading treatment that your clients' son suffered, resulting in his sudden death.

The state also has a procedural duty to carry out an effective official investigation into the circumstances of your clients' son's death.

On the facts of this case, a coroner's inquest would not have sufficed to be an effective official investigation, as wider issues of the role of the Prison Service and possible negligence by it need to be investigated.

The Prison Service investigation is unlikely to have been an effective official investigation, as it was not independent and did not involve the participation of your clients.

The state is likely therefore to have contravened its procedural duty under articles 2 and 3 of ECHR.

Next steps

l Write to the home secretary requesting a public inquiry into your clients' son's death complying with the Jordan requirements and disclosure of the Prison Service internal investigation report;l Consider judicially reviewing any refusal by the home secretary to do either of the above;l Lodge a letter of introduction at the ECHR to protect your client's position pending the outcome of any potential domestic remedies;l Consider whether there is a claim in negligence against the Prison Service under the Law Reform (Miscellaneous Provisions) Act 1934;l In the event that your clients were dependent on their son, consider any claim under the Fatal Accidents Act 1976.

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